7TH NLIU JUSTICE R K TANKHA

MEMORIAL INTERNATIONAL MOOT COURT COMPETITION 2022

TEAM CODE: 11R

7TH NLIU JUSTICE R.K. TANKHA

MEMORIAL INTERNATIONAL ARBITRATION MOOT 2022

Before

THE ARBITRAL TRIBUNAL,

VOLANTIS, DEMOCRATIC REPUBLIC OF BRAAVOS

IN THE MATTER OF

DABHOL INFRASTRUCTURE PROJECTS

CLAIMANT

VERSUS

LOUIS DREYFUS CONSTRUCTORS & SUPPLIERS

RESPONDENT

MEMORIALfor RESPONDENT PAGE | 1

 7TH NLIU JUSTICE R K TANKHA
MEMORIAL INTERNATIONAL MOOT COURT COMPETITION 2022

MEMORANDUM forRESPONDENT

MEMORIALfor RESPONDENT PAGE | 2

 7TH NLIU JUSTICE R K TANKHA
MEMORIAL INTERNATIONAL MOOT COURT COMPETITION 2022

TABLE OF CONTENTS

TABLE OF ABBREVIATION

ABBREVIATION EXPANSION

% Percentage

& And

§ Section

¶ Paragraph

ACICA Australian Centre for International

Commercial Arbitration

Addendum Addendum to the Agreement

All ER All English Law Reports (Commercial)

(Comm)

Arb Arbitration

Art. Article

CISG The United Nations Convention on

Contracts for the International Sale of
Goods

CLAIMANT Dabhol Infrastructure Projects

CLOUT Case Law on UNCITRAL Texts

Edn. Edition

MEMORIALfor RESPONDENT PAGE | III

 7TH NLIU JUSTICE R K TANKHA
MEMORIAL INTERNATIONAL MOOT COURT COMPETITION 2022

EUR The Euro

FIDIC International Federation of Consulting

Engineers

HKIAC Hong Kong International Arbitration Centre

Hon’ble Honourable

i.e. That is

IBA International Bar Association

ICCA International Council for Commercial

Arbitration

ICSID International Centre for Settlement of

Investment Disputes

Id. Idem

Inc Incorporation

Int’l International

JAMS Judicial Arbitration and Mediation Services

LCIA London Court of International Arbitration

MEMORIALfor RESPONDENT PAGE | IV

 7TH NLIU JUSTICE R K TANKHA
MEMORIAL INTERNATIONAL MOOT COURT COMPETITION 2022

LDCS Louis Dreyfus Constructors & Suppliers

LLP Limited Liability Partnership

Ltd. Limited

Model Law The United Nations Commission on

International Trade Law Model Law on
International Commercial Arbitration

No./Nos. Number/Numbers

Ors. Others

PICA Project Infrastructure and Construction

Agreement

Pvt. Private

Respondent Louis Dreyfus Constructors & Suppliers

SCC OnLine Supreme Court Cases Online

SDA Supply & Design Agreement

SGHC Singapore High Court

SGHCR Singapore High Court Registrar

MEMORIALfor RESPONDENT PAGE | V

 7TH NLIU JUSTICE R K TANKHA
MEMORIAL INTERNATIONAL MOOT COURT COMPETITION 2022

SIAC Singapore International Arbitration Centre

SIAC Rules Singapore International Arbitration Centre

Rules, 2016

SICA Sick Industries Companies Act, 1985

SLR Singapore Law Report

Tribunal The Arbitral Tribunal

U. S. Dist. Lexis LexisNexis database for U.S. District

Court cases

UGCOMMC Law reports of Commercial Court of

Uganda

UKHL United Kingdom House of Lords (UK

parliament)

UN United Nation

UNCITRAL United Nations Commission on

International Trade Law

UNCTAD United Nation Conference on Trade and

Development

UNIDROIT The International Institute for the

Unification of Private Law

US United States

MEMORIALfor RESPONDENT PAGE | VI

 7TH NLIU JUSTICE R K TANKHA
MEMORIAL INTERNATIONAL MOOT COURT COMPETITION 2022

USD United States Dollars

v. Versus

Vol Volume

WL West Law Report

WLR Weekly Law Reports

YICCA Yearbook of the International Council for

Commercial Arbitration

MEMORIALfor RESPONDENT PAGE | VII

 7TH NLIU JUSTICE R K TANKHA
MEMORIAL INTERNATIONAL MOOT COURT COMPETITION 2022

INDEX OF AUTHORITIES

Cases And Arbitral Award

1. Acrylic blankets case, CLOUT case No. 282 (Oberlandesgericht Koblenz, Germany,
1997)....................................................................................................................................9
2. Al Palazzo S.r.l. v. Bernardaud S.A., CLOUT case No. 608 (Tribunale di Rimini, Italy
2002)................................................................................................................................2, 3
3. Annika Gustavsson v. LRF N.V., CLOUT case No. 992, (Københavns Byret,Denmark,
2007)....................................................................................................................................3
4. Arkin v. Borchard Lines Ltd. &Ors, EWCA Civ. 655 (English Court of Appeal, 2005).29
5. Art books case, CLOUT case No. 331 (Switzerland, HG Zurich, 1999)....................16, 17
6. BRI Production "Bonaventure" S.a.r.l. v. Pan African Export, CLOUT case No. 154
(Courd’appel de Grenoble, France, 1995)...........................................................................3
7. CalzadosMagnanni v. Shoes General International S.a.r.l., CLOUT case No. 313 (French
Appellate Court Grenoble, 1999)......................................................................................15
8. CalzadosMagnanni v. Shoes General International S.a.r.l., CLOUT case No. 313 (French
Appellate Court Grenoble, 1999), https://cisg-online.org/search-for-cases?caseId=6538.
...........................................................................................................................................17
9. Calzaturificio Piceno di Roberto Catinari & Uvaldo Raccosta v. Vivace Mode GmbH,
CLOUT case No. 275 (Oberlandesgericht Düsseldorf, Germany, 1997)...........................9
10. Chinchilla furs case, CLOUT case No. 106 (ObersterGerichtshof, Austria 1994).............2
11. Chinese goods case, CLOUT case No. 166 (Arbitration—Schiedsgericht der
Handelskammer Hamburg, Germany, 1996)......................................................................3
12. CLOUT case No. 168 (Oberlandesgericht Köln, Germany, 21 May 1996)........................3
13. CLOUT case No. 867 (Tribunale di Forlì, Italy, 11 December 2008)................................3
14. Cobalt sulphate case, CLOUT case No. 171 (Bundesgerichtshof. Germany. 1996)..........9
15. Construction materials case, CLOUT case No. 904 (Tribunal Cantonal Jura, Switzerland,
2004),...................................................................................................................................2
16. Czech cheese case, CLOUT case No. 293 (Schiedsgericht der Hamburger freundlichen
Arbitrage, Germany, 1998).................................................................................................3
17. DSM Dyneema B.V. v. ElectromichanikiKimis EPE, Case no. 4505/2009
(PolimelesProtodikioAthinon, Greece 2009)......................................................................2

MEMORIALfor RESPONDENT PAGE | VIII

 7TH NLIU JUSTICE R K TANKHA
MEMORIAL INTERNATIONAL MOOT COURT COMPETITION 2022

18. DSM Dyneema B.V. v. ElectromichanikiKimis EPE, Docket No. 4505/2009

(PolimelesProtodikioAthinon, Greece, 2009)...................................................................16
19. ECEM European Chemical Marketing B.V. v. The Purolite Company, Civil Action 05-
3078, (U.S. District Court, Eastern District of Pennsylvania, USA, 2010),
http://www.unilex.info/cisg/case/1511................................................................................2
20. Frozen meat case, CLOUT case No. 248 (Bundesgericht, Switzerland. 1998)..................9
21. Harris Corp. v. National Iranian Radio &Television, 691 F.2d 1344, 1347 (11th Cir.
1982)....................................................................................................................................4
22. Howard Family Trust v. The Government of Canada, PCA Case No 2009-21 (Order for
the Termination of the Proceedings and Award on costs, 2010)......................................28
23. ICC Case No. 13645 (Final Award, 2006)........................................................................29
24. ICS Inspection and Control Services Limited v. The Argentine Republic (I), PCA Case
No. 2010-09 (Decision on Challenge of Stanimir Alexandrov, 2009)..............................20
25. Joaquim Marques Roque v. Holding Manin Rivière S.a.r.l., CLOUT case No. 152
(Courd’appel de Grenoble, France, 1995)...........................................................................3
26. Joaquim Marques Roque v. Holding Manin Rivière S.a.r.l., CLOUT case No. 152
(Courd'appel, Grenoble, France, 1995)...............................................................................9
27. Kuddus v Chief Constable of Leicestershire Constabulary, 2 AC 122 (HL) 68 (2002).. .13
28. Macedonian lambskin coats case, CLOUT case No. 251 (Handelsgericht des Kantons
Zürich, Switzerland, 1998)..................................................................................................3
29. Manolium Processing v. The Republic of Belarus, PCA Case No. 2018-06 ¶ 717 (2021).
...........................................................................................................................................27
30. Market Research Study Case, CLOUT case No. 122 (Oberlandesgericht Köln, Germany,
1994)....................................................................................................................................3
31. Mitias d.o.o. v. SolideaS.r.l, CLOUT case No. 867 (Tribunale di Forlì, Italy 2008).........2
32. Mitias v. Solidea S.r.L, CLOUT Case no. 867, (Tribunale di Forlì, Italy, 2008)...........2, 3
33. Morelite Constr. Corp. v. New York City Dist. Council Carpenters Benefit Funds, 748
F.2d 79, 85 (2nd Cir. 1984)...............................................................................................21
34. MuhammetÇap&SehilInşaatEndustriveTicaret Ltd. Sti. v. Turkmenistan, ICSID Case
No. ARB/12/6 ¶13 (Procedural Order No. 3, 2015).........................................................22
35. National Grid P.L.C. v. Argentine Republic, Decision on the Challenge to Mr. Judd L.
Kessler, Division of the LCIA Court, Case No. UN 7949 ¶80 (2007).............................20

MEMORIALfor RESPONDENT PAGE | IX

 7TH NLIU JUSTICE R K TANKHA
MEMORIAL INTERNATIONAL MOOT COURT COMPETITION 2022

36. Nieuwenhoven Viehandel GmbH v. Diepeveen - Dirkson B.V., CLOUT case No.100,
(Rechtbank Arnhem, Netherland, 1993).............................................................................3
37. Nissho-Iwai Co., Ltd. v. Occidental Crude Sales, Inc., 729 F.2d 1530, 1539 (5th Cir.
1984)....................................................................................................................................4
38. Nissho-Iwai Co., Ltd. v. Occidental Crude Sales, Inc., 729 F.2d 1540 (5th Cir. 1984).....5
39. OstroznikSavo et al. v. La Faraona soc. coop. a.r.l. et al., CLOUT case No. 651
(Tribunale di Padova, Italy, 2005)..................................................................................2, 3
40. P. v. Q., EWHC ¶70, 194 (Comm, 2017)..........................................................................25
41. Penwell Business Limited v. Kyrgyz Republic, PCA Case No. 2017-31 ¶ 394 (2021). . .27
42. Perenco Ecuador Ltd. v. Republic of Ecuador and EmpresaEstatalPetróleos del Ecuador
("PetroEcuador"), Decision on Challenge to Arbitrator ¶54, ¶58 (2009).........................20
43. Pizza Boxes Case, CLOUT case No. 360 (Amtsgericht Duisburg, Germany, 2000).........2
44. Price Waterhouse SARL and PW Conseil SARL v. PricewaterhouseCoopers
International Limited, Claim No. 2010 Folio 619 (Queen’s Bench, Commercial Court,
2010)..................................................................................................................................29
45. Propane gas case, CLOUT case No. 176 (ObersterGerichtshof, Austria, 6 February 1996)
.............................................................................................................................................3
46. PVC case II, CLOUT case No. 328 (Kantonsgericht des Kantons Zug, Switzerland,
1999)....................................................................................................................................3
47. RheinlandVersicherungen v. Atlarexs.r.l., CLOUT case No. 378 (Tribunale di Vigevano,
Italy 2000)...........................................................................................................................2
48. Sabine Corp. v. ONG Western Inc., 725 F. Supp. 1157, 1166 (W.D.Oka. 1989)..............4
49. Sabine Corp. v. ONG Western, Inc., 725 F.Supp. 1157 (10th Cir. 1989)...........................5
50. Sacheri v Robotto, Corte di Cassazione [Supreme Court, Italy], 2765, 7 June 1989.......24
51. Sociedad de Valores, SA v. Banco Santander, SA, Case No. 3/2009 (Madrid Audiencia
Provincial, 2011)...............................................................................................................21
52. Société Productions S.C.A.P. v Roberto Faggioni, CLOUT case No. 312, (Cour d’ appel
de Paris, France,1998).........................................................................................................3
53. Steel bars case, ICC Arbitration Case No. 6653 (1993)......................................................1
54. Suez, Sociedad General de Aguas de Barcelona S.A., and InterAguasServiciosIntegrales
de Agua S.A. v. Argentine Republic, ICSID Case No. ARB/03/17 (2006)......................20
55. Suits case, CLOUT case No. 930 (Tribunal cantonal du Valais, Switzerland, 2006).........2
56. Swiss Federal Supreme Court 4A_709/2014 of 21 May 2015 cons. 3.2.2.......................25

MEMORIALfor RESPONDENT PAGE | X

 7TH NLIU JUSTICE R K TANKHA
MEMORIAL INTERNATIONAL MOOT COURT COMPETITION 2022

57. Tessile 21 S.r.l. v. Ixela S.A., CLOUT case No. 380 (Tribunale di Pavia, Italy, 1999).....3
58. ThyssenKrupp Metallurgical Products GmbH v. Sinochem International (Overseas) Pte
Ltd, Min Si Zhong Zi No. 35 Civil Judgment, (Supreme People's Court, People's
Republic of China, 2014)....................................................................................................9
59. Umbrellas case, CLOUT case No. 238 (ObersterGerichtshof, Austria, 1998)...................3
60. United States v. Brooks-Callaway Co., 318 U.S. 120, 123-24 (1943)................................4
61. Unknown, CLOUT case no. 148, (Moscow City Court, Russian Federation),
https://www.uncitral.org/clout/clout/data/rus/clout_case_148_leg-1349.html.................15
62. Unknown, CLOUT case No. 282, (Oberlandesgericht Koblenz, Germany, 1997).............9
63. Unknown, CLOUT case No. 28O, (Thüringer Oberlandesgericht Jena, Germany,1998). .3
64. Unknown, CLOUT case no. 343 (Landgericht Darmstadt District Court, Germany,
2000)..................................................................................................................................16
65. Unknown, CLOUT case no.106,(Oberster Gerichtshof, Austria, 1994).............................3
66. Urbaser S.A. and Consorcio de Aguas Bilbao Bizkaia, Bilbao Biskaia Ur Partzuergoa v.
Argentine Republic, ICSID Case No. ARB/07/2 (2010)..................................................21
67. Used car case I, CLOUT case No. 168 (Oberlandesgericht Köln, Germany 1996)........2, 3
68. Video recorders case, CLOUT case No. 343 (District Court Darmstadt, 2000).........15, 17
69. Video recorders case, CLOUT case No. 343 (District Court Darmstadt, 2000),
https://cisg-online.org/search-for-cases?caseId=6524......................................................17
70. Vito G. Gallo v. Government of Canada, Decision on the Challenge to Mr. J. Christopher
Thomas, QC, NAFTA/UNCITRAL ¶19 (2009)...............................................................20
71. Walter Bau AG et al. v. General KommerzHandelsges. mbH, CLOUT case No. 746
(Oberlandesgericht Graz, Austria, 2004)............................................................................2
72. Walter Höft v. Coraline Limited, SCC Case No. V 2015/012 (Judgment of Svea Court of
Appeal, 2019)....................................................................................................................20
73. Yukos Universal Limited (Isle of Man) v The Russian Federation, UNCITRAL PCA
Case No AA 227 (2006)....................................................................................................23

