Enterprise and Entrepreneurial Management Assignment - 2

Enterprise and Entrepreneurial Management - Assignment Example The business planning process consists of different interdependent elements; each element geared for the ‘creation of a successful entrepreneurial venture.’ Since precious time is allocated for the completion of each element, it is necessary to evaluate their value in terms of successfully creating a business venture. Thus, the first part of this paper will provide a critique of each of the business planning process’ elements to determine and validate its inherent value. Elements: The Introduction Idea Generation. The first step of every business venture spawns from two personal views: the perceived market needs or wants and the manner by which these two can be met. The latter is commonly characterized by the prime planner’s personal capability, hobby, or any activity that has the potential economic value as a product or service commodity. These two views are the product of the prime planner’s idea generation and serve as the supporting backbone of t he whole business plan. The next set of ideas will then root from these two views. This being the case, it is essential to keep the main ideas valid, consistent and applicable to all other components to assure a sturdy framework for the whole business plan. Strategic Objectives. These are the types of objectives that are safeguarded by a unifying strategy (Robert, 1998). These objectives, which were set by the planner to secure both market and post its position as a reputable provider of services or products, have to be realistically realized; thus, the use of strategies. However, objectives are ever-changing and are periodically divided by the short-term and long-term goals. Objectives may come in the form of profit, equipment or service upgrades, advancement in market position against competitors, and other visions of business progress. Market Analysis and Research. Apart from building the foundations of the business plan through ideas and objectives, it is essential that relevant information about the market environment is incorporated. This element, amongst all the other, has the most potential of adding realistic facts and procures necessary strategies. The result of this research and analysis may specifically point the current and the target position of the business in terms of its industry. By realizing this position, the planner will have an inclination of what destination the business should take and importantly, how to get there. Understanding the Competition. Knowledge of the market environment introduces the presence of the business competitors. This element focuses on acknowledging the threats and opportunities these competitors present and serve to be part of the factors in designing the marketing strategies (Harvard Business School Press, 2010). In business, ignorance of the business’ competitors can be one of the most costly errors. Competition can be in several forms such as a strategic location (upon close proximity with clients), indu stry position, product or service bundle, et cetera. Financial Projections. Most helpful in delegating potential business investments are the financial information which consisted of cash flow, profit and loss forecast, and balance sheet projections. These proforma of figures immediately relate to potential financial returns - the investors’ gain (or loss) in joining a business venture (Parker, 2006). The investors also eye on the financial forecasts of cash flow as well as the profit and loss since these two

Hawaiian weddings Essay Example for Free

Hawaiian weddings Essay For many the nuclear family has always been viewed as the proper way to bring up children and to live life. However, the subject of families is much deeper than many think. But is the family beneficial to society? Different groups have different views on how beneficial the family is to society. Functionalists, who traditionally dominated the sociology of the family, feel that the family is necessary for the running and continuation of an integrated society. It is ssumed by functionalists that if there is the existence of a social institution, then it must have a purpose or a function. Functionalists therefore see the family as beneficial for society. beneficial for society. Families are crucially important to society without doubt. Most British people are born into families and then raised by a family. Most of these very same people grow up to form families of their own and take the responsibility of being a parent. Many people see the family as the normal way of life and watch television programs which revolve around family life. For many the nuclear family has always been viewed as the proper way to bring up children and to live life. However, the subject of families is much deeper than many think. But is the family beneficial to society? assumed by tunctionalists tn t it there is the existence ot a social institution, then it British people are born into tamilies and then raised by a tamily. Most ot these very

Southern Musical Tradition and the African Tradition Essay -- Music Mu

Southern Musical Tradition and the African Tradition The second major tributary of the southern musical tradition comes from the African continent and is the heritage import of the five million slaves brought to North America against their will to provide the bulk of the labor in the pre-industrial agrarian south. Contemporary blues, while not exclusively black music by any means, remains largely black in terms of its leading performers and, to a lesser extent, its listening audience. The forerunner of the modern urban blues was, however, almost exclusively black and was completely southern and rural. It was, and is, a music born out of the experience of slavery and Jim Crow segregation with their attendant poverty, alienation and suppression. As a musical genre, this remarkable and durable expression has an enormous relevance for the historical development of southern music in general and the southern black experience in particular. Modern blues evolved out of the southern "country blues" and became an urban phenomenon in the same social, economic and demographic processes which urbanized black Americans during the two or three decades prior to World War II. Thus, an examination of the black country blues provides a potentially fruitful vehicle for the study of southern rural culture viz a viz the black experience. At the very least, it provides a means for assessing the perceptions of southern culture which were held and articulated by a sensitive group of observers -- the bluesmen and blueswomen of the rural south. The extent to which their music was received, popularized and appreciated by their audience provides a broader look at the hopes and drea... ...cal development, display similar structural and thematic content and have, since the 1960s, begun to recognize and celebrate these commonalities. Works Cited: Chapple, Steve and Reebee Garofalo. Rock and Roll is Here to Pay. Chicago: Nelson Hall, 1977. Elkins, Stanley. Slavery: A Problem in American Institutional and Intellectual Life, 2nd ed. Chicago: U. of Chicago Press, 1968. Morthland, John. The Best of Country Music. Garden City: Doubleday, 1984. Oliver, Paul. Savannah Syncopators: African Retentions in the Blues. London: November Books, Limited, 1970. Smith, M.G. "Social and Cultural Pluralism," in Annals of the New York Academy of Sciences 83 (January, 1957):763-777. Van den Berghe, Pierre. Race and Racism: A Comparative Perspective, 2nd ed. New York: Wiley, 1978.

