SIXTEENTH ANNUAL WILLEM C.

VIS EAST
INTERNATIONAL COMMERCIAL ARBITRATION MOOT
HONK KONG | 31ST MAR – 7TH APRIL, 2019

MEMORANDUM FOR CLAIMANT

NATIONAL LAW INSTITUTE UNIVERSITY, BHOPAL

MADHYA PRADESH, INDIA

ON BEHALF OF: AGAINST:

PHAR LAP ALLEVAMENTO BLACK BEAUTY EQUESTRIAN
RUE FRANKEL 1 2 SEA BISCUIT DRIVE
CAPITAL CITY OCEANSIDE
MEDITERRANEO EQUATORIANA
CLAIMANT RESPONDENT

COUNSEL
PRANJAL AGARWAL | ADITYA WADHWA
ANKIT GUPTA | NILAKSHI SRIVASTAVA | SHIULI MANDLOI
MEMORIAL FOR CLAIMANT TABLE OF CONTENTS

LIST OF ABBREVIATIONS ............................................................................................. I

INDEX OF AUTHORITIES ............................................................................................ V

Legal Resources and Materials....................................................................................... V
Books, Journal and Articles ........................................................................................... VI
Domestic Cases ......................................................................................................... XVII
International Cases ...................................................................................................XXVI
Others.....................................................................................................................XXVIII

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

SUMMARY OF ARGUMENTS ......................................................................................... 1

ARGUMENTS .................................................................................................................... 2
ISSUE 1: THE ARBITRAL TRIBUNAL HAS THE JURISDICTION AND THE
POWER TO ADAPT THE CONTRACT UNDER THE ARBITRATION
AGREEMENT ................................................................................................................ 2
I. THE LAW OF THE CONTRACT GOVERNS THE ARBITRATION AGREEMENT ........................ 2
A. Presumption is in favour of law of the contract .............................................................. 2
B. Law of the main contract applies to the arbitration agreement as per the three-step
test (Sulamérica). .............................................................................................................................. 3
a) The implied choice that emanates from the intention of the parties ....................... 3
b) The ‘closest connection’ test ................................................................................................. 4
II. THE PRESENT DISPUTE IS WITHIN THE JURISDICTION OF THE TRIBUNAL ................... 4
A. The arbitration agreement covers the present dispute ................................................... 5
B. The pro-arbitration principle is in favor of the jurisdiction of the Tribunal ...... Error!
Bookmark not defined.
III. THE TRIBUNAL IS EMPOWERED TO ADAPT THE CONTRACT............................................ 6
A. Presumption is in favour of adaptation in case of absence of express conferral........ 6
B. Application of the law of Mediterraneo allows for adaptation Error! Bookmark not
defined.
a) Under Art. 8.1 CISG, RESPONDENT’s subjective intention cannot be relied upon
7
b) Under Art. 8(2) CISG, the Parties’ objective intent was to empower the Tribunal
to adapt the Contract ............................................................................................................... 7
i. Previous negotiations.................................................................................................. 7
ii. Subsequent conduct of the parties ........................................................................... 9
MEMORIAL FOR CLAIMANT TABLE OF CONTENTS

C. The arbitral tribunal can adapt the contract even on application of Danubian law ... 9
ISSUE 2: EVIDENCE FROM THE OTHER ARBITRATION CAN BE
SUBMITTED DESPITE BEING ILLEGALY OBTAINED ............................................. 10
I. THE TRIBUNAL HAS DISCRETION TO ADMIT THE AWARD AS EVIDENCE........................ 11
A. Illegally obtained evidence is admissible before the tribunal ....................................... 12
a) Participation of the party seeking to admit the evidence in the unlawful activity
that led to its disclosure ......................................................................................................... 12
b) Relevance and Materiality of the Evidence ................................................................ 13
c) Whether prejudice is caused due to disclosure of evidence .................................... 13
i. Existence of duty of confidentiality between the parties .................................... 14
ii. Actual proof of injury ............................................................................................... 14
iii. Other party as the originator of breach ................................................................. 14
II. NON-ADMISSION WILL VIOLATE DUE PROCESS OF LAW .................................................... 14
III. TRANSPARENCY PRINCIPLES PERMIT DISCLOSURE DESPITE CONFIDENTIALITY............ 15
A. Avoid contradictory decisions on similar dispute ......................................................... 15
B. Protect and serve the interest of the public.................................................................... 16
C. Development of the arbitral legal order.......................................................................... 16
ISSUE 3: CLAIMANT IS ENTITLED TO THE PAYMENT OF US$ 1,250,000 OR
ANY OTHER AMOUNT RESULTING FROM AN ADAPTATION OF THE
PRICE................................................................................................................................................... 18
I. THE PRICE OF GOODS AS AGREED BETWEEN THE PARTIES SHOULD BE ADAPTED
UNDER CLAUSE 12 OF THE CONTRACT ......................................................................................... 18

A. The tariffs imposed by the Equatorianian Government constitute hardship under

clause 12 of the Contract............................................................................................................ 18
a) The imposition of tariffs qualifies as a ‘comparable unforeseen’ event ................ 19
b) The imposition of tariffs has made performance of Contract more onerous for
the CLAIMANT ......................................................................................................................... 20
B. Price of the Contract should be adapted to resolve such a situation of hardship .... 20
a) Parties intended for price adaptation as a remedy for hardship ............................. 20
b) Delivery was authorized only upon RESPONDENT’s assurance that a solution
would be found ....................................................................................................................... 20
c) Price adaptation is the most appropriate remedy in the present situation ............ 21
C. Adaptation of the Price should be made in favour of CLAIMANT .............................. 21
a) CLAIMANT is facing a situation of financial ruin and cannot bear further losses . 22
MEMORIAL FOR CLAIMANT TABLE OF CONTENTS

b) The sum paid by CLAIMANT for the tariffs exceeds the risks accepted by it under
the Contract ............................................................................................................................. 22
c) RESPONDENT has unlawfully earned profits by breaching the resale prohibition in
the Contract ............................................................................................................................. 23
II. THE PRICE OF GOODS AS AGREED BETWEEN THE PARTIES SHOULD BE ADAPTED
UNDER CISG .................................................................................................................................... 23

A. Application of Art. 79 CISG has not been excluded by the Parties ........................... 24
a) Parties have not expressly excluded the application of Art. 79 CISG ................... 24
b) Parties have not impliedly excluded the application of Art. 79 CISG ................... 24
B. There exists a gap in relation to price adaptation as remedy of hardship under CISG
25
a) There exists an external gap regarding price adaptation of the Contract as a
remedy for hardship ............................................................................................................... 25
b) Alternatively, there exists an internal gap regarding price adaptation of the
Contract as a remedy for hardship ....................................................................................... 25
C. Price adaptation should be granted as a remedy using UNIDROIT ......................... 26
a) The events occurred or became known to CLAIMANT after the conclusion of the
Contract.................................................................................................................................... 26
b) The events could not reasonably have been taken into account by CLAIMANT at
the time of conclusion of the Contract ............................................................................... 26
C) The events were beyond the control of CLAIMANT ................................................. 27
d) The risk of the events was not assumed by CLAIMANT. .......................................... 27

REQUEST FOR RELIEF ................................................................................................ 28

MEMORIAL FOR CLAIMANT LIST OF ABBREVIATIONS

LIST OF ABBREVIATIONS

Abbreviation Expansion

& and (ampersand)

% Percentage

AC Advisory Council

All ER All England Reporter

Art. Art.

AUT Austria

BEL Belgium

CAS Court of Arbitration for Sport

CEO Chief Executive Officer

cf. Compare

Cl. Ex. Claimant’s Exhibit

CLOUT Case law on UNCITRAL text

Co. Company

DDP Delivery Duty Paid

United States District Court for the Eastern

E.D. Va.
District of Virginia.

ECJ European Court of Justice

EDF Électricité de France

etc. Etcetera

I
MEMORIAL FOR CLAIMANT LIST OF ABBREVIATIONS

EWHC High Court of England and Wales

F. Suppl. Federal Supplement

FRA France

GBR Great Britain

GER Germany

GMBH A German Company with Limited Liability

HA ZA The Hague District Court

HKIAC Hong Kong International Arbitration Centre

i.e. That is

ICC International Chambers of Commerce

International Council for Commercial

ICCA
Arbitration

ICDR International Centre for Dispute Resolution

The International Centre for Settlement of

ICSID
Investment Disputes

ILC International Law Commission

In re In reference

Inc. Incorporated

ITA Italy

LLC Limited Liability Company

Lloyd’s Rep. Lloyd’s reporter (Law Report)

Ltd. Limited

Ned Netherlands

II
MEMORIAL FOR CLAIMANT LIST OF ABBREVIATIONS

No. Number

NY New York

Op. Opinion

Or(s). Other(s)

p. Page Number

para. Paragraph Number

Principles of International Commercial

PICC
Contract

PO1 Procedural Order No. 1

PO2 Procedural Order No. 2

QB Queen’s Bench

Re. Ex. Respondent’s Exhibit

SCC Supreme Court Cases

SG Singapore

SGHC Singapore High Court

SWE Swedish Supreme Court

SWZ Switzerland

U.S. United States of America

UK United Kingdom

UKHL United Kingdom House of Lords

UN United Nations

United Nations Commission on International

UNCISG
Trade Law

III
MEMORIAL FOR CLAIMANT LIST OF ABBREVIATIONS

United Nations Convention on Contracts for

UNCITRAL the International Sale of Goods, 1980
(“CISG”/ “Convention”)

UNIDROIT Principles of International

UNIDROIT
Commercial Contracts, 2010

USA United States of America

USD US Dollar (US$)

v. Versus

W.D.P.A Western District of Pennsylvania

WLR Welsh Law Reporter

IV
MEMORIAL FOR CLAIMANT INDEX OF AUTHORITIES

INDEX OF AUTHORITIES

Legal Resources and Materials

CISG United Nations Convention on Contracts for the

International Sale of Goods, 1980
CISG-AC OP. NO. 7 CISG-AC Opinion No. 7, Exemption of Liability for
Damages under Art. 79 of the CISG,
Rapporteur: Professor Alejandro M. Garro,
Columbia University School of Law, New York,
N.Y., USA,
Adopted by the CISG-AC at its 11th meeting in
Wuhan, People's Republic of China, on 12 October
2007.
CISG-AC OP. NO. 16 CISG-AC Opinion No. 16, Exclusion of the CISG
under Art. 6,
Rapporteur: Doctor Lisa Spagnolo, Monash
University, Australia,
Adopted by the CISG Advisory Council following its
19th meeting, in Pretoria, South Africa on 30 May
2014.
HKIAC Rules 2018 HKIAC Administered Arbitration Rules
ICC Rules Arbitration Rules of the International Chambers of
Commerce, 2012.
New York Convention New York Convention on the Recognition and
Enforcement of Foreign Arbitral Awards
Rules VEM16 Vis East Moot Foundation Ltd. Rules
UNCITRAL Legal Guide UNCITRAL Legal Guide on Drawing Up
International Contracts for the Construction of
Industrial Works,
United Nations, Ney York (1988),
p. 251.
UNCITRAL Model Law UNCITRAL Model Law on International
Commercial Arbitration, 1985 with amendments

V
MEMORIAL FOR CLAIMANT INDEX OF AUTHORITIES

adopted in 2006.
UNCITRAL Digest UNCITRAL Digest of Case Law
UNIDROIT UNIDROIT Principles on International Commercial
Contracts, 2016.

