THIS PAPER CONSISTS OF FIVE DRAFTING QUESTIONS. ANSWER QUESTIONS 1, 2 & 3 AND ONE OTHER. ALL QUESTIONS CARRY 25 MARKS EACH. Wherever possible, justify answers by reference to statute or decided cases. Candidates should answer this paper on the basis of the law currently in force in England and Wales. QUESTION 1 Respond to the following letter, dating your letter 1 February: 24 January 2005 Dear Sir We are writing to you jointly to request that you be arbitrator in a dispute between our two clients. The parties wish the place of arbitration to be London, England, language of the proceedings to be English, that you accept this appointment provisionally and that you accept this letter as notice of intent to submit to arbitration. So you can satisfy yourself that the matter is within your competence we set out below a summary of the nature of the dispute, and enclose a copy of the contract.* The parties now wish to improve on their arbitration agreement in their contract and request you first to draft a detailed arbitration agreement for their dispute, mindful of the options available under the English Arbitration Act 1996 and taking account of the differing backgrounds of the parties in their respective jurisdictions. Lawyers: Lawrence, West and Freebold, acting for Rosie Cheung - Claimant Cantwell & Cochran, Attorneys, acting for Egyptian Ethnic Cottons SA - Respondent Nature of Dispute Rosie Cheung is a clothes designer, based in London, Ontario, who specializes in women's suits sold through selected outlets throughout Asia and Africa. In early 2003 she decided that she would use Egyptian cotton exclusively. Following a series of meetings with Abdul Sayeed of the Egyptian Ethnic Cottons SA, a contract was signed on 4 April 2003 for the supply of quality Egyptian cotton. Rosie Cheung wrote to Egyptian Ethnic Cottons on 1 June 2004 confirming that they would also supply suits made to one of her exclusive designs. For reasons which Rosie Cheung say are the responsibility of Egyptian Ethnic Cottons, the contract was not continued and on 3 October 2004 she wrote to Egyptian Ethnic Cottons cancelling the contract and stating that she intended to sue them. On 1 December 2004, Egyptian Ethnic Cottons received a request from Rosie Cheung to agree to the appointment of an arbitrator to deal with the dispute. Rosie Cheung is claiming for loss of sales due to the non-delivery of suits, faulty cloth and the damage to her reputation following the leak of her design to another manufacturer. Egyptian Ethnic Cottons counterclaim for the unpaid balance of their accounts, and for the damage to their reputation due to the false accusations of the leak of the designs. Yours faithfully Lawrence, West and Freebold for Rosie Cheung, London, Ontario, Canada and Cantwell & Cochran, Attorneys for Egyptian Ethnic Cottons SA, Alexandria, Islamic Rep. Egypt *Contract No. M03/2547 1. This Agreement is for the supply by the Egyptian Ethnic Cottons SA (EEC) to Rosie Cheung of best quality medium coarse weave cotton in bales of 200 metres in six colours at a cost of US$ 10,000 per piece. 2. All bales will be supplied subject to a quality check by Rosie Cheung on receipt. 3. Any defects noted by Rosie Cheung in any bale must be notified in writing to EEC within one week of receipt. 4. Rosie Cheung will advise EEC on 1st of each month the precise number of bales in each colour which are required. 5. EEC will ensure that bales are delivered to the Rosie Cheung factory in Taiwan not later that the 28th of each month in which ordered. 6. EEC will invoice Rosie Cheung on 1st of each month for the cloth supplied in the proceeding month and the terms of payment will be 14 days from receipt of invoice. 7. This agreement takes effect as and from 1 May 2002 and may be terminated by either party at any time with six months written notice. 8. Any claim or disagreement arising out of or relating to this Contract, its interpretation or operation, shall be submitted for final decision to a sole arbitrator in London. 