Introduction

GOOD MORNING, Mr.President and the member of the Tribunal. My name is Binh and I
appear on behalf of CLAIMANT with my co-counsel Mr. Hung. He will be addressing issues
C and D of this Tribunal's Procedural Order No.1.
However before we can get there, there are two important procedural considerations before
this Tribunal. I will be using my time today to address issues A and B with you.
Case theory
In any arbitration agreement, there are two key elements: one is consent and the other is good
faith, both of which have been breached by the RESPONDENT. The RESPONDENT is
seeking to object to this Tribunal's jurisdiction and also seeking to create a ground for
challenging an arbitrator neither of which should be allowed.
Argument
Turning first to the issue of this Tribunal.
We argue that this Tribunal has the jurisdiction to hear this dispute and I have two arguments
in this regard. The first concerns the validity of the Arbitration Clause and the second
concerns the validity of the Arbitration Agreement both within Article 21 of the Sales
Agreement.
I'll now turn to my first argument.
If I may direct the Tribunal to p. 13 of the problem. I will note that it is CLAIMANT
EXHIBIT No.2 - the Sales Agreement between two parties . Article 21 of this Agreement:
Dispute resolution.
In this case, the parties did not choose anybody of law to govern the arbitration agreement.
Therefore, the Arbitration Clause is valid governed by the procedural law of the arbitral seat
and the governing law of the Sales Agreement.
The arbitral seat is Danubia and the governing law of the Contract is the Danubia Law.
Therefore, the Arbitral Tribunal Clause is regulated by the Danubia Arbitration Law, which is
a verbatim adoption of the Model Law.
Under Article 7.1 and 7.2 of the Model law, an arbitration agreement is valid where it
contains two aspects which are (1) being in writing and (2) having arisen or arising between
the parties in respect of a defined legal relationship, whether contractual or not. Both
elements appear in Article 21 of the Sales Agreement.
Moving to the second argument.
The CLAMANT advances two submissions in support of this argument. First,
RESPONDENT had already given notice of avoidance before its performance; second,
RESPONDENT lost its right to avoid the arbitration clause by implied confirmation
I'll now turn to this argument's first submission.
Under Article 3.2.12(2) UNIDROIT Principles, where an individual term of the contract may
be avoided by the party because of gross disparity, the time for giving notice of avoidance
begins to run when that term is asserted by the other party.
I draw the Arbitration's attention to page 47 paragraph 2 of the problem. Before
RESPONDENT signed in the Sales Agreement, they had requested to have a symmetrical
arbitration or dispute clause instead of an asymmetrical dispute resolution clause. Under
Article 3.2.11 UNIDROIT Principles, the term “avoidance” could not be used.
Moving to the second submission.
Under Article 3.2.9 UNIDROIT Principles, An act of continuing to perform the contract
without reserving its right to avoid the contract is also the confirmation.
If I may direct the Tribunal to p.6 of the Problem paragraph 11. The fact that, although
CLAIMANT rejected RESPONDENT’s request to have a symmetrical arbitration or dispute
clause, RESPONDENT still delivered and installed the two Turbines in 2018 which can be
considered as an implied confirmation.
Concluding, Mr. President and member of the Tribunal, the parties entered a Sale
Agreement freely and willingly without any fraud. The Arbitration Agreement is valid under
The Danubia Arbitration Law.
Furthermore, even this is an asymmetrical dispute resolution clause the RESPONDENT is
fully aware of it and still sign the Sale Agreement and continuing to perform the contract.
As such, this Arbitration have jurisdiction to hear the case and the Arbitration Agreement is
valid.
Now I will be addressing the next issue.
We argue that the Tribunal should exclude the expert appointed by the RESPONDENT. The
CLAIMANT makes two arguments in respect of this term. Our first argument is that the
appointment of the expert serves as a ground to challenge the arbitrator and our second
argument is that the exclusion of the expert Prof. John does not violate the right to equal
treatment or the right to presenting its case.
I'll turn now to the first of these two arguments.
The CLAIMANT advances three submissions in supports of this argument. First, the
connection between Mrs. Claire and Prof. John must have been aware by RESPONDENT.
