Reference no: EM133814898 , Length: word count:4000

International Commercial Arbitration - Master of Laws in International Business Law

This summative assessment aims to evaluate your understanding and application of International Commercial Arbitration principles, including the key features of arbitration, the concept of party autonomy, the regulations governing arbitral proceedings, and the significance of the New York Convention of 1958 in acknowledging and enforcing awards. You are expected to demonstrate your proficiency in constructing logical, well-organised arguments that are easy to follow. Additionally, you will be evaluated on your ability to integrate different viewpoints, present original insights on the topics covered, and support your analysis with primary and secondary sources. Get your questions answered now!

This Assessment Pack consists of a detailed assignment brief, guidance on what you need to prepare, and information on how class sessions will support your ability to complete it successfully. You will also find information on this page to guide you on how, where, and when to submit your work. If you need additional support, please make a note of the services detailed in this document.

ASSIGNMENT QUESTION

GPT Ltd., a management consultancy firm registered in England, entered into a contract with American Liberty Nationwide (ALP), an insurance company based in Seattle, USA with assets in the United States, the United Kingdom, and France. The contract required GPT Ltd. to design a customised ERP system to meet the business needs of ALP in Seattle, for a total contract price of £300,000.

However, a dispute arose due to differing interpretations of the deliverables under the master service agreement between the two companies. ALP, dissatisfied with GPT's performance, initiated legal proceedings in a court in Seattle, claiming GPT failed to meet the agreed project specifications.

In response, GPT Ltd. turned to the English courts, arguing that the contract's dispute resolution mechanism
-specifically, clause 119.1-mandated that any disputes between the parties should be resolved through arbitration under the London Court of International Arbitration (LCIA) Rules, and not through litigation. GPT requested that the English courts issue an anti-suit injunction to prevent ALP from pursuing litigation in the U.S., asserting that ALP's claim should be referred to arbitration as per the contract's terms.

"Any dispute arising from or related to this contract, including questions concerning its existence, validity, or termination, shall be referred to and resolved through arbitration in London, England, in accordance with the LCIA Arbitration Rules (2020), which are hereby incorporated by reference into this clause. The contract shall be governed by the substantive laws of the United Kingdom."

Simultaneously, GPT, invoking Article 1 of the LCIA Rules, submitted a formal written request for arbitration to the LCIA Registrar. The request included all necessary documents, including a summary of the dispute and a copy of the arbitration agreement. In the arbitration, GPT is seeking two key remedies:

A declaration that ALP's claims fall within the scope of the arbitration clause.
£100,000 in damages for what GPT claims is a breach of clause 119.1 by ALP for not adhering to the arbitration procedure.

*GPT's legal team, led by in-house counsel Sean Smith, Esquire, prepared the request for arbitration.

Five business days later, ALP's CEO, Carla Jackson, sent an email to GPT, explicitly stating that ALP will not participate in the arbitration proceedings. ALP vaguely argues that the nature of the dispute does not fall within the scope of the arbitration clause and, consequently, that the arbitral tribunal lacks jurisdiction. Furthermore, ALP threatens to seek an anti-arbitration injunction if GPT does not withdraw its arbitration request.

GPT's CEO, Gajendra Pareek, was alarmed by this response and turned to Sean Smith for advice. Smith reassured Pareek that ALP's jurisdictional objections are baseless and that the dispute is clearly arbitrable under the contract. Additionally, Smith assured Pareek that ALP's argument for an anti-arbitration injunction is unlikely to succeed and that GPT's request for an anti-suit injunction has strong merit.

A crucial board meeting is scheduled at GPT's headquarters in Preston, UK to discuss how the arbitration will proceed and to evaluate the merits of ALP's arguments. However, due to an unexpected medical emergency, Sean Smith will not be able to attend the meeting. In his absence, a junior legal team member (you) has been called upon to present a simplified legal analysis to the Board.

Overall, the Board of Directors is particularly concerned about two key issues:

Whether the dispute with ALP indeed falls within the scope of the arbitration clause under the LCIA rules.
Whether ALP's threat to pursue an anti-arbitration injunction has any legal merit, and what risks GPT might face.

Given the high stakes of the dispute and concerns about CEO Gajendra Pareek's handling of the matter, the Board expects a clear, well-researched explanation of the legal position and the likelihood of success in arbitration.

The Board has noticed that Clause 119.1 of the contract differs from the LCIA's recommended model arbitration clause. Could you explain how they differ and whether these differences affect the validity or enforceability of our clause? Additionally, what is party autonomy in arbitration, and how does it apply in this scenario?

Carla Jackson has questioned the validity of the contract's choice of law clause. What might she mean by this, and why could the clause be considered invalid? Additionally, under the LCIA Arbitration Rules, what law governs the arbitration clause itself?

Given that London is the designated seat of arbitration, what are the procedural law implications for the arbitration process? Moreover, by agreeing to arbitrate under the LCIA Rules, have the parties waived their right to appeal any arbitral award?

Does the arbitral tribunal have the authority to determine its own jurisdiction in this dispute? If so, what legal basis grants the tribunal this power?

What exactly is an anti-arbitration injunction, and how likely is ALP to succeed in obtaining one based on the facts of the case? Also, what can GPT do to prevent ALP from initiating litigation in the U.S.?

If ALP chooses to participate in the arbitration proceedings and the arbitral tribunal rules in favor of GPT, in which jurisdictions is GPT most likely to seek enforcement of the award? Additionally, on what grounds could ALP potentially challenge the enforcement of the award under the 1958 New York Convention?

A senior Board member has mentioned the concept of delocalisation in international arbitration during one of our meetings. Could you explain what this concept entails and whether it is relevant to GPT's dispute with ALP?

Simply explain which types of disputes are considered non-arbitrable and violative of public policy under the New York Convention 1958?

Attach the e-cover sheet with your submission. Declare the word count honestly and accurately on the e-cover sheet. Anything beyond the agreed word limit will not be read

The word limit is 4000 words (there is no 10% tolerance permitted on this limit).