U of Heidelberg Claimant

TWENTY NINTH ANNUAL
WILLEM C. VIS INTERNATIONAL COMMERCIAL

ARBITRATION MOOT
MEMORANDUM FOR CLAIMANT
R U P R E C H T -K A R L S - U N I V E R S I T Ä T H E I D E L B E R G
CASE REFERENCE: AIAC/INT/ADM-123-2021
ON BEHALF OF: AGAINST:

ElGuP plc JAJA Biofuel Ltd
156 Dendé Avenue 9601 Rudolf Diesel Street
Capital City Oceanside
Mediterraneo Equatoriana
CLAIMANT RESPONDENT
MORITZ F. BÖBEL • LEA DEGER • NOËMI SIMON • ELENA STEGMANN • TOBIAS THOMER
R UP R EC H T -K A R LS -U N I V E R S IT Ä T H E ID E LB ER G
TABLE OF CONTENTS
TABLE OF ABBREVIATIONS ............................................................................ V
TABLE OF LITERATURE .............................................................................. VIII
TABLE OF CASES .............................................................................................. XX
TABLE OF ARBITRAL AWARDS AND DECISIONS ......................... XXXVII
TABLE OF OTHER SOURCES ........................................................................ XL
STATEMENT OF FACTS ...................................................................................... 1
SUMMARY OF ARGUMENT ............................................................................... 2
ARGUMENT ............................................................................................................ 3
PART I: THE PARTIES VALIDLY AGREED ON THE JURISDICTION OF

THE TRIBUNAL ................................................................................................ 3
I. THE ARBITRATION AGREEMENT IS VALID UNDER THE APPLICABLE DANUBIAN LAW .......... 3
A. DANUBIAN LAW GOVERNS THE ARBITRATION AGREEMENT ................................................. 3
1. The Parties Chose Danubian Law by Choosing Danubia as Seat of Arbitration .............. 4
a. Reasonable Parties Prefer Consistency between the Curial Law and the Law
Governing the Arbitration Agreement ............................................................................ 5
b. Leading Authorities Apply the Law of the Seat to the Arbitration Agreement.............. 5
c. The in Favorem Validitatis Approach Confirms Applying the Curial Law ................... 6
2. The Choice of Mediterranean Law Does Not Extend to the Arbitration Agreement ........ 7
a. The Wording Shows That the Parties Did Not Intend for the Choice of Law of the
Sales Contract to Extend to the Arbitration Agreement ................................................. 7
b. The Nature of Arbitration Agreements Speaks Against Applying the Law of the Main
Contract........................................................................................................................... 8
c. The 2020 Enka v. Chubb Decision Provides Further Guidelines for the Tribunal ......... 8
d. Sulamerica Established and Applied the Exception Enka v. Chubb Confirmed ............ 9
M E MOR AN DU M F OR C LA I MA NT | I
3. Alternatively, Danubian Law Governs the Arbitration Agreement Because of the Default
Rule.................................................................................................................................... 9
B. THE ARBITRATION AGREEMENT IS SUBSTANTIVELY AND FORMALLY VALID ....................... 9
1. The Parties Concluded a Substantively Valid Arbitration Agreement .............................. 9
a. The Arbitration Clause Is a Standard Term under DCL ............................................... 10
aa. The Parties Did Not Negotiate When Changing the Applicable Law to the Sales
Contract ...................................................................................................................... 10
bb. The Parties Did Not Negotiate When They Discussed Applying the UTR ............... 10
b. CLAIMANT Validly Included Art. 9 GCoS in the Sales Contract .................................. 10
c. The Discussion on Transparency Did Not Hinder the Inclusion of Art. 9 GCoS ........ 11
2. The Arbitration Agreement Meets All Formal Requirements ......................................... 11
a. The Arbitration Agreement Fulfills the Formal Requirements of Art. II(2) NYC ....... 11
aa. CLAIMANT Made a Reference to the GCoS Containing the Arbitration Agreement in
the Exchange of Emails ............................................................................................. 12
bb. This General Reference Is Sufficient Because RESPONDENT Is in No Need of
Protection ................................................................................................................... 12
b. Alternatively, the Arbitration Agreement Is Valid under Art. VII NYC...................... 13
II. EVEN IF THE TRIBUNAL WERE TO FIND THAT MEDITERRANEAN LAW APPLIES, IT HAS
JURISDICTION .......................................................................................................................... 14
A. MCL APPLIES AND ACCORDINGLY THE ARBITRATION AGREEMENT IS VALID ................... 14
1. The CISG Does Not Apply to the Arbitration Agreement .............................................. 14
a. Arbitration Agreements Do Not Fall Within the Scope of Application of the CISG ... 14
b. The 2020 Ground Mace Case Does Not Apply to the Present Case ............................ 15
2. The Arbitration Clause Was Validly Included in the Contract under MCL .................... 15
B. EVEN IF THE TRIBUNAL WERE TO FIND THAT THE CISG APPLIES, THE ARBITRATION
AGREEMENT IS VALID ......................................................................................................... 16
III. CONCLUSION ............................................................................................................................ 17
PART II: THE PARTIES CONCLUDED THE SALES CONTRACT IN 2020

............................................................................................................................. 17
I. THE PARTIES CONCLUDED THE SALES CONTRACT ON 9 APRIL 2020 ................................... 17

A. RESPONDENT PLACED AN OFFER VIA EMAIL ON 1 APRIL 2020........................................... 17
M E MOR AN DU M F OR C LA I MA NT | II
1. Ms Bupati’s Email Shows RESPONDENT’s Intention to Be Legally Bound .................... 18

2. The Negotiations at the Summit Show RESPONDENT’s Intention to Be Bound .............. 18
B. CLAIMANT ACCEPTED THE OFFER VIA EMAIL ON 9 APRIL 2020 ......................................... 19
1. The fact that CLAIMANT Mentioned the GCoS Did Not Alter the Offer ......................... 19
2. The Termination Clause in Art. 4 GCoS Did Not Alter the Terms of the Offer ............. 20
3. Art. 9 GCoS Did Not Alter the Terms of the Offer ......................................................... 21
II. EVEN IF THE PARTIES DID NOT CONCLUDE THE CONTRACT ON 9 APRIL 2020, RESPONDENT
ACCEPTED CLAIMANT’S OFFER IMPLIEDLY .......................................................................... 21
A. RESPONDENT ACCEPTED THE OFFER SILENTLY .................................................................. 21
1. The Party Practice between Ms Bupati and Mr Chandra Shows That Ms Bupati’s Silence
after Receiving the Contractual Documents Constitutes Acceptance ............................. 21
2. The Established Party Practice Applies between the Parties........................................... 22
a. The Re-Established Party Practice Governs the Relationship Between the Parties ..... 22
b. The Change of CLAIMANT’s Contracting Party Did Not Influence the Application of
the Party Practice .......................................................................................................... 23
aa. The Established Party Practice Applies Because RESPONDENT and Southern
Commodities Are Part of the Same Corporate Group ............................................... 23
bb. The Party Practice Applies Because Ms Bupati Concluded the Contracts for both
Southern Commodities and RESPONDENT.................................................................. 24
c. RESPONDENT Acts Inconsistently if It Submits That the Party Practice Is Inapplicable ..
................................................................................................................................... 25
B. ALTERNATIVELY, RESPONDENT ACCEPTED THE OFFER BY OTHER CONDUCT .................... 25
III. CONCLUSION ............................................................................................................................ 26
PART III: THE GCOS WERE VALIDLY INCLUDED IN THE SALES

CONTRACT ...................................................................................................... 26
I. CLAIMANT MADE A REFERENCE TO THE GCOS AT THE SUMMIT ......................................... 27
II. CLAIMANT DID NOT HAVE TO MAKE THE GCOS AVAILABLE AGAIN .................................. 27
A. CLAIMANT HAD ALREADY MET THE REQUIREMENT TO MAKE THE GCOS AVAILABLE ..... 27
1. RESPONDENT Was Aware of the Content Due to Ms Bupati’s Knowledge .................... 28
a. RESPONDENT Was Aware of the Entire 2016 Version of the GCoS ............................. 28
M E MOR AN DU M F OR C LA I MA NT | III
aa. CLAIMANT Provided the Pre-2016 Version to Ms Bupati and Informed Her About the
Changes ...................................................................................................................... 28
bb. CLAIMANT Could Rely on Ms Bupati’s Ongoing Knowledge of the GCoS Even
Though Ms Bupati Forgot about Their Amendments ................................................ 29
b. RESPONDENT Was Aware of the 2020 Amendment to the GCoS ................................. 30
2. Southern Commodities’ Knowledge of the GCoS is Attributed to RESPONDENT because
They are Part of the Same Corporate Group ................................................................... 30
3. Additionally, the Latest GCoS Were Included in the Contract Because the Party Practice
Contained Applying Them .............................................................................................. 31
B. RESPONDENT HAD REASONABLE OPPORTUNITY TO OBTAIN AWARENESS OF THE GCOS ... 31
1. Scholars’ Principles Require RESPONDENT to Inquire About the GCoS ......................... 32
2. Case Law Confirms RESPONDENT’s Obligation to Inquire Because of the Sales
Contract’s Significance ................................................................................................... 33
III. CONCLUSION ............................................................................................................................ 33
REQUEST FOR RELIEF...................................................................................... 34
M E MOR AN DU M F OR C LA I MA NT | IV
TABLE OF ABBREVIATIONS
Abbreviation Explanation
AIAC 2021 AIAC Rules – Global Solution
Art. Article
Artt. Articles
BCCI Bulgarian Chamber of Commerce and Industry
cf. confer (compare)
Chap. Chapter
United Nations Convention on Contracts for the International Sale of

CISG
Goods, Vienna 1980
Internet database on CISG decisions and materials, available at

CISG-online
http://www.cisg-online.ch
DAL Danubian Arbitration Law
DCL Danubian Contract Law
DCoL Danubian Conflict of Law Rules
Dutch Civil
Civil Code of the Netherlands
Code
ed. edition
emph. add. emphasis added
et al. et alii (and others)
et seq. et sequens (and following)
et seqq. et sequentes (and following; more than one page/paragraph)
etc. et cetera (and rest)
Exh. C CLAIMANT’s Exhibit
M E MOR AN DU M F OR C LA I MA NT | V
Exh. R RESPONDENT’s Exhibit
fn. Footnote
GCoS General Conditions of Sale
i.e. id est (that is)
ibid. ibidem (the same place)
ICC International Chamber of Commerce
infra See below
MCL Mediterranean Contract Law
MfC Memorandum for CLAIMANT
No. Number
NoA Notice of Arbitration
Convention on the Recognition and Enforcement of foreign arbitral

NYC
awards
p. page
para. paragraph
paras. paragraphs
PO1 Procedural Order Number 1
PO2 Procedural Order Number 2
pp. pages
Response Response to the Notice of Arbitration
RSPO Roundtable on Sustainable Palm Oil
M E MOR AN DU M F OR C LA I MA NT | VI
sc. scilicet (to wit)
Spanish
Spanish Arbitration Act 2003
Arbitration Act
supra See above
Swiss PILA Swiss Federal Act on Private International Law (PILA)
Tribunal Arbitral Tribunal
UN United Nations
UNCITRAL United Nations Commission on International Trade Law
UNCITRAL United Nations Commission on International Trade Law Arbitration

Rules Rules
UNCITRAL
UNCITRAL Model Law on International Commercial Arbitration
Model Law
UNIDROIT International Institute for the Unification of Private Law
UNCITRAL Rules on Transparency in Treaty-based Investor-State

UTR
Arbitration
v. versus
Vol. Volume
M E MOR AN DU M F OR C LA I MA NT | VII
TABLE OF LITERATURE
Cited as Citation Cited
in para.
ACHILLES Achilles, Wilhelm-Albrecht 71
UN-Kaufrechtsübereinkommen (CISG)
2nd ed., Cologne (2019)
BALTHASAR/Author Balthasar, Stephan (ed.) 5, 26
International Commercial Arbitration: International

Conventions, Country Reports and Comparative
Analysis
2nd ed., Munich (2021)
BERGER I Berger, Klaus Peter 11, 14
Re-examining the Arbitration Agreement: Applicable

Law—Consensus or Confusion?
In: International Arbitration 2006: Back to Basics?,

published by van den Berg, Albert Jan, ICCA Congress
Series No. 13, Alphen aan den Rijn (2007), pp. 301-334
BERGER II Berger, Klaus Peter 110
Die Einbeziehung von AGB in internationale

Kaufverträge
In: Zivil- und Wirtschaftsrecht im europäischen und

globalen Kontext – Festschrift for Norbert Horn on the
Occasion of his 70th Birthday, published by Berger,
Klaus Peter, Berlin (2006), pp. 3-20
M E MOR AN DU M F OR C LA I MA NT | VIII

in para.
BORN Born, Gary B. 2, 5, 7,

8, 21,
International Commercial Arbitration
40, 50
Vol. I: International Arbitration Agreements
3rd ed., Alphen aan den Rijn (2021)
BRÖDERMANN Brödermann, Eckart 29
Unidroit Principles of International Commercial

Contracts
1st ed., Baden-Baden (2018)
DREXL Drexl, Josef 83
Wissenszurechnung im Konzern,
In: Zeitschrift für das gesamte Handels- und

Wirtschaftsrecht, Vol. 161 (1997) No. 4, Frankfurt,
pp. 491-521
EISELEN Eiselen, Sieg 110
The Requirements for the Inclusion of Standard Terms

in International Sales Contracts
In: Potchefstroom Electronic Law Review, Vol. 14

(2011) No. 1, pp. 1-31
M E MOR AN DU M F OR C LA I MA NT | IX

in para.
EPPING Epping, Manja 11, 13
Die Schiedsvereinbarung im internationalen privaten

Rechtsverkehr nach der Reform des deutschen
Schiedsverfahrensrechts
In: Münchener Universitätsschriften: Reihe der

Juristischen Fakultät, published by Canaris,
Claus-Wilhelm/Lerche, Peter/Roxin, Claus, Vol. 145
(1999), Munich
FEEHILY Feehily, Ronán 5
Separability in international commercial arbitration;

confluence, conflict and the appropriate limitations in
the development and application of the doctrine
In: Arbitration International, published by Park, William

W., Vol. 34 (2018) No. 3, Oxford, pp. 355-383
FERRARI/ Ferrari, Franco/Kieninger, Eva-Maria/Mankowski, 57, 91,

KIENINGER/ Peter (ed.) 97, 100
MANKOWSKI/Author
Internationales Vertragsrecht
3rd ed., Munich (2018)
1 GABLER Mosena, Riccardo G./Hasenbalg, Claudia (ed.) 64
Gabler Kompakt-Lexikon Wirtschaft
11th ed., Wiesbaden (2013)
M E MOR AN DU M F OR C LA I MA NT | X

in para.
GRAFFI Graffi, Leonardo 5
The law applicable to the validity of the arbitration

agreement: A practitioner’s view
In: Conflict of Laws in International Arbitration,

published by Ferrari, Franco/Kröll, Stefan (eds.),
Munich (2011), pp. 19-62
HAAS Haas, Ulrich 46
The Convention on the Recognition and Enforcement of

Foreign Arbitral Awards
In: Practioner’s Handbook on International Arbitration,

published by Weigand, Frank-Bernd, Munich (2002),
pp. 400-535
HONNOLD Honnold, John O./Flechtner, Harry M. (ed.) 63
Uniform Law of International Sales under the 1980