1. Books
2. Alan Redfern et. al., Redfern and Hunter on International Arbitration 229 - 304 (6th ed.
2009)..................................................................................................................................20
3. Alasdair Ross Anderson et al v. Republic of Costa Rica, ICSID Case No. ARB(AF)/07/3
¶ 62 (2010)....................................................................................................................4, 27

MEMORIALfor RESPONDENT PAGE | XI

 7TH NLIU JUSTICE R K TANKHA
MEMORIAL INTERNATIONAL MOOT COURT COMPETITION 2022

4. Alastair Mullis & Peter Huber, The CISG: A New Textbook for Students and
Practitioners 279 (2007)...................................................................................................14
5. Asia Arbitration Handbook, ¶ 15.308 (M Moser & J Choong, eds., 2011)......................28
6. Bernardo Cremades, Third Party Funding in International Arbitration, (2011)..............19
7. C. H. BECK, HART, & NOMOS, UN Convention on Contracts for the International
Sale of Goods (CISG) 125 (Stefan Kröll et al. eds., 2nd ed. 2018)...................................10
8. Christoph H. Schreuer, The ICSID Convention: A Commentary 513 para. 22-23 (2nd ed.
2009)..................................................................................................................................21
9. CISG, 1988, PREAMBLE; James J. Fawcett et al., International Sale of Goods in the
Conflict of Laws 906, 912 (Oxford 2005)...........................................................................1
10. Djakhongir Saidov, Methods of Limiting Damages under the Vienna Convention on
Contracts for the International Sale of Goods, (2001).....................................................14
11. Djakhongir Saidov, The Law of Damages in the International Sale: The CISG and Other
International Instruments 330 (2008)...............................................................................14
12. Franco Ferrari, Harry Flechtner& Ronald A. Brand, The Draft UNCITRAL Digest and
Beyond: Cases, Analysis and Unresolved Issues in the U.N. Sales Convention (2003).. .13
13. Gabehart, Scott, Brinkley & Richard, The Business Valuation Book116-17(2002).........14
14. Gary B. Born, International Commercial Arbitration 1761 - 2104 (3rd ed. 2021)..........20
15. Ingeborg Schwenzer & Peter Schlechtriem, Commentary on the UN-Convention on the
International Sale of Goods (CISG), Art.79 109 (2nd ed.2005)...................................10, 11
16. Ingeborg Schwenzer, Commentary on the UN Convention on the International Sales of
Goods 1019 (3rd ed. 2009)..........................................................................................13, 16
17. Ingeborg Schwenzer, Commentary on the UN Convention on the International Sales of
Goods, 1142 (4th ed. 2016).................................................................................................8
18. Ingeborg Schwenzer, Commentary on the UN Convention on the International Sales of
Goods, Art. 79 (2nd ed. 2005).............................................................................................8
19. Ingeborg Schwenzer, Force Majeure & Hardship in International Sales Contracts Wider
Perspective, 714 (2010).......................................................................................................8
20. Investment Arbitration Rules of the Singapore International Arbitration Centre (1st ed.
2017)..................................................................................................................................22
21. Jonas von Goeler, Third- Party Funding in International Arbitration and its impact on
Procedure 253 (2nd ed. 2016)...............................................................................19, 28, 29
22. Jonas von Goeler, Third- Party Funding in International Arbitration and its impact on
Procedure 253 (2nd ed. 2016)...........................................................................................18
23. Md. Zahidul Islam, Applicability of the Convention on Contracts for International Sale
and Goods (CISG), IOSR Journal Of Humanities And Social Science 78-81 (2013),
https://www.iosrjournals.org/iosr-jhss/papers/Vol14-issue3/K01437881.pdf....................2
24. Schlechtriem & Schwenzer: Commentary on the UN Convention on the International
Sale of Goods Fourth Edition Edited by Ingeborg Schwenzer(2016)...............................15
25. Secretariat Commentary on the 1978 UNCITRAL Draft Convention, Art. 70 (draft
counterpart to CISG art. 74) ¶3, reprinted in John O Honnold, Documentary History of
the Uniform Law of International Sales(1989)...........................................................12, 15

MEMORIALfor RESPONDENT PAGE | XII

 7TH NLIU JUSTICE R K TANKHA
MEMORIAL INTERNATIONAL MOOT COURT COMPETITION 2022

26. W. Lawrence Craigetal., INTERNATIONAL CHAMBER OF COMMERCE

ARBITRATION 40 (2d ed. 1990)......................................................................................27
27. Wolfgang Witz, Hanns-Christian Salger & Manuel Lorenz , International einheitliches
Kaufrecht : Praktiker-Kommentar und Vertragsgestaltung zum CISG Art. 74 par. 14
(2000)................................................................................................................................17
1. Internet Sources
2. Alvin Yeo & Lim Wei Lee, Arbitration Guide IBA Arbitration Committee Singapore,
(January 2018), https://www.ibanet.org/MediaHandler?id=21CE7804-1003-4E5C-965C-
7BAE72749128.................................................................................................................23
3. Alvin Yeo & Lim Wei Lee, Arbitration Guide IBA Arbitration Committee Singapore,
(January 2018); https://www.ibanet.org/MediaHandler?id=21CE7804-1003-4E5C-965C-
7BAE72749128.................................................................................................................24
4. Carswell & Winnington, Awards: Challenges based on misuse of tribunal secretaries,
Global Arbitration Review (08 June 2021),
https://globalarbitrationreview.com/guide/the-guide-challenging-and-enforcing-
arbitration-awards/2nd-edition/article/awards-challenges-based-misuse-of-tribunal-
secretaries..........................................................................................................................24
5. Practice Note for Administered Cases, On the Appointment of Administrative
Secretaries, Singapore International Arbitration Centre (2015), https://siac.org.sg/our-
rules/practice-notes/practice-note-for-administered-cases-on-the-appointment-of-
administrative-secretaries..................................................................................................23

6. Articles and Journals

1. BurcuOsmanoglu, Third-Party Funding in International Commercial Arbitration and
Arbitrator Conflict of Interest, Journal of International Arbitration 325, 350 (2015)......21
2. Celeste E & Salinas Quero, Investor-state disputes at the SCC, 7 (2017),
https://sccinstitute.com/media/178174/investor-state-disputes-at-scc-13022017-003.pdf.
...........................................................................................................................................29
3. Djakhongir Saidov, Method of Limiting Damages under the Vienna Convention on
International Sales of Goods, 14 Peace Int. Law Rev. 327 (Issue 2, 2002),
https://digitalcommons.pace.edu/cgi/viewcontent.cgi?article=1199&context=pilr..........17
4. Djakhongir Saidov, Methods of Limiting Damages under the Vienna Convention on
Contracts for the International Sale of Goods, 14 Pace Int'l L. Rev. 307 (Issue 2, 2002),
https://digitalcommons.pace.edu/cgi/viewcontent.cgi?article=1199&context=pilr..........17

MEMORIALfor RESPONDENT PAGE | XIII

 7TH NLIU JUSTICE R K TANKHA
MEMORIAL INTERNATIONAL MOOT COURT COMPETITION 2022

5. Dominik Horodyski, Third Party Funding in International Arbitration – Legal Problems

and Global Trends with a Focus on Disclosure Requirement 72 (2017),
https://doktoranci.uj.edu.pl/documents/1167150/0/ZN+Spol+NUMER+19_4_2017_Lega
l+Studies/ec7a9c56-2416-403b-8702-2f66a2008c8f#page=63........................................22
6. Dominik Horodyski, Third Party Funding in International Arbitration – Legal Problems
and Global Trends with a Focus on Disclosure Requirement 73 (2017),
https://doktoranci.uj.edu.pl/documents/1167150/0/ZN+Spol+NUMER+19_4_2017_Lega
l+Studies/ec7a9c56-2416-403b-8702-2f66a2008c8f#page=63........................................24
7. Gotanda, Punitive Damages: A Comparative Analysis, 42 Colum. J. Transnat‟l L.391
(2004)................................................................................................................................16
8. Humphrey Lloyd, Writing Awards – A Common Lawyer's Perspective, ICC Bull. 38, 38
(1994)................................................................................................................................28
9. John Gotanda, Awarding Costs and Attorneys' Fees in International Commercial
Arbitrations, 21 MICH. J. INT'L L. 25 (1999).................................................................30
10. John S. Kirkham, FORCE MAJEURE—DOES IT REALLY WORK?, 30 Rocky Mtn.Min.
L. Inst. ¶6.01, ¶6.02 (1984).................................................................................................4
11. Laurent Lévy &RégisBonnan, Third Party Funding: Disclosure, Joinder and Impact on
Arbitral Proceedings, ICC Dossier No. 752E 85 (2013)..................................................23
12. Matthias Scherer, First Reference to the IBA Guidelines on Conflicts of Interest in
International Arbitration ‐ Case Note on Swiss Supreme Court Decisions 4A_506/2007
& 4A_528/2007, 26 ASA Bull. 588-595 (2008)...............................................................22
13. Peter Schlechtriem& Petra Butler, UN Law on International Sales, Springer 213 (2009),
https://link.springer.com/content/pdf/bfm%3A978-3-540-49992-3%2F1.pdf.................16
14. Peter Schlechtriem, Non-Material Damages - Recovery under the CISG?, 19 Peace Int.
Law Rev. 89 (Issue 1, 2007), https://digitalcommons.pace.edu/cgi/viewcontent.cgi?
article=1061&context=pilr................................................................................................16
15. Polkinghorne & Rosenberg, The Role of the Tribunal Secretary in International
Arbitration: A Call for a Uniform Standard, International Bar Association (2014).........26
16. Simon Maynard, Laying the Fourth Arbitrator to Rest: Reevaluating the Regulation of
Arbitral Secretary, 34 William W. Park (ed), Arbitration International 173 – 183 (2018).
...........................................................................................................................................26

International Conventions, Rules and Statutes

MEMORIALfor RESPONDENT PAGE | XIV

 7TH NLIU JUSTICE R K TANKHA
MEMORIAL INTERNATIONAL MOOT COURT COMPETITION 2022

1. The Fidic Golden Principles, Fidic, 2019.

2. United Nations Convention On Contracts For The International Sale Of Goods, 1988.
3. The International Federation Of Consulting Engineers, 1999.
4. Singapopre International Arbitration Centre Rules, 2016.
5. Unidroit Priniples In International Sales Law, 2016.
6. IBA Guidelines On Conflict Of Interest, 2016.
7. Young ICCA Guide on Arbitral Secretaries.
8. LCIA Notes for Arbitrators, 2014.
9. ACICA Guideline on the Use of Tribunal Secretaries, 2017.
10. HKIAC Guidelines on the Use of a Secretary to the Tribunal, 2014.

Other Authorities
1. Note to Parties and Arbitral Tribunals on the Conduct of the Arbitration under the ICC
Rules of Arbitration ¶27 (2021), https://iccwbo.org/content/uploads/sites/3/2020/12/icc-
note-to-parties-and-arbitral-tribunals-on-the-conduct-of-arbitration-english-2021.pdf.. .21
2. Note to Parties and Arbitral Tribunals on the Conduct of the Arbitration under the ICC
Rules of Arbitration, International Chamber of Commerce ¶ 223 (2021)........................25
3. Note to Parties and Arbitral Tribunals on the Conduct of the Arbitration under the ICC
Rules of Arbitration, International Chamber of Commerce ¶ 223, 30 (2021)..................23
4. UNCITRAL Digest of Case Law on the United Nations Convention on Contracts for the
International Sale of Goods 2016, 337..............................................................................16
5. UNCITRAL Working Group III (Investor-State Dispute Settlement Reform), Rep. on the
Possible reform of investor-State dispute settlement (ISDS): Third-party funding –
Possible solutions, U.N. Doc. A/CN.9/WG.III/WP.172 (2019),
https://undocs.org/en/A/CN.9/WG.III/WP.172.................................................................21
6.

MEMORIALfor RESPONDENT PAGE | XV

 7TH NLIU JUSTICE R K TANKHA
MEMORIAL INTERNATIONAL MOOT COURT COMPETITION 2022

STATEMENT OF FACTS

PARTIES

Dabhol Infrastructure Projects [hereinafter “CLAIMANT”] headquartered and

incorporated under the Laws of Xander. It is a multinational construction company.

Louis Dreyfus Constructors & Suppliers [hereinafter “RESPONDENT”] is a semi-private

company incorporated in Rotaria. It has been involved in the business of supplying raw
materials and finished goods to major construction projects.

BACKGROUND AND THE AGREEMENT

CLAIMANT entered into a Project Infrastructure and Construction Agreement [hereinafter

“PICA”] with the Government of Braavos for the city construction of the capital city
Volantis. The RESPONDENT was chosen as a partner in this project for the supply of raw
materials and interior furniture. This arrangement was finalized in the form of Supply and
Design Agreement [hereinafter “SDA”] in January 2016.

DISPUTE

The CLAIMANT made overweening promises of delivering ready-to-use projects in an

unreasonable time frame. Certain hiccups occurred during the course of the project which are
quite natural in such massive infrastructure projects. But the CLAIMANT has attempted to
shift the blame for their inability to deliver. These delays were in fact a consequence of either
severe weather conditions or unrealistic time restraint imposed by the CLAIMANT.

Throughout the project, RESPONDENT has kept the CLAIMANT timely informed about the
progress made and the challenges faced. Each delay was explained to the CLAIMANT,
which they accepted with any substantial dispute. During the November of 2016,
RESPONDENT intimated the CLAIMANT about the unprecedented heat waves in both
MEMORIALfor RESPONDENT PAGE | XVI
 7TH NLIU JUSTICE R K TANKHA
MEMORIAL INTERNATIONAL MOOT COURT COMPETITION 2022

Braavos and Rotaria which was causing the workers to go on strike. The situation was
undoubtedly an exceptional one, as heatwaves are not common in Rotaria, and covered under
the force majeure doctrine.

To overcome this unexpected problem, the Parties came to an agreement that until the
heatwave gets over, focus would be shifted on Phase III interior design. By way of this
agreement, the parties revised the time frame and the RESPONDENT was allowed to
purchase materials from third-party suppliers.