Book, Journal and Articles

BERGER, K. P. Berger’s list of Principles, Rules and Standards of the

Lex Mercatoria,
in: The Creeping Codification of the Lex Mercatoria,
The Hague/London/Boston
(1999), p. 290,291.
cited as: Berger
in para. 154
BIANCA, C.M./ BONELL, M.J Commentary on the International Sales Law – The
1980 Vienna Sales Convention,
Giuffrè,
Milan (1987), p. 117, pp. 65-94.
cited as: Bianca/ Bonell
in para. 44, 45
BOCKSTIEGEL, K.H. Adaptation and Renegotiation of Contracts in
International Trade and Finance,
in: Kluwer Law International, Volume III (1985), p.
161.
cited as: Bockstiegel
in para. 52
BORN, GARY B. International Commercial Arbitration
Kluwer Law International: New York,
2nd edn. (2014), Volume I, II, pp. 6– 224, p.
42,50,466,489, III, p. 3822
cited as: Born
in para. 5, 14, 17, 25, 30, 113, 168
BORN, GARY B. The Law Governing International Arbitration
Agreements: An International Perspective
in: Singapore Academy of Law Journal, Volume 26

VI
MEMORIAL FOR CLAIMANT INDEX OF AUTHORITIES

(2014), pp. 814-848, p. 827.

cited as: Born Art.
in para. 13
BOYKIN, JAMES.H. / HAVALIC, Fruits of the Poisonous Tree: The Admissibility of
MAIK Unlawfully Obtained Evidence,
in: International Arbitration by (2014) p. 33.
cited as: Boykin/Havalic
in para. 76, 88
BRUNNER, CHRISTOPH Force Majeure and Hardship under General Contract
Principles: Exemption for Non-performance in
International Arbitration,
International Arbitration Law Library,
Volume 18, p. 121–141, 424, 499, 392.
cited as: Brunner
in para. 153, 156, 200
BRUNO ZELLER Four-Corners - The Methodology for Interpretation
and Application of the UN Convention on Contracts
for the International Sale of Goods,
May 2003, p. 67.
cite as: Zeller
in para. 189
BUHLER, M. /WEBSTER, T. Handbook of ICC Arbitration,
in: Sweet & Maxwell,
1st edition (2005) p. 80.
cited as: Buhler/Webster
in para. 12
BUND, JENNIFER M. Force Majeure Clauses – Drafting Advice for CISG
Practioners,
Journal of Law and Commerce (1998),
Volume 17, p. 392.
cited as: Bund
in para. 171
BUYS, CG The Tensions between Confidentiality and
Transparency in International Arbitration,

VII
MEMORIAL FOR CLAIMANT INDEX OF AUTHORITIES

in: The American Review of International

Arbitration, Volume 14, p. 135.
cited as: Buys
in para. 111
CHOONG, JOHN/ The Hong Kong Arbitration Ordinance:
WEERAMANTRY, ROMESH Commentary and Annotation
in: Sweet and Maxwell, 2nd edition (2015), p. 46.19
cited as: Choong/Weeramantry
in para. 22
DARANKOUM, EMMANUEL S L’application des Principes d’UNIDROIT par les arbitres
internationaux et par les juges étatiques,
in: R.J.T., Volume 36 (2002), p. 421, 473.
cited as: Darankoum
in para. 161
DECLERCQ, P.J.M. Modern Analysis Of The Legal Effect Of Force
Majeure Clauses In Situations Of Commercial
Impracticability,
in: Journal of Law and Commerce (1995), Issue
No.15, p. 246.
cited as: Declercq
in para. 53
ELGUETA, GIACOMO ROJAS Understanding Discovery in International
Commercial Arbitration through 'Behavioral Law
and Economics': A Journey Inside the Minds of
Parties and Arbitrators,
in: Harvard Negotiation Law Review, (2011), p. 165.
cited as: Elgueta
in para. 100
FALLON, M./ PHILIPPE, D. La Convention de Vienne sur les contrats de vente
internationale de marchandises,
in: Université Libre De Bruxelles, Université d’
Europe, J.T.,
No. 20 (1998), p. 21.
cited as: Fallon/ Philippe

VIII
MEMORIAL FOR CLAIMANT INDEX OF AUTHORITIES

in para. 175
FERRARIO, PIETRO The Adaptation of Long-Term Gas Sale Agreements by
Arbitrators
in: Kluwer Law International, Volume 41 (2017) pp. 71 –
166, p. 146.
cited as: Ferrario
in para. 28
FOUCHARD, PHIIPPE/ Fouchard Gaillard Goldman on International
GOLDMAN, BERTHOLLD Commercial Arbitration,
in: Kluwer Law International (1999) p. 222,227
cited as: Fouchard
in para. 17, 18, 20, 35
FRANKLIN, RICHARD M. Special Considerations in Drafting an Arbitration
Clause and Conducting an Arbitration with a U.S.
Counterparty,
in: Austrian Arbitration Yearbook (2009), p. 93, 96
cited as: Franklin
in para. 30
HAERYNCK, WOUTER DEN Drafting Hardship Clauses in International
Contracts,
in: Dennis Campbell (1996),
p. 234.
cited as: Haerynck
in para. 147
HELLNER, JAN Prospects for the Unification of Sales Law at the
Regional or International level: A Scandinavian View,
in: McGill Law Journal,
Volume 15 (1969), p. 83, 92, 93.
cited as: Hellner
in para. 181
HOELLERING, MICHAEL Interim Relief in Aid of International
Commercial Arbitration,
in: Wisconsin International Law Journal,
(1984), p. 2

IX
MEMORIAL FOR CLAIMANT INDEX OF AUTHORITIES

Cited as: Hoellering

in para. 120
HOLTZMANN, HOWARD M. / Matters Not Addressed in the Final Text of the 1985
NEUHAUS, JOSEPH E. UNCITRAL Model Law,
in A Guide to the UNCITRAL Model Law on
International Commercial Arbitration: Legislative
History and Commentary,
in: Kluwer Law International (1989), p. 1129.
cited as: Holtzman/Neuhaus
in para. 64, 65
HONNOLD, JOHN Uniform Law for International Sales under the 1980
United Nations Convention,
in: Kluwer Law International, The Hague, Third
Edition (1999), p. 121, 423, 622.
cited as: Honnold
in para. 59, 188
HONNOLD, JOHN Uniform Law and Uniform Trade Terms
-- Two Approaches to a Common Goal,
in: Kluwer Law International (1982),
Volume 2, pp.161-17.
cited as: Honnold II.
in para. 181
HORN, NORBERT Adaptation and Renegotiation of Contract in
International Trade and Finance,
in: Kluwer Law and Taxation Publisher,
Boston (1985), p. 54.
cited as: Horn
in para. 156
HUBER, PETER Some introductory remarks on the CISG,
in: Sellier European Law Publishers (2006),
p. 228-238, p. 235
cited as: Huber
in para. 40
KEILY, TROY Good Faith and the Vienna Convention on

X
MEMORIAL FOR CLAIMANT INDEX OF AUTHORITIES

Contracts for the International Sale of Goods

(CISG),
in; Vindobona Journal of International Commercial
Law and Arbitration,
Volume 3, Issue 1 (1999) 15-40.
cited as: Keily
in para. 170
KRÖLL, STEFAN/ MISTELIS, UN-Convention on Contracts for the International
LOUKAS /VISCASILLAS, Sale of Goods (CISG),
PERALES/ DEL PILAR, MARÍA München (2011),
p.1089.
cited as: Kröll et al
in para. 188
KROPHOLLER, JAN Internationales Einheitsrecht (Beiträge zum ausländischen und
internationalen Privatrecht, Band 39),
in: Mohr Siebeck (1975),
p. 292.
cited as: Kropholler
in para. 190
LEW, JULIAN D. M. / MISTELIS, Comparative International Commercial Arbitration,
LOUKAS A. in: Kluwer Law International (2003),
p. 561.
cited as: Lew/Mistelis
in para. 73
LIEBSCHER/OBERHAMMER/ Die Schiedsvereinbarung,
RECHBERGER in: Schiedsverfahrensrecht,
Volume 1 (2012), pp. 91-337.
cited as: Liebscher
in para. 26
LOOKOFSKY, JOSEPH The 1980 United Nations Convention on Contracts
for the International Sale of Goods
in: International Encyclopaedia of Laws - Contracts,
Kluwer Law International (December 2000), p. 80.
cited as: Lookofsky

XI
MEMORIAL FOR CLAIMANT INDEX OF AUTHORITIES

in para. 187
MAUPIN, JULIE A. Transparency in International Investment Law: The
Good, the Bad, and the Murky,
in: Cambridge University Press (2013),
p. 142.
cited as: Maupin
in para. 104
MASKOW, DIETRICH Hardship and Force Majeure,
in: The American Journal of Comparative Law,
Volume 40 (1992), No. 3, pp. 657-669.
cited as: Maskow
in para. 171
MCKENDRICK, EWAN Commentary on the UNIDROIT Principles of
International Commercial Contracts, (PICC), in:
Oxford University Press (2009), p. 712.
cited as: McKendrick
in para. 141, 154, 199
MOLINAUX, C. Moving Towards a Construction Lex Mercatoria. A
Lex Constructionis,
in: Journal of International Arbitration, Volume 14
(1997), p. 64.
cited as: Molinaux
in para. 154
MOSER, MICHAEL / BAO, A Guide to the HKIAC Arbitration Rules
CHIANN in: Oxford University Press (2017), p. 161, 162,190,
201, 282.
cited as: HKIAC Guide
in para. 73,83, 87, 93, 100, 101, 117
MUSTILL, M.J. The New Lex Mercatoria: The First Twenty-Five
Years,
in: Arbitration International (1988),
p. 111.
cited as: Mustill
in para. 154

