NUMBER 1
a) Explain the concepts of Kompetenz-kompetenz and severability / separability of the arbitration clause / agreement and describe how, if at all, both have been incorporated in and are supported by either the UNCITRAL Model Law or the UNCITRAL Arbitration Rules. What are the practical consequences in an arbitration of each concept? (20 marks)
b) Are there any formal requirements for a valid arbitration agreement under the ML and if so what are these? Draft an arbitration clause that would be suitable for use in an international supply contract. (20 marks)
NUMBER 2
What are the requirements of a valid final award under the UNCITRAL Model Law and UNCITRAL Arbitration Rules? A party which is dissatisfied with an award has two avenues by which it may, potentially, avoid having to comply with the award. What are they? To what extent are these provisions consistent and to what extent may they, in practice, conflict? (30 Marks)
NUMBER 3
An arbitrator must be both independent and impartial. The Model Law requires disclosure by arbitrators of “circumstances which may give rise to justifiable doubts as to impartiality and independence”.
(a) What rights do the parties have if the arbitrator does not comply with the duty of disclosure? (15 marks)
(b) Which of the following would you disclose and when and why? If your answer is that there is no need to disclose please give reasons.
i) One of the parties is a public listed company. Your share portfolio, which is managed for you by your broker, invests only in public listed companies. One month before your appointment your broker purchased 2% of the shares in the party to the arbitration. You were unaware of this at the time but his quarterly report to you, provided a month after your appointment, lists the shares as being part of your portfolio.
ii) You have been appointed as the chairman of a tribunal in a dispute between party A and party B. Party B wishes to appoint you as its party nominated arbitrator in a dispute between Party B and Party C. The two disputes are unrelated and arise from totally separate facts and contracts.
iii) You attended at the same school and university as one of the persons claimed to be interested in the outcome of the arbitration. You were two years junior to the person and did not know them at all at school. At university you were both members of the University Law society, of which the relevant person was the president.
iv) Your law firm has regularly acted for one of the parties to the dispute but is not acting for it on the current dispute (15 marks)