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Arbitration Award Writing - Lecture Notes - Combined
Arbitration Award Writing - Lecture Notes - Combined
Arbitration Award Writing - Lecture Notes - Combined
Topic Preview
This Topic effectively continues the Arbitration Practice &
Procedure Course into the final act of an arbitral tribunal – the
writing of an enforceable, reasoned domestic Final Award.
Topic Content
1. Introduction
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This is where it is useful to allocate all the evidence and the submissions when they are received under whatever
issue(s) to which it may refer in order to compare the parties’ contentions.
3. Summarising Evidence
When summarising evidence, it helps a reader if words and phrases
are varied, always keeping to the basic requirements to be clear
and complete. Try to avoid a list of
Mr A said.....” but “Ms B stated.....” while “Miss Y asserted…”
and “the expert witness Dr Z noted &c.
Arbitral Awards are not meant to be prize essays but it helps to vary
language in them, such as :
Mrs T “corroborated that”, “gave evidence that”, “recalled”,
“recounted how”, “related”, “testified that”, “told me” ;
and, in referring to evidence obtained from cross-examinations :
Dr X “accepted”, “admitted”, “conceded”, “countered that”,
“explained how,” “maintained”, “replied”, “reported”,
“responded” ;
and, when summarising submissions, vary usage as follows :
“agreed”, “argued”, “conceded”, “considered”, “contended”,
“maintained”, “replied”, “submitted”, “suggested”.
Once again, an Arbitrator is warned against using old and/or
legalistic words such as “attest”, “aver” : he will be deemed to
appreciate their full, legalistic meaning.1
1
If you are interested in this subject, see A Dictionary of Modern Legal Usage by Bryan A Garner.
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© 2017 WB McLaughlin, Training & Education Officer, SICA®-FICA® and Faruq Khan sica-fica.org
7. Calculations
In the Findings on each of the issues in the arbitration, an Arbitrator
will have decided :
1. What were the relevant duties imposed upon each party ;
i) Whether there has been a breach of any of these duties ;
a. If so, whether the other party thereby suffered any
physical, mental or financial loss ;
If so, what are the damages to compensate for that
loss.
2. The calculation of these damages should be set out, showing ;
i) What figures are “actual” figures, coming from the terms of
the contract, or from receipts for repairs or for extra
expenses caused &c ;
ii) What figures are assessments made by the Arbitrator, such
as the percentage loss of use, or the compensation for loss
of enjoyment ;
iii) From what date, or dates, the damages run.
When awarding damages, An Arbitrator should state that they are subject
to tax BUT not quantify taxes such as VAT/Sales tax except when it may
apply to his own fees.
VAT jurisdiction lies entirely with ‘the VATman’ who permits each person registered for VAT to make an initial
estimate of charges, subject to revision, but no-one else. An Arbitrator has NO jurisdiction regarding a party’s
VAT.
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Explicating (from explicare to unfold) means here ‘describing comprehensively, understanding, explaining and
developing’ a proposition. It is not enough to be sympathetic and generous to the proposer but to have a duty to
be such (‘duty of generosity’). [Nature hates a vacuum so anything is preferable to that and, therefore, that
particular ‘anything’ has a presumption to validity until it may be proved otherwise.]
This point refers to argument ; it does not refer, for example, to a claim which is required to be substantiated to
a sufficient degree before it requires a cogent [that is, forcefully convincing] defence if it is to fail. An arbitrator
should always receive submissions ‘sympathetically’, allowing them to stand as valid unless and until superior
counter-submissions defeat them.
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There are many ways can people fail to make good judgements, including
being affected by :
self-interest : even professionals who believe they are making
objective recommendations can be unconsciously influenced by self-
interest ;
‘groupthink’ : members of a tribunal are prone to tend to minimise
conflict by converging on a decision that seems to be gaining
support among them ;
confirmation bias : people don’t generally look hard enough at
possible alternatives but only for evidence to support their main
hypothesis ;
anchoring bias : where people end up often depends on where
they started. For example, the outcome of a negotiation will more
often than not be influenced by the level of the first offer. People
always think they can disregard such ‘anchors’ but they can’t unless
they are aware of this ;
halo effect : we tend to see stories as simpler than they are and
assume that what works in one context will work in another ; and
loss aversion : when people contemplate risky decisions, their
wish to avoid losses is stronger than their desire for gains so they
play safe. [This is a classic ‘fact’ in negotiation theory.]
Since we can’t eliminate such biases from their thinking, arbitrators
need to implement quality control processes to counter them and
improve their decision-making. They need to stand back from the
process of coming up with recommendations and consider them
systematically and the best ways to do this are in the methodological
approaches recommended in this Course using the various checklists
provided as a matter of discipline.
ADDENDA
Donaldson LJ in Bremer Handelsgesellschaft mbH v Westzucker GmbH (No
2) [1981] 2 Lloyd's Rep 130, as approved by the Privy Council in Bay
Hotel and Resort Ltd v Cavalier Construction Co Ltd [2001] UKPC 34 :
"All that is necessary is that the arbitrators should set out what, on
their view of the evidence, did or did not happen and should explain
succinctly why, in the light of what happened, they have reached
their decision and what that decision is. That is all that is meant by
a 'reasoned award'."
And mimicking the procedures and complexities of court litigation "…can
be seen perhaps more as a failing of procedure and approach rather than
as reflecting any essential character of the arbitral process…".
There is no requirement that an arbitrator's reasons should always be of a
judicial standard ; the standard of reasons required will depend upon the
particular circumstances of the case.
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Here is a method for deciding on a particular issue that perhaps doesn’t respond well
to those previous noted. It starts with an initial (and only temporary) concept of your
opinion on it :
START
What is your initial
(that is, your commercial common sense) opinion ?
TEST 1a TEST 1b
Weigh this against the evidence from the Weigh this against the evidence from the
Claimant Respondent
TEST 2
Do all the facts
Bear out ?
TEST 3a TEST 3b
How & Why do I decide conflicting evidence ? How & Why do I decide between
witnesses ?
TEST 4
How does the oral evidence compare against the
documents ?
DECISION
With reasons
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Further Reading
Topic Activities
Attached are a number of papers which form the first part of an Award
Writing exercise which you should complete at the end of the next Topic.
As in the Award Writing examination, these papers are sent to you ‘with a
view to your being able to grasp the nature of the case in advance of the
examination proper and to do any research you feel necessary’.
You generally receive this first ‘bundle’ of papers –STAGE 1– some days
before the examination date and you should make use of those days
leading up to the examination day to consider the content of any recitals
you will include in your award.
In the examination you are permitted to use your recitals prepared in
advance (typed, if you wish) and include them with your submission
without writing them out again.
This is recommended; you will probably do it better in advance
since you are under the pressure of time (4 hours) to complete
your award on the examination day.
Even if you have to change something in your recitals because of further
information in the second bundle (which you are given at the start of the
examination) this will be easier and faster than writing it all out then.
The exercise in having written out your recitals will also have acquainted
you intimately with the case and prepared you for the second bundle.
You should also begin to identify and list the issues in dispute from
this first bundle.
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This Activity requires that you WRITE OUT YOUR RECITALS based solely
on this bundle AND ATTACH ANY OTHER PRE-PREPARED PARTS OF YOUR
FINAL AWARD such as : introductory phrases for the various sections in
your award ; alternatives for awarding costs (both of the reference and of
the award) ; your signature, its witnessing, date, location. Note that you
are writing this award on a particular date which you should take as
23 August 2004.
………………………
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27 February 2004
Mr B Olton
Engineer
Albion Street
SOUTHAMPTON
Dear Mr Olton
We are writing to you jointly to request that you accept appointment as sole arbitrator
in a dispute between our clients.
So that you can satisfy yourself that the matter is within your competence, we set out
shortly below the nature of the dispute, and enclose an extract of the contract.
The parties to the dispute are: Culture plc and Soton Aircon plc.
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This agreement is made the 14th day of January 2003 between Culture plc (the
Purchaser) and Soton Aircon plc (the Installer) whereby:
1. The Installer agrees to supply and install for the Purchaser the following
equipment at the Solent Institute:
(i) Hemivarm Solar Panels to form a new roof to the Institute Building;
and
(ii) Sanasistema climate system (Hemivarm Compatible version).
2. The price agreed is £600,000 to be paid in Sterling to the Installer’s London
bank account in instalments to be agreed.
3. The Installer acknowledges that time is of the essence and agrees that the
installation will be completed and in working order by 28 June 2003.
…
10. The General Conditions of Contract shall be the Standard Conditions of the
European Environmental Control Manufacturers’ Association (EECMA).
11. Any arbitration proceedings pursuant to clause 37 of the General Conditions
shall be conducted in Southampton, England and be in the English language.
12. This Agreement shall be governed by English law.
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14 March 2004
To:
Parker and Knowles
and
Adams, Smith & Molony
Dear Sirs
Now that you have agreed my fees, I accept the appointment as arbitrator. As we
have also agreed, there will be a hearing to deal with procedural matters at my firm's
offices in Southampton on 28 March 2004.
Yours faithfully
B Olton
Arbitrator
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AND
BETWEEN:
Culture plc
Claimant
and
B Olton
Arbitrator
28 March 2004
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AND
BETWEEN:
Culture plc
Claimant
and
Soton Aircon plc
Respondent
_____________________
STATEMENT OF CLAIM
_____________________
1. The names and addresses of the parties are as follows: [et cetera].
2. The Claimant is the owner of the Solent Institute, a purpose-built Institute of
Culture on the Isle of Wight and hereinafter called “the Institute”. It is the
brainchild of Ken Ligen, the world-famous violinist.
