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ATENEO DE MANILA UNIVERSITY INTERNATIONAL COMMERCIAL ARBITRATION MOOT 11 FEBRUARY 2012

CLAIMANT AL SHAHRIR
TRADING CO. LTD.

RESPONDENT MERINO MEAT EXPORTS PTY. INC.

MEMORANDUM FOR RESPONDENT

Counsels for Respondent
Katrina Elaine C. Aguila Krystle Bacani Joyce Chan Victor Siriban

TABLE OF CONTENTS

INDEX OF AUTHORITIES STATUTES AND TREATIES Cited as Cited in ¶ .

C. Montgomery. 1291 (2002). v. Supp. 361 (1967). 1 A.C. Cour de Cassation. Hunter.E.Tripier Suisse Atlantique v.E. Evangelist. Natcon Kemiron v. Suisse Atlantique Société d’ Armement Maritime SA v. 609 (ND III 1997). 110 N. Constantine Parastides. NV Rotterdamsche Biggers v. 71 N.C. Aguakem Montgomery v. 982 F. Inc.238. Poire v. Evangelist Cecala v. Cecala v. Kemiron Atlantik. Natcon Group Pty Ltd. v. 35. Revue de l’arbitrage (2003). 2d 524 (1984). Aguakem International. Montgomery v. Tripier. Cited in ¶ SCHOLARLY WORKS AND ARTICLES Cited as Blackby Nigel Blackby.Model Law New York Convention UNCITRAL Model Law on International Commercial Arbitration (1985). N. App.V. 429. Martin H. THE AGREEMENT ARBITRATE Cited in ¶ . 234. Supreme Court of New South Wales (1992). S. 14 February 2003. 2d 438-39. 441 (1993). Montgomery Poire v. J. Alan Redfern. 3d 1287. Convention on the Recognition and Enforcement of Foreign Arbitral Awards (1958) Passim JUDICIAL DECISION Cited as Biggers v. 321. Inc. S. Rotterdamsche Kolen Centrale. Moore. Hooper Bailie Associates Ltd. Moore Hooper Bailie v. App. as amended (2006). 290 F.

COMPARATIVE INTERNATIONAL COMMERCIAL (Kluwer Law International. Merino (Respondent) agreed to sell and deliver to Al Shahri (Claimant) 50. John Savage. Loukas A. GAILLARD. STATEMENT OF FACTS On 15 June 2011. The parties agreed that it shall be delivered to designated feedlots in the port of Jebel Ali. Consequences of Multi-tiered Arbitration Clauses. Julian Lew.000 long tailed lambs at the price of USD75 per head. Born. Mistelis and Stefan M. Emmanuel Gaillard. 2003). Alexander Jolles. FOUCHARD. by a contract for the sale of live sheep. Gary B.Fouchard Jolles Lew Born (Kluwer Law International. INTERNATIONAL COMMERCIAL ARBITRATION (Kluwer Law International. 2003). 72 ARBITRATION 329 (2006). 2009). GOLDMAN ON INTERNATIONAL COMMERCIAL ARBITRATION (1999). Kroll. UAE to arrive on or .

PEST also presented evidence to show that live sheep imported from Australia were confined amid the waste of tens and thousands of animals for weeks. PEST alleged that under the Holy Quran. made a press release that the conditions in which live sheep were brought from Australia to Middle East countries were not halal. Concerned that the negative media might affect its sale of the live sheep. Around 1700 heads have died onboard due to heatstroke or . on shipment at loadport Fremantle and (2) the balance within 30 days on delivery of the sheep at discharge port. Respondent assured Claimant that the sheep husbandry on board was sophisticated. On 13 November 2011. MV Coma Dose arrived at port Jebel Ali but discharged only 47. As agreed upon.500 heads of sheep into the quarantine feedlot.before 3 December 2011 to meet the demands of the Muslim Eidul-Adha festival in December 2011. On 28 November 2011. the animal welfare organization called the Protection of Ethical Sheep Treatment (PEST). and a self-cleansing sewerage discharge system that would operate continuously throughout the journey. which caused the death of many ship on board filthy transport ships. Moreover. pursuant to the contract. with a computerized system for air and water cooling pens.000 heads of long tailed lambs from Fremantle. those that survive the grueling journey arrive with diseases like salmonella. subjecting the animals to cruelty would be the same as perpetrating such ill-treatment on a human being. Respondent shipped 50. Australia on board their sheep carrier MV “Coma Dose”. Claimant asked Respondent to clarify conditions of the sheep shipped on MV Coma Dose. scabby mouths and sheep pox. and that the payment shall be made as follows (1) 10% of the purchase price. A veterinarian was also on board to provide treatment if necessary. healthy and suitable for use in Korban. The PEST report was also carried in the Gulf Daily on 15 November 2011. The parties also agreed to the following: that the sheep shall be delivered unblemished. On 10 November 2011. the sheep were certified by the AQIS as complying with the export regulations of Australia. that the sheep must be certified fit for export by the Australian Quarantine Inspection Service (AQIS).