Mental Isolation in Franz Kafkas The Metamorphosis Essay -- Kafka Met

Mental Isolation in Franz Kafka's The Metamorphosis The metamorphosis very possibly was written by Kafka as an outlet for his feelings of isolation and helplessness. In it, the protagonist, Gregor Samsa, awakens one morning to find himself spontaneously "transformed in his bed into a monstrous vermin." The story continues from there in a most realistic fashion: his family rejects him, and he stays cooped up in his room until he dies. Although interpretations of the story differ, my opinion is that Kafka wrote this story as a protestation, whether consciously or unconsciously, of his own inner needs not being met. Franz Kafka suffered from severe mental disorientation. This man suffered severe tragedies as a child: as the first child of Hermann and Julie Kafka, he lived to see two brothers born and die before he was six years old. Although they were eventually replaced by three new sisters, Kafka began his life with tragedies which most people do not experience until they are much older. Kafka lacked parental guidance, as he and his si sters were brought up mostly by governess. He was a Jew, and lived in Czechoslovakia, but he went to German schools. Therefore Kafka masked himself twice, at the bidding of his father. His father had made himself into a successful businessman, and expected Kafka to do the same. Most of Kafka's stories contain or center around an over-domineering, almost frightening father figure. Kafka obeyed his father. He remembered his high school education as being meaningless and dull, but, out of obedience to his father, he completed it, and passed with flying colors. This switching to a less offending option in order to offend no one characterizes Kafka very well. He possessed a wonderful mind but rarely, ... ... express himself openly would suggest otherwise. The Metamorphosis lends itself more to the psychology student instructed to profile an author based on his work than to the literature student instructed to cite and expand on different literary elements. It is obviously the work of a very disturbed man, although the disturbance would probably be more of the chronic type that slowly eats a man away than the type which causes, say, one to hallucinate. To sum up The Metamorphosis, I would call it a very deceiving book. On the surface, the simplistic plot, apparent lack of imagination with regard to the syntax, and the largely flat characters tend to drive the reader away. However, when one looks just a little deeper, Kafka's whole world of fear and isolation opens up before his eyes. Works Cited: Kafka, Franz. The Metamorphosis. Mattituck: Vanguard Press, 1946.

Psy 375 Senior Interview Essay

1. What is the environment of your home like? Busy, before they got guardianship of their grandson, life was quiet and there was not very much that had to be done around the home. Once their grandson came to live with them at age 3, life became â€Å"a buzz† again. â€Å"Before our grandson came to us, we usually would get up in the morning, sit and relax as we drank our coffee and had a quiet breakfast together. Now, we (her and her spouse) are up early to get our grandson ready to go to school. † She also says â€Å"We had time for the things that we wanted to do in our later years of life, visiting family, traveling and such. Now our time is dedicated to raising our grandson who keeps us going and on our toes but we would not change the situations we are in now for the world. † 2. Has aging changed the home environment? Yes, when they were younger, they had the energy and health to do the things they wanted to. Sally says â€Å"With age came some small struggles to stay at the pace we had always had when we were younger. Things that were always easy slowly became more time consuming, housekeeping used to be something that I could complete pretty quickly; now, I am a little slower (with the help of my grandson). Otherwise, she says â€Å"life keeps us all busy. † 3. Do you rely on others for help with any activities in the home? Sally answers â€Å"No, we are still able and willing to do our chores and keep up with the necessary tasks that we have. Although, we do have â€Å"John† (grandson) visit family a few times a month so that we have time to recharge. † 4. Do you still drive? If so, how has aging changed how you drive? Sally answered, â€Å"Yes, we both (her and her husband Mike) still drive. Driving is something that you would think would stay the same as you grow old until you get old. When I am driving now, I feel like everyone is in a rush to get where they want to go and here I am taking my time, trying to be safe while all around me are probably cursing me and saying â€Å"Damn old lady is driving so slow. † (She laughed as she made the last remark. ) 5. What changes in your home do you face as you get older? Sally answers, â€Å"As my husband and I get older, we are starting to be slower at things that once took us very little time. I think as we continue to get older, we will continue to get slower. † She also says, â€Å"With having our grandson home with us, he is helping us when he sees us even struggle a little with even small things. I think as we get older, he will be the one to help us more than anyone else. Recreational Activities: 1. In the past, what did you do for recreation? What do you do now for enjoyment? Sally answers, â€Å"When we were younger and our children were at home with us, we would spend a lot of time outdoors. We loved to go camping, fishing and hunting as a family. As our children got older, they all had things that they were involved in that took that time away that we had for the fun things. † She then explained that as her and her husband grew older, that they became more focused on the things that they wanted to do like traveling and visiting family. Sally then explained â€Å"Now that we have our grandson, I go to the movies, library, and toy shopping an awful lot. † But then she explained that she takes pleasure in spending time with her grandson doing the things that he likes to do because she â€Å"loves to see the smile on his face. † Sally also explained that they are active members of a church that they go to twice a week (Wednesdays and Sundays) and they get great pleasure out of the service. 