9. This Agreement shall be governed by English law. 4 April 2003 QUESTION 2 Respond to the following letter: 8 February 2005 Dear Sir We are writing to you again jointly to thank you for your most excellent perceptive Arbitration Agreement which our two clients adopt wholeheartedly and now wish you to proceed on in this matter. The parties confirm that this new Arbitration Agreement replaces that in their contract of 4 April 2003. As the parties are anxious to have this matter resolved as swiftly and as practicably as possible, they request that you now issue full directions for the arbitration based on this new Arbitration Agreement. The parties confirm your appointment under this new Arbitration Agreement and that this letter serves as notice of arbitration. Yours faithfully ________________________ ________________________ Lawrence, West and Freebold for Rosie Cheung, London, Ontario, Canada and Cantwell & Cochran, Attorneys for Egyptian Ethnic Cottons SA, Alexandria, Islamic Rep. Egypt QUESTION 3 Identify the issues from the following pleadings and arrange them in order of their priority: IN THE MATTER OF THE ARBITRATION ACT 1996 and IN THE MATTER OF AN ARBITRATION between Ms Joan Coffey Claimant and Konstruktit Ltd Respondents POINTS OF CLAIM 1. The Claimant is the owner of 47a Market Street, Courtaferry, Co. Durham. 2. The Respondents are general building contractors. 3. On or about 17 March 2003, Mr Colgan, a director of the Respondents orally agreed, on behalf of the Respondents, to carry out the following work for an estimated price of £5,300 for the Claimant: Strip and re-paper, with paper supplied by Ms Coffey, the main guest bedroom and the lounge, and repaint, with one undercoat and one top coat of good quality lead paint, all exterior woodwork at 47a Market Street, Courtaferry. 4. It was an implied term of the contract that all the work would be done by the Respondents using reasonable care, skill, judgment and competence. 5. The work that the Respondents subsequently carried out was not done with reasonable care, skill, judgment and competence in that: the papering in the lounge did not match at the joins in at least nine places; the papering in the bedroom showed at least twelve tears in the paper. 6. The Claimant has made several requests, both orally and in writing, to the Respondents to remedy the matters complained of but they have neglected to do so. 7. The Claimant claims the cost of re-papering both rooms with paper of a similar quality to that provided to the Respondents by her. The estimated cost of stripping paper from both rooms and re-papering with paper of similar quality is £2,900. 8. In consequence the Claimant has suffered inconvenience, distress and annoyance and loss and the Claimant claims (i) Damages (ii) Interest (iii) Costs Helene Flanagan 25 August 2005 IN THE MATTER OF THE ARBITRATION ACT 1996 and IN THE MATTER OF AN ARBITRATION between Ms Joan Coffey Claimant and Konstruktit Ltd Respondents POINTS OF DEFENCE 1. Paragraphs 1, 2 and 6 of the Points of Claim are admitted. 2. Paragraph 3 of the Points of Claim is admitted save that it is expressly denied that Mr Colgan ever gave an estimated price for the work. He offered to give Ms Coffey a written estimate for the work but his offer was declined. Mr Colgan admits that he said the work would cost appropriately £5,300 or thereabouts. This was only intended to be a rough approximate cost of the work, and was accepted as such by Ms Coffey. 3. Paragraph 5 of the Points of Claim is denied. 4. The Respondents make no admissions regarding paragraphs 4, 7 and 8 of the Points of Claim. COUNTERCLAIM 5. The Respondents duly and properly carried out the work referred to in paragraph 3 of the Points of Claim at a cost of £7,400. In addition, they burnt off and painted all the interior woodwork of the main guest bedroom and the lounge of the premises with undercoat and top coat of good quality gloss paint in accordance with the Claimant's instructions at a further cost of £1,300, making a total due to the Respondents of £8,700. 6. The Respondents duly rendered their account to the Claimant on 2 May 2003 stating that payment was due in 14 days and that 4% per annum interest was payable on overdue accounts. The Claimant has failed and neglected to settle the Respondent's said account. And the Respondents counterclaim (i) £8,700 (ii) Interest (iii) Costs James Cantwell 8 September 2005 IN THE MATTER OF THE ARBITRATION ACT 1996 and IN THE MATTER OF AN ARBITRATION between Ms Joan Coffey Claimant and Konstruktit Ltd Respondents POINTS OF REPLY 1. The Claimant joins issue with the Respondents in their defence. DEFENCE TO COUNTERCLAIM 1. The Claimant denies that the figure of £5,300 referred to in paragraph 2 of the Defence was given by Mr Colgan as an approximate cost. She expressly avers and contends that, on the contrary, it was given as a firm estimate for the work. 2. The Claimant denies that it was ever part of the contract with the Respondents that 4% per annum or any other rate of interest would be payable on any account alleged to be overdue. 