dehydration and were later or disposed by incineration. (2) ACICA has no jurisdiction over the arbitration because arbitration clause does not provide for arbitration in ACICA. by arbitration conducted in accordance with the relevant UNCITRAL Model law. This was traced to an inadvertent slip by the boarding officer employed by Merino‟s port agent. (4) there is in fact no arbitration agreement as the arbitration clause is contained in the form “purchase order” of Respondent and Claimant did not expressly agree to any such arbitration clause. (3) there is pending case in the Dubai courts over the same parties in relation to the same facts and the Dubai courts has issued an anti-arbitration injunction.500 heads and both parties signed a non-disclosure agreement not to disclose the number of dead or unfit sheep to any third party. news of mortality rate and unfit sheep soon got into the local media. it filed before the Dubai court for the issuance of an anti-arbitration injunction. Claimant refused to make payment for the balance of the purchase price of USD3. which the Dubai court issued. The balance were eventually sent to abattoirs and exported as frozen lamb to Slovak Republic and Armenia. On June 5 January 2012. Claimant commenced an action against Respondent in the Dubai court for damages for lost sales and breach of non-disclosure agreement.187. Claimant filed jurisdictional objections to the arbitration proceedings commenced by Respondent on the following grounds: (1) Respondent failed to comply with the conditions precedent to the filing of the arbitration proceedings.” . They were simply sold to local butchers for non-hallal users. Any disputes concerning them that cannot be solved by negotiation in good faith between the parties shall be determined by mediation or. Notwithstanding embargo against disclosure.” Claimant. upon receipt of a copy of Request for Arbitration. This leaked news caused another round of negative press resulting in many of Claimants customers cancelling their orders. Claimant agreed to accept the 47. Some 800 suffered injuries and were considered maimed thus unfit for ceremonial Korban use. Respondent also commenced arbitration proceedings against Claimant before the Australian Centre for International Commercial Arbitration (ACICA) to the arbitration clause in the contract which reads: “These terms and conditions shall be governed by the laws of South Australia.500.000 of them were eventually sold as live sheep. Only 10. failing that.

under the arbitration clause. the parties are obliged to comply with the conditions precedent prior to resorting to . In support of this position Respondent submits that first.SUMMARY OF PLEADINGS PART TWO: CLAIMANT’S ACT OF COMMENCING AN ACTION CLAIMANT’S ACT OF COMMENCING AN ACTION BEFORE THE DUBAI COURT RENDERS THE CONDITIONS PRECEDENT NUGATORY AND THUS. RESPONDENT VALIDLY INSTITUTED THE ARBITRATION PROCEEDING Respondent submits that there being a valid arbitration agreement between the parties. the conditions precedent embodied in the arbitration clause are valid and binding. and hence. must be complied with.

Lastly. Instead of issuing an antiarbitration injunction. Such issuance would be in contravention to Articles II (3) of the 1958 New York Convention which states that: “The court of Contracting State. that negotiation and mediation are mandatory. Art. refer the parties to arbitration. PART FOUR: THE DUBAI COURT CANNOT ISSUE AN ANTI-ARBITRATION INJUNCTION BECAUSE OF THE EXISTENCE OF A VALID ARBITRATION AGREEMENT BETWEEN THE CLAIMANT AND THE RESPONDENT The existence of a valid arbitration agreement between the Claimant and the Respondent precludes the Dubai Court in issuing an anti-arbitration injunction against the proceedings commenced before the ACICA. it is well-settled that anti-arbitration injunctions must be exercised by national courts with extreme caution. or incapable of being performed [Art. It cannot be used to enjoin arbitration proceedings on claims merely based on merit. 5 of the same law even reiterated the requirement that no court shall intervene in any matter governed by such law.” The very same provision embodied in the New York Convention is likewise reiterated in Art. II(3). inoperative. third. when seized of an action in a matter in respect of which the parties have made agreement within the meaning of this article. at the request of one of the parties. and finally. Respondent has validly instituted the arbitration proceeding before the ACICA. second. Claimant‟s act of instituting the action before the Dubai court renders the conditions precedent nugatory.arbitration.8 of the UNCITRAL Model Law which is the law chosen by the parties to govern the agreement to arbitrate. New York Convention]. unless it finds that the said agreement is null and void. . prescription. the Dubai court should have referred the parties to arbitration. and multiplicity of suits. shall.