2. How often do you participate in these activities? Sally says â€Å"When â€Å"John† is a good boy at school and does what he is told here we usually take him out about once a week to do something special. † She then explains, â€Å"Church is a large part of our lives. We go to church not only to worship but also to have time with people that are around our age with and are like-minded. † 3. Have the things that do for recreation changed as you aged? As stated above, in their younger years, their recreation revolved around their family. As they got older, she says â€Å"The things we did slowed. We were not out all the time we possibly could have been. † Sally says, â€Å"We now spend time where we feel most comfortable, church and doing things with our grandson are what we do most now. † Social Support and Interactions: 1. Who do you interact with on a regular basis? Is this the same amount of contact you had in younger years of life? Sally says, â€Å"On a daily basis, my husband and grandson. I usually call my sister every couple days and see how she is doing and on a weekly basis the brothers and sisters I have at church. † She also says, â€Å"In the past, we had friends and neighbors that we were in contact with on a daily basis but as time went on, the friends we have kept are passing away or just losing contact with them all together. It is hard getting older and watching the friends you have start to pass away, it make me think that I will not always be here and then it makes me worry about who will keep our grandson when we are gone. † 2. Do you participate in any social clubs? Sally says, â€Å"The only real structured social club, if you can call it that, would be church activities. On Wednesdays, we go to church for bible study and social time where we talk with our friends there and on Sunday, we go to service that provides us with God’s word and time with our church brothers and sisters. † Meaningful Activities: 1. What gives your life meaning? Sally says, â€Å"My family is what gives my life meaning. I try to do as much as possible to stay in the loop of what is going on with my children and grandchildren. My children have always been the reason that we have worked so hard. We always wanted them to have the better things in life and we wanted them to be happy. † She also says â€Å"Now, my life revolves around taking care of â€Å"John† and making sure he feels that everything is okay and that he has a stable home to grow up in. † 2. Do you still engage in these activities as you did when you were younger? Sally says, â€Å"When we were younger, we had a lot more activities when our children were young. As they grew up, moved out on their own and had families of their own, our lives quieted down and the activities we were always doing changed into activities that â€Å"Mike† and I wanted to do until we got â€Å"John† and once we got â€Å"John† life became busy again with all of his activities. † Mental Stimulation: 1. In the past, what did you do to keep your mind sharp? Sally says, â€Å"In the past, I had my work to keep my mind sharp. I was a secretary at the middle school in the town we live for almost 20 years and was always busy with the tasks that were I had to do. My children also kept my mind going and I loved helping them with their homework because this helped me keep my mind working and remembering how to do problems like math and science. † 2. What do you do now to keep your mind sharp? Sally says, â€Å"Now to keep my mind sharp I do a lot of word and number puzzles. I love to do Sudoku puzzles and word find puzzles. Sudoku puzzles really keep my mind working because sometimes I feel like my hair is on fire when I am done with them (she chuckles.) I also spend time with â€Å"John† to helping him with his homework and I think this helps to keep me learning still because I have noticed that the way children are taught now has really changed from when I had my children in school. † Physical Activities: 1. In the past, what did you do to keep physically fit? Sally says, â€Å"In the past, when my children lived at home, we were always on the go. We would go places where we would walk and hike through the woods like when we would go hunting or fishing. We lives close to the corner store so we would also just walk to the store when we needed a few things instead of get in the car and drive. † She also says â€Å"I never was a really big health nut who was always worried about exercise because my weight was never an issue. I felt that is my weight was good then I was getting plenty of exercise. † 2. What do you do to keep physically fit now? Sally says, â€Å"Nowadays we love to take â€Å"John† for walks at the local trails. It’s nice to be out in the fresh air and be able to not only spend time with â€Å"Mike† and â€Å"John† but to get a little exercise because I have noticed that the older I get the less muscle I seem to have. † â€Å"It seems like the little things are more of a challenge than they were in previous years. Even just opening a jar is sometimes a challenge. † 3. Are you able to keep up with the daily physical stresses that you are tasked with on a daily basis? Sally says, â€Å"Yes, it seems like I am still doing a pretty good job keeping up with everything I have to do on a daily basis (as she looks around her living room. ) She also says â€Å"Keeping a house clean is a chore in its own when you have a grandson to pick up after everywhere he goes. † She also says, â€Å"I get around to the things I need to do now when I get to them. I used to try to make sure the house was perfect when my children and â€Å"Mike† would come home each day and thought that having a clean house for them, food cooking and clothes laid out for them daily was what I was supposed to do. Now that I think about it, I would have much rather of been having fun with them instead of being worried about the house. † Ending the interview, her last statement is, â€Å"Life now is a little bit harder than it was when I was younger. It seems like the older I get, the slower I am. † She then tells me, â€Å"Make sure that you spend your time doing what makes you happy. †

International Commercial Arbitration Essays

