Arbitration Law –
Coursework Assignment 2016-2017
Coursework Assignment Guidelines
Students are required to answer the coursework questions set out below.
The following guidelines must be strictly adhered to:
1. All propositions referred to in the coursework paper must be
supported by an appropriate reference to a case, statute, book,
article or another authority.
2. The maximum overall word limit is 4,500 words. You are allowed to
deviate from this up to the maximum of +/-10% of the specified
word count. Otherwise, the limit must be adhered to, or the student
will be penalised. Each submission must include a word count.
Words in footnotes must be included when taking into account the
coursework word count. Words in title page and bibliography are not
included in the word count.
3. The coursework assignment consists of two components: the legal
problem question and the essay topic.
There is a guideline word count assigned to each of the
components: 3,500 words to the legal problem question and 1,000
words to the essay topic. These word count guidelines are for
guidance only, are approximate, and students are free to deviate
from them, as long as the overall word limit for both questions
(4,500 words) is adhered to.
If the guideline word count is further subdivided, e.g. within
different parts of the legal problem question, students are free to
deviate from those as well, as long as the overall word limit for both
questions (4,500 words) is adhered to.
If there is a substantive connection between the two questions,
there is no need to repeat the same analysis/ideas twice; students
are allowed to refer to other parts of their coursework where
necessary.
The overall weight of the coursework assignment in
Arbitration Law module is 80% of the module mark. Within it,
there is a percentage of the overall mark assigned to each of the
two components of the coursework: 60% for the legal problem
question and 20% for the essay topic. While it does reflect their
relative importance and serves as a guideline, there will be no
separate marks awarded for the legal problem question and for the
essay topic. Instead, only one mark will be awarded for the whole
coursework paper reflecting the student’s overall performance on all
questions.
4. Coursework is assessed according to the criteria in the Postgraduate
Grading Grid which can be found in the appendix to the Module
Handbook.
5. OSCOLA standard of citation must be followed throughout the
coursework. Footnotes must be included in the coursework. A
bibliography must appear at the end of the coursework; there
should be only one bibliography for the whole coursework. The
bibliography must contain all relevant material consulted by the
student, and material in the bibliography should be arranged under
the following headings, where applicable:
Case Law
Legislation
Books
Articles
Internet resources
Other resources
6. Footnotes must be used for referencing and further reading only and
should contain as little text as possible.
7. The completed coursework assignment must be submitted, prior to
the submission deadline (see below), via an electronic dropbox set
up on the UNIVERSITY online Campus Moodle within the Arbitration
Law module. One submission only is permitted to avoid multiple
submissions (where a later submission by a student is stated or
intended to supersede an earlier one). Students must be satisfied
that the version of the completed coursework is the absolutely
final version prior to submission. Completed coursework
submissions must not under any circumstances be directly
emailed to the module coordinator or tutors.
8. The completed coursework assignment must be submitted using the
template (a Microsoft Word document cover sheet) provided on the
UNIVERSITY online Campus Moodle within the Arbitration Law
module. The template must be completed in full prior to
submission. Use of the template is intended to ensure that the
coursework submission is contained in a single document and
contains all relevant student details. This will make a submission via
the electronic dropbox simpler.
Coursework Assignment
Section A: Legal Problem
Coursework Assignment
Section A: Legal Problem [60% of the overall mark]
Guideline word count: 3,500 words
Massive Resorts Ltd (hereinafter “Massive”), a company with its registered
office in Glasgow (Scotland), is a world-renowned developer specialising in
luxury hotels and resort areas. Massive has considerable experience with
projects in exotic locations around the globe, particularly in the Pacific
Ocean. They have recently won a lucrative contract with the Government
of Xanadu (an independent sovereign state located on a small island to
the East of Philippines) for the development and construction of Kubla
Park and Spa, a huge resort area covering more than 10 square miles.
Among other features, the project required a substantial amount of
landscaping, earth moving and irrigation works. At the same time, one of
the project requirements was that the property must have a large number
of fountains and artificial bodies of water. Under the circumstances, the
design and installation of fountains seemed to be a particularly challenging
task.
Having considered all available options, Massive approached Nightingale
Ltd (hereinafter “Nightingale”), a company with a registered office in
Georgetown, Guyana. Nightingale was a small company, but it had several
patented solutions for the installation of fountains which made them a
uniquely suitable contractor for the project.
