MLL332 - International Arbitration Law & Client Memorandum - FreshFoods Co Ltd (‘Buyer’) Caser Study - Law Assignment Help

Assignment Task -                 
 

Introduction 

This assignment requires you to draft a memorandum for either the Claimant or the Respondent in the factual scenario indicated below. You are expected to apply your knowledge learned from this unit (in the first few weeks) and use your legal research and writing skills, to present the legal arguments for the party. 

Factual Scenario 

[1] FreshFoods Co Ltd (‘Buyer’), an Australian company, agreed to purchase high-quality sea products from  Kendi Co.(‘Seller’), an international food distributor. Kendi’s main place of business is in Sutherland (a  hypothetical country).  

[2] In the negotiation of the contract, the Parties had some discussions on the dispute resolution method.  Kendi did not trust litigation overseas and strongly urged exclusive jurisdiction of their own courts.  fresh food preferred international arbitration instead. As a compromise, the parties eventually accepted that  FreshFoods might bring claims to arbitration administered by the SIAC, but otherwise, cases are exclusively heard by courts in Sutherland.  

[3] The Sales Agreement between FreshFoods and Kendi eventually included the following dispute resolution  clause: 

Art 19 

19.1 Parties shall resolve any dispute arising out of, or in connection with the Agreement, by negotiation.  Parties shall send a written notice of negotiation as soon as practicable when a dispute arises.  

19.2 Failing a settlement agreement within 30 days after the delivery of the notice to negotiation, any dispute arising out of or in connection with the contract shall be exclusively resolved by Court in Sutherland,  subject to Buyer’s right to arbitrate pursuant to 19.3.  

19.3 Buyer may refer any dispute arising out of, or in connection with the Agreement to arbitration administered by the Singapore International Arbitration Centre (SIAC) in the PLACE in accordance with the  SIAC Arbitration Rules for the time being in force.  

19.4 In the case of arbitration, the number of arbitrators shall be three. The language of the arbitration shall be English.  

19.5 The contract is governed by the law of Australia.  

Arbitration 

[5] FreshFoods (Claimant) filed its Notice of Arbitration in accordance with the SIAC Rules with SIAC’s  Registrar on 4 September. FreshFoods also proposed to proceed with a sole-arbitrator tribunal and that the tribunal should decide that the seat of arbitration be in Australia.  

[5] Kendi (Respondent) filed its Response to Notice of Arbitration on 10 September, challenging the  jurisdiction of the tribunal. It states that: 

• First, the seat of arbitration shall be Sutherland. The wording ‘PLACE’ in Art 19.3 means Sutherland  as indicated in Art 19.2. Therefore, the Sutherland law shall govern the arbitration agreement. • Second, the arbitration agreement is onerous and unfair, and no place of arbitration is designated.  The arbitration agreement is therefore invalid under the law of Sutherland. To that point, Kendi has  already filed a case on the payment of the amount due before a Sutherland court on 7 September  and expected that the invalidity of the arbitration agreement would be declared by the Sutherland  court in that proceeding.  

• It also disputed with FreshFoods’ proposal of a sole-arbitrator tribunal and insisted that in case the  arbitration is valid, they have the right to appoint their own arbitrator in a three-arbitrator panel, as  agreed in Art 19.4 of the Agreement.  

[6] Despite challenged by Respondent, the Registrar decided to proceed with a sole-arbitrator tribunal and  appointed Mr Ducas on 28 September in the absence of the parties’ jointly agreed nominee.  

First Case-Management Meeting 

[7] In the first case-management meeting held on 12 November, the parties agreed on the following: 

• Singapore, Australia, and Sutherland are all Contracting States of the New York Convention; • While Singapore and Australia adopt the Model Law as their international arbitration law,  Sutherland does not. Under the national arbitration law of Sutherland, which also applies to international arbitration, an arbitration agreement is invalid if there is no designated place of arbitration.  

• It is agreed that the general contract law rules are identical in Singapore and Australia. The general contract law in Sutherland relating to this dispute, such as the contract formation, validity, and interpretation, is a verbatim adoption of UNIDROIT Principles of International Commercial Contracts  2016.  

• In Sutherland, there are three reported cases in which asymmetrical arbitration agreements are held as invalid by its court under its contract law (equivalent to Art 3.2.7 of the UNIDROIT Principles). There are also two cases in which courts apply the above-mentioned arbitration law requiring the designation of the place of arbitration narrowly, holding that it does not include the situation where the place of arbitration is later determined by the tribunal or the institution. However, Sutherland is not following the common law tradition, so the judicial practice may not be regarded as binding  ‘precedent’. There are also several arbitration cases where tribunals did not follow the approach adopted by Sutherland’s courts, the awards resulted from which are successfully enforced in other  States.  

• The word ‘PLACE’ is not defined in the rest part of the Agreement.  

• The proceeding before the Sutherland court is at a very early stage. FreshFoods made written submissions, challenging the jurisdiction of the Sutherland court on the basis of the existence of the arbitration agreement. It is expected that no decision, including the decision on the validity of the arbitration agreement, would be made by the Sutherland court before Feb 2021. 

Learning Outcomes 

This task allows you to demonstrate achievement towards the unit learning outcomes. The ULOs are aligned with specific graduate learning outcomes – that is, the skills and knowledge graduates are expected to have upon completion of their studies – and this assessment task is an important tool in determining the achievement of those outcomes.  

If you do not demonstrate achievement of the unit learning outcomes, you will not be successful in this unit.  

It is good practice to familiarise yourself with the ULOs and GLOs as they provide guidance on the knowledge, understanding, and skills you’re expected to demonstrate upon completion of the unit. In this way they can be used to guide your study.

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