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Dear writer
This paper should not be in Harvard style. it Must be in Australian Guide to legal Citation,
MEMORANDUM OF ADVICE
INSTRUCTIONS AND GUIDELINES
1. INTRODUCTION
The topic relates to international commercial arbitration.
3. HOW DO I WRITE AN MOA?
3.1. Purpose of an MOA
The purpose of an MOA is to provide ‘advice’. In the case of these MOA’s, that
‘advice’ is legal advice, based on your legal research. The person you are providing
this ‘advice’ to is indicated in the question topics.
It is extremely important that you keep your ‘audience’ in mind when drafting your
MOA. The way you write your MOA should be heavily influenced by its intended
recipient, and the language and format (as well as references) you use should be
appropriate for that audience.
3.2. Structure of the MOA
Like your Research Paper, your MOA will follow a particular structure. However,
since it is a memorandum, and not a research paper, it will follow a structure suitable
for a memorandum.
Your MOA should have several identifiable parts, separated with headings and subheadings.
Your memorandum should start with an( executive summary). This is a key summary
of the main points your MOA has raised. It should not be a regurgitation or
restatement of the main text – it should be a very concise summary that someone
could understand if they were to pick up the MOA and read only the executive
summary (and not go any further).
Your memorandum should then have a background section. This section should set
out the background to the issue you have been asked to investigate, rather than a
repetition of the executive summary.
Your memorandum should then go on to deal with each of the required issues raised
by the MOA question. There is no specific required way that you should do this,
provided that your MOA addresses each part of the question asked (this is very
important).
No matter which approach you take to the required issues, you should finish your
MOA with a conclusion. Your conclusion should summarise the main points you
have raised. It should not be a direct copy of your executive summary, but will likely
cover similar points.
3.3. Headings
As mentioned above, you should use headings and sub-headings to separate the
different parts of your MOA.
There is no prescribed “style” for headings in an MOA. In fact, individual law firms,
businesses and government departments generally have their own preferred “style
guides”. In view of this fact, you have a degree of freedom in your formatting in this
regard.
However, you should generally ensure that your headings and sub-headings follow a
numbered system. For example, you could choose to use whole numbers and capital
letters for headings, with decimal points and normal text for sub-headings, as this
document has done – that would be completely fine.
Whatever styling you use, please ensure that it is professional, and also consistent
throughout your entire document.
3.4. Formalities
If you are familiar with business memoranda, you may be familiar with the
‘formalities’ typically seen at the top of a memorandum. These include the ‘date’ (ie.
date of writing), ‘to’ (ie. intended recipient), ‘from’ (ie. your name), ‘subject’ (ie.
what the MOA addresses) and ‘ref’ (ie. the organisation’s internal reference number)
fields. You should ensure these fields are included in a header at the top of the first
page of your memorandum.
3.5. Referencing
The referencing in your MOA should follow the Australian Guide to Legal Citation.
You should therefore acknowledge all sources you draw upon using footnotes, in
accordance with the AGLC style, as you have done for your Research Paper.
However, please note there are two main differences in use of the AGLC in the
MOA’s as opposed to the Research Paper:
You should not include a bibliography at the end of your MOA; and
You are not required to use the AGLC heading styles for your MOA (the simple,
numbered heading style described above is more appropriate for a memorandum).
4. SAMPLE STRUCTURE
A sample MOA structure has been included on the next page to give you an idea of
how an MOA could be set out. However, this is not the only way you can set out or
format an MOA – provided you follow the guidelines set out in this document and
maintain an appropriate and professional style, that is fine.
5. DETAILS OF ASSESSMENT
Words: 2500 words (plus or minus 10%, excludes footnotes)
6. MARKING CRITERIA
Marks will be awarded according to the following marking guide:
Response to the question (16 marks): Answering all parts of the question asked,
in a well structured, well researched and thorough manner.
Format and presentation (5 marks): Use of a memorandum format, inclusion of compliance with the word limit, and evidence of editing and proof-reading to ensure clarity and accuracy of meaning.
Law referencing style (3 marks): Correct referencing, ie. using footnotes (in
accordance with the Australian Guide to Legal Citation) as required throughout
the text to avoid plagiarism and to acknowledge words and ideas from other
sources.
