Arbitration Practice & Procedure

 

 

 

Q1: Arbitration Agreement

1 February 2005

Dear Sir

Re: An Improved Arbitration Agreement.

We, the undersigned parties, hereby agree to submit to arbitration for the dispute that the claimant has suffered a loss of sales due to the non-delivery of suits, faulty cloth and the damage to her reputation following the leak of her design to another manufacturer while the respondent counterclaim for the unpaid balance of the accounts and the damage to his reputation due to the false accusations of the leak of the design. We further agree that the above dispute be submitted to a sole arbitrator who shall be a lawyer with 10 years active practice in international commercial contracts and that the London Court of International Arbitrators (LCIA) arbitration rules shall apply[1]. The language of the proceeding shall be both English and Arabic[2]. The seat and place of arbitration shall be London and the English law shall apply[3]. We further agree that we shall respect this agreement and the rules, that we will abide by and perform any award rendered by the arbitrator, and a judgement taken by any court that has a jurisdiction may enter on the award[4].

Yours Faithfully

(Name)

cc: Lawrence, West and Freebold for Rosie Cheung, London, Ontario, Canada

cc: Cantwell & Cochran, Attorneys for Egyptian Ethnic Cottons SA, Alexandria, Islamic Rep. Egypt

Q2: Commencing Arbitration

9 February 2005

Dear Sir

Re: Commencing Arbitration

 I thank the parties for finding me fit to arbitrate in this dispute. I assure the parties that I shall be an impartial arbiter and strictly adhere to the rules that they have agreed[5]. With their cooperation, I commit to arbitrate over this matter as swift and practical as the fact and the nature of the dispute will allow.

Having said that, I now here direct that, I now here direct that:

1.     The hearing shall be conducted at Victoria court located along the Victoria Street in London. The hearing and the proceedings will be conducted both in English and Arabic.

2.     i) The respondent shall serve its submission and evidence on dispute on  15th  March 2005

ii) The claimant shall serve its submissions and evidence on the dispute 16th March 2005

iii) The hearing of the dispute shall take place on 17th March February 2005.

3.     In accordance with Article 15 of the LCIA Rules:

i)               The claimant is hereby required to submit a statement of the case in sufficient detail of the facts and any contentions of law on which it relates plus all the relief sort  on 17th February 2005[6]

ii)             On 21th February, the respondent shall serve its defence setting out in sufficient detail which of the facts and contentions of law in the statement of case it admits or denies, on what grounds it denies or admits and the law supporting the position. The counterclaims should accompany the statement of defence.[7]

This shall mark the end of submission unless otherwise agreed by the arbitrator.

4.     In regard to the disclosure of documents, as stated in section 34(2)(d) of the English Act, any party may request the other party to submit the requested party within a period agreed by the arbitrator. In case of objection, the requested party is supposed to file the grounds for objection with the arbitrator and a determination shall be made within the shortest time possible.

5.     In regard to direction 4, the parties are herby assured that the arbitration shall be confidential. The confidentiality rule applies to the hearing, the documents tabled and even to the award. Where there shall be dispute in regard to the disclosure of documents, the arbitrator shall rely on the wisdom of the court as seen in Ali Shipping Corp v Shipyard Trogir[8].

6.     The parties shall exchange signed witnesses of facts on 24th February 2005.

7.     Any intention of bringing experts should be notified to the arbitrator by 23rd February 2005

8.     The parties are allowed to suggest variation to these directions with their reasons for the variations.

 

Yours Faithfully

(Name)

cc: Lawrence, West and Freebold for Rosie Cheung, London, Ontario, Canada

cc: Cantwell & Cochran, Attorneys for Egyptian Ethnic Cottons SA, Alexandria, Islamic Rep. Egypt

Q3; Issues for Determination

1.     Was there an agreement?

2.     What were the terms of agreement if it existed?

3.     If the contract existed, were the terms of the contract breached?

4.     Was there any agreed cost of doing the work?

5.     What would be cost of doing the work in normal market rate?

6.     If the respondent violated the terms of the contracts, what would be the (i) damages, (ii) interests, and (iii) costs incurred as a result of the breach of the contract.

7.     If the respondent did the work, what was the proper amount of settling the account? And,

8.     If the account was not settled within the agreed and reasonable time, what would be the interest and the costs associated with the delay.

 

Q4: Exchange of Information

8 March 2005

Dear Sir

In light of your request, I would like you to list the points that you want clarified. The points you request must be the necessary points that will aid in quick determination of this matter.