International Commercial Arbitration Essays International Commercial Arbitration Essay International Commercial Arbitration Essay Student Number: 16476928 PART I: Question 1 (30 marks) â€Å"An international arbitration procedure is governed by the terms of the agreement between the Parties, by the Rules under which they have chosen to conduct their arbitration, and by the legislation of the jurisdiction in which they have chosen to arbitrate. † Discuss how these three elements interact from the drafting of the dispute resolution agreement through to the enforcement of the resulting Award. International arbitration is the process in which disputing parties from different states can elect to resolve their disputes. The outcome of this is a binding award that due to international law of the New York Convention, can be enforced in many countries. International arbitration awards are final and binding, and their enforcement in provided for by the New York Convention[1]. International arbitration is often described as a hybrid of dispute resolution, as it permits parties a uniquely broad flexibility in designing arbitral proceedings. The elementary factor of all international arbitrations is that it is consensual. Simply, without an agreement to arbitrate, there will be no arbitration. Consent is fundamental in the arbitration process and begins from the very first decision to enter into an arbitration agreement[2]. In addition, the terms of the arbitration agreement between the parties plays a primary role in governing the arbitral proceedings[3]. The inclusion of an arbitration clause in a contract streamlines the resolution of a dispute between the parties, as it sets out procedures from he beginning. By drafting a dispute resolution agreement that specifically accommodates the needs of each party, there is greater assurance of a successful negotiation. The terms between the parties and the Rules which they have chosen to govern their arbitration are highly influential in shaping the dispute resolution process and the outcome. By choosing pre-existing arbitration rules and procedures, as opposed to ad hoc, par ties may feel more secure in the outcome as they are using an established format that has already been proven workable. Pre existing rules offer parties support and guidance throughout the process which can be very significant in shaping this process, as well as the enforcement of the final award. In effect, an institutional arbitration entrusts the arbitration to a major institution, while ad hoc is conducted without this guidance or organisation. For this reason, ad hoc arbitration can be more flexible. [4] Arbitration Rules act as a predetermined system of guidelines and procedures to assist parties throughout their arbitration process. For example, the UNCITRAL Arbitration Rules are a set of procedural rules that afford model arbitration clauses for parties to use in their contract, procedures to be used for appointing arbitrators and policies to conduct arbitration proceedings, as well as requirements regarding the arbitration award. Arbitration clauses commonly state that the parties are bound by the specific Rules of the Arbitration provider that they have chosen. Consequently during the drafting of the dispute resolution clause, parties make a conscious decision on what Rules they want to conduct their arbitration under, as these are the Rules that will govern a future dispute if it arises. Many agreements may not expressly include or outline the provider’s rules, yet they are considered part of the agreement between the contracting parties. Arbitration agreements are often pursuant to a standard form arbitration clause from the institution which they choose to refer to[5]. Rules of each institution provide procedures and policies that are to be followed and adhered to in the event a dispute arises. Inevitably, they will thus govern, to an extent, the procedure conducted in the international arbitration. Many countries laws allow parties generous freedom in deciding the procedures that they would like to govern their arbitration. This is apparent as parties can adopt and incorporate procedural rules of a specific institution, which consequently have a significant influence on the arbitration procedure. Thus Rules chosen by the parties to conduct their arbitration are highly formative in determining the style of the arbitration procedure. As institutional Rules vary, so does the structural style of the arbitration. The freedom given to parties in drafting their arbitration agreement is vast, and is one that is often utilised[6]. While institutional rules outline procedures that are to be taken, detailed regulation of the procedure is up to what the parties agree upon and/or what the tribunal decides. The autonomy of the parties involved in the dispute is said to be a guiding principle in determining the procedures that are to be followed in international arbitrations[7]. The terms of the contract between the parties outlines the obligations that each party has agreed to perform. These terms are used to interpret and resolve any disputes which may arise, in conjunction with the arbitration Rules that have been chosen[8]. The terms of the agreement between the parties create the foundational contractual basis of the agreement. Refusal or failure to perform a contractual obligation will lead to a breach of one of these terms which consequently creates a dispute between the parties. It is then that the arbitration clause is invoked. The law that is applicable to the arbitration agreement is sometimes expressly chosen by the parties. Often the substantive law that governs the main contract between the two parties is the law which governs the arbitration agreement. [9] The procedural law that applies to the arbitration must not be overlooked, as it impacts greatly on the arbitration procedure. Procedural law under which the parties have chosen to arbitrate may require or stipulate specific arbitral procedures or restrain procedures. In addition the procedural law influences the enforcement of the arbitral award. Consequently any exceptions to the enforceability of arbitral awards must be assessed under application of the relevant procedural law in which parties have chosen to arbitrate[10]. There are only limited grounds in the New York Convention for refusing to recognise or enforce an arbitral award[11]. If an arbitration agreement is not valid under its governing law then it is not enforceable. Most of the trading states have legislation regarding arbitration that corresponds with the rule of the New York Convention, which states that arbitration agreements are ‘presumptively enforceable’[12]. If there is a valid arbitration agreement between parties, this confers jurisdiction upon the arbitration tribunal to arbitrate. As a result, the disputing parties are ‘contractually obligated to submit their dispute to arbitration. ’ It is this arbitration agreement, as well as the law governing the arbitration, which vests power in the arbitrators[13]. The New York Convention provides that procedures must be in accordance with the agreement between the parties, and it is this which illustrates the significance that party autonomy plays in the arbitration process. However it is also noted that limitations do exists on this autonomy as a result of mandatory provisions of the law of the state in which the arbitration is conducted. These mandatory provisions mostly designate the boundaries in which arbitrators and parties are to work within[14]. Globalisation has increased trade and investment which has demanded need for methods of resolving disputes which are then