Review

Question 1

AQZ V. ARA

Answer 1

Changed the number of arbitrators because the ICC applied the new rules of proceeding. 3 arbitrators than 1

Question 2

Sources of law

Answer 2

International convention
National acts
Arbitration rules
Party autonomy
Soft law

Question 3

What is it about art. 2 NYC

Answer 3

Arbitration Agreement

Question 4

What is about article 2.1 of the New York convention

Answer 4

It’s about the legal relationship that is contained inside the agreement and it talks about the arbitrability because it mentions the capacity of the dispute to be settled by arbitration

Question 5

What is article 2.2 of the New York convention about?

Answer 5

It’s about the writing requirement of the agreement. It can be by the sign of the contract or exchange of letters

Question 6

Compagnie de Navigation et Transports v. Mediterranean Shipping

Answer 6

The bill of lading had an arbitration agreement without signature.
However because of the good faith it recognized the exchange of letters without a signature

Question 7

What is the battle of forms

Answer 7

The last shot rule says that the last set of rules that was proposed will be the one we’ll apply to the case

Question 8

What it is about article 2.3 of the New York convention

Answer 8

It is about the faculty that courts have to review an arbitration agreement and send it to the arbitral tribunal unless it is null, void, or inoperable. Is the contrary to the principal competence competence

Question 9

Tennessee v. Prix

Answer 9

Parties agreed in the arbitration court of Venice chamber of Commerce but this place doesn’t exist so with the interpretation of the court we understand that the place that the parties want to say is the ICC in Venice. Pro arbitri

Question 10

HKL V. RIZQ

Answer 10

Parties agreed in the Arbitration Committee at Singapore, but it doesn’t exit.

The Court stablized 4 elements to qualify the clause as effective:

1. To generate mandatory consequences
2. Exclude courts
3. Give power to the arbitrators
4. Find a clause that has the best conditions of efficiency and rapidity

Question 11

What are the theories for the choice of law_

Answer 11

1 Express choice of law by the parties
2 The law of the main contract
3. The law of the seat. Most accurate because of the article 5.1a New York Convention.
4. Transnational law

Question 12

Sulamerica v. ENESA

Answer 12

Three options for choosing the law.
1. The explicit choice
2. The implied choice
3. System of law with which the arbitration agreement has the closest and most real
connection

Question 13

Peterson Forms v. C&M FARMING

Answer 13

It talks about the group of companies doctrine, for the intention to bind non signatory parties.

Question 14

DALLAH V. Ministry of religious affairs of the government of Pakistan.

Answer 14

It’s possible to bind non signatory parties if they are involved in the contract performance. Therefore: implicit intention and behavior.

Question 15

PEPSICO V. Oficina Central de Asesoria y Ayuda Tecnica

Answer 15

One party intent to obtain an anti suit injection in the New York Court to stop the process in Caracas Court.
The New York court refused to enjoin the parallel proceeding in Venezuela. Venezuelan
court must be afforded the opportunity to determine the issue of arbitrability.

Question 16

West Tankers Case

Answer 16

One party intends to obtain an anti suit injunction to stop a process in one European country. However, because of the Brussels 1, it’s not possible to issue an anti suit injunction against other country of the European Union.

Question 17

What should the court review for the validity of the arbitration agreement?

Answer 17

1. Meeting of minds

2.The claim falls within the scope of the arbitration agreement.

3. That the arbitration agreement has all the requirements of the contractual law for validity
4. That the arbitration agreement is not inoperative or incapable of being performed.

Question 18

When the arbitration agreement is inoperative or incapable of being performed

Answer 18

When parties agreed in other settlement mechanism. Or when one party is enabled to fund the arbitration

Question 19

What is the difference between impecunious or insolvent?

Answer 19

That the insolvency receiver succeeds the arbitration agreement and the impecunious is no longer bindable to the arbitration agreement. (Switzerland)

Question 20

MENORA INSURANCE V. INX REINSURANCE

Answer 20

Facts: The parties entered into reinsurance contracts with arbitration clauses. The seat of arbitration is Israel. The parties had a dispute regarding an insurance claim. Menora sent INX a letter asking the latter’s assent to arbitration. INX stated it would not arbitrate because of its financial condition.