3. The Respondent is the English subsidiary of the long established German
company, ImmerTrost GmbH, which specialises in the supply and installation
of hot air and air conditioning systems throughout Europe.
4. In late 2002 the Claimant, following discussions with the Respondent’s
salesman, resolved to have the roof of the Institute completely replaced with
interlocking solar panels connected to an environment controlling system,
hereinafter called the “Climactic System”.
5. Thereafter, the Claimant entered into a contract dated 13th January 2003 with
the Organisations Committee of the Mozart Festival under which the latter
event in 2003 would be held at the Institute in two parts, 21 July 2003 to 2
August 2003, and 15 to 21 September 2003.
6. The Respondent was duly advised of this information. It was further advised
that:
(a) the Claimant expected to make a profit of £230,000 out of the Mozart
Festival; and
(b) it was this profit that would enable the Claimant to fund the new
Climactic System.
7. By an agreement made in writing on 14th January 2003, the Respondent
agreed to supply and install at the Institute:
(i) Hemivarm Solar Panels so as to form a new roof; and
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© 2017 WB McLaughlin, Training & Education Officer, SICA®-FICA® and Faruq Khan sica-fica.org
AND
BETWEEN:
Culture plc
Claimant
and
Soton Aircon plc
Respondent
_____________________________________________
STATEMENT OF REPLY AND COUNTERCLAIM
_____________________________________________
© 2017 WB McLaughlin, Training & Education Officer, SICA®-FICA® and Faruq Khan sica-fica.org
Darina Sweetman
Barrister-at-law
Instructed by Adams, Smith & Molony
25 May 2004
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Topic Preview
This Topic launches ‘How to Write an Award’, including how to
make a decision, with reference to a domestic Award and
sections on :
– Reasoning in an Award
– Deciding in an Award
– Checklists and example Headings
– A Diagram showing how to analyse a claim
THE ACTIVITY CONTINUES THE EXAMINATION-TYPE SITUATION
IN TOPIC 1 AND REQUIRES STUDENTS TO WRITE THE MAIN
PART OF AN AWARD ON IT.
STUDENTS COMPLETING THIS ACTIVITY WILL BE SENT A
‘MODEL ANSWER’ FOR COMPARISON & GENERAL
GUIDANCE.
Topic Content
1. Reasons in an Award
Submissions
Evidence & Agreed facts
Issues in dispute
Findings of fact & Holding of opinions on law
Decisions
S.52(4) (of the English Act) requires that an Award ‘shall contain the
reasons for the Award unless it is an agreed Award or the parties have
agreed to dispense with reasons’. Following the 1979 Act, when reasons
became the new norm rather than the unreasoned (“non-speaking”)
Awards that avoided as far as possible the rigours of the ‘error on the face
of an Award’, there was much discussion as to what form reasons should
or should not take. A comprehensive paper by Lord Bingham, “Differences
between a Judgment and a Reasoned Award” provided a useful guide :
‘It is not incumbent on an arbitrator in stating reasons (and again,
probably not desirable) to give an assessment of the witnesses and a
detailed statement of his grounds for preferring the evidence of A to B or
the expert evidence of C to that of D. These are not matters subject to the
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review of the Court, and so reasons of this kind are not called for under
the Act. The arbitrator may say as much or as little as he thinks necessary
for the enlightenment of the parties. To that end it is sometimes helpful to
state that the evidence of a particular witness or witnesses was not
accepted. What documents the arbitrators choose to annexe for the
purpose (of giving reasons under the 1979 Act) is a matter for them.’
‘An arbitrator is not called upon to make any detailed analysis of the legal
principles canvassed before him or to review the legal authorities cited. It
is enough if he briefly summarises the arguments put to him and
expresses his legal conclusion in a way that makes it intelligible.’
‘Referring to Universal Petroleum v Handel Transportgesellschaft [1987] 2
All ER 737, an arbitrator’s primary findings of fact are final and intended to
be immune from review by the Courts in the absence of misconduct, such
as breaches of natural justice.’
It is obvious that an Arbitrator must find the facts in his Award. For confirmation and guidance, note that in
Heffer and Another -v- Green (a firm) [The Times Law Report 28 December 1998] the Court of Appeal
ordered a new trial, setting aside a High Court judgment that omitted 'a coherent narrative of events based on
factual findings', did not clearly identify and list the issues in the case, and did not test the oral evidence against
contemporaneous documents.
This section of an Award should note briefly the evidence given and the
submissions made ; these last may be as short as listing the parties’
representatives, the witnesses of fact and opinion they called, and that
there were opening and closing statements.
Next, if such are note-worthy, any agreed facts should be listed.
Then, the issues in dispute should be noted, setting the scene for the
consideration of each in turn.
This consideration is of the relevant evidence and submissions, again
briefly noted, leading to findings of fact followed by any holdings of law
applicable to those facts, leading to the decision.
2. Deciding in an Award
The previous Topic discussed in considerable detail how to approach the
task of making a decision. Much of that may be perplexing so a more
practical, every-day approach is introduced here in this all-important
context of making an Award.
Well-argued ways of making a decision tend to be methods that
concentrate on small elements, so that the big picture remains outside the
immediate consideration while the minutiae are arranged to arrive,
eventually, at an incontrovertible overall decision. They are a type of
mental ‘pointilism’.
Edward de Bono has written many books on learning and how the mind
works ; his methods have become classics in his own lifetime. One such is
what he calls ‘flowscape’ where mini-elements may be found to be linked
in a meaningful way, often providing insights into our unique individual
understanding of a particular matter. This sometimes leads to deeper,
more general insights.
The technique is simple :
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look at each word or phrase and choose which other word or phrase
in your list follows it most closely and note the latter’s ‘letter’ after
the former word or phrase;
once each word or phrase has a pre- and post- ‘letter’, arrange them
in sequence with arrows leading from the pre-’letters’ to their
respective post-’letters’.
The resultant ‘flowscape’ will show you how your mind has considered the
subject matter, usually with some interesting information about yourself !
Read them for a third and final time right through, if you can, as a
story, if necessary re-arranged to allow it to flow.
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17. One further point might help both in your preparation and in the final
writing of your Award. Use the ‘minimalist’ technique described
above : start going through the documents (and your notes of the
hearing) by reading each one line by line and as you do so note any
reasonable deductions you can make even at that stage of reading ;
you will be surprised at how much you can fairly and reasonably
deduce like, who wrote the letter, to whom, when, on behalf of
whom, and what was acknowledged, admitted, alleged or asked for
or denied.
18. When you have gone through the whole bundle, go back and correct
any misdeductions in the light of the whole and then read it all
through as a story. By then, you should have a good idea of both
‘the forest and its individual trees’ and this will give you confidence to
deal with it all competently and efficiently.
19. These points refer equally to any stage. In advance of a first
procedural (‘preliminary’) meeting (that is, if you have been provided
with documentation beforehand) ; at any interlocutory stage,
especially those relating to an interim Award ; and, of course, to the
final Award, Awards on taxation of costs, applications for Stated
Case, &c.
20. Finally, don’t be afraid of your ‘gut feeling’, that which you have at
the end of an arbitration (or a stage if it goes to an interim Award)
before you begin to consider and write your Award. It is one part of
your decision-making process, the other being the painstaking
deliberation through arranging the evidence and filtering from your
findings of fact to your decision(s). If you find these two parts
conflict, it is likely that the latter will clearly prevail ; at any rate, you
have but ‘two alternatives’ from which to choose.
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3. Analysis of a Claim
CLAIM
To reach a legally
'correct' decision
the following
Analysis can be a Are claim
Re-submit
details
useful tool: clear?
claim
yes
Is claim no
arbitrable?
yes
Have I the no
jurisdiction?
yes
Is there a
yes no
Contract?
Is claim no no
Is there a
in the
Legal Duty?
Contract?
yes yes
no
Was there no
Was there
a failure of
a Breach?
this Duty?
yes yes
NOTES:
Did no
Analysis is the logical examination and damage
evaluation of the facts and the evidence follow?
to determine whether liability exists and,
if so, what is the proper remedy.
The basic questions are: yes
- What is being claimed?
- Why is it being claimed?
- What is the defence? no
As a natural
- Has the claimant proved his case? consequence?
Does the claim arise in contract or out
of a legal duty/in tort?
If the claim is in contract (tort) has there
been a breach (tortious act or
yes
omission)?
- If so: has damage occurred
because of that breach (act or
omission)? CLAIM CLAIM
- If so: was the damage a natural Succeeds Fails
consequence?
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DO THE RECITALS :
Identify the contract, what it was for, its date and the parties to it ?
Identify the arbitration clause or agreement ?
(Identify the substantive and procedural laws ?)
Show that a dispute (or difference, &c) arose and was validly referred
to arbitration ?
Detail your appointment and acceptance ?
State the seat of the arbitration (s.3) ?
Detail the proceedings, including interlocutory matters ?
FINAL CHECKLIST :
5. Typical Headings
It is fairly standard to head your Award with :
IN THE MATTER OF THE ARBITRATION ACT 1996
(reference to the relevant procedural law; maybe to Rules also if applying)
AND
IN THE MATTER OF AN ARBITRATION
BETWEEN
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You then may introduce your recitals which, like the rest of your Award,
should be conveniently split into paragraphs, numbered sequentially (for
ease of cross-referencing) and not too long, if possible.
[Lawyers tend to introduce this section (or sometimes each recital
paragraph) with the word :
WHEREAS
though this isn’t necessary.]
