Full Outline, All Issues- Day 3

Respondent has not rightfully avoid the contract of 28 March 2014.
a. CISG is the applicable law to the contract
i. Contract satisfies the Article 1 requirements
ii. CISG was not excluded through Article 6
b. Respondent has not rightfully avoided the contract of 28 March 2014 through
its declaration of avoidance on 7 July 2014
i. No fundamental breach—There was no detriment to Respondent as to
substantially deprive Respondent of a right under the contract
1. No detriment
2. No substantial deprivation- Respondents expected right under
the contract was to receive a purchase price, Claimant provided
3. A substantial deprivation could not be forseen by Claimant or a
reasonable person of the same kind
ii. Even if there was a breach, second letter of credit might cure
c. Respondent has not rightfully avoided the contract of 28 March 2014 through
its declaration of avoidance on 9 July 2014
i. Claimant satisfied its contractual obligations
1. Timeliness of the letter
(Article 7, dispatch theory, extended period of time?  Look into these ideas)
What was lifted already? What remains? – Order relating to 70 metric tons was lifted (PO, p. 60)
a. Jurisdiction: The Emergency Arbitrator had jurisdiction pursuant to Article 29(1) of
the ICC Rules
i. What is required for the Emergency Arbitrator to have jurisdiction?
1. Consent
a. Parties signed the contract
b. Contract leads to ICC rules
ii. What does Article 29(1) require?
1. Urgent measures that cannot wait- Respondent will sell coltan to
someone else
2. Parties involved were signatories (procedural requirements were
iii. Article 21- Provisional vs interim measures
1. Look at p. 30 Emergency Arbitrator legal evaluation of Art. 21
2. Find sources to deal with the issue of courts in the place of business
having exclusive jurisdiction
b. Order to refrain from disposing of the 30 metric tons was correct. (Claimant has good
arguable case)
i. Art. 17A of Danubian Arbitration law which is a verbatim adoption of the
1. Harm wouldnt be adequately repairable if measure is not granted
(what does adequately repairable mean?)
a. Harm to reputation—as a young company a damage to
reputation would be fatal (p. 31 and 18)
2. Substantial harm is likely to result (what is substantial harm?)
a. Price increase, Claimant would have to spend more money
on any other coltan they seek
b. Claimant might not be able to find more coltan
c. Respondent has other customers lined up
d. Need conflict free coltan and there is a conflict situation in
Xanadu- production there might be interrupted so coltan in
Mediterraneo is more expensive (price increase)
3. Reasonable possibility the party will succeed on the merits of the
claim (what is a reasonable possibility?)—Rational, appropriate, or
usual in the circumstances at hand, something the parties would
expect to happen in the contract (law dictionary published in 1865)
a. Arguable case that ˝Respondents silence is interpreted as an
acceptance of Claimants offer...˝ (p. 31 of emergency
arbitrators claim)
b. Not 100% that Respondent is correct, need to protect
possible interest of Claimant
4. Determination of this possibility should not influence any
subsequent determination of the arbitration tribunal
The Arbitral Tribunal does not have jurisdiction over the additional party, Global
a. Tribunal does not have jurisdiction over Global Minerals
b. Global Minerals did not consent to arbitration
i. Consent- What is it? What does it require? Is it the same for the
contract and the arbitration agreement?
c. Global Minerals is a separate business entity
i. Look into case law and general business law/practices about parent
ii. Group of companies doctrine