Urgent 9

Factual background Vin Mist Ltd., a seller, and Elend Ltd, a buyer, concluded a sales agreement in Aberdeen, Scotland. Vin Mist Ltd. is a company founded and registered in Croatia, and Elend Ltd. is a company registered in Mexico. The contract was to be performed in Scotland, i.e. the goods were to be delivered to the branch of Elend Ltd. in Aberdeen. The Sales Agreement contained the following dispute resolution clause:

Any dispute, controversy, or claim arising out of, or in relation to, this contract, including regarding the validity, invalidity, breach, or termination thereof, shall be resolved by arbitration in accordance with the Swiss Rules of International Arbitration of the Swiss Arbitration Centre in force on the date on which the Notice of Arbitration is submitted in accordance with those Rules. The number of arbitrators shall be three. The seat of the arbitration shall be Geneva. The arbitration proceedings shall be conducted in English. All arbitrators should be proficient in English as native speakers.

Elend Ltd. commenced arbitration in Geneva by filing a Notice of Arbitration under the 2021 Swiss Rules of International Arbitration of the Swiss Chambers' Arbitration Institution. Elend Ltd. filed the notice when upon the examination of the goods they concluded that the goods were not of the agreed quality, and Vin Mist Ltd. refused to deliver substitute goods. Each party sent an email on this matter. Each party appointed an arbitrator – Ms Ellen Shallan was appointed by Elend Ltd., whereas Mr Zane Zolowski was appointed by Vin Mist Ltd. objected to the appointment of Ms Shallan as the English language is not her native language. Elend Ltd., on the other hand, challenged Mr Zane Zolowski as arbitrator. He was appointed by Vin Mist Ltd. Mr Zolowski has previously published a journal article containing a view on an issue that is currently before him as arbitrator. Mr Zolowski did not disclose this in advance. There is also a possibility once the arbitral tribunal is established that they will decide to hold the first hearing virtually through an online platform due to current restrictions imposed by the COVID-19 situation. This, however, has not yet been discussed with the parties. Your task BRIEFLY IN ONE PARAGRAPH: Identify the applicable arbitral/procedural law, the applicable arbitration rules, and other potentially applicable soft law sources. THEN discuss the following questions by referencing these sources, BUT ALSO commentaries, and arbitral cases of persuasive authority to support your opinion:

1. Should Ms Ellen Shallan and Mr Zane Zolowski continue with their mandate as an arbitrator or not, considering the ground for the objection and the challenge respectively? Identify the applicable rules and provide the theoretical background to the issue at question in order to justify your answer.

2. Once the arbitral tribunal is established, which law should apply to the merits of the dispute, how is this law to be determined in the absence of the parties’ agreement, and what would you suggest as the potentially applicable law based on the available facts? Identify the applicable rules and provide the theoretical background to the issue at question in order to justify your answer.