Topic: International commercial arbitration
Instructions:
Its a question essay,plz read the slides Ive downloaded so that u will have an idea about what exactly do i want and plz include as many relevant cases as u can:
(A) Privity of contract in arbitration is the cause of unnecessary disputes concerning (1) the conduct of related arbitrations, and (2) the recognition and enforcement of Orders and Awards. Please critically assignment questions to discuss this proposition, supporting your response by reference to appropriate legal sources and literature.
(B) Brech & Brewer Ltd (B&B – a company incorporated in Canada) contracted with Smolkin Inc. (a company incorporated in Texas, USA) for the purchase of 500,000 barrels of Texas heavy crude oil, to be delivered in two instalments not later than 23 February 2010. B&B then contracted with ZhaoZhong Inc (ZZ – a company incorporated in the People’s Republic of China {PRC}) for the sale of the same 500,000 barrels of Texas heavy crude oil, delivery to be effected in one or two instalments not later than 1 March 2010.
In each agreement there was the same arbitration clause, as follows:
“The courts of England and Wales shall have exclusive jurisdiction. All disputes and differences between the parties hereto arising out of or in any way connected with this agreement shall be referred to London arbitration for final settlement.”
The oil was delivered on time to ZZ in the PRC, but ZZ immediately notified B&B that the oil was not Texas heavy crude oil but Texas light crude oil, which was of no use to ZZ. On 12 March 2010, ZZ gave notice to B&B of their intention to arbitrate and, on 16 March 2010, B&B applied to the Texas District Court for a freezing injunction so as to prevent Smolkin Inc. or its bank releasing the balance of Smolkin Inc.’s credit balance. Having obtained the injunction, on the same day B&B gave notice to Smolkin Inc. of its intention to arbitrate. ZZ and B&B appointed Chang Libao and Malcolm Boyle as their respective arbitrators, and those two appointed Gerard Shaw as Chair (the 1st arbitration). B&B and Smolkin Inc. appointed, respectively, Malcolm Boyle and Gerard Shaw as their arbitrators, and those two appointed Chang Libao as Chair (the 2nd arbitration).
In the first arbitration B&B applied to the tribunal to consolidate the 1st and 2nd arbitrations on the ground that the tribunals were the same and that the proceedings were so related to each other that it would be unjust for B&B to lose in both arbitrations. The 1st arbitration tribunal made a partial Award in which it declared that it declined to consolidate. B&B made a further application to the 1st arbitration tribunal asking that it stay the proceedings to await the outcome of the 2nd arbitration. ZZ opposed that application, but the tribunal issued an Order staying the 1st arbitration until the date of the final Award in the 2nd arbitration. The tribunal in the 1st arbitration also declared that the proper law of the arbitration clause was English law.
In the 2nd arbitration, Smolkin Inc. applied to the tribunal to refuse jurisdiction on the ground that B&B’s application for a freezing order demonstrated that they had abandoned the arbitration agreement in favour of litigation. The 2nd arbitration tribunal dismissed the application. The final Award in the 2nd arbitration, given on 13 May 2011, provided that Smolkin Inc must pay $ 750,000 compensation to B&B, and declared the governing law of the sale contract and of the arbitration clause to be the law of Texas. B&B has now applied to the New York District court for recognition and enforcement of the 2nd arbitration Award. Smolkin Inc. has filed to resist the application on the ground that the 2nd arbitration tribunal had no jurisdiction because the arbitration agreement was inoperative.
In the resumed 1st arbitration, ZZ requested the tribunal to admit the expert’s report on the nature of the oil (supplied to B&B by Smolkin Inc.) and to admit into evidence the final Award in the 2nd arbitration. The 1st arbitration tribunal did admit those documents into evidence and, after a trial lasting three days, issued an Award dated 24 August 2011 in favour of ZZ. B&B has now challenged the 1st arbitration Award on the grounds that (a) because the arbitrators also comprised the 2nd arbitration the tribunal they had heard evidence and were not, therefore, impartial and unbiased and, as a result, had no jurisdiction; (b) that admitting the documents from the 2nd arbitration was a serious irregularity; and (c) that the tribunal had made an error of law in admitting those documents.
Please advise Smolkin Inc., B&B and ZZ of their respective rights in relation to the court applications.
(C) Please analyse and assignment questions to discuss the relationship between the issues in Part (A) and the issues in Part (B): identifying similarities and discrepancies.
You are required to submit a single, coherent, and fully supported essay in which you answer the assignment questions to assignment questions to discuss in Part (A), Part (B) and Part (C).
The word length for the whole essay is 3,500 words in length (+ / – 10%), excluding footnotes and bibliography.
Although marks are not awarded separately for each of the three parts, your overall mark for this essay will be compromised if you fail to answer each part effectively.
The essay must be prepared and typed by you; presented in Times New Roman, font size 12; with 1.5 spacing; and with standard margins (2.54cms top and bottom, and 2.54cms left and right).