Argumentos Engineering
Jurisdiction – Were the preconditions to arbitration as provided in clause 18 of the contract
properly fulfilled?
1.1. ACICA OK. Article 24 just states about the kompetenz-kompetenz principle.
1.2. UNCITRAL Conciliation Rules.
1.2.1. The parties participated actively in the conciliation proceedings. Article 6 states that the
parties may be represented or assisted by persons of their choice.
Besides that,
CEO é um órgão corporativo – pouco importa a pessoa - Mr. Holzer was in charge of
operations. He exercised such other duties as were delegated to him by the CEO. Oxford
Business English Dictionary says that deputy is: “a person who is immediately below the head
of an organization, a department, etc. in rank and who is officialy in charge when that person is
not there [the CEO’s daughter was getting married on 29 May 2009]”. Thus, Mr. Holzer’s name
with his title was in the list of participants at the conference.
1.2.2. Role of the conciliator. Article 7 was fulfilled, the conciliator assisted the parties in their
attempt to reach an amicable settlement of their dispute.
1.2.3. Termination of conciliation proceedings. Article 15 was fulfilled because there was a
written declaration of the conciliator, after consultation with the parties, to the effect that
further efforts at conciliation are no longer justified (Danubia Arbitration Center has a copy of
this declaration, which is dated 4 June 2009).
Argumento subsidiário: Ainda que a presence do CEO não tivesse sido regular. 1.3. Princípio
de que não há nulidade sem prejuízo; “pas de nullité sans grief”. Não houve qualquer prejuízo
ao eventual sucesso da conciliação pelo fato de nela haver figurado o Deputy CEO, pois
inexistia qualquer disposição de ambas as partes para a conciliação. Seu resultado teria sido o
mesmo qualquer que fosse a pessoa.
Breach of good faith duty: The week following the Conciliation Mr. Wilson (Super Pumps)
noticed that Mr. Holzer (Engineering) was the Deputy CEO and not the CEO. Why Super Pumps
is arguing this just now? Why Super Pumps did not say before that the Conciliation
proceedings was not conducted properly?
- art. 8º (3) CISG: “in determining the intent of a party or the understanding a reasonable
person would have had, due consideration is to be given to all relevant circumstances of the
case including the negotiations, any practices which the parties have established between
themselves, usages and any subsequent conduct of the parties”.
1.4. Princípio da boa-fé.
- art. 7º (1) CISG: “In the interpretation of this Convention, regard is to be had to its
international character and to the need to promote uniformity in its application and the
observance of good faith in international trade”. The Guide to Enactment and Use of the
UNCITRAL Model Law on International Commercial Conciliation (2002) states that art. 2 of the
Model Law provides guidance for the interpretation of the Model Law by Courts and was
inspired by art. 7 of the CISG;
- art. 2 (1) of UNCITRAL Model Law on Conciliation: “in the interpretation of this Law, regard
is to be had to its international origin and to the need to promote uniformity in its application
and the observance of good faith”
- Art. 13 of UNCITRAL Model Law on Conciliation: ver se a regra se encaixa (é o Tribunal
Arbitral que deve examinar a aplicabilidade da exceção à eficácia do undertaking to conciliate
entered into by the parties).
Ultimo argumento (talvez somente oral): De qualquer modo, as partes podem exercer a
faculdade de conciliar em qualquer etapa do procedimento arbitral.
1.4. Doctrine.
- Gary Born says: “in general, national courts and arbitral tribunals have been reluctant to
conclude that compliance with contractual procedural requirements is a jurisdictional
condition for commencing an arbitration. A substantial body of arbitral authority from
investor-state disputes concludes that compliance with procedural mechanisms in an
arbitration agreement (or bilateral investment treaty) is not ordinarily a jurisdictional
prerequisite”. Similar arbitral authority exists in other contexts1”.
