Alpha Batteries (AB) design and manufacture lithium phosphate batteries for industrial uses. Your client Diggers Deep Limited (DD) ordered two hundred 3000 Ah Lithium batteries


International Dispute Resolution and Arbitration Law


Candidates must submit a final draft of their Memorandum of Advice for the Module in (International Dispute Resolution and Arbitration Law ) together with the completed Assessment Submission Sheet, in accordance with the Memorandum of Advice Assessment Submission Instructions, no later than 4pm,

Monday, 27th March 2023. 

The Memorandum of Advice is worth 30 per cent of the total marks available for the module in (International Dispute Resolution and Arbitration Law) 

The Memorandum of Advice (including any attachments) should not exceed 3,000 words.

As the Memorandum should be drafted and written in a practical style (with numbered paragraphs) it is not necessary to include a bibliography. Advice on the writing of a memorandum is available on the VLE (LLM Programme

Information and Dissertations tab.

Please note that no extension or deferral of this assessment can be authorised other than in strict accordance with the General Academic Regulations (available on the VLE) and pursuant to an application on the required form supported by

independent evidence.

This assessment is unsupervised. However, for guidance please refer to the notes and recordings on the VLE (LLM Programme Information and Dissertations

tab – MoA Assessments.



 Alpha Batteries (AB) design and manufacture lithium phosphate batteries for industrial uses. Your client Diggers Deep Limited (DD) ordered two hundred 3000 Ah Lithium batteries from AB to independently power their new hybrid Titan 73 diesel hybrid earth excavator.

DD’s managing director, Mr Sunny, in pre-contract negotiations with AB’s sales manager, Mr Dark, emphasised that the batteries had to sustain a compression ratio in the range 14:1 to 22:1.

Your client placed his order on 1st April 2022. 50 batteries were delivered pursuant to the order on 1st July 2022 and another 50 were received on the 5th November 2022. The sales contract did not state a delivery date but it was understood that delivery would be within a reasonable time. On 1 June, Mr Dark explained that delivery was impeded by disruption to the global supply chain and that “delivery would take place shorty.” On 10 November, Mr Sonny received confirmation that DD’s tender for subcontract works with Albion PLC in respect of a new Freeport had been accepted, and that the works would start on the 1st January 2023. The subcontract terms required that DD would provide sufficient excavating machinery to ensure that the works programme hit the contract completion milestones.

Each new Titan 73 excavator required 10 lithium phosphate batteries to provide a compression ratio of 20 for each excavator. The scope of works described in the specification of works required 20 excavators if the contract milestones were to be met. Mr Dark promised Mr Sunny that the order would be completed before the works started. AB failed to keep this promise.

DD started the works on the 1st January 2023 with 10 excavators. DD are now in delay and have been notified by Albion that liquidated damages will be deducted in the sum of £500,000.

The sub-contract contains an arbitration and a mediation clause. The sales agreement between AB and DD contains no dispute resolution clause.

Your instructions to advise 

DD seek your advice as to the following matters:

1.What procedure would the arbitration follow? Would it be preferable if the procedure followed appropriate institutional rules or if it were ad hoc? What institutional rules would you advise DD to propose?

2.As to whether and how DD could join AB in the arbitration proceedings with Albion.

3.What proceedings otherwise may be taken against AB?

4.Whether these disputes would be capable of negotiated settlement or mediation and what advantage might that be to your client.

Alpha Batteries (AB) design and manufacture lithium phosphate batteries for industrial uses. Your client Diggers Deep Limited (DD) ordered two hundred 3000 Ah Lithium batteries from AB to independently power their new hybrid Titan 73 diesel hybrid earth excavator.