Once you have gone through the recitals, probably noting as the final item
that there was a hearing on such-and-such a day when so-and-so
represented this party who called which witnesses &c, it is useful to
identify that you are now proceeding to consider the evidence and a
phrase IN CAPITALS stands out for the convenience of your reader :
41. HAVING TAKEN CAREFUL CONSIDERATION OF THE
(submissions/pleadings &c) OF THE PARTIES, THE EVIDENCE
ADDUCED, BOTH ORAL AND DOCUMENTARY, AND THE ADDRESSES
AND CLOSING SUBMISSIONS OF THE ADVOCATES FOR THE
PARTIES
42. I NOW FIND AS FOLLOWS :
which you should number and adapt as appropriate to your Award.
Next it is useful to identify the ‘operative’ part of your Award, where you
actually ‘award’ :
73. ACCORDINGLY I AWARD AND DIRECT (if final add : IN FULL AND
FINAL SETTLEMENT OF ALL ISSUES IN DISPUTE BEFORE ME) THAT
74. (the losing party’s name OR) The Claimant/Respondent shall pay
(the winning party’s name OR) to the Respondent/Claimant the sum
of (your decided figure, stating whether with or exclusive of VAT)
(on or before [a specific date] OR) within (seven/fourteen/&c) days
from the date of this Award.
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You have now disposed of the ‘substantive issues’, the actual dispute
between the parties, but there is more to be done. Costs are next and, if
they do not ‘follow the event’ you must add your reasons why. You have
both the costs of the parties :
82. (the losing party’s name OR) The Claimant/Respondent shall pay
(the winning party’s name OR) the Respondent’s/Claimant’s costs
(or a percentage, if applicable) in this arbitration (if not a single
costs order, add: with respect to items decided in paragraphs 74
and 76 above) to be determined (add : by me, if applicable) if not
agreed.
83. (the losing party’s name OR) The Claimant/Respondent shall pay
(the winning party’s name OR) the Respondent’s/Claimant’s costs
(or a percentage, if applicable) in this arbitration (if not a single
costs order, add : with respect to (for example) the interlocutory
hearing on jurisdiction) to be determined (add: by me, if applicable)
if not agreed.
&c
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................................................
(Name).................................................
(address) ..............................................…
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Topic Activities
Activity 1 – Suggest maximum 4 hours actual time (as this time is that
available in the set examination period)
If you do look at the following pages before doing the Topic 1 Activity, you
will lose all the advantages you would gain from having done it on its own.
Following are the remainder of the papers which form part of the Award
Writing exercise which you started in Topic 1 and should complete in this
Activity.
You are now ‘in the examination room’ and you are required within a 4-
hour period to write a final reasoned Award on this problem.
With this task complete, you then have to write out your Award, the final
(and, quite possibly, the only) visible result of the Activities of this and the
previous Topic.
……………………
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© 2017 WB McLaughlin, Training & Education Officer, SICA®-FICA® and Faruq Khan sica-fica.org
24. In all I also lost the £230,000 expected profit on the Mozart Festival and the
£115,000 expected on the WDS.
25. I conclude by saying that the whole affair is an absolute disgrace and shows
that you cannot get good workmen anywhere these days.
26. As an afterthought I have been asked to comment on the interest paid by the
Institute on its overdraft. This is normally 3 percent over the London Bank
base rate. I can confirm that the Institute borrows money to fund events
whenever necessary.
Expert evidence
It has been agreed between the parties that to place the panels with their
shorter side parallel to the ground would not have worked. The site was
exposed to strong westerly winds which (inevitably) would penetrate the seals
between the shorter sides of the panels. This would not have happened if the
initial configurations had been adopted.
Exhibit 1
SOTON AIRCON PLC
QUOTATION
13 November 2002
To Supply and Install at the Solent Institute
(i) Hemivarm Solar Panels to form a new roof as required;
(ii) Sanasistema Climactic System (Hemivarm Compatible).
Price: £600,000
Delivery: Approx. 5 months from order.
Payment: 7 days in Sterling to London Bank.
Terms: To be agreed, based on EECMA.
Acceptance: Within 3 months at the above price. Thereafter price will increase.
Exhibit 2
The Solent Institute
17 November 2002
To: Soton Aircon plc
Dear Sirs
Re: Climactic System
I acknowledge receipt of your quotation with thanks.
I now require to obtain the money to proceed with the project. I am bidding for the
Mozart Festival 2003 and I hope to write to you with good news shortly.
Yours faithfully
PS I very much enjoyed the roast venison at that splendid lunch in Ryde.
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Exhibit 3
Calculation of quotation
First part Second part
Food 210,000 170,000
Transport 135,000 135,000
Extra staff 100,000 110,000
Minor building works 240,000 85,000
Electricity 25,000 25,000
_______ _______
Sub-total 710,000 525,000
Profit 150,000 80,000
_______ _______
860,000 605,000
Total bid £1,465,000
Exhibit 4
The Mozart Festival
Salzburg
22 July 2003
To: Solent Institute
Dear Mr Ligen
You will realise by now the fury at your failure to provide the “efficient and
comfortable” amenities you promised for the 2003 Festival. In fact all you provided
was a building site.
We will not come with our Festival to the Institute for its second part.
Fortunately we have paid you very little and we do not intend to pay you a pfennig
more.
Yours sincerely
(end of Claimant’s Written Submission &c)
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THE HEARING
(extract from Arbitrator’s notes, 17-19 July 2004)
Respondent’s Opening
as submission
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decide what documentation it deeded to prove its case. Decision given at 13h00, 18
July 2004. ]
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Topic Preview
This Topic follows the release of the ‘Model’ Award on the
scenario in Topics 1 & 2 Activities and provides a variety of
styles and formats in which an Award can be validly presented
and includes :
– Why are there different styles ?
– Choosing an initial template
– The ‘Minibore’ Award
– Other awards
THE ACTIVITY ENCOURAGES STUDENTS TO THINK ABOUT THE
STYLE AND FORMAT THEY MIGHT PREFER WITH SOME
REFERENCE TO REQUIREMENTS OF VARIOUS JURISDICTIONS.
STUDENTS ARE DIRECTED TO A NUMBER OF AWARDS
AVAILABLE TO READ AND THINK ABOUT WHEN
CHOOSING THEIR INDIVIDUAL STYLE AND FORMAT.
Topic Content
Apart from this personal individuality, there are other reasons why the
world of arbitration has a range of differences in the format and style
of arbitral Awards. The principal reason is related to the basic
differences between the Civil and Common legal systems, both of
which initially concerned domestic Awards almost entirely so, while
the former (Civil law) arbitrations were firmly part of their legal
system, in the Common law arbitration was effectively a matter
solely between merchants with no reference to law.
Civil law Awards were therefore expressed in terms that reflected court
requirements while the attitude in Common law Awards was based
purely on fairness between the parties and commercial
commonsense.
years as not only private matters entered into the international arena but
also such specialist régimes as investor-state disputes.
There are some further reasons why the forms of Awards vary, one fairly
obvious one being that in many jurisdictions there may be no oral hearing,
just documents presented by the parties, and this will influence the form
of the subsequent Award.
However, all this might be confusing unless you consider the main
elements from which to choose :
– Will you split your Award into sections with suitable headings to the
or just present it as chronologically as possible as one story ?
– Will you write in the first person (“I”, “me”, “my” &c) or in the third
person (“the Arbitrator” or “the Tribunal” &c) ?
– Will you use the titles “Claimant” and “Respondent” or use the
parties’ names (whether in full or as abbreviations) ... or will you
identify each party when considering each issue as the role it is
performing (claimant or respondent) at the time ?
These are just a few general basic matters for you to consider as you sift
through the examples provided to find a format you prefer. You should
then apply your preferences from the above list and you will be starting to
develop your personal style.
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This won’t come easily – it is a matter of practice and you will just about
make a start if you go through all the activities in this short Course ; the
rest will be up to you. Like every apprentice before you, practice will be
necessary for improvement and, hopefully, competence in which you will
eventually will be confident.
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Birmingham, Alabama
U.S.A.
The Respondent: Representative and address for service:
United Arab Pipelines, S.A. Mr. Taher Khalil
49 Pas de Calais Shalakany Advocates
Beirut, Lebanon Rue Diderot
Beirut, Lebanon
4. On 1 May 2002, the Parties entered into a contract, evidenced by an
exchange of facsimiles, pursuant to which Minibore agreed to provide certain pipe-
jacking services later that same month as a subcontractor to UAP in connection with a
contract UAP had been awarded by Unaligned Petroleum to lay pipelines from Minsk,
Belarus to Vilnius, Lithuania.
The Proceedings
5. Although the contract itself contains no arbitration clause, I received
identical letters, both dated 1April 2003, from the Parties’ representatives stating that
a dispute had arisen between the Parties and inviting me to serve as arbitrator.
6. The letters provided that the Parties had reached agreement that:
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(c) gave each party leave to call two witnesses of fact and one
expert to give evidence orally at a Hearing; and
13. Minibore timely served its Reply to the Defence and Counterclaim on
23 September 2003. Minibore raised an objection to my jurisdiction to hear the
allegations of tort asserted by UAP. The objection was timely made in accordance
with Art. 21.3 of the UNCITRAL Rules.
REASONS:
Facts
17. On 1 May 2002, the Managing Director of Minibore, Mr. Stephens,
met with Mr. Hikam, the Contracts Manager for UAP, on site for the purpose of
obtaining a proposal from Minibore to bore a length of mini tunnel under the railway
line near Molodechno. Both Mr. Stephens and Mr. Hikam gave evidence at the
Hearing.