XII
MEMORIAL FOR CLAIMANT INDEX OF AUTHORITIES

NEUMAYER, KARL H./ MING, Convention de Vienne sur les contrats de vente internationale
CATHERINE de marchandises,
Lausanne CEDIDAC,
Volume 24 (1993), p. 535.
cited as: Neumayer/Ming
in para. 184
PERILLO, JOSEPH M. Force Majeure and Hardship under the UNIDROIT
Principles of International Commercial Contracts,
Universidad Nacional Autónoma de México -Universidad
Panamericana,
(1998), p. 112,114.
cited as: Perillo
in para. 191
PETER, WOLFGANG 'Arbitration and Renegotiation Clauses', Journal of
International Arbitration,
in: Kluwer Law International,
Volume 3 (1986), Issue 2, pp. 29 – 46, p. 42
cited as: Peter
in para. 34
PILKOV, KONSTANTIN Evidences in International Arbitration: Criteria for
Admission and Evaluation,
in: The International Journal of Arbitration,
Mediation and Dispute Management,
(2014), p. 147, 148, 149, 152.
cited as: Pilkov
in para. 72, 83, 85
POUDRET, J-F/BESSON, S Comparative Law of International Arbitration
in Sweet & Maxwell,
second edition, (2007), p. 316.
cited as: Poudret
in para. 106
RAESCHKE-KESSLER, HILMAR The Production of Documents in International
Arbitration - A Commentary on Art. 3 of the New
IBA Rules of Evidence,

XIII
MEMORIAL FOR CLAIMANT INDEX OF AUTHORITIES

in: Arbitration International ,

Vol. 18 (2002), p. 427.
cited as: Raeschke-Kessler
in para. 83, 85
RUSCALLA, GABRIELE Transparency in International Arbitration: Any
(Concrete) Need to Codify the Standard?
in: Groningen Journal of International Law,
Volume 3 (2015), Issue 1, p. 8,9,10.
cited as: Ruscalla
in para. 106, 107
REISMAN, W MICHAEL / Plaintiff 's Dilemma: Illegally Obtained Evidence and
FREEDMAN ERIC E. Admissibility in International Adjudication,
in: The American Journal of International Law,
Volume. 76, No. 4 (1982), p. 748.
cited as: Reisman/Freedman
in para. 82
RIMKE, JOERN Force majeure and hardship: Application in
international trade practice with specific regard to the
CISG and the UNIDROIT Principles of
International Commercial Contracts,
in: Convention on Contracts for the International
Sale of Goods, Kluwer Law International (1999-
2000), p. 219.
cited as: Rimke
in para. 53, 131, 147, 155
ROGERS, CATHERINE A. Transparency in International Commercial
Arbitration,
in: Kansas Law Review (2006), p.1307, 1337
cited as: Rogers
in para.104, 111
SCHMITTHOFF, CLIVE M. Hardship And Intervener Clauses,
in: Journal of Business Law (1980),
p. 82,85,88.
cited as: Schmitthoff

XIV
MEMORIAL FOR CLAIMANT INDEX OF AUTHORITIES

in para. 53
SCHWENZER, INGEBORG Force majeure and hardship in international sales
contracts,
in: Victoria University of Wellington Law Review,
Volume 39, Number 1 (2009), p. 715.
cited as: Schwenzer
in para. 131
SILVEIRA, MERCEDEH Trade Sanctions and International Sales: An Inquiry
AZERDO DA into International Arbitration and Commercial
Litigation,
in: Kluwer Law International 2014, pp. 321 – 348,
358.
cited as: Silveira
in para. 156, 164, 184, 189
SLATER, SCOTT D. Overcome by Hardship: The Inapplicability of the
UNIDROIT Principles' Hardship Provisions to
CISG,
in: Florida Journal of International Law
Volume 12 (1998), p. 252.
cited as: Slater
in para. 191
SMEUREANU, ILEANA M. Confidentiality in International Commercial
Arbitration,
in: Kluwer Law International,
Volume 22 (2011) p. 180.
cited as: Smeureanu
in para.92, 97
SPAGNOLO, L. Iura Novit Curia and the CISG: Resolution of the
Faux Procedural Black Hole,
in: I. Schwenzer & L. Spagnolo, Towards
Uniformity: 2nd Annual MAA Schlechtriem CISG
Conference (2011),
Kluwer Law International (2014), p. 208.
cited as: Spagnolo

XV
MEMORIAL FOR CLAIMANT INDEX OF AUTHORITIES

in para. 182
STIPANOWICH, TJ Arbitration and the Multiparty Dispute: The Search
for Workable Solutions,
In: Iowa Law Review, Volume 72 (1987) p. 473.
cited as: Stipanowich
in para. 116
STRONG, S. I. Intervention and Joinder As of Right in
International Arbitration: An Infringement of
Individual Contract Rights or A Proper
Equitable Measure?’
in: Vanderbilt Journal of Transnational Law,
Volume 31 (1998), p. 926, 980, 984, 985, 986.
cited as: Strong
in para. 118, 119, 120, 121
SUTTON, D.J./GILL, J./ Russell On Arbitration,
GEARING, M. in: Sweet & Maxwell (2007), pp. 10.
cited as: Sutton/Gill/Gearing
in para. 28
TOULSON, R.G. /PHIPPS, C.M. Confidentiality,
Sweet & Maxwell,
2nd edn. (2006), p. 117.
cited as: Toulson/Phipps
in para: 90
TUNG, SHERLIN / LIN, BRIAN More Transparency In International Commercial
Arbitration: To Have Or Not To Have?
in: Austrian Yearbook on International Arbitration,
Volume (2018), p. 83
cited as: Tung/Lin
in para. 108, 109, 113
WEEDDALE, ANDREW Confidentiality in Arbitration and the Public Interest
Exception,
In Arbitration International,
Volume 21 (2005), Issue 1, p. 59.
cited as: Tweeddale

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MEMORIAL FOR CLAIMANT INDEX OF AUTHORITIES

in para: 106
URIBE, RODRIGO MOMBERG R. M. The Effect of a Change of Circumstances on
the Binding Force of Contracts: Comparative
Perspectives. Cambridge: Intersentia, 2011, p. 202-
203.
cited as: Uribe
in para. 167
VEEDER, V. V. The Lawyer’s Duty to Arbitrate in Good Faith,
in: Arbitration Internation,
Volume 18 (2002), p. 439.
cited as: Veeder
in para. 168
VON MEHREN, GEORGE M. Submitting Evidence in an International Arbitration:
/SALOMON, CLAUDIA T. The Common Lawyer’s Guide
in: Journal of International Arbitration,
Volume 20, (2003), p. 290.
cited as: Von Mehren/Salomon
in para. 101
WACHTER, ROBERT On the Inherent Powers of Arbitral Tribunals in
International Commercial Arbitration
in: Austrian Yearbook On International Arbitration
(2012), p. 81, N.73;
cited as: Wachter
in para. 34
WAINCYMER, JEFFREY Procedure and Evidence in International Arbitration,
in: Kluwer Law International (2012), p. 789.
cited as: Waincymer
in para. 71

Domestic Cases

Australia (AUS)
Commandante Marine Corp v Pan Commandante Marine Corp v Pan Australia
Australia Shipping Pty Ltd. Shipping Pty Ltd,
(AUS, 2006) Federal Court Of Australia,

XVII
MEMORIAL FOR CLAIMANT INDEX OF AUTHORITIES

20th December, 2006.

[2006] FCAFC 192].
cited as: Comm. Marine Corp Case (AUS, 2006)
in para. 31
Austria (AUT)
Auto case Auto case,
(AUT, 2007) Oberster Gerichtshof of Austria,
4 July 2007,
Case No. 2 Ob 95/06v.
cited as: Auto case (AUT, 2007)
in para. 176, 179
Belgium (BEL)
Scafom International BV v. Lorraine Scafom International BV v. Lorraine Tubes S.A.S,
Tubes S.A.S Court of Cassation of Belgium,
(BEL, 2009) 19th June, 2009,
Case No. C. 07. 0289. N.
cited as: Scafom v. Lorraine Tubes (BEL, 2009)
in para. 191, 192, 193
France (FRA)
Société Anthon GmbH & Co. v. SA Société Anthon GmbH & Co. v. SA Tonnellerie
Tonnellerie Ludonnaise Ludonnaise,
(FRA, 1975) Cour de cassation in France,
Pourvoi no. T 08-12.399
cited as: ICC Case No. 2291 of 1975
in para. 176
Germany (GER)
Flowers case Flowers case,
(GER, 2009) LG München ,
18 May 2009,
Case No. 28 O 20906/06.
cited as: Flowers case, (GER, 2009)
in para. 186
Judgment of 17 February 1989 Judgment of 17 February 1989,
(GER, 1989) XV Y.B. Comm,

XVIII
MEMORIAL FOR CLAIMANT INDEX OF AUTHORITIES

Hanseatisches Oberlandesgericht,
17 February 1989,
(1990); Arb. 455, 464.
cited as: Judgment of 17 February 1989
in para. 26, 30
The State of Iraq v. GJV The State of Iraq v. GJV, Oberlandesgericht [Court
(GER,1998) of Appeal], Frankfurt,
1st October 1998.
Volume XXV, Yearbook Commercial Arbitration
(2000) pp. 461-469.
cited as: Iraq v GJV (GER,1998)
in para. 70
Hong Kong (HK)
PCCW Global Ltd v Interactive The High Court Of The
Communications Service Ltd Hong Kong Special Administrative Region, Court Of
(HK, 2006) Appeal (Civil Appeal),
16th November, 2006.
2007 1 HKIAC 327.
cited as: PCCW Global v Interactive Comm. (HK, 2006)
in para. 22
The Incorporated Owners of Sincere The Incorporated Owners of Sincere House v.
House v. Sincere Company Ltd. Sincere Company Ltd,
(HK, 2005) LandsTribunal Of The Hong Kong Special
Administrative Region,
18th May, 2005.
[2005] HKLT 18;
cited as: Inc. Owners v Sincere Co. (HK, 2005)
in para. 22
India (IND)
National Thermal Power Corporation v National Thermal Power Corporation v Singer Co.
Singer Co. and Ors. and Ors,
(IND, 1992) Supreme Court of India,
7th May, 1992.
1992 3 SCC, 551.