 I therefore direct that your point of clarification will be examined on their relevance to the material issue in dispute and whether they will be important for the outcome of the case. Your request must also be within the power of the arbitrator to grant and that the request will only be granted of the information sort can only be obtained from the claimant. The arbitrator wishes to caution any party from engaging in duplication or redundant clarifications. On that note, I hereby direct that you make your clarification brief and direct to the point.

Yours faithfully

8 March 2005

cc: Lawrence, West and Freebold for Rosie Cheung, London, Ontario, Canada

Q5: Oral hearing and Award of the Substantive Claim

14 April 2005

Dear Sir

Thank you again for your continued cooperation and your committed determination to conclude this dispute swiftly. In response to your letter, I would like to let you know that, according to Article 19(1) of the LCIA Rules, parties are entitled “to be heard orally before the tribunal on the merits of the dispute, unless the parties have agreed in writing on documents-only arbitration”

On that note, I hereby direct that:

  1. The oral hearing date shall be between 24th and 27th February 2005. The place of hearing shall be Victoria court located along the Victoria Street in London. This letter shall accordingly serve as the notice of the hearing[9].
  2. The parties should focus on the quality of the cloth that was agreed among them and whether there was leak of any design to another manufacturer.
  3. The parties disclose the expert witness they wish to produce in the course of hearing.
  4. Each side shall be restricted to one expert witness only[10]
  5. In accordance with LCIA rule 19(4) the hearing shall be conducted in private.

As in regard to making the offer, any offer made shall be submitted to the arbitrators officer sealed. The offer made will be used in deciding the issues of cost. The awards will be entered on 29 March 2005.

Yours Faithfully

(Name)

cc: Lawrence, West and Freebold for Rosie Cheung, London, Ontario, Canada

cc: Cantwell & Cochran, Attorneys for Egyptian Ethnic Cottons SA, Alexandria, Islamic Rep. Egypt

 

 

 

 

Bibliography

Books & Journals

Binde P, ‘International Commercial Arbitration and Conciliation In Uncitral Model Law Jurisdictions’ (Sweet & Maxwell, 2005) 201

Mehren G and C Salomon, ‘Submitting Evidence in an international Arbitration: The Common Lawyer’s Guide’. [2003] 20/3 Journal of international Arbitration 233

Rainer D, ‘The Impact of West tankers on Parties’ Choice of a Seat of Arbitration’ [2010] 95 Cornell Law Review 431

Turner R, ‘Arbitration Awards: A Practical Approach’ (Blackwell Publishing, 2005)

Cases, Statutes and Arbitration Rules

Ali Shipping v Shipyard Trogir [1998] 2 All ER 136

Arbitration Act 1996

Braes of Doune Wind Farm (Scotland) Ltd v Alfred McAlpine Business Services Ltd [2008] EWHC 426

C v D [2007] EWCA Civ 1282

LCIA Rules

M Cato, Julian R Merkin, ‘Arbitration practice and procedure: Interlocutory and hearing problems. ( Lloyd’s Commercial Law Library, 2012)

Sulamerica CIA Nacional de Seguros SA and others v Enesa Engenharia SA and others [2012] EWCA Civ 638

UNICTRAL Model Law

 



[1] Rainer D, ‘The Impact of West tankers on Parties’ Choice of a Seat of Arbitration’ [2010] 95 Cornell Law Review 431

[2] P Binder, ‘International Commercial Arbitration and Conciliation In Uncitral Model Law Jurisdictions’ (Sweet & Maxwell, 2005) 201

[3] Sulamerica CIA Nacional de Seguros SA and others v Enesa Engenharia SA and others [2012] EWCA Civ 638

[4] Braes of Doune Wind Farm (Scotland) Ltd v Alfred McAlpine Business Services Ltd [2008] EWHC 426

 

[5] Arbitration Act 1996, s.33(1)

[6] LCIA Rule 15.2

[7] LICIA Rule 15.3

[8] Ali Shipping v Shipyard Trogir [1998] 2 All ER 136

 

[9] M Cato, Julian R Merkin, ‘Arbitration practice and procedure: Interlocutory and hearing problems. ( Lloyd’s Commercial Law Library, 2012)

[10] G Mehren and C Salomon, ‘Submitting Evidence in an international Arbitration: The Common Lawyer’s Guide’. [2003] 20/3 Journal of international Arbitration 233

 

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