Participant No 18
Participant No 18
Participant No 18
18
Between
And
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FINAL AWARD
TABLE OF CONTENTS
I. THE PARTIES AND THEIR LEGAL REPRESENTATION - - - - - - - - - - - - - - - - - - - - -
3
1.1 The CLAIMANT is Phar Lap Allevamento (Phar Lap), a company registered
most renowned stud farm, covering all areas of the equestrian sport (hereinafter
referred to as “CLAIMANT”).
Court Street, Capital City, Mediterraneo, telephone number (0) 146 9845, telefax
1.3 The RESPONDENT is Black Beauty Equestrian (Black Beauty), with address
for its broodmare lines that have resulted in a number of world champion show
32, telefax number (0) 214 77 33, and email address fasttrack@host.eq.
II. CONSTITUTION OF THE ARBITRAL TRIBUNAL
Resolution (PICCR), paid the filing fee of PhP 25,000.00 to PICCR Secretariat in
accordance with Appendix 3, Article 1 of the Rules, and served a copy of the
2.2 In the Request, CLAIMANT nominates Ms. Wantha Davis (“Ms. Davis”) with
and the absence of any connections which could affect her independence and
2.3 On July 31, 2018, the PICCR acknowledged receipt of the Request and the
commenced the arbitration under the Rules pursuant to Clause 15 of the Frozen
Semen Sales Agreement dated 6 May 2017 (the “Agreement”) and that PICCR
RESPONDENT was ordered to submit to the PICCR the Answer to the Request
for Arbitration (the “Answer”) within 30 days from the date on which Respondent
received the Request. The said Answer shall be submitted to the PICCR
the Answer.
2.5 The PICCR noted the provision in the Agreement that the number of
arbitrators shall be three and that pursuant to Article 12(4) of the Rules,
Mediterraneo as the first co-arbitrator in this case. The PICCR invited Ms. Davis
2.6 For purposes of efficiency, the parties are encouraged to use email
PICCR whether they agree to communicate with PICCR by email only in these
2.8 On 24 August 2018, Julia Clara Fasttrack indicated her representation of the
2.9 On 27 August 2018, the PICCR confirmed the designations of Ms. Davis and
2.10 Pursuant to Article 12(5) of the Rules, PICCR shall proceed to appoint the
third arbitrator who will act as the chair in the arbitral tribunal. The parties were
2.11 On 14 September 2018, Ms. Davis, Dr. Dettorie, in close cooperation with
the Parties, proposed the appointment of Prof. Calvin de Souza of Happy Valley
Road 79, 1011 Vindobona, Danubia as Presiding Arbitrator. His curriculum vitae
and Declaration of Acceptance and Statement of Availability, Impartiality and
PICCR hereby formally appoints Prof. Calvin de Souza as the third and presiding
Tribunal Chair
Tribunal Members
Wantha Davis
14 Churchill Downs, Capital City, Mediterraneo
Email address: wdavis@capitalcity.me
2.15 The PICCR Case Manager in charge of this case is Mr. Formula Wan,
fwan@PICCR.org, telefax number +63 2 912 2000, and fax number +63 2 524
2171.
III. COST OF THE ARBITRATION
3.1 Pursuant to Article 38(2) of the Rules, the initial deposit for the fees and
equally by the parties. Accordingly, in accordance with Article 40(1) of the Rules,
each party shall deposit with PICCR its share (i.e. PhP 672,611.40 per party) by
14 August 2018.
3.2 The initial deposit for PICCR’s Administrative Fees is PhP 561,720 which
40(1) of the Rules, each party shall deposit with PICCR its share (i.e. PhP
3.3 The amount of any advance on costs fixed by the PICCR pursuant to Article
38 (Advance to over the Costs of the Arbitration) of the Rules may be subject to
“Any dispute arising out of this contract, including the existence, validity,
Center for Conflict Resolution (PICCR) under the PICCR Arbitration Rules in
conducted in English.”
