LL.M. International Commercial Arbitration Moot Competition
March 6 – 7, 2015
Clarifications issued will become part of the problem. Teams must ensure that it receives and adequately notes the problem clarifications and corrections in preparation of the competition.
CLARIFICATIONS TO THE PROBLEM AND ERRATA
1. Notice of Arbitration, Paragraph 14, should start with "On July 10, 2013, Mr. John Smith ("Mr. Smith") …"
2. Notice of Arbitration, Paragraph 15, should start with "In August 2013, meetings took place between Mr. Romero and Mr. Smith in the city of Aminiere, Republic of Solventia."
3.Claimant's Exhibit 5 should show a letter dated March 12, as indicated in the Notice of Arbitration, and not March 17 as it currently indicates.
4. Answer, Paragraph 10: the last sentence of the paragraph is missing a "not" and includes a superfluous word. It should be read "As an industry expert, Mr. Smith would not have provided any assurances on the designs or technical specifications of Project Mega Park without the caveat that the final designs would depend on the condition of the land," instead of "[a]s an industry expert, Mr. Smith would [_] have provided any assurances on the designs or technical specifications of Project Mega Park without the caveat that [the Property] the final designs would depend on the condition of the land."
5. Answer Paragraph 20: the word "alleged" should be included in the last sentence, which should read: "which renders the performance of such alleged obligation impossible."
6.The date of the tremor was March 25, 2014. Accordingly, the Notice of Arbitration should be read March 25 and not March 18.
Except for the errata above, all terms and dates used in the Problem, whether in the Notice of Arbitration, the Answer, or any of the Exhibits and procedural documents are intended to be drafted as they are.
1. Are Cariame and Solventia parties to the New York Convention?
Both Cariame and Solventia are parties to the 1958 Convention on the Recognition and Enforcement of Foreign Awards.
2. Have Cariame and Solventia adopted any model arbitration laws?
Cariame adopted the UNCITRAL Model law on International Commercial Arbitration in 2011.
Arbitration law is covered in Solventia's Civil Procedure Act, which is generally viewed as "pro-arbitration."
3. Were the geological surveys to the geological failures on the Felicidad property readily available for consultation before the signing of the Joint Venture Agreement?
Geological surveys of the terrain existed at the time the Agreement was entered into.
4. Exactly what Geological Survey does the Respondent allege that the Claimant has withheld? When was this survey conducted and by whom? To what extent was the Claimant aware of its existence?
The geological surveys were prepared in the 1980s and 1990s when roads and infrastructure work was done in the region. The Parties' knowledge of the existence of such surveys may be addressed by the Parties if they consider it relevant to their respective arguments.
5. Is Respondent correct when it asserts at page 5 §4 of its Answer to Request for Arbitration that the quakes which occurred one hundred years ago on Felicidad are unrelated to the more recent geological failures? Or is Respondent simply assuming the remoteness of the former excludes any connection to the latter? If the two phenomena are linked one could consider Respondent was on notice of the geological conditions of the terrain.
Technical analyses on this matter are scarce. Additionally, there is no agreement on this point among the few specialists who worked on the seismic activity in the region.
6. Do any of the parties have insurance that would cover the unforeseen consequences of a geological failure such as the one in the case at hand? This would have a bearing on the issue of loss allocation.
Both parties had subscribed to the customary insurances for this type of project, which include coverage for natural hazards.
7. Is Deed number 123 dated June 30, 1950 publicly available? If so, does it include any other relevant information for the case?
Alegra reviewed Deed 123, which is limited to delineating the property at issue.
8. What was the percentage increase in value of the Property from 1950 to the present?
The property is worth approximately 10 times the value it had in 1950.
9. Were the negotiations ever put in a written form? If so, were there any emails, notes or other correspondence between the two parties prior to entering into the formal contract on Christmas Eve?
The parties exchanged emails to set up calls and meetings during which the terms of the Agreement were discussed.
