Section A (Answer ONE question from this section)

Question 1

International arbitration has been under increasing criticism for failing to meet clear ethical
standards. Discuss the main areas of criticism, including on decision making, counsel
ethical obligations and third-party funding.

Question 2

Answer ALL parts of the Question below

i. Critically discuss the following statement by Neil Caplan. Support your answer with
references to legal authority, including decisions of national courts and
international tribunals.

“The New York Convention has served the international commercial community
very well. Yet it has to be acknowledged that a lot of change has taken place
since 1958. Many courts do not seem to be so jealous of their position as once
they were thought to be. Both in England, the United States and in Hong Kong
one can find judicial statements strongly supportive of arbitration. The Model
Law itself with its emphasis on party autonomy was a leap in the dark for several
nations who adopted it. For those who did not adopt it, we have seen
amendments to their arbitration laws which are much influenced by the Model
Law.

Given all these developments, it is not unreasonable to propose that the time
has come for another look at Article II(2). In my view, its emphasis on writing or
exchange is outmoded. It would be helpful to see a general reconsideration of
Article II(2) in the light of existing commercial practices and also in the light of
the many developments which have occurred since 1958 in the field of
international commercial arbitration.”

ii. In addition to Article II(2), which other articles in the 1958 New York Convention for
the Recognition and Enforcement of Foreign Arbitral Awards would require
amendments in your view, and why?
Question 3

The arbitral tribunal in Himpurna California Energy Ltd v. Republic of Indonesia refused to
obey the anti-arbitration injunction issued by the courts of Indonesia, which was the seat of
the arbitration, holding that

“An international arbitral tribunal is not an organ of the State in which it has its seat in
the same way that a court of the seat would be. The primary source of the Tribunal’s
powers is the parties’ agreement to arbitrate. An important consequence of this is that
the Tribunal has a duty vis-à-vis the parties to ensure that their arbitration agreement
is not frustrated. In certain circumstances, it may be necessary to decline to comply
with an order issued by a court of the seat, in the fulfilment of the Tribunal’s larger duty
to the parties” (Interim Award, 26 September 1999).

Critically discuss the above statement.

 Section B (Answer ONE question from this section)

Question 4

Answer all questions below by reference to national laws, international treaties and
decisions of national courts and international tribunals

Petton Ltd is a Utopian registered company that provides engineering and construction
services. Petton Ltd was asked by the Government of Ruritania to submit a tender for the
development, engineering, procurement and building project of low emission desalination
plant in Ruritania (“EPC Project”). After several months of discussions, Petton Ltd and the
Government of Ruritania signed a Memorandum of Understanding (“MoU”) setting out the
necessary steps leading to the finalisation of the contract for the EPC Project. The MoU
contained a choice-of-law clause providing that the MoU is governed by English law. The
MoU contained no dispute resolution clause.

Six months after the conclusion of the MoU, the contract for the EPC Project (“EPC Contract”)
is signed between Petton Ltd and a state entity of the Government of Ruritania. The
Government of Ruritania was not a signatory party to the EPC Contract but, in addition to the
MoU, signed a separate agreement with Petton Ltd agreeing to guarantee the obligations of
its state entity under the EPC Contract. The EPC Contract contains an arbitration clause
providing for ICC Arbitration in Paris. There is no choice-of-law clause in the EPC Contract.

A dispute arises out of the EPC Contract and Petton Ltd commences arbitration proceedings
under the ICC Rules in Paris against the state entity and the Government of Ruritania. The
Government of Ruritania challenges the jurisdiction of the ICC arbitration tribunal on the
ground that it has not signed the EPC Contract and is, therefore, not bound by the arbitration
clause.

i. You are appointed as sole arbitrator in this dispute. Which law will you apply to decide
whether you have jurisdiction over the Government of Ruritania in this arbitration?

ii. Assume that you accept jurisdiction over the Government of Ruritania on the basis
that the latter was bound by the arbitration agreement in the EPC Contract, and you
issue an arbitral award in favour of Petton Ltd. Petton Ltd now seeks to enforce the
award in England against the Government of Ruritania which resists the enforcement
of the award on the ground that it is not bound by the arbitration agreement in the EPC
Contract.