United Nations Convention
4th ed., Alphen aan den Rijn (2009)
HONSELL/DORNIS Honsell, Heinrich (ed.)/Dornis, Tim 85, 87,

93
Kommentar zum UN-Kaufrecht
2nd ed., Berlin (2009)
KATAN Katan, Branda 83, 113
Toerekening van kennis van groepsvennootschappen
In: Ondernemingsrecht, published by Wolters Kluwer,

Vol. 6 (2019), pp. 295-307
M E MOR AN DU M F OR C LA I MA NT | XI

in para.
KINDLER Kindler, Peter 101,

110
Keine Obliegenheit zur AGB-Übersendung beim
Vertragsschluss nach CISG!
In: Festschrift for Andreas Heldrich on the Occasion of

his 70th Birthday, published by Lorenz, Stephan,
Munich (2005), pp. 225-234
KOCH Koch, Robert 51
The CISG as the Law Applicable to Arbitration

Agreements?
In: Sharing International Commercial Law across

National Boundaries, Festschrift for Albert H. Kritzer
on the Occasion of his Eightieth Birthday, published by
Andersen, Camilla/Schroeter, Ulrich, London (2008),
pp. 267-286
KOLLER Koller, Christian 11
Die Schiedsvereinbarung
In: Schiedsverfahrensrecht Handbuch: Band I, published

by Liebscher, Christoph/Oberhammer, Paul/Rechberger,
Walter H., Vienna (2011), pp. 92-339
KRÖLL I Kröll, Stefan 50
Arbitration and the CISG
In: Current Issues in CISG and Arbitration, published by

Schwenzer, Ingeborg H./Atamer, Yeşim M./Butler,
Petra, The Hague (2014), pp. 59-86
M E MOR AN DU M F OR C LA I MA NT | XII

in para.
KRÖLL II Kröll, Stefan 52
Selected Problems Concerning the CISG’s Scope of

Application
In: Journal of Law and Commerce, Vol. 25 (2015)

No. 1, pp. 39-58
KRÖLL/ Kröll, Stefan/Mistelis, Loukas A./Perales Viscasillas, 67, 71,

MISTELIS/ Maria del Pilar (eds.) 78
PERALES
UN Convention on Contracts of the International Sale of
VISCASILLAS/Author
Goods (CISG) – Commentary
2nd ed., Munich, Oxford, Baden-Baden (2019)
KRONKE/Author Kronke, Herbert/Naciemeneto, Patricia/Otto, 40, 46

Dirk/Port, Nicola Christine (eds.)
Recognition and Enforcement of Foreign Arbitral

Awards: A Global Commentary on the New York
Convention
1st ed., The Hague (2010)
2 KÜHL/HINGST Kühl, Sebastian/Hingst, Kai-Michael 55
Das UN-Kaufrecht und das Recht der AGB
In: Transport- und Vertriebsrecht 2000, Festgabe for

Professor Dr. Rolf Herber, published by Thume,
Karl-Heinz, Neuwied, Kriftel (1999), pp. 50-62
LEW/MISTELIS/ Lew, Julian D. M./Mistelis, Loukas/Kröll, Stefan 5, 46

KRÖLL
Comparative International Commercial Arbitration
1st ed., The Hague (2003)
M E MOR AN DU M F OR C LA I MA NT | XIII

in para.
LIONNET/ Lionnet, Klaus/Lionnet, Annette 50

LIONNET
Handbuch der internationalen und nationalen
Schiedsgerichtsbarkeit
3rd ed., Stuttgart, Munich, Hannover, Berlin, Weimar,

Dresden (2005)
MACKIE Mackie, Collin 83, 85
Corporate groups, common officers and the relevance of

“capacity” in question of knowledge attribution
In: Journal of Corporate Law Studies, Vol. 20 (2020)

No. 1, pp 1-38
MAGNUS Magnus, Ulrich 93, 95,

97, 101
Incorporation of Standard Terms under the CISG
In: Sharing International Commercial Law across

National Boundaries, Festschrift for Albert H Kritzer on
the Occasion of his Eightieth Birthday, London (2008),
pp. 303-325
MÜKO/Author Säcker, Franz Jürgen/Rixecker, Roland/Oetker, 51, 52,

Hartmut/Limpberg, Bettina 97
Münchener Kommentar zum Bürgerlichen Gesetzbuch
Vol. 4: Schuldrechte Besonderer Teil I, §§ 433-534,

Finanzierungsleasing, CISG
8th ed., Munich (2019)
M E MOR AN DU M F OR C LA I MA NT | XIV

in para.
NEUMAYER/ Neumayer, Karl H./Ming, Catherine 52

MING
Convention de Vienne sur les Contrats de Vente
Internationale de Marchandises – Commentaire
1st ed., Lausanne (1993)
PIKA Pika, Maximilian 16, 50,

51
Schiedsvereinbarungsstatut und konkludente
Rechtswahl
In: Praxis des internationalen Privat- und

Verfahrensrechts, published by Mansel, Heinz-Peter,
(2021) No. 6, Bielefeld, pp. 508-512
PÖTTER/HÜBNER Pötter, Sebastian/Hübner, Oliver 110
Keine wirksame Einbeziehung von AGB in einen dem

UN-Kaufrecht unterliegenden Vertrag bei bloßem
Hinweis auf den AGB-Text
In: Entscheidungen zum Wirtschaftsrecht, published by

Kübler, Bruno M., Vol. 18 (2002) No. 8, Cologne,
pp. 339-340
RAUSCHER Rauscher, Thomas 33
Internationales Privatrecht
M E MOR AN DU M F OR C LA I MA NT | XV

in para.
RISSE Risse, Jörg 82
Wissenszurechnung beim Unternehmskauf:

Notwendigkeit einer Neuorientierung
In: Neue Zeitschrift für Gesellschaftsrecht, published by

Altmeppen, Holgar, Vol. 23 (2020) No. 22, Munich,
pp. 856-864
SCHERER Scherer, Maxi/Jensen, Ole 7, 16,

20
Of implied choices and close connections: Two
pervasive issues concerning the law governing the
arbitration agreement
In: State of Arbitration – Essays in honour of Professor

George Bermann, published by Bedard, Julie/Pearsall,
Patrick W., (2022), pp. 667-680
SCHLECHTRIEM/ Schwenzer, Ingeborg (ed.)/Schroeter, Ulrich G. 56, 57,

SCHWENZER/ 58, 71,
Commentary on the Un Convention on the International
Author 78, 85,
Sale of Goods (CISG)
91, 92,
4th ed., Oxford (2016)
95, 102,
103,
107,
108,
109,
110,
112
SCHLECHTRIEM/ Schwenzer, Ingeborg/Schroeter, Ulrich G. 55

SCHWENZER/
Kommentar zum UN-Kaufrecht (CISG)
SCHROETER/Author
M E MOR AN DU M F OR C LA I MA NT | XVI

in para.
SCHLECHTRIEM/ Schlechtriem, Peter/Butler, Petra 52
BUTLER UN Law on International Sales: The UN Convention on

the International Sale of Goods
1st ed., Heidelberg (2009)
SCHLOSSER Schlosser, Peter 11, 14
Das Recht der internationalen privaten

Schiedsgerichtsbarkeit
2nd ed., Tübingen (1989)
SCHMIDT-KESSEL Schmidt-Kessel, Martin 101
Einbeziehung von Allgemeinen Geschäftsbedingungen

unter UN-Kaufrecht
In: Neue Juristische Wochenschrift, published by

Hamm, Rainer/Nirk, Rudolf, Vol. 55 (2002) No. 47,
Frankfurt, pp. 3444-3446
SCHWENZER/BEIMEL Schwenzer, Ingeborg/Beimel, Ilka H. 7
Das auf die Schiedsvereinbarung anwendbare Recht –

Zugleich: Anmerkung zu BGH, Urteil vom 26.11.2020
– I ZR 245/19
In: Zeitschrift für Internationales Wirtschaftsrecht,

published by Altmeppen, Holger/Dendorfer-Ditges,
Renate, Vol. 6 (2021) No. 2, Cologne, pp. 51-56
SCHWENZER/ Schwenzer, Ingeborg/Hachem, Pascal/Kee, 93, 95

HACHEM/ Christopher
KEE
Global Sales and Contract Law
1st ed., Oxford (2012)
M E MOR AN DU M F OR C LA I MA NT | XVII

in para.
SOERGEL/Author Soergel, Hans-Theodor/Siebert, Wolfgang (ed.) 109
Bürgerliches Gesetzbuch, Schuldrechtliche

Nebengesetze 2, Band 13
13th ed., Stuttgart (2000)
SPINDLER Spindler, Gerald 85
Wissenszurechnung in der GmbH, der AG und im

Konzern
In: Zeitschrift für das gesamte Handels- und

Wirtschaftsrecht, published by Habersack,
Mathias/Schmidt, Karsten/Schön, Wolfgang, Vol. 181
(2017) No. 2-3, Frankfurt, pp. 311-356
STAUDINGER/Author Magnus, Ulrich/Kaiser, Dagmar 58, 85,

95
J. von Staudingers Kommentar zum Bürgerlichen
Gesetzbuch: Staudinger BGB—Buch 2: Recht der
Schuldverhältnisse: Wiener UN-Kaufrecht (CISG)
16th ed., Berlin (2017)
TARAWALI/ Tarawali, Naomi/Gerardy, Patrick 8

GERARDY
The Law Governing the Arbitration Agreement–A Fresh
Look at an Old Debate after the UK Supreme Court’s
Enka Judgement and Recent Clarification by the
German Federal Court of Justice
In: Zeitschrift für Schiedsverfahren, published by

Berger, Peter/Böckstiegel, Karl-Heinz, Vol. 19 (2021)
No. 4, Munich, pp. 208-215
M E MOR AN DU M F OR C LA I MA NT | XVIII

in para.
THODE Thode, Reinhold 53
Anmerkung zu: BGH 1. Zivilsenat, Urteil vom

26.11.2020-I ZR 245/19
In: jurisPR-BGHZivilR 10/2021 Anmerkung 6
VAN DEN BERG van den Berg, Albert Jan 11, 14,
38, 46
The New York Arbitration Convention of 1958:
Towards a Uniform Judicial Interpretation
1st ed., Deventer (1981)
VOGENAUER/ Vogenauer, Stefan (ed.) 31, 54,

Author 55
Commentary on the UNIDROIT Principles of
International Commercial Contract (PICC)
2nd ed., Oxford (2015)
WOLFF/Author Wolff, Reinmar 7, 26,

38, 40,
New York Convention – Convention on the recognition
43, 46
and enforcement of foreign arbitral awards of June
1958: article by article commentary
2nd ed., Munich (2019)
M E MOR AN DU M F OR C LA I MA NT | XIX
TABLE OF CASES
in para.
Austria
Austrian Oberster Gerichtshof 5

Supreme Court (Austrian Supreme Court)
22 February
2007 22 February 2007
6 Ob 178/17w
Insulating Oberster Gerichtshof 87

Material Case (Austrian Supreme Court)
13 December 2012
1 Ob 215/12t
CISG-online number 2438
Italian Knitwear Oberster Gerichtshof 65

Case III (Austrian Supreme Court)
29 June 2017
8 Ob 104/16a
Monoammonium Oberster Gerichtshof 71

Phosphate Case (Austrian Supreme Court)
20 March 1997
2 Ob 58/97m
M E MOR AN DU M F OR C LA I MA NT | XX

in para.
Propane Gas Oberster Gerichtshof 56, 78,

Case (Austrian Supreme Court) 91
6 Februar 1996
10 Ob 518/95
Spacers For Oberlandesgericht Linz 58, 95

Insulation Glass (Court of Appeal Linz)
Case
8 August 2005
3 R 57/05f
Tantalum Oberster Gerichtshof 95, 109,

Powder Case I (Austrian Supreme Court) 114
17 December 2003
7 Ob 275/03x
Tantalum Oberster Gerichtshof 78, 107

Powder Case II (Austrian Supreme Court)
31 August 2005
7 Ob 175/05v
M E MOR AN DU M F OR C LA I MA NT | XXI
Belgium
Gantry S.A. v. Tribunal de Commerce de Nivelles 92, 109

Research (Commercial Court Nivelles)
Consulting
Marketing 19 September 1995
1707/93
M E MOR AN DU M F OR C LA I MA NT | XXII
Canada
Proctor v. Court of Appeal Manitoba 40

Schellenberg
11 December 2002
2002 MBCA 170
M E MOR AN DU M F OR C LA I MA NT | XXIII
Egypt
Misr Insurance ‫محكمة النقض المصرية‬ 14

v. MV Dominion (Egypt Court of Cassation)
13 June 1989
No. 1259/1989
M E MOR AN DU M F OR C LA I MA NT | XXIV
France
Bomar Oil N.V. Cour d’appel de Paris 44

v. Entreprise (Court of Appeal Paris)
Tunisienne
d’Activités 20 January 1987
Pétrolières
In: Yearbook Commercial Arbitration, published by van
den Berg, Albert, Vol. XIII (1988), Zuidpoolsingel, p. 466
Calzados Cour d’appel de Grenoble 76

Magnanni v. (Court of Appeal Grenoble)
Shoes General
International 21 October 1999
S.a.r.l.
97/03974
Hecht v. Cour de cassation 55

Busiman’s (French Supreme Court)
4 July 1972
In: Journal du Droit International, published by Goldman,

Berthold, Vol. 99 (1972) No. 4, Paris, pp. 843-846
M E MOR AN DU M F OR C LA I MA NT | XXV
Germany
BGH Neue Bundesgerichtshof 82

Juristische (German Federal Court)
Wochenschrift 01 March 1984

1984
IX ZR 34/83

Wochenschrift
1990 08 December 1989
V ZR 246/87

Wochenschrift
1995 17 May 1995
VIII ZR 70/94
Dutch Plants Landgericht Coburg 93

Case I (District Court Coburg)
12 December 2006
22 O 38/06
Ethyl Acetate Oberlandesgericht Dresden 67

Case (Court of Appeal Dresden)
27 December 1999
2 U 2723/99
M E MOR AN DU M F OR C LA I MA NT | XXVI
Film Coating Landgericht Heilbronn 110

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Case (German Federal Court) 53
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M E MOR AN DU M F OR C LA I MA NT | XXVII
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(Court of Appeal Zweibrücken)
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M E MOR AN DU M F OR C LA I MA NT | XXVIII
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Fallimento (Court of Appeals Genoa)
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v. Federal (Supreme Court of Italy)
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M E MOR AN DU M F OR C LA I MA NT | XXIX
Japan
Japan 東京高等裁判所 14
Educational v. (High Court of Tokyo)
Feld
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1499 Hanrei jiho 68
M E MOR AN DU M F OR C LA I MA NT | XXX
Singapore
FirstLink High Court of Singapore 14, 15
19 June 2014
Suit No. 915 of 2013
M E MOR AN DU M F OR C LA I MA NT | XXXI
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G. S. A. v. T. Ltd Bundesgericht 44
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M E MOR AN DU M F OR C LA I MA NT | XXXII
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M E MOR AN DU M F OR C LA I MA NT | XXXIII
United Kingdom of Great Britain and Northern Ireland
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Petroleum v.
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24, 25
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Holding Corp v.
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Resources Ltd
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Sulamerica Court of Appeal of England and Wales 22, 25
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Case No. A3/2012/0249
M E MOR AN DU M F OR C LA I MA NT | XXXIV
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Aceros United States Court of Appeal 44

