The Court of Appeal has rejected an application by a Kenyan firm to block the referral of a breach of contract case against Nokia Corporation to the International Court of Arbitration (ICC).
A three-judge bench ruled that Technoservice Limited and Nokia Corporation chose the forum and method of resolving disputes that could arise when they signed the agreement in 2009. Further, Justice Daniel Musinga, Sankale ole Kantai, and Mumbi Ngugi said the parties were bound by their agreement.
“In the circumstances, the complaints by the applicant were misplaced. We cannot, therefore, see any arguable point in the intended appeal,” the judges said.
The Kenyan company, however, said the judge ignored evidence that arbitration under the ICC is biased, corrupted, prohibitively expensive, slow, and unconstitutional.
Mr Bulent Gulbahar, a director of Technoservice argued that the High Court judge should have found that ICC was conflicted due to Nokia’s membership and relationship with it, including Nokia officials holding high-ranking positions within the institution and ICC International Court of Arbitration.
He said Justice Mugambi should have found that the arbitration agreement was null and void and that Nokia had allegedly committed tax fraud against Kenyan law. Aapo Saarikivi of Helsinki, Finland, and a partner in the law firm of Roschier, Attorneys Limited, said in reply that the law firm represented Nokia in arbitration proceedings at the International Court of Arbitration of the ICC.
He said the Kenya firm lodged a claim at the ICC against Nokia, a case that was identical to the one at the High Court.
Further, the arbitration proceedings stalled because Technoservice Ltd did not pay its part of the arbitration fees, a move that made the case deemed withdrawn.
“The motion fails and is hereby dismissed with costs to the respondent,” the Appellate judges said.
TechnoService Ltd alleges that Nokia breached the deal when it sold its business to Microsoft Corporation in April 2014. The company further seeks damages and loss of earnings after a number of Nokia Service Centers, which it allegedly established jointly, were taken over by Microsoft.
TechnoService said it was coerced into investing into the deal by establishing Nokia care branded service centers across the country. The centers, which were jointly established were later transferred to Microsoft without its consent.
