Resit April 2019
Question 1
(a) A dispute arises between A and B. A files a request for arbitration. A nominates professor X as
arbitrator. B files a short answer, in which it requests that C is joined in the arbitration. B and C do
not come to an agreement on the nomination of an arbitrator. Under the applicable arbitration rules
of the NAI, the parties are now provided with a list of potential arbitrators, from which the parties
may strike out the arbitrator(s) they deem unsuitable to serve as arbitrator. The list includes
professor X. None of the parties strikes out professor X, and the NAI appoints professor X as
arbitrator. After the rendering of the final award, B and C seek setting aside of the arbitral award for
professor X being not impartial and independent. After all, professor X was first nominated by party
A.
Discuss whether the request for setting aside is likely to be successful. Assume the Model Law and
the UNCITRAL Arbitration Rules apply for the purposes of this question. (4 points)
The answer should contain the following elements:
A reasoned discussion of the duty – upon the penalty of loss of right – to invoke the alleged lack of
impartiality and independence within 15 days of becoming aware of the basis for such challenge (art
13 ML and art 11(1) UNCITRAL Rules, with reference to artt. 9 and 10) and consequently, the (limited)
odds of success of a request for setting aside under art. 34 ML (2(a)(iv) or 2(b)(ii)).
(b) C(laimant) and R(espondent) are in an arbitration proceedings conducted under the auspices of
the LCIA. The seat of the arbitration is London. R is of the opinion that the agreement to arbitrate on
the basis of which C has commenced the arbitration proceedings, is invalid. R’s counsel writes a letter
to the Secretary-General of the LCIA, requesting that the LCIA not appoint arbitrators in this case.
What would your response as Secretary-General of the LCIA be? Assume the Model Law applies. (3
points)
A reasoned discussion of the arbitrator’s right (and obligation) to assess their own competence under
article 16 Model Law.
(c) Assume that two parties have agreed on the following dispute settlement arrangement:
"In the event of any dispute arising out of or in connection with the present contract, the parties shall
first refer the dispute to mediation. All disputes arising out of or in connection with the present
contract shall be finally settled under the Rules of Arbitration of the International Chamber of
Commerce by one or more arbitrators appointed in accordance with the said Rules."
May a party that lacks faith in mediation proceed directly to arbitration? (3 points)
The answer must contain a reasoned discussion of the fact that this depends on the applicable law
and what are the possible outcomes. Also correct: a reasoned discussion of the enforceability of the
above clause under the Directive.
Question 1
(a) A dispute arises between A and B. A files a request for arbitration. A nominates professor X as
arbitrator. B files a short answer, in which it requests that C is joined in the arbitration. B and C do
not come to an agreement on the nomination of an arbitrator. Under the applicable arbitration rules
of the NAI, the parties are now provided with a list of potential arbitrators, from which the parties
may strike out the arbitrator(s) they deem unsuitable to serve as arbitrator. The list includes
professor X. None of the parties strikes out professor X, and the NAI appoints professor X as
arbitrator. After the rendering of the final award, B and C seek setting aside of the arbitral award for
professor X being not impartial and independent. After all, professor X was first nominated by party
A.
Discuss whether the request for setting aside is likely to be successful. Assume the Model Law and
the UNCITRAL Arbitration Rules apply for the purposes of this question. (4 points)
The answer should contain the following elements:
A reasoned discussion of the duty – upon the penalty of loss of right – to invoke the alleged lack of
impartiality and independence within 15 days of becoming aware of the basis for such challenge (art
13 ML and art 11(1) UNCITRAL Rules, with reference to artt. 9 and 10) and consequently, the (limited)
odds of success of a request for setting aside under art. 34 ML (2(a)(iv) or 2(b)(ii)).
(b) C(laimant) and R(espondent) are in an arbitration proceedings conducted under the auspices of
the LCIA. The seat of the arbitration is London. R is of the opinion that the agreement to arbitrate on
the basis of which C has commenced the arbitration proceedings, is invalid. R’s counsel writes a letter
to the Secretary-General of the LCIA, requesting that the LCIA not appoint arbitrators in this case.
What would your response as Secretary-General of the LCIA be? Assume the Model Law applies. (3
points)
A reasoned discussion of the arbitrator’s right (and obligation) to assess their own competence under
article 16 Model Law.
(c) Assume that two parties have agreed on the following dispute settlement arrangement:
"In the event of any dispute arising out of or in connection with the present contract, the parties shall
first refer the dispute to mediation. All disputes arising out of or in connection with the present
contract shall be finally settled under the Rules of Arbitration of the International Chamber of
Commerce by one or more arbitrators appointed in accordance with the said Rules."
May a party that lacks faith in mediation proceed directly to arbitration? (3 points)
The answer must contain a reasoned discussion of the fact that this depends on the applicable law
and what are the possible outcomes. Also correct: a reasoned discussion of the enforceability of the
above clause under the Directive.
