Caso documentado contrato internacional (ingles)

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Instituto Tecnológico y de Estudios Superiores de Monterrey

International Contracts

Jorge Salazar

Ninth Annual Willem C. Vis International Commercial Arbitration Moot
2001-2002
“Memorandum for Claimant”
Futura Investment Bank

Samantha Bonilla Galván 1106809

May 16th, 2009; Monterrey, Nuevo León.
I. INTRODUCTION
The purpose of this paper is to present the arguments that the claimantFutura Investment Bank (INVESTMENT for future reference) has to argue. Those are:

1. A valid arbitration agreement exists between INVESTMENT and the Respondent, West Equatoriana Bobbins S.A. (BOBBINS)
2. INVESTMENT is entitled to receive the payment of $2,325,000 from BOBBINS
3. INVESTMENT is entitled to receive the payment of the final installment of $930,000 from BOBBINS
4. INVESTMENT isentitled to claim interest on the sum of $3,255,000
5. BOBBINS should bear the costs of the arbitration.

TIMELINE
1999 | |
1 September | BOBBINS (RESPONDENT) buy machinery from TAILTWIST for $9,300,000 payable in five installments, the contract also provides training in the operation of the machinery. RESPONDENT agrees not to assert any defenses against a potential assignee of the right topayment unless TAILTWIST would not in good faith attempt to remedy any deficiency. Additionally, the contract contains an arbitration clause. RESPONDENT pays the first instalment of $1,860,000, the second and third installments on 6 September 1999 and 20 February 2000, respectively. |
2000 | |
29 March | TAILTWIST assigns Investment the right to receive the remaining two installments:$2,325,000 due upon completion of commissioning on site and $930,000 after three months satisfactory performance. |
5 April | CLAIMANT sends notice of the assignment to RESPONDENT, signed on10 April 2000. |
13 April | Mr. Black, responsible for the contract and Vice-President of RESPONDENT, returns to his office after a business trip. |
15 April | Mr. Black looks at the notice of assignment and sends afax to CLAIMANT in order to question the nature of the communication |
19 April | In the morning: RESPONDENT receives translation of the notice of assignment.In the afternoon: RESPONDENT's accounting department instructs RESPONDENT's bank to pay the fourth installment of $2,325,000 to TAILTWIST.Shortly thereafter: RESPONDENT's accounting department receives a memorandum by Mr. Black not to makeany further payments to TAILTWIST |
20 April | The insolvency proceedings of TAILTWIST are opened.Two of TAILTWIST's training personnel are ordered back. |
10 May | Training by TAILTWIST's personnel is concluded according to schedule. |
16 June | The court of Oceania decides that TAILTWIST be liquidated |
5 July | CLAIMANT changes payment instruction from an account in Mediterraneo to one inOceania |
10 August | RESPONDENT utilizes the machinery for three months |
17 October | The insolvency administrator of TAILTWIST confirms the assignment |
2001 | |
10 January | Asserting deficiencies in the performance of the equipment, RESPONDENT declares a reduction of the price by 10% ($930,000) to the insolvency administrator of TAILTWIST |
16 May | RESPONDENT refuses to pay theremaining sum of $3,255,000 to CLAIMANT. |

II. ARGUMENTS
1. A VALID ARBITRATION AGREEMENT EXISTS BETWEEN INVESTMENT AND BOBBINS
1.1 THE ARBITRAL TRIBUNAL HAS AUTHORITY TO RULE ON ITS OWN JURISDICTION
The first issue is that the contract concluded between TAILTWIST and BOBBINS contained an arbitration clause (C. E. No. 1) that integrated the American Arbitration Association International ArbitrationRules (AAA). The Article 1(1) AAA Rules establish that “Where parties … have provided for arbitration of an international dispute by the American Arbitration Association without designating particular rules, the arbitration shall take place in accordance with these rules”. BOBBINS and TAILTWIST are from Equatoriana and Oceania respectively, while INVESTMENT is from Mediterraneo; for that reason...
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