XIX
MEMORIAL FOR CLAIMANT INDEX OF AUTHORITIES

cited as: NTPC v Singer (IND,1992)

in para. 14, 25
Italy (ITA)
B. AS (Turkey) and C. AS (Turkey) v B. AS (Turkey) and C. AS (Turkey) v A. S.p.A.
A. S.p.A. (Italy) (Italy),
(ITA, 1999) Swiss Federal Supreme Court,
22nd February, 1999.
BGer (1999) 17(4) Bull ASA, 537.
cited as: Turkey v Italy (ITA, 1999)
in para. 102
Netherlands (NED)
G.W.A. Bernards v. Carstenfelder G.W.A. Bernards v. Carstenfelder Baumschulen
Baumschulen Pflanzenhandel GmbH Pflanzenhandel GmbH,
(NED, 2007) 2 January 2007,
's-Hertogenbosch,
Case No. C0500427/HE.
cited as: Bernards v. Carstenfelder, (NED, 2007)
in para. 176
Minibus case Minibus case,
(NED, 2009) Rb Arnhem,
29 July 2009,
Case No. LJN BJ4645; 172927 / HA ZA 08-1230.
cited as: Minibus case, (NED, 2009)
in para. 196
Singapore (SG)
BCY v BCZ BCY v BCZ,
(SG, 2016) High Court Of The Republic Of Singapore,
8th November, 2016.
2016 SGHC 249.
cited as: BCY v BCZ (SG, 2016)
in para. 8, 14
Sweden (SWE)
A.I. Trade Finance Incorporation v A.I. Trade Finance Incorporation v Bulgarian
Bulgarian Foreign Trade Bank Limited Foreign Trade Bank Limited,

XX
MEMORIAL FOR CLAIMANT INDEX OF AUTHORITIES

(SWE, 2000) Svea Court of Appeal,

27th October, 2000.
Case No. Y 1092-98, 24 Y. C. Arb., 321 (1999).
cited as: Bulgarian Bank Case (SWE, 2000)
in para. 95
Switzerland (SWZ)
Building materials case Building materials case,
(SWZ, 2004) Tribunal Cantonal Jura,
3 November 2004,
Case No. Ap 91/04.
cited as: Building materials case, (SWZ, 2004)
in para. 179
G. AG (Switzerland) v. TAS (Turkey) G. AG (Switzerland) v TAS (Turkey),
(SWZ, 1999) Swiss Federal Supreme Court,
17th February, 1999.
BGer (2000) 18(2) Bull ASA, 311.
cited as: G.AG v TAS (SWZ,1999)
in para. 102
Judgment of 27 January 2010 Judgment of 27 January 2010,
(SWZ, 2010) Swiss Federal Tribunal,
27th January, 2010.
DFT 4A_562/2009.
cited as: Judgment of 27 January 2010
in para. 30
Office furniture Case Office furniture case,
(SWZ, 2006) Cour de justice de Genève,
12th May, 2006.
CLOUT case No. 911 .
cite as: Office Furniture Case (SWZ, 2006)
in para. 42
Packaging Machine Case Packaging Machine Case,
(SWZ, 2006) Appellate Court Basel-Stadt,
26th September, 2006.
16/2007/MEM/chi.

XXI
MEMORIAL FOR CLAIMANT INDEX OF AUTHORITIES

Cited as: Packaging Machine Case (SWZ, 2006)

in para. 42
Second-hand tractor case Second-hand tractor case,
(SWZ, 2008) Amtsgericht Sursee,
12 September 2008,
Case No. 11 07 4.
cited as: Second-hand tractor case, (SWZ, 2008)
in para. 186
T AG v. H Company T AG v H Company,
(SWZ, 1997) Swiss Federal Supreme Court,
24th March, 1997.
BGer (1997) 15(2) Bull ASA, 316.
cited as: T AG v H Company (SWZ,1997)
in para. 102
X Limited v. Y Limited X Limited v. Y Limited,
(SWZ, 2013) Swiss First Civil Law Court,
17th April, 2013.
[4A_669/2012].
cited as: X v. Y
in para. 103
Ukraine (UKR)
Corn case Corn case,
(UKR, 2012) International Commercial Arbitration at the Ukraine
Chamber of Commerce and Trade,
23 January 2012,
Case No. 218y/2011.
cited as: Corn Case, (UKR, 2012)
in para. 179
United States (USA)
Aluminium Co. of America v. Essex Aluminium Co. of America v. Essex Group, Inc
Group, Inc US District Court, Pennsylvania,
(USA, 1980) 7 April 1980,
499 F. Supp. 53 (W.D. Pa. 1980).
cited as: Aluminium Co. v. Essex Group, (USA, 1980)

XXII
MEMORIAL FOR CLAIMANT INDEX OF AUTHORITIES

in para. 61
American Mint LLC v. GOSoftware, American Mint LLC v. GOSoftware, Inc.,
Inc. U.S. District Court, M.D. Pennsylvania,
(USA, 2005) 16 August 2005,
Civ.A. 1:05-CV-650.
cited as: American Mint LLC v. GOSoftware, Inc. (USA,
2005)
in para. 176
Asante Technologies v. PMC-Sierra Asante Technologies v. PMC-Sierra
(USA, 2001) U.S. District Court, California, San Jose Division,
27 July 2001,
C 01-20230 JW.
cited as: Asante Technologies v. PMC-Sierra, (USA,
2001)
in para. 178
Inc. v. Kaplan Inc. v. Kaplan,
(USA, 1995) Court Of Appeals For The Third Circuit, First
Options of Chicago,
22nd May, 1995.
514 U.S. 938, 945 (U.S. S.Ct. 1995)].
cited as: Inc. v Kaplan (USA, 1995)
in para. 30
Mitsubishi Motors Corp. v. Soler Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth,
Chrysler-Plymouth, Inc Inc.,
(USA, 1985) U.S. Supreme Court,
2nd July, 1985.
473 U.S. 614, (U.S. S.Ct. 1985).
cited as: Mitsubishi Motors Case (USA, 1985)
in para. 30
Nardone v. United States Nardone v. United States,
(USA, 1939) U.S. Supreme Court,
11th December 1939.
Case No. 240, 308 U.S. 338, 341.
cited as: Nardone v U.S. (USA,1939)

XXIII
MEMORIAL FOR CLAIMANT INDEX OF AUTHORITIES

in para. 75
San Lucio, S.r.l. et al. v. Import & San Lucio, S.r.l. et al. v. Import & Storage Services,
Storage Services, LLC et al. LLC et al.
(USA, 2009) U.S. District Court, New Jersey
15 April 2009
07-3031(WJM)
cited as: San Lucio, v. Import & Storage Services, (USA,
2009)
in para. 186
Townes v. City of New York Townes v. City of New York,
(USA, 1999) United States Court of Appeals for the Second
Circuit,
6th May, 1999.
76 F.3d 138 (2d Cir. 1999).
cited as: Townes v New York (USA,1999)
in para. 75
United Kingdom of Great Britain and Northern Ireland (GBR)/(NIRL)
Kuruma Son of Kaniu v The Queen Kuruma Son of Kaniu v The Queen,
(Privy Council Appeal No. 35, 1955) Court of Appeal of Eastern Africa,
11th January, 1955.
[1955] AC 197 at 203].
cited as: Kuruma v Queen (1955)
in para. 82
Government of Gibraltar v Kenney Government of Gibraltar v Kenney,
(GBR, 1956) Queen’s Bench Division.
29th June, 1956
[1956] 2 QB 410 at 421.
cited as: Gov of Gibraltar v Kenney (GBR, 1956)
in para. 27
Habas Sinai Ve Tibbi Gazlar Istihsal Habas Sinai Ve Tibbi Gazlar Istihsal Endustrisi AS v
Endustrisi AS v VSC Steel Coy Ltd VSC Steel Coy Ltd
(GBR, 2013) The High Court Of Justice, Queen's Bench Division
(Commercial Court)
19th December, 2013.

XXIV
MEMORIAL FOR CLAIMANT INDEX OF AUTHORITIES

[2013] EWHC 407].

cited as: Habas v VSC Steel Coy (GBR,2013)
in para. 9
HE Daniel Ltd v Carmel Exporters and HE Daniel Ltd v Carmel Exporters and Importers
Importers Ltd Ltd,
(GBR, 1953) Queen’s Bench Division,
8th June, 1953
[1953] Volume 2 Lloyd’s Rep 103,
cited as: HE Daniel v Carmel Exporters (GBR, 1953)
in para. 27
Premium Nafta Products Limited and Premium Nafta Products Limited and others v. Fili
others v. Fili Shipping Company Limited Shipping Company Limited and others,
and others House of Lords,
(GBR, 2007) 17th October, 2007.
[2007] UKHL 40.
cited as: Shipping Company Case (GBR, 2007)
in para. 30
R. (on the application of Bancoult) v. R. (on the application of Bancoult) v. Secretary of
Secretary of State for Foreign and State for Foreign and Commonwealth Affairs,
Commonwealth Affairs) House of Lords,
(GBR, 2008) 22nd October, 2008.
[2008] UKHL61.
cited as: Bancoult Case (GBR, 2008)
in para. 90
Sulamérica Cia Nacional de Seguros SA Sulamérica Cia Nacional de Seguros SA and others v
and others v Enesa Engenharia SA and Enesa Engenharia SA and others ,
others The English Court of Appeal (Civil Division),
(GBR, 2012) 16th May, 2012.
[2012] EWCA Civ 638.
cited as: Sulamérica (GBR, 2012)
in para. 3, 9, 10, 19
Tonicstar Ltd. v. American Home Tonicstar Ltd. v. American Home Assuarance Co,
Assuarance Co. Queen’s Bench Division (Commercial Court)
(GBR, 2005) 1st January, 2004.