10. Did Mr. Romero ever read or have in his possession any seismic studies?
Mr. Romero was aware of some seismic activity in the area where the property is located. He never examined in detail the seismic studies about the region.
11. Information on TFSA's Board of Directors:
TFSA has a board of directors of 8 persons. 6 board members are prominent business persons from Tender City. The other 2 board members are Mr. Romero's two first cousins, Lydia Romero Johnson, and Alexis Romero.
12. Should we assume that no attorneys reviewed or drafted the Joint Venture Agreement for Mr. Romero?
Mr. Romero did not send TFSA's attorneys a draft of the Agreement prior to signing it.
13. Prevailing legal tradition in Cariame and Solventia?
Cariame is a civil law jurisdiction and Soventia, a common law jurisdiction.
14. Entry of Alegria’s construction crew onto the Property.
No use of force and no breaking of fences were necessary to enter the Property.
15. Does Alegria Incorporada own the “Equipment?”
Alegria Incorporada was using leased equipment for Project Mega Park.
16. Should we assume that Felicidad’s security personnel forced Alegria’s employees out?
Alegria's personnel were firmly but respectfully escorted off of the Property.
17. Are there particular security measures to take when building pillars on seismic grounds?
Pillars differ whether a terrain is seismic or not.
18. Status of the land after March 25 tremor.
Following the tremor on March 25, the land continued to be accessible and building on the land was not rendered impossible by the tremor.
19. Are there any corporate by-laws available?
The Agreement was properly approved under the TFSA's by-laws. The by-laws are not available for review.
20. Chronology of signing of the Joint Venture Agreement.
Claimant signed the Agreement on December 24, 2013, and by Respondent on December 25, 2013. Accordingly, the Agreement was prepared and then sent by Felicidad, unsigned, to TFSA. Mr. Romero then signed and sent the Agreement back to Felicidad.
No drafts of the Agreement were circulated prior to December 24, 2013.
TFSA received the execution copy of the Agreement at 10:45 am, local time, on December 24, 2013.
Mr. Romero emailed TFSA's executed copy of the Agreement to Alegria at 9:40 pm that same day.
There was no express deadline for the signing of the agreement, but Mr. Romero had to join his family for Chrismas Eve and travel to the Caribbean for the holidays. Mr. Romero had indicated his scheduling constraints in the course of his discussions with Mr. Smith.
21. Constitution of the Arbitral Tribunal?
The Arbitral Tribunal was constituted pursuant to Article 12 of the ICDR Rules, using the list method.
22. Does Alegria Incorporada ordinarily conduct geological surveys when building amusement parks?
The analysis of the terrain on which an amusement park will be built is customary in the industry.
23. When did Alegria engineering team initiate the testing of the soil and terrain of the Property mentioned in Claimant’s Exhibit 5 and Paragraph 12 of Respondent’s Answer?
Testing of the terrain started on January 8, 2014.
24. Procedural Order No. 1.
Procedural Order 1 was prepared in consultation with the co-arbitrators and signed by the Presiding arbitrator on behalf of the Tribunal.
The procedural conference call held with the parties prior to the issuance of Procedural Order 1 took place on September 5. It was attended by Mr. Romero and Ms. Rodriguez for Claimant, and by Mr. Smith for Respondent.
25. Scope of authority of TFSA's general manager.
TFSA's general manager has very wide authority to bind TFSA and undertake any act on its behalf, including entering into a binding agreement, initiate or pursue litigation or arbitration in its name.
Ms. Rodriguez replaced Mr. Romero as TFSA's General Manager.
Initiating arbitral or court proceedings in TFSA's name falls within the prerogatives of the general manager.
26. What is Mr. Smith's expertise?
Mr. Smith is trained as an engineer and architect, and has worked on the construction and operation of amusement parks for the past 25 years.
27. What are the official languages of Solventia or Cariame?
The official language of Cariame is Spanish. The official language of Solventia is English.
28. As of today, February 16, 2015, we have posted an ICDR letter to the parties that can be found in the Problem.