SECTION A
Question 1
Thriv Construction Ltd (TCL – a limited liability company incorporated in Canada) entered into an agreement (the Agreement) with Naess Buntista Plc (NBP – a limited liability company incorporated in the Republic of Ireland {Ireland}) for the construction for NBP by TCL of a tyre making factory in Ireland. The Agreement contains this clause:
“In the event of any dispute between the parties to the Agreement, the courts of England and Wales shall have exclusive jurisdiction, and the applicable law of this Agreement shall be the law of the Republic of Ireland.”
TCL started the construction on time but soon fell behind the agreed schedule. In response, NBP held back a stage payment. That resulted in TCL slowing down construction which, in turn, resulted in the withholding of a further stage payment.
TCL began an Action in the Canadian Courts seeking judgment that (i) NBP is in breach of the Agreement; and (ii) NBP must make full payment of all outstanding and remaining stage payments. The Canadian Claim Form has been served on NBP in Ireland.
NBP is now about to commence an Action in the English High Court seeking (i) judgment against TCL for breach of the Agreement; (ii) compensation for the delay in construction up to the date of the judgment; and (iii) a declaration that NBP is not in breach of the Agreement.
NBP’s English Claim Form and the other litigation documents are ready. NBP must now be advised on the steps needed to: (A) commence the English Action; (B) serve the documents on TCL; (C) stop the Canadian Action; and (D) attempt to settle the dispute.
You are the solicitor acting for NBP in relation to the dispute with TCL. advise NBP on each of the four issues (A) to (D) inclusive, giving your reasons according to law and supporting your reasoning by reference to all relevant primary and secondary sources of law. Please remember to use the best possible sources.
SECTION B
Question 2
What is ‘jurisdiction’ and why is it critical in adjudication? What are the requirements for establishing the jurisdiction of (i) an arbitral tribunal seated in England, and (ii) the International Court of Justice?