XXV
MEMORIAL FOR CLAIMANT INDEX OF AUTHORITIES

[2005] Lloyd's Rep IR 32.

cited as: Tonicstar Case (GBR, 2005)
in para. 4
XL Insurance Ltd v Owens Corning XL Insurance Ltd v Owens Corning,
(GBR, 1999) High Court Of Justice Queen's Bench Division
(Commercial Court),
28th August, 2000.
[2001] 1 All E.R. (Comm) 530.
cited as: XL Insurance v Owens (GBR, 1999)
in para. 8, 14

International Cases

European Court of Justice

Persia International Bank v. Council of Persia International Bank v. Council of European
European Union Union,
(ECJ, 2013) Court of Justice of European Union,
6th September 2013.
Case T-493/10, 2013 E.C.R.
cited as: Persia International Bank v Council (ECJ,2013)
in para. 77
International Court of Justice
People's Republic Of Albania v. The People's Republic Of Albania v. The United
United Kingdom Of Great Britain And Kingdom Of Great Britain And Northern Ireland,
Northern Ireland International Court of Justice,
(ICJ, 1949) 15th December, 1949.
ICJ Rep 244, ICGJ 201 (ICJ 1949).
cited as: Corfu Channel Case (ICJ, 1949)
in para. 82
Arbitral Awards
Ahongalu Fusimalohi v FIFA Award in Ahongalu Fusimalohi v/ FIFA,
Court of Arbitration for Sport,
15th April, 2011,
CAS Case No. 2011/A/2425,
cited as: FIFA Case

XXVI
MEMORIAL FOR CLAIMANT INDEX OF AUTHORITIES

in para. 78
ICSID Awards
Biwater Gauff (Tanzania)
Ltd. v. United Republic of Award in Biwater Gauff (Tanzania) Ltd. v. United
Tanzania Republic of Tanzania,
(Tanzania-UK BIT) International Centre for Settlement of Investment
Disputes,
24th July, 2008,
ICSID Case No. ARB/05/22.
cited as: Biwater Gauff v. Tanzania
in para. 89
EDF v. Romania EDF v. Romania
(Romania-United Kingdom BIT) International Centre for Settlement of Investment
Disputes,
8th October, 2009,
ICSID Case no ARB/05/13.
cited as: EDF v Romania
in para. 76
Libananco Holdings Co. v. Turkey Libananco Holdings Co. Limited V. Republic Of
Turkey
International Centre for Settlement of Investment
Disputes,
22nd May, 2013,
ICSID Case No. ARB/06/8.
cited as: Libananco Holdings Co.
in para. 70
MTD Equity and Others v. Republic of MTD Equity and Others v. Republic of Chile,
Chile International Centre for Settlement of Investment
(Chile-Malaysia BIT) Disputes,
25th May, 2004,
ICSID Case No. ARB/01/7.
cited as: MTD Equity v Chile
in para. 70

XXVII
MEMORIAL FOR CLAIMANT INDEX OF AUTHORITIES

ICC Awards

ICC Award No. 2291 of 1975 Award rendered in case No. 2291 in 1975
in: Journal de Droit International (Clunet),
(1975), p. 998.
cited as: ICC Case No. 2291 of 1975
in para. 176
ICC Case No. 6840 of 1997 Final Award in ICC Case No. 6840 in 1997,
in: Collection of ICC Arbitral Awards 1991-1995,
ICC Publishing / Kluwer Law International (1997) p.
467, 469.
cited as: ICC Case No. 6840 in 1997
in para. 5
ICC Case No. 7920 of 1993 Partial Award in ICC Case No. 7920 of 1993,
Distributor (Spain) v Manufacturer (Italy),
in: Yearbook Commercial Arbitration, Volume
XXIII (1998), p. 80.
cited as: ICC Case No. 7920 of 1993
in para. 11
Ad-Hoc Tribunal Awards
Methanex Corporation. v United States of Methanex Corporation. v United States of America
America Ad Hoc Tribunal (UNCITRAL)
3rd August, 2005,
44 ILM 1345,
cited as: Methanex v USA
in para. 70, 81

Others

Borisova, Bojidara Remarks on the Manner in which the UNIDROIT

Principles May Be Used to Interpret or Supplement
Art. 6 of the CISG
Available at:
<http://www.cisg.law.pace.edu/cisg/principles/uni6
.html>

XXVIII
MEMORIAL FOR CLAIMANT INDEX OF AUTHORITIES

cited as: Borisova

in para. 180
Commentary to Art. 6.2.3 of the International Institution of Unification of Private
UNIDROIT principles Laws, (2016),
p. 223.
cited as: Commentary, Art. 6.2.3, UNIDROIT
in para. 161
Committee On International ILA Resolution 4/2016,
Commercial Arbitration in: International Commercial Arbitration (2016)
Cited as: ILA Resolution
in para. 119
Confidentiality v Transparency in Confidentiality v Transparency in Commercial
Commercial Arbitration Arbitration: A False Contradiction to Overcome,
(New York University), 201,
Available at:
<https://blogs.law.nyu.edu/transnational/2012/12/
confidentiality-vs-transparency-in-commercial-
arbitration-a-false/>
cited as: Confidentiality vs. Transparency
in para. 108, 109
FARNSWORTH, E. ALLAN in: Bianca-Bonell, Commentary on the International
Sales Law, The 1980 Vienna Sales Convention,
Giuffrè: Milan (1987) pp. 95-102.
cited as: Farnsworth in Bianca-Bonell
in para. 44, 45
FUCCI, FREDERICK R. Hardship and Changed Circumstances as
Grounds for Adjustment or Non-Performance of
Contracts: Practical Considerations in International
Infrastructure Investment and Finance, p. 38.
Available at:
<https://www.cisg.law.pace.edu/cisg/biblio/fucci.ht
ml>
cited as: Fucci
in para. 38

XXIX
MEMORIAL FOR CLAIMANT INDEX OF AUTHORITIES

GANER, BRYAN A. Black Law’s Dictionary

8th Edition (2004), p. 1748.
cited as: Black Law’s Dictionary
in para. 143
GARRO, ALEJANDRO M. Comparison between provisions of the CISG
regarding exemption of Liability for damages (Art.
79) and the counterpart provisions of
the UNIDROIT Principles (Art. 7.1.7)
Available at:
<http://cisgw3.law.pace.edu/cisg/principles/uni79.
html>
cited as: Garro
in para. 188
SZALAY, GÁBOR Arbitration and Transparency – Relations Between a
[Tilburg University Private Environment and a Fundamental
LLM International Business Law Requirement
2015-16] Master’s Thesis
Supervisor: prof. Erik Vermeulen
P. 17
cited as: Szalay, p.17
in para. 107
WORKING GROUP II- UNCITRAL Working Group II- UNCITRAL,
Third Draft A/CN.9/WG.II/WP.44 ,
5th July, 1983.
cited as: Working Group II
in para. 64
ZIEGEL, PROFESSOR JACOB S. Report to the Uniform Law Conference of Canada
on Convention on Contracts for the International
Sale of Goods, (1981).
cited as: Ziegel
in para. 38

XXX
MEMORIAL FOR CLAIMANT STATEMENT OF FACTS

STATEMENT OF FACTS

The parties to this arbitration are Phar Lap Allevamento (“CLAIMANT”) and Black Beauty
Equestrian (“RESPONDENT”; together “the Parties”). CLAIMANT is a company registered and
located in Mediterraneo. It operates Mediterraneo’s oldest stud farm, covering all areas of
equestrian sport. RESPONDENT is a company registered and located in Equatoriana and is
famous for its broodmare lines.

21 Mar '17 RESPONDENT contacted CLAIMANT to inquire about the availability Cl. Ex. 1,
of frozen semen of Nijinsky III, CLAIMANT’s stallion of world p. 9
repute for artificial insemination.
24 Mar ‘17 CLAIMANT offered 100 doses of Nijinsky III’s frozen semen as per Cl. Ex, 2,
its standard terms. It also highlighted a prohibition on re-sale to p.10
third parties without ‘express written consent’.
28 - 31 Mar RESPONDENT accepted most of the terms and demanded for Cl. Ex. 3
‘17 delivery DDP. Further, it proposed for the courts in Equatoriana to & 4, p. 11
have jurisdiction. CLAIMANT proposed to regulate risk arising from & 12.
delivery DDP by inserting a hardship clause. It objected to
jurisdiction of courts in Equatoriana and offered for arbitration in
Mediterraneo.
10 – 11 Apr RESPONDENT proposed a dispute resolution clause providing for Re. Ex. 1
‘17 arbitration in Equatoriana and subjected the arbitration clause to & 2, p.33
the law of Equatoriana. Claimant changed the seat to Danubia and & 34
removed the clause regarding the law governing the arbitration
agreement.
12 Apr ‘17 Mr. Antley, representing Respondent, prepared a note after his Cl. Ex. 5,
short meeting with Ms. Napravnik, representing Claimant The p. 17.
prime negotiators met with an accident and were later replaced. The
subsequent negotiators signed the contract on 6 May ’17.
6 May ‘17 The Forzen Semen Sales Agreement (“the Contract”) was finalised Cl. Ex. 5,
and signed by the Parties. p. 14

19 Dec ‘17 Equatoriana imposed a retaliatory tariff of 30% on all agricultural PO2, p.58,
goods (including horse semen) imported from Mediterraneo, which para. 25;

1
MEMORIAL FOR CLAIMANT STATEMENT OF FACTS

made the delivery of the last installment, burdensome for the Cl. Ex. 6,
CLAIMANT. p.15
20 Jan ‘18 CLAIMANT informed RESPONDENT that due to the unforeseen Cl. Ex. 7,
event, the Parties should renegotiate the price before the final p.16
shipment could be dispatched.
21 Jan ‘18 RESPONDENT assured CLAIMANT that a solution would be found Cl. Ex. 8,
and insisted on a timely delivery. Relying on such assurance, p.18
CLAIMANT dispatched the final shipment and paid the additional
sum of 1,250,000 USD.
12 Feb ‘18 CLAIMANT met Ms. Kayla Espinoza, RESPONDENT’s CEO and Cl. Ex. 8,
confronted her regarding the resale prohibition and renegotiation of p.18
the price of the Contract. She refused to co-operate and rejected the
demand for payment of any additional amount.
31 July ‘18 Due to disagreement between the Parties on price adaptation of the Notice of
Contract, CLAIMANT filed the Notice of Arbitration. Arbitation,
p.4
24 Aug ‘18 RESPONDENT submitted the Answer to the Notice of Arbitration. Answer to
the Notice
of
Arbitration
, p.29
2 Oct ‘18 CLAIMANT informed the Tribunal of another arbitration, wherein Letter by
RESPONDENT being negatively affected by the tariffs has claimed Langweiler,
price adaptation. CLAIMANT wishes to submit a copy of the Partial p. 49
Interim Award (“the Award”) given in that arbitration as evidence
to prove RESPONDENT’s contradictory behaviour. It also requests
the Tribunal to join the other party if need arises.
3 Oct ‘18 RESPONDENT informed the Tribunal that such evidence should not Letter by
be admitted as it could only have been obtained by means of an Fasttrack,
illegal hack or by breach of confidentiality. p. 50

2
MEMORIAL FOR CLAIMANT SUMMARY OF ARGUMENTS

SUMMARY OF ARGUMENTS

RESPONDENT showcased that it was eager to establish a long-term relationship with CLAIMANT
based on coopera-tion and loyalty. However, in the very first transaction, RESPONDENT deceived
CLAIMANT to earn unlawful profits. It manipulated CLAIMANT to ensure the delivery of
shipment by giving assurance of adaptation of contract due to hardship but walked away from its
commitment once it received the shipment. Therefore, it seems that making wrongful profit is
the only motive of RESPONDENT.

To prevent RESPONDENT from doing this, the Tribunal in this dispute should grant the remedy
of adaptation of contract to accommodate the drastic increase in shipment cost.