Menora foiled suit in Israel and was able to obtain a Default Judgment. Menora then filed an “exequatur” (action to execute a judgment from another jurisdiction) in San Juan (Puerto Rico) court. INX, however, moved to dismiss, invoking the arbitration agreement.

Held: INX waived its right to go to arbitration and only invoked the arbitration agreement during the enforcement proceedings. Arbitration clauses were not mean to be a weapon for imposing delay and costs in the dispute resolution process. Hence, INC’s motion was denied.

Question 21

What is Article 16.1 of the model law about?

Answer 21

It’s about the separability of the arbitration agreement from the contract and Competence competence

Question 22

SOJUZNEFTEEXPORT (SNE) V. JOC OIL LIMITED

Answer 22

The contract was never formed, so it’s possible to talk about the non existence of the arbitration agreement.

Question 23

LIS PENDENS IN ARBITRATION

Answer 23

It’s possible to challenge the jurisdiction decision, but the proceeding may continue according to the article 16.3 of the model law. This is also a conclusion that the arbitral tribunal doesn’t have full competence competence.

Question 24

FIRST OPTIONS V. KAPLAN

Answer 24

If the parties agree, is possible to exclude the review by the courts

Question 25

What are the elements of arbitrability?

Answer 25

Subjective element: Who is the party? Is it capable?
Objective element: Scope

Question 26

MITSUBISHI V. SOLER

Answer 26

For US, International arbitral tribunals have jurisdiction to decide matters involving federal antitrust
claims.
There is no reason to assume that international arbitration will not provide a mechanism to enforce US antitrust laws

Question 27

What is the law applicable to review the capacity of the parties?

Answer 27

The law applicable to the parties

Question 28

VIVENDI V. ELEKTRIM

Answer 28

One party is insolvent, but the court decide that when it signed the arbitration agreement, it was capable. So it’s enough.

Question 29

What are the restrictions for the arbitrability? According to the capacity of the parties,

Answer 29

Public entities incapable weaker parties.

Question 30

ECO SWISS V. BENETTON

Answer 30

The award issued by the arbitral tribunal should be in accordance with the public policys.

Question 31

FINCANTIERI V. IRAQ

Answer 31

If the substantive law has a provision measure, It doesn’t mean that the matter is non arbitrable.

Question 32

TOMOLUGEN V. SILICA

Answer 32

Minorities have a major level of protection and public interest.

Question 33

SYSKA V. VIVENDI

Answer 33

The capacity matters of the party should be review according to the law of the country of the party, not by the law of the seat.

Question 34

What are the requirements to issue an interim relief?

Answer 34

1. Request
2. Prima facie jurisdiction
3. Prima facie claim. It means that looks appropriate.
4. Urgency because we have a harm that is substantial and irreparable.

Question 35

What are the types of applicable law?

Answer 35

Arbitration agreement
merits
procedure
setting aside

Question 36

What is hierarchy for choosing the applicable law for the procedure?

Answer 36

General rule is the law of the seat.
1. Mandatory rules of the arbitration act, such as the rights and principles.
2. Agreed rules.
3. No mandatory rules of the arbitration act.
4. Discretion of the arbitral tribunal. According to article 22 ICC Rules

Question 37

What type of evidence do we have?

Answer 37

Documents
witness of facts
experts
Site inspections

Question 38

What are the requirements for the document production? According to the IBA rules on the taking of evidence.

Answer 38

Request
Specify the document
Explained I don’t have the document
Establish the importance of the document

Question 39

What are the constellations of the multi party arbitration?

Answer 39

From the start
Jjoiner and
Consolidation

Question 40

What are the requirements to have a multi contract process?

Answer 40

That the court or the arbitrage tribunal make a primal facie decision in which they can analice that the claims are compatible and that they can be determined in a single arbitration.