Second, the relationship between Mrs. Claire and Prof. John could give rise to justifiable
doubts as to her impartiality or independence and third, the current state of the Arbitration
process makes RESPONDENT incapable of challenging Mrs. Claire.
Moving to the first submissions.
I draw the Tribunal's attention to page 50 paragraph 17 of the problem states that in 2004, in
an arbitration, RESPONDENT and Prof. John had a connection and two of his former
assistants have been working for RESPONDENT since 2005 and are now at second
management level directly below the board of management.
Now, If I may direct Tribunal to page 50 paragraph 14 of the problem it points out that Prof.
John has also worked as RESPONDENT’S advisor to supervise the replacement of the
turbine in the Riverhead Plant and contacted him once more for his article published in
January 2018.
Prof. John and RESPONDENT have a long relationship for nearly 15 years. Furthermore, the
second management level of RESPONDENT consists of people who close to him in a
personal aspect. Therefore, the connection between Mrs. Claire and Prof. John must have
been aware by RESPONDENT.
I will now turn to the second submissions.
Under Article 12.2.b UNCITRAL Model Law; Art 10.1. (iii) LCIA Rules, the ground for
challenging an arbitrator could be based on her impartiality or independence.
Under Art 3.3 IBA Rules of Ethics for International Arbitrator; Art 3.4.4, IBA Guidelines on
Conflicts of Interest in International Arbitration, arbitrator’s relationship with an expert
could give rise to justifiable doubts as to impartiality or independence. Therefore, the
connection between Prof. John and Mrs. Claire could be a ground for challenging her.
Now moving to the third submissions.
I draw the attention of the Tribunal to p. 42 of the problem you will find the email written by
RESPONDENT in which they implied that CLAIMANT appointed Mrs. Claire because of
two articles published by her state that the mere “suspicion of defects” is sufficient in many
cases to render the goods non-conforming, which means she could favor CLAIMANT during
the arbitration process.
If I may refer the Tribunal to two cases the first of these is Drydocks v. Halcrow & F
McWilliams which was decided by a Tribunal held in Paris in 1993. The second Uni-Inter v.
Maillard decided by Cour d’appel de Paris in 1991. In regards to these two cases, it was held
in all of them that the arbitrator viewpoint could not give rise to justifiable doubts as to her
impartiality or independence as that statement does not demonstrate any form of hostility on
the part of the arbitrator towards one of the parties. In this case, Mrs. Claire does not.
Moving to the second argument
In a similar case of Trustees of Rotoaira Forest Trust v. Attorney-General High Court in New
Zealand in 1998. According to court decisions, to succeed in an argument that a party has
been stripped of the opportunity to present its case, it must be shown that: a reasonable
litigant in the applicant’s position would not have foreseen a reasoning on the part of the
arbitral tribunal of the type laid down in the award and with fair notice and it might have been
possible to convince the Arbitral Tribunal to reach a different result.
However, If I may direct the Tribunal to pp. 49 and 50 of the problem paragraph 17, three
other well-known experts speak English available and have comparable qualifications,
experience in arbitration or litigation. Therefore exclusion of the expert Prof. John does not
violate the right to equal treatment or the right to presenting its case.
Furthermore, in this situation, the appointment of the expert serves the purpose of creating a
ground for challenging the arbitrator appointed by CLAIMANT.
Under Article 9.2 (b) IBA Rules on the Taking of Evidence in International Arbitration; the
expert report and himself must be excluded from evidence or production for legal
impediment.
In conclusion, Mr. President and members of the Tribunal, RESPONDENT undoubtedly
aware of the connection between Mrs. Claire and Prof. Tim John. Therefore, they appointed
him to serve the purpose of creating a ground for challenging the arbitrator appointed by
CLAIMANT. Furthermore, the impartiality or independence of Mrs. Claire is undisputable.
Consequently, under Art 18.4 LCIA Rules, the appointment of Prof. John should be upheld.
Moreover, there are several well-known experts available apart from Prof. John to be
appointed. For that reason the exclusion of the expert does not violate the right to equal
treatment or the right to presenting its case.