In absence of express choice of law governing the arbitration agreement, the Tribunal should
apply the law of Mediterraneo to the arbitration agreement. Thereby, the arbitration agreement
should be interpreted broadly to include the present dispute. Furthermore, the Parties have
impliedly conferred power upon the Tribunal to adapt the Contract which is allowed under the
Mediterranean law. [I]

Furthermore, CLAIMANT should be allowed to submit the Award as it is necessary to prove the
contradictory behaviour of RESPONDENT. CLAIMANT approaches the tribunal with clean hands
and has no role in the illegal procurement of the award. Moreover, the Award had already lost its
confidential status and therefore its admission will not result in breach of confidentiality. Lastly,
even if the Award is considered to be confidential, it is admissible because transparency should
be given primacy to avoid contradictory decision on similar issues. [II]

The imposition of tariffs by Equatoriana makes performance of the Contract burdensome for
CLAIMANT thereby, constituting hardship under clause 12 of the Contract. Therefore, a remedy
of price adaptation of the Contract should be granted entirely in favour of CLAIMANT to balance
the financial disequilibrium between the Parties. Alternatively, there exists a remedy for price
adaptation under CISG which must be granted by filling gaps under Art. 7(2) CISG using
UNIDROIT. [III]

1
MEMORIAL FOR CLAIMANT ARGUMENTS

ARGUMENTS

ISSUE 1: THE ARBITRAL TRIBUNAL HAS THE JURISDICTION AND THE

POWER TO ADAPT THE CONTRACT UNDER THE ARBITRATION
AGREEMENT

1. The dispute arises because of RESPONDENT’s denial to adapt the contract in light of
unforeseen imposition of tariffs. This is because as per RESPONDENT, in absence of an
express choice, the law of the seat governs the arbitration agreement. Thereby, the
arbitration agreement is to be interpreted narrowly to exclude the present dispute and the
Tribunal cannot adapt the Contract as it is not expressly authorized to do so.

2. CLAIMANT rejects this reasoning and respectfully requests the Tribunal to find that in
absence of an express choice of law, [I] the law of the Contract governs the arbitration
agreement, thereby [II] the dispute falls within the jurisdiction of the Tribunal, and in
absence of express authorization [III] the Tribunal is empowered to adapt the Contract.

I. THE LAW OF THE CONTRACT GOVERNS THE ARBITRATION AGREEMENT

3. In absence of an express choice of law governing the arbitration agreement [Cl. Ex. 5, p. 14],
the law of the main Contract shall apply to the arbitration agreement as the [A]
presumption is in favour of the law of the Contract and as per the [B] application of three-
step test (per Sulamérica).
A. Presumption is in favour of law of the contract
4. There is a strong presumption that the law applicable to the substantive Contract shall be
the law applicable to the arbitration agreement [Tonicstar Case (GBR, 2005)].
5. This presumption is reasonable [ICC Case No. 6840 in 1997] since applying the same law to
the parties’ arbitration agreement will generally avoid complexities and uncertainties that
may result from application of the law of the seat to the arbitration agreement [Born, p. 42].
6. The Contract herein is governed by CISG [Cl. Ex. 5, p. 14]. As per the consistent
jurisprudence in Mediterraneo, in a sales agreement governed by CISG, CISG shall also
extend to the interpretation of the arbitration agreement [PO1, p. 53, para. III (4)].
7. Accordingly, even if the Tribunal is to apply the law of the seat i.e., Danubia to the
arbitration agreement, application of CISG would allow negotiations, trade usages, conduct
of Parties, etc. to act as interpretative aids [Art. 8, CISG]. This would be in direct conflict
with the ‘four corners’ rule of Danubia, which excludes reliance on external evidences for
interpretation [Answer to the Notice of Arbitration, p. 32, para. 16], thereby leading to

2
MEMORIAL FOR CLAIMANT ARGUMENTS

complexity. This complexity can be avoided by subjecting both the Contract and the
arbitration agreement to the law of Mediterraneo.
8. Furthermore, RESPONDENT’s claim that arbitration agreement is governed by the law of the
seat would not, in itself, displace the presumption that the proper law of the Contract
should also govern the arbitration agreement [BCY v BCZ (SG, 2016)]. It could have been
displaced had there been other factors in addition to the choice of seat. These may include
the terms of the arbitration agreement itself or the consequences for its effectiveness of
choosing the proper law of the substantive contract [XL Insurance v Owens (GBR, 1999)]. Due
to the absence of any such factors, RESPONDENT’s claim is unsubstantiated.
9. Furthermore, RESPONDENT would have been accurate, had there been no express choice of
law governing the main Contract [Habas v VSC Steel Coy (GBR, 2013)] or if the application
of the law of the main Contract to the arbitration agreement would have resulted in the
invalidation of the arbitration agreement [Sulamérica (GBR, 2012]. However, due to absence
of the same, the presumption remains unrebutted.
B. Law of the main contract applies to the arbitration agreement as per the three-step test
(Sulamérica).
10. To determine the law governing the arbitration agreement, the English Court of Appeal
formulated a three-step test. Since the Parties failed to incorporate an express choice of law
[Cl. Ex. 5, p. 14, Clause 15] as specified under the first step, the same shall be ascertained by
application of the second step, [A] the implied choice that emanates from intention of the
Parties, and if need be, the third step, [B] ‘closest connection’ test. [Sulamérica (GBR, 2012].
a) The implied choice that emanates from the intention of the parties
11. Pre-contractual negotiations are an excellent indicator of the real intention of the parties
[ICC Case No. 7920 of 1993]. During the course of negotiations, CLAIMANT modified and
removed the express choice of law clause from the proposed arbitration agreement
submitted by RESPONDENT [Re. Ex. 2, p. 34].
12. The removal of the choice of law clause along with a mandatory stipulation that the law
applicable to the Contract remains the law of Mediterraneo [Re. Ex. 2, p. 34] indicates that
the Parties intended to subject the arbitration agreement to the law governing the underlying
Contract [Buhler/Webster, p. 80].
13. This does not deviate from common practice, where parties rarely specify the law applicable
to the arbitration agreement as distinct from the main contract [Born Art., p. 827].
14. Additionally, RESPONDENT may not apply principle of separability [Born, p. 50] to invalidate
CLAIMANT’s submission, because the principle simply prevents a party from impugning the

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MEMORIAL FOR CLAIMANT ARGUMENTS

arbitration agreement by alleging that the main agreement is invalid. [BCY v BCZ (SG,
2016)]. Its purpose is not to isolate the arbitration agreement from the substantive contract
[XL Insurance v Owens (GBR, 1999)]. This is even more so in a situation such as the present
case, where the arbitration agreement is one of the clauses of the Contract and not
contained in a separate agreement, the law of the Contract governs the whole Contract
including the arbitration agreement [NTPC v Singer (IND, 1992)].
15. Therefore, the Tribunal should find that the implied choice is in favour of the law of the
underlying Contract remains undisputed.
b) The ‘closest connection’ test
16. Even if the Tribunal rejects the previous assertion, the closest connection test also dictates
that the law of Mediterraneo will govern the arbitration agreement.
17. The ‘closest connection’ test stipulates that the disputed arbitration agreement should be
governed by the legal system with which it has the closest connection. [Fouchard, p. 222; Born,
p. 466].
18. To determine such connection, priority must be given to factors such as the law of the
underlying contract, law of the seat of arbitration and the place of signing and negotiations
of the arbitration agreement [Fouchard, p. 222, 224].
19. First, when parties make an express choice of law to govern the substantive contract, which
is also the present case, there exists a real and close connection between the law governing
the substantive contract and the law governing the arbitration agreement [Sulamérica (GBR,
2012)].
20. Second, the seat of the arbitration is Danubia, however, the value of the seat as a connecting
factor is still relatively low, as it is often chosen for reasons of geographical convenience or
neutrality in relation to the parties [Fouchard, p. 227] and at last, Mediterraneo was the place
where the Contract was negotiated and finally signed [PO2, p. 56, para. 13].
21. Therefore, the analysis of all the relevant factors point to a conclusion that the law of
Mediterraneo shall govern the arbitration agreement as per the close connection test.
II. THE PRESENT DISPUTE IS WITHIN THE JURISDICTION OF THE
TRIBUNAL
22. Art. 19 of the HKIAC Rules embodies the principle of ‘kompetenz-kompetenz’ [Inc. Owners v
Sincere Co. (HK, 2005); PCCW Global v Interactive Comm. (HK, 2006)], which states that a
tribunal can rule on its jurisdiction, including any objections to the scope of the arbitration
agreement [Choong/Weeramantry, p. 46.19].

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MEMORIAL FOR CLAIMANT ARGUMENTS

23. Therefore, it is for the Tribunal to decide whether the dispute over the claim of an increased
remuneration by adaptation falls within the scope of the arbitration agreement.
24. The Tribunal possesses the jurisdiction to hear the said claim because [A] the arbitration
agreement covers the present dispute and [B] the pro-arbitration principle is in favor of the
jurisdiction of the Tribunal.
A. The arbitration agreement covers the present dispute
25. The interpretation of the arbitration agreement is governed by the law applicable to it [Born
p. 489; NTPC v Singer (IND, 1992)], which in the present case is the arbitration law of
Mediterraneo [Cl. Memorandum, p. 12, para. 30].
26. The arbitration law of Mediterraneo provides for a broad interpretation of the arbitration
agreement [Notice of Arbitration, p. 7, para. 16]. This is in consonance with the internationally
prevalent practice whereby courts tend to apply a broad interpretation to the scope of
arbitration agreements [Liebscher, p. 260]. This requires that in the event of any ambiguity, an
arbitration clause is to be interpreted expansively [Judgment of 17 February 1989].
27. RESPONDENT’s claim that the arbitration agreement should be narrowly interpreted because
the broad wording of the arbitration clause was explicitly reduced [Answer to the Notice of
Arbitration, p. 31, para 13] is unfounded. This is because an arbitration agreement which
incorporates phrases such as ‘any dispute’ and ‘arising out of’, as in the present case [Cl. Ex.
5, p. 14, Clause 15] is given a wide meaning and is said to cover every dispute [HE Daniel v
Carmel Exporters (GBR, 1953); Gov of Gibraltar v Kenney (GBR, 1956)].
28. Further, the term ‘dispute’ refers to any conflict or difference between parties on a particular
matter that could not be solved by mutual agreement [Sutton/Gill/Gearing, p. 10]. The
present situation falls within the ambit of the term “dispute” because there is a difference or
conflict between the parties concerning how to adjust a specific term of the contract in light
of supervening events [Ferrario, p.146].
29. Therefore, the Tribunal should find that the scope of the arbitration agreement extends to a
claim for an increased remuneration owing to hardship.
B. The pro-arbitration principle is in favor of the jurisdiction of the Tribunal
30. The pro-arbitration principle rests on the premise that parties, as rational businessmen, are
likely to have intended any dispute arising out of the relationship into which they had
entered, to be decided by the same tribunal [Franklin, p. 93, 96; Shipping Company Case (GBR,
2007); Inc. v Kaplan (USA, 1995)]. Therefore, any doubts concerning the scope of arbitrable
issues should be resolved in favour of arbitration [Mitsubishi Motors Case (USA, 1985);

