SIAC Arbitration Training Video - 15 Hearing on Merits (Opening Statements) — Transcript

Full transcript

1. 0:00perhaps the most significant phase of
2. 0:02any international arbitration is the
3. 0:05oral hearing before the arbitral
4. 0:08tribunal in which parties may present
5. 0:10evidence and make oral submissions on
6. 0:13the merits of the dispute the SIAC rules
7. 0:17afford the parties wide latitude in
8. 0:21determining the procedures to be
9. 0:23followed for the hearing and some
10. 0:26parties even goes so far as to opt for
11. 0:29arbitration by documents only and to do
12. 0:33away with a hearing the hearings are
13. 0:36always private and the transcripts or
14. 0:38documents remain confidential unless the
15. 0:42parties agree otherwise let's observe
16. 0:45some key phases of an oral hearing a
17. 0:48selection of arguments made by both
18. 0:51counsel and the cross-examination of a
19. 0:54witness of fact and expert witnesses
20. 0:57this will give us a bird's eye view of
21. 1:00the hearing process although no bird has
22. 1:04ever actually had a chance to view this
23. 1:07good morning thank you all for attending
24. 1:10today's hearing
25. 1:11we will first have opening statements
26. 1:13followed by cross-examination and then
27. 1:16we will conclude with closing oral
28. 1:19statements from both sides so the first
29. 1:22order of the day is opening statements
30. 1:25counsel with the claimant would you
31. 1:27kindly begin Thank You mr. chairman mr.
32. 1:30chairman members of the tribunal I will
33. 1:32now present a brief introduction of the
34. 1:34claimants claims these are first that
35. 1:37the respondent electro ace breached its
36. 1:40contractual obligations in respect of
37. 1:42the supply of components for the power
38. 1:44plant in Serratia second that the
39. 1:47respondent prematurely terminated
40. 1:48maintenance services arrangement in
41. 1:51respect to the power plant and finally a
42. 1:53claim for costs now let me briefly recap
43. 1:56the material facts of the dispute the
44. 1:58respondent electro ace was developing
45. 2:00and constructing a power plant in
46. 2:02Serratia he then contracted with AC
47. 2:05annex the claimant for the supply of
48. 2:08components key components for that for
49. 2:10that power plant
50. 2:11and for the provision of service and
51. 2:14maintenance arrangements going forward
52. 2:16for a period of five years in respect of
53. 2:19the components the respondent agreed to
54. 2:21pay a hundred and twenty million u.s.
55. 2:23dollars and in respect to the servicing
56. 2:25maintenance arrangements the respondent
57. 2:28agreed to pay four million u.s. dollars
58. 2:30per year now this project was to be
59. 2:33constructed in two phases the first
60. 2:35phase went well and completed on
61. 2:38schedule then suddenly the late last
62. 2:41year the political landscape in series
63. 2:43had changed and as following which the
64. 2:47contract between the respondent and the
65. 2:50zoo agent state was cancelled but
66. 2:52instead of acting to protect its own
67. 2:55investment and the investment of his
68. 2:56subcontractors including the claimant
69. 2:58here easy annex the respondent sat back
70. 3:00did nothing and basically closed shop in
71. 3:03these circumstances and after
72. 3:05negotiations resulted in stalemate the
73. 3:09claimant has been left with no option
74. 3:10but to bring this this arbitration the
75. 3:12claimant has submitted documentary
76. 3:15evidence to substantiate its claims and
77. 3:17will highlight these further in the
78. 3:18closing arguments it's also submitted
79. 3:21witness statements from witnesses effect
80. 3:23and expert witnesses who you'll hear
81. 3:26from during the course of the hearing
82. 3:27now turning to the applicable law Clause
83. 3:3118 of the contract provides that the
84. 3:33governing law shall be the United
85. 3:35Nations Convention on contracts for the
86. 3:37International sale of goods or CIS G
87. 3:39there at least from the written
88. 3:42submissions of both parties there
89. 3:43doesn't seem to be any dispute on the
90. 3:45application of the convention article 1
91. 3:481a of the convention requires that both
92. 3:51parties or the places of business of
93. 3:53both parties be in different contracting
94. 3:54States here since both Amazonia and
95. 3:58Oceania the respective place of business
96. 4:02of the two parties are both parties the
97. 4:06convention have ratified the convention
98. 4:07that requirement is met moving to the
99. 4:11legal basis for the claims the claimant
100. 4:15claims that respondent breached article
101. 4:1853 of the convention because the
102. 4:21respondent failed to take delivery of
103. 4:22the goods
104. 4:23and to pay the contract price will also
105. 4:26show that article 79 of the Convention
106. 4:29on which the respondent relies to
107. 4:32exclude liability doesn't apply here in
108. 4:34some we will show that the claimant is
109. 4:37entitled to the 60 million dollars
110. 4:40claimed in respect of the components to
111. 4:42be provided and 20 million dollars in
112. 4:45damages for premature cancellation of
113. 4:48the maintenance services I will also
114. 4:50show that we're title to our costs thank
115. 4:52you and thank you for expressing your
116. 4:55case so succinctly and we will now hear
117. 4:57from counsel for the respondent you have
118. 5:00the floor sir good morning members of
119. 5:03this honorable tribunal to my colleagues
120. 5:05and to the representatives of claimants
121. 5:07on behalf of respondents electro async I
122. 5:10will be presenting the defense's to
123. 5:12claimants claims in this proceeding over
124. 5:15the next few days respondent will show
125. 5:17that although the circumstances leading
126. 5:20to this dispute were indeed unfortunate
127. 5:22they were also entirely attributable to
128. 5:25circumstances beyond respondents control
129. 5:27by virtue of article 79 one of the
130. 5:30United Nation conventions on the
131. 5:33international sale of goods respondent
132. 5:35is exempt from liability where its
133. 5:38failure to perform its contractual
134. 5:40obligations was due entirely to an
135. 5:42impediment to beyond its control also
136. 5:45during my presentation I will address
137. 5:47the inherent business risks to a
138. 5:49transaction such as this claimant was
139. 5:52well aware of those risks at the time of
140. 5:54contracting respondent will also show
141. 5:57that the very contract at issue in this
142. 6:00matter precludes liability for breaches
143. 6:03of contract resulting from political
144. 6:05events such as the events that took
145. 6:07place in Eurasia in 2012 and 2013
146. 6:12finally respondent will show that
147. 6:14claimants damages claim is based on an
148. 6:17entirely inflated estimate of loss an
149. 6:21estimate that cannot possibly support
150. 6:23claimants claim for damages in the
151. 6:25amount of 60 million u.s. dollars
152. 6:28respondents case is well supported by an
153. 6:31extensive documentary record that has
154. 6:33been already placed before the tribunal
155. 6:35and to which
156. 6:36I will refer during the course of these
157. 6:38proceedings respondents case is also
158. 6:41supported by numerous statements of fact
159. 6:43witnesses as well as the statements of
160. 6:45expert witnesses these experts will help
161. 6:48explain the principles of gyration law
162. 6:51that apply to this dispute and will also
163. 6:53provide insights into the duration
164. 6:56political situation that led to this
165. 6:58dispute at the conclusion of these
166. 7:00proceedings respondents will ask this
167. 7:03Tribunal to dismiss claimants claims in
168. 7:05their entirety and also to award
169. 7:07respondents the costs of this
170. 7:09arbitration thank you
171. 7:10and thank you also for a very clear
172. 7:12statement of your position