4.2 Per Agreement of the Parties provided in Clause 14 of the Sales Agreement
the United Nations Convention on Contracts for the International Sale of Goods
(1980) (CISG).”
5.1 The Parties did not expressly indicate in the Agreement the applicable
arbitration law. The Parties only indicated that the Sales Agreement shall be
Vindobona, Danubia.
5.2 The PICCR Arbitration rules in force when the Request of Arbitration is
Order No. 1 of 5 October 2018 and Procedural Order No. 2 of 2 November 2018,
6.1 Pursuant to Clause 15 of the Agreement executed on 6 May 2017, the seat
6.2 Danubia, the seat of arbitration, has adopted the UNCITRAL Model Law on
6.3 The salient items in the Procedural Order No. 1 issued by the Arbitral
a. The conduct of the proceedings will be based on the newest version of the
Arbitration Rules of the PICCR which officially enter into force in April
2019;
d. In case the Arbitral Tribunal should deny its jurisdiction to adapt the
Arbitral Tribunal;
f. Both parties should submit pleadings on the merits of the claim, including
6.4 In Procedural Order No. 1 of 5 October 2018, the Arbitral Tribunal required
the parties to address the issues on (a) jurisdiction and/or powers of the tribunal
under the arbitration agreement to adapt the contract, including the law
amount resulting from an adaption of the price under clause 12 of the contract or
Defense should be submitted no later than 24 January 2019. All submissions are
6.6 The Oral Hearing was scheduled for 1-3 April 2019 in Vindobona, Danubia.
On the last day of the hearing (i.e. 3 April 2019), the arbitral proceedings shall be
declared closed without need for a further declaration from the Arbitral Tribunal.
6.7 Pursuant to Article 23 of the Rules, the time limit for the arbitral tribunal to
6.8 On 2 November 2018, the Arbitral Tribunal issued Procedural Order No. 2
7.2 On 2 October 2018, CLAIMANT informed the Tribunal with regard the alleged
thereafter relying upon such evidence where it is in its favor in another arbitration
Danubia. On the last day of the hearing (i.e. 3 April 2019), the arbitral
proceedings shall be declared closed without need for a further declaration from
C-7 20 Jan Email Letter of Julie Napravnik to Mr. Shoemaker regarding the
2017 additional tariffs for shipment of 50 doses of semen of Nijinsky
III
documentary evidences:
R-1 10 April Email Letter of Chris Antley to Julie Napravnik regarding the
2017 first draft for the dispute resolution clause
R-2 11 April Email Letter of Julie Napravnik to Chris Antley regarding the
2017 proposed amendment to the dispute resolution clause
8.1 The identities, profiles and circumstances of the parties are admitted.
8.2. From March to April 2017, both parties engaged in negotiations for the
purchase and delivery of 100 doses of frozen semen of Nijinsky III, one of the
that consisted of three shipments of 100 doses of Nijinsky III’s frozen semen for
an agreed rate of USD 100,000 per insemination dose. The agreed and
scheduled shipment dates were complied with, however two months before the
parties.
8.2 The dispute arose from the negotiations regarding the price adjustment for
8.3 During the telephone conference last 4 October 2018, the parties likewise
Danubia are Contracting States of the CISG. The general contract law
governed by the CISG, the latter also applies to the conclusion and interpretation
8.4 The Arbitral Tribunal will consolidate its findings as to any other relevant facts
necessary to arrive at this Final Award together with its reasoned holdings.
IX. SUMMARY OF PARTY CLAIMS & RELIEFS SOUGHT
the law of Danubia, the seat of arbitration, not the law of Mediterraneo
3. CLAIMANT seeks a total of USD $ 1,250,000 resulting from the 30 per cent price
surcharge on the last 50 doses of frozen semen due to the tariff imposition by the
regarding this specific dispute because it asks for the adaptation of the
and powers;
materials from the other arbitration for breach of the confidentiality of arbitration
proceedings.
hardship clause nor under the CISG. RESPONDENT prays that CLAIMANT’S
RESPONDENT prays that CLAIMANT shall pay the costs incurred in this
arbitration.
