Posted: February 2nd, 2015

In 2012, many international arbitration institutions have adopted additional provisions on “emergency arbitrators” to be included in their arbitration rules. Can you explain why the international arbitration community saw an increasing need for such provisions?

The below is an exam paper on International Arbitration. please answer each question as per the instructions given below and using the files attached. please remember to write the number and letter of each question in front of each answer to be able to differenciate which answer belongs to which question. Please use the references from the files attached and where ever relevant as per the instructions. it could be less or more than 10 depending on the neccessity.

please make sure to finish the exam within 12 hours as i dont have more time available to extend.

Please provide an answer to the following eight (8) questions. Where relevant, please make reference to the provisions of the UNCITRAL Model Law on international commercial arbitration (as amended in 2006), the applicable Rules of Arbitration, (including the 2010 UNCITRAL Arbitration Rules and the 2012 ICC Arbitration Rules) and any international conventions or “soft law” you may consider to be relevant. All relevant documents (in English) are easily accessible on the internet. Note that you are not required to consult any national (arbitration or substantive) laws.

1) In 2012, many international arbitration institutions have adopted additional provisions on “emergency arbitrators” to be included in their arbitration rules. Can you explain why the international arbitration community saw an increasing need for such provisions?

2) In an international arbitration proceeding, why is the choice of the place of arbitration of great importance?

3) In a Distribution Contract between a French producer of champagne and a Spanish distributor, the contracting parties had agreed on the following arbitration clause:

“All disputes arising out of or in connection with the present contract shall be finally settled by an arbitral tribunal of three members under the ICC Rules.”

In the course of the arbitral proceedings, the arbitral tribunal intends to take the testimony of a witness residing in a State which has adopted the UNCITRAL Model Law. The witness is a physically challenged person. Therefore, the arbitral tribunal would prefer to request a State Court at the place of residence of the witness to hear this witness.

Does the arbitral tribunal have the possibility to file such a request? Please first discuss the relevance (if any), for the issue at stake, of the ICC Court’s decision pursuant to Article 18(1) of the 2012 ICC Rules.

4) In your view, which factors might influence the procedure adopted by an international arbitration tribunal for the taking of evidence? Do you think that there is a common international standard for the taking of evidence? Explain the purpose of the IBA Rules on the Taking of evidence.

5) In an ad-hoc arbitration before a Sole Arbitrator in a State that has adopted the UNCITRAL model law (the place of arbitration), the Respondent alleged that it had never signed the arbitration agreement and requested a preliminary decision on jurisdiction. The Sole Arbitrator agreed to render such decision. However, in the decision, he rejected Respondent’s arguments and continued with the arbitration. One week after the notification of this decision to Respondent, Respondent was informed by a client that the Sole Arbitrator acted as legal advisor for one of Claimant’s subsidiaries.

You are Respondent’s counsel. How would you react in the situation described above?

6) In October 2009, a Spanish producer of a cutting machine and a buyer from Panama concluded a purchase agreement under the terms of which the buyer was obliged to pay the purchase price of a machine for a total amount of US$ 200,000 in ten equal instalments. The purchase agreement provided for ICC arbitration in Geneva.

Upon delivery of the machine, the buyer failed to pay the totality of the instalments. The Spanish producer therefore started arbitration and requested payment of the totality of the purchase price. In his Answer to the Request, Respondent alleged that the machine had several defects and argued that he was not obliged to pay the totality of the purchase price.

In the reasoning of the Final Award that was notified by the ICC Secretariat to the parties by DHL on November 28, 2012, the Sole Arbitrator rejected Respondent’s arguments and decided to order Respondent to pay Claimant the 3 outstanding instalments.

Upon notification of the Final Award, Claimant discovered that on the decision page the Sole Arbitrator decided that Respondent should pay to Claimant “a total amount of US$ 40,000”.

a) Explain the appointment process of the arbitral tribunal in ICC proceedings if the arbitration clause does not refer to the number of arbitrators.

b) Explain possible scenarios of how the Sole Arbitrator could have been designated in this matter.

c) What are the advantages of having a Sole Arbitrator to decide this case as compared to a tribunal of three members?

d) On December 1, 2012 Claimant comes to your office, shows you the Final Award and asks you what he could do. How do you advise your client?

7) A contract for sale of equipment was concluded in February 2009 between an Egyptian company (Buyer) and an Italian company (Seller) for the shipment of different types of equipment to different countries. The contract contained an arbitration clause stipulating that all disputes were to be settled by arbitration in Paris according to the Rules of Arbitration of the International Chamber of Commerce (ICC), by a sole arbitrator to be appointed by the President of the Court of Arbitration of the said Chamber. The contract stipulated that the shipping documents were to be considered as an integral part of the contract. An arbitration clause was inserted in one of the shipping documents signed by both parties in March 2010 referring all disputes of the shipment to arbitration in Cairo according to the UNCITRAL Arbitration Rules.

The shipment of the equipment was delayed and the Buyer refused to receive it alleging that it was not delivered in conformity with the terms and specifications agreed upon in the contract.

The Buyer submitted a request before a national court to issue an interim measure to sell the equipment before it was ruined because of the circumstances in the port.

The Buyer filed a request for arbitration before the Cairo Centre and an arbitral tribunal was composed of an arbitrator appointed by the claimant (Buyer), an arbitrator appointed by the respondent (Seller) and a president appointed by the two co-arbitrators.

During the first preliminary hearing held in Cairo, the Respondent (Seller) raised a plea that the arbitral tribunal did not have jurisdiction as both parties expressly agreed in their contract that all disputes should be settled in Paris before the ICC, by a sole arbitrator. The Respondent requested the arbitral tribunal to rule on the plea concerning its jurisdiction by an award to be rendered before the final award.

Moreover, the Respondent alleged that the Claimant waived his right to arbitrate by submitting the case to a national court.

Egypt has adopted the UNCITRAL Model law on international commercial arbitration.

a) Is the arbitral tribunal entitled to issue an award on the plea as to its jurisdiction? What do you think the right decision would be?

b) Instead of ruling immediately, can the arbitral tribunal proceed with the arbitration and rule on the objection to its jurisdiction in its final award?

c) Would the application to the national court to issue an interim measure be considered as a waiver of the Claimant’s right to arbitrate?

8) Please explain the key features of the 1958 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards.