Fwd: XXth WILLEM C VIS INTERNATIONAL COMMERCIAL ARBITRATION MOOT (VIENNA)
Jonathan Barros Vita
Begin forwarded message:
From: "Hew R Dundas" <dundas...@btinternet.com>
Date: 29 de março de 2013 14:25:47 GMT+01:00
To: "Self" <dundas...@btinternet.com>
Subject: FW: XXth WILLEM C VIS INTERNATIONAL COMMERCIAL ARBITRATION MOOT (VIENNA)
FYI
Hew
From: Hew R Dundas [mailto:dundas...@btinternet.com]
Sent: 28 March 2013 22:36
To: OGEMID (oge...@ogeltdm.com)
Subject: XXth WILLEM C VIS INTERNATIONAL COMMERCIAL ARBITRATION MOOT (VIENNA)
Dear Colleagues
I am pleased to report both that the 20th Willem C Vis International Commercial Arbitration Moot in snowy Vienna was a huge success with 295 teams from 67 countries participating and, in all, approximately 3,000 people (student participants, coaches, arbitrators (nearly 1,000), administrators and others) were involved and that OGEMID-ers were very much involved.
The general consensus in Vienna today was that this was a Truly Great Vis Moot, for several different reasons but one reason stood out.
This was Professor Eric Bergsten’s 20th and last Vis Moot since, approaching his 82nd birthday, he has finally retired. Vis Week in Vienna was a succession of powerful, often emotional, tributes to the Great Man, starting at the Opening Ceremony where he was first presented (accompanied by a prolonged standing ovation) with the first ever ICCA “Award for Lifelong Contribution to the Field of International Arbitration". This award is intended to honour "giants" in the field of arbitration who have made a significant contribution to the field; it will be awarded on an occasional basis and will be formally presented during the biennial ICCA Congress. Professor Bergsten was next presented with the AAA/ICDR President’s Award (another standing ovation).
The inaugural Bergsten Lecture, to become an annual event in Vienna during Vis Week, was delivered by Nathalie Voser (Switzerland) whose topic was "Tomorrow´s Rules: Key Issues in Arbitration Law Reform". It was preceded by a laudatio for Professor Bergsten, delivered by Dr Wolfgang Hahnkamper (Vienna) as an expression of the gratitude of the world arbitration community. The Lecture was organised jointly by the University of Vienna and the Austrian Arbitration Association (ArbAUT).
To mark the 20th/10th Moots, a fascinating book was published, ”The Danubia Files”, where 3-person international arbitral panels were established to write Awards for the 14th to the 19th Moots, revealing a fascinating diversity of approaches, not least in length, the longest (dealing very thoroughly with the students’ arguments) being 62 pages, the shortest (hardly dealing with the arguments at all) 18. The book has many uses, particularly in teaching Award-Writing, and there is no comparable publication anywhere in the world; it is also very good value at $US39.95. Contact in...@cisgmoot.org for further details.
A short synopsis of the 20th Vis Moot Problem was published in my report (on 19th March) on the 10th Vis East Moot but I set it out below for ease of reference.
The Moot Arguments
Everything could be argued both ways and duly was, even up down and sideways. The quality of argument was high and the quality of the students agreed by senior arbitrators to be very high, even in comparison to those of recent years.
After 5 days of legal jousting, the Final Panel (Professor Dr Eckart Brödermann (Managing Director of CEAC), the Hon. Lord Hamilton (Scotland; former Lord President and Lord Justice General (i.e. Chief Justice) of Scotland) and Dra Diana Droulers (Venezuela; Director of the Caracas Chamber Arbitration Institution and President of IFCAI) heard a close-fought argument between Monash (Australia) and City University (Hong Kong) in which City U (in unanimous decision) narrowly prevailed, following its winning in Hong Kong last year. Both teams were, unquestionably, outstanding but there could only be one winner.
The Pieter Sanders Award for the Best (written) Memorandum for Claimant was shared by Belgrad and Munich and the Werner Melis Award for Best Memorandum for Respondent (presented by the Great Man himself in his inimitable style) was won by National University of Singapore with Munich (again !) runner-up. The Award for Best Oralist was won by Kristen Holman (Ottawa) and the runner-up was Lauren Watts (Washington) with, remarkably, two other Washington students, Abby St Hilaire and Brie Coyle, sharing 3rd place.