3. The Claimant denies that she is indebted to the Respondents for any monies in respect of the alleged work of painting the interior of the lounge and main guest bedroom of their home by reason of the matters particularized below. The Claimant was abroad during the whole of the time that the alleged work of repainting the interior of the lounge and main guest bedroom is alleged to have been done. It was completely unnecessary as she had herself done this painting work in the previous year. She did not authorise or request any of the said work and is not liable to the Respondents for any monies for this unauthorised work. 4. The Claimant denies that she owes the money counterclaimed or any monies to the Respondent. Helene Flanagan 15 September 2005 IN THE MATTER OF THE ARBITRATION ACT 1996 and IN THE MATTER OF AN ARBITRATION between Ms Joan Coffey Claimant and Konstruktit Ltd Respondents REJOINDER 1. The Respondents join issue with the Claimant on her Defence to Counterclaim. 2. In further answer to paragraphs 2 and 3, the Respondents aver that the Claimant is estopped by her implied agreement and conduct from denying that she is liable to the Respondent for the amounts and monies referred to therein because: a) The Respondents have rendered their account for the monies due to them in respect of the work done for the Claimant on at least four occasions and have included the 4 % per annum in respect of overdue account on every occasion after it became overdue. On no occasion has the Claimant ever contested the amount due including the 4 % per annum in respect of the said account being overdue; and/or (b) The Claimant and her husband are joint owners of 47a Market Street, Courtaferry; and/or (c) The work of repainting the interior of the lounge and main guest bedroom at the premises was expressly orally requested by the Claimant's husband to Mr Colgan. No price was agreed. The Respondent is entitled to a reasonable price for the work. The price counterclaimed is reasonable; and/or (d) The Claimant's husband, both as her husband, and as joint owner of the premises was authorised and entitled to order the Respondents to do the work and the Respondents were entitled to assume that he was so authorised and entitled and did so; and/or (e) The Claimant's husband was at all material times acting as the Claimant's agent and the Claimant is liable for his acts in relation to his giving instructions to the Respondents. James Cantwell 22 September 2005 QUESTION 4 Reverting to the scenario in Questions 1 & 2, respond to the following letter: 7 March 2005 Dear Sir Following receipt of the Claimant’s submission in this arbitration it clarified. We would appreciate your guidance as to how we might proceed with this and that you issue an appropriate Order. Yours faithfully ________________________ Cantwell & Cochran, Attorneys for Egyptian Ethnic Cottons SA QUESTION 5 Reverting to the scenario in Questions 1 & 2, respond to the following letter: 13 April 2005 Dear Sir We are writing to you yet again jointly to thank you for your recent consideration of our problems with the time available for the Oral Hearing in this matter. Please order appropriately how best the 3-day Hearing we have recently agreed should be arranged for our respective submissions and oral evidence from our witnesses of fact and opinion with your estimate of how long thereafter we might expect your Award on the substantive claims. As you have suggested previously, we continue to seek a settlement of our dispute and, noting that we might make offers between us to settle, we ask for further guidance as to how we should do this in the event that we are unable to agree the dispute. Yours faithfully Lawrence, West and Freebold for Rosie Cheung, London, Ontario, Canada and Cantwell & Cochran, Attorneys for Egyptian Ethnic Cottons SA, Alexandria, Islamic Rep. Egypt