[in your advice you must refer to relevant specific institutional rules and cases]

LAW SCHOOL                                                                                                                        1

Plagiarised (Do not Copy)

To: Diggers Deep Limited (DD)

From: [Your Name], Legal Advisor

Date: [Current Date]

Subject: Dispute Resolution and Potential Legal Actions Concerning Alpha Batteries (AB)

1. Introduction

1.1 This memorandum addresses the dispute resolution procedures and potential legal actions that Diggers Deep Limited (DD) may take against Alpha Batteries (AB) following their failure to deliver the full order of lithium phosphate batteries.

1.2 This advice will cover the appropriate arbitration procedures, the possibility of joining AB in the arbitration with Albion PLC, other legal proceedings against AB, and the viability of negotiated settlement or mediation.

2. Arbitration Procedure

2.1 Institutional vs. Ad Hoc Arbitration

2.1.1 Institutional Arbitration: This involves a permanent institution that administers the arbitration process according to pre-established rules. Institutions like the International Chamber of Commerce (ICC) or the London Court of International Arbitration (LCIA) are well-known examples.

2.1.2 Ad Hoc Arbitration: This is conducted independently without the administration of an institution. The parties have full control over the arbitration process, including the selection of arbitrators and the procedural rules.

2.2 Recommendation

2.2.1 Given the complexity and potential international aspects of the dispute, it is advisable for DD to propose institutional arbitration. This ensures a structured process and access to experienced arbitrators and administrative support.

2.2.2 The ICC Rules or LCIA Rules are recommended due to their comprehensive nature and global recognition.

3. Joining AB in Arbitration Proceedings with Albion

3.1 Possibility of Joinder

3.1.1 Joinder refers to the inclusion of a third party in existing arbitration proceedings. This depends on the arbitration agreement and the rules of the chosen arbitration institution.

3.1.2 Most institutional rules, including the ICC and LCIA, allow for joinder provided certain conditions are met, such as the consent of all parties and the tribunal.

3.2 Strategy

3.2.1 DD can propose the joinder of AB into the arbitration proceedings with Albion PLC, arguing that AB`s failure to deliver the batteries is directly linked to DD’s inability to fulfill the contract with Albion.

3.2.2 This requires obtaining consent from Albion and AB or seeking an order from the tribunal.

4. Alternative Legal Proceedings Against AB

4.1 Breach of Contract

4.1.1 DD can pursue a breach of contract claim against AB for failing to deliver the full order of batteries as promised.

4.1.2 This can be done through litigation in the appropriate jurisdiction if no arbitration agreement exists between DD and AB.

4.2 Claims for Damages

4.2.1 DD may seek damages for the losses incurred due to AB`s breach, including the £500,000 in liquidated damages imposed by Albion.

4.2.2 This claim can be pursued in the courts of England, considering the significant connections to the country.

5. Negotiated Settlement and Mediation

5.1 Negotiated Settlement

5.1.1 A negotiated settlement involves direct discussions between DD and AB to resolve the dispute amicably without formal proceedings.

5.1.2 This can save time and costs and preserve business relationships.

5.2 Mediation

5.2.1 Mediation is a structured process where a neutral third-party mediator assists the parties in reaching a voluntary settlement.

5.2.2 Advantages include confidentiality, speed, cost-effectiveness, and the ability to tailor solutions that a court or tribunal may not be able to impose.

5.3 Recommendation

5.3.1 Given the business relationship and the potential for ongoing interactions, exploring mediation before proceeding with arbitration or litigation is advisable.

5.3.2 DD should propose mediation to AB, highlighting the benefits and the potential to resolve the dispute quickly and amicably.

6. Conclusion

6.1 DD has several avenues for addressing the dispute with AB, including arbitration, litigation, and mediation.

6.2 Institutional arbitration under ICC or LCIA rules is recommended for a structured and reliable resolution process.

6.3 Joinder of AB in the arbitration with Albion PLC is possible but requires strategic negotiation or tribunal intervention.

6.4 Pursuing a breach of contract claim in court and seeking damages is an alternative if arbitration is not viable.

6.5 Mediation offers a flexible and cost-effective solution and should be considered as a first step in resolving the dispute.

[Your Name] Legal Advisor

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