                                                                                           ACCEPTED
                                                                                       04-15-00532-CV
                                                                           FOURTH COURT OF APPEALS
                                                                                SAN ANTONIO, TEXAS
                                                                                   9/8/2015 5:10:39 PM
                                                                                        KEITH HOTTLE
                                                                                                CLERK
                               No.04-15-00532-CV

                      IN THE COURT OF APPEALS
                     FOURTH DISTRICT OF TEXAS              FILED IN
                         SAN ANTONIO, TEXAS         4th COURT OF APPEALS
                                                     SAN ANTONIO, TEXAS
       _______________________________________________________
                                                    9/8/2015 5:10:39 PM
                                                                 KEITH E. HOTTLE
                   METSO MINERALS INDUSTRIES, INC.,                   Clerk

                                    Appellant
                                        v.

                      MAVERICK AGGREGATES, INC.,
                               Appellee

    ____________________________________________________________

       From the 365th Judicial District Court in Maverick County, Texas,
Cause No. 12-09-27789-MCVAJA, Maverick Aggregates, Inc., v. IPE Aggregate,
        LLC, Metso Minerals Industries, Inc. and Crisp Industries, Inc.
   ___________________________________________________________

                 MOTION FOR TEMPORARY ORDERS
       _______________________________________________________

TO THE HONORABLE FOURTH COURT OF APPEALS:
      Now comes Appellant, Metso Minerals Industries, Inc. (“Metso”), and

pursuant to TEX. R. APP. P. 29.3, files this motion requesting the Court enter

temporary orders pending a final decision in this accelerated interlocutory appeal,

and in support thereof, would show the Court as follows:

                               INTRODUCTION

      Appellant Metso appeals from an interlocutory order signed by the trial court

on August 25, 2015, in which the Court denied Metso’s Application to Compel

                                         1
Arbitration. Tab 1: (Order)1.            The underlying lawsuit brought by appellee,

Maverick Aggregates, Inc., involves allegations of breach of express warranty,

breach of implied warranty of fitness for a particular purpose, breach of implied

warranty of merchantability, breach of contract, and negligent or fraudulent

misrepresentation.       Tab 2: (Plaintiff’s Second Amended Petition).                   Because

Maverick Aggregates seeks to derive a benefit from a contract containing both an

express warranty and a valid arbitration clause, the doctrine of direct benefits

estoppel mandates that Maverick Aggregates arbitrate all of its claims against

Metso. Tab 3: (Application to Compel Arbitration of Metso Minerals Industries,

Inc. at p. 2; Tab 4: (Supplement to Defendant Metso Minerals Industries, Inc.’s

Application to Compel Arbitration of Metso Minerals Industries, Inc. at Ex. Sup-3).

       At the trial court’s hearing on arbitrability, Maverick Aggregates argued that

Metso had waived its right to compel arbitration by substantially invoking the

judicial process prior to filing its Application to Compel Arbitration; Metso

adamantly disagreed. RR 13-14, 16-18, 21-35. Despite the fact that Plaintiff failed

to even suggest it had been prejudiced by any such delay, the trial court denied

Metso’s Application to Compel Arbitration. Tab 1; see RR 35. Because a party

does not waive a right to arbitration merely by delay, and because Maverick

Aggregates failed to assert or present any evidence of prejudice, Metso will prevail

in this accelerated interlocutory appeal. See In re Service Corp. Int’l, 85 S.W.3d

       1
         Metso promptly requested the Clerk’s Record, but as of the date of this filing, it has not
yet been made available.
                                                2
171, 174 (Tex. 2002) (per curiam); see also In re Vesta Ins. Group, Inc., 192

S.W.3d 759, 763-64 (Tex. 2006) (per curiam) (determining that, although the

relators had been litigating for two years in the trial court, the appellant had not

demonstrated sufficient prejudice to overcome the strong presumption against

waiver of the right to compel arbitration).

      A stay of the lower court’s proceedings is required in order to protect the

parties’ rights and preserve the jurisdiction of this Court. See In re Merrill Lynch

Trust Co., FSB, 235 S.W.3d 185, 196 (Tex. 2007) (holding that the trial court

abused its discretion in failing to compel arbitration of the plaintiff’s claims and

failing to stay such litigation until the arbitration was concluded); TEX. R. APP. P.

29.3. If Metso is required to attend and conduct depositions during the course of

this appeal, the cost-saving benefits of arbitration will be greatly, if not completely,

reduced, and both the state and federal presumptions in favor of arbitration will be

ignored. All of the defendants are unopposed to a stay of the underlying lawsuit

until such time as this Court makes a final determination in this accelerated

interlocutory appeal.

                                ISSUE PRESENTED

      Because this Court has the authority to issue temporary orders to protect its

jurisdiction or preserve the parties’ rights, should it issue an order staying all of the

proceedings in this matter at the trial court level until a final determination is



                                            3
reached in this accelerated interlocutory appeal, so that the parties do not have to

conduct expensive and potentially unnecessary discovery?

                         PERTINENT BACKGROUND

      The Fourth Amended Docket Control Order (“DCO”), signed by the

presiding judge on June 10, 2015, mandates numerous deadlines for all parties.

Tab 5: (Fourth Amended DCO). The parties attempted to negotiate a Rule 11

Agreement to stay the upcoming deadlines and, although an agreement was

reached, Maverick Aggregates failed to provide a signed Rule 11 Agreement until

after Metso’s deadline for amending its pleadings. Tab 6: (Email from Plaintiff

with Initial Rule 11 Agreement). Thus, Metso and co-defendant Crisp Industries,

Inc. (“Crisp”) both reluctantly filed their amended pleadings, subject to their

Applications to Compel Arbitration, expressly stating they were only doing so to

comply with the trial court’s mandated deadlines—and not to invoke the judicial

process. Tabs 7, 8: (Amended Answers of Metso and Crisp).

      Thereafter, the parties attempted to enter an amended Rule 11 Agreement to

reflect that an accelerated interlocutory appeal would be filed and that the filing of

the Rule 11 Agreement was not intended to constitute an invocation of the judicial

process.    Maverick Aggregates was provided with the amended Rule 11

Agreement—signed by all of the defendants—on August 26, 2015.                 Tab 9:

(Amended Rule 11 Agreement). To date, Plaintiff has failed to sign the agreement,

and has indicated that although it has no objection to suspending deadlines while
                                          4
the interlocutory appeal is being considered, it is opposed to staying “the entire

case while the Court of Appeals decides whether the case against one of the parties

should be sent to arbitration.” Tab 10: (August 2015 emails between Plaintiff’s

counsel and Metso’s counsel). Thus at this juncture, the underlying proceedings

have not been completely stayed by statute, by order of the Court, or by agreement

of the parties.

                                      ARGUMENT

       “When an appeal from an interlocutory order is perfected, the appellate court

may make any temporary orders necessary to preserve the parties’ rights until

disposition of the appeal . . . .” TEX. R. APP. P. 29.3. If alleged claims must be

arbitrated, that proceeding must be given priority so that it is not rendered moot by

deciding the same issues in court. In re Merrill Lynch Trust Co. FSB, 235 S.W.3d

185, 196 (Tex. 2007); cf. TEX. CIV. PRAC. & REM. CODE § 171.025 (a court must

stay a proceeding that involves an issue subject to arbitration if an application for

that order is made under the Texas Arbitration Act). During an interim period, a

stay of litigation ensures that a Plaintiff being compelled to arbitration does not

both have the benefit of a contract while defeating it too. See In re Merrill Lynch

Trust Co., supra.

       As Plaintiff’s pleadings and emails show, it would like the benefits from

Metso’s express warranty, but seeks to avoid arbitration. In the process, Maverick

Aggregates is driving up defendants’ legal costs and expenses.         See Tab 11:
                                          5
(Plaintiff’s Response and Objections to Application to Compel Arbitration of

Metso Minerals Industries, Inc. at p. 12) (requesting an evidentiary hearing on the

issue of arbitrability be scheduled “with sufficient time to allow Plaintiff to

conduct written and deposition discovery of witnesses relevant to these issues,

including but not limited to all electronic versions of documents at issue in this

case, and all individuals identified as authors or any and all documents Defendant

seeks to admit into evidence in this case, together with sufficient time in that

discovery period for the forensic analysis of all documents, necessary computers,

hard drives, backup tapes, and metadata of/from such documents and items.

Plaintiff further requests this Court issue an Order allowing Plaintiff to conduct

electronic discovery with regard to the relevant documents to Defendant’s

Application, permitting the necessary time frame for Plaintiff to conduct forensic

computer analysis prior to the evidentiary hearing in this case”)); Tab 10. In sum,

after initially requesting costly discovery ostensibly to determine the issue of

arbitrability, Plaintiff now contends that it should be allowed to conduct expensive

and time consuming depositions—but without being subject to any deadlines.

      Direct benefits estoppel, under which Metso is requesting the Court compel

arbitration, is based in equity. This Court would forfeit its jurisdiction to make a

determination based on this equitable principle, if all of the defendants were forced

to undertake expensive depositions at the bequest of a Plaintiff who would not be

able to compel such depositions in arbitration. See Tab 12, ICC Rules, Article 25.
                                          6
Further, Metso has the right to request an accelerated appeal on the issue of

arbitrability and should not be unfairly subjected to unnecessary discovery

expenses by Maverick Aggregates. Cf. In re Devon Energy Corp., 332 S.W.3d

543, 548 (Tex. App.—Houston [1st Dist.] 2009, no pet.) (“Courts must focus on

preserving the right to meaningful arbitration rather than addressing potential harm

to the rights of a non-signatory.”).

                                REQUEST FOR RELIEF

      For these reasons, Appellant Metso Minerals Industries, Inc. asks this Court

to grant all orders necessary to preserve this Court’s jurisdiction and protect Metso

Minerals Industries, Inc.’s rights, including:

      •      Staying all proceedings in the trial court matter (Cause No. 12-

             09-27789-MCVAJA in the 365th Judicial District Court in

             Maverick County, Texas) as of the date the Notice of Appeal

             was signed (August 25, 2015), until such time as this Court

             makes a final determination on Metso Mineral Industries, Inc.’s

             accelerated interlocutory appeal of the denial of its Application

             to Compel Arbitration; and

      •      Grant Metso Minerals Industries, Inc., all other relief to which

             it is entitled.




                                           7
                                     Respectfully submitted,


                                     /s/Catherine M. Stone
                                     CATHERINE M. STONE
                                     State Bar No. 19286000
                                     Email: cstone@langleybanack.com
                                     PAULA C. BOSTON
                                     State Bar No. 24089661
                                     Email: pboston@langleybanack.com
                                     LANGLEY & BANACK, INC.
                                     745 E. Mulberry, Ste. 900
                                     San Antonio, Texas 78212
                                     (210) 736-6600 Telephone
                                     (210) 735-6889 Facsimile

                                     ATTORNEYS FOR APPELLANT
                                     METSO MINERALS INDUSTRIES, INC.

                     CERTIFICATE OF COMPLIANCE

     In compliance with Texas Rule of Appellate Procedure 9.4(i)(3), Appellant
Metso Minerals Industries, Inc. certifies that the number of words in Appellant’s
Motion for Temporary Orders to Preserve Jurisdiction and Protect Rights Pending
Appeal, including its headings, footnotes, and quotations, is: 1,497.

                                     /s/ Paula C. Boston
                                     PAULA C. BOSTON

                     CERTIFICATE OF CONFERENCE

     The undersigned attorney has conferred with Appellee’s attorney, Daniel R.
Dutko, regarding this Motion, and he is opposed to it.

                                     /s/ Paula C. Boston
                                     PAULA C. BOSTON




                                        8
                       CERTIFICATE OF SERVICE

            A true and correct copy of the foregoing document has been served
upon the following counsel of record pursuant to the Texas Rules of Appellate
Procedure on September 8, 2015.

     Mr. Daniel R. Dutko
     HANSZEN LAPORTE
     11767 Katy Freeway, Ste. 850
     Houston, Texas 77970
     DDutko@hanszenlaporte.com
     FAX: 713-524-2580
     ATTORNEYS FOR APPELLEE
     MAVERICK AGGREGATES, INC.

                                            /s/ Paula C. Boston
                                            PAULA C. BOSTON




                                      9
                            INDEX OF TABS

Tab 1:    Order Denying Application to Compel Arbitration of Metso Minerals
          Industries, Inc.

Tab 2:    Plaintiff’s Second Amended Petition

Tab 3:    Application to Compel Arbitration of Metso Minerals Industries, Inc.

Tab 4:    Supplement to Defendant Metso Minerals Industries, Inc.’s
          Application to Compel Arbitration of Metso Minerals Industries, Inc.

Tab 5:    Fourth Amended Docket Control Order

Tab 6:    Email from Plaintiff with Initial Rule 11 Agreement

Tab 7:    Metso Minerals Industries, Inc.’s First Amended Answer to Plaintiff’s
          First Amended Petition and Cross Claim

Tab 8:    Crisp Industries, Inc.’s First Amended Answer and Counterclaim

Tab 9:    Amended Rule 11 Agreement

Tab 10:   August 2015 Emails between Plaintiff’s counsel and Metso’s counsel

Tab 11:   Plaintiff’s Response to Application to Compel Arbitration of Metso’s
          Minerals Industries, Inc.

Tab 12:   ICC Rules




                                     10
Tab 1
 Order
          Tab 2
Plaintiff’s Second Amended Petition
                              CAUSE NO. 12-09-27789-MCVAJA

MAVERICK AGGREGATES, INC.                       §              IN THE DISTRICT COURT
    Plaintiff                                   §
                                                §
                                                §           365 TH JUDICIAL DISTRICT
                                                §
                                                §
v.                                              §
                                                §
IPE AGGREGATE, LLC.                             §
AND METSO MINERALS                              §
INDUSTRIES INC.                                 §
      Defendants                                §           MAVERICK COUNTY, TEXAS


                      PLAINTIFF'S SECOND AMENDED PETITION

TO THE HONORABLE JUDGE OF SAID COURT:

       COMES NOW, MAVERICK AGGREGATES, INC .. , hereinafter sometimes referred to

as "Plaintiff', complaining ofiPE AGGREGATE, L.L.C., METSO MINERAL INDUSTRIES,

INC., and CRISP INDUSTRIES, INC. for cause of action would respectfully show unto the

Court as follows:

                                         I.         DISCOVERY

       1.1     Plaintiff affitmatively pleads that discovery should be conducted in accordance

with a Level II discovery control plan under Rule 190.3 of the Texas Rules of Civil Procedure.

                                              II.    PARTIES

      2.1     Plaintiff, MAVERICK AGGREGATES, INC., is a Texas corporation doing

business in Texas.

      2.2     Defendant, IPE AGGREGATE, L.L.C. is a Texas Limited Liability Company.

Service of process is not necessaty because Defendant has appeared and answered and is currently

before this Comt                                                 AT~~\~_. 6'.~;;~~~CI< _
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                                                                 UY___                          ______ _____. i);;!·U!   r
       2.3       Defendant, METSO MINERAL INDUSTRIES, INC. is a Texas Corporation.

Service of process is not necessmy because Defendant has appeared and answered and is currently

before this Comt

       2.4       Defendm1t, CRISP INDUSTRIES, INC., is a Texas Corporation. Service of process

may be effectuated by serving its President: John Crisp, Crisp Industries, Inc., P.O. Box 326,

Bridgeport, Texas 76426.



                                   III.   JURISDICTION & VENUE

              3.1 Venue is proper in Maverick County, Texas, pursuant to Section 15.002 (a) (1) of

the Texas Civil Practice and Remedies Code, since all or a substantial part of the events or

omissions giving rise to the claim occurred in Maverick County, Texas.

        3.2      Jurisdiction is proper in this Court because the amount in controversy exceeds the

minimum jurisdictional limits of this Court.

                                               IV.    FACTS

        4.1      Plaintiff, MAVERICK AGGREGATES, INC, purchased a Metso ST358 screener

from Defendant IPE AGGREGATE, LLC. on March 11,2011.

        4.2      Plaintiff paid a total of$297,687.00 for the Metso ST358.

        4.3      Ignacio Martinez a representative from Defendant IPE AGGREGATE, L.L.C. and

METSO MINERAL INDUSTRIES, INC., represented to plaintiff that the Metso had a near new

condition, but had all the manufacturer warranties for a full year or 1800 hours. CRISP

INDUSTRIES, INC. is an authorized dealer for METSO MINERAL INDUSTRIES, INC. and

which was in fact the owner of the Metso ST358 Screener and who authorized IPE

AGGREGATES, L.L.C. to sell said screener to Plaintiff.
        4.4        Since the purchase of the Metso Plaintiff has encountered several mechanical

 problems with the Screener which have rendered the Metso ST358 inoperable.

        4.5        Plaintiff had to incur repair costs of$ I 5,579.00 to replace a hydraulic pump.

        4.6        Plaintiff has found the need to purchase an additional screener in order to

 maintain his business in operation and to mitigate its losses.

        4.7        On Febmary 21,2012 Defendant IPE AGGREGATE, L.L.C. was given notice of

 yet another breakdown which has rendered the Metso inoperable.

                                  V.      BREACH OF CONTRACT

             5.1     Plaintiff would allege that he entered into a contract with IPE AGGREGATE,

L.L.C .for the purchase of a Metso screener, which included a full factory warranty.

        5.2        Plaintiff would further allege that by the terms of the agreement, IPE

AGGREGATE, L.L.C. promised to make valid the full factory watTanty by either IPE

AGGREGATE, L.L.C. performing the repairs or by contacting Defendants METSO MINERAL

INDUSTRIES, INC. and/or CRISP INDUSTRIES, INC., and IPE AGGREGATE, L.L.C. failed

to perform on the watTanty as per the agreement with Plaintiff which constitutes a matetia1

breach of contract.

       5.3         Plaintiff would fmiher allege that they have fully performed all conditions,

covenants, and promises under their respective contract with IPE AGGREGATE, L.L.C.