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MEMORIAL FOR CLAIMANT ARGUMENTS

Judgment of 27 January 2010], regardless of the law applicable to the parties’ arbitration
agreement [Born p. 1397].
31. Even if the law of Danubia is to be applied to the arbitration agreement, the pro-arbitration
approach mandates that the claim for increased remuneration falls within the jurisdiction of
the Tribunal since the Parties did not intend to be inconvenienced by having possible
disputes from their transaction being heard in two places [Comm. Marine Corp Case (AUS,
2006)].
32. Therefore, the arbitration agreement should be interpreted to encompass the present
dispute.
III. THE TRIBUNAL IS EMPOWERED TO ADAPT THE CONTRACT
33. Having established that the dispute as to increased remuneration falls within the scope of
the arbitration agreement, CLAIMANT contends that the Tribunal is empowered to grant the
relief of adaptation of the Contract because [A] presumption is in favour of adaptation in
case of absence of express conferral, [B] application of the law of Mediterraneo allows for
adaptation and [C] the tribunal can adapt the Contract under Danubian law as well.
A. Presumption is in favour of adaptation in case of absence of express conferral
34. In cases where there is no express authority spelled out for power of an arbitrator to adapt
the contract, the presumption is in favor of existence of such power [Wachter, p. 81; Moses, p.
5]. A tribunal does not rewrite the contract but performs a limited function for its
adjustment, which is inherent in the arbitration clause [Peter, p. 42].
35. Moreover, while adapting a contract, the tribunal does not create new rights and obligations
since the obligation to pay the price is already provided in the original agreement and
remains unaltered. It merely reshapes and modifies existing rights. What changes is the
amount to be paid in light of the change in circumstances. [Fouchard, p. 227].
B. Application of the law of Mediterraneo allows for adaptation
36. The arbitration agreement is governed by the arbitration law of Mediterraneo [Cl.
Memorandum, p. 12, para. 30]. It corresponds to the Model Law under which, no express
conferral of powers is required to adapt the contract. Therefore, the Tribunal is not
prohibited to adapt the Contract.
37. Furthermore, the Contract provides for the power of the Tribunal to adapt the Contract.
This can be determined by the interpretation of the hardship clause and the arbitration
clause.

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MEMORIAL FOR CLAIMANT ARGUMENTS

38. Since, the interpretation of both the arbitration agreement [PO1, p. 53, para. III(4)] and the
law of the Contract is governed by CISG [Cl. Ex. 5, p. 14], Art. 8 CISG shall be applied to
interpret the same [Ziegel (1981)].
39. CLAIMANT shall demonstrate that the intention of the parties was to confer power upon the
Tribunal to adapt the Contract as [a] under Art. 8(1) CISG, RESPONDENT’s subjective
intention cannot be relied upon and [b] under Art. 8(2) CISG, the Parties’ objective intent
was to empower the Tribunal to adapt the Contract.
a) Under Art. 8.1 CISG, RESPONDENT’s subjective intention cannot be relied upon
40. The first step in the interpretation process is a subjective approach, which is contained in
Art. 8(1) CISG as per which, statements or conduct of a party are to be interpreted
according to its intent where the other party knew or could not have been unaware what
that intent was [Huber, p. 235].
41. RESPONDENT may argue that its intent was not to adapt the Contract since its subsequent
negotiator, Mr. Julian Krone asserts that he would have objected to transfer of powers of
adaptation to the tribunal [Re. Ex. 3, p. 35].
42. However, the subjective intent of a party that it secretly had is irrelevant unless it is
manifested in some fashion. [Packaging Machine Case (SWZ, 2006); Office Furniture Case (SWZ,
2006)].
43. In the present case, Mr. Julian Krone did not express his intent to object at the time of the
conclusion of the Contract. Claimant could not have been aware of this hidden intent,
therefore, this subjective intent is irrelevant.
b) Under Art. 8(2) CISG, the Parties’ objective intent was to empower the Tribunal to adapt the Contract
44. If Art. 8(1) CISG is not applicable, the statements by and acts of the Parties shall be
interpreted according to the intent that a reasonable person would have had in the same
situation as the Parties [Farnsworth in Bianca-Bonell, p. 96].
45. Under Art. 8(2) CISG, due consideration shall be given to [i] previous negotiations, and [ii]
subsequent conduct of the parties to ascertain the intent as per a reasonable person
[Farnsworth in Bianca-Bonell, p. 97].
i. Previous negotiations
46. On 12th April, 2017, the prime negotiators of the contract, Ms. Julie Napravnik and Mr.
Chris Antley, representing CLAIMANT and RESPONDENT respectively, conducted
negotiations and subsequently agreed that the Parties may adapt the Contract. Further, in

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MEMORIAL FOR CLAIMANT ARGUMENTS

case of disagreement between the Parties, it should be the task of the Tribunal to adapt it
[Cl. Exh. 8; p. 17].
47. Even though not required by the law of Mediterraneo, for the mere purpose of removal of
doubts, Ms. Napravnik suggested including an express reference of this adaptation
mechanism in either the hardship or the adaptation clause. Mr. Antley made a note in this
regard which reads “Connection of hardship clause with arbitration clause” [Re. Ex. 3, p. 35].
48. This note is in line with their agreement that in case of disagreement between the parties,
the arbitrators shall have the power to adapt the Contract. The ‘connection’ between the
hardship and the arbitration clause denotes that in particular cases of disagreement between
the Parties on hardship, the Tribunal may adapt the Contract.
49. This is further substantiated by the fact that Mr. Antley had intended the same as he
promised to come up with the proposal to include an express reference in either the
hardship clause or the arbitration clause [Cl. Ex. 8, p. 17].
50. Therefore, in light of the negotiations, the objective intent of the Parties was to confer
powers upon the Tribunal to adapt the Contract.
51. RESPONDENT may argue that this objective intent was not the final intention of the Parties,
since the subsequent negotiators while making the necessary changes to clauses 6-15
(including the hardship and arbitration clause), did not include an adaptation clause as
agreed between the prime negotiators [PO2, p. 55, para. 4].
52. However, as admitted by RESPONDENT’s subsequent negotiator, discussions in relation to
an adaptation mechanism did not take place. This is because he did not understand what
Mr. Antley meant by point number 3 of his note i.e., “Connection of hardship clause with
arbitration clause” [Re. Ex. 3, p. 35]. Therefore, the intention of the prime negotiators was not
displaced and failure to include an express adaptation clause does not necessarily mean that
the parties had no intention to adapt [Bockstiegel, p. 161].
53. Rather, the intention of the prime negotiators was replicated by the subsequent negotiators
as inserting a hardship clause is an explicit demonstration of the willingness to undertake
adaptation of the Contract [Declercq, p. 246; Rimke (1998)] because “a hardship clause
without adaptation is hardly worth the paper on which it written” [Schmitthoff, p. 88].
54. Therefore, the intention of the Parties to confer power upon the arbitrators to adapt the
Contract remains undisplaced.

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MEMORIAL FOR CLAIMANT ARGUMENTS

ii. Subsequent conduct of the parties

55. On 20th January 2019, CLAIMANT informed RESPONDENT that the Parties must find a
solution before the final shipment could be dispatched. This was to account for the increase
in the cost owing to the newly imposed tariffs [Cl. Ex. 7, p. 16].
56. Mr. Greg Shoemaker, the person responsible for the racehorse breeding programme of
RESPONDENT and for answering all questions concerning the Contract [PO2, p. 59, para.
34.] took notice and reverted.
57. He stated that a ‘solution would be found’ [Cl. Ex. 8, p. 18] to take in account the increased costs
which can be only by adaptation of the contract. Such a solution was promised considering
RESPONDENT’s interest in a long-term relationship with CLAIMANT. In particular, he
mentioned RESPONDENT’s plan to buy 50 more doses of another stallion of CLAIMANT [Cl.
Ex. 8, p. 18].
58. These assurances were given because RESPONDENT’s primary motive was to ensure the
timely delivery of shipment. This was because of its existing commitments to resell the
shipment to its own customers before 1st February 2018 [Re. Ex. 4, p. 36; PO2, p. 56,
para.11].
59. CLAIMANT authorized the shipment as it was under a reasoned impression that
RESPONDENT was willing to adapt the Contract. In adherence to its assurance,
RESPONDENT met CLAIMANT for the purpose of deciding upon the adaptation of contract
[PO2, p. 60, para. 35]. This conduct should be given due consideration as it sheds light on
the intention of the Parties [Honnold, p. 121] to follow the first step of the adaptation
mechanism i.e., to renegotiate on the adaptation of the contract [Cl. Memorandum p. 7, para.
46].
60. Subsequently, RESPONDENT disagreed to adapt the contract resulting in prejudice to
CLAIMANT [Cl. EX. 8, p. 18]. In accordance to the agreed adaptation mechanism, if the
parties disagree on an amendment of a contract, the tribunal was empowered to adapt the
Contract [Cl. Memorandum, p. 7, para. 47].
61. Therefore, this common intention of the existence of the adaptation mechanism in the
contract was pervasive throughout the pre-contractual negotiations and subsequent events.
To uphold this intention of the parties, the Tribunal should adapt the Contract despite the
absence of express conferral of power to adapt the Contract [Aluminium Co. v Essex (USA,
1980)].
C. The arbitral tribunal can adapt the contract even on application of Danubian law

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MEMORIAL FOR CLAIMANT ARGUMENTS

62. Even if the Tribunal were to apply Danubian law to the arbitration agreement, CLAIMANT
requests the Tribunal to find that the Tribunal still has the power to adapt.
63. Under Art. 28(3) of the Danubian Arbitration Law (identical to Art. 28(3) of the
UNCITRAL Model Law), Danubian courts are of the view that express authorisation is
required for the tribunal to exercise the exceptional power of adaptation of contract [PO2, p.
60, para 36].
64. The third draft of the Model law [Working Group II] also required the parties to expressly
authorize the arbitrators to adapt the contract. This express conferral of powers to adapt the
Contract was discussed to apply only to cases in which the independent objective of the proceedings
was to rewrite one or more terms of the Contract which would then have to be carried out by
parties [Holtzmann/Neuhaus, p. 1129].
65. However, when adaptation of the contract is claimed as a remedy or relief from the other party on
the grounds of changed circumstances, which have allegedly caused him undue hardship, no
express authorisation by the parties is needed for an arbitral tribunal to adapt the contract
[Holtzmann/Neuhaus, p. 1130].
66. In the present case, the Contract has already been performed. Therefore, adaptation of the
Contract is being claimed as a remedy from RESPONDENT on the ground of changed
circumstances, which has caused hardship to CLAIMANT.
CONCLUSION ON ISSUE 1
The Tribunal should find that the law of the contract applies to the arbitration agreement and
the Tribunal has the jurisdiction to adjudicate upon the present dispute. On application of the
Mediterranean law, no express conferral of power to adapt is required. Therefore, the Tribunal
can adapt the contract as it was also the intention of the parties. Even if Danubian law were to
apply to the arbitration agreement, no express conferral of powers is required when adaptation is
claimed as a remedy. Therefore, the Tribunal is not prohibited from granting adaptation the
contract.

