Coursework Paper
Module 1 – Law Practice and Procedure of International Arbitration
Date of Examination: 20th August 2020
The examination will contribute 100% of your final mark.
You should answer this examination on the basis of the UNCITRAL Model Law and UNCITRAL
Arbitration Rules. You may take unmarked copies into the examination. Use the abbreviations ML and
AR followed by Article numbers in your answers.
However, where a change in the law has occurred within the last six months, answers on the basis of the
law in force six months prior to this examination will be accepted. All the material must be unannotated but
may contain highlighting.
Please start the answer to each question on a new sheet of paper. All sheets should be page-numbered
sequentially.
Please number your answers so that they clearly follow the numbering structure of the examination paper.
Please write your candidate number on the top of each sheet of paper used. Do not write your name.
ANY OTHER IDENTIFICATION WILL INVALIDATE YOUR PAPER.
Results are dispatched to candidates by email, twelve weeks from the date of the examination.
Results will not be released over the telephone.
1
PART 1:
COMPULSORY QUESTION
Your answers should give reasons and refer to the UNCITRAL Model Law and the UNCITRAL
Arbitration Rules where appropriate.
Qu 1
A dispute has erupted between a German Contractor, the Claimant and a Belgian Entrepreneur, the
Respondent, in a manufacturing contract signed between them in January 2019. The dispute is in relation to
the amounts of payments made for works already performed.
The contract contained a dispute resolution clause – clause no. 17 – as follows: -
“In the event of any controversy or dispute arising from, under, out of, or in connection with this agreement, it shall
be put to the resolution of an ADR process to be agreed between the parties. In the event of no such agreement,
the matter shall be put to the arbitration of a sole arbitrator, such arbitrator to be agreed between the parties. The
arbitral proceedings shall be in accordance with the laws of Belgium and provisions of the Belgian Institute of
International Arbitration. All proceedings shall be conducted in English. The venue for the arbitration shall be
mutually decided within any location in Germany”
Note: - assume that both Belgium and Germany have adopted the UNCITRAL Model Law on International
Commercial Arbitration. Reference may be made to the Model Law as if it were the law of either country.
(a) Comment on the dispute resolution clause – its appropriateness and/or any shortcomings in this
mechanism to appoint an arbitrator. (10 marks)
(b) Claimant issues a notice of dispute to the Respondent. Respondent states that he would like to
submit this dispute to the Belgian national court for resolution as he does not have any faith in the
arbitral process. He would like his ‘day in court’ and will not participate in any arbitral proceedings.
What are the Claimant’s options here?
(10 marks)
(c) The Respondent is eventually persuaded to participate in the arbitral process. But he rejects the
arbitrator proposed by the Claimant. Respondent proposes another arbitrator instead, who is
swiftly rejected by the Claimant. What, if anything, can be done next to keep this process moving?
(10 marks)
(d) The arbitration begins and an Arbitrator is appointed. Parties, however, disagree on the juridical
seat. Claimant states that this should be designated as Munich, Germany. Respondent states that
Brussels, Belgium is the natural choice for the seat. The parties turn to you to determine it. How
would you, as the appointed Arbitrator, determine the seat? What factors would you take into
account?
(10 marks)
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2
PART 2:
ELECTIVE QUESTIONS
ANSWER ANY 3 QUESTIONS
Qu 2
List and explain five advantages of Arbitration over Litigation in the courts. How does the process of
Adjudication differ from that of Arbitration?
(20 marks)
Qu 3
Explain the concepts of ‘the principals of natural justice’ in the context of arbitrations. Give two examples
from the law or the rules that demonstrate the application of these concepts.
(20 marks)
Qu 4
The parties in Qu 1 (above) are in an arbitration before you. The Respondent, the Entrepreneur, applies to
you to protect both its costs and also your own costs because of fear that the Claimant is about to go into
receivership. Under what provisions would such an application be made to and granted by the arbitral
tribunal? How would you deal with it?
(20 marks)
Qu 5
“Impartiality is not the same as independence, although the two are closely linked…” Per Baroness Hale of
Richmond in Gillies v Secretary of State for Works and Pensions – Scotland [2006].
Explain whether you agree with these sentiments or not (as related to the duties of an arbitrator). Note
any similarities or differences between the two concepts. Give two examples of each as applicable to
arbitrations.
(20 marks)
Qu 6
You have gone through the whole arbitral process with the parties in Qu 1 (above). You are minded to
award Claimant US $ 12 million out of the $ 30 m in the Statement of Claim. You have also decided to
award the Respondent $ 6 m out of the $ 10 m in the Counterclaim. Write out the section of the
operative part of the award dealing with your award on claim, counterclaim, costs and interest. Explain and
outline any assumptions that you have made in this regard and any principles that you have applied.
(20 marks)
