Question 1 20 Marks
Outline and discuss in general terms, the main current issues which arise concerning the choice of (non-state) Islamic law to govern international finance contracts and the likely feasibility of ‘combined law’ contracts e.g. of Sharia law and Australian law having regard to the UK case Shamil Bank of Bahrain EC vs Beximco Pharmaceuticals Ltd & Ors [2004] EWCA Civ 19 (http://www.bailii.org/ew/cases/EWCA/Civ/2004/19.html).
Question 1 20 Marks
Visit the website of the Republic of the Philippines Court of Appeals, Manila, Third Division, download the 13 March 2012 (item 543) judgment in Takenaka Corporation & Asahikosan Corporation vs. Philippine International Air Terminals Company Inc., (http://ca.judiciary.gov.ph/cardis/CV96502.pdf and together with any other material you may care to consult, answer the following questions.
(a) Provide a short account of the key, material facts which gave rise to this case together with the main parties and the progression of the dispute through the arbitration/court hierarchy in England and the Philippines. (5 marks)
(b) Outline the grounds which defendant-appellant PIATCO relied upon in asserting that the December 2005 foreign judgment (including orders for payment) of the English High Court of Justice wasn’t valid and shouldn’t be recognised and enforced. (5 marks)
(c) How did Associate Justice Rebecca De Guia-Salvador (Justice DGS) deal with PIATCO’s various arguments against enforcement of the London orders, and what was her final decision and order? (10 marks)
Question 3 20 Marks
A leading Queensland manufacturer of sugar cane harvesting and processing equipment, CuttySark Ltd (CSL), wishes to expand into the large, somewhat under-mechanised Philippine sugar cane industry. It plans to sell its product range direct to about 20 medium sized Philippine equipment importers and 10 provincial sugar cane mills, taking advantage of a well-funded Philippine Government initiated five year sugar industry modernisation program. The program (i) exempts sugar industry related plant and equipment imports from all taxes and charges and (ii) grants importers and cane mills zero interest five year development loans in order to finance that modernisation program which relies heavily upon imports. CuttySark seeks your advice as an international business adviser, on the following critical legal aspects of its proposed standardised contracts for the sale and purchase of its 30 item product range varying in value from US$10,000 to $1 million (all amounts in US dollars hereafter).
(a) The choice of law – Australian, Philippine or some third country. (5 marks)
(b) Inclusion of a compulsory arbitration clause. (5 marks)
(c) The comparative merits of arbitration in Australia, the Philippines or elsewhere and choice of the arbitrator or arbitral body. (5 marks)
(d) The comparative ease of enforcing Australian and Philippine “foreign court” judgments or arbitrations award respectively in the other country. And briefly appraise the likely viability of CuttySark’s proposed Philippine expansion if the Philippine Government insisted that as a condition of loan support, all plant and equipment import contracts be made subject to Philippine law and arbitration. (5 marks)