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M E MOR AN DU M F OR C LA I MA NT | XXXV
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M E MOR AN DU M F OR C LA I MA NT | XXXVI
TABLE OF ARBITRAL AWARDS AND DECISIONS

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52/65
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No. 5832
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published by Sigvard, Jarvin/Derains, Yves/Arnaldez,
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No. 1507
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published by Jarvin, Sigvard/Derains, Yves (eds.), Deventer
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M E MOR AN DU M F OR C LA I MA NT | XXXVII

No. 9302
Final Award in ICC Case No. 9302 from 1998

published by Arnnaldez, Jean-Jacques/Derains,
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ICC Award No party names available 5

6149/1990
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6719/1994
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6515/1994
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Ltd v. Altos
Hornos de 3 August 2011
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M E MOR AN DU M F OR C LA I MA NT | XXXVIII
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Sales Contracts
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M E MOR AN DU M F OR C LA I MA NT | XXXIX
TABLE OF OTHER SOURCES

in
para.
EISELEN, Eiselen, Sieg 58, 92,

CISG-AC No. 13 95, 102
CISG Advisory Council, Inclusion of Standard Terms under
the CISG
Adopted by the CISG Advisory Council following its 17th

meeting held in Villanova, Pennsylvania, USA, on 20
January 2013
LARSON Larson, Aaron 71
Piercing the Corporate Veil
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https://www.expertlaw.com/library/business/
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Ed.
UNIDROIT Principles of International Commercial
Contracts 2016
Rome (2016)
M E MOR AN DU M F OR C LA I MA NT | XL
Secretariat Commentary on the Draft Convention on Contracts for 76

Commentary the International Sale of Goods, Prepared by the
Secretariat
Secretariat of the United Nations Commission on

International Trade Law (1979)
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UNCITRAL The United Nations Commission on International Trade 40

Recommendation Law
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paragraph 2, and Art. VII paragraph 1of the Convention on
the recognition and enforcement of foreign arbitral awards
A/6/17
7 July 2006
39th Session
M E MOR AN DU M F OR C LA I MA NT | XLI
STATEMENT OF FACTS
The Parties to this Arbitration are ElGuP plc (“CLAIMANT”), based in Mediterraneo and JAJA
Biofuel Ltd (“RESPONDENT”), based in Equatoriana (both the “Parties”). CLAIMANT is one of
the largest producers of RSPO-certified palm kernel oil. RESPONDENT is a well-established
producer of biofuel. Since 2018, it is a 100% subsidiary of the Ruritanian multinational
conglomerate Southern Commodities.
The Arbitration relates to whether the Parties have entered into a sales contract for the delivery
of 20,000t RSPO-certified palm oil per annum for the years 2021-2025 (the “Sales Contract”).
2010 – Mr Chandra, representing CLAIMANT, and Ms Bupati, then representing

2018 Southern Commodities, concluded four to five contracts per annum (at least 40
in total) for the delivery of palm kernel oil.
Late Southern Commodities acquired RESPONDENT and transferred its palm kernel
2018 oil unit to RESPONDENT. Subsequently, CLAIMANT delivered the oil ordered by
Southern Commodities since then directly to RESPONDENT.
28/3/2020 At the Palm Oil Summit, Ms Bupati, now representing RESPONDENT, and
Mr Chandra negotiated a long-term contract under which CLAIMANT was to
deliver its entire production of RSPO-certified palm oil to RESPONDENT.
1/4/2020 RESPONDENT ordered 20,000t per annum of RSPO-certified palm oil as

discussed at the Palm Oil Summit for the years 2021-2025.
9/4/2020 CLAIMANT signed the contractual documents that declared CLAIMANT’s

General Conditions of Sale (“GCoS”) applicable and sent the documents to
RESPONDENT. The accompanying email stated that Mediterranean law governs
the Sales Contract as discussed at the Palm Oil Summit.
Early RESPONDENT requested a list of acceptable banks for the letter of credit that it
May was required to open under the Sales Contract. In a call, CLAIMANT pointed out
to RESPONDENT that CLAIMANT had not yet received a signed copy of the Sales
2020
Contract. RESPONDENT was to investigate that but never came back to it.
30/5/2020 RESPONDENT contacted several acceptable banks for the letter of credit.
29/10/2020 CLAIMANT learned from an article in Commodities News that RESPONDENT had
allegedly terminated the contract negotiations with CLAIMANT.
30/10/2020 RESPONDENT terminated the “negotiations” with CLAIMANT via letter.
15/7/2021 After Mediation vastly failed, CLAIMANT initiated the Arbitral Proceedings.
M E MOR AN DU M F OR C LA I MA NT | 1
SUMMARY OF ARGUMENT
Pacta sunt servanda.
The Sales Contract that the Parties concluded was meant to be the solution to a precarious
situation both Parties found themselves in. Thus, it was more than merely the legally binding
agreement on the delivery of palm oil. RESPONDENT was in dire need of palm oil. CLAIMANT
wanted to sell large parts of its production to a reliable partner. RESPONDENT led CLAIMANT to
believe that it wanted to re-establish the long-lasting and fruitful relationship CLAIMANT had
pursued with Southern Commodities. Expecting to have found the reliable partner it was
looking for, CLAIMANT treated both companies alike and offered RESPONDENT not only
conditions that were under market price but also trusted it with large parts of its palm oil
production. Having gladly accepted these privileged terms, RESPONDENT now tries to evade the
suddenly unwanted contractual obligations under legal pretenses on every feasible level.
Part I: The Parties Validly Agreed on the Jurisdiction of the Arbitral Tribunal
The Parties concluded a valid Arbitration Agreement that confers jurisdiction to hear the case
to the Arbitral Tribunal (the “Tribunal”). The Arbitration Agreement as a procedural contract
must be interpreted separately from the Sales Contract. The Parties subjected the Arbitration
Agreement to Danubian law by choosing Danubia as Seat of Arbitration. Under Danubian law,
the Arbitration Agreement was validly included in the Sales Contract and meets the formal
requirements. Besides that, even if the Law of Mediterraneo were to apply—excluding or
including the CISG—the Parties concluded a valid Arbitration Agreement.
Part II: The Parties Validly Concluded the Sales Contract in 2020
In 2020, the Parties validly concluded the Sales Contract. RESPONDENT placed an offer on
1 April 2020. With its reply on 9 April 2020, CLAIMANT accepted the offer, which led to the
valid Sales Contract. Even if CLAIMANT’s reply constitutes a counteroffer, RESPONDENT
accepted this offer impliedly either by silence or by other conduct.
Part III: The GCoS Were Validly Included in the Sales Contract
The GCoS were validly included in the Sales Contract. The requirements to include standard
terms in a contract are met. First, CLAIMANT made a clear reference that the GCoS apply.
Second, CLAIMANT did not have to make the GCoS available again. RESPONDENT was aware of
their content. Besides that, the application of the GCoS was part of the Party Practice.
ARGUMENT
PART I: THE PARTIES VALIDLY AGREED ON THE JURISDICTION OF THE

TRIBUNAL
1 CLAIMANT requests the Arbitral Tribunal to find that it has jurisdiction to hear to case. This is
because the Parties validly concluded the Arbitration Agreement.
2 On 7 October 2021, the Parties chose the 2021 AIAC Rules – Global Solution (“AIAC”) as the
rules governing this Arbitration [PO1-II, p. 46]. Pursuant to Rule 20.1 AIAC, the Tribunal
“shall have the power to rule on its own jurisdiction, including any objections with respect to
the existence or validity of the arbitration agreement”. This provision expresses the generally
recognized competence-competence [cf. BORN, p. 1051; ICC Award 6515/1994].
3 Danubian law governs the Arbitration Agreement under which the Tribunal has jurisdiction [I].
Even if the Tribunal were to find that Mediterranean law—including or excluding the CISG—
were to apply, quod non, the Tribunal still has jurisdiction because the Parties’ Arbitration
Agreement is valid under Mediterranean law [II].
I. THE ARBITRATION AGREEMENT IS VALID UNDER THE APPLICABLE DANUBIAN LAW
4 Danubian law governs the Arbitration Agreement because the Parties chose Danubia as Seat of
Arbitration [A]. The Arbitration Agreement is substantively and formally valid [B].
A. DANUBIAN LAW GOVERNS THE ARBITRATION AGREEMENT
5 Danubian law governs the Arbitration Agreement. The law governing the arbitration agreement
can differ from the law governing the main contract [Austrian Supreme Court, 22 February
2007; ICC Case No. 1507; ICC Case No. 9302; LEW/MISTELIS/KRÖLL, Chap. 6 paras. 6 et
seqq.; GRAFFI, p. 23]. This follows from the Doctrine of Separability, which civil and common
law jurisdictions around the world adopted [BALTHASAR/Balthasar, Part. I para. 24; FEEHILY,
pp. 356 et seq.; BORN, pp. 375 et seq.; Hecht v. Busiman’s, p. 845; Fiona Trust & Holding Corp
v. Privalov, para. 12]. Moreover, Art. 16(1) Danubian Arbitration Law (“DAL”), a verbatim
adoption of the UNCITRAL Model Law, recognizes the Doctrine of Separability, as does
Art. 20.1(a) AIAC with the identical provision.
6 The Arbitration Clause (“Art. 9 GCoS”), expressly provides for Danubia as Seat of Arbitration.
Art. 9 GCoS also contains a choice of law clause which states that “[t]his contract shall be
governed by the substantive law of Danubia” [Exh. R4, p. 32]. However, CLAIMANT informed
RESPONDENT at the Summit that the Sales Contract is submitted to Mediterranean and not
Danubian law [Exh. C2, p. 12]. When the Parties concluded the Arbitration Agreement, neither
of them indicated to change the Seat of Arbitration as well. CLAIMANT only changed the law
applicable to the Sales Contract as its lawyer advised [Exh. C1, para. 13]. RESPONDENT agreed
to this change [PO2-33, p. 52].
7 There is no mandatory conflict of law provision for the Tribunal to determine the law governing
the Arbitration Agreement. However, Danubia and Equatoriana—where the award will be
enforced—are member states of the New York Convention on the Recognition and
Enforcement of Foreign Arbitral Awards (“NYC”) [PO1-III(3), p. 47]. In order to ensure an
enforceable award, the Tribunal should apply Art. V(1)(a) NYC as the relevant conflict of law
rule [cf. PO2-32, p. 52]. Courts adopted this approach [cf. Swiss Federal Court 1995, pp. 7 et
seq.; Ground Mace Case, p. 21 para. 51]. Although the NYC primarily deals with the
recognition and enforcement of arbitral awards, it also applies to determine the law applicable
to arbitration agreements [Bevrachting v. Fallimento; Ground Mace Case, p. 21 para. 51; BORN,
p. 531; WOLFF/Wilske/Fox, Art. V para. 111; SCHERER, p. 668; SCHWENZER/BEIMEL, p. 52].
8 Danubian law governs the Arbitration Agreement as per Art. V(1)(a) NYC. Art. V(1)(a) NYC
provides for two steps: primarily, a tribunal must recognize the parties’ agreement. If there is
no indication of a valid party agreement, the law of the seat of arbitration applies as a default
rule [BORN, p. 1051; TARAWALI/GERARDY, p. 213]. Furthermore, Rule 13.5(a) AIAC
recognizes that the parties’ agreement primarily determines the applicable law.
9 The Parties have not explicitly chosen a law to govern the Arbitration Agreement. However,
the Parties implicitly chose Danubian law by choosing Danubia as Seat of Arbitration [1]. The
explicit choice of law for the Sales Contract does not extend to the Arbitration Agreement [2].
Alternatively—if the Tribunal were to find that there has not been an implicit choice of law—
Danubian law governs the Arbitration Agreement as per the default rule of Art. V(1)(a)
NYC [3].
1. The Parties Chose Danubian Law by Choosing Danubia as Seat of Arbitration
10 The choice of Danubia as Seat of the Arbitration implies, as per the Parties’ intent, the choice
of law for the Arbitration Agreement. Reasonable parties prefer consistency between the law at
the seat of the arbitration (the “Curial Law”) and the law governing the arbitration
agreement [a]. Scholars, Courts and Tribunals adopted this approach [b]. Moreover, the in
favorem validitatis approach confirms the application of the Curial Law [c].
a. Reasonable Parties Prefer Consistency between the Curial Law and the Law
Governing the Arbitration Agreement
11 Reasonable parties prefer consistency between the Curial Law and the law governing the
arbitration agreement rather than between the law governing the arbitration agreement and the
main contract. Conflicts between the Curial Law and the law governing the arbitration
agreement can lead to major complications in the decision-making process [VAN DEN BERG,
p. 292; BERGER I, pp. 320 et seq.; KOLLER, § 3/61; EPPING, pp. 55 et seq.]. Even more so, these
complications subsequently influence the setting aside proceedings before a state court [ibid.].
This problem was pointed out by scholars [SCHLOSSER, p. 246] and is particularly relevant for
the case at hand:
12 Applying Mediterranean law, as the law of the Sales Contract, to the Arbitration Agreement
could lead to major problems. In contrast to Danubia, Mediterraneo is a contracting state of the
CISG. Whether the CISG applies to arbitration agreements is highly disputed: a Danubian state
court would assess the validity of the Arbitration Agreement under Mediterranean law
excluding the CISG [PO1-III(4), p. 47]. Conversely, a state court in Equatoriana, where
RESPONDENT holds its assets, would assess the validity of the Arbitration Agreement under
Mediterranean law including the CISG [PO1-III(4), p. 47]. Under Mediterranean contract law
(“MCL”) excluding the CISG, the Arbitration Agreement is at lower risk of invalidity than
including the CISG. This is because the CISG imposes significantly stricter requirements on
the inclusion of standard terms [cf. infra paras. 56 et seqq.]. Therefore, the Arbitration
Agreement is at a higher risk of invalidity in Equatoriana [infra para. 18]. Consequently, the
Tribunal might render an unenforceable award because Equatorianian state courts do apply the
CISG. These complications can be avoided entirely if Danubian law—that does not include the
CISG—applies.
13 In contrast, the Parties have no interest in applying the law of the Sales Contract also to the
Arbitration Agreement. The interpretation of the Arbitration Agreement and the Sales Contract
under different sets of law has no negative effect on the conduct of the Arbitral Proceedings [cf.
EPPING, p. 56]. It seems that RESPONDENT is trying to escape its responsibilities by submitting
that the Parties chose a law under which their Arbitration Agreement would be invalid.
b. Leading Authorities Apply the Law of the Seat to the Arbitration Agreement
14 By choosing a seat of arbitration, parties choose the Curial Law as the law governing the
arbitration agreement. This holds true, even if there is an explicit choice of the law governing
the main contract. Scholars [BERGER I, p. 320; VAN DEN BERG, p. 293; SCHLOSSER, para. 254],
arbitral tribunals [ICC Award 6149/1990; ICC Award 6719/1994; BCCI Award 52/65], and
state courts in both common and civil law systems [FirstLink (Singapore); Rocco Giuseppe v.
Federal Commerce (Italy); Japan Educational v. Feld (Japan); Misr Insurance v. MV
Dominion (Egypt)] confirm this result.
15 The High Court of Singapore held in its FirstLink decision in 2014 that the choice of seat also
implies the choice in favor of the law of the seat. FirstLink addresses which law governs the
arbitration agreement. It found that selecting an arbitral seat presupposes the parties’ intention
to have that law of the seat recognize and enforce the arbitration agreement [FirstLink,
para. 14]. It held “that parties have implicitly selected the law of the seat to govern matters
including the supervisory court’s powers to determine a jurisdictional dispute in relation to the
validity of an arbitration agreement” [FirstLink, para. 15]. The High Court of Singapore
stressed that this result provides consistency [ibid.]. As both Parties are reasonable
businesspeople, they wanted consistency of the law of the Seat and the law governing the
Arbitration Agreement. This rationale applies to the case at hand: by selecting Danubia as
Arbitral Seat, the Parties’ intended to have that law governing the Arbitration Agreement.
Further, such an approach avoids the difficulties mentioned above [supra paras. 11 et seq.].
c. The in Favorem Validitatis Approach Confirms Applying the Curial Law
16 Moreover, it is widely acknowledged that an arbitration agreement should be interpreted under

