I.
The Arbitration Tribunal should not lift the remaining part of the emergency order made
against Respondent.
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
met)
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
UNCITRAL Model Law
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