enforceable. International Arbitration meets this demand as it allows for flexible and accommodating dispute resolution which is governed by the choices and promises between parties. Arbitration offers flexible procedural rules and practiced legal principles to parties to resolve their disputes. The settlement of international disputes by arbitration is an invaluable feature of the world’s current legal landscape. Carefully drafted arbitration clauses allow parties substantial control over the resolution of their dispute[15], and thus the Rules under which they have chosen to conduct their arbitration play a pivotal role in the arbitration procedure. BIBLIOGRAPHY Clayton Utz ‘A guide to International Arbitration’ (2012) A Guide to International Arbitration- Second Edition. Emilia Onyema, International Commercial Arbitration and the Arbitrator’s Contract, (Taylor and Francis Group 2010) Gary B. Born , International Commercial Arbitration: Commentary and Materials, 2nd edition (Kluwer Law International 2001) Gary B. Born , International Arbitration and Forum Selection Agreements: Drafting and Enforcing, 3rd Edition (Kluwer Law International 2010) Gloria Miccoili, ‘International Commercial Arbitration’ The American Society of International Law. Jeff Waincymer , ‘Procedure and Evidence in International Arbitration’ (2012) Kluwer Law International. Julian M. Lew , Loukas A. Mistelis , et al. , Comparative International Commercial Arbitration, (Kluwer Law International 2003)Randy J . Aliment, ‘Alternative Dispute Resolution in International Business Transactions’ The Brief, 2009 Nigel Blackaby , Constantine Partasides , et al. , Redfern and Hunter on International Arbitration, (Oxford University Press 2009) PART II: (60 marks) 2. The dispute resolution clause is imperfect. Under which Rules will the Claimant likely have instituted arbitration proceedings? State your reasons. [3 marks] Claimant will likely have instituted arbitration proceedings under the ICC Arbitration Rules as they are referred to in the dispute resolution clause of article 47. The facts also state that the claimant filed its Request for Arbitration with the ICC Secretariat in Hong Kong. Also it is likely that the claimant will use the ICC Rules as they are applicable to different legal traditions and to disputes between parties from different parts of the world, regardless of whether they are members of the ICC or not. Furthermore the ICC Rules are purposed for the use of worldwide proceedings conducted in different languages and laws[16]. In addition, ICC Arbitrations can be held anywhere in the world and awards are enforceable in many of the world’s trading nations. By choosing to follow ICC Rules there is greater assurance of a nonpartisan framework to guide the dispute resolution process for parties involved in international commercial business transactions. 3. Draft a better arbitration clause for this Design Agreement. [4 marks] â€Å"Article 47: In the event of any dispute arising out of or in connection with the present contract, the parties agree to submit the matter to settlement proceedings under the ICC ADR Rules. If the dispute has not been settled pursuant to the said Rules within 45 days following the filing of a Request for ADR or within such other period as the parties may agree in writing, such dispute shall be finally settled under the Rules of Arbitration of the International Chamber of Commerce by one or more arbitrators appointed in accordance with the said Rules of Arbitration. The place of the arbitration will be Melbourne, Australia. The language of the arbitration will be English. The agreement is governed by Australian law, and all disputes arising out or in connection with this agreement shall be resolved in accordance with, the law of Australia. † Assume for the purpose of the remaining questions that the ICC Court accepts the case. 4. The ICC Court decides to appoint a sole arbitrator. Is the ICC likely to choose either Dr Sunderkay or Ms Ixtapa, or someone else? State your reasons. [3 marks] In cases such as this one where there is a sole arbitrator, the process for choosing the arbitrator is dependent on how the decision was made to have a sole arbitrator. In this case, the Court decided that there would be a sole arbitrator and thus the parties will not be granted any extra time to agree on an arbitrator but instead the Court will directly proceed to appoint a sole arbitrator[17]. The ICC is likely to choose someone else, pursuant to Article 13 of the ICC Rules as the disputing parties have not come to agreement about an arbitrator. Under the Rules, the Court must choose an arbitrator while considering their nationality, residence and other relations with the parties and persons in the dispute. The Court has wide discretion under Article 13 to exercise its powers in appointing the sole arbitrator. 5. Who decides which language is to be used in the arbitration proceedings? What is the decision likely to be, and why? [3 marks] Usually the language to be used in the arbitration proceedings is decided and specified in the arbitration agreement between the parties. However, in the absence of such agreement between the parties, the language shall be determined by the arbitral tribunal pursuant to Article 20 of the ICC Rules[18]. In this process, consideration is given to relevant circumstances, specifically the language of the original contract. In this case the decision is likely to be English as the contract appears to be in English. This will be a relevant factor in the decisions of the arbitral tribunal. As English is not the native language of both parties to the dispute, interpretation will be necessary, the costs of which are to be shared equally by the parties[19]. The choice of the language to be used in the proceedings must be carefully considered. Fairness is critical and enquiry must be made to ensure that one party is not disadvantaged by the decision, and that there is not too much delay in hearings[20]. Bearing in mind that the Terms of Reference, the procedural timetable and the procedural orders are to be drafted in the language of the arbitration, the decision of which language to use in the arbitration is a preliminary and critical step. 6. How is the president of the tribunal likely to be chosen and why? [3 marks] Where an arbitration is to have three arbitrators, the third arbitrator will act as the president of the arbitral tribunal. Generally this president will be appointed by the court unless parties have agreed to another process for this[21]. The president of the tribunal is chosen pursuant to Article 13 of the ICC Rules which outlines the ‘Appointment and Confirmation of the Arbitrators’. In choosing the