During Phase III, CLAIMANT did not find the quality of delivered goods upto the mark.
RESPONDENT explained that the defects might have arisen during transportation and
storage. To address their concern, RESPONDENT promptly offered to carry out repairs on
site, to which the CLAIMANT agreed.

CLAIMANT was granted a three-month extension from the Government of Braavos on

account of the unprecedented heatwaves. This information would have helped the
RESPONDENT to ease a bit and further improve the project. But the CLAIMANT chose to
hide this information while pressuring the RESPONDENT to work under unreasonable time
constraint.

The Government accepted the handover of the project in December 2020. CLAIMANT’s
failure to deliver what they promised surfaced which damaged their reputation and business.
The claims of the respondent are meritless; they have initiated this arbitration only to salvage
their reputation.

DISCLOSURE OF FUNDER

The CLAIMANT did not disclose that their preset claim is funded by a wealthy individual
who happens to be closely related to the CLAIMANT appointed Arbitrator. This raises
questions on the impartiality and independence of the Arbitrator which can cast aspersions on
the proceedings. Moreover, the Funder has interests in many companies and he has
transactions with multiple firms. These facts make evident that the CLAIMANT should have
disclosed the third party funding relationship.

MEMORIALfor RESPONDENT PAGE | XVII

 7TH NLIU JUSTICE R K TANKHA
MEMORIAL INTERNATIONAL MOOT COURT COMPETITION 2022

MEMORIALfor RESPONDENT PAGE | XVIII

 7TH NLIU JUSTICE R K TANKHA
MEMORIAL INTERNATIONAL MOOT COURT COMPETITION 2022

ISSUES RAISED

ISSUE 1

WHETHER THE CISG OVERRULES THE PROVISIONS OF THE FIDIC STANDARD FORM AGREED
BETWEEN THE PARTIES? DOES THE PROVISION ON FORCE MAJEURE UNDER FIDIC OVERRULE
THE CISG PROVISION ON FORCE MAJEURE?

ISSUE 2

WHETHER THE RESPONDENT’S DELAY IN PROVIDING RAW MATERIALS AND SUBSEQUENT

FAILURE TO PROVIDE GOOD QUALITY INTERIOR PRODUCTS IN PHASE III HAVE BREACHED THE
SDA?

ISSUE 3

WHETHER THE CLAIMANT SHOULD BE GRANTED GENERAL AND EXEMPLARY DAMAGES FOR
LOSSES SUFFERED?

ISSUE 4

WHETHER THE CLAIMANT IS REQUIRED TO DISCLOSE ITS FUNDING RELATIONSHIP?

ISSUE 5

WHETHER THE ROLE OF THE ADMINISTRATIVE SECRETARY MR. JAMES ROSS NEEDS TO BE
REDUCED OR DOES THE ADMINISTRATIVE SECRETARY NEED TO BE REPLACED IN LIGHT OF
THE ALLEGATIONS THAT THE SECRETARY HAS EXCEEDED HIS MANDATE?

ISSUE 6

WHETHER THE RESPONDENT SHOULD BE GRANTED LEGAL COSTS IN THE ARBITRATION DUE
TO THE CONDUCT OF THE OTHER PARTY AND/OR ITS SUCCESS ON THE
SUBSTANTIVE/PROCEDURAL ISSUES IN THIS ARBITRATION OR IS THIS BARRED BY THE
AGREEMENT BETWEEN THE PARTIES TO SHARE COSTS?

MEMORIALfor RESPONDENT PAGE | XIX

 7TH NLIU JUSTICE R K TANKHA
MEMORIAL INTERNATIONAL MOOT COURT COMPETITION 2022

SUMMARY OF ARGUMENTS

ISSUE 1: THAT THE PROVISIONS OF THE FIDIC STANDARD FORM AGREED

BETWEEN THE PARTIES OVERRULES CISG AND THAT THE PROVISION ON
FORCE MAJEURE UNDER FIDIC OVERRULE THE CISG PROVISION ON FORCE
MAJEURE.
It is submitted that the provision of the FIDIC standard Form overrules CISG and also the
provisions on force Majeure under FIDIC overrule the CISG provisions on force majeure as the
agreement was essentially for sale of goods and the type of transaction falls within the CISG’s
sphere, under Article 1. Further, the scope of application of FIDIC is restricted just to the
contract for civil engineering construction. Thus, there isthe overriding application of CISG
provisions in the instant matter as the provisions of CISG are applicable in the instant matterand
second, that the facts in the instant matter are covered under CISG provision on force majeure
overruling the provision on force majeure under FIDIC.

ISSUE 2: THAT ON PART OF RESPONDENT THERE WAS NO DELAY IN

PROVIDING RAW MATERIALS AND THERE WAS NO SUBSEQUENT FAILURE TO
PROVIDE GOOD QUALITY INTERIOR PRODUCTS IN PHASE III THUS THE
RESPONDENT HAVE NOT BREACHED THE SDA
It is submitted that the RESPONDENT has not breached the SDA as there was no delay in
providing raw materials and there was no subsequent failure on part of RESPONDENT to
provide good quality interior products in phase III,becausethe alleged delay is excusable given
that it was explained and was in consonance with modified terms of the contract under Article
29 (1) of CISG. Further, the delivered quality of interior goods was not as inferior as to
constitute fundamental breach of the SDAand lastly,the CLAIMANT has failed to exhibit high
standards of integrity as required under SDA.

ISSUE 3: THAT THE CLAIMANT SHOULD NOT BE GRANTED ANY GENERAL AND
EXEMPLARY DAMAGES FOR LOSSES SUFFERED
It is submitted that the CLAIMANT should not be granted any general and Exemplary damages
as the CLAIMANT has manipulated facts to present an extremely distorted picture and a legal
position that deserves to be rejected by the arbitral tribunal. Consequently, it is argued that the

MEMORIALfor RESPONDENT PAGE | XX

 7TH NLIU JUSTICE R K TANKHA
MEMORIAL INTERNATIONAL MOOT COURT COMPETITION 2022

CLAIMANT is not entitled to any sort of damage- general or exemplary as there is no breach of
SDA on part of the RESPONDENT. Further, there is contributory negligence on part of the
CLAIMANT and the peculiar facts of the instant matters exempt the RESPONDENT to pay any
general damages.

ISSUE 4: THAT THE CLAIMANT IS REQUIRED TO DISCLOSE ITS FUNDING RELATIONSHIP

It is submitted that requirement of an impartial and independent tribunal is one of the

fundamental principles in international arbitration as the recent trend under international
arbitration along with specific guidelines such as IBA mandatorily requires the parties to
disclose their funding relation as this disclosure of third-party funding is necessary to evaluate
possible conflicts of interest and its absence can derail the arbitral proceedings on ground of
exists an appearance of bias the tribunal. Thus, the CLAIMANT must be directed to disclose its
funding relationship.

ISSUE 5: THAT THE ROLE OF THE ADMINISTRATIVE SECRETARY MR. JAMES ROSS EITHER
NEEDS TO BE REDUCED OR NEEDS TO BE REPLACED IN LIGHT OF THE FACT THAT THE
SECRETARY HAS EXCEEDED HIS MANDATE

It is submitted that the duties or tasks performed by administrative secretaries must be limited to
administrative work and separate from any decision-making role which can only be performed
by arbitral tribunals. Further, a plethora of arbitrational laws expressly prohibits drafting of parts
of the Award, evaluating the evidence and submissions of the parties. Notably, it is also settled
that that the role of tribunal secretary must be expressly agreed to by the parties that does not
exist in the instant case. Thus, the role of the administrative secretary Mr. James Ross either
needs to be reduced or needs to be replaced.

ISSUE 6: THAT THE RESPONDENT SHOULD NOT BEAR THE LEGAL COSTS IN THE
ARBITRATION AS IS NOT BARRED BY THE AGREEMENT BETWEEN THE PARTIES TO SHARE
COSTS

It is submitted that the CLAIMANT’S have used this arbitration proceeding to merely harass
and implicate the RESPONDENT having mala-fide conduct throughout as evident from his
pattern of concealment of material facts. Also, as the alleged grounds for putting up this
arbitration are unfounded thus on account of CLAIMANT’s failure to prove both substantive

MEMORIALfor RESPONDENT PAGE | XXI

 7TH NLIU JUSTICE R K TANKHA
MEMORIAL INTERNATIONAL MOOT COURT COMPETITION 2022

and procedural issues in light of the loser pays principle, and the tribunal must order that the
RESPONDENT should not bear the legal costs in the arbitration.

MEMORIALfor RESPONDENT PAGE | XXII

 7TH NLIU JUSTICE R K TANKHA
MEMORIAL INTERNATIONAL MOOT COURT COMPETITION 2022

ARGUMENTS ADVANCED

ISSUE [1] THAT THE CISG OVERRULES THE PROVISIONS OF THE FIDIC
STANDARD FORM AGREED BETWEEN THE PARTIES AND THAT
THE CISG PROVISION ON FORCE MAJEURE OVERRULE THE
PROVISION ON FORCE MAJEURE UNDER FIDIC

It is submitted that the agreement between the CLAIMANT & the RESPONDENT was solely
for the supply of raw materials and the interior furniture. 1Thus, was essentially for sale of goods
that undisputedly falls within the CISG’s sphere.On the other hand, the scope of application of
FIDIC is restricted just to the contract for civil engineering construction having no application in
the instant matter.Also, the CISG internal rules of applicability in Article 1 having its overriding
effect nullify the application of other law.2To further proof the overriding application of CISG
provisions in the instant matter following contentions are presented: first, that the provisions of
CISG are applicable in the instant matter [1] and second, that the facts in the instant matter are
covered under CISG provision on force majeure overruling the provision on force majeure under
FIDIC [2].

1. THAT THAT THE PROVISIONS OF CISG ARE APPLICABLE IN THE INSTANT MATTER.

Notably, arbitration laws and rules attribute great importance to the parties' choice of law and
will apply the CISG as the parties agree that their contract is to be governed by it. 3 In arbitration
proceedings, if the parties to an international sales contract were to choose the law of a
contracting state to the CISG as the law governing the contract, the arbitration tribunal would
apply the CISG as an integral part of the governing law.4

1
Case Record, Notice of Arbitration and Statement of Claim, ¶11, 7.
2
CISG, 1988, PREAMBLE; James J. Fawcett et al., International Sale of Goods in the Conflict of Laws 906, 912
(Oxford 2005).
3
Case Record, Exhibit C2, Clause X, 18.
4
Steel bars case, ICC Arbitration Case No. 6653 (1993).
MEMORIALfor RESPONDENT PAGE | 1
 7TH NLIU JUSTICE R K TANKHA
MEMORIAL INTERNATIONAL MOOT COURT COMPETITION 2022

In the present case Pippo& Co. who was appointed to do due diligence advised Dabhol that since
the contract included a supply of goods, so the best course would be to apply CISG, 1988. 5Under
clause X of the SDA it is mentioned that Agreement shall be governed by the CISG, 1988. 6 Also,
the prerequisites for application of CISG are also fulfilled in the instant matter as:

A. THAT THE REQUIREMENT OF HAVING PLACE OF BUSINESS IN MEMBER STATE IS

FULFILLED.

The Convention applies to every kind of contracts for the international sale of goods that meet a
specific internationality requirement set forth in article 1 (1). A contract for the sale of goods is
considered international when the parties have at the moment of the conclusion of the contract, 7
their relevant places of business in different States. 8 The concept of "place of business" is critical
in the determination of internationality.9 According to several courts, "place of business" can be
defined as “the place from which a business activity is de facto carried out, this requires certain
duration and stability as well as a certain amount of autonomy.” 10 At one instance, the court
stated that the relevant places of business of the parties are their “principal places of business”.11

5
Case Record, Notice of Arbitration and Statement of Claim, ¶12, 7.
6
Case Record, Exhibit C2, Clause X, 18.
7
Mitias d.o.o. v. SolideaS.r.l, CLOUT case No. 867 (Tribunale di Forlì, Italy 2008), https://cisg-online.org/search-
for-cases?caseId=7647; Al Palazzo S.r.l. v. Bernardaud S.A., CLOUT case No. 608 (Tribunale di Rimini, Italy
2002), https://cisg-online.org/search-for-cases?caseId=6669.
8
DSM Dyneema B.V. v. ElectromichanikiKimis EPE, Case no. 4505/2009 (PolimelesProtodikioAthinon, Greece
2009), https://cisg-online.org/search-for-cases?caseId=8144; RheinlandVersicherungen v. Atlarexs.r.l., CLOUT case
No. 378 (Tribunale di Vigevano, Italy 2000), https:// cisg-online.org/search-for-cases?caseId=6461; Used car case I,
CLOUT case No. 168 (Oberlandesgericht Köln, Germany 1996), https://cisg-online.org/search-for-cases?
caseId=6228; Chinchilla furs case, CLOUT case No. 106 (ObersterGerichtshof, Austria 1994), https://cisg-
online.org/search-for-cases?caseId=6096.
9
Md. Zahidul Islam, Applicability of the Convention on Contracts for International Sale and Goods (CISG), IOSR
Journal Of Humanities And Social Science 78-81 (2013),https://www.iosrjournals.org/iosr-jhss/papers/Vol14-
issue3/K01437881.pdf.
10
Mitias v. Solidea S.r.L, CLOUT Case no.867, (Tribunale di Forlì, Italy, 2008),
https://www.uncitral.org/clout/clout/data/ita/clout_case_867_leg-2592.html.OstroznikSavo et al. v. La Faraona soc.
coop. a.r.l. et al., CLOUT case No. 651 (Tribunale di Padova, Italy, 2005), https://cisg-online.org/search-for-cases?
caseId=6891; Construction materials case, CLOUT case No. 904 (Tribunal Cantonal Jura, Switzerland, 2004),
https://cisg-online.org/search-for-cases?caseId=6889; Walter Bau AG et al. v. General KommerzHandelsges. mbH,
CLOUT case No. 746 (Oberlandesgericht Graz, Austria, 2004), https://cisg-online.org/search-for-cases?
caseId=7546; Suits case, CLOUT case No. 930 (Tribunal cantonal du Valais, Switzerland, 2006); Chinchilla furs
case, CLOUT case No. 106 (ObersterGerichtshof, Austria 1994), https://cisg-online.org/search-for-cases?
caseId=6096; Pizza Boxes Case, CLOUT case No. 360 (Amtsgericht Duisburg, Germany, 2000), https://cisg-
online.org/search-for-cases?caseId=6602
11
ECEM European Chemical Marketing B.V. v. The Purolite Company, Civil Action 05-3078, (U.S. District Court,
Eastern District of Pennsylvania, USA, 2010), http://www.unilex.info/cisg/case/1511.
MEMORIALfor RESPONDENT PAGE | 2
 7TH NLIU JUSTICE R K TANKHA
MEMORIAL INTERNATIONAL MOOT COURT COMPETITION 2022

In the present case, as the place of business of the CLAIMANT and the RESPONDENT were
located in two different states Rotaria and Xandar respectively. It can be safely inferred that the
requirement of internationality of contract is fulfilled. Additionally, these two states namely
Rotaria and Xandar were parties to CISG, 1988.12

B. THAT THERE IS SUPPLY OF GOODS

Article 1 (1) of CISG states "this Convention applies to contracts of sale of goods between
parties whose places of business are in different States." It is settled that, "goods"13 are items that
are, at the moment of delivery, "moveable and tangible", 14regardless of their shape and whether
they are solid,15 used or new,16 inanimate or alive.17The Convention also covers contracts for the
delivery of goods by instalments.18In the present case also the SDA was for the supply of raw
materials alongside the interior furniture for the project. 19 As the subject- matter of the contract
can be very well said to be covered under the definition of ‘goods’. Thus, this condition for
application of the convention is fulfilled in the instant case.

