international commercial arbitration assignment on the role of agreements towards arbitration proceedings

Question

Task: Can international commercial arbitration assignment research methods improve understanding towards arbitration proceedings?

Answer

Section a
Answer to question 2
Answer to scenario 1
As per the international commercial arbitration assignmentcase scenario, it is evident that according to clause 25 of their agreements, clause 25.3 states that the tribunal of three arbitrators, each tribunal should be a lawyer with a minimum of 10 years post qualifying experience. Following the scenario, it has been identified that on the date of the appointment, bentham hired arbitration of mill ltd. The post-qualifying experience of bentham was 9 years and 342 days, which is not acceptable and is a violation of the clause and agreement. The dispute between kant and mill company can be resolved outside the court and arbitrary with their full consent by doing proper discussions. Mill ltd. Has not followed clause 25.3, and it can bring various disruptions in their business. As per the clause, they both have agreed to arbitration in arcade if a dispute arises in business. According to uncitral model law of international commercial arbitration, if there is any breach made by any parties over the mentioned greed clauses, it can be considered a breach of the agreement. The party who has breached the clause may go for various legal issues. In a business dispute between two parties, the arbitration clause survives for identifying and measuring the claims arising from the breach and in determining the mode for their settlement. As per article 13 of uncitral, if the arbitrator fails to act on the hearing date, the company may go for a substitute of an arbitrator. The mill can hire a new arbitrator for the date of appointment to resolve the dispute. As per article 7, if the appointing authority fails to appoint the arbitrator within the given time period, then the authority can request the secretary court of general for a time extension for hiring the arbitrary for the arbitration. The mill can go for hiring new arbitrary for their arbitration and to meet clause 25.3 of clause 25. This helps the company to go for a fair and transparent agreement and settlement.

Answer to scenario 2
As per the international commercial arbitration assignmentcase scenario, descartes is a partner that leases business premises from locke sa, in which kant is the 50% owner of the shares. It was also not stated or disclosed by descartes as he was also the chair of the tribunal. In an organization or in doing merger with other company it is imperat5ive to have a proper and fair deal and agreement between the merging companies for reducing the disputes and making a successful merger of the year. It allows them to earn revenues equally and build a healthy relationship in business for a very long time. The international commercial arbitration assignment research shows that organizations have to work on becoming fair and transparent and have to discuss the overall business issues and benefits before merging. It allows them to run their business and merger without any issues, which brings various benefits for a very long time. As per the uncitral law of transparency, it is imperative that the organization has to work on maintaining transparency before making any agreement between the parties. As per article 7 of uncitral, there are certain exceptions for transparency; the parties may not disclose confidential information to the public as this can jeopardize the uprightness of the arbitral process. However, mill ltd. Has the authority to file a case against kant and descartes for hiding the information about their relationship and their merger. As per the case scenario, it can be said that kant and descartes may bring issues in a merger with mill, and they can bring loss in their business. Kant and descartes being unethical and not disclosing their relations can face legal issues from mill under uncitral model law. Therefore, both parties can go for settlement with a proper discussion between two parties and can dissolve the merger.

Answer to scenario 3
As per the international commercial arbitration assignmentcase scenario, it is evident that kant and descartes hide the information about their relations with mill ltd. With their full intention and purpose. It can bring a huge loss in the business of mill in merging with kant ltd. Furthermore, by not disclosing the overall information, kant and descartes may go for the violence of laws under the uncitral model law, and mill ltd. May have the full power to take over the company without any loss. The case also identifies that descartes and hegel gmbh were hired by kant for the arbitration, and descartes did not disclose any information about the kant and hegel relation, which can bring various issues in their arbitration. As per article 7 of uncitral, an arbitration agreement is defined as an agreement made between two parties and submit it to arbitration regarding business issues or relations which can bring certain legal issues or disputes. The arbitration has to work in resolving the issues and in maintaining the relationship between the parties. As per article 12, if there might be various grounds for a challenge in agreement with two parties or likely to face certain issues, the hired arbitrary has to work in disclosing the circumstances which can bring issues in business. Article 12 (2) claims that an arbitrator may get challenged when the circumstances arise in the agreement between two parties regarding their participation and appointment. Therefore, if the arbitrator does not go for being fair and transparent in an arbitration, the party has the power to substitute the arbitrator according to article 15 of uncitral. As per the international commercial arbitration assignmentcase, it is evident that kant ltd. Has hired descartes and hegel as chair and a third party arbitrary in the arbitration. From the case, it can be said that mill ltd. Has the power to change descartes and hegel for non-disclosure of the relations with kant ltd. As this is a violation of unethical in the eye of the law. Therefore, for dissolving the merger of kant ltd. And mill ltd. They can go for substituting the arbitrary and go for settlement for dispute according to article 30 of uncitral.

