Topic:  international commercial arbitration

Order 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 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 1^st 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 2^nd arbitration).

In the first arbitration B&B applied to the tribunal to consolidate the 1^st and 2^ndarbitrations 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 1^starbitration tribunal made a partial Award in which it declared that it declined to consolidate.  B&B made a further application to the 1^st arbitration tribunal asking that it stay the proceedings to await the outcome of the 2^nd arbitration.  ZZ opposed that application, but the tribunal issued an Order staying the 1^st arbitration until the date of the final Award in the 2^nd arbitration.  The tribunal in the 1^st arbitration also declared that the proper law of the arbitration clause was English law.

In the 2^nd 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 2^nd arbitration tribunal dismissed the application.  The final Award in the 2^nd 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                                                                                                                                           Continued

clause to be the law of Texas.  B&B has now applied to the New York District court for recognition and enforcement of the 2^nd arbitration Award.  Smolkin Inc. has filed to resist the application on the ground that the 2^nd arbitration tribunal had no jurisdiction because the arbitration agreement was inoperative.

In the resumed 1^st 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 2^nd arbitration.  The 1^st 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 2^nd 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 2^nd 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 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 questions 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.

This assessment carries 70% of the total marks for the module.

 

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).  Please remember to number the pages, and to use one side only of each sheet of paper.

Please use one side only of each sheet of paper.

Please remember to use footnotes, and to include a bibliography at the end of your essay.  Please state at the end of the bibliography the number of words used.  Unless there is a misuse of the footnote system, the word count does not include footnotes; and the word count does not include the bibliography.

The assessment criteria are set out in the Module Handbook.

From the moment that this essay question is released by the module leader, each student taking the module must work entirely on her or his own: there must be no discussions with other students or with anyone else, and each student must work entirely on his or her own without help of any kind from any other person, whether a student or otherwise.  The University’s regulations which prohibit collusion and plagiarism apply to this assessment (as they do to all assessments).  Please see and observe the additional information and comment below and overleaf.

Please remember to attach the correct form CA1 to the front of your essay before submission in the postgraduate assessment bin on the ground floor of the Wells Street building.

This assessment is subject to the submission requirements and to the JISC Plagiarism Detection Service procedures which are explained below.

WARNING REGARDING PLAGIARISM

Every year, despite warnings, a small number of LLM students take the view, for whatever reason, that they can cheat.  When they are discovered, as they always are, they are referred by teaching staff to the Campus Academic Quality Manager and dealt with in accordance with the rules of the University.  At the very least, they receive a zero grade and must retake the module in question in the following year at further cost.  At the very least, by such conduct they make it impossible for members of staff to provide a positive reference for them in future.  At the very least, they must attend a meeting with the Course Leader to explain what they have done and to reassure him or her that they will not re-offend.  This is the minimum possible punishment.  As the rules make clear, students breaking these rules are likely to have their registration suspended or be excluded from the whole course.

For the avoidance of doubt, when it comes to plagiarism and other forms of cheating, we adopt a ZERO TOLERANCE APPROACH and ALWAYS recommend the TOUGHEST POSSIBLE PUNISHMENT to the Campus Academic Quality Manager.

We make no apology for this strongly worded warning.  It is designed to deter the small minority who may be tempted to cheat and to reassure the vast majority of students that their hard work will not be compromised by cheats.  If you are in any doubt, the onus is on you to check with the Course Leader or Module Leaders.

SUBMISSION REQUIREMENTS AND ADVICE

You are required to submit your essay in the following two formats: (1) as a word-processed, printed essay with a firmly attached form CA1 in the assessment bin for LAW (ie. in the usual way); and (2) electronically in accordance with the JISC procedures which are set out below.  In each case, submission must not be later than the date and time given above on page 1.

You MUST submit precisely the same version of your essay in paper form and electronically.

It is imperative that you submit the correct version of your essay first time.  It is not possible to recover your essay once submission has been completed either in paper form or electronically.  You must, therefore, adopt effective project management techniques – including backups of disks – from the outset.

JISC instructions

Once you have submitted your essay electronically, you will receive confirmation of submission from the JISC PDS service (which you should print and keep).  The outline instructions for electronic submission to the JISC PDS service are given below.

There is a student User Manual available on JISC once you have reached the www.submit.ac.uk site.