ASSIGNMENT

Accelerated Route to Membership-International Arbitration

Release date of assignment: 12 November 2014

Submission Date of assignment: 20 November 2014

By
Candidate Number: 110656

Word Count: 927

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 Candidate Number: 110656

1. Consider the action of H’s attorneys

Although there is no express indication of incorporation of arbitration agreement in

the Contract between H and F, but this matter will be treated as a matter of
jurisdiction of arbitral tribunal, which shall be decided either by the courts or by the
arbitral tribunal themselves under the doctrine of “competence-competence”,
accordingly the action of H’s attorney by raising a notice to start the arbitration
proceedings is valid and preferable.

Another advantage shall be raised here in the consideration of H’s attorney action,
which is if the Model law governs the agreement between the parties then the Model
law specifies under article 7(2) option 1 that an arbitration agreement is in writing if
it is contained in an exchange of statements of claim and defense which the
existence of an agreement is alleged by one party and not denied by the other,
accordingly even if the arbitration agreement was not expressly indicated in the
agreement between H and F and H raised his statement of claim and the reference to
arbitration was not denied by H in his statement of defence then the arbitration
agreement will be considered as a valid written agreement. So the action of H might
be tricky and give the agreement the jurisdiction.

However the above advantage applies only if the parties agreed on the model law or
the statue legalization adopted the model law option 2 of article 7 or adopted their
own articles for arbitration which confirms the same concept.

The only disadvantage of H’s action is the cost he might incur to establish the
arbitration in case the tribunal decided that they have no jurisdiction which might be
a high value.

(278 words)

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 Candidate Number: 110656

2. Consider the arguments of F and decide whether you think the

arbitration can proceed.

The argument of F can be divided into three issues, the first part is the argument of
the jurisdiction which is a clear valid and reasonable argument; the arbitration
agreement is not expressly indicated in the agreement between H and F and
accordingly might be invalid and enforceable, the courts had reached to a conclusion
that the arbitration clause to have been incorporated, there had to be some express
indication of such incorporation1. However such decision on jurisdiction shall be
decided by the statue court or by the arbitral tribunal under the doctrine of
“competence-competence”.

The second part of the argument of F in relation to the failure of H to attempt at

amicable settlement is not strongly supported and not valid because the arbitration
clause between H and IA (if considered to be incorporated in the agreement of H
and F, which is highly not going to be) specifies no procedures or time limits for the
amicable settlement, accordingly the meeting held between H and F to resolve the
matter which did not achieve a success might be enough to proof H attempt to settle
the issue amicably.

The third part of the argument of F regarding the deficiency of the notice shall be
decided by the statue courts as the Model law have not defined any requirement for
the notice, in England 2 generally courts accepts notices which refers the dispute to
arbitration and propose an arbitrator and request the other party to appoint or select
his arbitrator, which is satisfied in the above notice.
Accordingly the argument of F is not valid as the notice has satisfied the
requirement of the arbitration clause (if considered to be incorporated in the
agreement of H and F, which is highly not going to be) and the general rules of the
arbitration notices.
(303 words)

1
Tygg Hansa v Equitas (1998) 2 Lioyd’s rep 439.
2
Seabridge Shipping v orssleff and Baltic Universal Alliance Versicherungs AG v Fortuane Co lts
(1999)1 Licyd’s rep 497.

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 Candidate Number: 110656

3. a) Giving your reasons state whether you consider Cutting was

entitled to request the SAIAC to appoint a second arbitrator.
Since the arbitration agreement (claimed by H to be incorporated in the
agreement between H and F) specifies that in the event of a party failure to
appoint its arbitrator within 3 weeks of a notice by the other party then SAIAC
to appoint the second arbitrator, and as the notice was issued by H on
December 1st and the three weeks had elapsed, then on December 29 th , H is
entitled to request SAIAC to appoint a second arbitrator.
Accordingly Cutting was entitled to request SAIAC to appoint a second
arbitrator.
(92 words)

b) Was the SAIAC correct in responding to the request of Cutting?

As the matter of arbitrator’s jurisdiction is out of the authorities and powers of
the arbitral institute “SAIAC” whose role in this case was only to appoint the
arbitrator, while the rules of the arbitration is UNCITRAL rules and the parties
does not agree to SAIAC as an institute to rule the arbitration proceedings.
And as the matter of jurisdiction shall be decided by the arbitrators under the
concept of “competence-competence” or by the court pursuant to article 16(3) of
the UNCITRAL model law, thus SAIAC action to respond to H was correct by
appointing an arbitrator.
(97 words)

c) Consider whether, in general, a Respondent would be wise to

allow a reference to proceed without participating
The respondent shall raise the issue of jurisdiction in the early stage of the
arbitration prior to the submission of the statement of defence as specified by the
UNCITRAL model law article 16 (2), proceeding with the statement of defence
without raising the issue of jurisdiction will waive his rights to argue for the
same later.
However the Respondent might proceed with participating in all the proceedings
but always keeps his right for the jurisdiction of arbitrators as primary pleading

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 Candidate Number: 110656
until a decision is taken by the statue court or by the arbitral tribunal, but a
secondary pleadings might be added to show the defence and the facts as a
precautious action in case that the tribunal decided to delay the decision of their
own jurisdiction till the final award so the respondent would at least expressed
his pleadings and defence in details to support the tribunal to understand clearly
the case and issue their award accordingly.
(157 words)

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