       5.4         As of the date of filing this petition Plaintiff MAVERICK AGGREGATES,

INC.'s damages due fi·om Defendants IPE AGGREGATE, L.L.C. and METSO MINERAL

INDUSTRIES, INC. and CRISP INDUSTRIES, INC.'S matetial breach total $313,216.00. IPE

AGGREGATE, L.L.C. and METSO MINERAL INDUSTRIES, INC. and CRISP INDUSTRIES,
INC.'s material breach of its contract with MAVERICK AGGREGATES, INC. has been the

direct and proximate cause of damages to Plaintiff.

       5.5 Defendants' conduct has made it necessary for Plaintiff to employ the undersigned

attorney to file this suit. This claim was timely presented to Defendants and remains unpaid. A

reasonable fee for attorney's services rendered and to be rendered in this case collectively is

$80,000.00, plus reasonable attorney fees for any necessary appeals.

              VI. NEGLIGENT OR FRAUDALENT MISREPRESENTATION

       6.1 On March II, 2011 the Plaintiff was informed by Defendants that the Metso was still

under wananty as it had full manufacture wananty.

       6.2 The invoice expressly states that the Metso, has one full year or 1800 hours of

warranty.

       6.3 Defendants IPE AGGREGATE, L.L.C. and METSO MINERAL INDUSTRIES,

INC. and CRISP INDUSTRIES, INC. negligently or fi"audulently misrepresented the presence of

a full wananty. This misrepresentation was made with the intent of obtaining an unjust

advantage over the plaintiff, which caused Plaintiff injury

                            VII.    BREACH OF EXPRESS WARRANTY

       7.1 The invoice attached hereto, expressly states the full manufacture warranty for one

year or 1800 that the Metso screener has.

       7.2 Defendants IPE AGGREGATE, L.L.C. and METSO MINERAL INDUSTRIES,

INC. and CRISP INDUSTRIES, INC. breached this express warranty, and caused Plaintiff

damages.

       7.3 Plaintiff asserts a cause of action for recovery of the damages related to this breach
                     VIII. BREACH OF IMPLIED WARRANTY OF FITNESS FOR A
                                 PARTICULAR PURPOSE

        8.1 Defendants are all merchants of the Metso Screener, and an action is assetied against

them for breach of implied warranty of fitness for a particular purpose.

        8.2 At the time the Defendants entered into the applicable contracts, they had reason to

know that the Met so Screener was being purchased for the purpose of screening different types

of soils, and Defendants' breached this express warranties, and subsequently that Plaintiff has

been damaged for the same, and asserts a cause of action for recovery of its damages related to

this breach.

               IX.     BREACH OF IMPLIED WARRANTY OF MERCHANTABILITY

        9.1 Defendants are all merchants ofMetso Screener, and an action is asserted against

them for breach of implied warranty of merchantability.

        9.2 At the time the Defendants entered into the applicable contracts, they had reason to

know that the Metso Screener was being purchased for the purpose of screening different types

of soils, and Defendants breached this implied warranty of merchantability, by selling the

particular Metso Screener that was defective and not reasonably fit for the ordinary purpose for

which the Metso is used for. As a result ofthe breach of this implied wmTanty of

merchantability, the Plaintiff has suffered damages.

                                      X.      PRAYER

        WHEREFORE, Plaintiff request that the Defendants be served with process, and

that after due proceedings are had, a judgment be entered in favor of the Petitioners and

against the Defendants, jointly and severally, for (i) damages, (ii) attorneys fees, (iii)

costs, (iv) post-judgment and pre-judgment interest at the maximum rate allowable at

law, (v) punitive damages in an amount to be detennined at trial, (vi) all statutmy damages,
(vii) disgorgement of Defendants' profits from sale, (viii) reimbursement for all costs and

expenses insured in the repair of any purchase price paid, including, but not limited to, insurance

co-payments, interest on these amounts from the date of purchase, attomeys' fees and costs, non-

pecuniary damages, as well as any other legal and equitable relief to which Plaintiffs may be

entitled; (ix) diminution in value of the business; (x) any and all other just and equitable relief

that this Court determines just and equitable under the law.


                                                   Respectfully submitted,

                                                   RUIZ & ASSOCIATES, P. C.
                                                   513 N. Ceylon St.
                                                   Eagle Pass, Texas 78852
                                                   Tele hone No.: (830) 773-7500
                                                   Fa i ile No.: ( 0) 7 3 7711




                                                        ORNEY FOR PLAINTIFF
                               CERTIFICATE OF SERVIC

       I HEREBY CERTIFY that on this    ~    day of lllfolb,~Ol3, a true and correct copy

of the Plaintiffs First Amended Petition has been served VIA FACSIMILE TRANSMISSION,

upon the following counsel of record:

Mr. Heribe1to Morales, Jr.
LANGLEY & BANACK
401 Quany Street
Eagle Pass, Texas 78852
Via Facsimile No. 757-4045

Mr. Oscar A. Garza
THE LAW FIRM OF OSCAR A. GARZA, L.L.C.
Ill Soledad St. 300
San Antonio, Texas 78205
Via Facsimile No. (21 0) 299-7711
                                           CITATION BY MAILING

 THE STATE OF TEXAS

 CRISP INDUSTRIES, INC. I BY AND THRU ITS PRESIDENT FOR SERVICE: JOHN CRISP I P.O.
 BOX 326 I BRIDGEPORT, TX 76426

 Defendant, in the hereinafter styled and numbered cause:
                                                    NOTICE
          You have sued. You may employ an attorney. If you or your attorney do not file a written
answer with the clerk who issued this citation by 10:00 a.m. on the Monday next following the
expiration or twenty days after you were served this citation and petition, default judgment may be
taken against you.
          YOU ARE HEREBY COMMANDED to appear before the 365TH Judicial District Court of the City of
Eagle Pass, Texas, County of Maverick, Texas, by filing a written answer to the Petition of Plaintiff at or
before 10:00 a.m. of the Monday next after the expiration of 38 days from the date the citation was
placed in the custody of the U.S. Postal Service in accordance with the clerk's standard mailing
procedures and state the date that the citation was placed in the custody of the U.S. Postal Service by
the clerk. Hereof, a copy of which accompanies the Citation, in Cause Number 12-09-27789-MCVAJA
styled MAVERICK AGGREGATES, INC. VS. IPE AGGREGATE, LLC. AND METSO MINERALS INDUSTRIES INC.
filed in said Court on 614113. Plaintiff is represented by JOSE J. RUIZ I 513 N. CEYLON ST. I EAGLE PASS,
TX 78852. ISSUED AND GIVEN UNDER MY HAND AND SEAL of said court at this office on this 13TH day of
JUNE, 2013.

                                                                        IRENE RODRIGUE~ ' 1
                                                                        District Clerk, Maverick County, Texas
                                                                        500 Quarry St. Ste. 5
                                                                        Eagle Pass, Th~
                                                                        By:D~1

                                          OFFICER'S RETURN BY MAILING

          Came to hand the _ _ day of                     20~ and executed by mailing to the Defendant certified
mail, return receipt requested to wit restricted delivery a true and correct copy of this citation together with an
attached copy of Plaintiffs Petition to the following address:

 Defendant                                                    Address
Service upon the Defendant is evidenced by the return receipt
Incorporated herein and attached hereto, signed by _ _ _ _ _ _ _ _ _ _ _ _ _ _ and dated

*Citation was not served despite the following use of diligence to execute service by the officer or person
authorized to execute this citation: _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __

Citation was not executed b e c a u s e - - - - - - - - - - - - - - - - - - - - -
Defendant may be found at: --:--=-:-:c-------------------·
To certify which witness my hand officially.

_ _ _ _ _ _ _ _ _ _ _ _ _ _ County, Texas
By; _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ Deputy Fee for Servicing Citation
$ _ _ _ _ __
                           Tab 3
Application to Compel Arbitration of Metso Minerals Industries, Inc.
                               CAUSE NO. 12-09-27789-MWAJA

MAVERICK AGGREGATES, INC.,                        §            IN THE DISTRICT COURT
              Plaintiff,                          §
                                                  §
V.                                                §    365 1h JUDICIAL DISTRICT
                                                  §
IPE AGGREGATE, LLC,                               §
METSO MINERALS INDUSTRIES, INC.,                  §
and CRISP INDUSTRIES, INC.                        §
                 Defendants.                      §    MAVERICK COUNTY, TEXAS




                      APPLICATION TO COMPEL ARBITRATION OF
                         METSO MINERALS INDUSTRIES, INC.


TO THE HONORABLE JUDGE OF SAID COURT:

       Metso Minerals, Industries, Inc. ("Metso"), one of the Defendants in this cause, files this

Application to Compel Arbitration and would show as follows:

                                    SUMMARY OF THE CASE

        The subject lawsuit is a breach of contract and warranty action involving a Metso ST358

Screener ("Screener") that Maverick Aggregates, Inc. ("Plaintiff') purchased from Defendant, IPE

Aggregate, LLC ("IPE") on March 11, 2011. In its Second Amended Petition ("Petition"), Plaintiff

alleges that although IPE sold the Screener, at the time of the sale, the machine was owned by

Defendant, Crisp Industries, Inc. ("Crisp"). Petition, par 4.1-4.3. Plaintiff's basic complaint is that

the Screener did not meet its expectations and frequently broke down and, accordingly, all

Defendants breached their contract to Plaintiff.as well as the Screener's "express warranty''.

Petition, par. 7.2.                                                        '::::::J    lP
                                                                           A~'CLOCKJJLM>
                                                                                            FILED   {)



                                                                                      fEB 0 5 2015
                                                                               L~~DO
                                                                    District C '
                                                                                      VIELMA
                                                                                   erlck County, T•xas
                                                                      By                             Deputy
                                     METSO DOCUMENTS

       1.      Metso sold the Screener to Crisp in December, 2010. A copy of the sales order

confirmation for that purchase by Crisp, inclusive of the bill oflading and the terms and conditions

of the express warranty, are attached as Exhibit A and B. Finally, also attached as Exhibit C is an

email chain between a Metso representative and a Crisp representative generally outlining the terms

of the sale and providing for a warranty of one year or 1,800 hours, whichever comes first.

                                      BASIS FOR MOTION

       2.      Metso did not have any contractual relationship with Plaintiff with regard to the sale

of this Screener. However, Plaintiff is asserting both breach of warranty and breach of contract

claims against Metso. In that regard, Plaintiff has produced documents it received from IPE which

purport to extend a "full factory warranty," without any explanation as to what that "warranty'' is.

Assuming this factory warranty references Metso, it would show that the only contract/warranty

dealings Metso had with regard to the Screener were with Crisp, namely Exhibits A and C.

        3.     The sales order (Exhibit A) between Metso and Crisp provides under Paragraph 20

of the terms and conditions that should any dispute arise regarding the agreement, sale of the

machinery or terms of the warranty, the same shall be resolved in the Rules of Arbitration of the

International Chamber of Commerce ("Rules"). (Id. at bates number Metso/Maverick 0163).

        4.     Because Plaintiff seeks recovery from Metso under a breach of express warranty

theory, and the only warranty Metso extended with regard to the Screener is the standard Metso

product warranty which is described in Exhibits A and C, Plaintiff necessarily has accepted the

benefits of those documents - namely the warranty - and must likewise accept the terms and

conditions of that warranty, to wit: the agreement to arbitrate. Metso, therefore, moves the court to
compel arbitration in this proceeding pursuant to the aforementioned Rules as to all parties in this

proceeding and to obey this proceeding accordingly until the arbitration action is terminated.

       WHEREFORE, PREMISES CONSIDERED, Metso Minerals Industries, Inc., requests

that this Application to Compel Arbitration be granted and that as granted, the case as to all

parties be referred to arbitration pursuant to Rules referenced in the sales order confirmation

attached as Exhibit A.


                                                      Respectfully submitted,

                                                      QUARLES & BRADY, LLP
                                                      411 East Wisconsin Avenu<;<
                                                      Suite 2350
                                                      Milwaukee, Wisconsin 53202
                                                      (414) 277-5365 Telephone
                                                      (414) 978-8906 Facsimile


                                                      LANGLEY & BANACK, INC.
                                                      401 Quarry Street
                                                      Eagle Pass, Texas 78852
                                                      (830) 773-6700 Telephone
                                                      (830) 757-4045 Facsimile




                                                      State Bar
                                                        1chael C. Boyle
                                                      State Bar No. 02797600
                                CERTIFICATE OF SERVICE

       I hereby certify that the above and foregoing document has been sent to:

Mr. Jose J. Ruiz                                           VIA FACSIMILE (830) 773-7711
Ruiz & Associates, P.C.
513 Ceylon Street
Eagle Pass, Texas 78852

Mr. Oscar A. Garza                                         VIA FACSIMILE (210) 299-7711
The Law Firm of Oscar A. Garza, LLC
111 Soledad Street, Suite 300
San Antonio, Texas 78205

Mr. Michael A. Simpson                                     VIA FACSIMILE (940) 683-3122
Mr. G. Alan Powers
Simpson, Boyd & Powers
P.O. Box 685
1119 Halsell Street
Bridgeport, Texas 76426
                                                                >
on this 5th day of February, 2015.
                                  t;metso                                  Sales Order Confirmation
                                                                                                             3012!19892 .
                                                                                                                                                                                         1 I 3
                                                                                                                                                                                     l!QtoDECtD




                                  Sold TO                                                                                 Information
                                  Crfap lm!uatrl09 lno,
                                  P08ox326                                                                                Ssleo Order No.              301209892
                                  BRIDGEPORl'T>< 7842&-0328                                                               Order Cale                   2010DECOB
                                  USA                                                                                     Meleo Oonlllel               KR!hlnn Laakll
                                                                                                                          TelaP!1011a                  1-1!82-717·1!822
                                                                                                                          Salee RuproaeniBllvo         Clulstlan Apario!a
                                  BhlpTo                                                                                  Cuatomar Number              18S173
                                  Mavmlok Ccmor1118                                                                       Customer Con!act Teny Hollaml
                                  1002 Carllon Orfve                                                                      Telaphme             940-eBS-4070
                                  EAGLE PAB81'X 7BBB2                                                                     Fax Number           114!Ml83"2181
                                  UBA                                                                                     PU/'DhB118 Order No. O!l821



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                                   10         MMD1!4411B                           1                1 EA                     211!,flCD,OO              20.(JO     'I(,               170,000.00
                                              MOBILE SCREEN
                                              MOBILE BOREEN BlSSB, SN R3SBISIO


                                                                                                             subtotal                                                                 f7ll,000.<J(J
                                                                                                             TlllBITaJ<                                                                      0.0D
                                                                                                             Total(UBD)                                                               170,000.00


                     ..             Melso M!nurala lnduutrl1111 Ina.                                                           Wire Transfer. Waahovla Ballk, N.A.
                                    lOBBS Olll&Vaada o.-o1.,                                                                   For: MBlaO Mlnerala lnduallles, 11111.
                                    WW!esha, WI 83188 UBA                                 EXHIBIT                              Aaot. No: 207SB00137141 ABAOSSIMl021D
                                    MA: Ml797 FA:Ml7&7                                                                         SWiii Code: PNBPUS3S
                                                                              1· A                                             Tax ID 39;159980170
                                                                                                                               CJ!eck Romlt to: MB\60 Mlllarala lnduelrlsa !no.
                                                                                                                               PO Box 94BSll9 AllantapA ODS94-S889


                                                                   CONFIDENTIAL..SUBJECT TO PROTECTIVE O~DER
                                                                                                                                                             Metso/Maverick 0181
                 l}metso                                          Sales Order Confirmation
                                                                                                    801209892
                                                                                                                                                                            2 I 8
                                                                                                                                                                        2010DEC1D




                                                                                                    Tctal Eicol. Tax (UBD):                                              170,000.00


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                 chllf9Bd on the tnvolce




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                    MB!So Mlnerela lnduatrlas Ina,                                                                 Wiie Tl'Rllafur: Wa.chovla Benk, N.A.
                    aoaea Croaaroa.lfS Olrcla                                                                      Far: Ma!Ba Mlnersla lndual.rlee, lno.
                    Waultsalle, WI 63186 USA                                                                       Acct, Na: 1!07llllOD187141 Al!A0630-00219
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                                                                                                                     PO Bax 9458511Alfan1a,GA80384-6869


                                                  CONFIDENTIAL-SUBJECT TO PROTECTIVE ORDER
                                                                                                                                             Metso/Maverick 0182
•,                                                              METSO SALES TERMS & CONDITIONS (U.S.)                          SI S




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     ~ M/lil&fta blildlad lw lllllD lllld bt llNf.,,., bal!;ll:ll oM\ cM Mcbo UllllnOI
     111 -'llDlllly l1t ll'.in~ llleq11i.cr 1t111 llUdllml ""Y ll.lblll)' ll!la&ig WI ti IN:l11:11181D
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                                                    CONF1DENTIAL-SUBJECT TO PROTECTIVE ORDER
                                                                                                         Metso/Maverick 0163
                                                                                                                                                                                      f.dlODl/001
                 12110/:ZllJ.O 11'.RX         U111>        PNC
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                          .                                                                                                                              ·.          . . .. .
                llf4!t=CRISP INDUlnUEB
                       0/0 PIAVSIUOKCONQRB'TB '
                       1ao2CARLTGH DRMl
                        EAllU!SIASS, 'IX 788D-8787
                                                                                                                                   AT

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                                                                                                   .•
                 PU!AS&FAXTO M'1f80 MINSRAl.SIHDUSIR1E81HC.AnamoHOPKA11lY~
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                 WHEN      .1JlllMEffl' HA9 BUEii PlOKllD UP~
                                              fl)~~~µ./.~.·~~
                       Fw:,ST 36~ &.ST 458 (1st emall)
                       CMstlan Aparicio to: Ka1hy Laska                                                                 12/10/2010 .11:09 AM


                   fyl

                   Christian Aparicio
                   Distribution Manager, Southwest US Region
                   Metso Mining and .Con.structlon Technology
                   Moblle+1 (602) 317-8598
                   Office +1 (480) 9BB-3B15
                   -         Forwarded by Chrfstlan Aparlclo/MKE/Mlnerals/METSO on 12/10/201 o 10:03 AM -

                       From:             ChrlBJlan AparJclo/MKE/Mlnerele/METSO
                       To:               dale@crlaplndilstrlea.cem
                       Cc:               "Terry" <terry@crfsplndustrles.com>
                       Date:             11/30/2010 10:53 AM
                       Subject.          F.le: ST 36B. & ST 468 (tet .emel~

                   Hello.Dale
                   I'm golnt! to write you 3 e-mails, 1st. Used ST368, 2nd New ST3.B, & 3rd New ST4.8

                   We hE!-v~.a used ~T~r;;e If! El.P~o (at R~d Machinery former Metso dealer In the area), per mistake this
                   unit was taken off"of .our Inventory list and nobody was·promoting this machine, but this weekend I went to
                   El Pas0 and I saw'1he machine there.
                   I'm going to give you the prfea that we handle last Aprll 2010. The ST358 has 270 hours, and we can pass
                   to ROS!:I .Machinery to see It any time.
                   Distributor Net of 170k and we wlll provide remaining warranty (1,800 hours or 1 year- whichever comes
                 - first) '·                                           . ·-- -- ---.-·--·- ·-                --- --···-·-····- -·- -- - -- - - - ···
- -   ·- - - - ---· ---=--=-
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                                                                                                                                ··-···· ·_-· ····---- ---·---------
                                                                                                                                                           -      --
                       l.okolrack ST359 s n A359131 O.pdl ST35B "2. email from Stephane Feb 10.pdl

                    I can ~rthe first M!3tsO screen square wire mesh set with no cost of the product (only the customer pays
                    the freight)            ·

                       Regards,


                    Christian Aj:larlclo
                    Distribution Manager, Southwest us Region
                    Metso Mining end Construction Technology
                  . Mobile .+1 (602) ~17'"8598
                    Office .+1 (480) 988-3615

                   [         Christian Aparicio      JH.~~~l oii~.!t!<~S.!~:\@~~~ .E?~se ln·EJ.:.--·- ~-~-··:11@!J.gijl9· Q4:51:3f           PM
                        From:             Christian Aparlclo/MKT:/Mlnerala/METSO
                        To:               "Dale Greenroy' <dale@crleplnduetrles.com>
                        Cc:               obrlstien.eparfolo@metso.com, "Terry" <terry@orlsplnduelrles.com>
                         Date:            11/29/2010 04:51 PM
                        Subjeat           Re: ST 358 &..~T 458



                                                                                    EXHIBIT
                                                                          ~          c_
    Hello Dale
    I guess we have a used ST35B In 8 Paso TX. Tomorrow I wlll send you the detalls, when our Inventory
    control departme.qt send me If the machine Is still avallable.