the law under which it is valid. Scholars refer to this approach as in favorem validitatis [PIKA,
p. 511; SCHERER, p. 670]. Statuary law of different countries explicitly recognize it [cf.
Art. 78(2) of the Swiss PILA; Art. 10:166 Dutch Civil Code; Art. 9(6) 2003 Spanish Arbitration
Act]. This principle ensures that the parties’ consensus to arbitrate is upheld to the extent
possible under the most favorable of several possibly relevant legal systems [SCHERER, p. 670].
17 Accordingly, the Tribunal should apply the law of the Seat in the present case. The Parties
consented to arbitrate. Mr Chandra told Ms Bupati at the Palm Oil Summit that for CLAIMANT
agreeing on anything but arbitration would be very difficult [Exh. C1-11, p. 10]. Arbitration as
a dispute resolution method is a common business practice in the palm oil industry [PO2-11,
p. 49]. Ms Bupati did not object to arbitration but suggested to select a non-industry related
arbitration institution which the GCoS, however, already provided for [Response-12, p. 27].
Thus, the Parties’ consented to arbitrate.
18 Conversely, this consensus is thwarted when applying the law of the Sales Contract. The
Arbitration Agreement is included in the Sales Contract as a standard term. Under
Mediterranean law—as the law of the Sales Contract—the requirements to include standard
terms are highly disputed and unclear [infra paras. 49 et seqq.]. There is a serious risk that the
Arbitration Agreement would be invalid under Mediterranean law. Under Danubian law,
however, the requirements to include standard terms are low [PO1-III(3), p. 47]. Thus, by
applying the law of the Seat, the Parties’ consensus to arbitrate is upheld.
2. The Choice of Mediterranean Law Does Not Extend to the Arbitration Agreement
19 The express choice of Mediterranean law for the Sales Contract does not indicate the Parties’
intent to subject their Arbitration Agreement to the same law. First, the wording shows that the
Parties did not intend for the choice of law for the Sales Contract to extend to the Arbitration
Agreement [a]. Second, the nature of arbitration agreements speaks against applying the law of
the main contract [b]. Third, the 2020 Enka v. Chubb decision provides further guidelines for
the Tribunal to rule in favor of the law of the Seat [c]. Lastly, Sulamerica established the
exception Enka v. Chubb confirmed [d].
a. The Wording Shows That the Parties Did Not Intend for the Choice of Law of the
Sales Contract to Extend to the Arbitration Agreement
20 The wording of the Parties’ correspondence shows that they did not intend for the choice of law
for the Sales Contract to extend to the Arbitration Agreement. The Tribunal may assess the
Parties’ intention by interpreting the choice of law for the Sales Contract [cf. SCHERER, p. 675].
When parties use narrow wording (e.g., “the contract is subject to the law of X”), it indicates
that this choice is limited to the main contract [SCHERER, p. 675]. In the case at hand, the Parties
always explicitly spoke about changing the law of the “Sales Contract” to Mediterraneo [Exh.
C1-13, p. 10; Exh. C4, p. 17; Exh. C2, p. 12]. CLAIMANT deliberately used such clear and
specific wording. An interpretation giving this choice of law a wider meaning than anticipated
would contradict the Parties’ intention. Claimant gave RESPONDENT no indication that this law
would extend to the Arbitration Agreement. RESPONDENT even introduced “the sales contract”
in their written correspondence for the first time [Exh. C2, p. 12]. Thus, CLAIMANT could
justifiably trust that it was understood correctly. This shows that the Parties did not intend for
the choice of law of the Sales Contract to extend to the Arbitration Agreement.
b. The Nature of Arbitration Agreements Speaks Against Applying the Law of the
Main Contract
21 Furthermore, the nature of arbitration agreements speaks against applying the law of the main
contract. The Arbitration Agreement is a separate contract [cf. supra para. 5]. It is different in
its terms, character and objectives from the Parties’ underlying commercial contract [cf. BORN,
p. 535]. The Arbitration Agreement’s function is solely to stipulate a mechanism to settle
possible disputes [ibid.]. In contrast, the Sales Contract exclusively governs the economic
transaction.
c. The 2020 Enka v. Chubb Decision Provides Further Guidelines for the Tribunal
22 The 2020 Enka v. Chubb decision provides further guidelines for the Tribunal to rule in favor
of the law of the Seat. The UK Supreme Court had to deal with the question, which law applies
to an arbitration agreement. To determine the law applicable, the Supreme Court followed the
three-stage enquiry of the UK Court of Appeal's 2012 Sulamerica decision: (i) express or
(ii) implied choice of law and if none (iii), closest connection [Sulamerica, para. 25]. In Enka
v. Chubb, the parties did not explicitly choose a law governing the main contract [Enka v.
Chubb, paras. 149 et seq.]—an approach similar to the NYC. The UK Supreme Court applied
the closest-connection test and stated that the law of the seat of arbitration applies [Enka v.
Chubb, para. 156]. However, it stated obiter that if there were a choice of law for the main
contract, this law should also govern the arbitration agreement [Enka v. Chubb, paras. 53 et
seq.]. Thus, at first glance this decision seems to speak against CLAIMANT’s submission. Yet,
at a closer look, the very opposite is the case.
23 The UK Supreme Court explicitly stated: “[a]dditional factors which may, however negate such
an inference [i.e. to apply the choice of law of the main contract] and may in some cases imply
that the arbitration agreement was intended to be governed by the law of the seat are: “[…] the
existence of a serious risk that—if governed by same law as the main contract—the
arbitration agreement would be ineffective.” [Enka v. Chubb, para. 170(vi), emph. add.]. In
the present case, the Parties wanted a valid Arbitration Agreement. Under Mediterranean law,
there is a serious risk that the Arbitration Agreement is ineffective [supra para. 18].
24 The UK Supreme Court furthermore stated that this exception can even be reinforced by
circumstances indicating that the Parties deliberately chose the seat as a neutral forum for the
arbitration [Enka v. Chubb, para. 170(vi), similarily: Carpatsky Petroleum v. PJSC Ukrnafta,
para. 70]. CLAIMANT has its seat in Mediterraneo [NoA-1, p. 4]. RESPONDENT’s seat is in
Equatoriana [NoA-2, p. 4]. Thus, Danubia provides a neutral forum for the Arbitration.
Therefore, the exception the UK Supreme Court established applies to the present case.
d. Sulamerica Established and Applied the Exception Enka v. Chubb Confirmed
25 RESPONDENT cannot argue that the exception Enka v. Chubb confirmed do not apply in the
present case. The UK Supreme Court relied in Enka v. Chubb on the Sulamerica decision of
the UK Court of Appeal of 2012 [Enka v. Chubb, paras. 104, 123, 217]. In Sulamerica, there
was an explicit choice of Brazilian law for the main contract; the seat of arbitration was London.
The UK Court of Appeal held that in absence of any indication to the contrary, the parties in
principle intended their entire relationship to be governed by the same system of
law [Sulamerica, para. 11], i.e., the law of the main contract. Yet, in this case the UK Court of
Appeal decided that the law of the seat was applicable to the arbitration agreement [ibid.
para. 15]. It held that Brazilian law would significantly undermine the agreement [ibid.
paras. 31 et seq.]. The same rationale applies to the present case [supra para. 18].
3. Alternatively, Danubian Law Governs the Arbitration Agreement Because of the

Default Rule
26 Even if the Tribunal were to find that the Parties did not choose Danubian law, Danubian law
applies by virtue of the default rule in Art. V(1)(a) NYC. If the parties have not chosen a law
governing the arbitration agreement, Art. V(1)(a) NYC leads to the law of the country where
the award was made, i.e., the law of the seat of arbitration [BALTHASAR/Solomon, Part II
para. 28, 213; WOLFF/Ehle, Art. I para. 99]. If the Tribunal does not find any indication on the
choice of law for Danubia, Danubian law still applies as the law of the Seat.
B. THE ARBITRATION AGREEMENT IS SUBSTANTIVELY AND FORMALLY VALID
27 The Parties concluded a valid Arbitration Agreement. It is substantively valid under Danubian
Law [1] Furthermore, it meets all the formal requirements [2].
1. The Parties Concluded a Substantively Valid Arbitration Agreement
28 The Parties concluded the Arbitration Agreement by validly including Art. 9 GCoS in their
Sales Contract. Under Danubian Contract Law (“DCL”), a standard term is validly included in
an existing contract when the user makes a clear statement that such conditions will
apply [PO1-III(3), p. 47]. They do not need to be made available [ibid.]. First, Art. 9 GCoS is
a standard term [a]. Second, the Parties included Art. 9 GCoS in the Sales Contract [b]. Lastly,
the discussion on transparency did not hinder the inclusion of Art. 9 GCoS [c].
a. The Arbitration Clause Is a Standard Term under DCL
29 Art. 9 GCoS is a standard term under DCL. The DCL is based on the Unidroit
Principles [PO2-35, p. 53]. Under DCL, a standard term requires three cumulative criteria: to
be drafted in advance, for general and repeated use by one party, and that it was used without
negotiations [cf. BRÖDERMANN, Art. 2.1.19 p. 62].
30 First, CLAIMANT drafted Art. 9 GCoS in advance [cf. Response-10, p. 26]. Second, CLAIMANT
uses Art. 9 GCoS in the 2020 version of its GCoS for all its contracts thus, generally and
repeatedly [cf. Exh. C1-13, p. 10]. Third, the Parties did not negotiate Art. 9 GCoS neither by
changing the applicable law to the Sales Contract [aa] nor by RESPONDENT mentioning to apply
the UNCITRAL Rules on Transparency in Treaty-based Investor-State
Arbitration (“UTR”) [bb].
aa. The Parties Did Not Negotiate When Changing the Applicable Law to the Sales
Contract
31 The Parties did not negotiate Art. 9 GCoS when they changed the applicable law for the Sales
Contract to the law of Mediterraneo. Under DCL, to “negotiate” means that the opposite party
must have had a real opportunity to influence the content [cf. VOGENAUER/Naudé, Art. 2.1.19
para. 3]. CLAIMANT unilaterally proposed to change the applicable law to the law of
Mediterraneo. RESPONDENT agreed without even further inquiring [Exh. C2, p. 12].
RESPONDENT was at no point able to influence the choice of law for the Sales Contract. Thus,
negotiations about the applicable law never took place.
bb. The Parties Did Not Negotiate When They Discussed Applying the UTR
32 When the Parties discussed applying the UTR, they did not negotiate Art. 9 GCoS. They never
wanted to change its content. They only considered applying the transparency rules additionally.
Art. 9 GCoS should apply in any event. Its content does not withstand applying the UTR. If
parties add further agreements, those do not affect the character of a standard term. Thus, the
Parties did not negotiate Art. 9 GCoS.
b. CLAIMANT Validly Included Art. 9 GCoS in the Sales Contract
33 CLAIMANT validly included Art. 9 GCoS in the Sales Contract. The Sales Contract is validly
concluded. Whether the Parties concluded a contract is to be assessed under Mediterranean law
including the CISG [infra paras. 91 et seqq.]. The Tribunal may apply the Danubian conflict of
law rules which are a verbatim adoption of the Hague Principles (“DCoL”) [PO2-36, p. 53; cf.
RAUSCHER, para. 509]. As per Art. 2(1) DCoL, the law governing the question whether parties
concluded a contract is subject to the law chosen by the parties. The Parties chose
Mediterranean law including the CISG to govern the Sales Contract.
34 In its email, as well as in the contract template, CLAIMANT made a clear statement that its
GCoS—containing Art. 9—will apply. Thereby, CLAIMANT validly included Art. 9 GCoS as a
standard term in the existing Sales Contract.
c. The Discussion on Transparency Did Not Hinder the Inclusion of Art. 9 GCoS
35 The discussion on transparency did not hinder the inclusion of Art. 9 GCoS. CLAIMANT was
aware of the importance of that detail to RESPONDENT. Mr Rain acknowledged Ms Bupati’s
suggestion to apply the UTR. After having received her offer, he immediately sought legal
guidance on the scope of application of the UTR [Exh. C5-5, p. 18]. The lawyer confirmed that
these only apply in treaty-based investor-state arbitration [cf. ibid.]. Mr Rain then got back to
Ms. Fauconnier and informed her of this [ibid.]. She agreed that the UTR were not suitable for
the Sales Contract [ibid.]. No further discussion took place. Instead, RESPONDENT was
satisfied [cf. ibid.]. If transparency had really been an ongoing issue, Ms. Fauconnier could have
simply brought it up again. The question on transparency had been solved amicably and
therefore did not affect the inclusion of Art. 9 GCoS.
36 Alternatively, if the Tribunal were to find that RESPONDENT agreed to arbitration only under the
reservation that a transparency mechanism would be implemented, the Arbitration Agreement
would nevertheless be valid: The Parties then—failing any indication to the contrary on either
side—agreed to provide for “some sort of transparency” [cf. Exh. C2, p. 12] which has to be
understood as a request to the Tribunal to ensure a standard of transparency, for example by
applying the UTR analogously. Accordingly, the issue of transparency did not remain open and
in no event, is there a lack of agreement.
2. The Arbitration Agreement Meets All Formal Requirements
37 The Parties’ Arbitration Agreement fulfills the formal requirements of the NYC. The
Arbitration Agreement fulfills Art. II(2) second option NYC [a]. Alternatively, the Arbitration
Agreement is still valid under the More Favorable Law Rule of Art. VII NYC [b].
a. The Arbitration Agreement Fulfills the Formal Requirements of Art. II(2) NYC
38 The Parties’ Arbitration Agreement meets the “in writing” requirement of Art. II(2) NYC. By
making a reference to the GCoS in an exchange of emails, the Parties met the requirements of
Art. II(2) second option NYC. A reference to another document containing the arbitration
clause in an exchange of documents fulfills Art. II(2) second option NYC [VAN DEN BERG,
p. 210; WOLFF/Wolff, Art. II para. 137]. The arbitration agreement does not need to be
contained in the exchanged documents themselves [ibid.]. Regarding the NYC’s general aim to
facilitate recognition of arbitration agreements, it demands to interpret the form requirement
open to evolving business practices, such as including general terms [WOLFF/Wolff, Art. II
para. 109].
39 Those requirements were met. CLAIMANT made a reference to the GCoS containing the
Arbitration Agreement in the exchange of emails between the Parties [aa]. RESPONDENT is in
no need of protection, thus this general reference to the GCoS suffices [bb].
aa. CLAIMANT Made a Reference to the GCoS Containing the Arbitration Agreement
in the Exchange of Emails
40 CLAIMANT made a reference to its GCoS containing the Arbitration Agreement in the exchange
of emails between the Parties. An exchange of emails falls under the scope of Art. II(2) second
option NYC although the provision does not explicitly mention emails. The provision is to be
seen as non-exhaustive [WOLFF/Wolff, Art. II para. 104; BORN, p. 716; Proctor v. Schellenberg,
para. 18; 2006 UNCITRAL Recommendation No. 1]. Art. II(2) NYC also encompasses modern
communication under the second option “exchange of letters and telegrams” [Chloe Z Fishing
co., Inc v. Odyssey Re (London) Ltd; WOLFF/Wolff, Art. II para. 130; BORN, p. 724; KRONKE/
Schramm et al., p. 75].
41 On 1 April 2020, RESPONDENT sent an offer to CLAIMANT via email, already mentioning
arbitration [Exh. C2, p. 12]. CLAIMANT replied on 9 April 2020, also via email, and stated that
the GCoS—containing Art. 9—apply [Exh. C4, p. 17]. RESPONDENT then replied via email,
“thank you for the contractual documentation” [Exh. R2, p. 30]. It hereby referred to
CLAIMANT’S email containing the contractual documents as well as the reference to the GCoS.
Thus, by the written reference in the email to the GCoS, CLAIMANT and RESPONDENT concluded
an Arbitration Agreement by reference contained in an exchange of emails.
bb. This General Reference Is Sufficient Because RESPONDENT Is in No Need of

