OSCOLA Referencing is a must. This is a UK law study, please use UK practice, Westlaw, etc.
You run a small Aberdeen-based firm of solicitors, and have recently been approached by lawyers from Warsaw acting on behalf of RosPil LLP (“RosPil”), a development company incorporated in North East England. RosPil is jointly owned by an obscure syndicate consisting of several Eastern European oligarchs. The main business idea behind RosPil is to obtain, through a variety of means, major construction contracts (mainly government contracts via public tenders) in several post-communist countries, and subsequently to hire world-famous companies from around the globe as subcontractors, to do the actual works.
As a part of consultancy services to RosPil, your firm was asked to prepare the Standard Terms and Conditions to impose upon all the subcontractors, and the detailed explanatory notes thereto. Your colleagues have already done most of the job, and now it is time to draft the standard dispute resolution clause. As nobody else in your firm studied arbitration as deeply as you did, you will have to do this by yourself. RosPil’s beneficiaries expressed the preference that disputes should be resolved through arbitration (because many subcontractors will be from outside the UK), and that arbitration hearings should take place in London (because they need an excuse to visit London from time to time). This preference has to be respected, but everything else is left for the lawyers to decide. RosPil currently intends to insist on including ad hoc arbitration clauses under UNCITRAL Rules into primary construction contracts; where that would be impossible, local (Eastern European) courts will retain jurisdiction.
At this stage you do not need to draft the actual clause, because lawyers from Warsaw, having demonstrated a very hands-on approach overall, want to understand the whole picture first. So they ask you to write a report explaining:
(i) the issues that need to be considered in this situation, and
(ii) their relevant options (including methods of dispute resolution alternative to arbitration, and various options within arbitration regime).
They want a very practical, “means-to-ends” approach; they asked you to identify potential pitfalls to be avoided and advantages that can legally be gained over the counter-party by means of careful drafting of a clause. Coming from the UNCITRAL Model Law jurisdictions, they would also be interested in explanation of relevant differences with the UK law. Needless to say, as the paper is for lawyers, the appropriate style and referencing to legal authority (equivalent to that required for the coursework) must be in place.
Question 1. Please write the report for foreign lawyers. (40 Marks)
RosPil secured their first major contract with the government-owned company for the construction of a 100,000-seat stadium, and have distributed the first pool of works among several subcontractors. One of them in particular, the Scottish company Mueller Group Limited (“Mueller Group”), undertook to provide all the architectural engineering. The standard dispute resolution clause was renegotiated by the parties, and provided for arbitration in London according to LCIA Rules, with a single arbitrator.
However, having subsequently learned that the stadium will never be used for playing football (the reason, moreover, being that the local populace generally preferred skiing) the board of directors of Mueller Group apparently lost interest in the project, and the subcontractor failed to meet several interim deadlines. RosPil initiated arbitration, seeking damages of some £5 million.
At this stage, RosPil lawyers approach you again and intimate their concern that single arbitrator in these proceedings is likely to be British, and therefore is likely to biased, because of current political situation and unnatural keenness of the British for football in general. Unsatisfied with your free explanation of how ridiculous these fears are, RosPil lawyers ask you to write a formal memorandum analysing the relevance of this perceived lack of arbitrator’s impartiality, and explaining safeguards and remedies available to them under LCIA Rules and relevant law.
Question 2: Please advise them appropriately. (20 Marks)
Maximum word limit for Section A Legal Problem (including both Questions 1 and 2) – 2,500 words
Should there be different regimes for enforcement of domestic and international arbitral awards? Provide a reasoned opinion with particular reference to England and Wales, Scotland, and other jurisdictions of your choice.
Maximum word limit for Section B Essay Topic – 2,000 words
Principal resources for this module:
1. Legislation (for example Acts of Parliament- see topic materials for more details). This is available in original format on the HMSO legislation website and in its updated format on the electronic legal database available to all students – Westlaw.
2. Case law (reported cases). These are almost all available, again, on Westlaw. Where a case is not available on Westlaw, the name of the case will be preceded by an asterisk (*). In such instances, sufficient detail on the case is provided in the notes.
On occasion, a summary only of the case is available on Westlaw (as opposed to the whole case report) and this is made clear in the notes. In the event of any case being unavailable on Westlaw and where a full report of the case is to be consulted by the student, a copy will be made available in the Moodle area of the module, and the students will be informed of this.
1. Harris, B. et al. Arbitration Act 1996: a Commentary. (Wiley 2006)
2. Asouzu, A. A. International Commercial Arbitration and African States: Practice, Participation and Institutional Development. (Cambridge, Cambridge University Press 2001)
3. Al Tamimi, E. Practical guide to litigation and Arbitration in the United Arab Emirates. (Brill 2003)
4. Paulsson, J. et al. Freshfields Guide to Arbitration and ADR: the Clauses in International Contracts. (Wolter Kluwers Law and Business 1999)
5. Blackaby, N. et al. International Arbitration in Latin America. (Wolters Kluwer Law and Business 2002)
6. Devolve, J-L. French Arbitration Law and Practice. (Wolters Kluwer Law and Business 2003)
7. Zekos, G.I. International commercial and marine arbitration. (London, Taylor and Francis 2008)
8. R Turner, Arbitration Awards; A Practical Approach (Blackwell Publishing, 2005)
Further two books among those available at Westlaw could be useful for this course:
1. Redfern & Hunter: Law and Practice of International Commercial Arbitration 5th Ed. – one of the classical treatises on international commercial arbitration reflecting mostly the English perspective.