Open University of Mauritius

LLB (HONS) [OUba029]

BA (HONS) LAW AND MANAGEMENT [OUba032]

EXAMINATION FOR: February 2022

MODULE: Alternative Dispute Resolution

[OUba029311] / [OUba032311]

DATE: Wednesday 09 February 2022

DURATION: 2 Hours

INSTRUCTIONS TO CANDIDATES

1. This question paper consists of Section A and Section B.

2. Section A is COMPULSORY.
3. Answer ANY TWO (2) questions from Section B.
4. Always start a new question on a fresh page.
5. Total marks: 100.

This question paper contains 5 questions and 4 pages.

Page 1 of 4
 SECTION A
COMPULSORY

QUESTION 1 [40 MARKS]

The International Arbitration Act 2008 (IAA) is unique in many ways. Discuss the following
salient features of the International Arbitration Act 2008:

(a) Disconnection of international arbitration regime from domestic arbitration.

(3 marks)

(b) The scope and coverage of international arbitration. (5 marks)

(c) Composition of the tribunal. (5 marks)

(d) The powers given to the Permanent Court of Arbitration (PCA). (7 marks)

(e) Doctrine of Kompetenz-Kompetenz and S5 claim. (8 marks)

(f) Extent of court intervention. (12 marks)

SECTION B
ANSWER ANY TWO (2) QUESTIONS

QUESTION 2 [30 MARKS]

“Litigation is more effective than Alternative Dispute Resolution (ADR) mechanisms in

resolving disputes between parties.” Critically assess this statement taking into
consideration the different types of ADR mechanisms available to parties to resolve
disputes.

Page 2 of 4
QUESTION 3 [30 MARKS]

(a) Discuss the essential features of a valid arbitration agreement.

(20 marks)

(b) “The arbitration agreement has a separate identity of its own.” Critically evaluate
this statement with reference to case law.
(10 marks)

QUESTION 4 [30 MARKS]

“Arbitrators are not disembodied spirits dwelling on Mars, who descend to Earth to
arbitrate a case and then immediately return to their martian retreat to await inertly the
call to arbitrate another. Like other professionals living and working in the world,
arbitrators have a variety of complex connections with all sorts of persons and
institutions.”- The Suez case

Discuss the concepts of independence, impartiality and neutrality of arbitrators with

respect to the above statement, supporting your discussion with case law.

QUESTION 5 [30 MARKS]

(a) A dispute arises between Melli Ltd, a French company and Hola Ltd, a Dutch
company. The contract is governed British law and the arbitration is to be
conducted in Switzerland. The tribunal has to decide which law will govern the
arbitral proceedings. You are part of the panel of arbitrators.

What would be your stand? (7 marks)

(b) Company Cambenia and Company Bularia have a contract, which includes an
arbitration clause, providing for ad hoc arbitration with a sole arbitrator in case of
a dispute, under the International Arbitration Act 2008. A dispute arises between
the parties. However, they fail to agree on who to appoint as arbitrator. Company
Cambenia seeks your advice as legal counsel on possible recourses.

Advise Cambenia. (8 marks)

Page 3 of 4
(c) The following dispute resolution clause features in a contract between two
companies, namely, Radiation and Salutation:

“If a dispute arises out of or in relation to this Agreement, no party may commence
court or arbitration proceedings unless it has complied with this clause. First, the
parties shall try to settle the dispute amicably through the CEOs of each Company.
If such a course of action fails, the parties shall proceed with mediation, or expert
evaluation or determination. If the parties fail to determine the dispute resolution
technique to be used within 30 days, the parties must then mediate the dispute in
accordance with the International Arbitration Act 2008.”

A dispute arises and Radiation refers the matter to Court. You appear as Counsel
for Salutation as respondent. What points would you raise and why?

(15 marks)

Page 4 of 4