Protection
42 To meet the “in writing” requirement of the NYC, this general reference to the GCoS is
sufficient. A specific reference to the Arbitration Clause is not necessary. A general reference
suffices because it fulfills both objectives of Art. II(2) NYC—securing evidence and protecting
parties from hidden arbitration clauses.
43 First, the general reference suffices for the purpose of Art. II(2) NYC to secure evidence. The
provision does not require a party to make the other one aware of an arbitration clause contained
in the main contract [WOLFF/Wolff, Art. II para. 138]. The form requirement’s purpose is to
prove that the parties concluded an arbitration agreement [WOLFF/Wolff, Art. II paras. 79 et
seq.]. The Arbitration Agreement itself is contained in writing in the GCoS [Exh. R4, p. 32].
Hence, the existence of the Arbitration Agreement can be easily proven.
44 Second, this general reference also sufficed to protect RESPONDENT from a hidden arbitration
clause. Different jurisdictions from both civil and common law countries held that when both
parties are experienced businesspeople operating in an industry in which arbitration is a
standard practice, the arbitration agreement by general reference is valid [cf. G. S. A. v. T. Ltd
(Switzerland).; Tradax Export S.A. v. Amoco Iran Oil Co. (Switzerland); JMA Investments v. C.
Rijkaart B.V. (USA); David Threlkeld & Co. v. Metallegesellschaft Ltd (USA); Aceros
Prefabricados, S.A. v. TradeArbed (USA)]. Even more so, if the other party was actually aware
of the arbitration clause in the standard conditions, this party is in no need of protection [Aceros
Prefabricados, S.A. v. TradeArbed. (USA); Bomar Oil N. V. v. Entreprise Tunisienne d’activitès
Pétrolières (France)]. In such cases, it is also irrelevant that the user did not enclose the general
conditions to the contract [Aceros Prefabricados, S.A. v. TradeArbed].
45 CLAIMANT made a reference to its GCoS in the contractual document, as well as in the email
which it was attached to [Exh. C3, p. 13; Exh. C4, p. 17]. Ms Bupati—representing
RESPONDENT—is an experienced, well-recognized businessperson. In the palm oil industry,
arbitration is a standard practice [PO2-11, p. 49]. Additionally, Ms Bupati was always aware
of the Arbitration Clause otherwise she would not have suggested which institution to
choose [Exh. C2, p. 12]. Hence, RESPONDENT was always positively aware of Art. 9 GCoS and
in no need of protection. Therefore, the warning function cannot be invoked here. The general
reference CLAIMANT made in its email meets the requirements of Art. II(2) NYC.
b. Alternatively, the Arbitration Agreement Is Valid under Art. VII NYC
46 Even if the Tribunal were to find that the Arbitration Agreement does not meet the requirements
of Art. II(2) NYC, the Arbitration Agreement is valid under the NYC. As per Art. VII NYC,
the more favorable provision of the national law of Danubia (“DAL”) applies to determine the
formal validity of the Arbitration Agreement. Art. VII NYC permits to apply the Curial Law in
cases in which this law is more favorable for the party seeking enforcement than the
NYC [Ground Mace Case, para. 26; VAN DEN BERG, pp. 86 et seq.; HAAS, p. 436 para. 16].
The form requirement of the applicable DAL provision, Art. 7(6) DAL, is more favorable than
Art. II(2) NYC. Art. 7(6) DAL states that the reference in a contract to any document containing
an arbitration clause constitutes an arbitration agreement in writing, provided that the reference
is made to make the clause part of the contract. It is a verbatim adoption of Art. 7 Opt. 1
UNCITRAL Model Law. Thus, Art. 7(6) DAL does not require any form of the reference at all.
It only requires an arbitration clause which is validly included under the applicable contract
law [WOLFF/Wolff, Art. II para. 144]. The Parties validly included the Arbitration Agreement
in the Sales Contract [supra para. 33]. Therefore, Art. VII NYC permits to apply Art. 7(6) DAL
instead of Art. II(2) NYC. All further provisions of the NYC will remain
applicable [KRONKE/Schramm et al., p. 48; LEW/MISTELIS/KRÖLL, Chap. 6 paras. 26 et seq.].
The Arbitration Agreement is formally valid.
II. EVEN IF THE TRIBUNAL WERE TO FIND THAT MEDITERRANEAN LAW APPLIES, IT HAS
JURISDICTION
47 Even if the Tribunal were to find that the law of Mediterraneo applies, the Tribunal has
jurisdiction. Under MCL excluding the CISG, the Arbitration Agreement is valid [A]. The
result is not altered even if the Tribunal were to find that the CISG applies [B].
A. MCL APPLIES AND ACCORDINGLY THE ARBITRATION AGREEMENT IS VALID
48 The CISG does not apply because it does not apply to arbitration agreements [1]. Rather, MCL
determines the validity of the arbitration agreement. Furthermore, the requirements set out by
MCL are fulfilled [2].
1. The CISG Does Not Apply to the Arbitration Agreement
49 The CISG does not apply to the Arbitration Agreement. First, the wording of the CISG shows
that arbitration agreements do not fall within its scope of application [a]. In addition, the recent
judgement of the German Federal Court which applies the CISG to arbitration agreements, does
not apply in the present case [b].
a. Arbitration Agreements Do Not Fall Within the Scope of Application of the CISG
50 As the CISG is the Convention for the International Sale of Goods, arbitration agreements do
not fall within its scope of application [cf. KRÖLL I, p. 72; Gutta-Werke AG v. Dörken-Gutta
Pol, para. 15]. As per Artt. 1- 3, the CISG’s scope of application is limited to contracts of sale.
An arbitration agreement is not a contract of sale [PIKA, p. 512; ICC Case No. 5832]. An
arbitration agreement is concerned with disputes, using procedure specified in the agreement
while a contract of sale is concerned with commercial terms of an economic transaction [BORN,
p. 535; LIONNET/LIONNET, p. 170].
51 Moreover, as per Art. 4, the CISG governs only the formation of the contract of sale and the
rights and obligations of the seller and the buyer arising from such a contract [cf. MÜKO/Huber,
Art. 4 para. 43]. The rights and obligations arising out of an arbitration agreement are different
from those arising out of a contract of sale [KOCH, p. 283]. The parties’ obligations to an
arbitration agreement are limited to cooperation in the arbitral proceedings [ibid.]. In particular,
the CISG, e.g., regarding the limited possibility of withdrawal, is tailored to international sales
contracts, not to arbitration agreements, which may prevent its applicability in the event of a
breach of arbitration agreements [PIKA, p. 512]. For these reasons, the rights and obligations
arising out of an arbitration agreement do not fit to those under Art. 4 CISG.
52 Art. 19(3) and Art. 81(1) CISG mentioning arbitration clauses do not affect this
result [Replacement Parts For Ships Case, para. 56; KRÖLL II, p. 47; SCHLECHTRIEM/BUTLER,
para. 41; Plastic Granulate Case, para. 2.1.1; NEUMAYER/MING, p. 250 para. 14]. Those
Articles merely endorse the well-recognized Doctrine of Separability [MÜKO/Huber, Art. 4
para. 43]. Art. 19(3) and Art. 81(1) CISG only take up widespread principles of interpretation
and transfer them to the CISG [Replacement Parts For Ships Case, para. 56]. Thus, Art. 19(3)
and Art. 81(1) CISG do not imply that the CISG is applicable to arbitration agreements.
b. The 2020 Ground Mace Case Does Not Apply to the Present Case
53 This result holds true even in light of the 2020 Ground Mace Case, a judgement of the German
Federal Court. Its facts differ from those of the case at hand. In its judgment of 26 November
2020, the German Federal Court dealt with the application of the CISG to arbitration
agreements. It explicitly left the question whether the CISG applies to arbitration agreements
open for cases in which the requirements of Art. II(2) NYC are fulfilled [Ground Mace Case,
para. 37; similar: THODE, para. C.; Sour Cherries Case II, para. 20]. As the requirements of
Art. II(2) NYC are fulfilled in the case at hand [supra paras. 38 et seqq.], the rationale of the
Ground Mace Case does not apply.
2. The Arbitration Clause Was Validly Included in the Contract under MCL
54 Under MCL, the Parties validly included Art. 9 GCoS in the Sales Contract. As per
Art. 2.1.19(1) MCL, the general rules on contractual formation apply when one or both parties
use standard terms. Specific indication of assent to the standard terms is not necessary. It
suffices if the addressee generally accepts the offer or counteroffer for the terms to
apply [VOGENAUER/Naudé, Art. 2.1.19 para. 6]. The Parties agreed on applying the GCoS [cf.
infra para. 69].
55 Moreover, CLAIMANT took reasonable steps to bring Art. 9 GCoS to the attention of
RESPONDENT. Under MCL a reference to the GCoS is sufficient [cf. KÜHL/HINGST, p. 53;
SCHLECHTRIEM/SCHWENZER/SCHROETER/Schmidt-Kessel, Art. 8 para. 53 fn. 388; Official
Comment 2016 Ed, Art. 2.1.19 Comment 3]. The inclusion by mere reference is consistent with
the reality that standard terms are normally not read even when they are
sent [VOGENAUER/Naudé, Art. 2.1.19 para. 19]. In its email, CLAIMANT expressly referred to
the application of the GCoS [Exh. C4, p. 17]. This reference is sufficient to include those in the
Sales Contract. A reasonable third person in the position of RESPONDENT would understand the
intention to include Art. 9 GCoS in the Sales Contract [cf. VOGENAUER/Naudé, Art. 2.1.19
para. 14]. Thus, the Parties validly included Art. 9 GCoS under MCL.
B. EVEN IF THE TRIBUNAL WERE TO FIND THAT THE CISG APPLIES, THE ARBITRATION
AGREEMENT IS VALID
56 Even if the Tribunal were to find that the CISG applies to the Arbitration Agreement, it is still
valid. Unlike the MCL, the CISG contains no special provisions to include standard terms.
Artt. 14-24 in conjunction with Art. 8 CISG apply [SCHLECHTRIEM/SCHWENZER/Schroeter,
Art. 14 para. 40; Propane Gas Case, para. 25].
57 It is generally accepted that the CISG sets up two requirements to include standard terms in a
contract: First, the user must make a reference to the standard
terms [FERRARI/KIENINGER/MANKOWSKI/Mankowski, intro to Artt. 14 et seq. para. 26;
SCHLECHTRIEM/SCHWENZER/Schroeter, Art. 14 para. 43]. CLAIMANT made a reference to the
GCoS [infra para. 92].
58 Second, the terms must have been made available to the other party. However, the user does
not have to make the terms available if the other party is aware of its content [Spacers For
Insulation Glass Case; EISELEN, CISG-AC No. 13, comment 2.6;
SCHLECHTRIEM/SCHWENZER/Schroeter, Art. 14 para. 46; STAUDINGER/Magnus, Art. 14
para. 41]. RESPONDENT was aware of the content of the Arbitration Clause [infra para. 101].
III. CONCLUSION
59 The Parties concluded an Arbitration Agreement that confers jurisdiction to the Tribunal. The
Arbitration Agreement must be interpreted separately from the Sales Contract. The Parties
subjected their Arbitration Agreement to Danubian law by choosing Danubia as Seat of
Arbitration. Under Danubian law, the Arbitration Agreement was validly included in the Sales
Contract and meets the formal requirements. Even if the Tribunal were to apply the Law of
Mediterraneo, the Parties concluded a valid Arbitration Agreement. First, the CISG does not
apply to the Arbitration Agreement. Second, even if the CISG were to apply, quod non, the
Arbitration Agreement is valid because it was validly included in the Sales Contract.
PART II: THE PARTIES CONCLUDED THE SALES CONTRACT IN 2020

