Internatioal Commercial Arbitration: German Arbitrual Tribunal - Outline Example

Name: University: Course: Tutor: Date: International Commercial Arbitration GERMAN ARBITRUAL TRIBUNAL (DIS) CASE NO. DIS- LAW5ICA MEMORANDUM FOR THE CLAIMANT On behalf of; Against; The Claimant The Respondent Schmitt Gmbh Thomson Pty Ltd Karl Platz Bell Street Kreuzlingen Melbourne Germany. Australia. Faculty of law GERMAN ARBITRUAL TRIBUNAL (DIS) Dr Bruno Zeller Karl Schmitt John Thompson Tables of Contents INDEX OF ABBREVIATION ……………………………………………………… INDEX OF AUTHORITIES ………………………………………………………… INDEX OF JUDGMENT…………………………………………………………… ARGUMENTS ……………………………………………………………………… INDEX OF AWARDS ……………………………………………………………… 1. THE CHALLENGE OF THE TRIBUNAL AND VICTORIAN SUPREME COURT IS TO BE REJECTED. 2. THE NOMINATED TRIBUNAL IS NOT INDEPENDENT AND IMPARTIAL AND SHOULD THEREFORE NOT PRISIDE OVER THE MATTER………..1 I.1. DIS rules of arbitration apply…………………………………………………..1 I.2. UNICITRAL Model Law does not apply……………………………………….1 I.2.1. The merge of the cases have doubt of the indecency of the tribunal and the partiality of the presiding officer is reasonably burdensome………………………….2 I.1.2.The tribunal did not act royally and did not comply with DIS rules and the tribunal favored the Thompson Pty Ltd with the award they issued……………………………..3 I.1.2.1.The favor is not direct toward the firm because the tribunal has no interest in either the firms but just a misconception of the evidence and miss-presentation of the case……………………………………………………………………………………4 II. THE CHALLENGE TO THE TRIBUNAL JURIDSTICTION IS TO BE REJECTED………………………………………5 II.1.The complainant has all the power and authority to decide the jurisdiction of their own to pursuant because Australia is a signatory to and in compliance with the New York Convention 1958 and United Nation Convention……………………………………6 II.2.The claimant has the mandate to choose the setup of the case and the welfare of the proceeding for they are responsible for the cost incurred by the proceeding………….7 III. THE TRIBUNAL HAS AUTHORITY TO JURISDICATE OVER THE DISPUTES BUT THIS IS TO BE REJECTED ……………………………….8 III.1.The parties are involved in a binding and valid arbitration agreement on 1ST August 2002. In reference to a phone call contract conversation made on the same day by one Schmitt GmbH of Karls Platz to the respondent John Thompson concerning 500 uncut South African diamond at a price of $150,000 a piece…………………………………9 III.2.a.The parties in this set up relied on arbitration to clear any disputes that may arise to void the contract……………………………………………………………………..10 b.This agreement meets the requirement set by the United Nation Convection Law and the Australian government is signatory to this laws……………………………….11 III.3. German Association of Arbitration was the choice of both parties in the contract………………………………………………………………………………..12 a. CLAIMANT’s leaves the arbitration clause unaffected because of the erroneous of the Supreme Court and the tribunal………………………………………….13 b. The claimant chose the German Association of Arbitration with the consent of the other party and they agreed on this terms………………………………………14 c. Erroneously designated institute is the reference category that the German Arbitration Institute belongs to………………………………………………….15 IV.1.Irrespective of the validity of the UNICTRAL Model Law the CLAIMANT and RESPONDENT did conclude a valid arbitration under the German Association arbitration…………………………………………………………….16 The arbitration agreement is not affected if invalidity of the UNICTRAL Model law is not alleged this is according to the doctrine of separability. a. If the UNICTRAL Model Law is not void ab initio exclusion of the application of the doctrines of separability is necessary. b. In this case the arbitration suffers no defects and the agreement is intact in this case the tribunal are not to compensate any award. V. The law applicable in both information and contract is the CISG A. The parties chose to use the German Association Arbitration with accordance to the commercial laws of Melbourne Australia. B. the laws of Australia are compliable and pertinent with the CISG and are catered in the contract in issue. C. Commercial Law of Australia in reference to it does exclude the CISG in any amount or imply to this activity. VI. The claimant and respondent both concluded the sale contract a. The element of contract contained in the Art. 14 CISG was concluded during the telephone conversation that transpired between Mr. Schmitt and Mr. John. A contract was concluded by Mr. Schmitt and Mr. John during their phone conversation. b. All element of Art .14 CISG were detailed in this conversational agreement B. The parties irrespective of the validity of the discount still concluded the agreement a. the requirement of the Art .14 CISG is here not mandatory in the formation of the contract at disputes since the claimant and the respondent never concluded the contract by virtue s of offer and acceptance which are requirement to the Art. b. In order to conclude valid contracts discounts plays no roles in spearheading this program in any way. c. The validity of the contract is of no importance to the common laws of the state of Australia VII. 10% discount was offered by the respondent in concluding the contract a. From the respondent discount of 10% can