Effective use of sources (6 marks): Effective use of the various resources referred to in the body of the work, in a way that supports the discussion and arguments being raised.
( TOPIC ) :-
You are employed as a solicitor in the commercial litigation department of a large
commercial firm, Alexander & Alexander.
You have been asked to prepare a Memorandum of Advice. The partner wants to be
able to use this Memorandum as a basis for advice to his clients about whether or not Australia is a good venue for international arbitration.
Last year, the partner read an article in a law review by Sophocles Kitharidis entitled
‘Australia’s Reputation as a Centre for International Arbitration: Wagners Nouvelle
Caledonie Sarl v Vale Inco Nouvelle Caledonie Sas Missing a Critical Opportunity to
Reverse the Eisenwerk Decision’ (2011) 23(1) Bond Law Review 102. In that article,
the partner read that:
The Queensland Court of Appeal handed down its decision in Australian Granites Ltd v Eisenwerk Hensel Bayreuth Dipl-Ing Burkhardt GmbH, in which the legal
framework governing Australia’s international commercial arbitration was reviewed
and the ‘Eisenwerk’ principle was established. What was ascertained was that the
adoption of arbitration rules were believed to comprise a displacement of UNCITRAL
Model Law on International Commercial Arbitration, with a number of legal
practitioners and scholars criticising the approach taken by the Eisenwerk decision.
On 11 August 2010, the New South Wales Supreme Court reviewed the Eisenwerk
principle in Cargill International SA v Peabody Australia Mining Ltd, and nine days
later, the Queensland Court of Appeal provided a different interpretation to that of
Cargill, in Wagners Nouvelle Caledonie Sarl v Vale Inco Nouvelle Caledonie SAS.
The diverse approaches taken by both cases have generated controversy regarding
the Eisenwerk principle, and also to the amended 2010 legislation governing
international commercial arbitration in Australia.
Kitharidis’ opinion about the current state of the law was troubling to the partner of
the firm. The partner requires you to write a Memorandum of Advice outlining what the problem is that Kithiardis identifies, how the case law has been interpreted and what effect this interpretation has had on Australia’s arbitration regime, particularly for his clients that may be considering Australia as a venue for international arbitration.
ALEXANDER & ALEXANDER
Solicitors
MEMORANDUM OF ADVICE
Date: XXXXX
To: Partner – Commercial Litigation
From: XXXXX
Subject: XXXXX
Ref: Memorandum of Advice No 1
Author(s): Student Names and Numbers
1. EXECUTIVE SUMMARY
…
2. BACKGROUND
…
3. [A HEADING APPROPRIATE FOR THE DISCUSSION OF THE MAIN
POINTS RAISED BY THE MOA QUESTION]
…
3.1. [A Heading for the First Main Point]
…
3.2. [A Heading for the Second Main Point]
…
4. CONCLUSION
…
J ust to let you know,these Topics in this Unit , but this assignment focus on topic ( 7 ).
The topics covered in this Unit are:
1. Introduction to International Commercial Law
2. International Sale of Goods
3. International Carriage of Goods
4. Letters of Credit
5. International and Regional Trade Agreements
6. Foreign Investment Law
7. International Dispute Resolution
These some useful referances for each topic to choose from:
Topic 1:
AustLII, ‘Australian Treaties Library’
AustLII, ‘Treaty Law Resources’
Lawrence Collins (ed), Dicey, Morris & Collins on the Conflict of Laws (14th ed, 2006) Ch 1.
Department of Foreign Affairs and Trade, ‘Australian Treaties Database’
Martin Dixon, Textbook on International Law (6th ed, 2007) Ch 2.
Hague Convention on the Law Applicable to Contracts for the International Sale of Goods (1986),
Reid Mortensen, Private International Law in Australia (2006) Chs 1 & 15.
Michael Pryles, Jeff Waincymer and Martin Davies, International Trade Law: Commentary and Materials (2nd ed, 2004) Ch 3.