There were a number of interesting features of the 20th Vis Moot:
(i) of the massive entry of 295 teams from 67 countries, the main constituents were USA (49), Germany (27), India (18), Brazil (15), France (15), China/Hong Kong (14), UK (13), Australia (12), Russia/Switzerland (9 each); surprisingly, Korea (6 in 2012) was not represented;
(ii) a heart-warming highlight of the event was the appearance of the first ever team from Kenya (University of Nairobi), sponsored by the London-based Arbitration Club (not the International Arbitration Club), and its Oil & Gas Branch, founded by the late Professor D Mark Cato who sadly passed away in November 2012 after a truly heroic battle with Motor Neurone Disease;
(iii) illustrating the geographic spread of the Vis Moot, single entries came from Argentina, Bahrain, Bosnia, Bulgaria, Cayman Islands, Chinese Taiwan, Costa Rica, Croatia, Egypt, Estonia, Finland, Guatemala, Iraq, Israel, Jordan, Kazakhstan, Kenya, Latvia, Lebanon, Macedonia, New Zealand, Oman, Paraguay, Philippines, Serbia, Slovakia, South Africa, Sweden, Tunisia, UAE, Uruguay and Venezuela
(iv) the last 64 teams came from 25 nationalities: Argentina, Australia, Austria, Croatia, France, Brazil, Canada, Denmark, Finland, Germany, Hong Kong, India, Indonesia, Italy, Lebanon, the Netherlands, the PRC, Poland, Russia, Singapore, Sweden, Switzerland, UK, Uruguay, USA; the USA dominated with 17 of the 64 (Germany 8, Australia 7) but (a) Singapore had only 2 entrants in the Moot and both reached the 64; (b) 7 of the 12 Australian teams reached the 64, a stunning performance;
(v) the last 32 featured 16 nationalities with particular credit to the teams from the Lebanon, Argentina, Indonesia, Russia and Uruguay
(vi) the last 16 featured 8 nationalities with the USA (5) and Germany (4) dominating;
(vii) the Quarter-Finals featured 6 nationalities in the 8 slots: Australia, Canada, Germany, HK, Singapore, USA; while the USA had dominated the 64 (17 of the 64) none of the US teams made the Semi-Finals;
(viii) the Semi-Finals featured four nationalities; the teams were City University (HK), Humboldt (Germany), Monash (Australia), Ottawa (Canada);
(ix) in a curious echo of (iv) above, 69 students from 25 nationalities won an Award (Hon. Mention or better) in the Best Oralist competition; while the USA (a remarkable 23) dominated the list, it was wonderful to see (inter alia) Lebanon and Indonesia (2 each) and Russia, Scotland and Turkey (1 each) on the list, in most cases for the first time.
The 2014 Moots (the 21st in Vienna, the 11th in Hong Kong) will take place on 11th-17th April and 31st March to 6th April respectively. I will be booking my hotels and flights for both very soon (there are great deals to be had booking 11 months in advance) !
Hew R Dundas
The Problem
The 2012/13 Problem was based on an arbitration under the rules of the Hamburg-seated Chinese European Arbitration Centre.
The transaction giving rise to the dispute was a purchase of polo shirts where the contract of purchase contained a condition (not very precisely worded) that Seller adhere to the highest ethical standards, including avoidance of use of child labour. Soon after the goods were delivered (late – the consequences of that form part of the dispute), a TV documentary, allegedly filmed in one of Seller’s production facilities, showed shocking footage of children as young as eight working in appalling conditions. Although it was not clear whether the polo shirts the subject of this dispute had been produced at the facility in question (hotly denied by Seller), the television program condemned Buyer and its parent company (“PC”) in strong terms for dealing with such a firm.
The consequences included (i) PC’s share price dropping 25%, wiping hundreds of millions of dollars of value off its stock market; (ii) the Prime Minister of PC’s home state (“HS”) called on it to take urgent action; (iii) the Children Protection Fund of HS , which had a major investment in PC shares in its investment portfolio, announced its intention to sue PC and its directors for its losses and for the damage to its reputation (and did so); (iv) additional law suits by investors who had lost substantial sums because of the fall in value of their holdings of PC stock were threatened, and eventually were filed.
Buyer notified Seller that it was avoiding the contract and that the latter should arrange to dispose of the remaining stock of the polo shirts. Buyer then commenced arbitration proceedings against Seller seeking (i) reimbursement of the purchase price of the polo shirts; (ii) damages i.r.o. lost sales because of the late delivery of the polo shirts; (iii) damages i.r.o. the lost sales from the lack of stock of polo shirts at the necessary time; (iv) the difference between the purchase price of the polo shirts purchased from Seller and the cost of the replacement purchase from a 3rd party; and (v) damage to Buyer’s reputation and to its clothing brand.
Buyer and Seller have agreed that, for the purposes of the arbitration, it would be assumed, but without any admission by Seller, (i) that Seller had in fact used child labour in at least one of its plants but that (ii) no child labour had been used in the production of the polo shirts the subject of the contract. They further agreed that they would be prepared to argue whether Seller had breached the contract by using child labour in its operations, despite such usage not being in connection with the production of the polo shirts that were the subject matter of the contract.
As usual, there were two threshold procedural issues relating to Seller’s arguing that the contract had been amended as to delivery date during a telephone discussion between their respective Contracts Officers. First, Seller’s CO had left its employ to work for a rival company and refused to attend the Hearing to give evidence and be cross-examined: should his witness statement be admitted if he did not attend ? Secondly, while Seller’s home State had registered a CISG Art.96 Reservation, i.e. requiring all contract amendments to be in writing, the actual contract between Buyer and Seller purported to ignore that Reservation; was this effective ?
Hew R Dundas
Hew R Dundas