    Regards,


    ChristlB!l Aparicio
    Dls1rlb~on Man~.er, Southwest !JS Region
    Metso Mining and Construction Technology
    Mobile +1 (602) 317·8598
    Office +1 (480) 98S·3616

[      "Dale Gresnrof




                    ..   - -·- ·---- - -   - -·· · --·-·--- - - · -· - ·· - - · -   - · ·· -----·   -   · - - - -- - · ···- --··------- - -
                           Tab 4
Supplement to Defendant Metso Minerals Industries, Inc.’s Application
      to Compel Arbitration of Metso Minerals Industries, Inc.
           Tab 5
Fourth Amended Docket Control Order
                       Tab 6
Email from Plaintiff’s counsel with Initial Rule 11 Agreement
From:            Daniel Dutko
To:              Eddie Morales
Cc:              Norma Moreno; Paula Boston; Eric W. Matzke; Alan Powers; Oscar Garza
Subject:         RE: Update Request: Order to Deny Application to Compel Arbitration
Date:            Thursday, August 13, 2015 5:10:01 PM
Attachments:     image001.png
                 image002.png
                 image003.png
                 doc15390720150813170420.pdf
                 Plaintiff"s Order Denying Application to Compel Arbitration 1.docx
                 Plaintiff"s Order Denying Application to Compel Arbitration 2.docx


Counsel,
 
Attached is the signed Rule 11 Agreement. Plaintiffs are not in agreement with Defendants’ proposed order.
  Instead, we have drafted two alternatives. Please let me know if either of these is acceptable. If not, they we
  should submit our orders to the court separately.
 
Daniel
 
From: Eddie Morales [mailto:hmorales@langleybanack.com]
Sent: Tuesday, August 11, 2015 6:42 PM
To: Daniel Dutko
Cc: Norma Moreno; Paula Boston; Eric W. Matzke; Alan Powers; Oscar Garza
Subject: Re: Update Request: Order to Deny Application to Compel Arbitration
 
Daniel:
 
If we do not hear from you within 3 business days, we will assume you are in Agreement with the proposed Order
  and will forward same to the Court since everyone else is on board. 
 
Thanks,
 
Eddie

Sent from my iPhone

On Aug 11, 2015, at 5:40 PM, Paula Boston <pboston@langleybanack.com> wrote:

      Hi Daniel,
       
      Alan Powers and Oscar Garza have both approved (as to form) the Order we sent out yesterday in
        the Maverick v. Metso matter.  Please let us know whether the Order meets with your approval.  For
        your convenience, the Order is attached to this email as well. 
       
      Thank you,
      Paula
       
      Paula Boston
      pboston@langleybanack.com
 
<Order Denying Application to Compel Arbitration (L1006405-2x7AEDB).docx>
     Tab 7
Metso’s Amended Answers
             Tab 8
Amended Answer of Crisp Industries, Inc.
                                                                                Electronically Filed at
                                                                                8/12/2015 4:15:10 PM
                                                                                Leopoldo Vielma, District Clerk
                                                                                Maverick County, Texas
                                                                                By: M Cazares, Deputy

                             CAUSE NO. 12-09-27789-MCVAJA

MAVERICK AGGREGATES, INC.        §                          IN THE DISTRICT COURT OF
                                 §
      Plaintiff                  §
                                 §
v.                               §                          MAVERICK COUNTY, TEXAS
                                 §
IPE AGGREGATE, LLC;              §
METSO MINERALS INDUSTRIES, INC.; §
and CRISP INDUSTRIES, INC.       §
                                 §
      Defendants                 §                          365TH DISTRICT COURT

     DEFENDANT CRISP INDUSTRIES, INC.'S FIRST AMENDED ANSWER AND
                           COUNTERCLAIM

TO THE HONORABLE JUDGE OF SAID COURT:

       COMES NOW Defendant Crisp Industries, Inc. (hereinafter "Crisp Industries),

Defendant in the above-styled and referenced suit, and files this its First Amended Answer and

Counterclaim, and in support thereof, would show the Court as follows:

                                                I.
       Defendant Crisp Industries, Inc. has filed and has pending an Application to Compel

Arbitration. This First Amended Answer and Counterclaim is only being filed to comply with

the Fourth Amended Docket Control Ordered entered in the above styled matter and is filed

pursuant to the Application to Compel Arbitration. Defendants Crisp Industries is not waiving

its right to Arbitration or attempting to substantially invoke the judicial process, but is merely

attempting to timely comply with the Docket Control Order in place by this Court.

                                               II.
                       DEFENDANTS' FIRST AMENDED ANSWER

A.     General Denial

       Defendant Crisp Industries, Inc., as authorized by Rule 92 of the Texas Rules of Civil




First Amended Answer and Counterclaim- Page 1
                                                                                  Electronically Filed at
                                                                                  8/12/2015 4:15:10 PM
                                                                                  Leopoldo Vielma, District Clerk
                                                                                  Maverick County, Texas
                                                                                  By: M Cazares, Deputy

Procedure, herein enters a general denial, denying each and every, all and singular, the

allegations contained in Plaintiffs' Second Amended Petition. Defendant demands strict proof

thereof by a preponderance of the credible evidence, and demand proof of exemplary damages

by clear and convincing evidence.

B.     Affirmative Defenses

        1.     Defendant pleads further, in the alternative and by way of affirmative defense that

in the event Plaintiff compromises or settles or have compromised or settled claims and/or causes

of action against any individual or entity arising out of the claims made subject of this matter

Defendant reserves the right and options granted to Defendant in accordance with Chapter 33 of

the TEX.CIV.PRAC. & REM. CODE.

       2.      Defendant pleads further, in the alternative and by way of affirmative defense that

Plaintiffs claims are barred in whole or in part for Plaintiffs failure to mitigate damages, if any.

       3.      Defendant pleads further, in the alternative and by way of affirmative defense that

Plaintiffs damages, if any, are the result of its own acts or omissions.

       4.      Defendant pleads further, in the alternative and by way of affirmative defense that

if Plaintiff incurred any loss or damages as alleged in Plaintiffs Petition, the same were caused

in whole or in part by acts or omissions of anther or others over whom this answering Defendant

is not responsible, and over which Defendant exercised no control or authority, were the sole

proximate cause or contributing cause of Plaintiffs alleged damages, if any.

       5.      Defendant pleads further, in the alternative and by way of affirmative defense that

with respect to all claims based upon alleged breach of express or implied warranties, there was

no privity between the Plaintiff and this answering Defendant.

       6.      Defendant pleads further, in the alternative and by way of affirmative defense that




First Amended Answer and Counterclaim - Page 2
                                                                                    Electronically Filed at
                                                                                    8/12/2015 4:15:10 PM
                                                                                    Leopoldo Vielma, District Clerk
                                                                                    Maverick County, Texas
                                                                                    By: M Cazares, Deputy

Plaintiffs damages, if any, were caused by the misuse, abuse or inappropriate handling of the

product by Plaintiffs or a third party, which was unforeseeable to this answering Defendant, and

was the sole intervening cause of the damages alleged by Plaintiff.

       7.        Defendant asserts that it intends to rely upon such other defenses as may become

available or apparent during discovery proceedings in this case and hereby reserves its right to

amend its Answer to plead such defenses.

                                             II.
                                        COUNTERCLAIMS

 A.    Discovery Control Plan

       As stated above, Defendant Crisp Industries has an Application to Compel Arbitration on

file and pending before this Court. If after a ruling and all appeals the Application to Compel

Arbitration is denied then this case should proceed as a Level 3 case pursuant to Rule 190.4 of

the Texas Rules of Civil Procedure.

B.     Parties

       1.        Crisp Industries, Inc. is a Texas corporation with its principle place of business in

Bridgeport, Texas.

       2.        Maverick Aggregates, Inc. is a Texas corporation with its principal place of

business located in Eagle Pass, Texas. Maverick Aggregates, Inc. has appeared herein through

its attorney of record: Daniel R. Dutko, HANSZWN LAPORTE, 11767 Katy Freeway, Suite

850, Houston, Texas 77079.

       3.     IPE Aggregates, L.L.C. is a Texas Limited Liability Company with its principal

place of business located in New Braunfels, Texas. IPE Aggregates, Inc. has appeared herein

through its attorney of record: Oscar A. Garza, THE LAW FIRM OF OSCAR A. GARZA,

L.L.C., 111 Soledad Street, San Antonio, Texas 78201.



First Amended Answer and Counterclaim - Page 3
                                                                                 Electronically Filed at
                                                                                 8/12/2015 4:15:10 PM
                                                                                 Leopoldo Vielma, District Clerk
                                                                                 Maverick County, Texas
                                                                                 By: M Cazares, Deputy

       4.      Metso Minerals Industries, Inc. is a corporation who has appeared herein through

its attorney of record:   Heriberto Morales, Jr., LANGLEY & BANACK, 401 Quarry Street,

Eagle Pass, Texas 78852.

B.     Jurisdiction and Venue

        1.     The Court has subject-matter jurisdiction over this lawsuit because the amount in

conversation exceeds the minimum jurisdictional amount of this court.

       2.      Venue is proper pursuant to TEX. Crv.    PRAC. &   REM. CODE ANN. § 15.002(a)(1)

because all or a substantial part of the events giving rise to the claims occurred in Maverick

County. Venue is also proper because these are counterclaims. TEX. Crv.      PRAC. &   REM. CODE

ANN.§ 15.062(a).

C.     Facts

       1.      Crisp Industries is a distributor for Metso Minerals (USA) Inc. Crisp Industries

purchased a refurbished Metso ST358 Screener from Defendant Metso Minerals (USA) Inc.

Crisp Industries then resold the Metso ST385 Screener to Defendant IPE Aggregate, LLC.

Crisp Industries did not have any contractual relationship with Plaintiff regarding the sale of the

Metso ST358 Screener. Despite this fact, Plaintiff is asserting claims against Crisp Industries.

       2.      Because Crisp Industries is a distributor for Metso Minerals (USA) Inc. , Crisp

performs work on Metso equipment. On a number of occasions, Maverick Aggregates, Inc.

contacted Crisp Industries to perform work on the Metso ST385 Screener.

       3.      In November 2011, Crisp Industries performed work on the Metso ST385

Screener at Maverick Aggregates, Inc.'s request. The work performed in November 2011 on the

Metso ST385 Screener was not work covered by the Metso warranty. As such, Crisp Industries

sent Maverick Aggregates, Inc. an invoice to be paid for the work performed. As shown in the




First Amended Answer and Counterclaim -Page 4
                                                                               Electronically Filed at
                                                                               8/12/2015 4:15:10 PM
                                                                               Leopoldo Vielma, District Clerk
                                                                               Maverick County, Texas
                                                                               By: M Cazares, Deputy

itemized and verified account attached hereto and incorporated herein and on the dates evidenced

thereby Crisp Industries sold goods to and performed services for Maverick Aggregates, Inc.

Maverick Aggregates, Inc. accepted the goods and services provided.

       4.      The invoice dated November 15, 2011, in the amount of $15,579.34 was mailed

to Maverick Aggregate, Inc. and payment was due on December 15, 2011. The price charged for

the work done and goods provided by Crisp Industries were the usual, customary and reasonable

prices for the goods and services performed.    Despite the demand for payment to be made, to

date, Crisp Industries' invoice in the amount of $15,579.34 has not been paid. As such, Crisp

Industries has incurred damages for the nonpayment of its invoices for services and goods

rendered.

D.     Causes of Actions

       l.      Suit On Sworn Account (Maverick Aggregates, Inc.).: In November 2011, Crisp

Industries sold goods and furnished services to Maverick Aggregates, Inc. regarding the Metso

ST385 Screener The prices charged for the goods and services rendered were just and true

because they were the usual, customary and reasonable prices for the goods and services

provided. Attached hereto as Exhibit A and incorporated herein is a systematic record of the

transaction for the services and ·goods rendered for the Metso ST385 Screener.        All lawful

offsets, payments and credits, if any, have been applied to Maverick Aggregates, Inc. account.

To date, the invoice in the amount of $15,579.34 that was due on December 15, 2011 remains

unpaid. As such, Crisp Industries is entitled to damages for its actual liquidated damages. In

addition, Crisp Industries is entitled to reasonable and necessary attorney fees. TEX.CIV.PRAC. &

REM.CODE    §38.001.




First Amended Answer and Counterclaim - Page 5
                                                                               Electronically Filed at
                                                                               8/12/2015 4:15:10 PM
                                                                               Leopoldo Vielma, District Clerk
                                                                               Maverick County, Texas
                                                                               By: M Cazares, Deputy

       2.      Breach of Contract (Maverick Aggregates, Inc.): In the alternative, Maverick

Aggregate, Inc. breached its agreement to pay for services and goods provided by Crisp

Industries. As set forth above, Maverick Aggregates, Inc. breached its contract by failing to pay

the invoice for the services and goods provided by Crisp Industries in the amount of $15,579.34.

The breach of contract by Maverick Aggregates, Inc. caused legal injury damages to Crisp

Industries. The damages sustained by Crisp Industries are general and specific, as well as direct

and consequential. Crisp Industries damages including, but are not limited to, benefit of the

bargain damages, out-of-pocket damages, reliance damages, and consequential damages.           In

addition, Crisp Industries is entitled to reasonable and necessary attorney fees. TEx.Civ.PRAC. &

REM.CODE §38.00 1.

       3.      Quantum Meruit (Maverick Aggregates, Inc.):            In the alternative, Crisp

Industries provided valuable services or materials for the benefit of Maverick Aggregates, Inc.,

including but not limited to the work performed on or about November 15, 20 11 on the Metso

ST385 Screener. Maverick Aggregates, Inc. accepted and benefited from those services and

materials. Maverick Aggregates, Inc. had reasonable notice that Crisp Industries anticipated

compensation for such services and materials as recognized by Carlos Gonzalez signed

acceptance of the services and goods on behalf of Maverick Aggregates, Inc. on November 11 ,

2011. As such, Maverick Aggregates, Inc. caused injuries to Crisp Industries. Crisp Industries

are entitled to actual damages. In addition, Crisp Industries is entitled to reasonabl e and

necessary attorney fees. TEx.Civ.PRAc. & REM.CODE §38.001.

       4.     Promissory Estoppel (Maverick Aggregates, Inc.): In the alternative, Maverick

Aggregates, Inc. made one or more promises, including but not limited to promising Crisp

Industries payment for the services and goods provided to Maverick Aggregates, Inc. for work




First Amended Answer and Counterclaim - Page 6
                                                                                Electronically Filed at
                                                                                8/12/2015 4:15:10 PM
                                                                                Leopoldo Vielma, District Clerk
                                                                                Maverick County, Texas
                                                                                By: M Cazares, Deputy

done on the Metso ST385 Screener. Crisp Industries reasonably and substantially relied on this

promise to their detriment by providing their time and services in working on the Metso ST385

Screener. Crisp Industries reliance was foreseeable to Maverick Aggregates, Inc. and law and

equity requires that Maverick Aggregates, Inc. 's promise be enforced.        Crisp Industries is

entitled reliance damages where it is entitled to be compensated for the time, effort and expense

of the work done on the Metso ST385 Screener. In addition, Crisp Industries is entitled to

reasonable and necessary attorney fees. TEx.CJv.PRAC. & REM.CODE §38.001.

       WHEREFORE, PREMISES CONSIDERED, Crisp Industries, Inc. prays (1) that all

relief prayed for by Maverick Aggregates be denied; (2) judgment be entered in Defendant Crisp

Industries, Inc.; (3) that Crisp Industries, Inc. recover damages; (4) court costs; (5) reasonable

attorney fees; (6) pre-judgment and post-judgment interest as provided by law; (7) for such other

and further relief to which it may be justly entitled; and (8) that Maverick Aggregates take

nothing.


