MEMORANDUM FOR CLAIMANT

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Rheinische Friedrich-Wilhelms-Universität Bonn arbitrators. This ambition standard was criticized by several other courts finding that arbitrators should be held to a lower ethical standard than judges [Pitta v. Hotel Ass'n, Inc. (U.S.); Morelite Constr. Corp. v. New York City Dist. Council Carpenters Benefit Funds (U.S.); Hunt v. Mobil Oil Corp. (U.S.)]. Nevertheless, Dr. Arbitrator disclosed the relationship on 22 August 2002, [Dr. Arbitrator in his letter to Mr. Bredow dated 22 August 2002] merely two days after he had received the information about the nature of the representation [Procedural Order No. 2, Clarification No. 18]. He behaved in a truly honourable way. 13. As there is no further indication of circumstances that could justify the challenge of Dr. Arbitrator, he cannot reasonably be considered partial or dependent. Therefore, CLAIMANT respectfully requests the Arbitral Tribunal to reject the challenge to Dr. Arbitrator. II. The challenge to the jurisdiction of the Tribunal is to be rejected 14. The Tribunal can rely on the Competence-Competence doctrine embodied in Art. 16(1) Model Law and find that it has jurisdiction to decide on the merits of the case at hand (A.). CLAIMANT and RESPONDENT concluded a valid arbitration agreement (B.). This arbitration agreement is neither invalid because it refers to the arbitration rules of the “German Arbitration Association” (C.) nor does the alleged invalidity of the commercial contract have any effect on the arbitration agreement (D.). A. The Tribunal has authority to decide on its own jurisdiction pursuant to Art. 16(1) Model Law 15. CLAIMANT and RESPONDENT agreed that arbitration proceedings, if necessary, should take place in Vindobona, Danubia. Danubia has enacted the UNCITRAL Model Law [Rules p. 3]. Therefore, the Model Law applies to the case at issue since the Model Law is the lex fori of Danubia. Art. 16(1) Model Law provides that “the arbitral Tribunal may rule on its own jurisdiction, including any objections with respect to the existence or validity of the arbitration agreement”. Since Art. 16(1) Model Law is mandatory [Holtzmann/Neuhaus, p. 480], the DIS Rules cannot deviate from this provision, irrespective of whether they apply 7
Rheinische Friedrich-Wilhelms-Universität Bonn to the instant dispute or not. This is confirmed by Section 24.1 DIS Rules. Therefore, the Tribunal has authority to rule on its own jurisdiction. B. CLAIMANT and RESPONDENT concluded a valid arbitration agreement a. The parties agreed to refer any dispute arising out of the contract to arbitration 16. During their telephone conversation on 3 April 2001 CLAIMANT and RESPONDENT concluded a sales contract in which they referred to the sales conditions they had agreed upon in their previous contract dated 15 December 2000 [CLAIMANT’s Exhibit No. 1, 3, 4]. In the subsequent correspondence, neither CLAIMANT nor RESPONDENT doubted the validity of the arbitration agreement; only the amount of the discount rate was in dispute. b. This arbitration agreement meets the writing requirement according to Art. 7(2) Model Law 17. Pursuant to Art. 7(2) Model Law, the arbitration agreement of 3 April 2001 has to be in writing in order to be effective. Art. 7(2) Model Law provides that “the writing requirement is met by reference in the contract to a document containing an arbitration clause if the contract is in writing and the reference is such to make that clause part of the contract”. Although the contract dated 3 April 2001 was concluded orally, the formal requirements are satisfied, since both CLAIMANT and RESPONDENT agreed in their confirmations of the telephone conversation that the provisions of the contract dated 15 December 2000 should apply. This contract contained an arbitration clause and both parties signed the contract [CLAIMANT’s Exhibit No. 2]. These letters of confirmation constitute a record of the orally concluded contract. Since those letters of confirmation represent an exchange of letters pursuant to Art. 7(2)(2) Model Law, the contract containing the reference to the arbitration clause is in writing pursuant to Art. 7(2)(3) Model Law [Holtzmann/Neuhaus, p. 264; Seventh Secretariat Note, A/CN.9/264, Art. 7, para. 8]. 18. The contract of 3 April 2001 need not reproduce the arbitration clause or make explicit reference to it [Holtzmann/Neuhaus, pp. 263-264; Fifth Working Group Report, A/CN.9/264, Art. 7, para. 19; Seventh Secretariat Note, A/CN.9/264, Art. 7, para. 8; Houtte, Arb.Int. 2000, p. 10; Société Van Hopplynus c/ société Coherent Inc. (Belgium); Becker Autoradio USA, Inc. 8
Page 1 and 2: On Behalf of TENTH ANNUAL WILLEM C.
Page 3 and 4: Rheinische Friedrich-Wilhelms-Unive
Page 9 and 10: Index of Authorities Rheinische Fri
Page 11 and 12: Derains, Yves / Schwartz, Eric A. D
Page 17 and 18: Witz, Wolfgang / Salger, Hanns Chri
Page 19 and 20: Belgium Rheinische Friedrich-Wilhel
Page 33: Rheinische Friedrich-Wilhelms-Unive
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MEMORANDUM FOR CLAIMANT

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