12
Case Record, Notice of Arbitration and Statement of Claim, ¶28, 9.
13
Al Palazzo S.r.l. v. Bernardaud S.A., CLOUT case No. 608 (Tribunale di Rimini, Italy 2002), https://cisg-
online.org/search-for-cases?caseId=6669; Joaquim Marques Roque v. Holding Manin Rivière S.a.r.l., CLOUT case
No. 152 (Courd’appel de Grenoble, France, 1995), https://cisg-online.org/search-for-cases?caseId=6132.
14
PVC case II, CLOUT case No. 328 (Kantonsgericht des Kantons Zug, Switzerland, 1999), https://cisg-
online.org/search-for-cases?caseId=6459; Tessile 21 S.r.l. v. Ixela S.A., CLOUT case No. 380 (Tribunale di Pavia,
Italy, 1999), https://cisg-online.org/search-for-cases?caseId=6620;Used car case I, CLOUT case No. 168
(Oberlandesgericht Köln, Germany 1996), https://cisg-online.org/search-for-cases?caseId=6228; Market Research
Study Case, CLOUT case No. 122 (Oberlandesgericht Köln, Germany, 1994).
15
Propane gas case, CLOUT case No. 176 (ObersterGerichtshof, Austria, 6 February 1996),
https://cisg-online.org/search-for-cases?caseId=6198.
16
CLOUT case No. 867 (Tribunale di Forlì, Italy, 11 December 2008),
http://cisgw3.law.pace.edu/cases/081211i3.html; CLOUT case No. 168 (Oberlandesgericht Köln, Germany, 21 May
1996).
17
Mitias v. Solidea S.r.L, CLOUT case No.867, (Tribunale di Forlì, Italy, 2008),; Annika Gustavsson v. LRF N.V.,
CLOUT case No. 992, (Københavns Byret,Denmark, 2007); Ostroznik Savo (Vzerja Kuncev) e Eurotrafic s.r.l. v.
La Faraona soc. coop. a r. l., CLOUT case No. 651, (Tribunale di Padova, Italy, 2005),; Unknown, CLOUT case No.
28O, (Thüringer Oberlandesgericht Jena, Germany,1998); Société Productions S.C.A.P. v Roberto Faggioni,
CLOUT case No. 312, (Cour d’ appel de Paris, France,1998); Unknown, CLOUT case no.106,(Oberster
Gerichtshof, Austria, 1994); Nieuwenhoven Viehandel GmbH v. Diepeveen - Dirkson B.V., CLOUT case No.100,
(Rechtbank Arnhem, Netherland, 1993).
18
Czech cheese case, CLOUT case No. 293 (Schiedsgericht der Hamburger freundlichen Arbitrage, Germany,
1998), https://cisg-online.org/search-for-cases?caseId=6585; Macedonian lambskin coats case, CLOUT case No.
251 (Handelsgericht des Kantons Zürich, Switzerland, 1998), https://cisg-online.org/search-for-cases?caseId=6386;
Umbrellas case, CLOUT case No. 238 (ObersterGerichtshof, Austria, 1998); Chinese goods case, CLOUT case No.
166 (Arbitration—Schiedsgericht der Handelskammer Hamburg, Germany, 1996), https://cisg-online.org/search-for-
cases?caseId=6162; BRI Production "Bonaventure" S.a.r.l. v. Pan African Export, CLOUT case No. 154
(Courd’appel de Grenoble, France, 1995), https://cisg-online.org/search-for-cases?caseId=6129.
19
Case Record, Notice of Arbitration and Statement of Claim, ¶11, 7.
MEMORIALfor RESPONDENT PAGE | 3
 7TH NLIU JUSTICE R K TANKHA
MEMORIAL INTERNATIONAL MOOT COURT COMPETITION 2022

2. THAT THE FACTS IN THE INSTANT MATTER ARE COVERED UNDER CISG PROVISION ON
FORCE MAJEURE OVERRULING THE PROVISION ON FORCE MAJEURE UNDER FIDIC.

The provision of CISG under article 79 provides that under certain extraordinary circumstances,
a party's obligation to perform may be excused if an unforeseen and un-avoidable impediment,
beyond the non-performing party's control, obstructed performance. Once invoked, the article 79
excuse remains in effect throughout “the period during which the impediment exists.” The
concept of force majeure resembles the circumstances that are “beyond the control and without
the fault or negligence” of the non-performing party.20

In the present case, the project continued to be on track, until it was intimated that they had
significant issues with weather conditions due to unprecedented heat waves, which was causing
their workers to go on strike.21 Since the condition of the heat wave was extraordinary,
unforeseeable and beyond the control of the RESPONDENT, therefore, the exemption under
Article 79 of CISG, 1988 can be claimed by the RESPONDENT.

A. THAT THE UNPRECEDENTED HEAT WAVE FALLS UNDER FORCE MAJEURE.

Common examples of force majeure include Acts of God, unforeseen circumstances,

governmental or judicial actions, and epidemics.22In order to invoke a force majeure clause a
party must establish that the excusing event, first, actually prevented performance. Here, due to
the excessive heat in Rotaria, the workers went on strike as it was not feasible for them to work
under such a working environment. Notably, there are several studies which have reported
significant health risks of working in this weather 23thus, the RESPONDENT was left with no
option but to cease the work further requesting for extension of timeline. And second, that it was
not reasonably within the control of the non-performing partyThe term “reasonable control”
involves two separate aspects. First, that “a party may not affirmatively cause the event that

20
United States v. Brooks-Callaway Co., 318 U.S. 120, 123-24 (1943); John S. Kirkham, FORCE MAJEURE—
DOES IT REALLY WORK?,30 Rocky Mtn.Min. L. Inst. ¶6.01, ¶6.02 (1984).
21
Case Record, Exhibit C8, 25.
22
Nissho-Iwai Co., Ltd. v. Occidental Crude Sales, Inc., 729 F.2d 1530, 1539 (5th Cir. 1984); Harris Corp. v.
National Iranian Radio &Television, 691 F.2d 1344, 1347 (11th Cir. 1982); Sabine Corp. v. ONG Western Inc., 725
F. Supp. 1157, 1166 (W.D.Oka. 1989); John S. Kirkham, FORCE MAJEURE—DOES IT REALLY WORK?,30
Rocky Mtn.Min. L. Inst. ¶6.03, (1984).
23
Case Record, Exhibit C8, 25.
MEMORIALfor RESPONDENT PAGE | 4
 7TH NLIU JUSTICE R K TANKHA
MEMORIAL INTERNATIONAL MOOT COURT COMPETITION 2022

prevents his performance24 and second, that the non-performing party must have taken
“reasonable steps” to prevent the excusing event. Both these aspects have been taken care of by
the RESPONDENT in the instant matter.

I. THAT THE RESPONDENT HAS TAKEN REASONABLE STEPS.

In the present case the fact that the RESPONDENT agreed to focus on internal design for the
remaining months of the heat wave and immediately resume work once the heat wave was over
and also they would send whatever raw materials they already had, and procure as much steel as
possible from other producers to minimize the shortage of raw material in the meantime 25,
depicts that they have taken all reasonable steps to mitigate the effects of an unprecedented heat
wave and adhere to timeline.

II. THAT THE RESPONDENT HAS NO ROLE IN OCCURRENCE OF THE HEAT-WAVE.

The heat wave being the act of natural phenomenon was undoubtedly beyond the control of the
RESPONDENT. Here the aspect of foreseeability of the occurrence of the heat wave cannot be
taken against the RESPONDENT as in case of Sabine Corporation v. ONG Western, Inc., a
federal district court held that ONG Western, Inc. was excused from performing under its take-
or-pay contract with Sabine Corporation although the excusing event was foreseeable. In
reaching its decision, the court reasoned that foreseeability was irrelevant since the parties’ force
majeure clause did not require that an event be unforeseeable to excuse performance.26

In the present case, although Rotaria has seen heat waves before, it is not a frequent occurrence. 27
Therefore, its foreseeability cannot be used to evade the exemption. This is in consonance with
the text of Article 79 CISG which provides that an impediment must be unavoidable as a
requirement for an excuse for non-performance 28, making it unreasonable to expect the non-
performing party to fulfil its contractual promise.

24
Nissho-Iwai Co., Ltd. v. Occidental Crude Sales, Inc., 729 F.2d 1540 (5th Cir. 1984).
25
Case Record, Exhibit C10, 27.
26
Sabine Corp. v. ONG Western, Inc., 725 F.Supp. 1157 (10th Cir. 1989).
27
Case Record, Procedural Order No. 03, Clarification No. 66, 52.
28
CISG, 1988, Art. 79.
MEMORIALfor RESPONDENT PAGE | 5
 7TH NLIU JUSTICE R K TANKHA
MEMORIAL INTERNATIONAL MOOT COURT COMPETITION 2022

ISSUE [2] THAT ON PART OF RESPONDENT THERE WAS NO DELAY IN

PROVIDING RAW MATERIALS AND THERE WAS NO SUBSEQUENT
FAILURE TO PROVIDE GOOD QUALITY INTERIOR PRODUCTS IN
PHASE III THUS THE RESPONDENT HAVE NOT BREACHED THE SDA

There are several factors that have excused the RESPONDENT from any breach of SDA and
thus the RESPONDENT submits that there was no delay in providing raw materials and there
was no subsequent failure on part of RESPONDENT to provide good quality interior products in
phase III on following contentions: first, that the alleged delay is excusable given that it was
explained and was in consonance with modified terms of the contract under Article 29 (1) of
CISG [1]; second, that the delivered quality of interior goods was not as inferior as to constitute
fundamental breach of the SDA [2] and third, that the CLAIMANT has failed to exhibit high
standards of integrity as required under SDA [3]

1. THAT THE ALLEGED DELAY IS EXCUSABLE GIVEN THAT IT WAS EXPLAINED AND WAS IN

CONSONANCE WITH MODIFIED TERMS OF THE CONTRACT UNDER ARTICLE 29 (1) OF

CISG.

To justify the alleged delay the RESPONDENT submits the following arguments:

A. THAT THE DELAY CAUSED IN THE DELIVERY OF RAW MATERIALS IN PHASE I WAS AN

‘EXPLANATORY DELAY’.

It is submitted that the RESPONDENT has time and again communicated the whereabouts of the
project to the CLAIMANT via frequent emails. In the same vein, the moment the unprecedented
unanticipated heat waves occurred the RESPONDENT through its email dated November 17,
2016 informed the CLAIMANT that there was excessive heat which was a result of an
unexpected heat wave in Rotaria29. Notably, the unexpected weather conditions are clearly an
exceptional case, which is covered under the act of god doctrine, which was even accepted by the
CLAIMANT.30 Additionally, the CLAIMANT themselves also agreed to extend all the timelines
and other deadlines under the contract in the case of the exceptional circumstances as stated in
29
Case Record, Exhibit C8, 25.
30
Case Record, Exhibit C9, 26.
MEMORIALfor RESPONDENT PAGE | 6
 7TH NLIU JUSTICE R K TANKHA
MEMORIAL INTERNATIONAL MOOT COURT COMPETITION 2022

the Clause 1631 of the SDA agreement.32 Therefore, as the delay caused in providing raw material
was because of an unexpected weather conditions, thus is covered under force majeure under
Article 79 of CISG, 1988.

Also, the delay made on the part of RESPONDENT is well covered under clause 16 of SDA
Agreement and ‘the requirement of providing the reason for the delay’ under the said clause has
also been adhered to. It is, thus, submitted that there has been no breach of the time and delay
clause under the SDA Agreement on behalf of the RESPONDENT.

B. THAT THE ALLEGED DELAY WAS IN CONSONANCE WITH MODIFIED TERMS OF THE

CONTRACT UNDER ARTICLE 29 (1) OF CISG.

It is humbly submitted that there has been no breach of contract by the RESPONDENT as there
were subsequent ‘modifications’ made to the SDA agreement under Article 29(1) of CISG, that
was evident by virtue of from the virtue of continuous contract emails that were sent. This is
undisputed that almost every delay caused by the RESPONDENT is a consequence of either
severe weather conditions or unrealistic time constraints imposed upon them by the CLAIMANT
to deliver goods and materials.33 Further, these delays in performance did not amount to any
breach for the reason that the buyer (herein the CLAIMANT) and the seller (herein the
RESPONDENT) appear to have revised the contract as a matter of law under the CISG 34, through
their continued dealing, based on the email chains reflected in the evidentiary record 35 and as per
the modified terms of the agreement there was no failure on the part of the RESPONDENT
making the allegation of breach of SDA agreement unsubstantiated.

2. THAT THE DELIVERED QUALITY OF INTERIOR GOODS WAS NOT AS INFERIOR AS TO

CONSTITUTE FUNDAMENTAL BREACH OF THE SDA.

To proof that the delivered quality of interior goods was not as inferior as to constitute
fundamental breach of SDA the RESPONDENT submits the following arguments:

31
Case Record, Exhibit C2, Clause XVI, 25.
32
Case Record, Response to Notice of Arbitration and Statement of Defence, ¶7, 32.
33
Case Record, Response to Notice of Arbitration and Statement OfDefence, ¶7, 32.
34
CISG, 1988, Art. 29(1).
35
Case Record, EXHIBITS C1 - C12.
MEMORIALfor RESPONDENT PAGE | 7
 7TH NLIU JUSTICE R K TANKHA
MEMORIAL INTERNATIONAL MOOT COURT COMPETITION 2022

A. THAT THE APPLICATION OF PRINCIPLE OF ‘LIMIT TO SACRIFICE’ RESTRICTS THE

CLAIMANT TO EXPECT ANYTHING MORE THAT WHAT HAS BEEN ALREADY DONE BY THE
RESPONDENT.