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18. At that meeting, Mr. Hikam and Mr. Stephens discussed the nature and
timing of the work to be performed. Specifically, Mr. Hikam explained that the
pipeline was to be 800mm in diameter, 240m in length, and that the work was to be
carried out during the period 13 to 24 May 2002, as the Belarus railway authority had
indicated that they would only grant a temporary speed restriction (“TSR”) on the
track for that period.
21. Although Mr. Stephens was given discretion as to the location and size
of the trench, the witnesses were in agreement that Mr. Stephens had asked to have a
trench dug on the far side of the track and that Mr. Hikam did not give him permission
because UAP had not been granted access to that site.
22. Mr. Stephens gave evidence that the visual inspection revealed cobbles
of a maximum size of 150mm at the level of the proposed tunnel. He testified that,
based on those results, he felt confident in recommending the Nipponbore machine.
He conceded on cross-examination that there were boulders larger than that size above
the level of the proposed tunnel.
23. Mr. Hakim testified that he had no experience in pipe-jacking and that
he relied on Minibore’s expertise to tell him what was possible. He gave evidence
that he understood that Mr. Stephens had told him that the Nipponbore machine could
deal with any of the material in the trench even in excess of 250mm rather than that it
would be suitable if the material shown in the trial trench at the level of the proposed
tunnel continued through the length of the tunnel.
25. Later that day, Claimant Minibore sent UAP a facsimile that stated:
We offer to carry out the work discussed on site earlier today for the
sum of LTL1,000,000. This work will be carried out by a Nipponbore machine. If the
machine is unable to progress due to meeting an obstruction then we require to be
paid in full for the work that has been completed together with the cost of any
additional resources required to complete the contract.
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30. Each of the Parties also offered the testimony of an expert witness at
the Hearing. The experts were in agreement that the Nipponbore could not proceed
with the tunnel given the size of the obstructions and that the Volkshaft machine
subsequently used would have no such difficulty.
31. With respect to quantum, Minibore’s expert, Mr. Mason, who was an
employee of the Claimant, took the position that Claimant was entitled to be paid in
full for the work that has been completed including the work done with both the
Nipponbore machine and the Volkshaft machine. He arrived at a figure of
LTL2,200,000 by taking Minibore’s costs and adding a profit component. Where
material came from stock he used current prices.
32. UAP’s expert witness, Mr. Brind, rendered the opinion that Minibore
should have constructed the thrust shaft in a different manner using sheet piling and, if
it had done so, this would have resulted in a savings of LTL10,000 on the original pit
and LTL30,000 overall. On this point, Mr. Mason disagreed that it was appropriate to
use sheet piling and testified that the method used by Minibore was the method that it
universally used.
33. Mr. Brind rendered the further opinion that, in the event that
Minibore’s interpretation of the contract was accepted, Minibore’s damages
calculations had to be reduced to eliminate the profit component and in the case where
material from stock had been used the book value of the materials should have been
used rather than current prices. The figure arrived at by Mr. Brind was TL1,910,000.
34. UAP also introduced into evidence a quotation received from another
contractor to do the work using a Volkshaft machine for LTL1,500,000. Mr. Stephens
was shown this quotation and remarked that it “looks about right.” I note that
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although this document was not timely submitted by Respondent with its Statement of
Defence, counsel for Minibore did not object and any objection is waived. See
UNCITRAL Rule Art. 30.
35. Minibore claims that it is entitled under the contract, based on the
language of its facsimile, to LTL600,000 for work up to the date of meeting the
obstruction and LTL1,600,000 for the provision of additional resources, i.e. the
Volkshaft machine. As LTL200,000 has already been paid, Minibore seeks a total of
LTL2,000,000 plus interest, compounded quarterly, and costs.
39. It is undisputed that the contract entered into between the Parties
contains no agreement to arbitrate. The Parties’ Submissions on the question of
jurisdiction agree that, consequently, my jurisdiction is founded on the letters of 1
April 2003. The plain language of the letters of 1 April 2003 (quoted above) refers to
“Claimant’s alleged right to reimbursement of certain costs” and Respondent’s
counterclaim “for liquidated damages.”
40. The claims of tortious conduct alleged by UAP are closely connected
to the contract claims as UAP alleges that Minibore owed a duty of reasonable care to
UAP to accurately represent the capabilities of the Nipponbore machine to perform
the work specified in the contract.
41. The language used by the Parties in the letters of 1 April 2003 does not
expressly refer to the legal nature of the claims asserted by the Parties. I find that
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especially significant given the fact that the letters were written after the dispute had
already arisen and been pending for almost a year i.e. at a time when the Parties knew
or should have known the nature of their dispute. If the Parties had intended to limit
the arbitration to claims sounding in contract they had the ability to do so.
The Merits
43. I turn first to UAP’s claim that Minibore breached its duty of care to
accurately represent the capabilities of the Nipponbore machine. I heard argument
from counsel for the Parties as to whether such a term could be implied into the
contract as a matter of law and whether Minibore owed such a duty of care. However,
I need not reach these legal issues unless UAP has established by the preponderance
of the evidence that a misrepresentation was made.
44. Mr. Hakim admitted that he received a brochure which contained the
technical specifications for the Nipponbore machine. Although he testified that he did
not study the brochure, I find that UAP was on notice of the limitations of the
Nipponbore.
45. Moreover, Mr. Hakim was aware that Mr. Stephens had requested that
a trench be dug on the other side of the railroad track for which permission was not
granted. He therefore knew that the visual inspection that was done by Nipponbore
was not as complete as Nipponbore would have liked. He also knew that only a small
length of trench had been dug compared to the overall length of the project.
46. Most importantly, he received the facsimile offer from Minibore which
expressly made provision for the possibility that the machine might be “unable to
progress due to meeting an obstruction.”
47. The evidence of Mr. Stephens and Mr. Hakim was conflicting as to
whether Mr. Stephens stated to Mr. Hakim that the Nipponbore machine was capable
of performing the work specified in the contract or whether he merely indicated that
the Nipponbore would be suitable if the material shown in the trial trench at the level
of the proposed tunnel continued through the length of the tunnel.
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50. As discussed above, the evidence established that the Parties were
aware that there was a risk that the Nipponbore machine would meet an obstruction
and would not be able to proceed. Knowing these risks, Mr. Stephens made an offer
to UAP which attempted to shift that risk to UAP.
51. I find that the evidence establishes that UAP did not accept Minibore’s
offer. Rather, the counter-offer sent by UAP was accepted by conduct. In fact,
Claimant conceded this point both in its Statement of Claim and in its counsel’s
opening statement. UAP’s counter-offer quite clearly states that it will only reimburse
Minibore “a fair and reasonable payment for the work under this agreement.” I hold
that this is the standard to apply to Minibore’s claim for reimbursement of costs.
52. I hold that in evaluating what a “fair and reasonable payment” is that
the proper analysis is to determine the fair and reasonable charge for performing the
contract work with a Volkshaft machine. It is not appropriate for UAP to bear the cost
of the work performed with the Nipponbore machine as (i) it received no benefit from
the aborted tunnel; (ii) it did not accept Minibore’s proposal that the risk be borne by
UAP; and (iii) the experts were in agreement that the work could have been
accomplished with the Volkshaft if it had been used from the outset. Although, the
cost of performing the work with the Volkshaft is greater than the quoted contract
price, the experts were in agreement that, given the conditions of the terrain, the
Nipponbore could never have completed the project.
53. Mr. Mason, on behalf of Minibore, testified that the appropriate charge
for the work performed by Minibore with the Volkshaft machine was LTL1,600,000.
Although issues were raised as to Mr. Mason’s impartiality, as he is an employee of
the Claimant, these figures were accepted by Mr. Brind, UAP’s expert, with only
several proposed revisions.
54. First, Mr. Brind opined that the figure should be reduced to eliminate
the profit component. Art. 33 of the UNCITRAL Rules requires that in all cases the
arbitral tribunal shall take into account the usages of the trade applicable to the
transaction. I find that it is customary in the construction industry that the contractor’s
fees include a profit component. I hold that Minibore is entitled to its profit
component.
55. Second, Mr. Brind opined that book value should have been used for
the materials in stock and cited to examples where materials had been written down to
zero. I hold that it is not “fair and reasonable” that UAP receive materials without
charge because they happen to have been in Minibore’s stock. I accept Mr. Mason’s
method of looking to current prices.
56. Finally, Mr. Brind opined that a different method of construction for
the thrust shaft should have been used and that this would have reduced the price of
the work. Mr. Mason testified that the method of construction used was that typically
used by Minibore in its work and Mr. Brind conceded that he had no practical
experience that led him to assert that sheet piling was a more appropriate method.
Accordingly, I hold that this deduction is not appropriate.
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57. I hold that the LTL1,600,000 claimed by Minibore with respect to the
work completed with the Volkshaft machine is “fair and reasonable payment” for the
work done. I note that the reasonableness of this figure is further supported by the
fact that it is within 10% of the quotation of LTL1,500,000 given to UAP by a
competing contractor for performing the work with the Volkshaft.
Summary
59. I find that the balance due to Minibore under the contract is
LTL1,400,000 which represents LTL1,600,000 for the fair and reasonable payment
for the work done less the LTL200,000 paid to date. I find that UAP is due nothing on
its counterclaim.
Interest
Costs
61. The UNCITRAL Rules provide in Art. 38 that the successful party is
entitled to its reasonable costs. In this case, neither party was completely successful.