60 CLAIMANT requests the Tribunal to find that the Parties concluded the Sales Contract in 2020.
The Parties agree that Mediterranean Law including the CISG governs the Sales
Contract [PO2-33, p. 52]. The CISG applies a strict threshold for the avoidance and termination
of a contract. RESPONDENT wants to bypass these requirements. It tries to avoid the Sales
Contract through the back door by claiming it was never concluded. However, this attempt is
deemed to fail. The Parties validly concluded the Sales Contract on 9 April 2020 [I]. Even if
the Tribunal were to find otherwise, CLAIMANT placed an offer to RESPONDENT on 9 April 2020
which RESPONDENT impliedly accepted either by silence on 17 April 2020, or by other conduct
on 3 May 2020 [II].
I. THE PARTIES CONCLUDED THE SALES CONTRACT ON 9 APRIL 2020
61 On 1 April 2020, RESPONDENT made a contract offer by email [A]. CLAIMANT accepted this
offer on 9 April 2020 by sending RESPONDENT the signed contractual documents [B].
A. Respondent PLACED AN OFFER VIA EMAIL ON 1 APRIL 2020
62 Ms Bupati, Head of Purchasing for RESPONDENT [PO2-12, p. 49], sent an offer for the Sales
Contract via email on 1 April 2020 to Mr Chandra, representing CLAIMANT. Under Art. 14(1)
CISG, an offer needs to indicate the offeror’s intention to be legally bound.
63 Art. 8 CISG determines whether the proposing party is willing to be bound [HONNOLD, Art. 14
para. 134]. RESPONDENT’s declaration is to be examined in the sense of Art. 8(2), (3) CISG
according to the understanding of a reasonable person of the same kind as the other party would
have had in the same circumstances [cf. Treibacher Industry AG v. Allegheny Technologies,
p. 6]. Ms Bupati’s email on 1 April 2020 [1] and the negotiations between Ms Bupati and
Mr Chandra at the Palm Oil Summit in Capital City in Mediterraneo on 28 March 2020
(the “Summit”) [2] lead to a reasonable person’s understanding that RESPONDENT had the
intention to be legally bound.
1. Ms Bupati’s Email Shows RESPONDENT’s Intention to Be Legally Bound
64 A reasonable person would understand Ms Bupati’s email as an expression of RESPONDENT’s

intention to be legally bound because she chose the words “offer” and “order” [Exh. C2, p. 12].
Case law shows that under the CISG the choice of words is a key factor to determine whether
a party intends to be bound. In the Plotters Case decided by the Commercial Court Canton
St. Gall in 1995, the court derived the intention to be bound from the words “order”, “we order”
and “immediate delivery” [Plotters Case, p. 9]. Applying this rationale, the wording used by
Ms Bupati carries serious weight in determining RESPONDENT’s intention to be bound. As in
the Plotters Case, Ms Bupati used the word “order” [Exh. C2, p. 12]. Even more so, she titled
the subject of her email “Purchase offer” [ibid.]. This wording is a textbook example of making
one’s intention to be bound clear: In a business environment, an “order” generally triggers
delivery [GABLER, p. 54; Law Insider]. The same standard must be applied to RESPONDENT’s
choice of words.
65 Moreover, Ms Bupati presumed in her email that CLAIMANT’s acceptance would lead to a valid
contract. Since Ms Bupati is a conscientious businessperson, she must communicate
precisely [cf. Italian Knitwear Case III, para. 22]. A reasonable person of the same kind as
Mr Chandra can therefore rely on her statements. On 1 April 2020, Ms Bupati said that
Ms Fauconnier “will take care of further discussions, if any, and the implementation of the
contract” [Exh. C2, p. 12, emph. add.]. By stating “if any”, RESPONDENT emphasized that no
points of discussion were open. Ms Bupati further underlined this by transferring the final steps
of “implementation” to Ms Fauconnier, her assistant. Thus, the email on 1 April 2020 is a
legally binding offer.
2. The Negotiations at the Summit Show RESPONDENT’s Intention to Be Bound
66 The negotiations between Ms Bupati and Mr Chandra at the Summit show RESPONDENT’s
intention to be bound as per the understanding of a reasonable person (Art. 8 CISG). They
demonstrate that Ms Bupati would only approach CLAIMANT with a definite, legally binding
offer. At the Summit, Ms Bupati and Mr Chandra agreed on the commercial terms of the Sales
Contract [Exh. C2, p. 12; PO2-13, p. 49]. Ms Bupati wanted to discuss these commercial terms
with RESPONDENT’s management before making a firm offer [Response-8, p. 26]. She
demonstrated that a firm offer depended solely on this confirmation. She received such
confirmation [ibid.]. Her email on 1 April 2020 was a legally binding offer.
67 Furthermore, RESPONDENT showed at the Summit that it depended on CLAIMANT. As per

Art. 8(3) CISG, one must consider all relevant circumstances of the case to determine the
understanding of a reasonable person [KRÖLL/MISTELIS/PERALES VISCALIS/Zuppi, Art. 8
para. 29; Rock Resource Ltd v. Altos Hornos de México, para. 81]. Therefore, the relationship
of one party to the other also must be taken into consideration [cf. Ethyl Acetate Case, pp. 3 et.
seq.]. CLAIMANT gave Ms Bupati the opportunity to conclude a contract for a rare commodity
at a favorable price [NoA-5, p. 5; Exh. C2, p. 12]. Given the limited availability of
RSPO-certified palm oil, RESPONDENT needed CLAIMANT to fulfill its ambitious sustainability
goals [Response-4, p. 26]. This circumstance made it discernable for CLAIMANT that
RESPONDENT found itself in a precarious position. The fact that RESPONDENT visited several oil
producers and still concluded only one additional contract until October 2020 [PO2-28, p. 52]
further demonstrates RESPONDENT’s need for CLAIMANT’s goods. Moreover, Ms Bupati
expressed the urgency to conclude a contract with CLAIMANT in wanting to purchase
CLAIMANT’s entire available production for five years [NoA-5, p. 5]. Thus, it was reasonable
for CLAIMANT to expect that Ms Bupati had the intention to be bound on 1 April 2020.
B. Claimant ACCEPTED THE OFFER VIA EMAIL ON 9 APRIL 2020
68 CLAIMANT accepted the offer on 9 April 2020 by sending RESPONDENT the signed contractual
documents via email. Mr Rain, Mr Chandra’s assistant, inserted the terms of RESPONDENT’s
offer into CLAIMANT’s contractual template and explicitly stated that CLAIMANT accepted
them [Exh. C4, p. 17]. RESPONDENT cannot argue that CLAIMANT’s acceptance is a counteroffer.
As per Art. 19 CISG, a reply to an offer only constitutes a counteroffer and not an acceptance
if it alters the offer materially [Orcia Australia Pty Ltd v. Aston Evaporative Service, LLC,
para. 29]. The contractual documents did not constitute such a material alteration. First, the
GCoS did not alter the offer [1]. Second, neither the requirements for the termination of the
Sales Contract contained in Art. 4 of the GCoS [2] nor the Arbitration Clause contained in
Art. 9 GCoS [3] altered the terms of RESPONDENT’s offer.
1. The fact that CLAIMANT Mentioned the GCoS Did Not Alter the Offer
69 The fact that CLAIMANT mentioned the GCoS in its acceptance did not alter the offer. The
Parties were aware that in the event of a contract conclusion the GCoS should apply.
CLAIMANT’s reply logically cannot alter the offer if RESPONDENT knew that the Parties would
apply the GCoS before it made its offer. Ms Bupati stated in her email that RESPONDENT was
strongly interested in securing a long-term supply at the conditions she and Mr Chandra
“discussed at the Summit” and placed her order in light of the conditions “as agreed at the
Summit” [Exh. C2, p. 12, emph. add.]. At the Summit, Mr Chandra mentioned that a possible
contract would include the GCoS [PO2-13, p. 49]. When placing an order in accordance with
the conditions “as agreed at the Summit”, Ms Bupati therefore also referred to the GCoS in
her email on 1 April 2020 [cf. Exh. C1-4, p. 9, emph. add.]. Additionally, CLAIMANT’s standard
terms were the only standard terms ever used for the contracts Ms Bupati and Mr Chandra
concluded [ibid.]. Therefore, the GCoS as such did not alter RESPONDENT’s offer.
2. The Termination Clause in Art. 4 GCoS Did Not Alter the Terms of the Offer
70 Art. 4 GCoS does not constitute an alteration. As per Art. 4 GCoS, CLAIMANT is entitled to an
additional period of two months to remedy problems with the individual suppliers before the
contracting partner can terminate the contract [NoA-21, p. 7]. Ms Bupati already referred to
Art. 4 in her offer as she referred to the GCoS as such [supra para. 69]. Therefore, Art. 4 GCoS
did not alter the offer.
71 Even if the Tribunal were to find otherwise, Art. 4 GCoS would not alter the offer materially
because Art. 4 GCoS is a trade usage. Trade usages can refute the presumption contained in
Art. 19(3) CISG that a change in the extent of one’s party liability alters the terms of the offer
materially [cf. KRÖLL/MISTELIS/PERALES VISCASILLAS/Ferrari, Art. 19 para. 10; ACHILLES,
Art. 19 para. 2; Monoammonium Phosphate Case, p. 4]. Trade usages are rules of commerce
which are regularly observed by those involved in a particular industry or
marketplace [SCHLECHTRIEM/SCHWENZER/Schmidt-Kessel, Art. 9 para. 12]. The content of
Art. 4 GCoS is common in the palm oil industry in the part of the world where the Parties are
based [PO2-31, p. 52].
72 Under Art. 9(2) CISG, trade usages apply when the Parties knew or ought to have known them.
Ms Bupati and Mr Chandra have been active in the palm oil business for more than ten
years [Exh. C1-3, p. 9]. Therefore, they both at least ought to have known the content of Art. 4
GCoS. Thus, the alteration is not material. Under Art. 19(2) CISG, a reply to an offer which
contains additional terms which do not materially alter the terms of the offer constitutes an
acceptance unless the offeror, without undue delay, objects to the discrepancy. RESPONDENT
did not object to Art. 4 GCoS.
3. Art. 9 GCoS Did Not Alter the Terms of the Offer
73 The Arbitration Clause in Art. 9 GCoS did not alter RESPONDENT’s offer because the provision
complies with Ms Bupati’s suggestion. At the Summit, Mr Chandra told Ms Bupati that for
CLAIMANT agreeing on anything but arbitration would be verry difficult [Exh. C1-11, p. 10].
Thus, Ms Bupati knew that the Arbitration Agreement was essential for CLAIMANT. Therefore,
she must have known that the Sales Contract would contain the Arbitration Agreement. In
addition, it is common business practice in the palm oil industry to include arbitration clauses
in general conditions [PO2-11, p. 49]. Ms Bupati suggested selecting a non-industry related
institution [Exh. C2, p. 12]. Since 2016, the GCoS submit disputes to the AIAC, not to an
institution exclusively dealing with palm oil [Exh. C1-4, p. 9; Exh. R4, p. 32]. Thus, the GCOS
were already in line with Ms Bupati’s suggestions. CLAIMANT had also informed Ms Bupati
about this change in 2016 [Exh. C1-4, p. 9]. Therefore, Art. 9 GCoS did not alter RESPONDENT’s
offer. Consequently, CLAIMANT’s reply does not constitute a counteroffer. The Parties
concluded the Sales Contract on 9 April 2020.
II. EVEN IF THE PARTIES DID NOT CONCLUDE THE CONTRACT ON 9 APRIL 2020,
RESPONDENT ACCEPTED CLAIMANT’S OFFER IMPLIEDLY
74 Even if the Tribunal were to find that the Parties did not conclude the Sales Contract on 9 April
2020, the Parties concluded the Sales Contract afterwards. In this scenario, CLAIMANT made an
offer to RESPONDENT on 9 April 2020 as counteroffer pursuant to Art. 19(1) CISG.
RESPONDENT accepted this offer impliedly by silence [A]. Alternatively, RESPONDENT accepted
the offer impliedly by other conduct [B].
A. Respondent ACCEPTED THE OFFER SILENTLY
75 RESPONDENT accepted CLAIMANT’s offer silently on 17 April 2020 because CLAIMANT and
Ms Bupati established a Party Practice which includes that Ms Bupati’s silence—after
receiving the contractual documents—constitutes acceptance [1]. This Practice also applies
between the Parties even though CLAIMANT’s contracting partner changed [2].
1. The Party Practice between Ms Bupati and Mr Chandra Shows That Ms Bupati’s
Silence after Receiving the Contractual Documents Constitutes Acceptance
76 There is a practice between Ms Bupati and CLAIMANT to conclude a contract regardless of

missing bilaterally signed contractual documents unless Ms Bupati objects to them within a
week. Acceptance in the sense of Art. 18(1) CISG is any statement or other conduct expressing
consent to the offer. Silence alone constitutes acceptance when it is coupled with circumstances
assuring the offeree’s assent [Secretariat Commentary, Art. 16 Example 16a]. A party practice
can be such a factor [Teta Case I, para. 13; Calzados Magnanni v. Shoes General International
S.a.r.l, p. 2 para. 11]. In several cases, Ms Bupati did not return a signed version of the
contractual documents [Exh. C1-3, p. 9]. Nevertheless, RESPONDENT always performed
subsequently as set out in the contractual documents [Exh. C1-3, p. 9; Exh. R3-3, p. 31; NoA-19,
p. 7]. By contrast, on three occasions in which she did not agree to the terms she objected within
a maximum of a week [Exh. C1-14, p. 11; PO2-9, p. 49]. Ms Bupati and CLAIMANT followed
this practice in at least 40 contracts [Response-18, p. 28].
2. The Established Party Practice Applies between the Parties
77 The practice that Ms Bupati and CLAIMANT established also applies between CLAIMANT and
RESPONDENT even though Ms Bupati changed her employer from the parent company—
Southern Commodities—to RESPONDENT, the subsidiary. First, because the Parties explicitly
re-established the Party Practice [a]. Second, the change of CLAIMANT’s contracting party did
not influence the continuance of the Party Practice—especially because the same persons
concluded the contracts [b]. Lastly, RESPONDENT acts inconsistently if it declares the Party
Practice inapplicable [c].
a. The Re-Established Party Practice Governs the Relationship Between the Parties
78 The Party Practice applies because the Parties agreed to re-establish it at the Summit. Ms Bupati
referred to this re-established Party Practice in her email from 1 April 2020. She stated that it
was good to see Mr Chandra at the Summit to “catch up and to re-establish” their
“long-lasting and successful business relationship” in her new position [Exh. C2, p. 12; emph.
add.]. In principle, parties establish a practice by following a behavior with a certain frequency
over a certain period [Tantalum Powder Case II, para. 15;
SCHLECHTRIEM/SCHWENZER/Schmidt-Kessel, Art. 9 para. 8]. However, parties can just as well
agree to apply a practice at their first conclusion of a contract [cf. Propane Gase Case, para. 27].
Following the principle of party autonomy (Art. 6 CISG), the Parties’ agreement displaces the
CISG and its requirements for a party practice [KRÖLL/MISTELIS/PERALES
VISCASILLAS/Perales Viscasillas, Art. 9 para. 4]. Practices that apply to a legal relationship
without any agreement must especially apply if there is an explicit agreement to do so.
Therefore, the Parties were able to agree to tie in with an established Party Practice.
79 The Party Practice is part of the business relationship to which Ms Bupati referred in her
email [supra para. 76]. As Ms Bupati’s wording carries legal weight [supra para. 64], the
Parties agreed to tie in with the practice by catching up and re-establishing their business
relationship. The business relationship was successful and long-lasting. Thus, it was in
RESPONDENT’s interest to continue it. As Ms Bupati has the capacity to legally bind
RESPONDENT [PO2-12, p. 49], the Parties’ agreement to re-establish the Party Practice binds
RESPONDENT.
80 The Parties’ behavior underlines that they have re-established the Party Practice. They
performed the contract conclusion exactly like Mr Chandra and Ms Bupati always did. The fact
that Ms Bupati placed an order via email and asked for the commercial terms discussed before
is in line with the procedure she and Mr Chandra had established [Exh.C1-12 et seq., p. 10]. As
in previous contracts, Mr Chandra included the terms discussed before in CLAIMANT’s
template [NoA-7, p. 5]. Additionally, CLAIMANT—as always—explicitly mentioned the GCoS
in the accompanying letter [NoA-7, p. 5; C1-4, p. 9]. The circumstance that CLAIMANT was not
worried at any time about the missing signed version of the Sales Contract [NoA-8, p. 5] further
demonstrates the existence of the Party Practice. In fact, CLAIMANT only requested for the
signed contractual documents to be returned for its files and the necessary paperwork [Exh. C4,
p. 12, Exh. C5-3, p. 18]. The Parties agreed to re-establish the Party Practice.
b. The Change of CLAIMANT’s Contracting Party Did Not Influence the Application
of the Party Practice
81 The change of CLAIMANT’s contracting party has no influence on the fact that the Party Practice
continued to apply. First, this is because RESPONDENT and Southern Commodities are part of
the same corporate group [aa]. Second, this is because Ms Bupati concluded the contracts for
Southern Commodities as well as for RESPONDENT [bb].
aa. The Established Party Practice Applies Because RESPONDENT and Southern
Commodities Are Part of the Same Corporate Group
82 RESPONDENT is a 100% subsidiary of Southern Commodities [PO2-4, p. 48]—meaning both