As proved in earlier issues, there is no doubt that the excessive heat wave so occurred in Rotaria
has made the situation qualify as force majeure under Article 79 CISG. Rule says that the
disadvantaged party who wants to invoke a defense under Article 79 CISG must prove that the
situation of changed contractual circumstances is a situation, which is severe enough to relieve
the party of its duty to perform the obligation. This is often mentioned as “limit of sacrifice” 36
beyond which the disadvantaged party should not be any more expected to perform the
contract.37 Therefore, the principle of pacta sunt servanda must be disregarded by accepting the
fact that performance of contract has become impractical for the disadvantaged party and it is
enough to exempt them (the disadvantaged party) from any liability by the virtue of Article 79
CISG. The party's defense must be accepted if the performance of contract has become
excessively onerous or beyond the “limit of sacrifice”, which is why the promisor should not be
any more expected to perform its obligation. 38In a situation where the seller assumes the
obligation to deliver certain amount of goods to the buyer but cannot perform his obligation due
to unforeseeable circumstances, then the seller has all the rights to obtain the goods from another
source. Also, once the seller exhausts his alternative to outsource the amount of said goods then
it would not be reasonable to expect anything more from him as the circumstances reaches the
relevant threshold or the so-called “limit of sacrifice”.39

In the present case, both the parties have accepted that there exists an unfavorable situation that
can be categorically said to fall within the definition of force majeure. 40 Moreover, the
CLAIMANT cannot deny that they have repeatedly stressed on the time sensitive nature of the
contract. However, even under such pressing and excessively onerous circumstances the
RESPONDENT has tried to the best of its ability to fulfill the contractual obligation. The
36
Ingeborg Schwenzer, Commentary on the UN Convention on the International Sales of Goods, Art. 79 (2nd ed.
2005).
37
Ingeborg Schwenzer, Commentary on the UN Convention on the International Sales of Goods, Art. 79 (2nd ed.
2005).
38
Ingeborg Schwenzer, Force Majeure & Hardship in International Sales Contracts Wider Perspective, 714 (2010).
39
Ingeborg Schwenzer, Commentary on the UN Convention on the International Sales of Goods, 1142 (4th ed.
2016).
40
Case Record, Exhibit R2, 36.
MEMORIALfor RESPONDENT PAGE | 8
 7TH NLIU JUSTICE R K TANKHA
MEMORIAL INTERNATIONAL MOOT COURT COMPETITION 2022

RESPONDENT, even, procured some furniture from outside markets 41 just to make sure that the
project does not get delayed.

B. THAT THE NON-FULFILMENT OF MINOR PART OF CONTRACT DOES NOT QUALIFY AS

FUNDAMENTAL BREACH GIVEN THAT THE RESPONDED HAS AVAILED THE PRINCIPLE OF

‘OFFER TO CURE’

At the outset, it is submitted that if only a minor part of the contract is finally not performed for
example, one delivery out of several deliveries is not made as in the present case, 42 and then the
failure to perform is a simple, non-fundamental breach of contract.43 Thus, none of the alleged
irregularities constitute fundamental breach of the SDA agreement at the RESPONDENT’s end.
This is because the RESPONDENT has used the ‘offer to cure’ mechanism. As, the German
Court of Appeals of Koblenz held that fundamental breach does not occur if there is a serious
offer to cure by the seller. 44 Notably, Courts are reluctant to consider a breach fundamental when
the seller offers and effects speedy repair without any inconvenience to the buyer. 45 Court
decisions on this point have found that a non-conformity concerning quality remains a mere non-
fundamental breach of contract as long as the buyer-without unreasonable inconvenience can use
the goods.46

In the case in hand, due to the time sensitive nature of the contract which the CLAIMANT has
repeatedly stressed on throughout the discharge of this contract, the RESPONDENT was left
with no other option but to manufacture the goods in a bit of a haste and therefore there may be
some small defects. Further some of these furniture items may also have been damaged in

41
Case Record, Exhibit C12, 29.
42
Case Record, Procedural Order No. 3, Clarification No. 117, 58.
43
Calzaturificio Piceno di Roberto Catinari&UvaldoRaccosta v. Vivace Mode GmbH, CLOUT case No. 275
(Oberlandesgericht Düsseldorf, Germany, 1997), https://cisg-online.org/search-for-cases?caseId=6357.
44
Unknown, CLOUT case No.282, (Oberlandesgericht Koblenz, Germany, 1997),
https://www.uncitral.org/clout/clout/data/deu/clout_case_282_leg-1505.html.
45
Joaquim Marques Roque v. Holding Manin Rivière S.a.r.l., CLOUT case No. 152 (Courd'appel, Grenoble, France,
1995), https://cisg-online.org/search-for-cases?caseId=6132; Acrylic blankets case, CLOUT case No. 282
(Oberlandesgericht Koblenz, Germany, 1997), https://cisg-online.org/search-for-cases?caseId=6230.
46
ThyssenKrupp Metallurgical Products GmbH v. Sinochem International (Overseas) Pte Ltd, Min Si Zhong Zi No.
35 Civil Judgment, (Supreme People's Court, People's Republic of China, 2014); Cobalt sulphate case, CLOUT case
No. 171 (Bundesgerichtshof. Germany. 1996), https://cisg-online.org/search-for-cases?caseId=6113; Frozen meat
case, CLOUT case No. 248 (Bundesgericht, Switzerland. 1998), https://cisg-online.org/search-for-cases?
caseId=6384.
MEMORIALfor RESPONDENT PAGE | 9
 7TH NLIU JUSTICE R K TANKHA
MEMORIAL INTERNATIONAL MOOT COURT COMPETITION 2022

transportation given that these items are far more delicate than the raw materials. 47 This transit
damage was however, put right by the RESPONDENT when they sent their workers to repair the
damaged goods on site after obtaining consent from the CLAIMANT. Thus, there has been no
breach of the SDA agreement on alleged grounds.

3. THAT THE CLAIMANT HAS FAILED TO EXHIBIT HIGH STANDARDS OF INTEGRITY AS

REQUIRED UNDER SDA.

Admittedly, under the SDA there was a strict sense of stipulation that both the Buyer and the
Seller will maintain the highest standards of integrity in their dealings. 48 Further, one of the
general principles of the Convention lay emphasis on the observance of good faith in
international trade.49 Good faith includes the parties conduct, formation, and performance of
contract.50 Notably, it is settled that the parties’ duty of good faith and fair dealing can play an
important role in resolving the adverse situation under the CISG governed contract. 51
Consequently, the promisee (herein the CLAIMANT) was under the obligation to cooperate with
the promisor (herein the RESPONDENT) given that there exists unexpected weather conditions
that were clearly an exceptional case, covered under the act of god doctrine.52

The RESPONDENT categorically submits the following incidents where the CLAIMANT has
failed to adhere to the governing principle of ‘good-faith’ acting with complete malafide intent:

A. THAT THE CLAIMANT HAS CONCEALED MATERIAL FACT SUCH AS EXTENSION IN

DEADLINEIMPOSING UNREASONABLE TIME CONSTRAINT ON THE RESPONDENT.

It is submitted that the Right from the negotiation stage of the contract, 53 the CLAIMANT made
lofty promises of delivering several completed projects within an unreasonable time frame and at
various points during the contract attempted to implicate the RESPONDENT for their inability to
47
Case Record, Exhibit C12, 29.
48
Case Record, Exhibit C2, 15.
49
CISG, 1988, Art. 7(1).
50
C. H. BECK, HART, & NOMOS, UN Convention on Contracts for the International Sale of Goods (CISG) 125
(Stefan Kröll et al. eds., 2nd ed. 2018).
51
Ingeborg Schwenzer & Peter Schlechtriem, Commentary on the UN-Convention on the International Sale of
Goods (CISG), Art.79 109 (2nd ed.2005).
52
Case Record, Response to Notice of Arbitration and Statement of Defence, ¶7, 32.
53
Case Record, Procedural Order No. 04, Clarification No. 9, 61.
MEMORIALfor RESPONDENT PAGE | 10
 7TH NLIU JUSTICE R K TANKHA
MEMORIAL INTERNATIONAL MOOT COURT COMPETITION 2022

deliver.54 Duty of good faith and its breach can prevent the promisee to avoid the contract if the
court finds that the promisor was caught in an unfavourable adverse situation wherein the
performance of the contract became burdensome, and despite having this knowledge the
promisee refused to modify the contract in good faith.55

Similar is the situation in the present case, wherein, the promisee (herein the CLAIMANT) having
complete knowledge of the force majeure situation acted in bad faith. This was evident from the
fact that the CLAIMANT has concealed the material fact concerning the extension of three
months not only once, but twice, under PICA Contract completion date 56 so claimed by
CLAIMANT from the Government of Bravos on 22/12/2016 and 22/06/2020 57 from the
promisor (herein the RESPONDENT). Alongside, it is also true that the CLAIMANT has put the
RESPONDENT under unreasonable time constraint, right from the negotiation stage of the
contract.58 There is no doubt that if the CLAIMANT would have clearly communicated about
this extension,59 all the deliverables would have been made available on the contractually agreed
timeline. Also, there would have been no question posed on the quality of the raw materials as
then the RESPONDENT would have given enough time to take several efforts to improve the
quality of the raw materials supplied.

ISSUE [3] THAT THE CLAIMANT SHOULD NOT BE GRANTED ANY GENERAL
AND EXEMPLARY DAMAGES FOR LOSSES SUFFERED

It is submitted that CLAIMANT is not entitled for any sort of damage- general or exemplary on
following contentions: first, that there is no breach of SDA agreement on part of the
RESPONDENT [1]; secondthat the peculiar facts of the instant matters exempts the
RESPONDENT to pay any general damages [2]; and fourth, that claim for exemplary damages
are beyond the purview of the convention [3].

54
Case Record, Response to Notice of Arbitration and Statement of Defence, ¶7, 32.
55
Ingeborg Schwenzer & Peter Schlechtriem, Commentary on the UN-Convention on the International Sale of
Goods (CISG), Art.79 109 (2nd ed.2005).
56
Case Record, Response to Notice of Arbitration and Statement of Defence, ¶9, 33.
57
Case Record, Exhibit C4, 38.
58
Case Record, Response to Notice of Arbitration and Statement of Defence, ¶7, 32.
59
Case Record, Exhibit R2, 36.
MEMORIALfor RESPONDENT PAGE | 11
 7TH NLIU JUSTICE R K TANKHA
MEMORIAL INTERNATIONAL MOOT COURT COMPETITION 2022

1. THAT THERE IS NO BREACH OF SDA AGREEMENT ON PART OF THE RESPONDENT.

It is submitted that the RESPONDENT delay in supplying raw material and further delivering
low qualify interior design goods were very well explained by them and is also covered under
certain extraordinary circumstances. Since the reason for the heatwave was beyond the control of
the RESPONDENT and was extremelyonerous, therefore, can claim an exemption under Article
79 of CISG, 1988 as proved in issue 1.

2. THAT THE PECULIAR FACTS OF THE INSTANT MATTERS EXEMPTS THE

RESPONDENT TO PAY ANY GENERAL DAMAGES.

The CLAIMANT has alleged their entitlement to damages and loss of profits, including
repayment of the costs incurred in undertaking the project 60 along with interest at the prevailing
market rate in Xandar on the damages claimed from the date of the breach to the date of
payment.61 However, RESPONDENT submits the following settled legal principles alongside the
provisions under CISG that explains the negation of the alleged claims:

A. THAT THE CLAIMANT NOT IS ENTITLED TO DAMAGES AND LOSS OF PROFITS,

INCLUDING REPAYMENT OF THE COSTS INCURRED IN UNDERTAKING THE PROJECT.

It is submitted that Article 74 does not provide specific guidelines for calculating damages. 62
Instead, it gives the tribunal the authority to determine the aggrieved party's “loss suffered as a
consequence of the breach” based on the circumstances of the particular case. The formula is
applicable if a party to the sales contract breaches its obligations under the contract or the
Convention.63 The Convention determines the grounds for recovery of damages based on the
breach of the agreement and as there is no breach in the instant matter, the question of
CLAIMANT’s entitlement towards damages and loss of profits, including repayment of the costs
incurred in undertaking the project is meritless.

60
Case Record, Notice of Arbitration and Statement of Claim, ¶32, 9.
61
Case Record, Notice of Arbitration and Statement of Claim, ¶35, 10.
62
Secretariat Commentary on the 1978 UNCITRAL Draft Convention, Art. 70 (draft counterpart to CISG art. 74) ¶3,
reprinted in John O Honnold, Documentary History of the Uniform Law of International Sales(1989).
63
CISG, 1988, Art. 45 (1) (b) and 61 (1) (b).
MEMORIALfor RESPONDENT PAGE | 12
 7TH NLIU JUSTICE R K TANKHA
MEMORIAL INTERNATIONAL MOOT COURT COMPETITION 2022

B. THAT THE RESPONDENT IS ‘EXEMPTED TO PAY ANY INTEREST’ BY VIRTUE OF

APPLICATION OF ARTICLE 78, 79 & 80 OF THE CONVENTION.

It is submitted that interest has been awarded as damages where the circumstances were not
covered by article 78 because the interest claim did not relate to sums in arrears. 64 Further,
although an exemption under Article 79 cannot impede liability for interest under Article 78, the
debtor still might have some defenses against an interest claim. Here, to review Article 80 would
be helpful as it states that “a party may not rely on a failure of the other party to perform, to the
extent that such failure was caused by the first party's act or omission”. This clarifies that the
contributory negligence exemption of Article 80 finds application to all types of claims,
including claims for interest. This means that the creditor is barred from claiming interest to the
extent that the non-payment was caused by its own act or omission. The debtor is excused from
all the consequences of its non-performance.65

3. THAT CLAIM FOR EXEMPLARY DAMAGES ARE BEYOND THE PURVIEW OF THE
CONVENTION

It is submitted that the Convention does not provide for the payment of punitive damages.
Punitive damages, also called exemplary damages, are sums awarded in excess of any
compensatory or nominal damages in order to punish a party for outrageous misconduct. 66 Such
damage aims to punish or make an example of the wrongdoer for “conduct which was
outrageous in disregard of the plaintiff’s right” and it could go beyond the actual gain. 67 As the
scheme of the convention lay emphasis on the point that damages must not place the aggrieved
party in a better position than it would have enjoyed if the contract had been properly performed
thus Punitive damages may not be awarded under Article 74 of the Convention 68 ensuring
avoidance of overcompensation.69According to Peter Schlechtriem, recovery on the non-

64
CISG, 1988, Art. 78.
65
Ingeborg Schwenzer, Commentary on the UN Convention on the International Sale of Goods, Art.80 para.8 (4th ed.
2016); Franco Ferrari, Harry Flechtner& Ronald A. Brand, The Draft UNCITRAL Digest and Beyond: Cases,
Analysis and Unresolved Issues in the U.N. Sales Convention (2003).
66
Gotanda, Punitive Damages: A Comparative Analysis, 42 Colum. J. Transnat‟l L.391 (2004).
67
Kuddus v Chief Constable of Leicestershire Constabulary, 2 AC 122 (HL) 68 (2002).
68
CISG Advisory Council, Opinion No. 6.
69
CISG-Advisory Council, Opinion No. 6.
MEMORIALfor RESPONDENT PAGE | 13
 7TH NLIU JUSTICE R K TANKHA
MEMORIAL INTERNATIONAL MOOT COURT COMPETITION 2022

pecuniary damages is exactly one of the issues that were intentionally left out of the
Convention.70

Thus, such damages may not be awarded under Article 74 because it limits damages to “a sum
equal to the loss, including loss of profit, suffered by the other party as a consequence of the
breach.”71 It is also notable that awarding punitive damages is precluded under the Convention
even if domestic law permits them for breach of contract because the Convention does not
provide for their payment.72 Thus, as Article 74 aims at restitution and the nature of exemplary/
punitive damage is to punish hence such damages are outside the ambit of Article 74.

