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20/21 EXAM 1st sit with answers
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20/21 EXAM 1st sit with answers
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Question 1These days, sustainability is a key notion. Hemp provides for nature friendly industrial production of
manifold consumer goods (e.g. clothing, furniture, and even bikes and cars). The hemp-business is,
however, still in its relative infancy. Doing business in this industry, requires one to be well-connected
and, quite frankly, well-liked. Hemp is, in other words, 'a people business'. At the same time,
confidentiality is a key issue in light of large investments in research & development and the protection
of IP rights.
In March 2020, a Dutch agricultural firm and a German furniture producer concluded a contract for the
supply of 2 million kilogram of hemp for 200.000 Euro to be delivered by the Dutch agricultural firm to
the furniture production plant in Gütersloh (Germany) by June 1 st, 2020.
Due to a delay in harvesting, however, the supply of the hemp is several months overdue. Suffering
losses because it is forced to postpone production, the German furniture producer plans to take action
against the Dutch agricultural firm (claim: compensation of losses as a consequence of undue delay).
(a) Your client, the Dutch agricultural firm, requests you to draft a dispute resolution clause.
What dispute resolution mechanism would you advise? Please explain in detail. (3 points)
In the end, the parties do not succeed in agreeing on a dispute resolution clause. Please answer the
following questions on the basis of this fact.
(b) After the dispute arises, the German furniture producer seeks to commence legal
proceedings. In which country may the German furniture producer start action against the
Dutch agricultural firm? Can it resort to arbitration? Why (not)? (3 points)
Suppose that the legal relationship between these parties would generate an even more sustainable
production process, resulting in the following obligations: the Dutch agricultural firm would have to
supply hemp, the German furniture producer in return would have to supply the waste and thermic
energy resulting from the production process to the Dutch firm, without further payment by either
party.
(c) Explain in which country the German furniture producer may start action against the Dutch
hemp producing firm. (2 points)
(d) Explain which law applies to the claim. (2 points)
Question 2
You are a counsel in the field of international arbitration, and well respected in the field. Rightly so,
given your host of experience in complex cases. Although this is not your primary expertise, you've
taken on a complex construction matter for a construction company, with its habitual residence in
France. The construction company is held liable for (alleged) non-performance in the building of a
football stadium in the Ukraine. The contract you've been presented by your client, is a FIDIC contract,
providing for arbitration with a seat in Moscow. The Parties have also agreed to the applicability of the
Uncitral Arbitration Rules. As per the Russian arbitration act, Russia-seated arbitral tribunals must be
presided by a lawyer. Otherwise, the Unicitral Model Law applies.
, (a) The arbitration proceedings commence. Your counterparty appoints as arbitrator an
engineer with relevant technical expertise. What type of arbitrator would you recommend your
client to appoint? Why? (3 points)
(b) After the constitution of the tribunal, the parties and the tribunal engage in a case
management conference. At that conference, during a break, you hear the presiding arbitrator
and opposite counsel discuss how the matter will be dealt with, substantively. What do you
advise your client to do? Why? (3 points)
(c) The arbitration proceeds and the arbitral tribunal renders an award, awarding your client a
significant sum in costs. The counterparty is not happy, and commences proceedings for the
annulment (setting-aside) of the award in France, the place of your client's habitual residence.
Your client asks you to assess the odds of success of this action by its counterparty. What will
you advise? (4 points)
Question 3
On the basis of a contractual relationship between Oil Corporation SeaShell (US) and PipeLine
Manchester Plc. (UK), the latter company constructed versatile pipe line projects in Saudi Arabia. The
agreement between both parties contains the following clause:
‘All contractual disputes related to a series of pipe line Projects No. I – X shall be submitted to
arbitration under the auspice of the Netherlands Arbitration Institute in The Hague (NAI - NL)’
Most projects are finished in time and adequately. Three projects, however, give rise to disputes:
Projects I and II have oil leaks in the pipeline, and Project V causes damage to installations belonging to
Oil Corporation SeaShell US as a result of gross negligence by PipeLine Manchester Plc.
Arbitration proceedings in The Hague commence. During the proceedings, the conflicting parties reach
an agreement on Project No I (the respondent, PipeLine Manchester Plc., will make repairs and pay
damages), however, not on Projects No II and V.
The arbitral award orders the respondent, PipeLine Manchester Plc., to pay damages, resulting from
improper performance under Project No II and for gross negligence (tort) under Project No V.
Oil Corporation SeaShell (US) seeks enforcement of the award on assets and bank accounts of PipeLine
Manchester Plc. in both the US and England. The latter, however, is determined to contest the award,
and, as a reason for that also to suspend payment of damages as agreed under Project No. I.
(a) Explain on which legal ground PipeLine Manchester Plc. could contest the enforcement of
the arbitral award. (4 points)
(b) Critically comment on the legal position of Oil Corporation SeaShell (US) in respect of Project
No. I. (3 points)
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