Minibore prevailed on its claim for reimbursement but to a lesser extent than it had
claimed. Minibore also prevailed with respect to UAP’s counterclaim. UAP
prevailed on the jurisdictional issue. In these circumstances, and taking note of the
costs wasted in the jurisdictional issue, I find that UAP shall pay Minibore 75% of the
reasonable costs in this arbitration.
62. With respect to my own fees and expenses, which I assess and settle at
the sum of 10,000 French francs, for the reasons stated above, I find that Minibore
shall pay 25% of my fees and UAP shall pay 75%.
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DISPOSITIONS:
AND I NOW, for the reasons set out herein, AWARD and DIRECT that:
63. UAP shall pay to Minibore in good cleared funds, before the close of
business in Alabama, U.S.A. on December 10, 2003, the sum of LTL1,400,000, net of
any applicable tax .
64. UAP shall pay simple interest at the rate of 9% on the amount awarded
in 63 above commencing on 2 June 2002 until the date of payment, net of any
applicable tax.
65. Within fourteen days of the date of my award, UAP shall pay 7500
French francs and Minibore shall pay 2500 French francs for my fees and expenses in
this reference to the date of this my award, net of any applicable tax.
66. UAP shall pay Minibore, within fourteen days of the date of my award,
75% of their reasonable costs, the same to be determined by me on application if not
agreed and I reserve the reference for that purpose.
This Award is made and signed in Limassol, Cyprus, the seat of this arbitration, this
30th day of November 2003 by me Alois Berset, as Arbitrator
It is not for you to query the details and decisions made (though you may
find the story interesting ...) but to look at the form and style used. This
is why this particular Award is reproduced here.
(You might find it useful to look at the way the reasoning is set out – as a
guide for you in writing your Awards.)
4. Other awards
If you are still searching for your preferred format and style, take a look at
the other Awards attached to this Topic and listed as :
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Topic Preview
This Topic details further the requirements necessary in a Final
Award so that it is both reasoned satisfactorily and enforceable,
with particular reference to the Award Writing Examination.
Where specific, the materials are presented with reference to
English Arbitration law with sections on :
– Objects of this Course
– The Coursework
– The Examination criteria
Topic Content
1. Introduction
There are three things this Course attempts to explicate :
1. How to Write an Enforceable, Reasoned Final Arbitration Award ;
2. How to Pass the RGU Award Writing examination ; and
3. That you are on your own in an extremely testing environment.
This last is probably the most difficult of the three – no longer can you
depend on, in Lorna Scott Fox’s words, ‘the glib, abstract knowledge
authority uses as armour’ : you have to appreciate that ...
you owe a exceptional duty of care to the parties that appoint you,
directly or indirectly ;
you and you alone must discharge that duty in its fullest, firmest
and fairest extents ; and
you therefore need to be alert, attentive and resourceful throughout
your arbitrations in order not only to be but seen to be confidently
competent in all that you do and need to do.
After this, the first item above is more onerous than the second as you will
be exposed to a number of matters that will probably not arise in the
Examination but which you should know about if you are to become
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2. The Examination
REAL LIFE versus EXAMINATION
A arbitrator's task is artificial in the way that he has to decide what he has
been asked to decide – no more and no less. This applies equally to what
evidence he may refer to – no more and no less. So, if an arbitrator finds
anything outside either of these 'boxes', he must exclude it.
In real life it is quite feasible, in most situations and even in England, for
an arbitrator to ask the parties VERY CAREFULLY 'whether they meant this
or that or whatever' as a point of clarification and, on receipt of what
presentations the parties may make in response, then deal with them.
Of course, this cannot apply in the even more artificial situation of
an examination.
In real life, an English arbitrator is cautioned NOT to suggest any
legislation that the parties (or any of them) has not proposed as being
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applicable to a certain issue ; the reason for this is that an unhappy 'loser'
might well use this as a reason to have the award set aside or nullified ;
citing ‘self-evidence’. This embargo –which doesn’t apply in virtually any
other jurisdiction– is becoming less strict.
However, in the examination scenarios, it is clear that the usual large
volume of documents and recorded oral evidence cannot be presented as
they would be in a real case, and this particularly refers to quotations of
law so, your examiner will be looking for you to mention a few WELL-
KNOWN ('trite') legal points where relevant so that he can judge that you
DO know enough law and are able to apply it fairly and impartially.
Trite law is law that, if you do not know it, you should. It is like
saying that two and two add up to four. For example, there is a
general presumption of innocence in English criminal law. That is
trite law, something that everybody knows or should know.
As to contract, it is often that a term or condition is queried and this
is where, for example, the Unfair Contract Terms Act 1977 may be
relevant ; or, perhaps, a reference to the differentiation between an
invitation to treat and an offer, and its subsequent acceptance
might apply ; and there is often something to do with remoteness :
Hadley v Baxendale [1854], Victoria Laundry (Windsor) v Newman
Industries [1949] &c.
[Outside the UK, the reverse attitude effectively applies : see the ILA
Resolution of August 2008 (in Topic 5) and note the general Civil Law legal
systems’ requirement that an arbitral tribunal is also expected to inquire
after facts as it may consider necessary in order to discharge its duty.]
In English contract law (and in many other jurisdictions, especially those
that follow the Common Law tradition) virtually any term or condition can
be agreed between parties, provided they are not obviously illegal and, in
making his decision, an arbitrator is in this respect no different from a
judge and has to abide with what he finds were the terms and conditions
the parties agreed when they made their contract. Remember those
occasions when judges have had to decide –and have so reported in their
judgments– according to what they considered to be 'one-sided' but not
'unfair' (remember the UCTA) in order to uphold what the contract actually
was.
The 'Models' you are provided with are NOT perfect, at least not to an
examiner's satisfaction. They are NOT meant to be perfect but to show
SOME WAYS of how to do enough to pass and write an acceptable Award.
You should read these / everything critically, with discernment.
Also, in real life most arbitrators do their best to get the parties to present
them with an agreed list of issues at the beginning or end of the oral
hearing(s) or whatever other appropriate stage may apply in the
arbitration. Usually, the parties don't do this, either because they refuse to
agree anything or because they fear that they may leave out something
important so, in the end, it is generally the same both in real life and the
examination ... one way or another you need to identify what the
actual issues are and then decide them so that you can apply those
decisions when you come to considering each and every claim. Your
© 2017 WB McLaughlin, Training & Education Officer, SICA®-FICA® and Faruq Khan sica-fica.org
examiner will be looking for this : a precise list of issues in logical order of
importance.
As to reasoning, for each issue you should list the relevant agreed facts, if
any, then the contentions on the relevant disputed facts which you decide
('find') and to which both you then apply what law is relevant to come to a
decision on that issue as to liability ... followed by the same process
regarding quantum (when, as is usually the case, the claim is monetary)
which then gives you your final decision on that issue and what claims are
relevant to it.
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Reference to taxes
Liability for parties' costs (applicable taxes ?)
Amounts for arbitration costs (applicable taxes ?)
Provision for reimbursement if necessary
Interest on non-compliance
Award dated, at seat
Award signed
Interlocutory matter :
Described
Handling and weighing submissions
Knowledge of law
Application of law to submissions
Conclusions – decisions & costs
Jurisdictional matter :
(ditto)
ISSUE 1 :
Identified issue clearly
Handling and weighing evidence
Knowledge of law
Application of law to facts
Conclusions on liability
Conclusions on quantum / other remedy
© 2017 WB McLaughlin, Training & Education Officer, SICA®-FICA® and Faruq Khan sica-fica.org
Enforceability
Marks are deducted if :
A. award is internally inconsistent
B. award reaches a conclusion that is factually or legally impossible
C. award reaches a conclusion based on arbitrator’s own evidence
or otherwise inadmissible material
D. award fails to deal with all issues or dealing with issues outside
the dispute or remit of the arbitration
E. award is not enforceable for want of essential formalities
F. award is not enforceable for ambiguity
G. award would be set aside for serious irregularities
H. award is unintelligible
I. incorrect (incomplete) identification of a party
10 Marks are deducted if any of these enforceability points are
questionable ; 20 if serious ; FAIL if obvious
Topic Activities
As in the Examination, these papers are sent to you ‘with a view to your
being able to grasp the nature of the case in advance of the examination
proper and to do any research you feel necessary’.
You generally receive this first ‘bundle’ of papers some days before the
examination date and you should make use of those days leading up to
the examination day to consider the content of any recitals you will include
in your award.
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On the examination day you are permitted to have your recitals prepared
in advance (typed, if you wish) and include them with your submission
without writing them out again.
The exercise in having written out your recitals will also have acquainted
you intimately with the case and prepared you for the second bundle.
You should also begin to identify and list the issues in dispute from
this first bundle.
This Activity requires that you WRITE OUT YOUR RECITALS based solely
on this bundle AND ATTACH ANY OTHER PRE-PREPARED PARTS OF YOUR
FINAL AWARD such as: introductory phrases for the various sections in
your award; alternatives for awarding costs (both of the reference and of
the award); your signature, its witnessing, date, location. Note that you
are writing your award on a particular day which you should take as
23 August 2009.
……………………
© 2017 WB McLaughlin, Training & Education Officer, SICA®-FICA® and Faruq Khan sica-fica.org
13 April 2008
Professor Dr Leny Buurman
Faculty of Aeronautics
Erasmus University Rotterdam
P.O. Box 1738
3000 DR Rotterdam
THE NETHERLANDS
SUNDAY AYINDE
© 2017 WB McLaughlin, Training & Education Officer, SICA®-FICA® and Faruq Khan sica-fica.org
Leny Buurman
Aeronautics Consultant
PO Box 23841
Aberdeen
SCOTLAND
27 April 2008
Mr S Ayinde
Ayinde & Co
No. 14 Eruba Road
PO BOX 523
Accra
GHANA
Dear Sunday
Thank you for your letter of 13 April nominating me as arbitrator. I confirm that I
have had no dealings with either of the parties you note in your letter and I attach my
schedule of charges for such work.