a. Can the English courts perform a de novo examination of the validity of the
arbitration agreement at the stage of enforcement of the arbitral award or are
they bound by the findings and decision of the arbitration tribunal sitting in
Paris?

b. If the English courts can perform a de novo examination of the validity of the
arbitration agreement, which law will they apply to it?

iii. At the same time that it resists enforcement of the arbitral award in England, the
Government of Ruritania requests the French courts to set the arbitral award aside.
Which law will the French courts apply to determine the validity of the arbitration
agreement?
Question 5

Answer ALL parts of the Question below

An arbitral award is issued under the ICC Arbitration Rules in all the questions below. Can it
be refused enforcement under the 1958 New York Convention for the Recognition and
Enforcement of Foreign Arbitral Awards in the following circumstances?

i. In a dispute arising out of a sale of goods contract, the seller brings a claim against
the buyer who has failed to pay the purchase price. In its statement of defence, the
buyer admits liability, and accepts that it has to pay the contract price. However,
the buyer disputes the amount due to the seller under the contract. Nevertheless,
the arbitral tribunal relies on a clause in a contract (which the buyer did not rely
upon in its submissions) and finds that the buyer has no liability in this dispute.

ii. In a dispute arising out of a joint venture agreement, a party requests the arbitral
tribunal to determine whether it has rightfully exercised its right to buy-out the other
party in accordance with the terms of the joint venture agreement. After considering
the facts in the case and the history of the dispute between the two parties, the
arbitral tribunal finds that the joint venture is in fact no longer sustainable due to
insurmountable differences between the two parties. Accordingly, the arbitral
tribunal issues an award dissolving the joint venture.

iii. In a dispute concerning a buy-out arrangement under a share-purchase

agreement, the claimant requests the arbitral tribunal to instruct an independent
expert to calculate the value of the shares in dispute. The arbitral tribunal rejects
the request on the basis that two members of the three-member tribunal are
economists with the necessary expertise to calculate the value of the shares.
Further, on the final day of the hearing in the same arbitration, the arbitral tribunal
rules that each party will have one hour for their closing submissions, with the
claimant making its closing submissions first followed by the closing submissions
of the respondent. The claimant demands the right of reply to the respondent’s
closing submissions on the basis that it is the claimant who has the burden to prove
its claim and therefore it is the claimant who must be given the “final word” in this
matter. The arbitral tribunal rejects the request of the claimant and closes the
hearing.
Question 6

Answer ALL parts of the Question below

i. What is the doctrine of separabilty and why is it important in international

arbitration? How does the doctrine of separability differ from the doctrine of
Kompetenz-Kompetenz? What are the limitations of the two doctrines? Support
your answer with reference to arbitration laws and rules?

ii. Is the following arbitration agreement enforceable?

In the event of any dispute between the parties pursuant to this Agreement,
the parties will endeavour to first resolve the matter through Swiss arbitration.
Should a resolution not be forthcoming the courts of England shall have non-
exclusive jurisdiction.

iii. You are appointed as a sole arbitrator in the following factual circumstances.
Do you have jurisdiction over these disputes?

a. In an ICC arbitration seated in England, the respondent is a governmental

entity. The respondent challenges the tribunal’s jurisdiction on the basis that
the public contract for a major infrastructure project which gives rise to the
dispute was in fact produced by bribery. According to the respondent, one
of its governmental officials was bribed by a third party who was acting as
an agent of the claimant with an aim to awarding a public contract to the
claimant.

b. One of the signatory parties to an arbitration agreement becomes insolvent.

A judicial administrator is appointed for the insolvent party. The other party
files a request for arbitration against the insolvent party requesting damages
for failing to perform, or otherwise breaching, the contract. The Tribunal is
seated in a country other than the country of incorporation of the insolvent
party. Equally, the law governing the contract is the law of a different country
from the country of incorporation of the insolvent party. The judicial
administrator appears in the arbitration on behalf of the insolvent party and
challenges the tribunal’s jurisdiction.

End of Paper