president the ICC Court will consider the prospective arbitrator’s nationality and residence as well as the relationships he/she might have with countries which are involved in the arbitration process, as well as the prospective arbitrators availability and ability to arbitrate within the Rules of the ICC[22]. The Secretary General may authorize a person nominated by the parties to the dispute or a person pursuant to the agreement between the parties, as the president of the tribunal, provided they satisfy requirements in Article 13(2). If the Secretary General finds that a president of a tribunal should not be confirmed, this matter will be then submitted to the Court. Where it is up to the Court to appoint an arbitrator, such appointment shall be made upon proposal, and if this is not successful, can directly appoint any person who the Court finds to be suitable[23], the criteria of such suitability is established in Article 13(4). The president of the arbitral tribunal shall be of a nationality different to those of the parties to the arbitration. However, where circumstances allow and where neither party objects, the president of the Tribunal may be chosen from a country of which either party is a national[24]. As there is much disagreement between the parties surrounding the appointment of arbitrators and no agreement has been come to, it is likely that the Court will choose the president of the tribunal. Furthermore, the dispute resolution clause under Article 47 of the Futurocity Project Agreement states that ‘parties agree that their dispute shall be resolved†¦.. sing one or more arbitrators chosen by the ICC Court of Arbitration’. 7. The parties have agreed that the place of the arbitration (seat) is Melbourne Australia. The dispute resolution clause stipulates that â€Å"New York law is to govern†. Who will decide which procedural law to use? Which jurisdiction’s procedur al law will likely be used? Why? [3 marks] The procedural law of an arbitration is also referred to as the lex arbitri or the curial law. Procedural law is dependant on the seat of the arbitration. Distinction must be made between the Procedural law and the Substantive law. Procedural law establishes the role that local courts will have in the arbitration process. When an arbitration uses a set of procedural rules such as the ICC Rules, the effect of the procedural law is reduced. Pursuant to Article 19 of the ICC Rules, arbitration proceedings are to be governed by the ICC Rules, and where the Rules are silent, proceedings are to be governed by rules that have been chosen by the parties. If the parties to the dispute have not decided on the procedural law to be used, it will be the task of the arbitral tribunal. As the procedural law is likely to be chosen in conjunction with the seat of the arbitration, it is likely that the procedural law of Australia’s jurisdiction will be chosen in this case. The choice of procedural law is an important one and careful choice must be made. If parties do specify the procedural law to be used, it is easier if there choice is the same as the seat of the arbitration. The procedural law affects the enforceability of the award and thus is an important decision in the arbitration process. 8. Make a complete list of the Issues which the Tribunal will have to determine in order to decide this dispute. 8 marks] Is there jurisdiction? Does the Tribunal have jurisdiction over this matter? Have the mediation requirements specified in the arbitration clause been satisfied? Has there been an actual breach of the contract between Condesign and Statinvest? If there has been a breach? What kind of breach? Is it a fundamental breach? Who is responsible/liable f or this breach? Is it Statinvest or SSS Corp? Has the new government actually ‘decreed that Statinvest shall no longer be allowed to administer any internal project of Ruritania’, as alleged by the Respondent? What issues surfaced in the private half-day meeting that was attended by the CEO’s of the two parties? Does the Respondent owe damages and interest as claimed by the Claimant? Should the breach of the Respondent (if there is found to be a breach) terminate the second contract? Should the breach of the Respondent (if there is found to be a breach) discharge the claimant from further obligations with respect to the Futurocity Project? Who is in possession of the Letter of Credit? Is the Respondent obligated to return the Letter of Credit to the Claimant which was provided by the Claimant as Performance Guarantee for the successful completion of the Second Stage of the Futurocity Project? Who is responsible to pay all the costs Arbitration and should th ey fall soley on one party? Should the Claimant have known that the person Mr Dupont wrote to regarding the mediation had left Statinvest? And did this affect Statinvest’s participation in the mediation process? If above affected the mediation process, does it render the Request for Arbitration premature? Did the Claimant name the wrong party in the Request for Arbitration? Is SSS Corp the only proper respondent? Or is Statinvest also a respondent? What is the effect of the new currency restrictions in place since the Revolution on this dispute and this contract? Does the Respondent have a legitimate excuse out of the Design Agreement on the ground of legal impossibility? What should the language of the arbitration be? Assume for the purpose of the remaining questions that the Tribunal has decided that it has jurisdiction to hear this case. The tribunal is you, the sole arbitrator appointed by the ICC. 9. The Respondent writes to you requesting an order for security for costs, stating that the Claimant is a small company with a very weak credit history. If Respondent wins the arbitration, and obtains an order for costs, it is unlikely to be able to enforce that order, because the Claimant has no assets available to pay it. a) How do you deal with this request? [3 marks] It is appropriate to put costs protections in place where there is risk of one party not being able to meet costs that may be ordered at the time of the arbitral award. The Rules of leading arbitral tribunals adopt different approached to the issue of security for costs. The ICC Rules do not specifically deal with security for costs. However, Article 28 outlines the guidelines of ordering ‘Interim and Conservatory Measures’. This provision allows for broad scope for the sole arbitrator or arbitral tribunal to grant a measure such as the one requested by the Respondent in this scenario, as the tribunal considers appropriate. The wording of this provision allows for great flexibility, scope and interpretation. Therefore as sole arbitrator I would