                                             BY: Is/ G. Alan Powers

                                             SIMPSON, BOYD, POWERS & WILLIAMSON
                                             Michael A. Simpson
                                             Texas State Bar No. 18403650
                                             G. Alan Powers
                                             State Bar No. 24005089
                                             P.O. Box 685
                                             1119 Halsell Street
                                             Bridgeport, Texas 76426
                                             Telephone No. (940) 683-4098
                                             Facsimile No. (940) 683-3122
                                             ATTORNEYS FOR CRISP INDUSTRIES, INC.




First Amended Answer and Counterclaim - Page 7
                                                                            Electronically Filed at
                                                                            8/12/2015 4:15:10 PM
                                                                            Leopoldo Vielma, District Clerk
                                                                            Maverick County, Texas
                                                                            By: M Cazares, Deputy

                              CERTIFICATE OF SERVICE

      By my signature above, I hereby certify that a true and correct copy of the forgoing
document was served on Defendants via Fax and/or Certified Mail on this the lth day of August,
2015.




First Amended Answer and Counterclaim - Page 8
      Tab 9
Amended Rule 11 Agreement
                         Tab 10
August 2015 emails between Plaintiff’s counsel and Metso’s counsel
From:            Daniel Dutko
To:              Paula Boston
Cc:              Eddie Morales; Eric W. Matzke; Norma Moreno; Oscar Garza; Alan Powers
Subject:         RE: Mav v Metso: Conferring on possible Motion for Temporary Orders (to stay trial court proceedings while interlocutory appeal is
                  decided)
Date:            Friday, August 21, 2015 8:37:39 AM
Attachments:     image001.png
                 image002.png
                 image003.png


I have no objection to suspending the deadlines (expert designations, discovery deadline, etc.) while the
  interlocutory appeal is being considered. When the appeal is decided we can enter into a new DCO with new
  deadlines if that is what everyone wants. However, there is no reason to stay the entire case while the Court of
  Appeals decides whether the case against one of the parties should be sent to arbitration. We need to take
  depositions and resolve several discovery disputes. This can all be accomplished while the appeal is being heard.
 
Daniel
 
From: Paula Boston [mailto:pboston@langleybanack.com]
Sent: Thursday, August 20, 2015 6:25 PM
To: Daniel Dutko
Cc: Eddie Morales; Eric W. Matzke; Norma Moreno; Oscar Garza; Alan Powers
Subject: RE: Mav v Metso: Conferring on possible Motion for Temporary Orders (to stay trial court proceedings while
 interlocutory appeal is decided)
 
Hi Daniel,

Could you please clarify what you mean by agreeing to move current deadlines as requested by Crisp?  The last
  draft of the Rule 11 you were in agreement with stated: “[t]his letter will confirm our agreement that the parties
  agree to suspend the deadlines in the current amended docket control order until after a ruling on the
  mandamus that will be filed regarding the Order on the Motion to Compel Arbitration.”  But, now it appears that
  you’re opposed to staying the underlying case during an accelerated appeal.  Perhaps I’ve missed an email or
  conversation with additional details?    
 
Many thanks,
Paula
 
 
 
Paula Boston
pboston@langleybanack.com




 
From: Daniel Dutko [mailto:DDutko@hanszenlaporte.com]
Sent: Thursday, August 20, 2015 5:42 PM
To: Paula Boston
Cc: Eddie Morales; Eric W. Matzke; Norma Moreno; Oscar Garza; Alan Powers
Subject: Re: Mav v Metso: Conferring on possible Motion for Temporary Orders (to stay trial court proceedings while
 interlocutory appeal is decided)
 
Paula,
 
Unfortunately after talking to my client we are opposed to staying the underlying case during the Interlocutory
  appeal. However, we will agree to move current deadlines as requested by Crisp. 
 
Daniel 

Sent from my iPhone

On Aug 20, 2015, at 12:25 PM, Paula Boston <pboston@langleybanack.com> wrote:

      Good afternoon, Daniel:
       
      When we last spoke, you mentioned that Maverick Aggregates would not likely be opposed to a
        motion staying the underlying trial court proceedings during this appeal.   Oscar and Alan have
        responded to my email, below, that they are unopposed . . . but we haven’t heard back from
        Maverick.  To avoid any last-minute filing issues, I will assume that there remains no opposition from
        Maverick Aggregates to our requesting that the appellate court stay the trial court proceedings
       pending the 4th Court’s determination, unless I hear otherwise from you before noon tomorrow.  If
       you have any questions, as always, I am available to confer via phone: 210-736-6600 (ext. 168). 
       
      All the best,
      Paula 
       
      Paula Boston
      pboston@langleybanack.com




      <image002.png>


       
      From: Paula Boston
      Sent: Tuesday, August 18, 2015 4:55 PM
      To: Daniel Dutko; Oscar Garza; Alan Powers
      Cc: Eddie Morales; Eric W. Matzke; Norma Moreno
      Subject: Mav v Metso: Conferring on possible Motion for Temporary Orders (to stay trial court
       proceedings while interlocutory appeal is decided)
       
      Hi Alan, Daniel, and Oscar,
       
      If we receive the trial court’s signed order shortly, we may well request temporary orders from the
        appellate court to stay the trial court proceedings.  Is there any objection to our requesting that the
       4th Court of Appeals stay all trial court proceedings in this matter pending the 4th Court’s
       determination on our (soon-to-be-perfected) accelerated interlocutory appeal?
 
Many thanks,
Paula
 
Paula Boston
pboston@langleybanack.com




<image002.png>


 
                     Tab 11
Plaintiff’s Response and Objections to Application to Compel
         Arbitration of Metso Minerals Industries, Inc.
                                      Cause No. 12-09-27789-MCVAJA

MAVERICK AGGREGATES, INC.                                     §               IN THE DISTRICT COURT OF
                                                              §
v.                                                            §                        MAVERICK COUNTY
                                                              §
IPE AGGREGATE, LLC; and METSO                                 §
MINERALS INDUSTRIES, INC.                                     §                    365TH JUDICIAL DISTRICT

         PLAINTIFF’S RESPONSE AND OBJECTIONS TO APPLICATION TO COMPEL
                ARBITRATION OF METSO MINERALS INDUSTRIES, INC.

           COMES NOW, Maverick Aggregates, Inc. (“Plaintiff”) and files this Plaintiff’s Response

and Objections to Application to Compel Arbitration of Metso Minerals Industries, Inc.,

(“Metso”) and in support thereof would show unto this Honorable Court the following:

               1. REQUEST FOR ADDITIONAL TIME TO SUPPLEMENT RESPONSE

           Plaintiff respectfully requests additional time to respond to this Application to Compel

Arbitration. Current Plaintiff’s counsel recently substituted into the case and needs time to

familiarize with the documents and the facts.

           More importantly, the depositions of the representative of IPE Aggregate LLC (“IPE”)

may have a direct impact on the alleged arbitration provision. As such, Metso’s Application

should not be considered until the deposition of IPE’s representative can be taken.

            2. METSO’S APPLICATION IS EXTREMELY UNTIMELY AND SHOULD BE
                                         DENIED

           Under Texas law, the right to a jury trial is so strongly favored that the right to a jury

trial should not be not be interfered with lightly. 1




1
    See In re Prudential Ins. Co. of America, 148 S.W.3d 124, 132 33 (Tex.2004).
                                                          1
        There is a presumption against the waiver of the constitutional right to a jury trial. 2 The

existence of the basic fact of a contractual jury trial waiver gives rise to a presumed fact that the

waiver was not knowingly and voluntarily made until the presumed fact is rebutted, and the

burden is on the party seeking to enforce the prelitigation contractual jury waiver to rebut the

presumption with evidence that the waiver was knowingly and voluntarily made with full

awareness of the legal consequences. Id.

    A. Metso’s Reliance on Jury Waiver is Untimely

        Because the right to a jury trial is so strongly favored, to enforce a contractual jury waiver

the party asserting the waiver must act with diligence in asserting its rights. See Rivercenter

Associates v. Rivera, 858 S.W.2d 366 (Tex. 1993); see also Rogers v. Ricane Enters., 772 S.W.2d 76, 80

(Tex.1989). The failure to act with diligence results in a waiver of the right to enforce a

contractual jury waiver. 3

        In Rivercenter Associates v. Rivera, Rivercenter brought suit against All Ashore, Inc. and Les

Robbins to recover rental payments after All Ashore's alleged default on its lease of store space

in the Rivercenter shopping mall. 4 Defendants filed a jury demand and paid the filing fee on

March 17, 1992. On July 14, 1992, Rivercenter filed a motion to set a date for trial on the jury

docket. Two weeks later, Rivercenter filed a motion to quash the jury demand based on jury

waiver provisions in its contracts with All Ashore and Robbins. The trial court overruled this

motion and assigned the case to the jury docket. 5

        The Texas Supreme Court denied mandamus because Rivercenter did not move to quash


2
  Mikey's Houses LLC v. Bank of America, N.A., 232 S.W.3d 145 (Tex. App. Fort Worth 2007, no pet.).
3
  Id.
4
  See Rivercenter Associates v. Rivera, 858 S.W.2d 366 (Tex. 1993).
5
  Id.
                                                       2
a jury demand that conflicted with a jury waiver until four months after receiving notice of the

jury demand. The court reasoned that “those who slumber on their rights” are not entitled to the

rights. 6

            The Texas Supreme Court held:

                   Rivercenter waited over four months after the filing of the
                   Defendants' jury demand before asserting any rights it may have
                   had under the jury waiver provisions. The record reveals no
                   justification for this delay. Under these circumstances, Rivercenter
                   has not shown diligent pursuit of any right to a non-jury trial. See
                   Bailey v. Baker, 696 S.W.2d 255, 256 (Tex.App.-Houston [14th Dist.]
                   1985, orig. proceeding). . . Accordingly, the petition is denied. 7

            In this case, Plaintiff filed its Petition on September 4, 2012 and Metso filed its Original

Answer on September 28, 2012. Metso filed its Application to Compel Arbitration on February

5, 2015, more than two years after Metso made an appearance.

            According to the Texas Supreme Court, waiting four months would be a lack of due

diligence. 8 In this case, Plaintiff waited more than two years to assert their rights under the

alleged arbitration provisions. Therefore, Metso failed to act with the diligence necessary to

assert its rights and its Application should be denied as a matter of law.

    3. METSO FAILED TO MEET ITS INITIAL BURDEN OF PROOF

            There is a presumption against the waiver of the constitutional right to a jury trial. 9 The

existence of the basic fact of a contractual jury trial waiver gives rise to a presumed fact that the

waiver was not knowingly and voluntarily made until the presumed fact is rebutted, and the

burden is on the party seeking to enforce the prelitigation contractual jury waiver to rebut the


6
  See Rivercenter Associates v. Rivera 858 S.W.2d 366 (Tex. 1993).
7
  Id.
8
  See Rivercenter Associates v. Rivera 858 S.W.2d 366 (Tex. 1993).
9
  Mikey's Houses LLC v. Bank of America, N.A., 232 S.W.3d 145 (Tex. App. Fort Worth 2007, no pet.); In re Wells
Fargo Bank Minnesota N.A., 115 S.W.3d 600 (Tex. App. Houston 14th Dist. 2003).
                                                       3
presumption with evidence that the waiver was knowingly and voluntarily made with full

awareness of the legal consequences. 10 The party seeking to enforce a contractual jury waiver

must rebut the presumption against the waiver by bringing forward prima facie evidence that

the jury waiver was knowingly and voluntarily made. 11

         The party seeking to enforce a contractual jury waiver should present evidence of the

following factors:

     •   The parties' experience in negotiating the particular type of contract signed;

     •   Whether the parties were represented by counsel;

     •   Whether the waiving party's counsel had an opportunity to examine the agreement;

     •   The parties' negotiations concerning the entire agreement;

     •   The parties' negotiations concerning the waiver provision, if any;

     •   The conspicuousness of the provision; and

     •   The relative bargaining power of the parties. 12



         Defendant, in its three page Motion, presented no evidence to prove its burden. Before

this Court takes away the Constitutional and fundamental right to a jury trial, Defendant must

present prima facie evidence that the jury waiver was knowingly and voluntarily made.

Defendant failed to present any evidence in this case to rebut the presumption against the

waiver of the constitutional right to a jury trial.




10
   Id.
11
   Id.
12
   See Mikey's Houses LLC v. Bank of America, N.A., 232 S.W.3d 145 (Tex. App. Fort Worth 2007, no pet.); In re
Wells Fargo Bank Minnesota N.A., 115 S.W.3d 600 (Tex. App. Houston 14th Dist. 2003).
                                                       4
        Therefore, this Court should deny Defendant’s Motion as a matter of law. 13

        Assuming arguendo that this Court entertains Metso’s Application, Plaintiff responds as

follows:

                                       4. FACTUAL BACKGROUND

        Plaintiff has initiated litigation in this Court against Defendants for misrepresentations

made by Defendants in conjunction with the sale and purchase of a Metso ST358 screener to

Plaintiff. Plaintiff is seeking damages and relief pursuant to the Texas Deceptive Trade

Practices—Consumer Protection Act as well as other relief pursuant to Texas law. Metso seeks

through its Application to Compel Arbitration to force an arbitration proceeding upon Plaintiff

based upon its allegation that Plaintiff’s claims in this suit are subject to an arbitration

agreement.


                                5. LEGAL BURDENS AND STANDARDS

        A.       Defendant must first establish the existence of an enforceable contract to
                 arbitrate the claims at issue in this suit

        The first inquiry this Court must undertake is to determine whether Metso has

established, under the laws of the State of Texas 14, (1) “that a valid arbitration agreement

exists” 15 and also (2) “whether the dispute in question falls within the scope of that

arbitration” 16 agreement. “Arbitration is a matter of contract and a party cannot be required to




13
   See Mikey's Houses LLC v. Bank of America, N.A., 232 S.W.3d 145 (Tex. App. Fort Worth 2007, no pet.); In re
Wells Fargo Bank Minnesota N.A., 115 S.W.3d 600 (Tex. App. Houston 14th Dist. 2003).
14
   Banc One Acceptance Corp. v. Hill, 367 F.3d 426, 429 (5th Cir. Miss. 2004); Jones v. Defendant Co., 2008 U.S.
Dist. LEXIS 38099, 8-9 (S.D. Tex. May 9, 2008).
15
   In re Igloo Prods. Corp., 238 S.W.3d 574, 577 (Tex. App.−Houston [14th Dist.] 2007, no pet.) (Citations
Omitted) see also Tex. Civ. Prac. & Rem. Code §171.021.
16
   Webb v. Investacorp, Inc., 89 F.3d 252, 258 (5th Cir. 1996); In re Kellogg Brown & Root, Inc., 166 S.W.3d 732,
737 (Tex. 2005).
                                                        5
submit to arbitration any dispute which he has not agreed so to submit.” 17 “Arbitration may be

ordered only for a dispute that the parties have agreed to arbitrate.” 18 “When [the courts] are

called upon to decide whether the parties have agreed to arbitrate, [they] do not resolve doubts

or indulge a presumption in favor of arbitration.” 19

             “Under standard contract principles, the presence or absence of signatures on a written

contract is relevant to determining whether the contract is binding on the parties.” 20 In the

absence of a signature, other evidence must be relied upon to prove the party’s unconditional

assent. 21

             Similarly, an agreement to arbitrate is valid under the Federal Arbitration Act (“FAA”) if

it meets the requirements of the general contract law of the applicable state. In determining the

validity of an agreement to arbitrate under the FAA, courts must first apply state law governing

contract formation. 22 Section 4 of the FAA requires a court to order a party to arbitration only

upon a showing that an agreement to arbitrate the claims at issue exists. 23 Therefore, “a state

court must initially determine—through the neutral application of its own contract law—

whether an enforceable agreement exists in the first instance, and whether ‘generally applicable

contract defenses . . . may be applied to invalidate arbitration agreements without contravening’

the policies of the FAA.’” 24 In other words, the FAA has not been read so broadly as to mandate



17
   AT&T Techs., Inc. v. Communications Workers of Am., 475 U.S. 643 (1986). See also Rice Co. v. Precious
Flowers Limited, 523 F.3d 528 (5th Cir. 2008); Baton Rouge Oil & Chem. Workers Union v. Exxonmobil Corp., 289
F.3d 373 (5th Cir. 2002).
18
   Baton Rouge Oil & Chem. Workers Union v. Exxonmobil Corp., 289 F.3d 373 (5th Cir. 2002).
19
   In re: Bunzl USA Inc., 155 S.W.3d 202, 208 (Tex.App.—El Paso, 2004).
20
    Id. at 209.
21
   Id. (emphasis added).
22
   In re Poly-America, L.P., 2008 Tex. Lexis 770 at *3 (Tex. 2008) (citing In re Advance PCS Health L.P., 172
S.W.3d 603, 606 (Tex 2005) (citing First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 944, 115 S.Ct.1920,
131 L.Ed.2d 985 (1995))) (emphasis added).
23
   9 U.S.C. § 4.
24
   In re Poly-America, L.P., 2008 Tex. Lexis 770 at *4 (Tex. 2008) (citing Doctor’s Assocs., Inc. v. Casarotto, 517
U.S. 681, 687, 116 S.Ct. 1652, 134 L.Ed.2d 902 (1996) (emphasis added).
                                                         6
preemption of all state public-policy grounds for finding an arbitration agreement

unenforceable.

        When both the FAA and Texas state law are applicable to an arbitration agreement, the

Fifth Circuit has clarified the interplay between the two bodies of law by holding that “the FAA

and Texas law, including [Texas’] arbitration law, apply concurrently because Texas law

incorporates the FAA as part of the substantive law of that state.” 25

        If Metso establishes the existence of a valid arbitration agreement between it and

Plaintiff, and that both the claims and issues in this case fall within the terms of that agreement,

then “the burden shifts to the party opposing arbitration to present a valid defense to the

agreement,” 26 as adjudged under the laws of this state.