4. THAT THE CLAIMANT IS NOT ENTITLED TO RECEIVE ANY DAMAGES FOR LOSS OF
GOODWILL

It is submitted that there is no uniform definition of goodwill and loss of goodwill can be defined
as the decrease in the value of a business interest 73which is difficult to measure.74Thus the
claimant is not entitled to damages for goodwill on the following ground.

It is submitted that Article 74 does not permit recovery of non-material loss. 75 Thus, the
immaterial damages are, as a rule, not recoverable.76 The non-material loss is defined as a “loss
flowing from an injury or damage to non- material values”, which may or may not have its
pecuniary equivalent.77 This is because the non-material values are values that do not have an

70
Peter Schlechtriem, Non-Material Damages - Recovery under the CISG?, 19 Peace Int. Law Rev. 89 (Issue 1,
2007), https://digitalcommons.pace.edu/cgi/viewcontent.cgi?article=1061&context=pilr; Peter Schlechtriem& Petra
Butler, UN Law on International Sales, Springer 213 (2009), https://link.springer.com/content/pdf/bfm%3A978-3-
540-49992-3%2F1.pdf.
71
CISG, 1988, Art. 74.
72
CISG Advisory Council Opinion No. 6.
73
Djakhongir Saidov, The Law of Damages in the International Sale: The CISG and Other International
Instruments 330 (2008).
74
Gabehart, Scott, Brinkley & Richard, The Business Valuation Book116-17(2002).
75
 Djakhongir Saidov, Methods of Limiting Damages under the Vienna Convention on Contracts for the
International Sale of Goods, (2001), https://digitalcommons.pace.edu/cgi/viewcontent.cgi?
article=1199&context=pilr; Ingeborg Schwenzer, Commentary on the UN Convention on the International Sale of
Goods, Art.74 (4th ed. 2016).
76
Alastair Mullis & Peter Huber, The CISG: A New Textbook for Students and Practitioners 279 (2007).
77
Djakhongir Saidov, Methods of Limiting Damages under the Vienna Convention on Contracts for the International
Sale of Goods, 14 Pace Int'l L. Rev. 307 (Issue 2, 2002), https://digitalcommons.pace.edu/cgi/viewcontent.cgi?
article=1199&context=pilr.
MEMORIALfor RESPONDENT PAGE | 14
 7TH NLIU JUSTICE R K TANKHA
MEMORIAL INTERNATIONAL MOOT COURT COMPETITION 2022

economic content and are inseparable from the personality of the bearer of these values78 and as
per the scheme of the convention, the aim of damages is “to place the injured party in the same
economic position in which it would have been had the contract been performed” 79 ensuring
avoidance of overcompensation.80 Goodwill in isolation is regarded as a non-material loss as the
German District Court of Darmstadt explained, “a businessperson can remain quite indifferent
towards its reputation, as long as this does not affect the company’s turnover.”81 Thus, at
instances also the courts in its decisions has denied such recovery under the Convention. 82 In this
regard, the French Appellate Court addressing the issue in the case of Grenoble
StéCalzadosMagnanni v. SARL Shoes General International opined that ‘deterioration of
commercial image [reputation] is not compensable damages in itself if it did not entail proved
pecuniary damages.’83 Thus, “a damaged reputation is completely insignificant as long as it does
not lead to a loss of turnover and consequently lost profits. A businessperson runs his business
from a commercial point of view. As long as he has the necessary turnover, he can be completely
indifferent towards his image.”84

A. THAT THE CONDITIONS TO CLAIM DAMAGES FOR GOODWILL IS NOT FULFILLED IN THE

INSTANT MATTER.

As, Article 74 does not permit recovery of non-material loss 85 therefore, recovery of damages for
loss of goodwill is available only if the aggrieved party can establish with reasonable certainty
that it suffered a financial loss because of a breach of contract. 86 As in the decision of
78
Djakhongir Saidov, Method of Limiting Damages under the Vienna Convention on International Sales of Goods,
14 Peace Int. Law Rev. 327 (Issue 2, 2002), https://digitalcommons.pace.edu/cgi/viewcontent.cgi?
article=1199&context=pilr.
79
Secretariat Commentary on the 1978 UNCITRAL Draft Convention, Art. 70 (draft counterpart to CISG art. 74)
¶3, reprinted in John O Honnold, Documentary History of the Uniform Law of International Sales(1989).
80
CISG Advisory Council, Opinion No. 6.
81
Video recorders case, CLOUT case No. 343 (District Court Darmstadt, 2000), https://cisg-online.org/search-for-
cases?caseId=6524.
82
Unknown, CLOUT case no. 148, (Moscow City Court, Russian Federation),
https://www.uncitral.org/clout/clout/data/rus/clout_case_148_leg-1349.html.
83
CalzadosMagnanni v. Shoes General International S.a.r.l., CLOUT case No. 313 (French Appellate Court
Grenoble, 1999), https://cisg-online.org/search-for-cases?caseId=6538.
84
Video recorders case, CLOUT case No. 343 (District Court Darmstadt, 2000), https://cisg-online.org/search-for-
cases?caseId=6524.
85
Schlechtriem & Schwenzer: Commentary on the UN Convention on the International Sale of Goods Fourth
Edition Edited by Ingeborg Schwenzer(2016).
86
CalzadosMagnanni v. Shoes General International S.a.r.l., CLOUT case No. 313 (French Appellate Court
Grenoble, 1999), https://cisg-online.org/search-for-cases?caseId=6538; Art books case, CLOUT case No. 331
MEMORIALfor RESPONDENT PAGE | 15
 7TH NLIU JUSTICE R K TANKHA
MEMORIAL INTERNATIONAL MOOT COURT COMPETITION 2022

Handelsgericht des Kantons Zürich, 10 February 1999, the Commercial Court stated that
damages resulting from a loss of goodwill must be "substantiated and explained concretely." 87
Moreover, the fact that goodwill may be difficult to measure results in a requirement of a higher
level of proof to obtain such damages. As even though the provisions of CISG does not explicitly
address either the burden of proof nor the level of proof required the jurisprudence and academic
commentary uplift the proposition that ‘a party who asserts a claim has to prove all circumstance
or facts advantageous to him.’ Thus, to claim entitlement towards damages for loss of reputation,
the CLAIMANT needs to prove two fundamental conditions namely, (i) foreseeability of the loss
of goodwill; (ii) the existence and loss of goodwill as needs a material loss.

I. THERE EXIST NO FORESEEABILITY OF THE LOSS OF GOODWILL.

It is submitted that the second sentence of article 74 limits recovery of damages to those losses
that the breaching party foresaw or could have foreseen at the time the contract was concluded as
a possible consequence of its breach.88 Thus, the rule of foreseeability of damages so present in
the very definition of damages in Article 7489 serve, in the system of the Convention, as a certain
limitation to the otherwise wide liability of the party in breach. One court held that loss of
reputation and loss of clientele is not generally foreseeable. 90Further, CISG takes a much more
liberal approach asking only that a party in breach foresaw or ought to have foreseen the damage
as a ‘possible consequence’ of the breach.91

In the instant matter, there is nothing to show on record that the damages in this case are a
consequence of the actions of the RESPONDENT, and there is no evidence that this could have
led to any exemplary damages merely because there were media reports which held the
CLAIMANT responsible for their mismanagement of the project. 92

(Switzerland, HG Zurich, 1999), https://cisg-online.org/search-for-cases?caseId=6456. ;Unknown, CLOUT case no.

343 (Landgericht Darmstadt District Court, Germany,
2000),https://www.uncitral.org/clout/clout/data/deu/clout_case_343_leg-1567.html.
87
Art books case, CLOUT case No. 331 (Switzerland, HG Zurich, 1999), https://cisg-online.org/search-for-cases?
caseId=6456.
88
DSM Dyneema B.V. v. ElectromichanikiKimis EPE, Docket No. 4505/2009 (PolimelesProtodikioAthinon,
Greece, 2009), https://cisg-online.org/search-for-cases?caseId=8144.
89
CISG, 1998, Art.74
90
UNCITRAL Digest of Case Law on the United Nations Convention on Contracts for the International Sale of
Goods 2016, 337.
91
Ingeborg Schwenzer, Commentary on the UN Convention on the International Sales of Goods 1019 (3rd ed.
2009).
92
Case Record, Arbitration Claim, ¶ 12, 33.
MEMORIALfor RESPONDENT PAGE | 16
 7TH NLIU JUSTICE R K TANKHA
MEMORIAL INTERNATIONAL MOOT COURT COMPETITION 2022

II. THAT THERE EXIST NO PROOF THAT THE LOSS OF GOODWILL WOULD PRODUCE A

EXISTENCE OF MATERIAL LOSS.

This condition on question of material loss addresses the issue that loss of goodwill should be
only recovered where it inflicts a financial loss to the aggrieved party. 93As settled and held in
Video recorders case94 “a damaged reputation is completely insignificant as long as it does not
lead to a loss of turnover and consequently lost profits.” In another case, that was decided by the
Cour d’ appeal in Grenoble know as Shoes case95, similar issues occurred and the Appellate court
refrained from awarding the buyer with the damages that he incurred as a cause of a brand image
damage stating “that Article 74 of the CISG foresees, in compensation for a breach of contract,
"[damages and interest] equal to the loss, including loss of profit..."; THAT deterioration of
commercial image [reputation] is not compensable damages in itself if it did not entail proved
pecuniary damages.” Analysis of these cases shows that courts standpoint in this regard is that
eventual recovery of the non-‐material damages need to entail a material loss that was incurred
by the parties. Therefore, recovery of damages for loss of goodwill is available only if the
aggrieved party can establish with reasonable certainty that it suffered a financial loss because of
a breach of contract.96

Here, the CLAIMANT has not presented any evidence that can sufficiently proof any financial
damages caused due to the RESPONDENT’s act as first, there were no breach on part of the
RESPONDENT as sufficiently proved earlier and second that merely because there were a few
media reports which held the Claimant responsible for their mismanagement of the project 97 does
not establish any fault on part of the RESPONDENT.

93
Wolfgang Witz, Hanns-Christian Salger & Manuel Lorenz , International einheitliches Kaufrecht : Praktiker-
Kommentar und Vertragsgestaltung zum CISG Art. 74 par. 14 (2000).
94
Video recorders case, CLOUT case No. 343 (District Court Darmstadt, 2000), https://cisg-online.org/search-for-
cases?caseId=6524.
95
CalzadosMagnanni v. Shoes General International S.a.r.l., CLOUT case No. 313 (French Appellate Court
Grenoble, 1999), https://cisg-online.org/search-for-cases?caseId=6538.
96
CalzadosMagnanni v. Shoes General International S.a.r.l., CLOUT case No. 313 (French Appellate Court
Grenoble, 1999), https://cisg-online.org/search-for-cases?caseId=6538;Art books case, CLOUT case No. 331
(Switzerland, HG Zurich, 1999), https://cisg-online.org/search-for-cases?caseId=6456; Video recorders case,
CLOUT case No. 343 (District Court Darmstadt, 2000), https://cisg-online.org/search-for-cases?caseId=6524.
97
Case Record, Response to Notice of Arbitration and Statement of Defence, ¶12, 33.
MEMORIALfor RESPONDENT PAGE | 17
 7TH NLIU JUSTICE R K TANKHA
MEMORIAL INTERNATIONAL MOOT COURT COMPETITION 2022

ISSUE [4] THAT THE CLAIMANT IS REQUIRED TO DISCLOSE ITS FUNDING

RELATIONSHIP

Notably, the requirement of an impartial and independent tribunal is one of the fundamental
principles in international arbitration. This requirement is internationally recognized and
contained in every institutional rule.98 In the present case, CLAIMANT appointed arbitrator, Ms.
Pearson, and Mr. Jonas, a third-party funder of the CLAIMANT, has been in a close and
continuous relationship that casts a reasonable shadow on the integrity of the arbitral tribunal. 
This information has come to light through public filings made by Mr. Jonas’s companies itself 99
as no disclosure was made by the CLAIMANT in this regard.

The RESPONDENT contends that this tribunal must declare that the CLAIMANT should have
disclosed their funding arrangement on the following grounds: First, that disclosure of third-
party funding is necessary to evaluate possible conflicts of interest [1]; second,that there exists
an appearance of bias that can derail the arbitral proceedings [2]and; third, that the recent trend
under international arbitration affirm towards a liability of parties to disclose third party funding
[3].

1. THAT DISCLOSURE OF THIRD-PARTY FUNDING IS NECESSARY TO EVALUATE POSSIBLE

CONFLICTS OF INTEREST.

Third-party funding undoubtedly has the potential to create material economic relationships
which the other party should be entitled to know about and to challenge. 100 Parties have an
interest in disclosing the presence of third-party funders in order to comply with the ‘procedural
good faith with which the parties should conduct themselves.101

98
LCIA Rules, Art. 10 (1) and (3); ICC Rules 2012, Art. 14 (1); UNCITRAL Rules 2010, Art. 12; ICDR Rules, Art.
8 (1); SIAC Rules 2017, Rule 13 and 14; HKIAC Rules, Art. 11 (4); CIETAC Rules 2012, Art. 29 (2).
99
Case Record, Response to Notice of Arbitration and Statement of Defence, ¶13, 35.
100
Jonas von Goeler, Third- Party Funding in International Arbitration and its impact on Procedure 253 (2nd ed.
2016).
101
Bernardo Cremades, Third Party Funding in International Arbitration, (2011).
MEMORIALfor RESPONDENT PAGE | 18
 7TH NLIU JUSTICE R K TANKHA
MEMORIAL INTERNATIONAL MOOT COURT COMPETITION 2022

A. THAT THE DISCLOSURE OF THIRD-PARTY FUNDING IS CRUCIAL IN ASCERTAINING THE

IMPARTIALITY & INDEPENDENCE OF THE ARBITRATOR.

The relationships between funders and prospective arbitrators create specific factual
circumstances that may call into question an arbitrator’s impartiality and independence. 102
Therefore, when third-party funding touches upon specific procedural issues, a party must be
required to disclose certain facts related to the funding in the course of the arbitration
proceedings.103 Arbitrators should be aware of the involvement of third-party funders in
arbitration proceedings in order to evaluate possible conflicts of interest that need to be
disclosed.104 When the party has not disclosed the existence of the funding agreement, the
arbitrator will not be able to evaluate the potential relationship with the funder that might in turn
endanger the integrity of the arbitral process.105

Here, the Funder is a business behemoth and presently owns 39 companies across various
countries around the globe. These companies are frequently represented and advised by
numerous law firms, and have various transactions with several companies. 106 The vast nature of
the Funder’s business and the variety of ways in which he, and his representatives, interact with
legal professionals and law firms across the world is striking. Thus, to remove any semblance of
doubt on the current proceedings, it becomes necessary to evaluate each arbitrator’s conflict of
interest with the Funder for which disclosure is a must.