Rome Convention on the Law Applicable to Contractual Obligations (1980),
Rome I Regulation (Regulation (EC) No. 593 / 2008 of the European Parliament and of the Council) (2008),
Vienna Convention on the Law of Treaties (1969),
Vienna Convention on the Law of Treaties Between States and International Organisations or Between International Organisations (1986),
Topic 2:
Access the following readings via the websites:
United Nations Convention on Contracts for the International Sale of Goods (1980),
Marcus S. Jacobs QC, Katrin Cutbush-Sabine & Philip Bambagiotti, ‘The CISG in
Australia-to-date: An illusive quest for global harmonization?’ (2002) 17 Mealey’s
International Arbitration Report 24
Jacob Ziegel, ‘The Scope of the Convention: Reaching Out to Article One and Beyond’
(2005 – 2006) 25 Journal of Law and Commerce 59
Roland Loewe, ‘The Sphere of Application of the UN Sales Convention’ (1998) 10 Pace
International Law Review 79
Ulrich G. Schroeter, ‘Vienna Sales Convention: Applicability to “Mixed Contracts” and
Interaction with the 1968 Brussels Convention’ (2001) 5 Vindobona Journal of
International Commercial Law and Arbitration (2001) 74
Ingeborg Schwenzer & Florian Mohs, ‘Old Habits Die Hard: Traditional Contract
Formation in a Modern World’ (2006) Internationales Handelsrecht 239
Chan Leng Sun ‘Interpreting an International Sale Contract’ (paper presented at the
UNCITRAL – SIAC Conference, 22–23 September 2005, Singapore)
Sale of Goods: A Comparative Analysis’ (2006) Nordic Journal of Commercial Law
Peter Schlechtriem, Uniform Sales Law – The UN Convention on Contracts for the
International Sale of Goods (1986)
Joseph Lookofsky, ‘Article 79 – Liability Exemptions for Failure to Perform’ in J. Herbots
and R. Blanpain (eds), International Encyclopaedia of Laws – Contracts,
(Suppl. 29, December 2000)
Franco Ferrari, ‘Fundamental Breach of Contract Under the UN Sales Convention –
25 Years of Article 25 CISG’ (2005 – 2006) 25 Journal of Law and Commerce 489
Ulrich Magnus, ‘The Remedy of Avoidance of Contract Under CISG – General Remarks
and Special Cases’ (2005 – 2006) 25 Journal of Law and Commerce 423
Christopher Kee, ‘Remedies for Breach of Contract Where Only Part of the Contract
has Been Performed’ (2002) 6 Vindobona Journal of International Commercial Law
and Arbitration 281
John Y. Gotanda, ‘Awarding Damages under the United Nations Convention on the
International Sale of Goods: A Matter of Interpretation’ (2005) 37 Georgetown
Journal of International Law 95
International Chamber of Commerce, ‘Incoterms Rules’ (2011) Incoterms
Cesare Massimo Bianca and Michael Joachim Bonell, Commentary on the International
Sales Law: The 1980 Vienna Sales Convention (1987).
Robin Burnett and Vivienne Bath, Law of International Business in Australasia (2009) Ch 1.
Fritz Enderlein and Dietrich Maskow, International Sales Law (1992).
John Honnold, Uniform Law for International Sales under the 1980 United Nations
Convention (3rd ed, 1999).
Topic 3:
International Convention for the Unification of Certain Rules of Law Relating to Bills of
Lading (1924) (the Hague Rules),
Protocol to Amend the International Convention for the Unification of Certain Rules of
Law Relating to Bills of Lading (1968) (the Hague-Visby Rules),
(retrieved 26 September 2011).
United Nations Convention on the Carriage of Goods by Sea (1978) (the Hamburg
Rules),
United Nations Convention on Contracts for the International Carriage of Goods Wholly or
Partly by Sea (2008) (the Rotterdam Rules),
Convention for the Unification of Certain Rules Relating to International Carriage by Air
(1929) (the Warsaw Convention),
Protocol to Amend the Convention for the Unification of Certain Rules Relating to
International Carriage by Air (1955) (the Hague Protocol),
(retrieved 26 September 2011).
Additional Protocol No. 4 to Amend the Convention for the Unification of Certain Rules
Relating to International Carriage by Air as Amended by the Protocol Done at the Hague
(1975) (the Montreal Protocol No. 4),
Convention Supplementary to the Warsaw Convention for the Unification of Certain
Rules Relating to International Carriage by Air Performed by a Person other than
the Contracting Carrier (1961) (the Guadalajara Convention),
Convention for the Unification of Certain Rules for International Carriage by Air (1999)
(the Montreal Convention),
Topic 4:
John Mo, International Commercial Law (4th ed, 2009) 534.