        B.       Unless the Application is denied, an evidentiary hearing is required when
                 material facts are in dispute

        11.      The Court’s standard for consideration of an application to compel arbitration,

under Texas law, is the same as that for consideration of a motion for summary judgment. 27

“Under Texas Rule of Civil Procedure 166a(c), the party moving for summary judgment bears

the burden to show that no genuine issue of material fact exists and that it is entitled to

judgment as a matter of law.” 28 “When reviewing a summary judgment, we take as true all




25
   Jones v. Defendant Co., 2008 U.S. Dist. LEXIS 38099, 23 (S.D. Tex. May 9, 2008) (citing Freudensprung v.
Offshore Technical Services, Inc., 379 F.3d 327, 338 n.7 (5th Cir. 2004) (citing Pedcor Management Co., Inc.
Welfare Benefit Plan v. Nations Personnel, 343 F.3d 355, 361 (5th Cir. 2003); L & L Kempwood Associates v.
Omega Builders, Inc., 9 S.W.3d 125, 127-28 & n. 15 (Tex. 1999)).
26
   In re Igloo Prods. Corp. at 577.
27
   Jack B. Anglin Co. v. Tipps, 842 S.W.2d 266 (Tex. 1992).
28
   Joe v. Two Thirty Nine J.V., 145 S.W.3d 150 (Tex. 2004). See also Southwestern Elec. Power Co. v. Grant, 73
S.W.3d 211 (Tex. 2002); Haase v. Glazner, 62 S.W.3d 795, 797 (Tex. 2001); Rhone-Poulenc, Inc. v. Steel, 997
S.W.2d 217, 223 (Tex. 1999); Sci. Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex. 1997); Nixon v. Mr.
Property Management Co., 690 S.W.2d 546 (Tex. 1985); Nichols v. Tanglewood Manor Apts., 2006 Tex. App.
LEXIS 975 (Tex. App. Houston 14th Dist. Feb. 7, 2006).
                                                        7
evidence favorable to the nonmovant, and we indulge every reasonable inference and resolve any

doubts in the nonmovant's favor.” 29

        In a case of first impression on the issue in Texas, the Court in Jack B. Anglin Co, Inc. sets

out the following reasoning for the standard:

        Summary disposition of contested issues is the exception under our rules of civil
        procedure. Ordinarily, contested issues are decided after a plenary hearing, that
        is, a hearing at which witnesses present sworn testimony in person or by
        deposition rather than by affidavit. For example, our rules permit trial courts to
        render final judgments in civil cases on motions for summary judgment. A trial
        court may render a summary judgment based on a record consisting of deposition
        transcripts, interrogatory answers, and other discovery responses, along with
        pleadings, admissions, affidavits, stipulations, and authenticated or certified
        public records . . . . Our rules also prescribe summary determination of motions
        to transfer venue, objections to discovery requests, and special appearances
        contesting jurisdiction. These matters are likewise determinable on the basis of
        affidavits, pleadings, the results of discovery, and the stipulations of the parties.
        TEX. R. CIV. P. 87, 88 (venue); TEX. R. CIV. P. 166b(4) (objections to discovery);
        TEX. R. CIV. P. 120a(3) (special appearance). 30

        The Court in Jack B. Anglin Co, Inc. then held that “[w]ith these considerations in mind, a

trial court may summarily decide whether to compel arbitration on the basis of affidavits,

pleadings, discovery, and stipulations. However, if the material facts necessary to determine the

issue are controverted, by an opposing affidavit or otherwise admissible evidence, the trial court

must conduct an evidentiary hearing to determine the disputed material facts.” 31

        Appellate Courts have explained the procedure to compel arbitration as follows:

        The party alleging an arbitration agreement must present complete summary
        proof of his ‘case in chief’ that an agreement to arbitrate requires arbitration of
        the issues in dispute. If that summary proof intrinsically raises issues about the
        procedural enforceability of the agreement, the movant’s summary proof should
        include any evidence that resolves those issues without creating an issue of

29
   Joe v. Two Thirty Nine J.V., 145 S.W.3d 150 (Tex. 2004). See also Southwestern Elec. Power Co. v. Grant, 73
S.W.3d 211 (Tex. 2002); Haase v. Glazner, 62 S.W.3d 795, 797 (Tex. 2001); Rhone-Poulenc, Inc. v. Steel, 997
S.W.2d 217, 223 (Tex. 1999); Sci. Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex. 1997); Nixon v. Mr.
Property Management Co., 690 S.W.2d 546 (Tex. 1985); Nichols v. Tanglewood Manor Apts., 2006 Tex. App.
LEXIS 975 (Tex. App. Houston 14th Dist. Feb. 7, 2006).
30
   Jack B. Anglin Co. at 269 (Citations Omitted).
31
   Id. (Emphasis Added).
                                                        8
        material fact. Naturally, the non-movant, to resist summary arbitration, needs
        only to raise an issue of material fact about a necessary element of its opponent’s
        ‘case in chief’ or present some evidence supporting every element of a defensive
        claim that there is no enforceable agreement to arbitrate. 32

        Similarly, the FAA also provides a procedure for obtaining an evidentiary hearing, prior

to deciding a motion to compel arbitration, if the “making of the arbitration agreement or the

failure, neglect, refusal to perform the same be in issue.” 33 Section 4 of the FAA further provides

that the party alleged to be in default may request a jury at the trial thereof, and such shall be

provided upon proper request. The hearing shall be held in accordance with the Federal Rules

of Civil Procedure. 34 If the jury, or the court if no jury is requested, “finds that no agreement in

writing for arbitration was made or that there is no default in proceeding thereunder, the

proceeding [on the motion to compel] shall be dismissed.” 35

                                              6. ARGUMENTS

        A.       The Application to Compel Should Properly Be Denied Because Defendant
                 Has Failed to Show the Existence of a Valid and Enforceable Arbitration
                 Agreement with Plaintiff

        Metso has the burden to prove with sufficient evidence that a valid and enforceable

arbitration agreement exists between the parties which encompasses and governs the disputes

and issues forming the basis for this suit. Defendant’s Application fails in this respect because

Defendant has failed to show that there was ever an agreement between it and Plaintiff to

arbitrate—that is, to submit a dispute to arbitration.

        i. Defendant has failed to proffer any valid and enforceable arbitration agreement
        between Plaintiff and Defendant



32
   In re: Bunzl USA Inc., 155 S.W.3d 202, 208 (Tex.App.—El Paso, 2004) (citing In re Jebia, 26 S.W.3d 753
(Tex.App.—Houston [14th Dist.] 2000, orig. proceeding)).
33
   9 U.S.C. § 4
34
   Id.
35
   Id.
                                                       9
        Subject to the objections to the documentary evidence below, and without waiving same,

Defendant has not offered any admissible evidence of a valid and enforceable arbitration

agreement between Plaintiff and Defendant that encompasses the claims at issue in this case.

        Plaintiff cannot be held to an agreement that Defendant cannot show was ever entered

into by Plaintiff. Basic contract law mandates an offer and meeting of the minds to form a

contract. There was no meeting of the minds between Plaintiff and Defendant with respect to

any agreement to arbitrate. In fact, there was not even a discussion or negotiation whatsoever

regarding the arbitration clause. Further, no consideration was given to support the alleged

arbitration agreement. Simply, Defendant has failed to proffer any arbitration agreement that

satisfies the requirements of basic contract law. In fact, in its own application to compel

arbitration, Defendant states that “Metso did not have any contractual relationship with

Plaintiff with regard to the sale of this Screener.” 36 Clearly, Defendant has wholly failed to show,

as a matter of law, that Plaintiff intended to assent to the instrument containing the arbitration

clause. Moreover, Plaintiff cannot be held to an agreement that cannot be read and is illegible

and indecipherable. As Defendant has wholly failed to carry its evidentiary burden in this case

and proffer any enforceable and valid arbitration agreement between Plaintiff and Defendant,

Defendant’s Application must be denied.




36
  See Application to Compel Arbitration of Metso Minerals Industries, Inc., Page 2, Paragraph 2, attached hereto as
Exhibit A and incorporated by reference for all purposes.
                                                        10
        ii. Objections to Exhibits proffered by Defendant in its Application

        Defendant’s Application further fails, based upon the following objections, because the

evidence it is seeking to submit and rely upon in its Application is inadmissible as a matter of

law.

        Plaintiff objects to the admissibility of Exhibit A, B, and C to Defendant’s Application in

that Defendant fails to provide the requisite evidentiary predicate and testimony required by

Texas Rules of Evidence 803(6), 803(7), and 902(10), and fails to provide testimony, from a

person with knowledge, that the alleged records:

                 •      were made at or near the time the matter recorded occurred; 37
                 •      were made either by a person with knowledge of the matter recorded or
                        from information transmitted by a person with knowledge of the matter
                        recorded; 38
                 •      were kept in the course of a regularly conducted business activity; and
                 •      it was the regular practice of Defendant to make the records. 39

        Pursuant to Texas Rule of Evidence 1002, Plaintiff further objects that Exhibits A, B, and

C to Defendant’s Application are not the best evidence of the contents of the documents

Defendant is attempting to proffer in this case. Additionally, Exhibits A and B to Defendant’s

Application are illegible. The terms of the alleged agreement cannot be read or determined, and

are thus unenforceable. 40

        As such, the inadmissible evidence contained in Defendant’s Application must be

stricken. The evidentiary failures and lack of proper authentication of the proffered documents

cause Defendant to fail in its burden to establish that a valid arbitration agreement exists

between Plaintiff and Defendant, and the Application should therefore be denied.
37
   GT & MC, Inc. v. Texas City Refining, Inc., 822 S.W.2d 252, 257 (Tex.App.—Houston [1st Dist.] 1991, writ
denied).
38
   Sholdra v. Bluebonnet Sav. Bank, 858 S.W.2d 533, 535 (Tex.App.—Ft. Worth 1993, writ denied); Woodard v.
State, 696 S.W.2d 622, 628 (Tex.App.—Dallas 1985, no writ).
39
   Texas Employer’s Ins. Ass’n v. Sauceda, 636 S.W.2d 494, 499 (Civ.App.—San Antonio 1982, no writ).
40
   Attached hereto as Exhibit “B” is a true and correct copy of Exhibits A and B to Defendant’s Application received
by Plaintiff.
                                                        11
       iii. Demand for evidentiary hearing, discovery, and jury trial of arbitrability

       Alternatively, by way of alternative pleading and without waiving the foregoing, if the

Court is not inclined to strike the inadmissible evidence contained in Defendant’s Application,

and deny the Application, Plaintiff requests the Court schedule a formal evidentiary hearing of

all contested and disputed fact issues in this matter.        Plaintiff requests such hearing be

scheduled with sufficient time to allow Plaintiff to conduct written and deposition discovery of

witnesses relevant to these issues, including but not limited to all electronic versions of

documents at issue in this case, and all individuals identified as authors of any and all

documents Defendant seeks to admit into evidence in this case, together with sufficient time in

that discovery period for the forensic analysis of all documents, necessary computers, hard

drives, backup tapes, and metadata of/from such documents and items. Plaintiff further requests

this Court issue an Order allowing Plaintiff to conduct electronic discovery with regard to the

relevant documents to Defendant’s Application, permitting the necessary time frame for Plaintiff

to conduct forensic computer analysis prior to the evidentiary hearing in this case. Plaintiff

further demands a jury trial of this hearing, pursuant to 9 U.S.C. §4.

       B.      The Application to Compel Should Be Denied Because The Scope of the
               Arbitration Agreement Sought to be Enforced Does Not Encompass
               Plaintiff’s Claims in this Cause

       The alleged agreement proffered by Defendant in this case is illegible, and its terms and

provisions cannot be read and analyzed.          Plaintiff objects to Exhibit A to Defendant’s

Application, as such is not legible and thus cannot form the basis for the relief sought by

Defendant. In the event this Honorable Court finds that Defendant has proffered a valid and

legally enforceable arbitration agreement against Plaintiff in this case, by way of alternative

pleading and without waiving the foregoing, the arbitration agreement proffered by Defendant

in its Application does not encompass the claims at issue in this case. Indeed, to the extent any
                                                 12
valid and enforceable arbitration agreement has been proffered by Defendant, such agreement is

believed to be very narrow and limited in scope.

         The mere existence of an arbitration agreement does not mandate that all claims and

causes of action between the parties be referred to arbitration. Indeed, “Courts distinguish

‘narrow’ arbitration clauses that only require arbitration of disputes ‘arising out of’ the contract

from broad arbitration clauses governing disputes that ‘relate to’ or ‘are connected with’ the

contract.” 41 “Even broad clauses have their limits.” 42 Plaintiff’s claims in this case pertain to a

failure by Defendant to disclose extensive and significant repairs made to the screener and

misrepresentations about the screener. The arbitration agreement proffered by Defendant is not

believed to be broad enough to encompass these claims.

         C.       The Application to Compel Should Properly Be Denied Because the
                  Arbitration Agreement Sought to be Imposed Upon Plaintiff is
                  Unconscionable

         Under      Texas     law,     unconscionability        includes      two     aspects:     (1)   procedural

unconscionability, which refers to the circumstances surrounding the adoption of the

arbitration provision, and (2) substantive unconscionability, which refers to the fairness of the

arbitration provision itself. 43           Courts may consider both procedural and substantive

unconscionability of an arbitration clause in evaluating the validity of an arbitration provision. 44

Substantive unconscionability is intended to reach oppression and unfair surprise, not adjust

the bargaining power between the parties. 45

         The arbitration agreement Defendant seeks to impose upon Plaintiff is substantively and

procedurally unconscionable because it is illegible, has not been shown to be binding upon or

41
   Pennzoil Exploration and Prod. Co. v. Ramco Energy Ltd., 139 F.3d 1061, 1067 (5th Cir. 1998).
42
   Pennzoil at 1067 n. 8.
43
   Carter v. Countrywide Credit Industries, Inc., 362 F.3d 294, 301 (5th Cir. 2004) (citing In re Halliburton Co., 80
S.W.3d 566, 571 (Tex. 2002).
44
   In re Halliburton Co., 80 S.W.3d 566, 572 (Tex. 2002).
45
   In re FirstMerit Bank, N.A., 52 S.W.3d 749, 757 (Tex. 2001) (quoting Tex. Bus. & Com. Code §2.302 cmt.1).
                                                          13
agreed upon by Plaintiff, and deprives Plaintiff of substantive and statutory rights and

remedies. 46

           Additionally, if this case is stayed and referred to arbitration as sought by Defendant,

Plaintiff will most likely be required to incur and pay unreasonable and exorbitant initial filing

fees, case service fees, fees to the arbitrator(s) in this case, and other costs associated therewith.

Such costs would deny Plaintiff a forum in which to have this case heard, as such costs and

expenses would be prohibitive to Plaintiff. Defendant would thereby deny justice to Plaintiff by

forcing Plaintiff into arbitration.

           Further, Plaintiff is unfairly surprised by Defendant’s attempt to refer this case to

arbitration, as Plaintiff has no knowledge or recollection of seeing, signing, or agreeing to the

arbitration agreement. The arbitration agreement Defendant seeks to impose upon Plaintiff is

unconscionable, and Defendant’s Application must therefore be denied.

                                              7.   CONCLUSION

           Defendant has failed to proffer any enforceable arbitration agreement between it and

Plaintiff which governs the claims and issues in this case. Further, Exhibit A to Defendant’s

Application is illegible and cannot be imposed upon Plaintiff. Plaintiff disputes the facts and

assertions in Defendant’s Application, denies that it executed or assented to any alleged

arbitration agreement Defendant seeks to impose upon Plaintiff in this case (and requests and

evidentiary hearing in this regard), and denies that the claims and issues in this case are

governed by any alleged arbitration agreement. Any such agreement would be unconscionable

and void under Texas law. In the event the Court finds an enforceable arbitration agreement

exists between Plaintiff and Defendant, Plaintiff demands a jury trial of all disputed fact issues

and the arbitrability of this case pursuant to 9 U.S.C. §4.

46
     See Defendant Metso Minerals, Inc.’s Original Answer.
                                                         14
       WHEREFORE, PREMISES CONSIDERED, Plaintiff prays that this Honorable Court

deny Defendant’s Application to Compel Arbitration. Alternatively, Plaintiff prays that this

Honorable Court grant Plaintiff an evidentiary hearing and jury trial of all disputed facts in the

Application, and allow Plaintiff time to conduct written and deposition discovery as pled for

herein, and that this Court grant Plaintiff the right to conduct e-discovery upon Defendant,

securing computer forensic discovery as pled for herein. Plaintiff prays for all relief to which it

may show itself justly entitled, whether at law or in equity.

                                                     Respectfully submitted,

                                                     _/s/ Daniel R. Dutko____________
                                                     DANIEL R. DUTKO
                                                     State Bar No. 24054206
                                                     HANSZEN LAPORTE
                                                     11767 Katy Freeway, Suite 850
                                                     Houston, Texas 77079
                                                     Telephone: (713) 522-9444
                                                     Facsimile: (713) 524-2850

                                                     ATTORNEY FOR PLAINTIFFS


                                 CERTIFICATE OF SERVICE

       I hereby certify that on June 3, 2015, a true and correct copy of the Plaintiff’s Response
and Objections to Application to Compel Arbitration of Metso Minerals Industries, Inc. has
been served to all counsel of record as indicated:
Mr. Heriberto Morales, Jr.                                      VIA FACSIMILE (830) 757-4045
Langley & Banack, Inc.                                          and/or E-service: Efile Texas
401 Quarry Street
Eagle Pass, Texas 78852

Mr. Eric Matzke                                                 VIA FACSIMILE (414) 978-8906
Quarles & Brady                                                 and/or E-service: Efile Texas
411 East Wisconsin Avenue, Suite 2350
Milwaukee, Wisconsin 53202




                                                15
Mr. Oscar A. Garza                                 VIA FACSIMILE (210) 299-7711
The Law Firm of Oscar A. Garza, LLC                and/or E-service: Efile Texas
111 Soledad Street, Suite 300
San Antonio, Texas 78205

Mr. Michael A. Simpson                             VIA FACSIMILE (940) 683-3122
Mr. G. Alan Powers                                 and/or E-service: Efile Texas
Simpson, Boyd & Powers
P.O. Box 685
1119 Halsell Street
Bridgeport, Texas 76426

                                           _/s/ Daniel R. Dutko__________
                                           Daniel R. Dutko




                                      16
Tab 12
 ICC Rules
ARBITRATION
RULES
MEDIATION
RULES
International Chamber of Commerce (ICC)
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FOREWORD




ARBITRATION RULES
MEDIATION RULES
This booklet contains two discrete but complementary
dispute resolution procedures offered by the
International Chamber of Commerce (ICC). Arbitration
under the ICC Arbitration Rules is a formal procedure
leading to a binding decision from a neutral arbitral
tribunal, susceptible to enforcement pursuant to both
domestic arbitration laws and international treaties such
as the 1958 New York Convention. Mediation under the
ICC Mediation Rules is a flexible procedure aimed at
achieving a negotiated settlement with the help of a
neutral facilitator. The two sets of Rules are published
together in this booklet in answer to the growing demand
for a holistic approach to dispute resolution techniques.
Each set of Rules defines a structured, institutional
framework intended to ensure transparency, efficiency
and fairness in the dispute resolution process while
allowing parties to exercise their choice over many
aspects of procedure. Arbitration is administered by the
International Court of Arbitration and mediation by the
International Centre for ADR. These are the only bodies
empowered to administer proceedings under their
respective Rules, thereby affording parties the benefit of
the experience, expertise and professionalism of a
leading international dispute resolution provider.
Drafted by dispute resolution specialists and users
representing a wide range of legal traditions, cultures
and professions, these Rules provide a modern
framework for the conduct of procedures and respond to
the needs of international trade today. At the same time,
they remain faithful to the ethos and essential features of
ICC dispute resolution and, in particular, its suitability for
use in any part of the world in proceedings conducted in
any language and subject to any law.