102
Jonas von Goeler, Third- Party Funding in International Arbitration and its impact on Procedure 253 (2nd ed.
2016).
103
Id. at 125, 162.
104
BurcuOsmanoglu, Third-Party Funding in International Commercial Arbitration and Arbitrator Conflict of
Interest, Journal of International Arbitration 325, 350 (2015).
105
Dominik Horodyski, Third Party Funding in International Arbitration – Legal Problems and Global Trends with
a Focus on Disclosure Requirement 72 (2017),
https://doktoranci.uj.edu.pl/documents/1167150/0/ZN+Spol+NUMER+19_4_2017_Legal+Studies/ec7a9c56-2416-
403b-8702-2f66a2008c8f#page=63.
106
Case Record, Response to Notice of Arbitration and Statement of Defence, ¶14, 33.
MEMORIALfor RESPONDENT PAGE | 19
 7TH NLIU JUSTICE R K TANKHA
MEMORIAL INTERNATIONAL MOOT COURT COMPETITION 2022

B. THAT THE IBA GUIDELINES MANDATORILY REQUIRES THE PARTIES TO DISCLOSE THEIR
FUNDING RELATION.

Notably, under General Standard 7(a) the parties are required to disclose, on their own initiative
at the earliest opportunity, any relationship with the arbitrator. 107 Moreover,the revised General
Standard 7(a) of IBA Guidelines on Conflict on Interest in International Arbitration 2014
confirms the same.108As IBA guidelines reflect international standards regarding arbitral conflicts
of interest been widely used109in the decision-making process of court. 110 Thus, the CLAIMANT
must have adhered to this disclosure requirement given that this is a mandatory provision.

2. THAT THERE EXISTS AN APPEARANCE OF THE BIAS THAT CAN HAVE SERIOUS
CONSEQUENCES ON THE ARBITRAL PROCEEDINGS.

UNCITRAL Model Law, SIAC Rules,111 IBA guidelines112 incorporate a concept of “justifiable
doubts” into statutory standards of impartiality and independence for arbitrators. 113This
impartiality and independence are judged by reference to an objective standard i.e whether
circumstances give rise to justifiable doubts as to the arbitrator’s impartiality or independence
from the perspective of a reasonable and informed person (the "Appearance of Bias
Standard").114It is submitted that the proper inquiry is whether there is an appearance of bias or
lack of independence [or impartiality].115 This is sufficient to show that there is enough “doubt”

107
IBA Guidelines on Conflicts of Interest in International Arbitration, 2015, General Standard 6(b) and 7(a).
108
IBA Guidelines on Conflicts of Interest in International Arbitration, 2015, General Standard 7(a).
109
Alan Redfern et. al., Redfern and Hunter on International Arbitration 229 - 304 (6th ed. 2009).
110
Walter Höft v. Coraline Limited, SCC Case No. V 2015/012 (Judgment of Svea Court of Appeal, 2019);
Matthias Scherer, First Reference to the IBA Guidelines on Conflicts of Interest in International Arbitration ‐ Case
Note on Swiss Supreme Court Decisions 4A_506/2007 & 4A_528/2007, 26 ASA Bull. 588-595 (2008).
111
UNCITRAL Model Law, Art. 12; SIAC Investment Rules, 2017, Rule 14.
112
ICS Inspection and Control Services Limited v. The Argentine Republic (I), PCA Case No. 2010-09 (Decision
on Challenge of Stanimir Alexandrov, 2009).
113
UNCITRAL Model Law, Art. 12(2); SIAC Investment Rules, 2017, Rule 14.1; Gary B. Born, International
Commercial Arbitration 1761 - 2104 (3rd ed. 2021).
114
Vito G. Gallo v. Government of Canada, Decision on the Challenge to Mr. J. Christopher Thomas, QC,
NAFTA/UNCITRAL ¶19 (2009); Perenco Ecuador Ltd. v. Republic of Ecuador and EmpresaEstatalPetróleos del
Ecuador ("PetroEcuador"), Decision on Challenge to Arbitrator ¶54, ¶58 (2009).
115
National Grid P.L.C. v. Argentine Republic, Decision on the Challenge to Mr. Judd L. Kessler, Division of the
LCIA Court, Case No. UN 7949 ¶80 (2007); Suez, Sociedad General de Aguas de Barcelona S.A., and
InterAguasServiciosIntegrales de Agua S.A. v. Argentine Republic, ICSID Case No. ARB/03/17 (2006); Urbaser
S.A. and Consorcio de Aguas Bilbao Bizkaia, Bilbao Biskaia Ur Partzuergoa v. Argentine Republic, ICSID Case
MEMORIALfor RESPONDENT PAGE | 20
 7TH NLIU JUSTICE R K TANKHA
MEMORIAL INTERNATIONAL MOOT COURT COMPETITION 2022

or “suspicion” as to an arbitrator’s impartiality. 116 There is an extremely close and continuous

relationship between Ms Pearson and Mr Jonas which is sufficient to create an appearance of
bias as a family relationship can made the arbitrator’s impartiality suspect, 117 personal
relationship affects eligibility as an arbitrator,118 indicating absence of impartiality and
independence.119Non-disclosure of a potential conflict of interest between the arbitrator and the
third-party funder carries the risk of endangering the valid constitution of the tribunal and might
lead to serious consequences, such as the challenge and/or removal of the arbitrators, as well as
the challenge and/or the annulment of the award or the impossibility of enforcement.120

3. THAT RECENT TREND UNDER INTERNATIONAL ARBITRATION AFFIRMS TOWARDS A

LIABILITY OF PARTIES TO DISCLOSE THIRD PARTY FUNDING.

Notably, various free trade agreements and national laws have realized the need to make
disclosure by parties mandatory including CETA, TTIP, Hong Kong and Singapore, 121 the
Comprehensive Economic and Trade Agreement, as revisited in 2016 122 and Transatlantic Trade
and Investment Partnership have also made it mandatory for parties to make similar
disclosures.123The UNCITRAL published the Report of Working Group III in April 2018 which
explored the scope of possible development in future dispute settlement laws. 124 While taking an
anti-TPF approach and suggesting for a complete ban of TPF arrangements in ISDS, as an

No. ARB/07/2 (2010).

116
Sociedad de Valores, SA v. Banco Santander, SA, Case No. 3/2009 (Madrid Audiencia Provincial, 2011).
117
Morelite Constr. Corp. v. New York City Dist. Council Carpenters Benefit Funds, 748 F.2d 79, 85 (2nd Cir.
1984),
118
Christoph H. Schreuer, The ICSID Convention: A Commentary 513 para. 22-23 (2nd ed. 2009).
119
Note to Parties and Arbitral Tribunals on the Conduct of the Arbitration under the ICC Rules of Arbitration ¶27
(2021), https://iccwbo.org/content/uploads/sites/3/2020/12/icc-note-to-parties-and-arbitral-tribunals-on-the-conduct-
of-arbitration-english-2021.pdf.
120
Laurent Lévy &RégisBonnan, Third Party Funding: Disclosure, Joinder and Impact on Arbitral Proceedings,
ICC Dossier No. 752E 85 (2013).
121
Dominik Horodyski, Third Party Funding in International Arbitration – Legal Problems and Global Trends with
a Focus on Disclosure Requirement 73 (2017),
https://doktoranci.uj.edu.pl/documents/1167150/0/ZN+Spol+NUMER+19_4_2017_Legal+Studies/ec7a9c56-2416-
403b-8702-2f66a2008c8f#page=63.
122
Comprehensive Economic and Trade Agreement (CETA), as revisited in 2016, Art. 8.26, 59.
123
Transatlantic Trade and Investment Partnership, Art. 8, 39.
124
UNCITRAL Working Group III (Investor-State Dispute Settlement Reform), Rep. on the Possible reform of
investor-State dispute settlement (ISDS): Third-party funding – Possible solutions, U.N. Doc.
A/CN.9/WG.III/WP.172 (2019), https://undocs.org/en/A/CN.9/WG.III/WP.172.
MEMORIALfor RESPONDENT PAGE | 21
 7TH NLIU JUSTICE R K TANKHA
MEMORIAL INTERNATIONAL MOOT COURT COMPETITION 2022

alternate solution, it relied upon the ICCA – QMUL Report to emphasise on the introduction of a
mechanism to ensure transparency by way of disclosure of TPF arrangements.125

The importance of disclosure of TPF was also underlined in a recent investment arbitration case.
The Tribunal emphasised that the disclosure of the funder's identity will first and foremost
ensure independence and impartiality of arbitrators126 which is required to maintain the
transparency and integrity of the arbitration as well as independence of arbitrators. In that
context, a path taken by (SIAC) in recently released Investment Arbitration Rules, offering a
specialized set of procedures for the conduct of international investment arbitration, is worth
noting. Under Art. 24(l), the Tribunal shall have the power to order the disclosure of the
existence of a party’s third‐party funding arrangement and/or the identity of the third‐party
funder and, where appropriate, details of the third‐party funder’s interest in the outcome of the
proceedings, and/or whether or not the third‐party funder has committed to undertake adverse
costs liability.127The close analysis of these instances affirms that under the arena of international
arbitration there exists a liability on parties to disclose third party funding. As the instant matter
also deals with the same subject matter, the RESPONDENT requests the tribunal to put this
obligation on the CLAIMANT to adhere to this widely accepted rule to disclose its funding
relation.

ISSUE [5] THAT THE ROLE OF THE ADMINISTRATIVE SECRETARY MR. JAMES
ROSS NEEDS TO EITHER BE REDUCED OR BE REPLACED IN LIGHT
OF THE FACT THAT THE SECRETARY HAS EXCEEDED HIS MANDATE

It is humbly submitted that the SIAC rules provide that Arbitral tribunals may, with the consent
of all parties, appoint administrative secretaries in appropriate cases. The SIAC Practice Note
states that administrative secretaries may be appointed to assist arbitral tribunals in

125
Id. at ¶26, 7.
126
MuhammetÇap&SehilInşaatEndustriveTicaret Ltd. Sti. v. Turkmenistan, ICSID Case No. ARB/12/6 ¶13
(Procedural Order No. 3, 2015).
127
Investment Arbitration Rules of the Singapore International Arbitration Centre (1st ed. 2017).
MEMORIALfor RESPONDENT PAGE | 22
 7TH NLIU JUSTICE R K TANKHA
MEMORIAL INTERNATIONAL MOOT COURT COMPETITION 2022

“administrative matters”.128 However, the duties or tasks performed by administrative secretaries

must be limited to administrative work and separate from any decision-making.

However, this principle has not been adhered to in the instant matter, on following contentions:
first, that the work of the Administrative Secretary must be limited to Administrative matters [1];
andsecond, that the Administrative Secretary must not draft parts of the Award [2].

1. THAT THE WORK OF THE ADMINISTRATIVE SECRETARY MUST BE LIMITED TO

ADMINISTRATIVE MATTERS.

It is submitted that the use of arbitral secretaries, whilst increasing in Singapore arbitrations, is
not yet common practice.129 The Singapore International Arbitration Centre (SIAC) is taciturn on
this subject. Its 2015 Practice Note on Appointment of Administrative Secretaries provides
guidance on when a secretary may be appointed and the basis on which a secretary can be
remunerated; however, it does not cover the scope of a secretary's duties in SIAC arbitrations. 130
Therefore, it becomes important to refer to the similar provisions, rules, and practices of parallel
authorities. Notably, under ICC the role of the arbitral secretary is strictly limited, in as much as
it requires that under no circumstances may the Arbitral Tribunal delegate decision-making
functions to an Administrative Secretary.’131 In the Yukos cases, under the UNCITRAL Rules,
which may serve to illustrate the dangers of active role of the arbitral secretary. 132As Yukos v
Russia133 case, have shown a spotlight on the importance of ensuring that a secretary’s duties are
strictly limited and that a tribunal does not delegate any decision making authority to the
secretary and, in particular, the potential impact that the so-called ‘fourth arbitrator’ issue can

128
Practice Note for Administered Cases, On the Appointment of Administrative Secretaries, Singapore International
Arbitration Centre (2015), https://siac.org.sg/our-rules/practice-notes/practice-note-for-administered-cases-on-the-
appointment-of-administrative-secretaries.
129
Alvin Yeo & Lim Wei Lee, Arbitration Guide IBA Arbitration Committee Singapore, (January
2018),https://www.ibanet.org/MediaHandler?id=21CE7804-1003-4E5C-965C-7BAE72749128.
130
Practice Note for Administered Cases, On the Appointment of Administrative Secretaries, Singapore International
Arbitration Centre (2015), https://siac.org.sg/our-rules/practice-notes/practice-note-for-administered-cases-on-the-
appointment-of-administrative-secretaries.
131
Note to Parties and Arbitral Tribunals on the Conduct of the Arbitration under the ICC Rules of Arbitration,
International Chamber of Commerce ¶ 223, 30 (2021).
132
Simon Maynard, Laying the Fourth Arbitrator to Rest: Reevaluating the Regulation of Arbitral Secretary, 34
William W. Park (ed), Arbitration International 173 – 183 (2018).
133
Yukos Universal Limited (Isle of Man) v The Russian Federation, UNCITRAL PCA Case No AA 227 (2006);
MEMORIALfor RESPONDENT PAGE | 23
 7TH NLIU JUSTICE R K TANKHA
MEMORIAL INTERNATIONAL MOOT COURT COMPETITION 2022

have on the enforcement of awards. Similarly, in Sacheri v. Robotto134, the court set aside as the
arbitrators had violated their personal mandate by delegating their decision-making duty to a
third party i.e., the Administrative Secretary.

In the present case as explicitly mentioned that even if the tribunal was at liberty to decide the
duties and responsibilities of the administrative secretary, a firm caveat was that it must not
engage the secretary directly in the decision-making process.135 Thus, there is a clear violation of
both agreed term and settled norms.

