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TWENTY-FIRST ANNUAL WILLEM C. VIS INTERNATIONAL COMMERCIAL ARBITRATION MOOT 2013-2014 - Memorandum - Procedural Law
(2013)
  • Rosi Lehr, Stetson University College of Law
Abstract

Innovation Cancer Treatment and Hope Hospital entered into and signed two separate contracts each containing an arbitration clause. [Cl. Ex. 3]. Hospital negotiated for its terms on the arbitration contract in the first contract. The second contract included the arbitration contract in its revised terms and conditions. [Id]. The arbitration clause in each contract was formalized in writing as required by Article 2(2) of the NY Convention. [NY Conv. Art. II(2)]. The Framework and Sales Agreement (FSA) and the Sales and Licensing Agreement (SLA) specify the CEPANI rules in its arbitration clauses. [Cl. Ex. 2 and Cl. Ex. 6]. The signed contracts, conduct of the parties, and performance clearly show that the parties intended to include an arbitration clause in both contracts. [UNCITRAL Art. 1; CISG Art. 9; UNIDROIT Art. 2.2.1] There are two recognized arbitration principles conferring jurisdiction to the tribunal to review the validity of an arbitration clause. Separability is an internationally recognized principle. It identifies the arbitration clause as a separate agreement from the main contract. [Born p. 76]. The seat of the arbitration is Danubia. [Cl. Ex. 2]. Its law is the UNCITRAL Model Law with 2006 amendments. [Id.]. Article 16(1) of the UNCITRAL Model Law recognizes competence-competence a principle, which expressly confers jurisdiction to the tribunal to determine its own competence. [UNCITRAL Art. 16]. This principle is well established. The tribunal has competence because there are written and signed arbitration clauses in both contracts. In addition, they can decide on the validity of the arbitration clause while separating it from the main contract.

Keywords
  • CEPANI,
  • UNIDROIT,
  • UNCITRAL,
  • CISG,
  • International law
Publication Date
2013
Citation Information
Rosi Lehr. "TWENTY-FIRST ANNUAL WILLEM C. VIS INTERNATIONAL COMMERCIAL ARBITRATION MOOT 2013-2014 - Memorandum - Procedural Law" (2013)
Available at: http://works.bepress.com/rosi_lehr/2/