31 John Mo, International Commercial Law (4th ed, 2009) 535.
32 John Mo, International Commercial Law (4th ed, 2009) 535.
33 John Mo, International Commercial Law (4th ed, 2009) 535.
34 John Mo, International Commercial Law (4th ed, 2009) 536.
35 John Mo, International Commercial Law (4th ed, 2009) 536
Robin Burnett and Vivienne Bath, Law of International Business in Australasia (2009) Ch 3.
John Mo, International Commercial Law (4th ed, 2009) Ch 5.
Topic 5:
Access the following readings via the websites:
‘Understanding the WTO’, on the WTO web site:
(retrieved 26 September 2011).
‘Organisational Chart’, on the WTO web site:
(retrieved 26 September 2011).
The GATT, GATS and TRIPS, all available from the WTO web site’s ‘Legal Texts’ page:
(retrieved 26 September 2011).
Final Act Embodying the Results of the Uruguay Round of Multilateral Trade
Negotiations, on the WTO web site:
(retrieved 26 September 2011).
Agreement Establishing the World Trade Organization, on the WTO web site:
(retrieved 26 September 2011).
‘WTO Panel Process’, on the WTO web site:
(retrieved 26 September 2011).
WTO
‘Australia and the World Trade Organization’, Department of Foreign Affairs and Trade:
(retrieved 26 September 2011).
Bretton Woods Project,
(retrieved 26 September 2011).
Robin Burnett and Vivienne Bath, Law of International Business in Australasia (2009)
Ch 6.
John H Jackson, The World Trade Organization: Constitution and Jurisprudence
(1998).
European Union
Robin Burnett and Vivienne Bath, Law of International Business in Australasia (2009)
Ch 6.
EUR-Lex: European Union Law,
(retrieved 26 September 2011).
European Community Law, Cavendish Law Cards (2nd ed, 2000).
APEC
Asia Pacific Economic Cooperation, DFAT:
(retrieved 26 September 2011).
ANZCER
‘Vaile to Meet USTR on Free Trade Agreement’, Department of Foreign Affairs and
Trade, Press Release (11 September 2001)
(retrieved 26 September 2011).
Robin Burnett and Vivienne Bath, Law of International Business in Australasia (2009)
Ch 6.
NAFTA
M Rafiqul Islam, International Trade Law (1999) Ch 3.
Robin Burnett and Vivienne Bath, Law of International Business in Australasia (2009)
Ch 6.
Topic 6 :
United Nations Conference on Trade and Development, ‘Foreign Portfolio Investment (FPI)
and Foreign Direct Investment (FDI): Characteristics, Similarities, Complementarities
and Differences, Policy Implications and Development Impact’ (1999),
Foreign Investment Review Board, ‘Australia’s Foreign Investment Policy’ (January 2011),
Magnus Blomstrom and Ari Kokko, ‘How Foreign Investment Affects Host Countries’
(World Bank Policy Research Working Paper 1745, 1997),
(retrieved 26 September 2011).
Foreign Investment Review Board, Annual Report 2009–10 (2011),
Agreement on Trade-Related Investment Measures (1994) (the TRIMS Agreement),
(retrieved 26 September 2011).
Declaration on International Investment and Multinational Enterprises,
Topic 7:
School of International Arbitration, ‘2010 International Arbitration Survey: Choices in International Arbitration’ (2010) International Arbitration Study 2010
School of International Arbitration, ‘International Arbitration: Corporate Attitudes and Practices 2008’ (2008) 2008 International Arbitration Study
School of International Arbitration, ‘International Arbitration: Corporate Attitudes and Practices 2006’ (2006) 2006 International Arbitration Study
Model Law on International Commercial Arbitration (1985),
Model Law on International Commercial Arbitration (1985, as amended in 2006),
ACICA Rules (2005),
Convention on the Recognition and Enforcement of Foreign Arbitral Awards (1958) (the New York Convention),
Dear writer
please make it simple and clear as English for Second Languge, and please in Uk style not in American words.
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