2. THAT THE ADMINISTRATIVE SECRETARY MUST NOT DRAFT PARTS OF THE AWARD.

It is submitted that wide use of the Secretaries has led to many instances of abuse 136 and at times
interference with the arbitrator’s mandate and failure to fulfill his or her mandate personally
because the Secretary played the crucial role in the decision-making process, has been
considered as a significant ground for setting aside awards of Arbitral Tribunal. 137 As even the
SIAC issued Practice Note on the appointment of administrative secretaries by tribunals, lay
emphasizes the point of the consent of all parties to the arbitration regarding the administrative
role and appointment.138Similarly, Article 14A of LCIA Arbitration Rules clarifies the tribunal
secretary role and sets out a clear framework for the use of tribunal secretaries expressly
precluding any delegation of the decision-making function of the tribunal. 139 The Rules further
mandate that any tasks to be performed by the tribunal secretary must be expressly agreed to by
the parties.140 The tribunal secretary is also subject to a continuing duty to disclose any
circumstances that ‘are likely to give rise in the mind of any party to any justifiable doubts as to
[their] imparity or independence’.141This concern with consent to each aspect of the tribunal
secretary’s role is similarly reflected in the January 2017 Stockholm Chamber of Commerce
134
 Sacheri v Robotto, Corte di Cassazione [Supreme Court, Italy], 2765, 7 June 1989.
135
Case Record, Procedural Order No. 1, ¶3, 39.
136
Polkinghorne & Rosenberg, The Role of the Tribunal Secretary in International Arbitration: A Call for a
Uniform Standard, International Bar Association (2014).
137
Carswell & Winnington, Awards: Challenges based on misuse of tribunal secretaries, Global Arbitration Review
(08 June 2021), https://globalarbitrationreview.com/guide/the-guide-challenging-and-enforcing-arbitration-awards/
2nd-edition/article/awards-challenges-based-misuse-of-tribunal-secretaries.
138
Alvin Yeo & Lim Wei Lee, Arbitration Guide IBA Arbitration Committee Singapore, (January 2018);
https://www.ibanet.org/MediaHandler?id=21CE7804-1003-4E5C-965C-7BAE72749128.
139
LCIA Rules 2020, Art. 14.8, Subject to Articles 14.9 to 14.15.
140
LCIA Rules 2020, Articles 14.10(i) and 14.11.
141
LCIA Rules 2020, Article 14.14.
MEMORIALfor RESPONDENT PAGE | 24
 7TH NLIU JUSTICE R K TANKHA
MEMORIAL INTERNATIONAL MOOT COURT COMPETITION 2022

(SCC) Rules, which provide that the tribunal shall consult the parties regarding the tasks of the
secretary.142

It is submitted that 2017 ICC Notes has explicitly restricted the works of administrative secretary
to general proofreading, checking citations, dates and cross-references and correcting
typographical, grammatical or calculation errors, further, highlighting that the arbitrators have a
duty to personally draft any decision of the arbitral tribunal. 143 It is also settled that unless
otherwise agreed by the parties, the secretary is prohibited from performing judicial functions,
which must remain the prerogative of the arbitrators only.144It is said that intellectual control is
exhibited in the act of writing. The decision-making function of arbitrators, given that the arbitral
award ought to be the product of the arbitrators' personal commitment and intellect. 145 It is
generally admitted, therefore, that arbitrators should not readily delegate said intellectual control
to arbitral secretaries.146 In fact, most of thecommon law commentators were “firmly opposed to
any draft being written by anyone other than a member of the tribunal.”147

In the present case, it should be noted that the RESPONDENT was given this understanding that
administrative functions would include limited works such as collating evidence and answering
routine emails and communications between the parties. But, Mr. Ross, has been given
significantly higher responsibilities, including the delicate responsibility to summarize the
pleadings and give briefs.148 This could significantly impact both the decision-making and the
outcome of this arbitration raising clear doubt in the mind of the RESPONDENT.

142
SCC Arbitration Rules, Art. 24(2).
143
Note to Parties and Arbitral Tribunals on the Conduct of the Arbitration under the ICC Rules of Arbitration,
International Chamber of Commerce ¶ 223 (2021).
144
Swiss Federal Supreme Court 4A_709/2014 of 21 May 2015 cons. 3.2.2.
145
Id.
146
Id.; P. v. Q., EWHC ¶70, 194 (Comm, 2017).
147
Humphrey Lloyd, Writing Awards – A Common Lawyer's Perspective, ICC Bull. 38, 38 (1994).
148
Case Record, Request for dismissal or reducing responsibilities of Tribunal Secretary, 41.
MEMORIALfor RESPONDENT PAGE | 25
 7TH NLIU JUSTICE R K TANKHA
MEMORIAL INTERNATIONAL MOOT COURT COMPETITION 2022

ISSUE [6] THAT THE RESPONDENT SHOULD BE GRANTED LEGAL COSTS IN

THE ARBITRATION DUE TO THE CONDUCT OF THE OTHER PARTY
AND ITS SUCCESS ON THE SUBSTANTIVE & PROCEDURAL ISSUES IN
THIS ARBITRATION

It is submitted that RESPONDENT should not bear the legal cost in the present arbitration
proceedings with respect to the following submissions. First, the RESPONDENT are not barred
by the SDA agreement between parties to share the legal cost [1]; second, the RESPONDENT
should not bear legal cost due to the evident failure of the CLAIMANT to establish both their
substantive and procedural issues [2]third, the CLAIMANT should bear the legal costs of this
proceeding because of their malafide conduct shown throughout the execution of the agreement
[3] and Fourth, that the CLAIMANT should bear the legal cost as they are merely using this
arbitration to provide an unlawful gain to their ‘third-party funder’; and these should be taken
into account by the tribunal [4].

1. THAT THE RESPONDENT SHOULD NOT BEAR THE LEGAL COST AS THEY ARE NOT
BARRED BY THE AGREEMENT BETWEEN THE PARTIES TO SHARE THE LEGAL COSTS.

It is submitted before the tribunal that under SIAC rule 35.2 and 37 where it makes a distinction
between “costs of the arbitration” and “costs incurred by a party/legal cost”. Under SIAC rules
the costs for which a party to a SIAC arbitration may be liable include: (a) filing fee to
commence the arbitration; (b)the SIAC Secretariat's fees and expenses for administering the
arbitration; (c)the fees and expenses of the arbitrator(s), and (d) the parties' legal and other costs.
The costs referred to in (a) to (c) are defined in Rule 35.2 as the 'costs of the arbitration and the
cost referred to in point (d) is defined as ‘legal cost’. The expression 'costs of the arbitration'
used in Rules 35.1 and 35.2 refers to the costs of the SIAC Secretariat and the tribunal, and for
that reason is referred to in this chapter as the 'SIAC costs of the arbitration'. It does not
encompass the parties' legal and other costs, which are addressed in Rule 37, and can account for
a significant proportion of the overall total costs of arbitration.149 The addition of the word 'SIAC'
is appropriate as the expression 'costs of the arbitration as used in the SIAC Rules excludes the

149
Celeste E & Salinas Quero, Investor-state disputes at the SCC, 7 (2017),
https://sccinstitute.com/media/178174/investor-state-disputes-at-scc-13022017-003.pdf.
MEMORIALfor RESPONDENT PAGE | 26
 7TH NLIU JUSTICE R K TANKHA
MEMORIAL INTERNATIONAL MOOT COURT COMPETITION 2022

parties' legal and other costs. Thus, the costs of the parties are the legal costs of the CLAIMANT
and RESPONDENT, which include (a) attorneys' fees, (b) various professional services fees
such as those of technical advisors or experts, (c) the fees and expenses of witnesses, and (d)
incidental expenses such as secretarial fees and telephone, facsimile, and copying charges.150

In the present case under the Supply and Design Agreement, clause XIV of Dispute Resolution,
the parties have agreed to equally share the Arbitration cost of the proceeding. Since under SIAC
rules there is a distinction between Arbitration cost and legal cost, therefore, the agreement will
not be applicable to the legal cost and the RESPONDENT should not be liable to pay the legal
cost.151

2. THAT THE RESPONDENT SHOULD NOT BEAR LEGAL COST DUE TO THE FAILURE OF
THE CLAIMANT TO ESTABLISH BOTH SUBSTANTIVE AND PROCEDURAL ISSUES.

It is submitted that Rule 37 of SIAC specifies that the arbitration tribunal has the authority to
order that all or a part of the legal or other costs of a party be paid by another party. 152 The SIAC
arbitration rules are silent as to how legal costs should be allocated, however the tribunal has the
discretion to allocate costs based on the circumstances of the case. 153The report of a survey
comparing various national laws, concluded that the “vast majority” of countries follow the
principle that costs follow the event, i.e., the loser pays. 154 In Alasdair Ross Anderson v. Costa
Rica, the tribunal recognized that tribunals in commercial arbitrations tended to follow the “loser
pays” principle.155 Therefore, the present matter being a matter of commercial arbitration must be
adjudicated following the “loser pays” principle.

Furthermore, as has been meticulously proved on the previous issues that the disputes raised by
the CLAIMANT are both meritless and simply an attempt to implicate the RESPONDENT. It is
also undisputed that the CLAIMANT has manipulated facts and presented an extremely distorted

150
W. Lawrence Craigetal., INTERNATIONAL CHAMBER OF COMMERCE ARBITRATION 40 (2d ed. 1990).
151
Case Record, Exhibit C2, Clause XIV, 19.
152
Arbitration Rules of the Singapore International Arbitration Centre SIAC Rules, Rule 37 (2016).
153
Penwell Business Limited v. Kyrgyz Republic, PCA Case No. 2017-31 ¶ 394 (2021); Manolium Processing v.
The Republic of Belarus, PCA Case No. 2018-06 ¶ 717 (2021).
154
John Gotanda, Awarding Costs and Attorneys' Fees in International Commercial Arbitrations, 21 MICH. J.
INT'L L. 25 (1999).
155
Alasdair Ross Anderson et al v. Republic of Costa Rica, ICSID Case No. ARB(AF)/07/3 ¶ 62 (2010).
MEMORIALfor RESPONDENT PAGE | 27
 7TH NLIU JUSTICE R K TANKHA
MEMORIAL INTERNATIONAL MOOT COURT COMPETITION 2022

picture. Thus, being the potential loser party, it is submitted to the tribunal to ask the
CLAIMANT to bear the entire legal cost.

3. THAT THE CLAIMANT SHOULD BEAR THE LEGAL COST BECAUSE OF THEIR MALAFIDE
CONDUCT.

It is submitted that a SIAC tribunal while deciding legal cost will take into account the conduct
of the parties in the arbitration. The conduct considered includes: whether claims were grossly
exaggerated; and whether a party began the proceedings of the case with a mala fide intent and
made excessive submissions or produced excessive evidence on issues.156The facts of the case
clearly exhibit a mala fide intent as they have adopted the pattern of hiding information and
using prior connections of their funder by refusing to disclose such material information in
advance and in providing the RESPONDENT the opportunity to test these conflicts before the
SIAC Court.157The RESPONDENT’s legal costs had been incurred as a result of the
CLAIMANT’s decision to commence the arbitration and its subsequent failure to prove its
claims in an efficient manner in accordance with the applicable procedural rules.158

4. THAT THE CLAIMANT SHOULD BEAR THE LEGAL COST AS THEY ARE MERELY USING
THIS ARBITRATION TO PROVIDE AN UNJUSTGAIN TO THEIR ‘THIRD-PARTY FUNDER’.

It is humbly submitted that the RESPONDENT is not entitled to pay any legal costs. This is
because the preferable view for an arbitral tribunal to allocate costs should necessarily require
that the prevailing (funded) party has at least incurred a liability in return for the funding of these
costs.159 This may be necessary to avoid an undeserved windfall to the funder or the funded
party. The policy goal behind this is to avoid an undeserved windfall where the legal costs have
been paid by a ‘third-party funder’, which is not a party to the arbitration. 160 If the funded party

156
Asia Arbitration Handbook, ¶ 15.308 (M Moser & J Choong, eds., 2011).
157
Case Record, Response to Notice of Arbitration and Statement of Defence, ¶17, 33.
158
Howard Family Trust v. The Government of Canada, PCA Case No 2009-21 (Order for the Termination of the
Proceedings and Award on costs, 2010).
159
Jonas von Goeler, Third- Party Funding in International Arbitration and its impact on Procedure (2nd ed.
2016).
160
ICC Case No. 13645 (Final Award, 2006); Price Waterhouse SARL and PW Conseil SARL v.
PricewaterhouseCoopers International Limited, Claim No. 2010 Folio 619 (Queen’s Bench, Commercial Court,
2010).
MEMORIALfor RESPONDENT PAGE | 28
 7TH NLIU JUSTICE R K TANKHA
MEMORIAL INTERNATIONAL MOOT COURT COMPETITION 2022

keeps the legal costs so awarded, it would be unduly compensated for expenses it never had. If it
decides to hand the awarded legal costs over to the funder, this would entail the strange result
that the losing party is forced to gratify the funder for expenses the latter could never expect to
recover.161  For legal costs paid by a third party to have been incurred by the funded party, these
costs must have incurred the liability to pay legal fees by the ‘third-party funder’.162

In the present case, the CLAIMANT maintained a veil of secrecy on its wealthy ‘third-part
funder’, Mr. Joseph Jonas, who had agreed to foot the CLAIMANT’s bill on their claim and its
legal costs.163 This pattern of hiding information clearly shows mala fide intent on the part of the
CLAIMANT.164 The CLAIMANT’s ‘third-party funder’, in terms of legal costs, can be looked at
as an economic unit with undue windfall. The RESPONDENT need not compensate the
CLAIMANT, a funded party, or its ‘third-party funder’ for expenses that were made purely
voluntarily, by initiating this arbitration.165 Since the funder had a financial interest in the
outcome of the case, it should be held liable for the party’s legal costs.166The lack of disclosure of
‘third-party funder’ appears to be a planned strategy of the CLAIMANT167 and thus, they must
not be allowed to use this arbitration proceeding as a means of undue windfall to itself and its
‘third-party funder’, and must be asked to bear all the legal costs.

161
Jonas von Goeler, Third- Party Funding in International Arbitration and its impact on Procedure (2nd ed.
2016).
162
Price Waterhouse SARL and PW Conseil SARL v. PricewaterhouseCoopers International Limited, Claim No.
2010 Folio 619 (Queen’s Bench, Commercial Court, 2010).
163
Case Record, Response to Notice of Arbitration and Statement of Defence, ¶13, 33.
164
Case Record, Response to Notice of Arbitration and Statement of Defence, ¶17, 33.
165
Case Record, Response to Notice of Arbitration and Statement of Defence, ¶8, 32.
166
Arkin v. Borchard Lines Ltd. &Ors, EWCA Civ. 655 (English Court of Appeal, 2005).
167
Case Record, Response to Notice of Arbitration and Statement of Defence, ¶16, 33.
MEMORIALfor RESPONDENT PAGE | 29
 7TH NLIU JUSTICE R K TANKHA
MEMORIAL INTERNATIONAL MOOT COURT COMPETITION 2022

PRAYER

RESPONDENT respectfully requests the Hon’ble Tribunal, on the basis of prior and foregoing
written submissions to FIND and DECLARE that:
1. That the CISG overrules the provisions of the FIDIC standard form agreed between the
parties and the provision on force majeure under the CISG overrules provision on force
majeure under FIDIC.
2. Thatthe CLAIMANT’s allegations are baseless and the allegations of the breach of the
SDA are unfounded;
3. That the RESPONDENT has not breached any of its obligations under the SDA;
4. That the CLAIMANT should not be granted general and exemplary damages for losses
suffered.
5. That the CLAIMANT should have disclosed their funding arrangement and that the
relationship between the funder and CLAIMANT appointed arbitrator raise issues of
arbitrator bias
6. That the role of the administrative secretary Mr. James Ross either needs to be reduced or
needs to be replaced as the secretary has exceeded his mandate.

And consequently, ORDER CLAIMANT:

1. To bear all the legal and arbitration costs of the RESPONDENT for these proceedings;
2. To pay post-award interest at the national bank interest rate prevailing in Rotaria on the
costs awarded starting from 30 days after the final award.

Or any other order and/or declaration that the Tribunal may deem fit in light of justice,
equity and good conscience.

DATED: 10-13 March, 2022 S/d-

PLACE: Volantis, Democratic Republic Of Braavos

COUNSELS for RESPONDENT

MEMORIALfor RESPONDENT PAGE | XXV