If this matter proceeds, and I need to travel to Ghana, I would appreciate if you could
let me know of any particular local requirements in Ghana at present, especially as
regards visas, currency controls and exchange, credit card usage and personal safety. I
am sure many things have changed since I was there in the mid 1980s.
I received your letter yesterday via the University. As I only visit Rotterdam when I
am lecturing, would you please note my address (as above) in future correspondence?
My best regards
Yours sincerely
© 2017 WB McLaughlin, Training & Education Officer, SICA®-FICA® and Faruq Khan sica-fica.org
Dear Professor,
This dispute arose from Article 9 of the undated Agreement executed between the
Parties which made provision for arbitration. We have therefore accordingly notified
Messrs Harmony Plc of your appointment.
We note your letter to our lawyer, Mr Sunday Ayinde, and agree to your schedule of
fees.
Yours faithfully
OLJU H OMAN
Ag. COMPANY SECRETARY/LEGAL ADVISER
For: MANAGING DIRECTOR/CHIEF EXECUTIVE
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Harmony Plc
Aviation Support
1840 West Street
Lossiemouth
Scotland
UK
IN REFERENCE TO:
1) AIRCRAFT ENGINE MODIFICATION/OVERHAUL AGREEMENT OF
JANUARY 15, 2007,
2) POWER OF ATTORNEY ALSO DATED JANUARY 15, 2007
3) MEMORANDUM OF UNDERSTANDING DATED 22 JANUARY, 2008
4) THE AIRWAYS FAX OF 5 FEBRUARY 2008
5) THE COMPANY LETTER OF 5 FEBRUARY 2008
6) RECONCILIATION AND AGREEMENT REACHED ON FEBRUARY 28,
2008
THANK YOU
JOHN TERRAM
PRESIDENT
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Dear Sir
Please refer to your letter of March 12, 2008 wherein you propose to sell our engines
presently in your custody under the above Agreement.
We are now under new management with a new Managing Director and we are
desirous of settling this matter amicably and we invite you to an urgent meeting at our
office in Accra at 2.00 p.m. on March 27, 2008 with a view to resolving this problem.
We note that you cannot dispose of the said engines as that would contravene the
terms of the Agreement.
We repeat that we are very optimistic that this matter will be resolved amicably and
we look forward to hearing from you and seeing you at the proposed meeting.
Yours faithfully,
For: ACCRA AIRWAYS LIMITED
OLJU H OMAN
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NOTICE OF ARBITRATION
BETWEEN
AND
HARMONY PLC … …
RESPONDENT
WHEREAS the said Agreement provides that any such disputes and differences shall
be referred to arbitration.
OLJU H OMAN
COMPANY SECRETARY/LEGAL ADVISER
ACCRA AIRWAYS LIMITED
NOTICE TO:
The President
1840 West Street
Lossiemouth
Scotland
UK
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DOCKET/INVOICE
TO:
HARMONY PLC
1840 West Street
Lossiemouth
Scotland
UK
FOR:
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ARTICLE 1 – COMMENCEMENT
…
B. The term of this Agreement shall be for 12 (twelve) months from the delivery
date of the 4 (four) engines to the Contractor’s workshop with an option to
renew for a further period to be agreed by both parties depending on the
amount outstanding on the lease and upon the same conditions as already set
out in this Agreement.
C. The Contractor shall also take delivery of engines ID2T-95 with S/N 424771
and S/N 301094 for overhaul in order to make them serviceable and upon
completion of the necessary overhauling shall lease back the engines to the
Company at the rate of $41,500 per engine per month for a period of 12
months.
C. The parties agree that the Contractor shall have a lien/mortgage in the event
that the Company defaults in making the lease back payment after the due
date. It shall be deemed an event of default if the Company fails to make
payments to the Contractor’s account within 7 working days of a due date.
ARTICLE 6 NOTICES
All notices under this Agreement shall be addressed to the Contractor and/or the
Company as follows:
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ARTICLE 7 – JURISDICTION
This Agreement shall be deemed made in Scotland in the event of default or other
breach of enforcement of this Agreement.
ARTICLE 9 – ARBITRATION
Should any dispute or difference arise between the parties hereto touching and
concerning this Agreement, then either party shall forthwith give to the other notice in
writing of such dispute or difference which shall first be settled amicably failing
which it shall be referred to arbitration.
“COMPANY” “CONTRACTOR”
WITNESS: WITNESS:
Signed: Frances Olagabi Signed: James Clinton
Name: Mrs Frances Olagabi Name: James PR Clinton
Title: Acting Chief Legal Officer Title: Clerk
Date: 19/ 1/ 07 Date: 15th January 2007
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Harmony Plc
Aviation Support
1840 West Street
Lossiemouth
Scotland
UK
Yours respectfully
JOHN TERRAM
PRESIDENT
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Leny Buurman
Aeronautics Consultant (&c)
23 June 2008
Mr John Terram, President
Harmony Plc (&c)
Dear Mr Terram
Harmony Plc
(&c)
Yours respectfully
JOHN TERRAM
PRESIDENT
with copy to Accra Airways Ltd
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23 July 2008
Professor Dr Leny Buurman
Aeronautics Consultant
(Aberdeeen)
Re: Accra Airways Limited –v– Harmony Plc
Dear Professor Buurman
We confirm that we represent the Claimant, Accra Airways Limited, in
the above matter. I attach a copy of my letter of appointment.
With reference to your letter of 23 June 2008 we note that we have
received the copy of the Respondent’s letter of 17 July 2008 to you
which included a copy of your letter which we did not receive. We also
did not receive any previous letter from the Respondent – these non-
receipts were possibly because of a lightning strike on our local postal
sorting shed which burnt it down.
We are glad that your appointment has been confirmed by the
Respondent as sole arbitrator in this matter.
We have considered carefully what procedural law should apply and we
note that the Ghanaian law is currently under consideration for
replacement. We humbly suggest to you that, as the performance of the
contract out of which these disputes have arisen was to be in UK, the
law applicable to the procedure of this arbitration should be the British
Arbitration Act. In order not to cause further delay, we too will abide by
your decision on this point if the Respondent does not accede to our
proposal.
We understand that the British arbitration law is quite sufficient for our
arbitration and we therefore respectfully reject the use of the UNCITRAL
Arbitration Rules 1976.
We wish there to be an oral hearing so that our expert who is currently
making his investigations may give evidence. We will also wish to call
witnesses of fact.
Yours sincerely
Leny Buurman
Aeronautics Consultant
(&c)
14 August 2008
Dear Sirs
Accra Airways Limited –v– Harmony Plc
I acknowledge receipt of letters from Harmony Plc and Accra Airways Limited, dated
17 & 23 July 2008 respectively.
In the light of these letters, I write to confirm my appointment as sole arbitrator in the
above matter and I confirm my address and contact numbers in Aberdeen, as above.
The Claimant has proposed the “British Arbitration Act” to be the procedural law in
this arbitration. The Respondent has proposed the “American Arbitration Act”.
I have not yet researched this point fully. Nonetheless, it is already clear that these
definitions are not precise. The United Kingdom comprises a number of distinct legal
jurisdictions, the main ones being England & Wales, Scotland, and Northern Ireland.
‘America’, if taken as the USA, has both Federal and State arbitration statutes.
In the meantime, so as not to delay this reference any further, I have made my Order
for the next matters in this arbitration for the parties to perform, irrespective of which
procedural law applies, as below.
I shall communicate my decision on the applicable procedural law on or before 1
October 2008.
AND
I NOW DIRECT that
1. The Claimant shall submit to the Respondent and to me its Statement of Claim in
detail with copies of all supporting documents on or before 1 December 2008.
2. The Respondent shall submit its Statement of Defence to the Claimant’s Statement
of Claim in detail with copies of all supporting documents on or before 1 January
2009.
3. The Defence may also include a Statement of Counterclaim or set-off if the
Respondent be so advised;
4. An oral Hearing shall take place in Aberdeen, Scotland on 17, 18 & 19 May 2009.
Yours &c
To:
The Managing Director, Accra Airways Limited, Tamale House, Kotaka International
Airport, Accra, GHANA
The President, Harmony Plc, 1840 West Street, Lossiemouth, Scotland, USA
Ayinde & Co, No.14 Eruba Road, PO Box 523, Accra GHANA
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Leny Buurman
Aeronautics Consultant
(&c)
23 September 2008
Accra Airways Limited –v– Harmony Plc
I refer to my previous letter and Order of 14 August 2008. I now consider the
applicable law for the procedure of this arbitration.
The Claimant is Ghanaian whose arbitration law is historically based on that of
England & Wales. The present law in Ghana is the Arbitration Act 1961 (Act 38)
which is based on recent (but not current) English law.
The Respondent is based in Scotland and is a subsidiary of an American corporation
and has noted a preference for the “American Arbitration Act”. The arbitration law in
USA is complex, with different statutes for domestic and international arbitrations and
some states have specific arbitration statutes despite the 1925 Federal Arbitration Act
and the Uniform Arbitration Code.
In the light of these imprecise proposals and complications and taking note of the
request of both parties that I decide this point,
I NOW DECLARE THAT
In the light of the above with reference to this arbitration
The law of England & Wales in the form of the Arbitration Act 1996 is the law
applicable to this arbitration.