                                                            01
FOREWORD




The Arbitration Rules are those of 2012 when new
provisions were added to address such matters as
disputes involving multiple contracts and parties;
updated      case   management        procedures;     the
appointment of an emergency arbitrator to order urgent
measures; and changes to facilitate the handling of
disputes arising under investment treaties and free trade
agreements. References to the ICC ADR Rules in
Appendices III and IV of the Arbitration Rules have been
replaced with references to the Mediation Rules.
The Mediation Rules, in force from 2014, reflect modern
practice and set clear parameters for the conduct of
proceedings, while recognizing and maintaining the
need for flexibility. Like the ADR Rules, which they
replace, they can be used for conducting other
procedures or combinations of procedures that are
similarly aimed at an amicable settlement of the dispute,
such as conciliation or neutral evaluation.
Parties wishing to have recourse to ICC arbitration,
mediation, or both, are encouraged to include an
appropriate dispute resolution clause in their
agreements. For this purpose, each set of Rules is
followed by model clauses, together with guidance on
their use and how they may be adjusted to particular
needs and circumstances. The recommended clauses
include multi-tiered clauses providing for a combination
of techniques as well as clauses contemplating a single
technique.
Both the Rules and the model clauses are available for
use by parties, whether or not members of the ICC. For
the convenience of users, they have been translated into
several languages and can be downloaded from the ICC
website.




02   ICC Publication 865-1 ENG
Table of contents




Arbitration rules	                                    07
Introductory Provisions	                              08
Article 1	    International Court of Arbitration	      08
Article 2	    Definitions	                             09
Article 3	    Written Notifications or Communications;
              Time Limits	                             09

Commencing the Arbitration	                            11
Article 4	    Request for Arbitration	                 11
Article 5	    Answer to the Request; Counterclaims	    12
Article 6	    Effect of the Arbitration Agreement	     14

Multiple Parties, Multiple Contracts
and Consolidation	                                    17
Article 7	    Joinder of Additional Parties	           17
Article 8	    Claims Between Multiple Parties	         18
Article 9	    Multiple Contracts	                      18
Article 10	   Consolidation of Arbitrations	           19

The Arbitral Tribunal	                                20
Article 11	 General Provisions	                       20
Article 12	 Constitution of the Arbitral Tribunal	    21
Article 13	 Appointment and Confirmation of
            the Arbitrators	                          23
Article 14	 Challenge of Arbitrators	                 24
Article 15	 Replacement of Arbitrators	               25

The Arbitral Proceedings	                             26
Article 16	 Transmission of the File to
             the Arbitral Tribunal	                   26
Article 17	 Proof of Authority	                       26
Article 18	 Place of the Arbitration	                 26
Article 19	 Rules Governing the Proceedings	          26
Article 20	 Language of the Arbitration	              27
Article 21	 Applicable Rules of Law	                  27
Article 22	 Conduct of the Arbitration	               27
Article 23	 Terms of Reference	                       28
Article 24	 Case Management Conference and
             Procedural Timetable	                    29
Article 25 	 Establishing the Facts of the Case	      30
Article 26 	 Hearings	                                31
Article 27 	 Closing of the Proceedings and Date
             for Submission of Draft Awards	          32
Article 28	 Conservatory and Interim Measures	        32
Article 29	 Emergency Arbitrator	                     33


                                                      03
Table of contents




Awards	                                                    35
Article 30	 Time Limit for the Final Award	                35
Article 31 	Making of the Award	                           35
Article 32	 Award by Consent	                              35
Article 33	 Scrutiny of the Award by the Court	            36
Article 34	 Notification, Deposit and
            Enforceability of the Award	                   36
Article 35	 Correction and Interpretation of
            the Award; Remission of Awards	                37

Costs	                                                     38
Article 36	 Advance to Cover the Costs of
            the Arbitration	                             38
Article 37	 Decision as to the Costs of the Arbitration	 39

Miscellaneous	                                             41
Article 38	    Modified Time Limits	                       41
Article 39	    Waiver	                                     41
Article 40	    Limitation of Liability	                    41
Article 41	    General Rule	                               41

Appendix I – Statutes of the International
Court of Arbitration	                                      42
Article 1	     Function	                                   42
Article 2	     Composition of the Court	                   42
Article 3	     Appointment	                                42
Article 4	     Plenary Session of the Court	               43
Article 5	     Committees	                                 43
Article 6	     Confidentiality	                            44
Article 7	     Modification of the Rules of Arbitration	   44

Appendix II – Internal Rules of the International
Court of Arbitration	                                      45
Article 1	     Confidential Character of the Work of
               the International Court of Arbitration	 45
Article 2	     Participation of Members of the
               International Court of Arbitration in
               ICC Arbitration	46
Article 3	     Relations Between the Members
               of  the Court and the ICC National
               Committees and Groups	                  47
Article 4	     Committee of the Court	                 47
Article 5	     Court Secretariat	                      48
Article 6	     Scrutiny of Arbitral Awards	            48




04   ICC Publication 865-1 ENG
Appendix III – Arbitration Costs and Fees	        49
Article 1	   Advance on Costs	                    49
Article 2	   Costs and Fees	                      51
Article 3	   ICC as Appointing Authority	         53
Article 4	   Scales of Administrative Expenses
             and Arbitrator’s Fees	               53

Appendix IV – Case Management Techniques	         57

Appendix V – Emergency Arbitrator Rules	          59
Article 1	   Application for Emergency Measures	   59
Article 2	   Appointment of the Emergency
             Arbitrator; Transmission of the File	 61
Article 3	   Challenge of an Emergency Arbitrator	 62
Article 4	   Place of the Emergency Arbitrator
             Proceedings	62
Article 5	   Proceedings	                          63
Article 6	   Order	                                63
Article 7	   Costs of the Emergency Arbitrator
             Proceedings	64
Article 8	   General Rule	                         65

ARBITRATION CLAUSES	                              67




                                                   05
Table of contents




MEDIATION RULES	                                      71
Article 1	  Introductory Provisions	                  72
Article 2	  Commencement Where there is
            an Agreement to Refer to the Rules	       73
Article 3	 Commencement Where there is No Prior
            Agreement to Refer to the Rules	          74
Article 4	 Place and Language(s) of the Mediation 	   75
Article 5	 Selection of the Mediator	                 75
Article 6	 Fees and Costs	                            77
Article 7	 Conduct of the Mediation	                  78
Article 8	 Termination of the Proceedings	            78
Article 9	 Confidentiality	                           79
Article 10	 General Provisions 	                      80

Appendix – Fees and Costs	                            82
Article 1	   Filing Fee 	                             82
Article 2	   Administrative Expenses 	                82
Article 3	   Mediator’s Fees and Expenses 	           83
Article 4	   Prior ICC Arbitration 	                  84
Article 5	   Currency, VAT and Scope 	                84
Article 6	   ICC as Appointing Authority 	            85


MEDIATION CLAUSES	                                    87




06   ICC Publication 865-1 ENG
ARBITRATION
RULES
Rules of Arbitration of the International
Chamber of Commerce
In force as from 1 January 2012
ICC Arbitration Rules
Introductory Provisions




Article 1

International Court of Arbitration
1	The International Court of Arbitration (the “Court”)
   of the International Chamber of Commerce (the
   “ICC”) is the independent arbitration body of the
   ICC. The statutes of the Court are set forth in
   Appendix I.
2	
  The Court does not itself resolve disputes. It
  administers the resolution of disputes by arbitral
  tribunals, in accordance with the Rules of Arbitration
  of the ICC (the “Rules”). The Court is the only body
  authorized to administer arbitrations under the
  Rules, including the scrutiny and approval of
  awards  rendered in accordance with the Rules.
  It  draws up its own internal rules, which are set
  forth in Appendix II (the “Internal Rules”).
3	The President of the Court (the “President”) or, in the
   President’s absence or otherwise at the President’s
   request, one of its Vice-Presidents shall have the
   power to take urgent decisions on behalf of the
   Court, provided that any such decision is reported to
   the Court at its next session.
4	As provided for in the Internal Rules, the Court may
   delegate to one or more committees composed of
   its members the power to take certain decisions,
   provided that any such decision is reported to the
   Court at its next session.
5	The Court is assisted in its work by the Secretariat of
   the Court (the “Secretariat”) under the direction of
   its Secretary General (the “Secretary General”).




08   ICC Publication 865-1 ENG
                                                                  Arbitration
Article 2

Definitions
In the Rules:
(i)	“arbitral tribunal” includes one or more arbitrators;
(ii)	
     “claimant” includes one or more claimants,
     “respondent” includes one or more respondents,
     and “additional party” includes one or more
     additional parties;
(iii)	“party” or “parties” include claimants, respondents
       or additional parties;
(iv)	 “claim” or “claims” include any claim by any party
       against any other party;
(v)	“award” includes, inter alia, an interim, partial or final
     award.

Article 3

Written Notifications or Communications; Time Limits
1	
  All pleadings and other written communications
  submitted by any party, as well as all documents
  annexed thereto, shall be supplied in a number
  of  copies sufficient to provide one copy for each
  party, plus one for each arbitrator, and one for
  the  Secretariat. A copy of any notification or
  communication from the arbitral tribunal to the
  parties shall be sent to the Secretariat.
2	
  All notifications or communications from the
  Secretariat and the arbitral tribunal shall be made to
  the last address of the party or its representative for
  whom the same are intended, as notified either by
  the party in question or by the other party. Such
  notification or communication may be made by
  delivery against receipt, registered post, courier,
  email, or any other means of telecommunication that
  provides a record of the sending thereof.




                                                            09
ICC Arbitration Rules
Introductory Provisions




3	A notification or communication shall be deemed
   to  have been made on the day it was received by
   the  party itself or by its representative, or would
   have been received if made in accordance with
   Article 3(2).
4	Periods of time specified in or fixed under the Rules
   shall start to run on the day following the date a
   notification or communication is deemed to have
   been made in accordance with Article 3(3). When
   the day next following such date is an official holiday,
   or a non-business day in the country where the
   notification or communication is deemed to have
   been made, the period of time shall commence on
   the first following business day. Official holidays and
   non-business days are included in the calculation of
   the period of time. If the last day of the relevant
   period of time granted is an official holiday or a non-
   business day in the country where the notification or
   communication is deemed to have been made, the
   period of time shall expire at the end of the first
   following business day.




10   ICC Publication 865-1 ENG
ICC Arbitration Rules




                                                              Arbitration
COMMENCING THE ARBITRATION




Article 4

Request for Arbitration
1	
  A party wishing to have recourse to arbitration
  under the Rules shall submit its Request for
  Arbitration (the “Request”) to the Secretariat at any
  of the offices specified in the Internal Rules. The
  Secretariat shall notify the claimant and respondent
  of the receipt of the Request and the date of such
  receipt.
2	The date on which the Request is received by the
   Secretariat shall, for all purposes, be deemed to be
   the date of the commencement of the arbitration.
3	The Request shall contain the following information:
	   a)	the name in full, description, address and other
        contact details of each of the parties;
	   b)	the name in full, address and other contact details
        of any person(s) representing the claimant in the
        arbitration;
	   c)	a description of the nature and circumstances of
        the dispute giving rise to the claims and of the
        basis upon which the claims are made;
	   d)	a statement of the relief sought, together with the
        amounts of any quantified claims and, to the
        extent possible, an estimate of the monetary
        value of any other claims;
	   e)	any relevant agreements and, in particular, the
        arbitration agreement(s);
	   f)	
       where claims are made under more than one
       arbitration agreement, an indication of the
       arbitration agreement under which each claim is
       made;
	   g)	all relevant particulars and any observations or
        proposals concerning the number of arbitrators
        and their choice in accordance with the
        provisions of Articles 12 and 13, and any
        nomination of an arbitrator required thereby; and
	   h)	all relevant particulars and any observations or
        proposals as to the place of the arbitration, the
        applicable rules of law and the language of the
        arbitration.




                                                         11
ICC Arbitration Rules
COMMENCING THE ARBITRATION




	The claimant may submit such other documents or
  information with the Request as it considers
  appropriate or as may contribute to the efficient
  resolution of the dispute.
4	Together with the Request, the claimant shall:
	    a)	submit the number of copies thereof required by
         Article 3(1); and
	 b)	
     make payment of the filing fee required by
     Appendix III (“Arbitration Costs and Fees”) in
     force on the date the Request is submitted.
	In the event that the claimant fails to comply with
  either of these requirements, the Secretariat may fix
  a time limit within which the claimant must comply,
  failing which the file shall be closed without prejudice
  to the claimant’s right to submit the same claims at a
  later date in another Request.
5	The Secretariat shall transmit a copy of the Request
   and the documents annexed thereto to the
   respondent for its Answer to the Request once the
   Secretariat has sufficient copies of the Request and
   the required filing fee.

Article 5

Answer to the Request; Counterclaims
1	Within 30 days from the receipt of the Request from
   the Secretariat, the respondent shall submit an
   Answer (the “Answer”) which shall contain the
   following information:
	    a)	its name in full, description, address and other
         contact details;
	    b)	the name in full, address and other contact details
         of any person(s) representing the respondent in
         the arbitration;
	    c)	its comments as to the nature and circumstances
         of the dispute giving rise to the claims and the
         basis upon which the claims are made;
	    d)	its response to the relief sought;
	




12    ICC Publication 865-1 ENG
                                                               Arbitration
	   e)	
       any observations or proposals concerning the
       number of arbitrators and their choice in light of
       the claimant’s proposals and in accordance with
       the provisions of Articles 12 and 13, and any
       nomination of an arbitrator required thereby; and
	   f)	any observations or proposals as to the place of
        the arbitration, the applicable rules of law and the
        language of the arbitration.
	The respondent may submit such other documents
  or information with the Answer as it considers
  appropriate or as may contribute to the efficient
  resolution of the dispute.
2	
  The Secretariat may grant the respondent an
  extension of the time for submitting the Answer,
  provided the application for such an extension
  contains the respondent’s observations or proposals
  concerning the number of arbitrators and their
  choice and, where required by Articles 12 and 13, the
  nomination of an arbitrator. If the respondent fails to
  do so, the Court shall proceed in accordance with
  the Rules.
3	The Answer shall be submitted to the Secretariat in
   the number of copies specified by Article 3(1).
4	The Secretariat shall communicate the Answer and
   the documents annexed thereto to all other parties.
5	Any counterclaims made by the respondent shall be
   submitted with the Answer and shall provide:
	   a)	a description of the nature and circumstances of
        the dispute giving rise to the counterclaims and
        of the basis upon which the counterclaims are
        made;
	   b)	a statement of the relief sought together with the
        amounts of any quantified counterclaims and, to
        the extent possible, an estimate of the monetary
        value of any other counterclaims;
	   c)	any relevant agreements and, in particular, the
        arbitration agreement(s); and
	 d)	
     where counterclaims are made under more
     than one arbitration agreement, an indication of
     the arbitration agreement under which each
     counterclaim is made.




                                                          13
ICC Arbitration Rules
COMMENCING THE ARBITRATION




	The respondent may submit such other documents
  or information with the counterclaims as it considers
  appropriate or as may contribute to the efficient
  resolution of the dispute.
6	The claimant shall submit a reply to any counterclaim
   within 30 days from the date of receipt of the
   counterclaims communicated by the Secretariat.
   Prior to the transmission of the file to the arbitral
   tribunal, the Secretariat may grant the claimant an
   extension of time for submitting the reply.

Article 6

Effect of the Arbitration Agreement
1	
  Where the parties have agreed to submit to
  arbitration under the Rules, they shall be deemed to
  have submitted ipso facto to the Rules in effect on
  the date of commencement of the arbitration, unless
  they have agreed to submit to the Rules in effect on
  the date of their arbitration agreement.
2	
  By agreeing to arbitration under the Rules, the
  parties have accepted that the arbitration shall be
  administered by the Court.
3	If any party against which a claim has been made
   does not submit an Answer, or raises one or more
   pleas concerning the existence, validity or scope of
   the arbitration agreement or concerning whether all
   of the claims made in the arbitration may be
   determined together in a single arbitration, the
   arbitration shall proceed and any question of
   jurisdiction or of whether the claims may be
   determined together in that arbitration shall be
   decided directly by the arbitral tribunal, unless the
   Secretary General refers the matter to the Court for
   its decision pursuant to Article 6(4).




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                                                               Arbitration
4	In all cases referred to the Court under Article 6(3),
   the Court shall decide whether and to what extent
   the arbitration shall proceed. The arbitration shall
   proceed if and to the extent that the Court is prima
   facie satisfied that an arbitration agreement under
   the Rules may exist. In particular:
	(i) 
      where there are more than two parties to the
      arbitration, the arbitration shall proceed between
      those of the parties, including any additional
      parties joined pursuant to Article 7, with respect
      to which the Court is prima facie satisfied that an
      arbitration agreement under the Rules that binds
      them all may exist; and
	
 (ii) 
      where claims pursuant to Article 9 are made
      under more than one arbitration agreement, the
      arbitration shall proceed as to those claims with
      respect to which the Court is prima facie satisfied
      (a) that the arbitration agreements under which
      those claims are made may be compatible, and
      (b) that all parties to the arbitration may have
      agreed that those claims can be determined
      together in a single arbitration.
	