He also states that: “where a party attempts to delay arbitration by insisting on enforcement
of a negotiation requirement, courts may decline to assist that party in its delay efforts. Thus,
even where the contract at issue included ‘a term requiring mediation ... as a condition
precedent to arbitration,’ a court held that ‘surely a party may not be allowed to prolong
resolution of a dispute by insisting on a term of the agreement that, reasonably construed, can
only lead to further delay.” 2
1
See Interim Award in ICC Case Nº 10256, in Figuera, Multi-Tiered Dispute Resolution Clauses in ICC
Arbitration, 14(1) ICC Ct. Bull. 82,87 (2003); Final Award in ICC Case No. 8445, XXVI Y.B. Comm. Arb. 167
(2001): clause requiring efforts to reach amicable settlement, before commencing arbitration, “are
primarily expression of intention” and “should not be applied to oblige the parties to engage in fruitless
negotiations or to delay an orderly resolution of the dispute”.
2
See Interim award in SCC of 17 July 1992, XXII Y.B. Comm. Arb. 197 (1997) (language of consultation
clause is optional in nature); Cumberland and York Distrib. V. Coors Brewing Co., 2002 WL 193323, at *4
(D. Me. 2002) (citing Southland Corp. v. Keating, 465 U.S. 1 (US. S.Ct 1984)):”Courts seek to ensure that
contractual dispute resolution mechanisms are not abused or used for improper purposes”.
Merits
1) Fundamental breach (Isadora / João Vicente / Larissa)
Super Pumps had an obligation to provide pumps that were in conformity with the
regulations adopted after the date of the contract
SP has always known that the pumps were to be employed in a particular irrigation project in
Oceania. The contract wording was in line with this.
Acknowledgement of this obligation: when the first change in Oceania regulation came about,
to exclude berilyum from the pumps, SP complied with the change without resistance. It only
charged Engineering for the extra costs involved with the change.
Even with the second change in Oceania regulation, SP would have complied with its
contractual obligations if it had delivered the pumps in a timely manner, according to the
contract. The (second) new regulation relates to pumps manufactured in Oceania or imported
into Oceania, allowing for the use of non-conformity pumps manufactured or imported before
1st of January, 2009.
Were SP in breach of its obligation to deliver the pumps by the delivery date in the contract
of 15 December, 2008, or, as extended to 22 December, 2008?
Super Pumps breached the contract. The seller was under the obligation to deliver the pumps
to Engineering in Capital City, Mediterraneo, by 22 December, 2008, and only did so in 6
January , 2009.
Delivery date was amended according to a new agreement by the parties (aditamento). This is
an implied term in the sense that SP and Engineering would agree to new contractual terms
and conditions whenever Oceania enacted new regulations concerning the pumps. (Parties
conduct – good faith – see articles 7 and 9 CISG).
The contract breach was fundamental (art. 25) because:
a) time was of the essence of the contract (problem, page 18)
b) delivery of the pumps in breach of the contract date resulted in a detriment to Engineering:
because of the late delivery, Engineering contract with Oceania Water SVC was cancelled
under the new regime regulation
c) this detriment was substantial enough to deprive Engineering of what it was entitled to
expect under the contract: Engineering was entitled to use the pumps on the irrigation project
in Oceania, according to its contract passed with Oceania Water SVC.
d) SP could foresee that the late delivery of the pumps would result in the cancellation of
Engineering contract with Oceania Water SVC (remete ao primeiro ponto – time was of the
essence of the contract - Problem, p. 18).
This is not a case involving force majeure. Accident at the canal. DES Incoterm clause.
Pouco mais de um parágrafo. De todo modo, ver advisory opinion n. 7
Did Engineering fail to mitigate the consequences of the cancellation of irrigation contract?
Obrigação de meios – dever de envidar esforços – Engineering (aparentemente) não a
cumpriu.
p. 38 do problema: Trading Co. Mediterraneo era conhecida de Engineering e possuía algumas
bombas adequadas para entrega.
CISG, art. 77 – reasonable
Our date is December, 28 (the latest date regarding the breach)
On Dec. 28, three days before the entry into force of new restrictions to pumps enacted by
Oceania, it was not reasonable to expect from Engineering to find the only person on Earth
that had some of the pumps that fitted the contract specifications.
Digest p. 241, parágrafo 11 – CLOUT 166 (ótima decisão)
Calculation of damages
Gotanda
Ver advisory opinion n. 8
Under article 74 – ver advisory opinion 6
Juros
Custos de arbitragem