Answer to scenario 4
In the international commercial arbitration assignmentcase scenario, it has been identified that bentham, descartes and spinoza were having dinner with aquinas in a restaurant. It has been identified that aquinas used to work in mill's legal department from 2010 to 2017 and now works as a full time arbitrator. Moreover, it has been identified that bentham and aquinas are long-time friends, and bentham did not disclose this information with parties as well as their dinner with aquinas. This brings various issues with the parties, which can bring loss in business for both mill and kant. Being an arbitrator, it is evident that they may have a conversation with aquinas regarding the legal business department of mill ltd., which can bring various issues to the company. The main objective of uncitral model law is to bring improvements in internal trade business by resolving the issues and legal obstacles as much as possible. The arbitration rules provide various regulations that they have to follow to maintain the commercial relationship between two nations and run their merger without any issues. The organizations have to work on developing a healthy relationship, and the arbitrary has to work on resolving the upcoming issues and has to go for settlement without further extending and expanding the issues for resolving the dispute. As per uncitral model law, the arbitrary plays a vital role in managing the businesses of an international merger without creating any further business and international trade issues. In the international commercial arbitration assignmentcase scenario, the arbitrator bentham, spinoza and descartes were having dinner with the old arbitrator aquinas of mill ltd. In a restaurant, which can bring various issues in their business. Aquinas can leak the vital legal information of the company, which can be used in dissolving the issues without any further disruptions. Further, there may be possibilities that the arbitrators can work on managing the settlement with proper documents and demands with the full consent of both parties, which can help in facing any legal issues in international trade relations. In the meeting of the arbitrators with old aquinas, it can bring issues in trust in their relations. As per the uncitral model of law, the settlement of both parties with their full consent can be done, which can help in dissolving the merger and not attain any losses in business. Moreover, they can also go merge their business with a new agreement and their full consent and interest in being more fair and transparent. Therefore, this can help in stay in business and resolve the issues for maintaining the international business for a very long time.

Section b
Answer to question 3
In the current era, modern society has embraced various alternatives for the dispute settlement system from both hands, wherein the process of arbitration has significantly stood out among all. With the increasing preference for arbitration, the rising dissatisfaction with the traditional adversary method of the lawsuit has been buttressed. The arbitration agreement has been the foundation of most of the arbitration proceedings, wherein the agreement of the party comprises a contract in order to refer dispute that have arise or are likely to arise in the future between them to the arbitration. The agreement of arbitration is mainly the substantive contract among the parties to the international commercial arbitration; therefore, it reflects the party's autonomy in terms of settling the disputes through arbitration. It is generally a binding promise made between the parties to the contract in order to resolve the current or future disputes by means of international commercial arbitration. In aid to doing so, the parties draft their arbitration agreement while enjoying wide liberty in terms of constructing the dispute resolution system as per their own choices. Therefore, whenever a conflict arises over any matter or subject that is comprised in the arbitration agreement, the courts will have no interference in terms of resolving the dispute unless both the parties explicitly agree to waive the agreement of arbitration.

The standard of party autonomy mainly refers to the liberty of the parties in terms of consensually executing the agreement of arbitration while providing privileges for the parties, in terms of international commercial arbitration, to prefer appropriate substantive law. When these laws are chosen, they shall then administrate the contractual rapport between the parties, which makes party autonomy one of the most significant general principle underpinning the “uncitral model law” and “international commercial arbitration”. The shift towards arbitration is attributed to various factors, such as it is faster, confidential, and promotes a friendly atmosphere in terms of resolving disputes in comparison to litigation on this international commercial arbitration assignment. Nevertheless, preface, it is crucial for the parties to agree with the forms of arbitration while following the procedure that is to be pursued by the arbitral tribunal, the place of arbitration, prevailing law etc. The doctrine of party autonomy represents the vital element of international commerce, wherein the parties to the global contract have the liberty to determine the law that is applicable in order to govern the disputes between the parties. Thus, party autonomy is considered to be one of the significant policies which affect the nature as well as the cross-border commercial transactions. The policy of party autonomy has been progressively accepted as a keystone in choosing the law rules of various legal systems throughout the world. Since it permit the parties to select the law during their international contract, which will eventually govern their liabilities and rights in case of disputes among the parties, the parties get the opportunity to incorporate and negotiate a choice of law clause in such a way that is parallel to the other terms and condition within the contract. Therefore, party autonomy is basically the principle that makes the process of arbitral flexible, and it is primarily based on the choice of law in the contract. However, in international commercial arbitration, the doctrine of party autonomy has a broader meaning because, in the arbitration agreement, parties are not only liberated in terms of choosing the laws but also in terms of conducting the process of arbitration.