weigh up the relevant criteria to determine whether I will grant the request of the order for security of costs. In addition, Section 23K Model Law allows the arbitral tribunal to order security for costs ‘at any time before the award is issued’, while keeping in mind the criteria specified in Section 23K(2) ML. b) What criteria do you use in deciding whether or not to grant the order? [3 marks] In deciding whether to grant the order or not, the sole arbitrator must weigh up the negative and positives. Consideration must be placed on whether the claimant’s financial situation could possibly jeopardize the recovery of legal costs if they were to be awarded. In addition, an order for security for costs would serve to deter against frivolous claims made by the claimant. However security for costs also places considerable practical and financial constraints on the ability of the claimant to proceed with what may be legitimate claims. For such reasons it can be viewed as a limitation on the right to a fair hearing for the claimant. In addition the claimants financial capacity must be weighed up to assess whether it would be of great disadvantage to burden them with security of costs. In deciding whether to grant the order the tribunal must ask themselves if the claimant is already in financial difficulty[25]. Furthermore, if ordering security for costs, the tribunal must make sure that such an order is not solely made on the party’s nationality or its corporations international foundations[26]. c) What is your decision? [3 marks] As the sole arbitrator I would decide to grant the Respondent’s request for an order for security of costs. Alternatively I would refuse it. I will provide reasons for both answers in the below question. d) Give reasons for your decision. [3 marks] The reasons for granting the above order would be to safeguard the effectiveness of the international arbitration between the two parties. It would also allow for greater enforceability of arbitral awards, thus greater resolution of the international commercial dispute between the parties, while also supporting a fair administration of justice. On the other hand, I would refuse the above request as it may place the claimant at a great financial disadvantage. The claimant (Condesign) are already in financial distress as they have not been paid for the First Stage of the Futurocity design they completed. An order for security of costs may further unnecessarily burden the claimant and harm their chance at a fair arbitration proceeding. Furthermore, by granting an order for security of costs, could act to create prejudgment towards the claimant, which could place limitation on the claimant’s right to a fair hearing[27]. 10. The Claimant writes to you requesting that you order the Respondent to return to Claimant immediately the Letter of Credit, or at least that you issue an injunction preventing the Respondent from calling the Big Bank Trust Letter of Credit. a) How do you deal with this application? [3 marks] Pursuant to Article 28 of the ICC Rules, the Tribunal may order any interim or conservatory measure it deems appropriate, at the request of a party. The arbitral tribunal may do so, unless the parties have otherwise agreed. On the facts of this case, no such agreement appears present. Ordering the Respondent to return to the Claimant the Letter of Credit or issuing an in junction would fall under this provision. However if the arbitrator(myself) grants the measures requested above by the Claimant, it ay only grant the measure ‘subject to appropriate security being furnished by the requesting party’[28]. It is likely that the tribunal will not order the Respondent to return the Letter of Credit immediately, but rather issue an injunction. This would be a more appropriate interim measure at the early stages of the arbitration process, as interim measures are aimed to be ‘grants of temporary relief pending final resolution of a dispute. ’[29] (b) Assuming you decide to grant this application, do you address it to Big Bank Trust? If yes, why? If no, why not? [3 marks] Assuming this application is granted, I would address it to Big Bank Trust as at this early stage of the arbitration process there appears to be some deal of confusion as to who the true Respondent is and thus it would be a lot clearer to contact Big Bank Trust and place an injunction on the Letter of Credit, as the Respondent claims that it is no longer in possession or in control of the Letter of Credit. Therefore, until issues as to where the Letter of Credit is and who the true Respondent are decided, it would be most efficient to address the injunction to Big Bank Trust. 1. About 6 weeks before the hearing of this matter is due to begin, the Claimant’s lawyer emails you, stating that the wife of Condesign’s CEO is terminally ill and not expected to live more than 2 months. He does not want to be away from his wife at this time. The Claimant’s lawyer asks that you either (a) postpone the hearing for approximately six months; or (b) move the hearing from Me lbourne to Paris where the CEO’s mother is in intensive care in hospital. The Respondent acknowledges that in fact Paris is more convenient than Melbourne, but it refuses to change the seat of the arbitration. Respondent opposes any postponement of the hearing, saying that it wants this case disposed of expeditiously. What do you decide, and for what reasons? [4 marks] Changed circumstances of a party, in this case, of the Claimant, can render the arbitration procedure unworkable or impossible, and thus it may be so that in some circumstances changing the venue is necessary, to accommodate for this[30]. Article 18(2) of the ICC Rules provides, ‘The arbitral tribunal may, after consultation with the parties, conduct hearings and meetings at any location it considers appropriate, unless otherwise agreed by the parties’. This provision may allow the tribunal to conduct hearings at a location convenient for the Claimant, in respect of his changed circumstances. However it has been noted that a change of the initially agreed place of arbitration should be a carefully reviewed decision, as the place of arbitration is an important aspect of the arbitration agreement between the parties. On the other hand, just like any other contract, an arbitration agreement is subject to change and interpretation, and moving the hearing from Melbourne to Paris may be the only effective means of ensuring that the intentions and goals of the original arbitration agreement are honored[31]. Therefore I would likely move the hearing from Melbourne to Paris. 