FOR THE FINAL
RESOLUTION OF THE PARTIES' DISPUTES AND WILL NOT CAUSE UNDUE PREJUDICE TO ANY
PARTY.
103
(I)
IN THE EVENT OF DIFFERENT RULINGS ON THE QUESTION OF
CONSOLIDATION BY DIFFERENT ARBITRAL TRIBUNALS CONSTITUTED UNDER THIS AGREEMENT
AND/OR THE OPERATING AGREEMENT AND/OR THE BRAND COOPERATION AGREEMENT, THE
RULING OF THE FIRST ARBITRAL TRIBUNAL TO BE FULLY APPOINTED (THE "FIRST
TRIBUNAL") SHALL PREVAIL.
IN THE EVENT THAT THE FIRST TRIBUNAL HAS RULED IN
FAVOR OF CONSOLIDATION, THE FIRST TRIBUNAL SHALL BE THE ARBITRAL TRIBUNAL THAT
DETERMINES THE CONSOLIDATED ARBITRATION, UNLESS OTHERWISE AGREED BY THE PARTIES
TO THE CONSOLIDATED ARBITRATION OR, ON THE APPLICATION OF ANY PARTY TO THE
CONSOLIDATED ARBITRATION (ANY SUCH APPLICATION TO BE MADE WITHIN 30 BUSINESS
DAYS OF THE DATE OF THE FIRST TRIBUNAL'S RULING IN FAVOR OF CONSOLIDATION),
OTHERWISE DETERMINED BY THE LCIA COURT.
EACH PARTY HEREBY IRREVOCABLY WAIVES
ANY RIGHT TO OBJECT TO THE CONSTITUTION OF THE FIRST TRIBUNAL ON THE GROUND THAT
IT WAS NOT ENTITLED TO NOMINATE, OR JOINTLY NOMINATE, AN ARBITRATOR.
(J)
NOTHING IN THIS CLAUSE SHALL PREVENT A PARTY FROM APPLYING FOR
INTERIM INJUNCTIVE (AND/OR OTHER FORMS OF INTERIM AND/OR CONSERVATORY) RELIEF
(AN "INTERIM RELIEF APPLICATION") FROM ANY COURT OF COMPETENT JURISDICTION IN
ACCORDANCE WITH ARTICLE 25.3 OF THE LCIA RULES AND ANY SUCH INTERIM RELIEF
APPLICATION WILL NOT BE DEEMED INCOMPATIBLE WITH, OR A WAIVER OF, THE PARTIES'
AGREEMENT TO ARBITRATE.
FOR THE AVOIDANCE OF DOUBT, SUCH COURT SHALL DECIDE AN
INTERIM RELIEF APPLICATION IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE
(WITHOUT REGARD TO THE CHOICE OF LAW PROVISIONS THEREOF) PURSUANT TO
SECTION 12.08.
WITHOUT PREJUDICE TO THE ABILITY OF ANY PARTY TO MAKE AN INTERIM
RELIEF APPLICATION BEFORE ANY COURT OF COMPETENT JURISDICTION, THE PARTIES AGREE
THAT THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE (OR, IF
SUBJECT MATTER JURISDICTION IS UNAVAILABLE, THE STATE COURTS OF THE STATE OF
DELAWARE) SHALL HAVE NON-EXCLUSIVE JURISDICTION FOR THE PURPOSES OF ANY INTERIM
RELIEF APPLICATION.
IN ORDER TO GIVE EFFECT TO THE FOREGOING, EACH OF THE
PARTIES HEREBY IRREVOCABLY AND UNCONDITIONALLY AGREES (A) TO THE EXTENT SUCH
PARTY IS NOT OTHERWISE SUBJECT TO SERVICE OF PROCESS IN THE STATE OF DELAWARE,
TO APPOINT AND MAINTAIN AN AGENT IN THE STATE OF DELAWARE AS SUCH PARTY'S AGENT
FOR ACCEPTANCE OF LEGAL PROCESS, AND (B) THAT, TO THE FULLEST EXTENT PERMITTED
BY APPLICABLE LAW, SERVICE OF PROCESS MAY ALSO BE MADE ON SUCH PARTY BY PREPAID
CERTIFIED MAIL WITH A PROOF OF MAILING RECEIPT VALIDATED BY THE UNITED STATES
POSTAL SERVICE CONSTITUTING EVIDENCE OF VALID SERVICE, AND THAT SERVICE MADE
PURSUANT TO CLAUSES (A) OR (B) ABOVE SHALL, TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE LAW, HAVE THE SAME LEGAL FORCE AND EFFECT AS IF SERVED UPON SUCH
PARTY PERSONALLY WITHIN THE STATE OF DELAWARE.
FOR PURPOSES OF IMPLEMENTING THE
PARTIES' AGREEMENT TO APPOINT AND MAINTAIN AN AGENT FOR SERVICE OF PROCESS IN
THE STATE OF DELAWARE, EACH SUCH PARTY THAT HAS NOT AS OF THE DATE HEREOF