AND
To:
The Managing Director, Accra Airways Limited, Tamale House, Kotaka International
Airport, Accra, GHANA
The President, Harmony Plc, 1840 West Street, Lossiemouth, Scotland, UK
Ayinde & Co, No.14 Eruba Road, PO Box 523, Accra GHANA
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1. The Claimant is a Limited Liability Company incorporated under the Laws of the
Republic of Ghana for the purpose of rendering air transport services with its
registered office at Tamale House, Kotaka International Airport, Accra, Ghana.
2. The Respondent is a company incorporated under the Laws of Scotland and carries on
the business of buying, selling, leasing, modifying and overhauling of aircraft and
aircraft engines and parts with its registered office at 1840 West Street, Lossiemouth,
Scotland.
3. The Claimant is the owner of the following aircraft engines:
2 No. ID 1T-3L6LT9, Serial Numbers 303380 and 303378
2 No. ID 2T-95 with S/N 424771 and S/N 301094
4. By an undated “Aircraft Engines Modification/Overhaul Agreement” (hereinafter
referred to as “The Agreement”) executed on the 15th day of January 2007, the
Respondent agreed with the Claimant to use its best endeavours to modify and
overhaul the engines listed in (3) above in accordance with international acceptable
Aviation Industry Standards with lease back arrangements for a period of 12 months.
5. The Claimant avers that the Respondent subcontracted the modification/overhauling
of 2 of the engines to a third party outside the UK which was in direct contravention
of Article 4(A) of the Agreement referred to in (4) above.
6. The Claimant also avers that none of the engines has been returned to it as required
under the Agreement referred to in (4) above.
7. The Respondent is accordingly in breach of the Agreement noted in (4) above.
8. In consequence of these breaches the Claimant has lost the use of its engines as and
from 21 January 2008.
9. Accordingly the Claimant claims:
(a) $500,000.00 as general damages for breach of the contract;
(b) $4,500,000.00 being the value of the engines as at 21 January 2008;
(c) interest; and
(d) its costs of the arbitration.
10. And the Claimant relies on [documents already submitted – pages 11-18 inclusive] in
support.
Sunday Ayinde for Accra Airways Limited 29 November 2008
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Harmony Plc
(&c)
Yours respectfully
JOHN TERRAM
PRESIDENT
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© 2017 WB McLaughlin, Training & Education Officer, SICA®-FICA® and Faruq Khan sica-fica.org
(Extract)
POWER OF ATTORNEY
GRANTED BY
ACCRA AIRWAYS LIMITED
IN FAVOUR OF
HARMONY PLC.
By this Power of Attorney created this day of 200- WE Accra Airways Limited
of Kotoka International Airport, Accra (hereinafter called the “Donor”)
WHEREAS:
1. The Donor owns the following aircraft engines
2 No. ID 1T-3L6LT9, Serial Numbers 303380 and 303378
2 No. ID 2T-95 with S/N 424771 and S/N 301094.
2. The Donor has agreed to appoint the Donee as its true and lawful attorney for the
purposes of modifying and overhauling the said engines to make them serviceable.
NOW THIS DEED WITNESSES that the said Accra Airways Limited
HEREBY APPOINTS HARMONY PLC. of 1840 West Street, Lossiemouth,
Scotland, UK (hereinafter the “Donee”) attorney for us in our name and on our
behalf to do and execute all or any of the acts and things following, namely:
1. To take possession/delivery of the said engines and to modify and overhaul them
to make them serviceable.
2. The Donee shall use its best endeavours to ensure that the Donor’s engines are
modified/overhauled in accordance with international acceptable aviation industry
standards.
3. The Donee shall be at liberty to subcontract the modification/overhaul of the
Donor’s engines to a third party repair facility in the UK.
…
6. And generally the Donee is required and empowered to do all such lawful acts and
things for the purposes aforesaid as fully and effectively in all respects as the
donor could itself act.
AND IT IS HEREBY DECLARED that this power of attorney shall be irrevocable for
a period of 12 months or for such further term as may be mutually agreed by the
parties.
IN WITNESS whereof the said Donor has executed this Deed and day and year first
above written.
The Common Seal of the Donor was hereunto affixed in the presence of:
(signed) (signed)
MEMORANDUM OF UNDERSTANDING
(For & on behalf of Harmony Plc) (For & on behalf of Accra Airways Ltd)
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IN REFERENCE TO:
1) AIRCRAFT ENGINE MODIFICATION/OVERHAUL AGREEMENT OF
JANUARY 15, 2007
2) POWER OF ATTORNEY ALSO DATED JANUARY 15, 2007
3) MEMORANDUM OF UNDERSTANDING DATED 22 JANUARY, 2007
4) THE AIRWAYS FAX OF 5 FEBRUARY 2008
5) THE COMPANY LETTER OF 5 AUGUST 2008
A) THE COMPANY PRESENTED A BILL FOR TWO MILLION FIVE
HUNDRED AND EIGHTY-NINE THOUSAND THREE HUNDRED AND
SEVENTY-NINE DOLLARS AND NINETY-TWO CENTS AS FOLLOWS:
ID2T-95 ENGINES – WORK TO DATE 297,439.76
ID1T-3L6 ENGINES – WORK TO DATE 640,532.72
TRAVEL & ADMINISTRATION CHARGES 446,704.31
INTEREST & ADVANCES 304,703.13
COMMISSION 900,000.00
2,589,379.92
B) THE AIRWAYS SELECTED TO SETTLE THE MATTER AND HAS
OFFERED $500,000.00 IN FULL AND FINAL SETTLEMENT FOR THE
ID1T-3L6 ENGINES.
C) THE COMPANY ACCEPTED THE AIRWAYS OFFER OF $500,000.00
FOR THE SETTLEMENT OF THE ID1T-3L6 ENGINES DEBT PROVIDED
THIS MONEY IS RECEIVED IN THE COMPANY’S BANK ACCOUNT ON
OR BEFORE MARCH 10, 2007 FILING WHICH THE COMPANY WILL
HAVE THE RIGHT TO REVERT TO THE ORIGINAL AMOUNT WHICH
WILL BECOME IMMEDIATELY PAYABLE.
D) THE AIRWAYS APPRECIATES AND AGREES THAT THE COMPANY
HAS THE RIGHT TO RECOVER ITS MONEY WITHOUT RECOURSE TO
THE AIRWAYS IN THE EVENT OF FURTHER BREACH OF THESE
AGREEMENTS.
UPON SETTLEMENT OF THE COMPANY’S BILLS THE AIRWAYS WILL
HAVE THE RIGHT TO THE RELEASE OF ITS TWO ID2T-95 AND TWO
ID1T-3L6 ENGINES.
IN ADDITION THE COMPANY WILL ISSUE A RELEASE DISCHARGING
THE AIRWAYS OF ALL LIABILITIES TO THE COMPANY.
(signed) (signed)
PATRICK OLU JOHN TERRAM, PRESIDENT
FOR ACCRA AIRWAYS LTD. FOR HARMONY PLC.
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CHAPTER 6 – PERFORMANCE
Section 2 – Hardship
© 2017 WB McLaughlin, Training & Education Officer, SICA®-FICA® and Faruq Khan sica-fica.org
February 5, 2008
Harmony Plc.
1840 West Street
Lossiemouth
Scotland
UK SENT BY FAX
Dear Sirs
Please refer to the Agreement executed on January 19 2007 between us and the
various correspondences thereafter on this subject.
In furtherance of the Agreement referred to above, we delivered to you two (2) ID2T-
95 and two (2) ID1T-3L6 engines in January 2006 for modification/overhaul. These
engines are still in your possession, in unserviceable condition.
(i) that the officials of the Parties will meet immediately to reconcile and arrive at
an agreeable amount spent to date by you on the two (2) ID1T-3L6 engines
presently with Sabena in Brussels, Belgium.
(ii) that after reconciliation, we shall pay you the agreed amount.
(iii) that we shall immediately take possession of the two (2) ID1T-3L6 engines “as
is and where is”.
(iv) that with respect to the two (2) ID2T-95 engines in the UK, you shall conclude
work on them within 90 (ninety) days hereafter and return same to us in Accra.
Yours faithfully
OLJU H OMAN
Ag. COMPANY SECRETARY/LEGAL ADVISER
For: MANAGING DIRECTOR/CHIEF EXECUTIVE
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Harmony Plc
Aviation Support
1840 West Street
Lossiemouth
Scotland
UK
February 5, 2008
The Managing Director
Accra Airways Ltd
Tamale House
Kotaka International Airport
Accra
GHANA
Dear Sir
Best regards
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I confirm receipt of the Claimant’s Statement of Claim, dated 29 November 2008, and
the Respondent’s Statement of Defence and Counterclaim, dated 11 January 2009
AND
I now order and direct
1. That the sequence at the oral hearing on 17, 18 & 19 May 2009 shall be:
(a) brief opening statement by Claimant;
(b) brief opening statement by Respondent;
(c) examination of witnesses, if any, shall be
i. first for the Claimant
ii. second for the Respondent;
(d) examination of each witness shall be
i. first by the party calling the witness
ii. then by the opposing party
iii. finally by the arbitrator;
(e) calling of witnesses shall be
i. witness of fact first
ii. expert witnesses after witnesses of fact;
(f) closing statement of Respondent;
(g) closing statement of Claimant;
2. All evidence shall be as follows:
(a) all evidence shall be in the English language, any translation being the
responsibility of the party bringing such evidence;
(b) each party may call up to three witnesses in total;
3. Hearing times will be generally 10h30 to 13h00 and 14h30 to 17h00;
4. The Claimant shall ensure that a tape recording is made of the entire hearing,
copies to be made available to the Respondent and to me;
5. A party may apply to me for amendment or addition to these Directions; and
6. The costs of this Order to be costs in the arbitration.
Leny Buurman
The Hague
2 February 2009
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Topic Preview
This Topic concludes ‘How to Write an Award’, with sections on :
– Cause of action – generally
– Cause of action – in arbitration
– ILA Resolution No. 6/2008
– IBA Guidelines
– IBA Rules of Ethics for International Arbitrators
THE ACTIVITY CONCLUDES THE INTERNATIONAL
EXAMINATION-TYPE SITUATION AND REQUIRES STUDENTS TO
WRITE AN AWARD ON IT.