both parties are obliged to comply with the preconditions to arbitration (A). Respondent submits that pursuant to the arbitration clause.I. A VALID ARBITRATION AGREEMENT EXISTS BETWEEN AL SHAHRIR AND MERINO A. said preconditions have been rendered nugatory (B). Hence. The “purchase form order” satisfies the formal requisites for the validity of an arbitration agreement have been met B. II. RESPONDENT VALIDLY INSTITUTED THE ARBITRATION PROCEEDING Having thus established the validity of the arbitration agreement. The contract contains multi-tiered arbitration clause. There is a defined legal relationship between Claimant and Respondent C. CLAIMANT’S ACT OF COMMENCING AN ACTION BEFORE THE DUBAI COURT RENDERS THE CONDITIONS PRECEDENT NUGATORY AND THUS. A. The dispute arising from the contract of sale is arbitrable. PARTIES ARE OBLIGED TO SATISFY THE CONDITIONS PRECEDENT TO ARBITRATION 1. UNDER THE ARBITRATION CLAUSE. . However. Respondent validly instituted this arbitration proceeding (C). for failure of the parties to resolve their disputes either through negotiation and subsequent mediation. because of Claimant‟s deliberate non-compliance with these preconditions.

arbitration must necessarily be followed [Lew ¶1-11]. ii. therefore. It is clear. Natcon]. Tripier]. Whether an obligation to conciliate is mandatory or permissive is a matter that may be resolved by simply assessing the intention of the parties to be bound by an obligation to participate in an earlier resolution phase contemplated by the clause [Poire v. namely. negotiation and mediation must precede arbitration. Negotiation and subsequent mediation in the arbitration clause are mandatory. Once so established and agreed upon. Being a product of the parties‟ voluntary agreement. they want to attempt an amicable settlement of the matter through negotiations or non-binding procedures such as mediation [Blackby at 114]. or failing that. i. . terms and conditions that will govern their agreement [Suisse Atlantique v. both parties agreed that “any disputes concerning them that cannot be resolved by negotiation in good faith between the parties shall be determined by mediation. Here. a multi-tier dispute resolution clause is clearly contemplated by the parties. and leading to. prior to submitting any dispute to arbitration. these contractual provisions become binding on the parties. Clauses that provide for an escalation of the dispute through at least two different forms of dispute resolution are called „multi-tier‟ dispute resolution clauses [Jolles at 329]. The conditions precedent to arbitration are mandatory. the procedure preceding. 2. Arbitration is a contractual institution [Fouchard ¶50] that is governed by the principle of party autonomy. that the parties had intended that the two-tiered condition precedents of negotiation and mediation be satisfied prior to resorting to arbitration. In the process of ascertaining this intention. Pursuant to the principle of party autonomy. by arbitration” [Scenario ¶7]. The principle of party autonomy grants parties the freedom to contract and to establish such stipulations. by providing for the two preconditions to arbitration. clauses. negotiation and mediation [Scenario ¶7]. NV Rotterdamsche]. the phraseology of the clause must be assessed [Hooper Bailie v.Parties to an arbitration agreement may decide that. Here.

Moore. Claimant’s deliberate non-compliance with the condition precedent renders the said preconditions nugatory Claimant urges this Tribunal to rule that the conditions precedent have not been complied with. is that the parties intended to make the preconditions to arbitration mandatory. the arbitration clause provides that “any disputes concerning them that cannot be resolved by negotiation in good faith between the parties shall be determined by mediation. As held in Cecala v. Aguakem]. Respondent validly instituted this arbitration proceeding. or failing that. Here. The clear import of this clause therefore. Respondent disagrees. they remain binding and enforceable. even assuming that the negotiation and mediation clauses were held to be separate from the arbitration agreement. Thus. an agreement to resort to mediation prior to the commencement of arbitration cannot be bypassed. by arbitration in accordance with the relevant UNCITRAL Model Law. By Claimant‟s very act of instituting proceedings before the Dubai Court on 5 January 2012 [Scenario ¶7]. they are still binding and enforceable Even assuming that the clauses on negotiation and mediation are separate from the arbitration agreement. 3. where the terms of the contract are clear and unambiguous.In this case. must be complied with prior to resort to arbitration. there is in fact a failure of both conditions precedent thereby giving rise to Respondent‟s proper institution of the arbitration proceedings. Hence. C. it deliberately disregarded the valid arbitration agreement that it had entered into with Respondent. . Montgomery] and must give ordinary words their ordinary meanings [Bigger v. B. this Tribunal is bereft of any power to rewrite the plain meaning of the contract [Montgomery v. Evangelist]. However.” Respondent submits that because of Claimant‟s act of instituting an action before the Dubai Court. Hence. Even assuming that the negotiation and mediation clauses are separate from the arbitration agreement. the same remain valid and enforceable and hence. The very act of placing preconditions to arbitration shows the clear intention of the parties to make arbitration a last resort for resolving disputes [Kemiron v. the arbitration clause specifically uses the term “shall” in pertaining to mediation.