 The Court’s decision pursuant to Article 6(4) is
 without prejudice to the admissibility or merits of
 any party’s plea or pleas.
5	In all matters decided by the Court under Article
   6(4), any decision as to the jurisdiction of the arbitral
   tribunal, except as to parties or claims with respect
   to which the Court decides that the arbitration
   cannot proceed, shall then be taken by the arbitral
   tribunal itself.
6	Where the parties are notified of the Court’s decision
   pursuant to Article 6(4) that the arbitration cannot
   proceed in respect of some or all of them, any party
   retains the right to ask any court having jurisdiction
   whether or not, and in respect of which of them,
   there is a binding arbitration agreement.




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ICC Arbitration Rules
COMMENCING THE ARBITRATION




7	Where the Court has decided pursuant to Article
   6(4) that the arbitration cannot proceed in respect
   of any of the claims, such decision shall not prevent a
   party from reintroducing the same claim at a later
   date in other proceedings.
8	If any of the parties refuses or fails to take part in the
   arbitration or any stage thereof, the arbitration shall
   proceed notwithstanding such refusal or failure.
9	Unless otherwise agreed, the arbitral tribunal shall
   not cease to have jurisdiction by reason of any
   allegation that the contract is non-existent or null
   and void, provided that the arbitral tribunal upholds
   the validity of the arbitration agreement. The arbitral
   tribunal shall continue to have jurisdiction to
   determine the parties’ respective rights and to
   decide their claims and pleas even though the
   contract itself may be non-existent or null and void.




16   ICC Publication 865-1 ENG
ICC Arbitration Rules




                                                               Arbitration
MULTIPLE PARTIES, MULTIPLE CONTRACTS
AND CONSOLIDATION




Article 7

Joinder of Additional Parties
1	A party wishing to join an additional party to the
   arbitration shall submit its request for arbitration
   against the additional party (the “Request for
   Joinder”) to the Secretariat. The date on which the
   Request for Joinder is received by the Secretariat
   shall, for all purposes, be deemed to be the date of
   the commencement of arbitration against the
   additional party. Any such joinder shall be subject to
   the provisions of Articles 6(3)–6(7) and 9. No
   additional party may be joined after the confirmation
   or appointment of any arbitrator, unless all parties,
   including the additional party, otherwise agree. The
   Secretariat may fix a time limit for the submission of
   a Request for Joinder.
2	The Request for Joinder shall contain the following
   information:
	   a)	the case reference of the existing arbitration;
	   b)	the name in full, description, address and other
        contact details of each of the parties, including
        the additional party; and
	 c)	
     the information specified in            Article   4(3),
     subparagraphs c), d), e) and f).
	The party filing the Request for Joinder may submit
  therewith such other documents or information as it
  considers appropriate or as may contribute to the
  efficient resolution of the dispute.
3	The provisions of Articles 4(4) and 4(5) shall apply,
   mutatis mutandis, to the Request for Joinder.
4	
  The additional party shall submit an Answer in
  accordance, mutatis mutandis, with the provisions of
  Articles 5(1)–5(4). The additional party may make
  claims against any other party in accordance with
  the provisions of Article 8.




                                                          17
ICC Arbitration Rules
MULTIPLE PARTIES, MULTIPLE CONTRACTS
AND CONSOLIDATION




Article 8

Claims Between Multiple Parties
1	In an arbitration with multiple parties, claims may be
   made by any party against any other party, subject
   to the provisions of Articles 6(3)–6(7) and 9 and
   provided that no new claims may be made after the
   Terms of Reference are signed or approved by the
   Court without the authorization of the arbitral
   tribunal pursuant to Article 23(4).
2	Any party making a claim pursuant to Article 8(1)
   shall provide the information specified in Article  4(3),
   subparagraphs c), d), e) and f).
3	
  Before the Secretariat transmits the file to the
  arbitral tribunal in accordance with Article 16, the
  following provisions shall apply, mutatis mutandis, to
  any claim made: Article 4(4) subparagraph a);
  Article 4(5); Article 5(1) except for subparagraphs
  a), b), e) and f); Article 5(2); Article 5(3) and Article
  5(4). Thereafter, the arbitral tribunal shall determine
  the procedure for making a claim.

Article 9

Multiple Contracts
Subject to the provisions of Articles 6(3)–6(7) and
23(4), claims arising out of or in connection with more
than one contract may be made in a single arbitration,
irrespective of whether such claims are made under one
or more than one arbitration agreement under the Rules.




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Article 10

Consolidation of Arbitrations
The Court may, at the request of a party, consolidate
two or more arbitrations pending under the Rules into a
single arbitration, where:
a)	the parties have agreed to consolidation; or
b)	all of the claims in the arbitrations are made under
    the same arbitration agreement; or
c)	where the claims in the arbitrations are made under
    more than one arbitration agreement, the
    arbitrations are between the same parties, the
    disputes in the arbitrations arise in connection with
    the same legal relationship, and the Court finds the
    arbitration agreements to be compatible.
In deciding whether to consolidate, the Court may take
into account any circumstances it considers to be
relevant, including whether one or more arbitrators
have been confirmed or appointed in more than one of
the arbitrations and, if so, whether the same or different
persons have been confirmed or appointed.
When arbitrations are consolidated, they shall be
consolidated into the arbitration that commenced first,
unless otherwise agreed by all parties.




                                                        19
ICC Arbitration Rules
THE ARBITRAL TRIBUNAL




Article 11

General Provisions
1	Every arbitrator must be and remain impartial and
   independent of the parties involved in the arbitration.
2	Before appointment or confirmation, a prospective
   arbitrator shall sign a statement of acceptance,
   availability, impartiality and independence. The
   prospective arbitrator shall disclose in writing to the
   Secretariat any facts or circumstances which might
   be of such a nature as to call into question the
   arbitrator’s independence in the eyes of the parties,
   as well as any circumstances that could give rise to
   reasonable doubts as to the arbitrator’s impartiality.
   The Secretariat shall provide such information to the
   parties in writing and fix a time limit for any
   comments from them.
3	An arbitrator shall immediately disclose in writing
   to  the Secretariat and to the parties any facts or
   circumstances of a similar nature to those referred
   to  in Article 11(2) concerning the arbitrator’s
   impartiality or independence which may arise during
   the arbitration.
4	The decisions of the Court as to the appointment,
   confirmation, challenge or replacement of an
   arbitrator shall be final, and the reasons for such
   decisions shall not be communicated.
5	By accepting to serve, arbitrators undertake to carry
   out their responsibilities in accordance with the Rules.
6	Insofar as the parties have not provided otherwise,
   the arbitral tribunal shall be constituted in accordance
   with the provisions of Articles 12 and 13.




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                                                               Arbitration
Article 12

Constitution of the Arbitral Tribunal
Number of Arbitrators
1	The disputes shall be decided by a sole arbitrator or
   by three arbitrators.
2	Where the parties have not agreed upon the number
   of arbitrators, the Court shall appoint a sole
   arbitrator, save where it appears to the Court that
   the dispute is such as to warrant the appointment of
   three arbitrators. In such case, the claimant shall
   nominate an arbitrator within a period of 15 days
   from the receipt of the notification of the decision of
   the Court, and the respondent shall nominate an
   arbitrator within a period of 15 days from the receipt
   of the notification of the nomination made by the
   claimant. If a party fails to nominate an arbitrator, the
   appointment shall be made by the Court.
Sole Arbitrator
3	Where the parties have agreed that the dispute shall
   be resolved by a sole arbitrator, they may, by
   agreement, nominate the sole arbitrator for
   confirmation. If the parties fail to nominate a sole
   arbitrator within 30 days from the date when the
   claimant’s Request for Arbitration has been received
   by the other party, or within such additional time as
   may be allowed by the Secretariat, the sole arbitrator
   shall be appointed by the Court.
Three Arbitrators
4	Where the parties have agreed that the dispute shall
   be resolved by three arbitrators, each party shall
   nominate in the Request and the Answer,
   respectively, one arbitrator for confirmation. If a
   party fails to nominate an arbitrator, the appointment
   shall be made by the Court.




                                                          21
ICC Arbitration Rules
THE ARBITRAL TRIBUNAL




5	
  Where the dispute is to be referred to three
  arbitrators, the third arbitrator, who will act as
  president of the arbitral tribunal, shall be appointed
  by the Court, unless the parties have agreed upon
  another procedure for such appointment, in which
  case the nomination will be subject to confirmation
  pursuant to Article 13. Should such procedure not
  result in a nomination within 30 days from the
  confirmation or appointment of the co‑arbitrators or
  any other time limit agreed by the parties or fixed by
  the Court, the third arbitrator shall be appointed by
  the Court.
6	
  Where there are multiple claimants or multiple
  respondents, and where the dispute is to be referred
  to three arbitrators, the multiple claimants, jointly,
  and the multiple respondents, jointly, shall nominate
  an arbitrator for confirmation pursuant to Article 13.
7	
  Where an additional party has been joined, and
  where the dispute is to be referred to three
  arbitrators, the additional party may, jointly with the
  claimant(s) or with the respondent(s), nominate an
  arbitrator for confirmation pursuant to Article 13.
8	
  In the absence of a joint nomination pursuant to
  Articles 12(6) or 12(7) and where all parties are
  unable to agree to a method for the constitution of
  the arbitral tribunal, the Court may appoint each
  member of the arbitral tribunal and shall designate
  one of them to act as president. In such case, the
  Court shall be at liberty to choose any person it
  regards as suitable to act as arbitrator, applying
  Article 13 when it considers this appropriate.




22   ICC Publication 865-1 ENG
                                                             Arbitration
Article 13

Appointment and Confirmation of the Arbitrators
1	
  In confirming or appointing arbitrators, the Court
  shall   consider    the     prospective   arbitrator’s
  nationality, residence and other relationships with
  the countries of which the parties or the other
  arbitrators are nationals and the prospective
  arbitrator’s availability and ability to conduct the
  arbitration in accordance with the Rules. The same
  shall apply where the Secretary General confirms
  arbitrators pursuant to Article 13(2).
2	
  The     Secretary     General     may     confirm     as
  co‑arbitrators, sole arbitrators and presidents of
  arbitral tribunals persons nominated by the parties
  or pursuant to their particular agreements, provided
  that the statement they have submitted contains no
  qualification regarding impartiality or independence
  or that a qualified statement regarding impartiality
  or independence has not given rise to objections.
  Such confirmation shall be reported to the Court at
  its next session. If the Secretary General considers
  that a co-arbitrator, sole arbitrator or president of an
  arbitral tribunal should not be confirmed, the matter
  shall be submitted to the Court.
3	Where the Court is to appoint an arbitrator, it shall
   make the appointment upon proposal of a National
   Committee or Group of the ICC that it considers to
   be appropriate. If the Court does not accept the
   proposal made, or if the National Committee or
   Group fails to make the proposal requested within
   the time limit fixed by the Court, the Court may
   repeat its request, request a proposal from another
   National Committee or Group that it considers to be
   appropriate, or appoint directly any person whom it
   regards as suitable.
4	
  The Court may also appoint directly to act as
  arbitrator any person whom it regards as suitable
  where:
	   a)	one or more of the parties is a state or claims to
        be a state entity; or




                                                       23
ICC Arbitration Rules
THE ARBITRAL TRIBUNAL




	    b)	the Court considers that it would be appropriate
         to appoint an arbitrator from a country or
         territory where there is no National Committee or
         Group; or
	 c)	
     the President certifies to the Court that
     circumstances exist which, in the President’s
     opinion, make a direct appointment necessary
     and appropriate.
5	The sole arbitrator or the president of the arbitral
   tribunal shall be of a nationality other than those of
   the parties. However, in suitable circumstances and
   provided that none of the parties objects within the
   time limit fixed by the Court, the sole arbitrator or
   the president of the arbitral tribunal may be chosen
   from a country of which any of the parties is a
   national.

Article 14

Challenge of Arbitrators
1	A challenge of an arbitrator, whether for an alleged
   lack of impartiality or independence, or otherwise,
   shall be made by the submission to the Secretariat of
   a written statement specifying the facts and
   circumstances on which the challenge is based.
2	
  For a challenge to be admissible, it must be
  submitted by a party either within 30 days from
  receipt by that party of the notification of the
  appointment or confirmation of the arbitrator, or
  within 30 days from the date when the party making
  the challenge was informed of the facts and
  circumstances on which the challenge is based if
  such date is subsequent to the receipt of such
  notification.
3	The Court shall decide on the admissibility and, at
   the same time, if necessary, on the merits of a
   challenge after the Secretariat has afforded an
   opportunity for the arbitrator concerned, the other
   party or parties and any other members of the
   arbitral tribunal to comment in writing within a
   suitable period of time. Such comments shall be
   communicated to the parties and to the arbitrators.




24    ICC Publication 865-1 ENG
                                                             Arbitration
Article 15

Replacement of Arbitrators
1	
  An arbitrator shall be replaced upon death, upon
  acceptance by the Court of the arbitrator’s
  resignation, upon acceptance by the Court of a
  challenge, or upon acceptance by the Court of a
  request of all the parties.
2	An arbitrator shall also be replaced on the Court’s
   own initiative when it decides that the arbitrator is
   prevented de jure or de facto from fulfilling the
   arbitrator’s functions, or that the arbitrator is not
   fulfilling those functions in accordance with the
   Rules or within the prescribed time limits.
3	When, on the basis of information that has come
   to  its attention, the Court considers applying
   Article  15(2), it shall decide on the matter after
   the  arbitrator concerned, the parties and any
   other  members of the arbitral tribunal have had
   an  opportunity to comment in writing within a
   suitable period of time. Such comments shall be
   communicated to the parties and to the arbitrators.
4	When an arbitrator is to be replaced, the Court has
   discretion to decide whether or not to follow the
   original nominating process. Once reconstituted,
   and after having invited the parties to comment, the
   arbitral tribunal shall determine if and to what extent
   prior proceedings shall be repeated before the
   reconstituted arbitral tribunal.
5	
  Subsequent to the closing of the proceedings,
  instead of replacing an arbitrator who has died or
  been removed by the Court pursuant to Articles 15(1)
  or 15(2), the Court may decide, when it considers it
  appropriate, that the remaining arbitrators shall
  continue the arbitration. In making such
  determination, the Court shall take into account the
  views of the remaining arbitrators and of the parties
  and such other matters that it considers appropriate
  in the circumstances.




                                                       25
ICC Arbitration Rules
THE ARBITRAL PROCEEDINGS




Article 16

Transmission of the File to the Arbitral Tribunal
The Secretariat shall transmit the file to the arbitral
tribunal as soon as it has been constituted, provided the
advance on costs requested by the Secretariat at this
stage has been paid.

Article 17

Proof of Authority
At any time after the commencement of the arbitration,
the arbitral tribunal or the Secretariat may require proof
of the authority of any party representatives.

Article 18

Place of the Arbitration
1	
  The place of the arbitration shall be fixed by the
  Court, unless agreed upon by the parties.
2	The arbitral tribunal may, after consultation with the
   parties, conduct hearings and meetings at any
   location it considers appropriate, unless otherwise
   agreed by the parties.
3	The arbitral tribunal may deliberate at any location it
   considers appropriate.

Article 19

Rules Governing the Proceedings
The proceedings before the arbitral tribunal shall be
governed by the Rules and, where the Rules are silent,
by any rules which the parties or, failing them, the
arbitral tribunal may settle on, whether or not reference
is thereby made to the rules of procedure of a national
law to be applied to the arbitration.




26   ICC Publication 865-1 ENG
                                                              Arbitration
Article 20

Language of the Arbitration
In the absence of an agreement by the parties, the
arbitral tribunal shall determine the language or
languages of the arbitration, due regard being given to
all relevant circumstances, including the language of
the contract.

Article 21

Applicable Rules of Law
1	The parties shall be free to agree upon the rules of
   law to be applied by the arbitral tribunal to the merits
   of the dispute. In the absence of any such agreement,
   the arbitral tribunal shall apply the rules of law which
   it determines to be appropriate.
2	
  The arbitral tribunal shall take account of the
  provisions of the contract, if any, between the parties
  and of any relevant trade usages.
3	The arbitral tribunal shall assume the powers of an
   amiable compositeur or decide ex aequo et bono
   only if the parties have agreed to give it such powers.

Article 22

Conduct of the Arbitration
1	The arbitral tribunal and the parties shall make every
   effort to conduct the arbitration in an expeditious
   and cost-effective manner, having regard to the
   complexity and value of the dispute.
2	In order to ensure effective case management, the
   arbitral tribunal, after consulting the parties, may
   adopt such procedural measures as it considers
   appropriate, provided that they are not contrary to
   any agreement of the parties.




                                                        27
ICC Arbitration Rules
THE ARBITRAL PROCEEDINGS




3	Upon the request of any party, the arbitral tribunal
   may make orders concerning the confidentiality of
   the arbitration proceedings or of any other matters
   in connection with the arbitration and may take
   measures for protecting trade secrets and
   confidential information.
4	In all cases, the arbitral tribunal shall act fairly and
   impartially and ensure that each party has a
   reasonable opportunity to present its case.
5	
  The parties undertake to comply with any order
  made by the arbitral tribunal.

