CALDERWOOD & HARKNESS LLP Attorneys at Law
600 Lexington Avenue New York, NY 10022 Telephone: +1 (212) 558-4000 Facsimile: +1 (212) 558-4001 www.calderwoodharkness.com
December 19, 2022
BY ELECTRONIC FILING AND COURIER
International Court of Arbitration International Chamber of Commerce ICC Secretariat 33-43 avenue du Président Wilson 75116 Paris, France
Re: ICC Case No. 27914/MHM Kestrel Dynamics GmbH (Claimant) v. Whitmore Aerospace LLC (Respondent) Nomination of Respondent's Co-Arbitrator Pursuant to Article 12 of the ICC Rules of Arbitration
Dear Madam Secretary General:
We write on behalf of Respondent Whitmore Aerospace LLC ("Whitmore Aerospace" or "Respondent"), a Delaware limited liability company with its principal place of business at 4200 Wilson Boulevard, Suite 1100, Arlington, Virginia 22203, United States. Calderwood & Harkness LLP serves as counsel of record to Respondent in the above-referenced arbitration proceeding. The purpose of this letter is to formally nominate Respondent's co-arbitrator pursuant to Article 12 of the Rules of Arbitration of the International Chamber of Commerce (2021 edition) (the "ICC Rules").
As the Secretariat is aware, this arbitration was commenced by the filing of a Request for Arbitration by the Claimant, Kestrel Dynamics GmbH ("Kestrel Dynamics" or "Claimant"), a German limited liability company organized under the laws of the Federal Republic of Germany, on November 7, 2022. Respondent filed its Answer to the Request for Arbitration, together with its Counterclaim, on December 12, 2022, within the time period prescribed by Article 5 of the ICC Rules, as extended by the Secretariat's correspondence of November 28, 2022. The arbitration is to be conducted under the ICC Rules (2021 edition), with the seat of arbitration in New York, New York, United States, and the language of the arbitration being English.
In accordance with the ICC Rules and the procedural timeline set by the Secretariat, Respondent hereby submits its nomination of co-arbitrator, as set forth below.
I. Nomination of Co-Arbitrator
Pursuant to Article 12(4) of the ICC Rules, Respondent hereby nominates the Honorable Robert A. Castillo as its co-arbitrator in this proceeding.
Judge Castillo is a national of the United States of America. He is a retired judge of the United States District Court for the Southern District of New York, where he served with distinction for over twenty years following his appointment to the federal bench. During his tenure on the federal bench, Judge Castillo presided over a broad range of complex commercial litigation matters, including disputes arising from international commercial transactions, cross-border supply agreements, manufacturing and procurement contracts, technology licensing arrangements, and joint venture and partnership agreements. His docket regularly included cases involving the application of the United Nations Convention on Contracts for the International Sale of Goods (CISG), the Uniform Commercial Code, and federal common law principles governing commercial disputes.
Judge Castillo's judicial experience extends to matters involving allegations of breach of contract, breach of warranty, fraud and misrepresentation in commercial dealings, tortious interference with business relations, and claims for consequential and incidental damages in complex multi-party commercial disputes. He has authored numerous published opinions addressing issues of contract interpretation, the enforceability of limitation of liability and indemnification provisions, the calculation of expectation damages, and the interplay between domestic and international commercial law. His opinions have been cited extensively by courts throughout the federal judiciary and in leading treatises on commercial law and international arbitration.
Since his retirement from the federal bench, Judge Castillo has devoted his professional practice to service as an arbitrator and mediator in complex commercial disputes. He is a member of the panel of arbitrators maintained by the American Arbitration Association (AAA) and the International Centre for Dispute Resolution (ICDR), and he has served as arbitrator or presiding arbitrator in numerous proceedings conducted under the rules of the ICC, the ICDR, the London Court of International Arbitration (LCIA), and the Singapore International Arbitration Centre (SIAC). He is a Fellow of the Chartered Institute of Arbitrators (FCIArb) and a member of the ICC Commission on Arbitration and ADR. Judge Castillo holds a Juris Doctor degree magna cum laude from Columbia Law School and a Bachelor of Arts degree summa cum laude from Georgetown University.
His current professional address is:
The Honorable Robert A. Castillo (Ret.) Castillo ADR Chambers One Battery Park Plaza, 32nd Floor New York, NY 10004 Telephone: +1 (212) 709-8800
Email: rcastillo@castilloadr.com
Respondent submits that Judge Castillo's extensive judicial experience in complex commercial litigation, his deep familiarity with the legal principles at issue in disputes of this nature, and his substantial post-judicial experience as an international arbitrator render him exceptionally well qualified to serve as co-arbitrator in this proceeding.
II. Confirmation of Availability
Prior to making this nomination, counsel for Respondent has been in direct communication with Judge Castillo regarding the proposed appointment and the general nature and anticipated scope of this proceeding. Judge Castillo has confirmed that he is available and willing to serve as co-arbitrator in ICC Case No. 27914/MHM.
In particular, Judge Castillo has been informed that the dispute arises from a Master Supply Agreement dated June 15, 2018 (the "MSA"), entered into between Whitmore Aerospace LLC and Kestrel Dynamics GmbH, pursuant to which Kestrel Dynamics agreed to design, manufacture, and supply titanium alloy turbine housings and related precision-engineered components for integration into Whitmore Aerospace's advanced propulsion systems. He has been apprised of the general nature of the claims asserted by the Claimant and the counterclaims asserted by the Respondent, without disclosure of privileged materials, work product, or detailed case strategy.