inoperative or incapable of being performed. Art. no court shall intervene except where so provided in this law” [Art. A. Model Law]. IN ANY EVENT. . The arbitration agreement between Claimant and Respondent clearly states that the arbitration shall be conducted pursuant to the UNCITRAL Model Law. A COURT IS GENERALLY MANDATED TO REFER THE PARTIES TO ARBITRATION The UNCITRAL Model Law is not devoid of provisions reiterating the need for any national court to refer a matter which is subject of an arbitration agreement. THE DUBAI COURT DOES NOT HAVE THE POWER TO ENJOIN ARBITRATION. Thus. UNDER THE UNCITRAL MODEL LAW. III. it follows that Respondent‟s only resort is to commence arbitration against Al Shahrir [Scenario ¶7] over the dispute arising from the contract of sale between Claimant and Respondent.As Respondent has already established that the conditions precedent to the arbitration have been rendered nugatory by Claimant itself. 8 of the Model Law specifically mandates a court before which an action is brought in a matter which is subject of an arbitration agreement to refer the parties to arbitration unless it finds that the agreement is null and void. THE AUSTRALIAN CENTER FOR INTERNATIONAL COMMERCIAL ARBITRATION (“ACICA”) HAS JURISDICTION OVER THE DISPUTE UNDER THE APPLICABLE PROCEDURAL RULES. instead of issuing an anti-arbitration injunction. Thus. The ACICA has implied power to rule on the dispute under the arbitration clause. the application of Article 5 is clear and conclusive. 5. It is likewise embodied in Article 5 of the UNCITRAL Model Law that “in matters governed by the Law. This renders an intervention from any national court an unavailable remedy to any party. the Dubai court should have referred the parties to the ACICA which was validly chosen pursuant to the arbitration agreement between the Claimant and the Respondent. IV. A.

disputes arising out of or in connection with the contract containing the arbitration agreement are to be decided by the arbitrators. the power to issue an anti-arbitration injunction must be exercised with extreme caution and only in certain exceptional circumstances. Respondent submits that in any event. Nevertheless. an issuance of an anti-arbitration injunction against an arbitration proceeding made within the purview of valid arbitration agreement is considered as a breach of Articles II (3) and III of the Convention [Born at 699]. or that the arbitration is merely duplicative” are not available and proper grounds for the issuance of an anti-arbitration injunction [Brown at 700]. It arises from this principle that. EXCEPTIONS THAT MAY WARRANT THE COURT’S ISSUANCE OF THE ANTI- ARBITRATION INJUNCTION DO NOT EXIST IN THIS CASE. THE ISSUANCE OF AN ANTI-ARBITRATION INJUNCTION WHEN A VALID ARBITRATION AGREEMENT EXISTS VIOLATES THE NEW YORK CONVENTION Having thus proved the existence of a valid arbitration agreement (see Part I supra). if there is a valid arbitration agreement. As an example. Lastly. C.B. the Dubai Court does not have the power to enjoin arbitration. . Grounds which tend to establish “that the claim is meritless and time-barred. It is true that the New York Convention does not contain any provision which prevents any national court from enjoining an arbitration proceeding. The existence of a valid arbitration agreement renders any national court powerless in issuing an anti-arbitration agreement to stay the arbitration proceedings initiated by one of the parties. Thus that the objection of the Claimant that there is already pending case in the Dubai courts over the same parties in relation to the same facts is clearly not a ground for a court to issue an anti-arbitration injunction. arbitration agreements made in pursuant to the New York Convention can only be enjoined on jurisdictional grounds.