Article 23

Terms of Reference
1	
  As soon as it has received the file from the
  Secretariat, the arbitral tribunal shall draw up, on the
  basis of documents or in the presence of the parties
  and in the light of their most recent submissions, a
  document defining its Terms of Reference. This
  document shall include the following particulars:
	    a)	the names in full, description, address and other
         contact details of each of the parties and of any
         person(s) representing a party in the arbitration;
	 b)	
     the addresses to which notifications and
     communications arising in the course of the
     arbitration may be made;
	    c)	a summary of the parties’ respective claims and
         of the relief sought by each party, together with
         the amounts of any quantified claims and, to the
         extent possible, an estimate of the monetary
         value of any other claims;
	 d)	
     unless the arbitral tribunal considers it
     inappropriate, a list of issues to be determined;
	 e)	
     the names in full, address and other contact
     details of each of the arbitrators;
	    f) 	 the place of the arbitration; and




28    ICC Publication 865-1 ENG
                                                              Arbitration
	 g)	
     particulars of the applicable procedural rules
     and, if such is the case, reference to the power
     conferred upon the arbitral tribunal to act as
     amiable compositeur or to decide ex aequo et
     bono.
2	
  The Terms of Reference shall be signed by the
  parties and the arbitral tribunal. Within two months
  of the date on which the file has been transmitted to
  it, the arbitral tribunal shall transmit to the Court the
  Terms of Reference signed by it and by the parties.
  The Court may extend this time limit pursuant to a
  reasoned request from the arbitral tribunal or on its
  own initiative if it decides it is necessary to do so.
3	
  If any of the parties refuses to take part in the
  drawing up of the Terms of Reference or to sign the
  same, they shall be submitted to the Court for
  approval. When the Terms of Reference have been
  signed in accordance with Article 23(2) or approved
  by the Court, the arbitration shall proceed.
4	After the Terms of Reference have been signed or
   approved by the Court, no party shall make new
   claims which fall outside the limits of the Terms of
   Reference unless it has been authorized to do so by
   the arbitral tribunal, which shall consider the nature
   of such new claims, the stage of the arbitration and
   other relevant circumstances.

Article 24

Case Management Conference and
Procedural Timetable
1	When drawing up the Terms of Reference or as soon
   as possible thereafter, the arbitral tribunal shall
   convene a case management conference to consult
   the parties on procedural measures that may be
   adopted pursuant to Article 22(2). Such measures
   may include one or more of the case management
   techniques described in Appendix IV.




                                                        29
ICC Arbitration Rules
THE ARBITRAL PROCEEDINGS




2	
  During or following such conference, the arbitral
  tribunal shall establish the procedural timetable that
  it intends to follow for the conduct of the arbitration.
  The procedural timetable and any modifications
  thereto shall be communicated to the Court and the
  parties.
3	
  To ensure continued effective case management,
  the arbitral tribunal, after consulting the parties by
  means of a further case management conference or
  otherwise, may adopt further procedural measures
  or modify the procedural timetable.
4	Case management conferences may be conducted
   through a meeting in person, by video conference,
   telephone or similar means of communication. In the
   absence of an agreement of the parties, the arbitral
   tribunal shall determine the means by which the
   conference will be conducted. The arbitral tribunal
   may request the parties to submit case management
   proposals in advance of a case management
   conference and may request the attendance at any
   case management conference of the parties in
   person or through an internal representative.

Article 25

Establishing the Facts of the Case
1	The arbitral tribunal shall proceed within as short a
   time as possible to establish the facts of the case by
   all appropriate means.
2	After studying the written submissions of the parties
   and all documents relied upon, the arbitral tribunal
   shall hear the parties together in person if any of
   them so requests or, failing such a request, it may of
   its own motion decide to hear them.
3	The arbitral tribunal may decide to hear witnesses,
   experts appointed by the parties or any other
   person, in the presence of the parties, or in their
   absence provided they have been duly summoned.




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                                                            Arbitration
4	
  The arbitral tribunal, after having consulted the
  parties, may appoint one or more experts, define
  their terms of reference and receive their reports. At
  the request of a party, the parties shall be given the
  opportunity to question at a hearing any such
  expert.
5	
  At any time during the proceedings, the arbitral
  tribunal may summon any party to provide
  additional evidence.
6	The arbitral tribunal may decide the case solely on
   the documents submitted by the parties unless any
   of the parties requests a hearing.

Article 26

Hearings
1	When a hearing is to be held, the arbitral tribunal,
   giving reasonable notice, shall summon the parties
   to appear before it on the day and at the place fixed
   by it.
2	If any of the parties, although duly summoned, fails
   to appear without valid excuse, the arbitral tribunal
   shall have the power to proceed with the hearing.
3	
  The arbitral tribunal shall be in full charge of the
  hearings, at which all the parties shall be entitled to
  be present. Save with the approval of the arbitral
  tribunal and the parties, persons not involved in the
  proceedings shall not be admitted.
4	The parties may appear in person or through duly
   authorized representatives. In addition, they may be
   assisted by advisers.




                                                       31
ICC Arbitration Rules
THE ARBITRAL PROCEEDINGS




Article 27

Closing of the Proceedings and Date for Submission
of Draft Awards
As soon as possible after the last hearing concerning
matters to be decided in an award or the filing of the last
authorized submissions concerning such matters,
whichever is later, the arbitral tribunal shall:
a)	declare the proceedings closed with respect to the
    matters to be decided in the award; and
b)	inform the Secretariat and the parties of the date by
    which it expects to submit its draft award to the
    Court for approval pursuant to Article 33.
After the proceedings are closed, no further submission
or argument may be made, or evidence produced, with
respect to the matters to be decided in the award,
unless requested or authorized by the arbitral tribunal.

Article 28

Conservatory and Interim Measures
1	Unless the parties have otherwise agreed, as soon as
   the file has been transmitted to it, the arbitral tribunal
   may, at the request of a party, order any interim or
   conservatory measure it deems appropriate. The
   arbitral tribunal may make the granting of any such
   measure subject to appropriate security being
   furnished by the requesting party. Any such measure
   shall take the form of an order, giving reasons, or of
   an award, as the arbitral tribunal considers
   appropriate.
2	Before the file is transmitted to the arbitral tribunal,
   and in appropriate circumstances even thereafter,
   the parties may apply to any competent judicial
   authority for interim or conservatory measures. The
   application of a party to a judicial authority for such
   measures or for the implementation of any such
   measures ordered by an arbitral tribunal shall not be
   deemed to be an infringement or a waiver of the
   arbitration agreement and shall not affect the
   relevant powers reserved to the arbitral tribunal.




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                                                               Arbitration
	Any such application and any measures taken by the
  judicial authority must be notified without delay to
  the Secretariat. The Secretariat shall inform the
  arbitral tribunal thereof.

Article 29

Emergency Arbitrator
1	A party that needs urgent interim or conservatory
   measures that cannot await the constitution of an
   arbitral tribunal (“Emergency Measures”) may make
   an application for such measures pursuant to the
   Emergency Arbitrator Rules in Appendix V. Any
   such application shall be accepted only if it is
   received by the Secretariat prior to the transmission
   of the file to the arbitral tribunal pursuant to Article
   16 and irrespective of whether the party making the
   application has already submitted its Request for
   Arbitration.
2	The emergency arbitrator’s decision shall take the
   form of an order. The parties undertake to comply
   with any order made by the emergency arbitrator.
3	The emergency arbitrator’s order shall not bind the
   arbitral tribunal with respect to any question, issue
   or dispute determined in the order. The arbitral
   tribunal may modify, terminate or annul the order or
   any modification thereto made by the emergency
   arbitrator.
4	The arbitral tribunal shall decide upon any party’s
   requests or claims related to the emergency
   arbitrator proceedings, including the reallocation of
   the costs of such proceedings and any claims arising
   out of or in connection with the compliance or non-
   compliance with the order.
5	Articles 29(1)–29(4) and the Emergency Arbitrator
   Rules set forth in Appendix V (collectively the
   “Emergency Arbitrator Provisions”) shall apply only
   to parties that are either signatories of the arbitration
   agreement under the Rules that is relied upon for the
   application or successors to such signatories.




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THE ARBITRAL PROCEEDINGS




6	
  The Emergency Arbitrator Provisions shall not
  apply if:
	    a)	the arbitration agreement under the Rules was
         concluded before the date on which the Rules
         came into force;
	 b)	
     the parties have agreed to opt out of the
     Emergency Arbitrator Provisions; or
	    c)	the parties have agreed to another pre-arbitral
         procedure that provides for the granting of
         conservatory, interim or similar measures.
7	
  The Emergency Arbitrator Provisions are not
  intended to prevent any party from seeking urgent
  interim or conservatory measures from a competent
  judicial authority at any time prior to making an
  application for such measures, and in appropriate
  circumstances even thereafter, pursuant to the
  Rules. Any application for such measures from a
  competent judicial authority shall not be deemed to
  be an infringement or a waiver of the arbitration
  agreement. Any such application and any measures
  taken by the judicial authority must be notified
  without delay to the Secretariat.




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                                                             Arbitration
AWARDS




Article 30

Time Limit for the Final Award
1	The time limit within which the arbitral tribunal must
   render its final award is six months. Such time limit
   shall start to run from the date of the last signature
   by the arbitral tribunal or by the parties of the Terms
   of Reference or, in the case of application of Article
   23(3), the date of the notification to the arbitral
   tribunal by the Secretariat of the approval of the
   Terms of Reference by the Court. The Court may fix a
   different time limit based upon the procedural
   timetable established pursuant to Article 24(2).
2	The Court may extend the time limit pursuant to a
   reasoned request from the arbitral tribunal or on its
   own initiative if it decides it is necessary to do so.

Article 31

Making of the Award
1	When the arbitral tribunal is composed of more than
   one arbitrator, an award is made by a majority
   decision. If there is no majority, the award shall be
   made by the president of the arbitral tribunal alone.
2	The award shall state the reasons upon which it is
   based.
3	The award shall be deemed to be made at the place
   of the arbitration and on the date stated therein.

Article 32

Award by Consent
If the parties reach a settlement after the file has been
transmitted to the arbitral tribunal in accordance
with Article 16, the settlement shall be recorded in the
form of an award made by consent of the parties, if so
requested by the parties and if the arbitral tribunal
agrees to do so.




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ICC Arbitration Rules
AWARDS




Article 33

Scrutiny of the Award by the Court
Before signing any award, the arbitral tribunal shall
submit it in draft form to the Court. The Court may lay
down modifications as to the form of the award and,
without affecting the arbitral tribunal’s liberty of decision,
may also draw its attention to points of substance. No
award shall be rendered by the arbitral tribunal until it
has been approved by the Court as to its form.

Article 34

Notification, Deposit and Enforceability of the Award
1	Once an award has been made, the Secretariat shall
   notify to the parties the text signed by the arbitral
   tribunal, provided always that the costs of the
   arbitration have been fully paid to the ICC by the
   parties or by one of them.
2	
  Additional copies certified true by the Secretary
  General shall be made available on request and at
  any time to the parties, but to no one else.
3	By virtue of the notification made in accordance with
   Article 34(1), the parties waive any other form of
   notification or deposit on the part of the arbitral
   tribunal.
4	An original of each award made in accordance with
   the Rules shall be deposited with the Secretariat.
5	The arbitral tribunal and the Secretariat shall assist
   the parties in complying with whatever further
   formalities may be necessary.
6	
  Every award shall be binding on the parties. By
  submitting the dispute to arbitration under the
  Rules, the parties undertake to carry out any award
  without delay and shall be deemed to have waived
  their right to any form of recourse insofar as such
  waiver can validly be made.




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                                                                Arbitration
Article 35

Correction and Interpretation of the Award;
Remission of Awards
1	On its own initiative, the arbitral tribunal may correct
   a clerical, computational or typographical error, or
   any errors of similar nature contained in an award,
   provided such correction is submitted for approval to
   the Court within 30 days of the date of such award.
2	Any application of a party for the correction of an
   error of the kind referred to in Article 35(1), or for the
   interpretation of an award, must be made to the
   Secretariat within 30 days of the receipt of the award
   by such party, in a number of copies as stated in
   Article 3(1). After transmittal of the application to
   the arbitral tribunal, the latter shall grant the other
   party a short time limit, normally not exceeding 30
   days, from the receipt of the application by that
   party, to submit any comments thereon. The arbitral
   tribunal shall submit its decision on the application in
   draft form to the Court not later than 30 days
   following the expiration of the time limit for the
   receipt of any comments from the other party or
   within such other period as the Court may decide.
3	A decision to correct or to interpret the award shall
   take the form of an addendum and shall constitute
   part of the award. The provisions of Articles 31, 33
   and 34 shall apply mutatis mutandis.
4	
  Where a court remits an award to the arbitral
  tribunal, the provisions of Articles 31, 33, 34 and this
  Article 35 shall apply mutatis mutandis to any
  addendum or award made pursuant to the terms of
  such remission. The Court may take any steps as
  may be necessary to enable the arbitral tribunal to
  comply with the terms of such remission and may fix
  an advance to cover any additional fees and
  expenses of the arbitral tribunal and any additional
  ICC administrative expenses.




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ICC Arbitration Rules
costs




Article 36

Advance to Cover the Costs of the Arbitration
1	After receipt of the Request, the Secretary General
   may request the claimant to pay a provisional
   advance in an amount intended to cover the costs of
   the arbitration until the Terms of Reference have
   been drawn up. Any provisional advance paid will be
   considered as a partial payment by the claimant of
   any advance on costs fixed by the Court pursuant to
   this Article 36.
2	
  As soon as practicable, the Court shall fix the
  advance on costs in an amount likely to cover the
  fees and expenses of the arbitrators and the ICC
  administrative expenses for the claims which have
  been referred to it by the parties, unless any claims
  are made under Article 7 or 8 in which case Article
  36(4) shall apply. The advance on costs fixed by the
  Court pursuant to this Article 36(2) shall be payable
  in equal shares by the claimant and the respondent.
3	
  Where counterclaims are submitted by the
  respondent under Article 5 or otherwise, the Court
  may fix separate advances on costs for the claims
  and the counterclaims. When the Court has fixed
  separate advances on costs, each of the parties shall
  pay the advance on costs corresponding to its
  claims.
4	
  Where claims are made under Article 7 or 8, the
  Court shall fix one or more advances on costs that
  shall be payable by the parties as decided by the
  Court. Where the Court has previously fixed any
  advance on costs pursuant to this Article 36, any
  such advance shall be replaced by the advance(s)
  fixed pursuant to this Article 36(4), and the amount
  of any advance previously paid by any party will be
  considered as a partial payment by such party of its
  share of the advance(s) on costs as fixed by the
  Court pursuant to this Article 36(4).




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                                                              Arbitration
5	The amount of any advance on costs fixed by the
   Court pursuant to this Article 36 may be subject to
   readjustment at any time during the arbitration. In all
   cases, any party shall be free to pay any other party’s
   share of any advance on costs should such other
   party fail to pay its share.
6	When a request for an advance on costs has not
   been complied with, and after consultation with the
   arbitral tribunal, the Secretary General may direct
   the arbitral tribunal to suspend its work and set a
   time limit, which must be not less than 15 days, on the
   expiry of which the relevant claims shall be
   considered as withdrawn. Should the party in
   question wish to object to this measure, it must make
   a request within the aforementioned period for the
   matter to be decided by the Court. Such party shall
   not be prevented, on the ground of such withdrawal,
   from reintroducing the same claims at a later date in
   another proceeding.
7	If one of the parties claims a right to a set-off with
   regard to any claim, such set-off shall be taken into
   account in determining the advance to cover the
   costs of the arbitration in the same way as a separate
   claim insofar as it may require the arbitral tribunal to
   consider additional matters.

Article 37

Decision as to the Costs of the Arbitration
1	The costs of the arbitration shall include the fees and
   expenses of the arbitrators and the ICC
   administrative expenses fixed by the Court, in
   accordance with the scale in force at the time of the
   commencement of the arbitration, as well as the fees
   and expenses of any experts appointed by the
   arbitral tribunal and the reasonable legal and other
   costs incurred by the parties for the arbitration.
2	The Court may fix the fees of the arbitrators at a
   figure higher or lower than that which would result
   from the application of the relevant scale should this
   be deemed necessary due to the exceptional
   circumstances of the case.




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ICC Arbitration Rules
costs




3	
  At any time during the arbitral proceedings, the
  arbitral tribunal may make decisions on costs, other
  than those to be fixed by the Court, and order
  payment.
4	The final award shall fix the costs of the arbitration
   and decide which of the parties shall bear them or in
   what proportion they shall be borne by the parties.
5	In making decisions as to costs, the arbitral tribunal
   may take into account such circumstances as it
   considers relevant, including the extent to which
   each party has conducted the arbitration in an
   expeditious and cost-effective manner.
6	In the event of the withdrawal of all claims or the
   termination of the arbitration before the rendering of
   a final award, the Court shall fix the fees and
   expenses of the arbitrators and the ICC
   administrative expenses. If the parties have not
   agreed upon the allocation of the costs of the
   arbitration or other relevant issues with respect to
   costs, such matters shall be decided by the arbitral
   tribunal. If the arbitral tribunal has not been
   constituted at the time of such withdrawal or
   termination, any party may request the Court to
   proceed with the constitution of the arbitral tribunal
   in accordance with the Rules so that the arbitral
   tribunal may make decisions as to costs.




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ICC Arbitration Rules




                                                               Arbitration
MISCELLANEOUS




Article 38

Modified Time Limits
1	The parties may agree to shorten the various time
   limits set out in the Rules. Any such agreement
   entered into subsequent to the constitution of an
   arbitral tribunal shall become effective only upon the
   approval of the arbitral tribunal.
2	The Court, on its own initiative, may extend any time
   limit which has been modified pursuant to Article 38(1)
   if it decides that it is necessary to do so in order that
   the arbitral tribunal and the Court may fulfil their
   responsibilities in accordance with the Rules.

Article 39

Waiver
A party which proceeds with the arbitration without
raising its objection to a failure to comply with any
provision of the Rules, or of any other rules applicable to
the proceedings, any direction given by the arbitral
tribunal, or any requirement under the arbitration
agreement relating to the constitution of the arbitral
tribunal or the conduct of the proceedings, shall be
deemed to have waived its right to object.

Article 40

Limitation of Liability
The arbitrators, any person appointed by the arbitral
tribunal, the emergency arbitrator, the Court and its
members, the ICC and its employees, and the ICC
National Committees and Groups and their employees
and representatives shall not be liable to any person for
any act or omission in connection with the arbitration,
except to the extent such limitation of liability is
prohibited by applicable law.

Article 41

General Rule
In all matters not expressly provided for in the Rules, the
Court and the arbitral tribunal shall act in the spirit of
the Rules and shall make every effort to make sure that
the award is enforceable at law.


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