Topic Content
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© 2017 WB McLaughlin, Training & Education Officer, SICA®-FICA® and Faruq Khan sica-fica.org
© 2017 WB McLaughlin, Training & Education Officer, SICA®-FICA® and Faruq Khan sica-fica.org
© 2017 WB McLaughlin, Training & Education Officer, SICA®-FICA® and Faruq Khan sica-fica.org
© 2017 WB McLaughlin, Training & Education Officer, SICA®-FICA® and Faruq Khan sica-fica.org
4. IBA Guidelines
The International Bar Association (IBA) was established in 1947 and is the
world's leading organisation of international legal practitioners, bar
associations and law societies.
© 2017 WB McLaughlin, Training & Education Officer, SICA®-FICA® and Faruq Khan sica-fica.org
Its Dispute Resolution Section has provided many useful guidelines for
international arbitration. These are freely available from its website:
www.ibanet.org.
They are all named ‘Guidelines’ except one – the guideline on taking
evidence which are called ‘Rules’ though, however they are named, they
are all ‘guidelines’, at least until they become rules in an arbitration by
adoption by agreement. They are :
The IBA has also published a short guide on ethics for arbitrators,
unchanged since 2009. It nonetheless covers many of the ethical points
presented to you in the previous Module and in this Course and, in
reproducing it here, you are strongly recommended to take note of all it
states as both in its address to arbitrators but also in a wider context as
applying to the arbitral process generally and all its participants.
If parties wish to adopt the rules they may add the following to their
arbitration clause or arbitration agreement :
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The International Bar Association takes the position that (whatever may
be the case in domestic arbitration) international arbitrators should in
principle be granted immunity from suit under national laws, except in
extreme cases of wilful or reckless disregard of their legal obligations.
Accordingly, the International Bar Association wishes to make it clear that
it is not the intention of these rules to create opportunities for aggrieved
parties to sue international arbitrators in national courts. The normal
sanction for breach of an ethical duty is removal from office, with
consequent loss of entitlement to remuneration. The International Bar
Association also emphasises that these rules do not affect, and are
intended to be consistent with, the International Code of Ethics for
lawyers, adopted at Oslo on 25 July 1956, and amended by the general
Meeting of The International Bar Association at Mexico on 24 July 1964.
1 Fundamental Rules
2 Acceptance of Appointment
3 Elements of Bias
3.1 The criteria for assessing questions relating to bias are impartiality
and independence. Partiality arises when an arbitrator favours one of the
parties, or where he is prejudiced in relation to the subject-matter of the
dispute. Dependence arises from relationships between an arbitrator and
one of the parties, or with someone closely connected with one of the
parties.
3.2 Facts which might lead a reasonable person, not knowing the
arbitrator's true state of mind, to consider that he is dependent on a party
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4 Duty of Disclosure
(b) the nature and duration of any substantial social relationships with any
party or person known to be likely to be an important witness in the
arbitration ;
(c) the nature of any previous relationship with any fellow arbitrator
(including prior joint service as an arbitrator) ;
(d) the extent of any prior knowledge he may have of the dispute ;
© 2017 WB McLaughlin, Training & Education Officer, SICA®-FICA® and Faruq Khan sica-fica.org
(e) the extent of any commitments which may affect his availability to
perform his duties as arbitrator as may be reasonably anticipated.
5.4 If any arbitrator becomes aware that a fellow arbitrator has been in
improper communication with a party, he may inform the remaining
arbitrators and they should together determine what action should be
taken. Normally, the appropriate initial course of action is for the
offending arbitrator to be requested to refrain from making any further
improper communications with the party. Where the offending arbitrator
fails or refuses to refrain from improper communications, the remaining
arbitrators may inform the innocent party in order that he may consider
what action he should take. An arbitrator may act unilaterally to inform a
party of the conduct of another arbitrator in order to allow the said party
to consider a challenge of the offending arbitrator only in extreme
circumstances, and after communicating his intention to his fellow
arbitrators in writing.
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6 Fees
7 Duty of Diligence
All arbitrators should devote such time and attention as the parties may
reasonably require having regard to all the circumstances of the case, and
shall do their best to conduct the arbitration in such manner that costs do
not rise to an unreasonable proportion of the interests at stake.
The deliberations of the arbitral tribunal, and the contents of the award
itself, remain confidential in perpetuity unless the parties release the
arbitrators from this obligation. An arbitrator should not participate in, or
give any information for the purpose of assistance in, any proceedings to
consider the award unless, exceptionally, he considers it his duty to
disclose any material misconduct or fraud on the part of his fellow
arbitrators.
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Topic Activities
If you do look at the following pages before doing the Topic 4 Activity, you
will lose all the advantages you would gain from having done it on its own.
Following are the remainder of the papers which form part of the Award
Writing exercise which you started in Topic 4 and should complete in this
Activity.
You are now ‘in the examination room’ and you are required within a 4-
hour period to write a final reasoned Award on this problem.
With this task complete, you then have to write out your Award, the final
(and, quite possibly, the only) visible result of the Activities of these
Topics.
…………………
© 2017 WB McLaughlin, Training & Education Officer, SICA®-FICA® and Faruq Khan sica-fica.org
THE HEARING
Day One
10h30
Mr Ayinde (for Ct) asked to clarify a point in the SoC (the date of
the Agreement ‘correct as 15 January 2007’) and one in the SoD
(that the undated PoA submitted by Rt was also 15 January 2007).
He then pointed out that the MoU had been drawn up in Abidjan and
was therefore subject to the laws of Ivory Coast – was Mr Ajewole
competent under those laws to execute this for C t? Followed
another long presentation on who had/not capacity under Côte
d’Ivoire Codes. Proposed that this be avoided for uncertainty.
12h45
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14h30
Ruled in favour of Ct, that Rt had wasted half-a day and was liable in
costs in any event. ***[Must remember to give reasons for this in
my award.]
14h45
Submission as SoC.
Main contentions: that work patently not done & blatant breach in
sending 2 engines outside UK.
16h00
As SoD.
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17h00
Day Two
10h30
Questioned by Mr A
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11h30
Questioned by Mr C
1. Admitted there had been a scandal in January 2008 which led
to Mr Nigra’s dismissal. [Mr C showed, to Mr A (no comment)
and then me, official Ghanaian Department of Transport
documents, dated 22 February 2008, and newspaper cuttings,
dated 24 February 2008, in support.]
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14h30
Questioned by Mr A
1. Doctorate in aeronautics engineering, Utrecht University 1992.
3 years with Boeing in Seattle, then 8 years with KLM.
Independent consultant since 2003.
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15h00
Questioned by Mr C
1. Agreed he had not introduced himself to Harmony on 21
March. Disagreed this was trespass as the gate had been
open to the street and no-one had challenged him as he
walked through the workshop. Added that he hadn’t seen
anyone actually working though mid-morning. [Mr C stopped
him and objected to this unsolicited evidence. Said I would
consider it as before.]
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16h30
My questions
1. Agreed that the ordonnance also established that Rt was, in
the eyes of the Tribunal de Commerce in Brussels, the rightful
possessor of the 2 engines.
17h00
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Day Three
10h30
Evidence of Mr Terram
Questioned by Mr C
1. President of Rt. Qualified senior aircraft engine technician
(recognised by MIT) 1990. 5 years Rolls-Royce. Set up
Harmony 1997.
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12h30
Questioned by Mr A
1. Agreed [reluctantly] he had been with Boeing 1994-95.
Denied he was fired for incompetence; it was a ‘personality
clash’.
© 2017 WB McLaughlin, Training & Education Officer, SICA®-FICA® and Faruq Khan sica-fica.org
8. Was prepared to carry out the original contract ‘in its spirit’
with new time periods.
My questions
1. Stated the valuation of $4,500,000.00 probably correct when
fully serviceable and each engine worth an equal amount.
[I asked Mr A for the C t’s position on this and he noted that C t was
in agreement with these figures.]
© 2017 WB McLaughlin, Training & Education Officer, SICA®-FICA® and Faruq Khan sica-fica.org
15h00
3. It was only proper that Rt had done what it did, certainly with
no knowledge that there might be a difficulty in getting the
engines back from Sabena. Indeed, the Rt is to be
commended for making every reasonable effort to carry out
its bargain. It was unfortunate –and no fault of the R t– that
events made the situation worse.
© 2017 WB McLaughlin, Training & Education Officer, SICA®-FICA® and Faruq Khan sica-fica.org
16h00
© 2017 WB McLaughlin, Training & Education Officer, SICA®-FICA® and Faruq Khan sica-fica.org
4. The whole thrust of the contract had been harmed by the R t’s
approach and attitude to it. The Ct was entitled to all it
claimed, as in the SoC.
16h45
(End of hearing)
© 2017 WB McLaughlin, Training & Education Officer, SICA®-FICA® and Faruq Khan sica-fica.org