APPLICABLE RULES OF LAW

NINETEENTH ANNUAL WILLEM C. VIS

INTERNATIONAL COMMERCIAL ARBITRATION MOOT

and

NINTH ANNUAL WILLEM C. VIS (EAST)

INTERNATIONAL COMMERCIAL ARBITRATION MOOT

CHINA INTERNATIONAL ECONOMIC AND TRADE ARBITRATION COMMISSION (CIETAC)

Case No. M20110999

Mediterraneo Elite Conferences Services, Ltd, CLAIMANT

V.

Equatoriana Control Systems, Inc, RESPONDENT

Analysis of the Problem

For use of the Arbitrators

If you do not already have a copy of the Problem, it is available on the Moot web site, http://www.cisg.law.pace.edu/vis.html.

This analysis of the Problem is for the use of arbitrators. Arbitrators who may be associated with a team in the Moot are strongly urged not to communicate any of the ideas contained in it to their teams before the preparation of the memorandum for RESPONDENT. The analysis will be sent to all teams after the memorandum for RESPONDENT is submitted. Many of the team coaches/professors participate as arbitrator at the Moot and therefore receive this analysis and it only seems fair that all teams should have it for the oral arguments. If it contains ideas they had not thought of before, it will still be necessary to construct the arguments to support the position they are taking.

All arbitrators should be aware that the legal analysis contained herein is probably not the only way the Problem can be analyzed. It may not even be the best way that one or more of the issues can be analyzed. Full credit should be given to those teams that present different, though properly developed and fully appropriate, arguments.

Table of Contents

REGULATORY AND FACTUAL FRAMEWORK.................................................................... 3

PARTIES........................................................................................................................................................................... 3

CONTRACT..................................................................................................................................................................... 3

Arbitration Clause......................................................................................................... 3

APPLICABLE RULES OF LAW............................................................................................................................... 4

SUMMARY OF FACTS................................................................................................................................................ 4

ISSUES...................................................................................................................................... 6

Has this Arbitral Tribunal the Power to Remove Dr Mercado from the Arbitral Process? 7

Relevant Facts............................................................................................................................................................ 7

Legal Analysis............................................................................................................................................................. 8

Can RESPONDENT reserve its right to challenge Professor Presiding Arbitrator?.... 10

Relevant Facts......................................................................................................................................................... 10

Legal Analysis.......................................................................................................................................................... 10

Has RESPONDENT Breached the Contract?........................................................................................... 12

Can RESPONDENT Rely on Article 79 CISG and Be Exempted from Obligation to Pay Damages? 13

What losses may be recoverable? Is CLAIMANT entitled to damages amounting to USD 670,600. 14

What is the Impact of the Alleged Bribery?........................................................................................... 15

REGULATORY AND FACTUAL FRAMEWORK

PARTIES

Mediterraneo Elite Conference Services, Ltd (hereinafter referred to as “CLAIMANT” or “Elite”) is a company incorporated under the laws of Mediterraneo; it operates high-end venues for conferences held by small to medium sized businesses and professional associations. It has six land-based facilities and, in spring 2010, purchased a luxury yacht, the M/S Vis, for use as a seventh conference venue. CLAIMANT sought to refurbish the yacht to a high level of luxury, superior to anything else available on the market. In order to do so, CLAIMANT engaged a number of subcontractors and suppliers to work on the refurbishing.

Equatoriana Controls Systems, Inc (hereinafter referred to as “RESPONDENT” or “Controls Systems”) is a company organised under the laws of Equatoriana. RESPONDENT contracted with CLAIMANT to supply, install and configure a Master Control System on the M/S Vis yacht. The parties' dispute arises from this contract.

CONTRACT

CLAIMANT sought to refurbish the M/S Vis yacht with the latest in cabin and conference technologies, superior to anything otherwise available on the market. In particular, the conference technology had to meet the highest standards. Elite managed the refurbishment itself, using a range of subcontractors and suppliers. The refurbishing of the M/S Vis was scheduled to be completed on 12 November 2010.Elite scheduled ten weeks for testing all of the systems prior to scheduling the first event.

Elite contracted the supply and installation of the various elements of the on-board technology to a number of firms, including the RESPONDENT, Equatoriana Control Systems, Inc. The contract with Control Systems was signed on 26 May 2010. (CLAIMANT’s Exhibit No. 1)

RESPONDENT was to supply, install and configure the master control system that is critical to venue operation, working with other specialist suppliers and installers to make sure everything functioned according to plan. The core element in the overall control system is a series of semi-configurable processing units. Manufacture of the processing units was to be done by Oceania Specialty Devices, incorporated in Oceania (hereafter “Specialty Devices”).

Arbitration Clause

The arbitration clause is found in the Contract (CLAIMANT’s Exhibit No. 1). It reads as follows:

“15.1 Any dispute arising from or in connection with this Contract shall be submitted to the China International Economic and Trade Arbitration Commission for arbitration which shall be conducted in accordance with the Commission’s arbitration rules in effect at the time of applying for arbitration. The arbitral award is final and binding upon both parties. The arbitration shall take place in Vindobona, Danubia. The arbitration shall be in the English language. “

This clearly calls for arbitration in accordance with the CIETAC Rules in force at the commencement of the arbitration. The seat of arbitration is Vindobona, Danubia and language of the proceedings English.

APPLICABLE RULES OF LAW

Date: 2015-12-11; view: 1122