the agreement that was made during that telephone conversation be interpreted? b. According to the article 8 of CISG can this agreement in the contract be interpreted c. Because both parties conclude this discount to be 10% then no price was fixed so the German firm did not void the contract in the terms of price but the other Austrian firm voided the contract by providing inferior diamond that the contract had earlier refuted (Sierra Leone diamonds) VIII. The respondent was in bleach of performance of the contract a. The respondent did not reach the quality of the diamond the claimant had explained b. The respondent fraudently acquired Sierra Leone diamond and supplied the as South African diamond knowingly but deviously without warning the German firm c. The respondent rush to the arbitration tribunal with false tribulation about the contract and the tribunal erroneously awarded the respondent award on this merit without consideration d. The diamonds acquired by the German firm from their associates from Australia had no use to the firm for theirs use was generally tailored for South African diamond e. Under contract laws the party that coheres the other into contract and delivers inferior good or services voids this agreement and damages are awarded to the plaintiff in the case, so the Australian firm did void the contract on this merit of delivering inferior diamond and entering into an agreement with merit of knowingly deceiving the German firm. IX. the respondent was in bleach of contract, international commercial arbitration and also obligation under 27 of contract laws a. The respondent was in bleach of arbitration agreement formed in telephone conversation on exhibit 2. b. Under exhibit three the respondent was in bleach of contract when they accepted the terms of providing diamonds from south Africa and supplied the inferior one from Sierra Leone which the claimant had advised the respondent not to supply because they were of no use too their trade. c. The arbitration tribunal that awarded the Australian firm damages were hasty to deriving at conclusion and their merit in the case is questionable d. The claimant did not void the contact for the agreed on diamond were not supplied and only trickery was used by the Australian firm to enrich the firm with provision of inferior diamonds. e. The respondent in exhibit 4 is reminded of the sensivity of the condition of the diamonds to be supplied once again by the claimant X. Karl Platz is entitled for the award of $200,000 for damages incurred by the firm for provision of inferior diamond a. The claimant suffered double loss because they had to compensate for the award erroneously offered by the tribunal despite them being the victim b. The loss suffered by the claimant during that time of business for they lacked the uncut diamond useful in their trade c. The psychological effect and implication of the lie the Australian firm had perpetrated to the German firm d. The loss of profit and confidence from the customers associated with one Mr. Schmitt e. The setback and time loss experienced by one Mr. Schmitt while waiting and stressing for the ideal diamond to arrive f. The cost of paying an attorney twice to preside over the disputes and the amount spend on the appeal and the first dispute arrears payment g. The respondent should cover for all the loses incurred by the respondent and include the award offered by the tribunal on the first dispute hearing h. The responded did bleach the contract with ill motive of deceiving and sabotaging the contract XI. The responded deserve the award on the merit the respondent violated the terms of the contract in exhibit 2, 3 and 4 and all damages should have interest a. Claimant is supposed to recover the loss of profit which would have been earned from the transaction that Mr. Schmitt could have performed if the diamond could have been real from South Africa b. The loss incurred was due to respondent bleach of contract and arbitration laws c. The violation were foreseeable by the respondent d. The interest in damages 32should be payable to the claimant so that they foresee the payment of all legal cost encountered by one Mr. Schmitt e. A. Art. 78 CISG grants all right of claims of interest this is on damages 32 f. Payment of damages should be back dated to when the contract was supposed to end and the diamonds are in trade List of abbreviations BGH Bundesgerichtsh of (supreme court, Germany) BG Bezirksgericht (District Court) CISG UN Convention on Contracts for International Sales of Goods of April 11, 1980 CLOUT Case Law on UNCITRAL Texts which is the database in the internet, mainly edited by the UNCITRAL Secretariat http://www.uncitral.org/ DIS German Institution of Arbitration (Deutsche Institution für$ Schiedsgerichtsbarkeit e.V) DIS Rules DIS Arbitration Rules 1998 ICC International Chamber of Commerce Ltd. Limited New York Convention Convention that Recognize Enforcement of Foreign Arbitral Awards of 1958 - effective on June 07, 1959 UNCITRAL United Nations Commission on International Trade Law Model Law UNCITRAL Model Law on International Commercial Arbitration No. Number Index of Authority Blaser, Nadine., Langener, Tenth Annual Willem C. Vis International Commercial Arbitration Moot. 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