Judge Castillo has confirmed that he is available for the anticipated procedural timeline of this arbitration, including the case management conference, any preliminary hearings, the production of documents, the filing of written submissions, any evidentiary hearing or hearings, and the deliberation and preparation of the final award. He has indicated that he has no scheduling conflicts that would impede the efficient and timely resolution of this matter.
III. Statement of Independence and Impartiality
Judge Castillo has confirmed his independence and impartiality in accordance with the requirements of Articles 11(1) and 11(2) of the ICC Rules. In particular, he has represented the following:
(a) He has no past or present relationship, whether professional, financial, or personal, with either party to this arbitration — that is, with Whitmore Aerospace LLC or Kestrel Dynamics GmbH — or with any of their respective parent companies, subsidiaries, affiliates, officers, directors, or controlling shareholders;
(b) He has no past or present relationship, whether professional, financial, or personal, with counsel for either party — that is, with Calderwood & Harkness LLP (counsel for Respondent) or Haber Reinhardt Schlosser Partnerschaft mbB (counsel for Claimant) — or with any individual partner, associate, or employee of either firm;
(c) He has no financial or other interest, whether direct or indirect, in the subject matter of this arbitration or in the outcome of this proceeding;
(d) He is not aware of any facts or circumstances, past or present, that could give rise to justifiable doubts as to his independence or impartiality in the eyes of any of the parties; and
(e) He is prepared to devote sufficient time to this arbitration to ensure its expeditious and efficient conduct, and to render a final award within the time limits prescribed by the ICC Rules or as otherwise established by the Tribunal.
Enclosed with this letter, as Enclosure 1, is a signed Statement of Acceptance, Availability, Impartiality and Independence executed by Judge Castillo, in the form prescribed by the ICC Secretariat. Should the Secretariat require any supplemental disclosure or documentation from Judge Castillo, he has indicated his willingness to promptly provide the same.
IV. Claimant's Co-Arbitrator Nomination
Respondent notes that, according to the Request for Arbitration filed by Claimant's counsel, Haber Reinhardt Schlosser Partnerschaft mbB (lead partner Dr. Maximilian Haber), the Claimant has nominated Dr. Hans-Ulrich Perren as its co-arbitrator. Dr. Perren is, as Respondent understands, a Swiss national, a former judge of the Swiss Federal Supreme Court (Schweizerisches Bundesgericht), and a distinguished practitioner in the field of international commercial arbitration. Respondent takes note of Claimant's nomination and reserves all rights in connection therewith, including the right to raise any challenge to Dr. Perren's appointment should grounds for such a challenge become apparent.
V. Appointment of the Presiding Arbitrator
In accordance with Article 12(5) of the ICC Rules, the Presiding Arbitrator (or Chairman) of the Tribunal is to be appointed by agreement of the two co-arbitrators nominated by the parties, subject to confirmation by the ICC Court, or, failing such agreement, by the ICC Court itself.
Respondent reserves its right to participate fully in the selection of the Presiding Arbitrator. Counsel for Respondent intends to communicate with Claimant's counsel, Haber Reinhardt Schlosser Partnerschaft mbB, and with Judge Castillo and Dr. Perren, in due course regarding the identification of a mutually acceptable candidate for the position of Presiding Arbitrator. At this stage, Respondent does not identify a specific nominee for the role of Presiding Arbitrator, but Respondent is committed to working cooperatively with the Claimant and the co-arbitrators to identify a candidate whose qualifications, experience, and availability are well suited to the efficient resolution of this dispute.
Respondent respectfully requests that the Secretariat allow the parties a reasonable period of time within which to endeavor to reach agreement on the Presiding Arbitrator before the ICC Court exercises its power of appointment under Article 12(5).
VI. Contact Information and Service
All future communications from the Secretariat and from the ICC Court regarding this nomination, and regarding all matters in this arbitration generally, should be directed to the undersigned:
Theodore Langston, Partner Calderwood & Harkness LLP 600 Lexington Avenue New York, NY 10022 Telephone: +1 (212) 558-4112 Facsimile: +1 (212) 558-4001
Email: t.langston@calderwoodharkness.com
In accordance with Article 3(1) of the ICC Rules, a copy of this letter and its enclosures has been served simultaneously on Claimant's counsel at the following address:
Dr. Maximilian Haber Haber Reinhardt Schlosser Partnerschaft mbB Königstraße 35 70173 Stuttgart Germany
Email: m.haber@hrs-law.de
VII. Request for Acknowledgment
Respondent respectfully requests that the Secretariat acknowledge receipt of this nomination and the enclosed Statement of Acceptance, Availability, Impartiality and Independence at the Secretariat's earliest convenience. Should the Secretariat require any additional information or documentation in connection with this nomination or with Judge Castillo's proposed appointment, we remain at the Secretariat's disposal and will respond promptly to any such request.
We thank the Secretariat for its attention to this matter and look forward to the efficient constitution of the Arbitral Tribunal so that the proceedings may advance in an orderly and expeditious manner.
Respectfully submitted,
CALDERWOOD & HARKNESS LLP
By: ________
Theodore Langston Partner Calderwood & Harkness LLP 600 Lexington Avenue New York, NY 10022
Date: December 19, 2022
cc:
Dana Prescott, Vice President & General Counsel, Whitmore Aerospace LLC, 4200 Wilson Boulevard, Suite 1100, Arlington, VA 22203
Dr. Maximilian Haber, Haber Reinhardt Schlosser Partnerschaft mbB, Königstraße 35, 70173 Stuttgart, Germany
Enclosures:
1. Statement of Acceptance, Availability, Impartiality and Independence of the Honorable Robert A. Castillo (Ret.)
2. Curriculum Vitae of the Honorable Robert A. Castillo (Ret.)