CLAIMANT FIRST DRAFT - PROCEDURAL QUESTIONS

For each question, structure your answers in bullet points in the form of a memorandum with the
following:

- Arguments

- Legal provisions

- Application to the facts

- Conclusion/deduction

Make sure to reference the exact place in the problem and law where you’re getting your information.

Additionally, starting now, each team must provide 10 references (outside of the realm of applicable
law and available documents, so doctrine, precedents, other cases, books, etc.) to support your
argumentation.

As a team, you will need to create a document answering the following questions, which can be found
in PO 1, page 52 of the problem.

1. Should the Arbitral Tribunal reject the claim for lack of jurisdiction or admissibility or
as part of its discretion?

1.1. Arguments

➢ Claimant statement: LEGAL EVALUATION PG 6 “23. The Arbitral Tribunal has jurisdiction
and the claim is admissible.”

➢ Jurisdiction-competence principle: An arbitral tribunal generally has the authority to

determine its own jurisdiction. This principle is recognized in several arbitration rules,
including the FAI Rules, and allows the tribunal to determine the admissibility of claims in
the absence of clear prohibitions.

➢ Jurisdiction and admissibility are fundamental principles in international arbitration. The

CISG (United Nations Convention on Contracts for the International Sale of Goods) and the
IAI Arbitration Rules (FAI Rules) provide a framework for understanding these concepts.
 ➢ According to ​‌‍Born, G. B. (2021), pp. 55 - 58,1 “Both international arbitration conventions and
national arbitration statutes contain jurisdictional requirements that define which arbitration
agreements are subject to those instruments. In particular, seven jurisdictional requirements
must be satisfied for an agreement to be subject to the Convention:
a. An agreement to arbitrate
○ Article II (1) and II (2) of the Convention
○ Article 7 of Model Law
b. A dispute or difference. These provisions imply that a real problem or difference
exists before an agreement is enforced.
○ Article II (1)
○ Article 7 of Model Law
c. A dispute or difference arising out of a commercial relationship
○ Article 1 (3) of the Convention
○ Article 1 (1) of Model Law: limits the application to international
commercial arbitration
○ The Convention has given the importance to this matter as otherwise it
would fall under the scope
○ Not only that, many arbitration statutes are limited to “commercial”
matters
○ National courts have adopted a broad interpretation.
d. An agrement to arbitrate differences wich “have arisen or may arise”
○ Existing or Future.
○ Article II (1) of Convention
○ Article 7 Model Law
e. An agreement “in respect of a defined legal relationship, wheher contractual or
not”.
○ Defined legal relationship.
○ Article II (3) Convention
○ This requirement is more rlevant for non-contractual matters.
f. An international arbitration agreement or, alternatively, an agreement that would
produce a “foreign” or “non-domestic” award.
○ International component.

1
Born, G. B. (2021). International arbitration: law and practice (Third Edition). Kluwer Law
International B.V.
 ○ Article I (1) Convention. It is applicable only to awards that i) are made
in a state other tan the Contracting State where recognition is sought; or
ii) are “not considered domestic awards”
g. A showing that any reciprocity requirement is satisfied.
○ Reciprocity requirements.
○ Article I (3) Convention.
○ It enables contracting states make reserves towards non-contracting
states.
○ Limited importance.
➢ 2The word admissibility is used in international commercial arbitration to refer to the power
of a tribunal to decide a case at a particular point in time, having regard to a possible
temporary or permanent defect within the claim. Although it is hard to differentiate between
jurisdiction and admissibility, there are cases such as Interim Award in Case 16083, ICC
Dispute Resolution Bulletin 2015, No 1, p 57, the arbitral tribunal found that a failure to
comply with the dispute resolution provisions in the contract gave rise to an issue of
admissibility and not jurisdiction. In this case, it is clear that the admissibility refers to
the existence of a multitier ADR clause, which leads to mediation.
➢ C v D3, recent Hong Kong Court of Appeal, concerned a dispute as to alleged non-compliance
with procedural preconditions to arbitration and whether non-compliance meant that the
tribunal had no jurisdiction. The Court of Appeal drew a distinction between issues of
admissibility and those of jurisdiction, a distinction which, the court held, is "rooted in the
nature of arbitration itself". The case confirmed that the admissibility of a claim is a matter for
the arbitral tribunal to decide. This has the consequence that if the tribunal decides that the
pre-arbitration procedural requirement is a precondition to arbitration that has not been
satisfied, it may order a stay of the arbitration proceedings pending compliance with the
precondition, dismiss the claim and/or impose costs sanctions
➢ The consequence of this separation is that jurisdiction, that has already been established as
valid, is separated from the admissibility subject that is related to the fulfillment of the
conditions precedent, such as mediation.
➢ Issues of admissibility include.4 :