The contract STC68911080 of 15 December 2015 between Massive and
Nightingale was concluded for the design and installation of 68 fountains
at Kubla Park and Spa in Xanadu. All works must have been completed by
01 June 2016, and the final account payment must have been made by 01
August 2016. The contract contained the following clause:
This contract shall be governed by and construed in accordance with Scots
law.
Any dispute, controversy or claim arising out of or relating to this contract,
or the breach, termination or invalidity thereof, shall be settled amicably
and in good faith between the parties. If no agreement can be reached,
such dispute, controversy or claim shall be settled by arbitration in
accordance with the UNCITRAL Arbitration Rules and in line with
international arbitration practice. The appointing authority shall be the
London Court of International Arbitration. The number of arbitrators shall
be three. The place of arbitration shall be Porlock, England.
Nightingale completed the required installation in time, although doing so
made the company strain its resources. When they received the final
account payment on 01 August 2016, it was £3,000,000 short of what
they were expecting to receive.
On 01 October 2016 Nightingale initiated arbitration, seeking outstanding
payment and interest from Massive.
On 17 November 2016, the entire arbitral tribunal was appointed by the
LCIA on Nightingale’s request. Respondent submitted the Statement of
Defence on 21 January 2017. The tribunal held the first hearing with the
parties in Porlock on 01 March 2017.
At the hearing, counsel for Massive lodged a request for security for costs
with the tribunal. In support of this request, the counsel quoted the
following circumstances and aUniversity ments:
– Massive estimated its legal costs for the entire arbitration to be at
least £250,000, possibly higher. If the tribunal rejects all Claimant’s
contentions and renders an award on costs in Respondent’s favour,
it is likely that Claimant will not comply with the award.
– In 2015 Nightingale was ordered by another UNCITRAL tribunal to
pay $1,500,000 to one of its suppliers. Nightingale did not comply
with the award voluntarily, and the enforcement proceedings are
currently under way in Guyana.
– According to media reports, Claimant attempted to obtain third
party funding for this arbitration against Massive, but the request
was refused by two independent third party funders.
– Nightingale’s financial statements for the year 2015 in “Cash and
Cash Equivalents” show the figure of only $200,000, whereas it was
$4,000,000 in 2014.
– Guyana is a remote jurisdiction where enforcement of an award on
costs may be hard or impossible.
The hearing was postponed to allow Claimant an opportunity to
respond. In its written answer, Claimant pointed out the following:
– This tribunal lacks the power to award security for costs because Art
26(2)(c) of the UNCITRAL Rules only refers to assets out of which a
subsequent award may be satisfied, and therefore security for costs
as such is not allowed under the UNCITRAL Rules.
– Respondent submitted the request more than a month after the
Statement of Defence, which was too late; the tribunal should reject
the request as belated.
– In international arbitration security for costs is only granted in
exceptional circumstances, and Respondent has not provided any
evidence of such circumstances.
– Claimant’s financial situation has not unexpectedly deteriorated
since the parties entered into the contract. Claimant’s current low
liquidity was due to its participation in Kubla Park project, and to a
large extent, Respondent is to blame for Claimant’s current tight
cash flow.
– Claimant’s total assets according to the financial statements are
around $35,000,000, and although long and short term loans
amount to $30,000,000, there should still be enough assets to
satisfy any adverse cost award.
– Claimant legitimately resisted the enforcement of a previous
UNCITRAL award on the grounds that it has a claim against the
same supplier which can be set off against the award debt. This
claim is currently litigated in English courts.
Question 1a. On the basis of the applicable law and other applicable rules, please provide an opinion on the parties’ respective arguments and the likely outcome of the Respondent’srequest for security for costs.
Question 1a: [30% of the overall mark]
Guideline word count: 2,000 words
Question 1b. If, in light of your critical evaluation of the situation, there are any additional considerations that could or should be raised by the tribunal or by one of the parties – in arbitral proceedings or in subsequent challenge or enforcement
proceedings – please provide an analysis of such circumstances.
Question 1b: [30% of the overall mark]
Guideline word count: 1,500 words
Section B: Essay Topic
Section B: Essay Topic
20% of the overall mark]
Guideline word count: 1,000 words
Question 2. Please explain the nature, significance and main features of the legal principle according to which an arbitral tribunal is entitled to rule on its own jurisdiction.
