CLARIFICATIONS TO THE CASE PROBLEM

Transcription

1 V ICC LEX MERCATORIA INTERNATIONAL COMMERCIAL ARBITRATION MOOT ENGLISH CHAPTER CLARIFICATIONS TO THE CASE PROBLEM 2016 ORGANIZED BY:

2 Clarifications to the Case Problem 1) In the letter of credit the APPLICANT and BENEFICIARY is Luxyachts - the seller, not the buyer, isn't it a mistake? Otherwise, the bank must return the money to the plaintiff after the letter of credit expires, and this Arbitration proceedings is meaningless. Answer: The mistake in the Case Problem has been corrected: Magnifestum Ltd. shall act as an Applicant under the letter of credit and MM Luxyachts Ltd. - as a Beneficiary. The corrected Case Problem has been published on the official website of the Moot - Can a plaintiff demand the money from the bank and stop the proceedings? Answer: This question is outside the scope of the Case Problem. The letter of credit is stand by which is not mentioned in the contract. what document do we need to believe in this case? Answer: This question is subject to analysis of the Teams. 2) Case file doesn't have any powers of attorney of the representatives - Zagrebelsky, Howard Smirnoff, etc. Can we see them? Answer: The Teams should assume that there is no issue with power of attorney or authority to represent the Parties in arbitration. 3) Can a third party be involved in the proceedings - Magnifestum, Ltd? Answer: No, it cannot be involved. 4) Is it possible to see the articles of incorporation of the Magnifestum Ltd., to obtain information about the general director of the company? Answer: According to the Charter of Magnifestum Ltd. the President of the company acts as its sole representative. 5) Is it possible to get acquainted with the license of Trust me bank and the term of its action? 2

3 Answer: Issuing the letter of credit is within the scope of Trust Me bank license. 6) Case file has no documents confirming the Aivazov's marriage. Is there a marriage certificate and the marriage contract? Will they be represented? Answer: These documents are outside the scope of the Dispute. This is his fourth wife in a row or does he have four of them at the same time? Answer: This is the fourth wife in a row, although no one knows it for a certain but Mr. Aivazov. 7) Is there an extended act of acceptance of work, drawings or other documents common for the practice of trading yachts, containing technical characteristics of the yacht and its condition at the time of acceptance? As it is clear from the case Ilona arrived a week before receiving the yacht and placed her valuables inside the yacht, but in the case file there are no acts of acceptance of pictures, clothes, etc. Are they available and whether we can get acquainted with them? Answer: The only certificate is available in Exhibit C-8. 8) Does Ayvazov have a national certificate of security? Answer: Yes, he does. Who issues it? Answer: Centrostan Maritime Agency. Does Aivazov have a certificate of operation? Answer: Yes, he does. 9) Was the party on a yacht held when the boat went out to sea, or whether it was at the dock? Answer: The party has started in the dock and later continued when the yacht was on the sea. 10) In the case file Aivazov's Complaint statement on offsetting mutual claims has not been respected. Will it be presented? 3

4 Answer: No, it will not be presented. 11) Whose signature is on the act of acceptance? Answer: This is subject to analysis by the Teams. Does this man works at Magnifestum and whether he has a power of attorney to sign the documents, in particular the acceptance acts on behalf of the company? Answer: This is subject to analysis by the Teams. 12) Whether the vessel is registered in the Register of Ships in Centrostan? Answer: Yes, it is. Under what flag the yacht floated? Answer: The yacht floated under the flag of Centrostan. 13) Is it possible to request in the case of provision of the following documents: Logbooks, certificate of navigation under the national flag, certificate of ownership of the yacht, certificate of seaworthiness, tonnage certificate, Passenger Certificate, Certificate of Load Line, Certificate for the Prevention of Oil Pollution, certificate on the prevention of pollution by sewage, certificate on prevention of pollution by garbage, Ship sanitation certificate of navigation, crew list, certificate of minimum manning, licensed ship station, Radiojournal, Sanitary log activity, log with wastewater operations, Journal of garbage, Journal of oil operations for vessels other than oil tankers, classification certificate. Answer: No, it is not possible. 14) Can a bank signature card of Aivazov's bank account on which the payment card was issued be presented? Answer: No, it cannot be presented. 15) Can the documents of a fully loaded vessel, including information about the engines, rescue equipment, etc. be provided? Answer: No, the documents cannot be presented. 4