2
Tweeddale, A. (2021, March). Jurisdiction and admissibility in dispute resolution clauses.
International Bar Association.
https://www.ibanet.org/article/57470714-a3f7-4db9-9dab-69dfbcb156c9#:~:text=In%20an%20arbitrati
on%20context%2C%20jurisdiction,an%20award%20on%20the%20merits.
3
C v D [2022] HKCA 729
4
Clifford Chance. (2022). MULTI-TIER DISPUTE RESOLUTION CLAUSES AND THE DISTINCTION
BETWEEN JURISDICTION AND ADMISSIBILITY – HONG KONG COURT OF APPEAL CONFIRMS
APPROACH. In Clifford Chance Hong Kong.
 ○ Existebce, scope and/or fulfilment of conditions precedent or preconditions to
arbitration such as negotiation, mediation, conciliation, adjudication or written notices
or request.
○ Whether a claim is time-barred or the limitation period has expired.
○ Res judicata or whether a judgment bars a subsequent action between the same parties
upon the same cause of action.
○ Other mootness or ripeness issues. Mootness refers to the claim becoming
hypothetical or dead including because the alleged claim no longer exists or has
already been resolved and ripeness refers to readiness for arbitration including a claim
not resting upon a future event that has not occurred.
➢
➢ In respect of the compliance with the mediation clause, the case 2014 decision of BG Group
plc v. Republic of Argentina5, stated that had the multi-tier clause expressly stated that it was
a legally binding condition precedent to arbitration, it very likely would have been held to
constitute a substantive and jurisdictional condition precedent to arbitration.6

1.2. Legal Provisions

➢ CISG

○ While it is true that the CISG does not directly regulate arbitration, it applies to
contract interpretation and may influence the admissibility of contractual claims.

➢ Article 16 of the UNCITRAL Model Law on International Commercial Arbitration, which

stipulates the principle of jurisdiction-competence.

➢ FAI Rules

1.3. Application to the facts

5
BG Group PLC v. Republic of Argentina, 572 U.S. ____ (2014).
https://www.italaw.com/sites/default/files/case-documents/italaw3117.pdf
6
Pappas, V. F. L. (n.d.). Five years later: Update on Multi-Tier Dispute Resolution Clauses as
Jurisdictional Conditions precedent to arbitration. Global Arbitration Review.
https://globalarbitrationreview.com/guide/the-guide-energy-arbitrations/fifth-edition/article/five-years-lat
er-update-multi-tier-dispute-resolution-clauses-jurisdictional-conditions-precedent-arbitration#footnote-
054-backlink
 1.4. Conclusion/Deduction

➢ No, as the Arbitral Tribunal has jurisdiction and the claim is admissible.

1.5. References?

➢ Born, G. B. (2014). *International Commercial Arbitration*, 2nd edition. Kluwer Law

International.

➢ Schlechtriem, P., & Schwenzer, I. (Eds.) (2005). *Commentary on the UN Convention on the
International Sale of Goods (CISG). Oxford University Press.Chapter 4.
2. Should the Arbitral Tribunal order the exclusion of the documents Exhibits C7 and R3?

2.1. Arguments

➢ CLAIMANT STATEMENT: ”25.Neither the jurisdiction nor the admissibility of the claim is
affected by the fact the parties did not enter into mediation proceedings as foreseen…
Claimant Exhibit C7: …thus, mediation would have been a mere waste of time and
resources.”

➢ In both documents, mediation might be considered a waste of time and resources, there is no
real conflict but following the proper regimens.

➢ In terms of the content, claimant exhibit C7 (page 20) is an email between Cavedish and
Henry la Cour regarding the prejudice offer. Unacceptable for the claimant. Respondent
exhibit R3 (page 32) email regarding local content. Statements made have already been
checked under all potentially applicable regimes.

➢ Exclusion of evidence is common in arbitration, especially if the evidence has been obtained
in a manner that is inadmissible, irrelevant or unrelated to the jurisdiction of the case.

2.2. Legal Provisions

➢ The CISG, while not directly addressing the exclusion of documents, helps to establish the
relevance and admissibility of evidence through contract interpretation

○ Admissibility under the CISG: The interpretation of the CISG may limit the
admissibility of certain documents if they do not contribute to resolving the dispute.

➢ As for the FAI rules, they may allow the exclusion of evidence that does not meet the
requirements of relevance or that violates principles of procedural fairness.

➢ According to the IBA Rules on the Taking of Evidence in International Arbitration, an arbitral
tribunal may refuse to admit irrelevant or unreliable documents.

○ Article 9 of the IBA Rules on the Taking of Evidence in International Arbitration

(2010). Article 9(2)(b) provides that a tribunal shall, at the request of a party or on its
own motion, exclude from evidence or production any document, statement, oral
testimony or inspection due to a legal impediment or privilege under the legal or
ethical rules determined by the arbitral tribunal to be applicable.

➢ The UNIDROIT Principles of International Commercial Contracts on Article 1.7 advocates

for good faith and fair dealing, reinforcing the importance of procedural fairness in
 arbitration. An arbitral tribunal may exclude evidence if admitting it would contravene these
principles.

➢ We could have on account the Protocol for E-Disclosure in Arbitration which discusses on its
Section 4.2 the importance of efficiency and cost-effectiveness, encouraging tribunals to
streamline evidence production by focusing on documents that are directly relevant to the
core issues.

2.3. Application to the facts

➢ Tribunals tend to exclude settlement or negotiation-related documents to protect the integrity

of the dispute resolution process. These documents, especially if irrelevant to contractual
terms, are often excluded to maintain procedural efficiency. Therefore, as in this case we
make reference to the waste of time and resources mediation would bring, the mentioned
documents should be excluded..

2.4. Conclusion/Deduction

➢ Yes, the Arbitral Tribunal should order the exclusion of both documents Exhibts C7 and R3.

2.5. References

- Redfern, A., & Hunter, M. (2015). Redfern and Hunter on International Arbitration. Oxford
University Press. Section 5.

- Lookofsky, J. (2020). Understanding the CISG: A Compact Guide to the 1980 United Nations
Convention on Contracts for the International Sale of Goods.