are part of the same corporate group. Thus, Southern Commodities’ knowledge of the Party
Practice—among other knowledge [infra para. 105]—is attributable to RESPONDENT. The
Party Practice governs the Parties’ legal relationship. Neither the CISG nor the MCL explicitly
regulates the question if and when knowledge is attributable between a parent company and its
subsidiary. Therefore, the Tribunal must rely on general principles of law that state courts and
scholars have established [cf. BGH Neue Juristische Wochenschrift 1984, p. 1953; RISSE,
p. 858]. Attributing the knowledge from the parent company to the acting subsidiary is an
exception to the principle of separate personhood. This exception applies because the case at
hand requires to “pierce the corporate veil” [cf. LARSON; Prest v. Petrodel Resources Ltd,
para. 24]: the Tribunal should attribute the knowledge that Southern Commodities acquired
through Ms Bupati to RESPONDENT.
83 The reasons for that are threefold: First, if certain parts of a corporate group present themselves
as a single unit, the other party can rely on an information exchange between the companies [cf.
KATAN, pp. 307 et seq.]. RESPONDENT and Southern Commodities appeared as a single unit to
CLAIMANT: Southern Commodities had ordered shipment directly to RESPONDENT although,
Southern Commodities was still CLAIMANT’s contracting party [PO2-3, p. 48]. Second, the
corporate group tried to profit from common employees, namely Ms Bupati and ten employees
now working for RESPONDENT in Equatoriana [PO2-5, p. 48]. RESPONDENT cannot on the one
hand rely on the knowledge, experience and connections of its common employees and pretend
on the other hand that they are blank sheets where it does not profit [cf. MACKIE, p. 3]. Lastly,
because RESPONDENT is a 100% subsidiary of Southern Commodities, no other shareholders
need protection against attributing Southern Commodities’ knowledge to RESPONDENT [cf.
DREXL, p. 518].
84 Conversely, CLAIMANT must be protected against the shift of knowledge within a corporate
group that CLAIMANT justifiably perceived as a single unit [cf. BGH Neue Juristische
Wochenschrift 1990, p. 975]. It violates the principle of good faith to put the simply structured
company in a worse position than the more complex structured corporate group [cf. ibid.]. If
the Tribunal were to find differently, it would provide RESPONDENT with an undue advantage
due to its corporate groups legal structure. This could become a corporate trick to avoid
responsibility and lead to a legal carte blanche.
bb. The Party Practice Applies Because Ms Bupati Concluded the Contracts for both
Southern Commodities and RESPONDENT
85 The Party Practice applies because Ms Bupati concluded the contracts for Southern
Commodities as well as for RESPONDENT [NoA- 4, p. 5; PO2-12, p. 49]. In her prior position
she and Mr Chandra concluded at least 40 contracts. The Party Practice governed those
contracts [Response-18, p. 28]. Ms Bupati therefore knew and understood CLAIMANT’s and
Southern Commodities’ Practice as she herself established it. Art. 79(1), (2) CISG define a
general principle that attributes the knowledge of the debtor’s employees to the
debtor [SCHLECHTRIEM/SCHWENZER/Schwenzer, Art. 79 para. 41; Coke Case, p. 7;
HONSELL/DORNIS, Art. 40 para. 7; STAUDINGER/Magnus, Art. 79 para. 35]. Ms Bupati is

RESPONDENT’s Head of Purchase [Exh. R3, p. 31]. Therefore, her knowledge of the Party
Practice is attributed to RESPONDENT. The change of Ms Bupati’s employer does not change
this attribution because a natural person cannot “unknow” something solely by changing “the
hat” [MACKIE, p. 19; SPINDLER, p. 341].
c. RESPONDENT Acts Inconsistently if It Submits That the Party Practice Is

Inapplicable
86 RESPONDENT acts inconsistently because it submitted that the Party Practice is inapplicable.
RESPONDENT largely benefitted from Ms Bupati’s and Southern Commodities’ relationship
with Mr Chandra and CLAIMANT. CLAIMANT gave RESPONDENT the opportunity to conclude a
contract for CLAIMANT’s entire RSPO-certified palm oil production at a very favorable price.
No reasonable businessperson would sell its entire five-year production to a buyer it does not
trust. The unique proposal is based on Ms Bupati’s relationship with CLAIMANT. Ms Bupati’s
experience in the palm kernel oil market and her connections to palm oil producers were one of
the reasons why she became Head of Purchasing [Exh. R3-4, p. 31; PO2-5, p. 48]. It was
precisely RESPONDENT’s intent to take advantage of Ms Bupati’s connections. If RESPONDENT
planned to use her relationship with CLAIMANT, it must accept the effects of this connection in
its entirety. As this relationship contained the Party Practice [supra para. 78], RESPONDENT
must also accept that the Party Practice applies in this case. Anything else is cherry picking.
B. ALTERNATIVELY, Respondent ACCEPTED THE OFFER BY OTHER CONDUCT
87 Even if RESPONDENT did not accept the offer by silence, it accepted CLAIMANT’s offer by other
conduct. RESPONDENT’s email on 3 May 2020 and the fact that RESPONDENT contacted several
of the acceptable banks on 30 May 2020 is crucial. Art. 8 CISG determines whether a certain
act of the offeree constitutes conduct equivalent to an explicit acceptance [Insulating Material
Case, pp. 10 et seq.; HONSELL/DORNIS, Art. 18 para. 21]. Ms Fauconnier asked CLAIMANT in
her email on 3 May 2020 for a list of acceptable banks for the letter of credit “in the sense of
the contract” [Exh. R2, p. 30, emph. add.]. The inquiry about acceptable banks constitutes the
first step in a contractual performance. Such an inquiry would be useless without a contract
concluded. In addition, by using the phrase “in the sense of the contract” [Exh. R2, p. 30]
RESPONDENT explicitly presupposed the existing Sales Contract.
88 This especially applies because Ms Fauconnier even contacted several of the acceptable banks
for the letter of credit on 30 May 2020 [PO2-23, p. 51]. A reasonable person would understand
this as intention to perform the Sales Contract. RESPONDENT was eager to open a letter of credit
with one of those banks. The only reason for RESPONDENT not to open a letter of credit, laid
outside the Parties’ relationship: Ms Fauconnier could not work because she was diagnosed
with COVID-19 and took a four-week vacation afterwards [PO2-23, p. 51]. Besides that,
Ms Bupati explained to Ms Fauconnier that she never opens a letter of credit within the time
span provided by Art. 7a of the Sales Contract when she and Mr Chandra conclude contracts
long before the actual shipment [Exh. C3, p. 14; PO2-23, p. 51]. RESPONDENT accepted
CLAIMANT’s offer by other conduct. The Parties concluded the Sales Contract on 30 May 2020
at the latest.
III. CONCLUSION
89 The Parties concluded the Sales Contract in 2020. RESPONDENT merely tries to evade the
suddenly unwanted Sales Contract to please the Equatorianian public. To prevent RESPONDENT
from terminating a perfectly valid contract through the back door, the Tribunal is requested to
find that the Parties validly concluded the Sales Contract on 9 April 2020. If the Tribunal were
to find that CLAIMANT’s reply to RESPONDENT’s offer constituted a counteroffer, RESPONDENT
accepted this offer silently. This is because the Party Practice shows that silence constitutes
acceptance. Alternatively, RESPONDENT’s unambiguous conduct leads to the conclusion of the
Sales Contract no later than 30 May 2020.
PART III: THE GCOS WERE VALIDLY INCLUDED IN THE SALES CONTRACT
90 CLAIMANT requests the Tribunal to find that the GCoS were validly included in the Sales
Contract. Consequently, Art. 4 and Art. 9 of the GCoS became Part of the Sale Contract. Art. 9
GCoS contains the Arbitration Clause [cf. NoA-14, p. 6] while Art. 4 GCoS provides for a
period of two months to remedy a breach of contract [PO2-31, p. 52]. RESPONDENT only denies
that the GCoS were validly included in the Sales Contract because it tries to circumvent
applying Art. 4.
91 As the CISG does not provide special provisions on the inclusion of standard terms in a contract,
Artt. 14-24 in conjunction with Art. 8 CISG apply [SCHLECHTRIEM/SCHWENZER/Schroeter,
Art. 14 para. 40; Travelers Property Casuality Co. v. Saint-Gobain Technical Fabrics Canada
Ltd, p. 6; Propane Gas Case, para. 25]. The CISG provides for two requirements to validly
include standard terms in a contract: First, the user must make a reference to the standard terms
and second, it must make them available to the other
party [FERRARI/KIENINGER/MANKOWSKI/Mankowski, intro to Artt. 14 et seqq. para. 26;
ScHLECHTRIEM/SCHWENZER/Schroeter, Art. 14 para. 43]. CLAIMANT made a reference to the

GCoS at the Summit [I]. Besides that, CLAIMANT did not have to make the GCoS available
again [II].
I. CLAIMANT MADE A REFERENCE TO THE GCOS AT THE SUMMIT
92 CLAIMANT referred to the GCoS during the Parties’ discussions at the Summit. No requirements
apply as to the form and clarity of such a reference [cf. Euroflash Impression S.A.S. v. Arconvert
S.p.A., pp. 18 et seq.; Gantry S.A. v. Research Consulting Marketing, para. 22]. Instead, a
reasonable person of the same kind as the other party must understand the reference [Vine Wax
Case, p. 12; SCHLECHTRIEM/SCHWENZER/Schroeter, Art. 14 para. 44; EISELEN, CISG-AC
No. 13, rule 5]. At the Summit, Mr Chandra informed Ms Bupati that the GCoS will
apply [PO2-13, p. 49]. RESPONDENT must have understood this reference.
93 References to standard terms must be made before the acceptance of the

contract [SCHWENZER/HACHEM/KEE, para. 12.06; HONSELL/DORNIS, intro to Artt. 14 et seqq.
para. 9; Dutch Plants Case I, para. 21] and can be part of other communication apart from an
offer or an acceptance [MAGNUS, p. 315]. Therefore, it is irrelevant that CLAIMANT did not
make an offer at the Summit.
II. CLAIMANT DID NOT HAVE TO MAKE THE GCOS AVAILABLE AGAIN
94 CLAIMANT did not have to make the GCoS available again to include them in the Sales Contract.
CLAIMANT had already met the requirement to make the GCoS available [A]. Even if CLAIMANT
had not already met this requirement, RESPONDENT had a reasonable opportunity to obtain
awareness of the GCoS [B].
A. Claimant HAD ALREADY MET THE REQUIREMENT TO MAKE THE GCOS AVAILABLE
95 CLAIMANT had already met the requirement to make the GCoS available. This is because
RESPONDENT was aware of their content and the GCoS were part of the Party Practice. In the
leading Machinery Case from 2001, the German Federal Court defined the requirements to
validly include standard terms in contracts under the CISG: besides a reference, the user must
transmit the terms or make them available in another way to the other party [Machinery Case,
para. 15]. However, there are two widely recognized exceptions from this rule, lowering the
standard for a party’s conduct, to make the terms available and to include the standard terms [cf.
MAGNUS, p. 321; SCHLECHTRIEM/SCHWENZER/Schmidt-Kessel, Art. 8 para. 58]. First, the user
does not have to make the terms available again if the other party is aware of its
content [Spacers For Insulation Glass Case; EISELEN, CISG-AC No. 13, comment 2.6;
SCHLECHTRIEM/SCHWENZER/Schroeter, Art. 14 para. 46; STAUDINGER/Magnus, Art. 14

para. 41]. Second, the same holds true, when applying the standard terms is part of the party
practice [Tantalum Powder Case I, para. 41; Dutch-Italian Sales Contracts Case, paras. 33 et
seqq.; SCHWENZER/HACHEM/KEE, paras. 12.13 et seq.; EISELEN, CISG-AC No. 13, rule 3.4].
96 CLAIMANT fulfills both exceptions. First, RESPONDENT was aware of the GCoS’ content due to
Ms Bupati’s knowledge [1]. Second, Southern Commodities’ knowledge of the GCoS is
attributed to RESPONDENT because they are part of the same corporate group [2]. Third, the
latest GCoS were additionally included in the Sales Contract because applying the GCoS was
part of the Party Practice [3].
1. RESPONDENT Was Aware of the Content Due to Ms Bupati’s Knowledge
97 RESPONDENT was aware of the GCoS’s latest version due to Ms Bupati’s knowledge which is
attributed to RESPONDENT [supra para. 85]. This is sufficient to include standard terms.
Requiring CLAIMANT to make the terms available again would be a pure formality and
contradict the principle of good faith of Art. 7(1) CISG [cf. MAGNUS, p. 322;
FERRARI/KIENINGER/MANKOWSKI/Mankowski, intro to Artt. 14 et seqq para. 40]. This
knowledge protects RESPONDENT from the risks of unknown standard terms [cf.
FERRARI/KIENINGER/MANKOWSKI/Mankowski, intro to Artt. 14 et seqq. para. 40;
MÜKO/Gruber, Art. 14 para. 32]. First, RESPONDENT was aware of the entire 2016 version of
the GCoS [a]. Second, it was aware of the 2020 amendments to the GCoS [b].
a. RESPONDENT Was Aware of the Entire 2016 Version of the GCoS
98 RESPONDENT was aware of the entire 2016 version of the GCoS. This suffices to include the
entire 2016 version. First, CLAIMANT provided the pre-2016 version of the GCoS to Ms Bupati
and expressly informed her about the changes in 2016 [aa]. Second, CLAIMANT could rely on
Ms Bupati’s ongoing knowledge of the GCoS even though Ms Bupati forgot about their
amendments [bb].
aa. CLAIMANT Provided the Pre-2016 Version to Ms Bupati and Informed Her About
the Changes
99 Ms Bupati was aware of the entire 2016 version of the GCoS. Since then, CLAIMANT only
amended the arbitration clause [Exh. C1-4, p. 9]. CLAIMANT provided the pre-2016 version to
Ms Bupati and informed her about the changes in 2016 [PO2-18, p. 50; Response-12, p. 27].
RESPONDENT itself did not have to receive a version of the GCoS. This is because Ms Bupati’s
knowledge is attributed to RESPONDENT [supra para. 85]. Consequently, providing the terms to
Ms Bupati and informing her about the changes is sufficient.
100 CLAIMANT sent the pre-2016 version of the GCoS to Southern Commodities in October
2011 [Response-11, p. 27]. Ms Bupati received them [PO2-18, p. 50]. She even had a closer
look at them in 2014 in the context of an arbitration [Response-11, p. 27]. Therefore, she was
aware of the pre-2016 version in its entirety. Apart from the arbitration clause, the GCoS have
not changed since [Exh. C1-4, p. 9]. The fact that Ms Bupati lost the copy of the first GCoS in
the meantime [cf. PO2-18, p. 50] does not affect this result: the loss of standard terms is at the
risk of the other party [FERRARI/KIENINGER/MANKOWSKI/Mankowski, intro to Artt. 14 et seqq.
para. 40]. Hence, RESPONDENT bears the risk of losing the standard terms.
101 RESPONDENT was aware of the content of the revised Arbitration Clause. In a phone call in 2016,
CLAIMANT informed Ms Bupati that it would from now on use the Model Clause of the AIAC
instead of the palm oil related institution FOSFA/PORAM [Exh. C1-4, p. 9; Response-12,
p. 27]. If a standard term is common in international trade, the terms’ user can rely on the other
party’s knowledge of this term [cf. SCHMIDT-KESSEL, p. 3446; KINDLER, p. 229; MAGNUS,
p. 322]. Hence, CLAIMANT could rely on Ms Bupati’s knowledge of the AIAC Model Clause as
it is a common arbitration clause in international trade. Moreover, CLAIMANT informed
Ms Bupati about the clause’s individualized content [PO2-7, p. 48]. Ms Bupati, and therefore
RESPONDENT [supra para. 85], was aware of the content of the Arbitration Clause used.
bb. CLAIMANT Could Rely on Ms Bupati’s Ongoing Knowledge of the GCoS Even
Though Ms Bupati Forgot about Their Amendments
102 CLAIMANT could rely on Ms Bupati’s ongoing knowledge of the GCoS. The fact that Ms Bupati
had forgotten about the modification of the Arbitration Clause when she wrote her email on
1 April 2020 [Response-12, p. 27] is irrelevant because CLAIMANT had already informed
Ms Bupati. The established principles to include standard terms apply to the present case: in
ongoing business relationships, it is sufficient that the standard terms have been sent to the other
party on prior contract conclusions to include them [Dutch-Italian Sales Contracts Case,
paras. 34 et seq.; SCHLECHTRIEM/SCHWENZER/Schroeter, Art. 14 para. 58; EISELEN, CISG-AC
No. 13, rule 3.4]. The user is not obligated to provide the terms again [ibid.]. Rather, the user
can rely on the addressee’s ongoing awareness of the standard
terms [SCHLECHTRIEM/SCHWENZER/Schroeter, Art. 14 para. 58; EISELEN, CISG-AC No. 13,
comment 3.6]. It does not even matter whether the other party lost the terms in the
meantime [supra para. 100]. Consequently, the other party does not have to have the standard
terms at hand when concluding a contract. If CLAIMANT could rely on RESPONDENT’s awareness
in cases in which RESPONDENT had lost the sent standard terms, CLAIMANT could a fortiori rely
on RESPONDENT’s awareness because Mr Chandra explicitly informed Ms Bupati. Thus,
CLAIMANT could rely on Ms Bupati’s ongoing knowledge of the modifications.
103 CLAIMANT could still assume that Ms Bupati was aware of the GCoS even though CLAIMANT
and Southern Commodities concluded their last contract—including the GCoS—in June
2018 [PO2-8, pp. 48 et seq.]. This is because Ms Bupati still needs to be treated as having actual
knowledge. The CISG does not address the question within which time span a party can rely
on the other party’s ongoing knowledge. However, the Tribunal may recourse to the rationale
of Art. 39(2) CISG. Art. 39(2) CISG provides for a two-year period. Prof. Schroeter explicitly
addressed this and introduced this approach [SCHLECHTRIEM/SCHWENZER/Schroeter, Art. 14
para. 59]. The two-year period begins with the conclusion of the last contract subject to the
standard terms [ibid.]. Since the Parties concluded the Sales Contract at the latest on 30 May
2020 [supra para. 88], the two years have not yet passed. CLAIMANT could rely on Ms Bupati’s
ongoing knowledge. In conclusion, RESPONDENT was aware of the 2016 version and its revised
Arbitration Clause.
b. RESPONDENT Was Aware of the 2020 Amendment to the GCoS
104 RESPONDENT was also aware of the 2020 amendment regarding the choice of Mediterranean
law for the Sales Contract. RESPONDENT knew about the change of the choice of law clause and
did not object [PO2-33, p. 52]. Therefore, CLAIMANT did not have to provide a revised version
of the GCoS. RESPONDENT’s knowledge is sufficient to include the revised GCoS.
2. Southern Commodities’ Knowledge of the GCoS is Attributed to RESPONDENT