10.1 The Arbitral Tribunal shall address and resolve the following issues in its
Award:
2. Whether the law applicable to the arbitration agreement should be the law of
Mediterraneo or the Law of Danubia.
1. This Arbitral Tribunal has jurisdiction to hear this matter considering that
governing the arbitration agreement and both the law governing the seat
of arbitration and the law governing the contract differ, the latter should
also govern the arbitration agreement. CLAIMANT also argues that when
the duty of the Tribunal to determine the applicable law. CLAIMANT puts
arbitration, the law governing the interpretation of the contract and also the
concludes that the law applicable to the substance of the Agreement is the
relevant submissions from the Other Arbitration to this Arbitration, arguing that
arbitration agreement, the Danubian “Four Corner Rule” results are non-
applicable to this Tribunal and this Tribunal is not impeded to adapt the price paid
due to the tariff imposition. In concordance with the law of Mediterraneo and
CISG, the Tribunal has the powers to adapt the price, hence CLAIMANT is
Law of Danubia, and that under the Law of Danubia, the Tribunal does not
have the power to adapt the Sales Agreement. On this basis, the Tribuna;
entirety.
2. RESPONDENT asserts that the admission of evidence from the Other Arbitration
Tribunal. The allegation of contradictory behavior does not meet the admissibility
and appropriate for the Tribuna; to refer to the internationally recognized IBA
considering upon the admissibility of the evidence from the Other Arbitration.
under Article 8 CISG and even otherwise, the present circumstance does not fall
under hardship category as per substantive law of the Sales Agreement. Further,
12.1 The Arbitral Tribunal resolves to address and resolve the issues presented
by the parties for its consideration in the order these are provided in the
Issue 1:
Does the tribunal have the jurisdiction / power under the arbitration agreement to
adapt the contract, which includes in particular the question of which law governs
12.2. In the absence of the law applicable to the arbitration agreement, the
Arbitral Tribunal should apply the law of the seat of the arbitration, hence the Law
expressly stated in the Agreement, both parties impliedly agreed that should
neutral country, that of Danubia. This is likewise the intent of the Creditors
Committee of the CLAIMANT. It just so happens that the one negotiating for
CLAIMANT, Ms. Napravnik assumed that the Danubian Arbitration Law is similar
Issue 2:
proceedings on the basis of the assumption that this evidence had been obtained
and any evidence in other arbitration shall not be admissible in the instant
Issue 3:
resulting from an adaptation of the price (i) under clause 12 of the contract or (ii)
12.4 The implied agreement was applied in deciding the law governing the
arbitration agreement. The same shall apply in deciding the additional payment
could not later on claim ignorance of the negotiation and that his words are not
the words of the company. Further, Mr. Shoemaker intentionally consulted his
lawyer wife and not the legal department so as not to make the decisions
binding. There is obviously bad faith on the part of the respondent. While
narrowly, the real and true intent of both parties must be considered. Assuming
that Danubian Arbitration Law requires express authorization from the parties,
time is of the essence in the delivery of the remaining 50 doses of frozen semen,
and settlement of the price adjustment after delivery. Further, it was found out
that the reason for the urgency of delivery is to resell the doses of the frozen
12.5 Further, it is noteworthy that aside from the tariff rate increase affecting the
price of the 50 doses of Ninjinsky III’s frozen semen, there is an issue of resale of
agreement, CLAIMANT would have not filed this arbitration case, hence
RESPONDENT.
13.1 Wherefore, the Arbitral Tribunal decides and awards in full and final disposition of
1. This Arbitral Tribunal has jurisdiction and power to hear and decide this
arbitration case. The applicable and governing law of the arbitration agreement is
from the other arbitration proceedings for being inadmissible as illegally obtained.