5 16) Could it happen that under the terms of the game the category of the dispute would be changed (a dispute about the payment would be transferred to the dispute of the contract of sale) and the replacement of the defendant by the other person would take place? Answer: No, it could not happen. 17) Can the editor of "News Yacht" or the magazine itself be prosecuted for disseminating confidential terms of the contract because it published information from the contract word for word (construction Yacht characteristics)? Will it possible to prosecute it as a respondent? Answer: The Teams could elaborate on this point if they find it relevant and bearing risks of corresponding assessment of their position. 18) Can we address for petition and documents to the Arbitration, which has already accepted the case for trial? Answer: No, it is not possible. How do we prove the fact of addressing and what address do we need to use when sending the documents, including procedural? Answer: This is irrelevant for the purpose of the case. 19) Are Zapadstan and Centrostan parties to United Nations Convention on Independent Guarantees and Stand-by Letters of Credit (New York, 1995)? Answer: Yes, they are. 20) What are the parties legal background? Answer: Representatives of neither party have a legal degree. Is there any special regulation of ship safety certificate? Answer: This should be elaborated by the Teams. 21) Is the arbitration law of Zapadstan and Centrostan based on the UNCITRAL Model Law with the 2006-amendments and are both states Contracting States to 5

6 the New York Convention? Answer: Yes, it is. 22) In para. 11 of Witness Statement of John Zagrebelsky Mr. Schneider is mentioned. Who is Mr. Schneider? Does Mr. Zagrebelsky in para 11 mean Mr. Stewart Schmidt - Claimant s Executive Chief? Answer: The mistake is corrected: "Mr. Stewart Schmidt" should be instead of "Mr. Schneider". The corrected Case Problem has been published on the official website of the Moot ) In the Shipbuilding Contract No. 765-U [p. 18] Claimant s is info@luxyachts@zs. In the letter from ICC Court of Arbitration [p. 43] Claimant s is info@luxyachts.zs. Which is a valid one? Answer: The Second address is the valid one. 24) Did Magnifestum Ltd. authorize a representative according to art of Shipbuilding Contract No. 765-U? If yes, what was the name of this representative and what actions did he/she do? Answer: Magnifestum Ltd. did not authorize its representative according to art of Shipbuilding Contract No. 765-U. 25) As we understand from the Problem the applicant under the Letter of Credit No is Magnifestum Ltd. However, in para. 1 of the abovementioned Letter of Credit MM LuxYachts Ltd. is mentioned as the applicant and beneficiary at the same time. Shall we consider that there is a mistake of organizers of the Competition and in the text of Letter of Credit Magnifestum Ltd. shall be referred to as applicant and MM LuxYachts Ltd. as beneficiary? Answer: Please see the answer to Question No. 1 above. The corrected Case Problem has been published on the official website of the Moot ) Where are geolocations of Centrostan and Zapadstan? 6

7 Answer: Centrostan in located in the centre of the continent, Zapadstan is located in the west of the same continent. 27) How many guests there were on the Yacht «Queen Ilona» during the celebration party on 5-6 March 2016? Answer: There were a lot of guests. 28) Is the corporate seal of Magnifestum Ltd. on the Acceptance Act real? Answer: Yes, it is. 29) On what stage of the proceeding is the case No. 1998/MHM? Answer: The Parties are discussing the terms of reference with the Arbitral Tribunal. 30) Did Mr. Aivasov in fact broke a bottle of champagne over the border of the Yacht on 24 February 2016? Answer: Yes, he did. 31) Is there a mistake in date 5 March 2016 in para. 4 of Witness Statement of John Zagrebelsky [p. 53]? Shall we assume that there is date 5 March 2015? Answer: Yes, it is. The corrected Case Problem has been published on the official website of the Moot ) Were the photos from Instagram website provided in Exhibit C-15 made on the Queen Ilona yacht? Answer: Yes, they were. If yes, were they made on March, 5, 2016? Answer: Yes, they were. Are Ivan Aivasov and his wife Ilona Aivasova on the photo on the p. 59 of the Problem? Answer: Yes, they are. 7

8 33) According to the p.25 of the Request for arbitration, representatives of the both parties signed the Acceptance Act. While p of the Contract stipulates that representative may be specifically authorized by the Buyer to perform certain actions on his behalf. So, was the representative authorized to sign the Acceptance Act on behalf of the Buyer? Answer: This is the issue for discussion of the Teams. 34) Ship Safety Certificate (SSC). It's unclear who is the one responsible for obtainment of the SSC under the Centrostan's Law - owner or possessor of the ship? Answer: The question and regulation of Ship Safety Certificate is subject to analysis of the Teams. 35) Also, Claimant asserts that if Mr.Aivazov in fact uses the yacht in Centrostan it automatically means that he has the SSC. Answer: Yes, it does. Is it possible to use the yacht without obtainment of such certificate? Answer: No, it is not possible. 36) Is the fact that the signature of Mr. Aivazov on the Act of Acceptance does not belong to him disputable? Was there an examination of the signature of Mr. Aivazov? Answer: Please read the Case Problem, it contain all necessary information. 37) Can the participants of the competition change stated lines of the Claimant and Respondent submitted to the ICC. Answer: Yes, they can. If yes, what is the limit of our deviation from the already presented arguments? Answer: There is no limit for good new arguments. 8