because They are Part of the Same Corporate Group
105 Southern Commodities’ knowledge of the GCoS is attributed to RESPONDENT because they are
part of the same corporate group. CLAIMANT sent the GCoS to Southern Commodities in
2011 [Response-11, p. 27]. Southern Commodities was still aware of the current version
because CLAIMANT always informed Ms Bupati about changes [cf. supra para. 99]. Whereas a
natural person might forget about the details, the knowledge remains within the company the
representative acquired it for [cf. BGH Neue Juristische Wochenschrift 1995, p. 2160]. As
established above, Southern Commodities’ knowledge is attributed to RESPONDENT because
they are part of the same corporate group and acted as one unit towards CLAIMANT [supra
paras. 82 et seqq.]. The fact that Southern Commodities transferred its entire palm oil unit to
RESPONDENT reinforces this result. Nothing indicates that Southern Commodities had not
transferred the data pertaining to the recent palm oil contracts to RESPONDENT along with the
rest of the unit. After all, RESPONDENT had all the information it needed to accept the delivery
of palm oil Southern Commodities ordered on its behalf.
3. Additionally, the Latest GCoS Were Included in the Contract Because the Party
Practice Contained Applying Them
106 The Party Practice contains that the latest GCoS are included in the contracts. Many scholars
argue that the standard terms’ user is not obligated to make the terms available again if the party
practice mirrors the terms [supra para. 95]. Therefore, the GCoS became part of the Sales
Contract even though RESPONDENT did not receive the GCoS. Mr Chandra and Ms Bupati had
established a practice which applies to the Sales Contract [supra paras. 77 et seqq.].
107 To make the application of standard terms part of a practice, the terms must be validly included
in the contracts which established the practice [Tantalum Powder Case II, paras. 13 et seqq.;
Industrial Equipment Case; ScHLECHTRIEM/SCHWENZER/Schroeter, Art. 14 para. 78]. In the
period of 2010-2018, Mr Chandra and Ms Bupati concluded at least 40 contracts which
established a practice [Response-18, p. 28]. CLAIMANT validly included its GCoS in these
contracts because it met the two corresponding requirements: First, CLAIMANT stated in all the
emails accompanying the conclusion of the contracts that the GCoS apply [Exh. C1-4, p. 9].
Second, Ms Bupati received the GCoS [PO2-18, p. 50]. In consequence, applying the GCoS
became part of the Party Practice.
108 The amendments to the GCoS in 2016 and 2020 also became part of the Party Practice. If the
user of standard terms modifies their content and wants to include the new version in future
contracts, it must meet the requirement of making the standard terms available [cf.
SCHLECHTRIEM/SCHWENZER/Schroeter, Art. 14 para. 65]. CLAIMANT explained both
modifications of the GCoS to Ms Bupati in detail [supra paras. 101, 104]. CLAIMANT could
rely on her ongoing awareness [supra para. 102]. This is sufficient for the requirement to make
the terms available [supra para. 97]. Thus, the modified GCoS became part of the Party
Practice. CLAIMANT did not have to provide the GCoS to RESPONDENT.
B. Respondent HAD REASONABLE OPPORTUNITY TO OBTAIN AWARENESS OF THE GCOS
109 Even if Ms Bupati’s knowledge is not attributed to RESPONDENT and the Party Practice does
not apply, RESPONDENT had a reasonable opportunity to obtain awareness of the GCoS. In
addition to an explicit reference to the standard terms, a reasonable opportunity suffices to

include the terms without transmitting them [Vine Wax Case, p. 12; Tantalum Powder Case I,
para. 43; Gantry S.A. v. Research Consulting Marketing, paras. 23 et seq.;
SCHLECHTRIEM/SCHWENZER/Schmidt-Kessel, Art. 8 para. 59; SOERGEL/Lüderitz/Fenge,
Art. 14 para. 10].
110 A strict obligation of the standard terms’ user to always provide the terms would contradict the
case-by-case approach of Art. 8(2), (3) CISG and would be formalistic [PÖTTER/HÜBNER,
p. 340; BERGER II, p. 17]. On the one hand, such a strict obligation contradicts the liberal spirit
of the CISG [KINDLER, p. 233] and exceeds the principles of Artt. 8, 14 and 18 CISG [EISELEN,
p. 12]. On the other hand, the requirement of a reasonable opportunity is in accordance with the
broad wording of Art. 8 CISG [Film Coating Machine Case, pp. 13 et seq.;
ScHLECHTRIEM/SCHWENZER/Schmidt-Kessel, Art. 8 para. 59; EISELEN, p. 14]. This allows for
a fair solution in individual cases [BERGER II, p. 18] and provides a realistic commercial
approach [EISELEN, p. 14].
111 Scholars as well as case law established a legal standard to determine whether the other party
had a reasonable opportunity to become aware. Measured against these legal standards,
RESPONDENT had a reasonable opportunity according to both, scholars [1] as well as case
law [2].
1. Scholars’ Principles Require RESPONDENT to Inquire About the GCoS
112 RESPONDENT had a reasonable opportunity to become aware of the GCoS’ content. Such an
opportunity is given if—upon inquiry—the other party can easily become aware of the
terms [SCHLECHTRIEM/SCHWENZER/Schmidt-Kessel, Art. 8 para. 60]. CLAIMANT sent a prior
version of the GCoS to Southern Commodities which Ms Bupati received on its
behalf [Response-11, p. 27]. She knew that CLAIMANT would also send the GCoS to
RESPONDENT, at least if requested. There is no indication to the contrary.
113 Furthermore, if a subsidiary has specific reason to suspect that the parent company has
knowledge relevant for the subsidiaries’ business, it can be required to try to obtain the
information [KATAN, p. 310]. Standard terms constitute such relevant information as they are
crucial for the conduct of business. The GCoS were made available to Southern
Commodities [cf. supra para. 99] which Ms Bupati—and therefore RESPONDENT—was aware
of. RESPONDENT was required to make an inquiry at Southern Commodities.
2. Case Law Confirms RESPONDENT’s Obligation to Inquire Because of the Sales

Contract’s Significance
114 The principles established in the 2003 Tantalum Powder Case I before the Austrian Supreme
Court support that it would have been reasonable for RESPONDENT to inquire. It set criteria for
the reasonableness of obtaining awareness of standard terms. The court held that relevant
factors are the duration, intensity, and importance of the business relationship [Tantalum
Powder Case I, para. 45]. The relationship of Ms Bupati and Mr Chandra fulfills all three
factors: first, the relationship lasted for a long time and was fruitful because they concluded at
least 40 contracts in the period of eight years [Response-18, p. 28]. Furthermore, this
relationship also affected the Parties at the time of the conclusion of this Sales Contract because
the representatives were identical [supra para. 85]. Second, the Sales Contract is
extraordinarily important: it was about the delivery of 20,000t of palm oil per annum—i.e., 2/3
of CLAIMANT’s annual production. Additionally, the Parties agreed upon a long-term supply
while Ms Bupati’s and Mr Chandra’s prior negotiations only covered the delivery for one
year [PO2-8, p. 49]. Lastly, RESPONDENT was dependent on CLAIMANT’s supply of palm
oil [supra para. 67]. Since all criteria are fulfilled, it was reasonable for RESPONDENT to
become aware of the latest GCoS’ content. The principles which case law and scholars
established are fulfilled. The GCoS became part of the Sales Contract by CLAIMANT’s explicit
reference [supra para. 92].
III. CONCLUSION
115 RESPONDENT’s submission that the GCoS were not validly included in the Sales Contract is
merely the attempt of a continuous strategy to escape its contractual obligation. This does not
convince. CLAIMANT fulfilled the requirements of the CISG to include standard terms in a
contract. First, CLAIMANT made a clear reference to the GCoS. Second, CLAIMANT met the
requirement to make the GCoS available. Accordingly, Art. 4 GCoS became part of the
Contract which is why RESPONDENT is bound to the Sales Contract.
Pacta sunt servanda.
REQUEST FOR RELIEF

Based on the aforesaid, CLAIMANT respectfully requests the Tribunal to grant the relief set out
herein below:
1) To declare that the Tribunal has jurisdiction to hear the case.

2) To declare that the Parties entered into a valid Sales Contract in 2020 for the delivery
of 20,000t per annum of RSPO-certified palm oil for the years 2020-2025.
3) To declare that the GCoS were validly included in the Sales Contract.
Heidelberg, 9 December 2021
Counsel for CLAIMANT
MORITZ F. BÖBEL LEA DEGER
NOËMI SIMON ELENA STEGMANN
TOBIAS THOMER

U of Heidelberg Claimant

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TWENTY NINTH ANNUAL

WILLEM C. VIS INTERNATIONAL COMMERCIAL

MEMORANDUM FOR CLAIMANT

CASE REFERENCE: AIAC/INT/ADM-123-2021

ON BEHALF OF: AGAINST:

TABLE OF ABBREVIATIONS ............................................................................ V

TABLE OF LITERATURE .............................................................................. VIII

TABLE OF CASES .............................................................................................. XX

TABLE OF ARBITRAL AWARDS AND DECISIONS ......................... XXXVII

TABLE OF OTHER SOURCES ........................................................................ XL

STATEMENT OF FACTS ...................................................................................... 1

SUMMARY OF ARGUMENT ............................................................................... 2

PART I: THE PARTIES VALIDLY AGREED ON THE JURISDICTION OF

III. CONCLUSION ............................................................................................................................ 17

PART II: THE PARTIES CONCLUDED THE SALES CONTRACT IN 2020

I. THE PARTIES CONCLUDED THE SALES CONTRACT ON 9 APRIL 2020 ................................... 17

1. Ms Bupati’s Email Shows RESPONDENT’s Intention to Be Legally Bound .................... 18

III. CONCLUSION ............................................................................................................................ 26

PART III: THE GCOS WERE VALIDLY INCLUDED IN THE SALES

I. CLAIMANT MADE A REFERENCE TO THE GCOS AT THE SUMMIT ......................................... 27

III. CONCLUSION ............................................................................................................................ 33

REQUEST FOR RELIEF...................................................................................... 34

AIAC 2021 AIAC Rules – Global Solution

BCCI Bulgarian Chamber of Commerce and Industry

cf. confer (compare)

United Nations Convention on Contracts for the International Sale of

Internet database on CISG decisions and materials, available at

DAL Danubian Arbitration Law

DCL Danubian Contract Law

DCoL Danubian Conflict of Law Rules

emph. add. emphasis added

et al. et alii (and others)

et seq. et sequens (and following)

et seqq. et sequentes (and following; more than one page/paragraph)

etc. et cetera (and rest)

Exh. C CLAIMANT’s Exhibit

Exh. R RESPONDENT’s Exhibit

GCoS General Conditions of Sale

i.e. id est (that is)

ibid. ibidem (the same place)

ICC International Chamber of Commerce

infra See below

MCL Mediterranean Contract Law

MfC Memorandum for CLAIMANT

NoA Notice of Arbitration

Convention on the Recognition and Enforcement of foreign arbitral

PO1 Procedural Order Number 1

PO2 Procedural Order Number 2

Response Response to the Notice of Arbitration

RSPO Roundtable on Sustainable Palm Oil

sc. scilicet (to wit)

supra See above

Swiss PILA Swiss Federal Act on Private International Law (PILA)

Tribunal Arbitral Tribunal

UNCITRAL United Nations Commission on International Trade Law

UNCITRAL United Nations Commission on International Trade Law Arbitration

UNIDROIT International Institute for the Unification of Private Law

UNCITRAL Rules on Transparency in Treaty-based Investor-State

ACHILLES Achilles, Wilhelm-Albrecht 71