On this international commercial arbitration assignment, the principle of party autonomy is recognized by almost every global arbitration law, convention, and rule. Therefore the arbitration agreement between the parties in the current days must include the clauses of arbitration in concern to the precise choice of law. While keeping with the principles of party autonomy, the law selected by the parties is consistently implied by the arbitrators. In concern to the “uncitral model law” and “international commercial arbitration”, the stipulation of the laws and the rules in different degrees undoubtedly necessitate respect for the procedural provision chosen by the party. Hence, party autonomy is considered the guiding principle which determines the principles that are to be followed during ye international commercial arbitration. The standard of party autonomy is sanctioned beyond the national law, i.e. By international arbitral organizations and institutes as well. Pursuant to the prerequisite of uncitral model law, article 19(1), the parties have the liberty to consent on the procedure which is to be trailed by the arbitral tribunal while conducting the proceedings. In the highlight of the rationale for the party autonomy, the purpose of the arbitration is to gain the reasonable resolution of disputes through the impartial tribunal while avoiding preventable delay as well as expenses. Generally, the parties across the globe are free to choose the laws that will eventually govern the process of arbitral. Therefore, the need to evade all such drama, mainly related to the proceedings of the courtroom, has compelled the parties to embrace a system that is likely to allow them to exercise their will while choosing the laws that are favourable for them. Thus, party autonomy has been one of the most significant general principal while gaining acceptance in international laws and jurisdictions. It not only gives the freedom to choose the substantive laws and govern their contractual relationship, but the parties also have the freedom to choose to depend on the trade usage, transitional law, national rules of law, and the general principles of international law. Some of the global arbitration laws demonstrate the governmental objective for the courts to respect the doctrine and standard of party autonomy.

in simple terms, the party independence principle, as a primary character of arbitration, indicates that the parties should have substantial autonomy as well as control in terms of deciding how their arbitration is likely to be conducted without the interference of the court, except for the direction or enforcement of the arbitral award. The liberty to choose the governing law is the logical extension of party autonomy while agreeing to submit to the suitable method for resolving a dispute. One of the major objectives of the uncitral model law identified on this international commercial arbitration assignmentis the liberalization of international business settlement by restraining the function of the countrywide magistrates while providing effect to the policy of "autonomy of the will". Thus, it allows the party the liberty to decide the law within which the disagreement of the parties shall be determined. However, rather than granting absolute autonomy to the parties, the model law was primarily meant for the promotion of general autonomy to the parties and to balance the safeguards in the form of obligatory provisions which can be contracted out based on their significance to the arbitration regime. The doctrine of party autonomy was addressed under the article 19(1) of uncitral model law which strengthens the significance of party independence in international business settlement. However, if the businesses did not choose the law, then the arbitrators are likely to implement the regulation that is selected by the appropriate conflict regulations. Therefore, it means that the negotiators are compelled to recognize the regulation of a specific nation. Furthermore, they are also bound to use the disagreement policy, wherein they are not allowed to directly pertain the substantive regulation. Further significant terms of the model law in relation to party independence identified on this international commercial arbitration assignment is the terms of article 34(2) that provides the situation for the sideways of the arbitral honor if the applicant team provides evidence that the composition of the arbitral hearing or the practice of arbitral was not complying by means of the parties' contract.

Party autonomy is the freedom of the businesses in terms of constructing the contractual relationship in such a way that fits both the party. Therefore, it is entirely dependent upon the parties in terms of arranging their arbitration liberally without any control over them. The arbitration clause is the written submission, which has to be agreed by both the parties, and it has to be constructed as per its language, within the light of the situation in which it has been made. Therefore, it can be noticed that the parties enjoy full rights while entering into the agreement of arbitration which suits their purpose. Though the policy of party sovereignty is highly documented and accepted in the international commercial arbitration, however, the degree of autonomy of the parties in the international marketable negotiation has largely remained disturbed. Hence, on this international commercial arbitration assignment it is clear there is no denial of the fact that the agreement of the arbitration is mainly driven by the power from the party autonomy mainly because there are fewer restrictions on their liberty while constructing their own terms of agreement and design process that caters specifically for their needs.