12. On the first day of the hearing, which is expected to last 5 days, the Claimant’s lawyer advises you that its â€Å"star witness† refuses to travel to Melbourne as he has a serious case of aviophobia (terror of flying). The Respondent’s lawyer says that according to IBA Rules you should simply strike out the witness statement of this â€Å"star witness† if Respondent does not have the chance to question the witness about his statement. How do you handle this situation? [4 marks] The IBA Rules are designed to be used alongside other rules that govern international arbitrations, such as the ICC Rules. The parties have not directly mentioned the IBA Rules in their dispute resolution clause, and whilst they are not binding, they still remain influential over the arbitration process. Specifically, when parties come from different legal cultures, as is most likely the case in this scenario, the IBA Rules become a very useful guiding tool. Pursuant to Article 4. 7 of the IBA Rules the Claimant’s ‘star witness’ whose appearance has been requested pursuant to Article 8. 1 IBA Rules, shall have their witness statement disregarded due to failure to appear for testimony without a valid reason. However Article 4. 7 provides that there is discretion for the Arbitral Tribunal to decide otherwise, in exceptional circumstances, to not disregard the witness statement. Consequently, it remains up to the discretion of the arbitrator to decide if the star witness has a valid reason for not appearing and whether exceptional circumstances have been evoked. Decision would need to be make surrounding the star witness’ serious case of aviophobia. In addition, Article 8. 1 states that ‘each witness shall appear in person unless the Arbitral Tribunal allows the use of videoconference or similar technology with respect to a particular witness’. Thus, this provision allows for alternative methods of questioning, and the Respondent could possibly question the witness over videoconferencing, rather than in person. Furthermore, pursuant to Article 22 of the ICC Rules, which outlines the Conduct of the Arbitration, it is up to the arbitral tribunal in all cases to act fairly to ‘ensure that each party has a reasonable opportunity to present its case’. Therefore, as the arbitrator, I would be striving towards conducting an equal and fair arbitration proceeding that would allow both parties to present their case and use their witness statements, which is provided for under both the ICC Rules and Model Law Rules (Article 18) which are applicable to Australian Arbitrations. As it is also important that the Respondent has the opportunity to cross-examine the witness I could allow for videoconferencing for this to happen, while allowing the ‘star witness’ statement to be admissible. 13. The hearing has ended and you have received post-hearing briefs and declared the procedure closed under ICC article 27. In reviewing the transcripts and your notes, you realize that there is an important question, which neither party has addressed in its arguments. You need to know the answer in order to make a logical and fair decision. What, if anything, can you do? [4 marks] Pursuant to Article 27, the arbitral tribunal has declared the proceedings closed and thus ‘no further submission or argument may be made, or evidence produced’. However this provision states that this may be possible if requested or authorized by the arbitral tribunal. Being the sole arbitrator I would consequently have authority to invite further submissions and evidence from the parties in an effort to make a logical and fair decision. 14. You have submitted your draft award to the ICC for scrutiny. A few days ater, at an international arbitration conference, you find yourself seated at the head table, next to Counsel for the Respondent in this case. Respondent asks you a few innocent questions about when you expect the award to be available. You reply vaguely that the award will probably be sent out â€Å"in a month or so†. Counsel then tries to engage you in a discussion of the merits of the case. How do you respond? [ 3 marks] Article 11 of the ICC Rules states, ‘Every arbitrator must be and remain impartial and independent of the parties involved in the arbitration’. The very nature of arbitration, and one of its most desirable features, is its fairness and impartiality. In addition, it is widely regarded that arbitrators ‘shall be and remain free from bias’[32] Specifically, for the duration of the arbitration process, the Arbitrator should seek to avoid any communication with a party or representative of a party, and if this said communication cannot be avoided, the arbitrator should seek to inform the other party of this[33]. Thus, when Counsel tries to engage me in a discussion of the merits if the case, I would refuse to continue discussion, and then I would explain the above guidelines regarding the ethics of Arbitrators, as well as inform the other party of this communication.

Journey essays

Journey essays I came on this art trip last semester in October at that time in my life I was going through an extremely hard point in my life. I had made some choices that affected me in an awful way, it was destroying every one I loved and cared about. Most importantly it was destroying my soul, and the sprit inside of me. However I pulled my self out of the hole I had dug for myself and with the help of my Heavenly Father and Jesus Christs out stretched hands. Now here I am in the 2nd semester with one of the biggest questions knocking at the door of the rest of my life. Should I or should I not get married? So here I am again at the cross roads in my short For many people on this trip the come to look at art. However for me, I do not come here to look at art I come here to feel the art. For my entire childhood, I grow up with art! My grandfather is a tremendous artist. Painting large brush stokes full of oil paint, every stoke told a story. Oh and the smell of drying oil paints on a warm summer day is a smell one can never forget. His mind knowing the which of the brilliant colors to mix, and leading his hands as his wrist would swoosh and slide across the canvas leaving behind them the sign not only that he had been there but also that God had a say in this magnificent mind that lead the gifted hands across the canvas. Heavenly Father and Jesus Christ what glorious names, and isnt amazing to think that they created every single microseism that creates a single petal, that transforms into an exquisite flower, which is held up by a stem, which is secured by roots that stand firmly in the earth, and it is those roots that allow the flower to grow and bloom. God him self created that, such a simple figure and yet in lives across the world and for centuries before and after us have experienced ...