International Arbitration

) You are the Sole Arbitrator in a dispute between two pharma manufacturing companies over an alleged
breach of scope of use of intellectual property (as enshrined in the contract) due to unlawful termination.
During the pre-hearing conference, both parties agreed that instead of oral closing submissions, they
would want to submit post-hearing briefs (i.e. as written submissions). As Sole Arbitrator, upon going
through the closing written submissions, it dawns upon you that the Claimant has presented a new
argument in its post-hearing brief.
(i) Upon receiving the Claimant’s said post-hearing brief, the Respondent immediately objected on the
basis this new argument cannot be presented when the Respondent no longer had an opportunity
to respond / rebut this new argument. As Sole Arbitrator, what would you do? ……………….. (10 marks)
(ii) Based on the above fact scenario, can the Respondent challenge the Award or resist its
recognition/enforcement if you (as Sole Arbitrator) allow the Claimant to present this new
argument in its post-hearing briefs? If yes, on which ground(s)? Explain in detail. ………………. (10 marks)
(b)An Arbitral Tribunal (AT) has issued its Final Award which is substantially in favour of the Claimant. The
juridical seat of the arbitration is Italy. The Respondent feels outraged and aggrieved on a number of
grounds: (i) AT has made an error in its calculation of damages, in that it has failed to properly apply a
formula agreed by quantum experts of both the Claimant and Respondent during the hot-tubbing session;
(ii) reasoning appears to be inconsistent and flawed; and (iii) AT appears to have drawn on its own
technical expertise (as two of the three members of the AT are engineers) in reaching its conclusion on
an important and high value element of the claim, but it has not put the relevant analysis to the parties
for their consideration and submissions. How and on what basis might the Respondent challenge the
Final Award or resist enforcement, either in the seat of the arbitration or elsewhere? ……………… (10 marks)
(c) What are the various points/issues to be covered/identified/discussed by the AT during a Pre-hearing
Conference? ………………………………………………………………………………………………………………………………………………. (10 marks)
Page 3 of 3
PART 1I (60 marks) – ELECTIVE QUESTIONS (read each question carefully):
Answer any 3 (three) whole questions from Questions 2 to 6 (each question carries 20 marks in total)
QUESTION 2: In international arbitration, why is there a commonly accepted notion that an Arbitrator
must, at all times (i.e. not just during the arbitration proceedings themselves), be and remain independent
and impartial? Please elaborate. ……………………………………………………………………………………………………………………. (20 marks)
QUESTION 3: Litigation, Arbitration and Mediation: Compare and contrast each of these processes with
each other. Further, describe any 3 (three) other ADR processes that parties to a dispute may take recourse
to. Furthermore, what are the advantages and disadvantages of a hybrid procedure such as Med-Arb or ArbMed? …………………………………………………………………………………………………………………………………………………………………… (20 marks)
QUESTION 4: Basis for and factors to be considered by the Arbitral Tribunal (and its consequent
implications) when considering the following applications during an arbitration proceeding:
(a) Security for Costs ………………………………………………………………………………………………………………………… (10 marks)
(b)Amendment of Pleadings …………………………………………………………………………………………………………….. (10 marks)
QUESTION 5: Challenge to an Arbitral Tribunal (AT) – Appointment and Bias:
(a) Explain the procedure and basis for challenging the appointment of an AT under the UML and UAR.
………………………………………………………………………………………………………………………………………………………… (7 marks)
(b)With reference to the decision of the Supreme Court of the United Kingdom in Halliburton Company v/s
Chubb Bermuda Insurance Ltd. [(2020) UKSC 48], explain, in sufficient detail, the concept of arbitrator
bias. Also briefly explain this concept from the perspective of the decision by the Swiss Federal Tribunal
(SFT) in Sun Yang v. Agence Mondiale Antidopage (AMA) and Fédération Internationale de Natation (FINA)
[4A_318/2020]. …………………………………………………………………………………………………………………………… (13 marks)
QUESTION 6: Arbitration agreements (AAs) and separability / severability and jurisdiction and pathological
AAs:
(a) Explain the doctrines of severability / separability of AAs and Kompetenz-Kompetenz. Further, elaborate
how, if at all, these doctrines have been incorporated in and are supported either by the UML or UAR.
Finally, what are the practical consequences in an arbitration of each of these doctrines? …………. (10 marks)
(b)With reference to the jurisprudence stemming from the Singapore Court of Appeal decision in Insigma
Technology Co. Ltd. v/s Alstom Technology Ltd. [2009] SGCA 24: Where an Arbitral Institution (AI) is
appointed, do the parties have to adopt the procedural rules of the AI or are they free to elect any rules
they see fit? …………………………………………………………………………………………………………………………………………………… (8 marks)
(c) Name any 4 (four) Arbitral Institutions that have updated their Arbitration Rules w.e.f. 2021 ……. (2 marks)

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