International Arbitration
PART 1 (40 marks) – ALL Questions in Part I MUST be answered (read each question carefully):
Note: In addition to any other reasons/references/explanations that a candidate ought to / may be required to provide when addressing questions arising out of the fact matrix below, the answers should also (where possible to do so) give reasons and refer to the UNCITRAL Model Law on International Commercial Arbitration 2006 (UML) and the UNCITRAL Arbitration Rules 2013 (UAR).
QUESTION 1:
(a) You are the Sole Arbitrator in a dispute between two pharma manufacturing companies over an alleged breach of scope of use of intellectual property (as enshrined in the contract) due to unlawful termination.
During the pre-hearing conference, both parties agreed that instead of oral closing submissions, they would want to submit post-hearing briefs (i.e. as written submissions).
As Sole Arbitrator, upon going through the closing written submissions, it dawns upon you that the Claimant has presented a new argument in its post-hearing brief.
(i) Upon receiving the Claimant’s said post-hearing brief, the Respondent immediately objected on the basis this new argument cannot be presented when the Respondent no longer had an opportunity to respond / rebut this new argument. As Sole Arbitrator, what would you do? (10 marks)
(ii) Based on the above fact scenario, can the Respondent challenge the Award or resist its recognition/enforcement if you (as Sole Arbitrator) allow the Claimant to present this new argument in its post-hearing briefs? If yes, on which ground(s)? Explain in detail. (10 marks)
(b) An Arbitral Tribunal (AT) has issued its Final Award which is substantially in favour of the Claimant. The juridical seat of the arbitration is Italy. The Respondent feels outraged and aggrieved on a number of grounds:
(i) AT has made an error in its calculation of damages, in that it has failed to properly apply a formula agreed by quantum experts of both the Claimant and Respondent during the hot-tubbing session;
(ii) reasoning appears to be inconsistent and flawed; and (iii) AT appears to have drawn on its own technical expertise (as two of the three members of the AT are engineers) in reaching its conclusion on an important and high value element of the claim, but it has not put the relevant analysis to the parties for their consideration and submissions.
How and on what basis might the Respondent challenge the Final Award or resist enforcement, either in the seat of the arbitration or elsewhere? (10 marks)
(c) What are the various points/issues to be covered/identified/discussed by the AT during a Pre-hearing Conference? (10 marks)
PART 1I (60 marks) – ELECTIVE QUESTIONS (read each question carefully):
Answer any 3 (three) whole questions from Questions 2 to 6 (each question carries 20 marks in total)
QUESTION 2:
In international arbitration, why is there a commonly accepted notion that an Arbitrator must, at all times (i.e. not just during the arbitration proceedings themselves), be and remain independent and impartial? elaborate. (20 marks)
QUESTION 3:
Litigation, Arbitration and Mediation: Compare and contrast each of these processes with each other. Further, describe any 3 (three) other ADR processes that parties to a dispute may take recourse to. Furthermore, what are the advantages and disadvantages of a hybrid procedure such as Med-Arb or Arb-Med? (20 marks)
QUESTION 4:
Basis for and factors to be considered by the Arbitral Tribunal (and its consequent implications) when considering the following applications during an arbitration proceeding:
(a) Security for Costs (10 marks)
(b) Amendment of Pleadings (10 marks)
QUESTION 5: Challenge to an Arbitral Tribunal (AT) – Appointment and Bias:
(a) Explain the procedure and basis for challenging the appointment of an AT under the UML and UAR. (7 marks)
(b) With reference to the decision of the Supreme Court of the United Kingdom in Halliburton Company v/s Chubb Bermuda Insurance Ltd. [(2020) UKSC 48], explain, in sufficient detail, the concept of arbitrator bias.
Also briefly explain this concept from the perspective of the decision by the Swiss Federal Tribunal (SFT) in Sun Yang v. Agence Mondiale Antidopage (AMA) and Fédération Internationale de Natation (FINA) . (13 marks)
QUESTION 6: Arbitration agreements (AAs) and separability / severability and jurisdiction and pathological AAs:
(a) Explain the doctrines of severability / separability of AAs and Kompetenz-Kompetenz. Further, elaborate how, if at all, these doctrines have been incorporated in and are supported either by the UML or UAR.
Finally, what are the practical consequences in an arbitration of each of these doctrines? (10 marks)
(b) With reference to the jurisprudence stemming from the Singapore Court of Appeal decision in Insigma Technology Co. Ltd. v/s Alstom Technology Ltd. [2009] SGCA 24: Where an Arbitral Institution (AI) is appointed, do the parties have to adopt the procedural rules of the AI or are they free to elect any rules they see fit? (8 marks)
(c) Name any 4 (four) Arbitral Institutions that have updated their Arbitration Rules w.e.f. 2021