ISSUE 2: EVIDENCE FROM THE OTHER ARBITRATION CAN BE SUBMITTED

DESPITE BEING ILLEGALY OBTAINED

67. CLAIMANT respectfully submits a copy of the Award rendered in another arbitration having
similar facts, where the RESPONDENT is a party.

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MEMORIAL FOR CLAIMANT ARGUMENTS

68. RESPONDENT in that arbitration claimed hardship due to imposition of additional tariff of
25% and subsequently demanded adaptation in absence of an explicit provision in the
contract [PO2, p. 60, para. 39].
69. On the contrary, RESPONDENT denies hardship when in the present case, a tariff of 30%
causes detriment to CLAIMANT [Letter by Langweiler, p. 50]. Additionally, it denied
CLAIMANT’s request to adapt the contract despite the existence of same circumstance of
absence of any explicit provision in the Contract.
70. This contradictory behaviour [Figure 1] is in itself a violation of the principle of ‘good faith’
[Iraq v GJV (GER, 1998)] and ‘fair and equitable treatment’ [MTD Equity v Chile], which parties
owe to each other and to the tribunal in an international arbitration [Methanex v USA;
Libananco Holdings Co.].

71. The Award is an evidence of such contradictory behaviour and undermines the veracity of
the claims of RESPONDENT [Waincymer, p. 789]. Therefore, it should be submitted despite
presumptively being obtained through illegal means because [I] the Tribunal has absolute
discretion to admit the Award as evidence and [II] the principles of transparency allow such
admission.
I. THE TRIBUNAL HAS DISCRETION TO ADMIT THE AWARD AS EVIDENCE
72. In an international arbitration, parties are free to submit any evidence, to prove the facts,
which are necessary to establish their case [Pilkov, p. 147].
73. Consequently, in practice, arbitral tribunals admit almost any evidence submitted to them in
support of the position of the parties [Lew/Mistelis, p. 561]. They are not bound by the strict
rules of evidence and enjoy broad discretion to determine the admissibility, relevance,
materiality, and weight of any evidence [HKIAC Guide, p. 190].

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MEMORIAL FOR CLAIMANT ARGUMENTS

74. In the present case, the Tribunal should exercise its discretion to admit the award as evidence
because [A] illegally obtained evidence is admissible before the Tribunal and [B] non-
admission of these evidences will violate due process.
A. Illegally obtained evidence is admissible before the tribunal
75. ‘Fruit of the poisonous tree’ refers to an evidentiary doctrine, which precludes the introduction
of evidence obtained illegally [Nardone v U.S. (USA, 1939); Townes v New York (USA, 1999)].
76. However, the Tribunal is not bound by strict rules of evidence [EDF v Romania] and should
exercise its discretion to admit illegally obtained evidence. Accordingly, factors such as [a]
participation of the party seeking to admit the evidence in the unlawful activity that led to its
disclosure, [b] materiality and relevance of the evidence, and [c] whether prejudice is caused
due to disclosure of evidence should be considered [Boykin/Havalic, p. 33].
a) Participation of the party seeking to admit the evidence in the unlawful activity that led to its disclosure
77. It is an established practice that if the party comes with clean hands and is not involved in the
unlawful nature of procuring evidence, the disclosure cannot be held against it and the
evidence is deemed admissible [Persia International Bank v Council (ECJ, 2013)].
78. Where respondent presented wiretap records of the appellant fraudulently procured by a
newspaper, the arbitral tribunal admitted it as evidence since respondent had not performed
any illegal activity in order to obtain the recordings [FIFA Case].
79. In the present case, it may be argued that procurement of the Award was done at the behest
of CLAIMANT as it paid 1000 USD to the intelligence company providing information on
horseracing industry. Therefore, this Award cannot be admitted as evidence because
CLAIMANT cannot take advantage of his own wrong doings.
80. The allegation is unfounded as it was Mr. Kieron Velazquez, a former employee of the
Mediterranean buyer, who had offered to provide a copy of the award to CLAIMANT [Letter
by Langweiler, p. 50]. However, upon his failure to arrange for the Award, he informed
CLAIMANT of the intelligence company’s offer to sell the Award it already had [PO2, p. 61,
para 41].
81. CLAIMANT, therefore, was merely introduced to the easily available information in the
horseracing market and was not involved in its procurement. Therefore, it maintained its
duty to RESPONDENT and the Tribunal to conduct itself in good faith [Methanex v USA].
82. Even if the Tribunal opines that CLAIMANT was involved in the illegal procurement of the
Award, it cannot per se be deemed inadmissible [Reisman/Freedman, p. 748; Corfu Channel Case
(ICJ, 1949)] as the means of procurement is not to be considered if the evidence is relevant
and material [Kuruma v Queen (1955)].

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MEMORIAL FOR CLAIMANT ARGUMENTS

b) Relevance and Materiality of the Evidence

83. Relevance under Art. 22 HKIAC Rules suggests that the document must be useful for the
line of evidence by a party in order to establish the truth of its factual allegations. Or makes
the existence of any fact that is of consequence more probable than it would be without the
evidence [Pilkov, p. 148; HKIAC Guide, p. 190; Raeschke-Kessler, p. 427].
84. CLAIMANT’s allegation or the fact that is of consequence is the contradictory stand taken by
RESPONDENT in the other arbitration [Cl. Memorandum, p. 10, para. 63]. The Statement of
Facts as part of the Award establishes the truth of this allegation [PO2, p. 60, para. 39],
thereby is a relevant piece of evidence.
85. The term ‘materiality’ means that the tribunal is provided with an evidence which is sufficient
to allow complete consideration as to whether a factual allegation is true or not [Raeschke-
Kessler, p. 427; Pilkov, p.149].
86. In the present case, the Statement of Facts as part of the Award provide the required
information which clearly demonstrate the contradictory behaviour of RESPONDENT [Cl.
Memorandum, p. 10, para. 63]. This is sufficient in itself to prove the fact of consequence, thereby
is a material evidence.
87. All relevant evidence that is material to the outcome of the evidence is admissible [HKIAC
Guide, p. 190]. Therefore, as the Award is both relevant and material to the fact of consequence,
it should be admitted.
c) Whether prejudice is caused due to disclosure of evidence
88. If the evidence is relevant and material, its admissibility should be analysed in light of the
prejudice caused to the interest of other parties to the arbitration due to its unlawful
procurement [Boykin/Havalic, p. 33].
89. There is no harm to RESPONDENT’s business reputation, any drop-down in its revenues or
any possibility of misuse of its confidential information [Biwater Gauff v. Tanzania].
RESPONDENT therefore, may claim that the admission of the award results in the breach of
confidentiality of the other arbitration amounts to harm per se.
90. However, the question of breach of confidentiality cannot arise since the Award had already
lost its confidential status once it was out of the exclusive control of RESPONDENT
[Toulson/Phipps, p. 117; Bancoult Case (GBR, 2008)].
91. The intelligence company was already in its possession and the Award had lost its
confidential status. Therefore, admission of the Award as evidence cannot result in any
harm per se to RESPONDENT [PO2, p. 61, para. 41].

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MEMORIAL FOR CLAIMANT ARGUMENTS

92. Even if the Tribunal considers the award to retain its confidential status, to assess any claims
of breach of confidentiality to result in any harm, it should be accompanied by showing the
[i] existence of duty of confidentiality between the parties, [ii] actual occurrence of breach
and proof of injury, and [iii] other party as the originator of breach [Smeureanu, p. 180].
i. Existence of duty of confidentiality between the parties
93. The other arbitration has been conducted under the HKIAC Rules 2013, which contain in
Art. 42, an express obligation to keep the proceedings confidential [Letter by Fastrack (3rd
October, 2018), p. 51]. This statutory obligation is upon the parties to that arbitration,
witnesses, experts etc. [HKIAC Guide, p. 282].
94. CLAIMANT was not involved in the said arbitration in any aforesaid capacity and, therefore,
CLAIMANT did not owe a duty of confidentiality arising from that arbitration.
ii. Actual proof of injury
95. To assess the actual proof of injury, information strictly related to the operation and activity
of the parties and the disputed matters (deserving enhanced protection) is to be
differentiated from purely procedural issues and the progress of the arbitral process.
Communications relating to the latter are not considered to be injurious [Bulgarian Bank Case
(SWE, 2000)].
96. In the present case, the Award comprises of legal principles concerning the procedural issues in
the other arbitration. However, it does not contain any information regarding the merits of
that dispute which would have required strict confidentiality. Therefore, disclosure of the
contents of the Award is not injurious to the RESPONDENT.
iii. Other party as the originator of breach
97. To sustain a claim for breach of confidentiality, the other party to the arbitration must be
precisely identified as the originator or source of the breach [Smeureanu, p. 180].
98. In the present case, CLAIMANT being the other party was nowhere involved in the breach of
confidentiality. It was either the former employees of RESPONDENT or a computer system
hack by an unknown party which was the reason for the leak of the information [Letter by
Fasttrack, (3rd October, 2018), p. 51].
99. Therefore, admission of the Award does not amount to harm per se and thereby is
admissible.
II. NON-ADMISSION WILL VIOLATE DUE PROCESS OF LAW
100. Art. 13 of the HKIAC Rules embodies the principle of due process of law, which includes
fair hearing, equal treatment of the parties and opportunity to present the case [Elgueta, p. 165;

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MEMORIAL FOR CLAIMANT ARGUMENTS

HKIAC Guide, p. 161]. This corresponds to Art. V(1)(b) of the NY Convention, to which
the parties are contracting states [Rule 20, Rules VEM16].
101. Where an arbitral tribunal fails to ensure reasonable opportunity for a party to present its
case, the award may be vulnerable to challenge under the law of the seat [HKIAC Guide, p.
162; NY Convention, Art. V(1)(b)] because refusal to admission of an evidence negatively
affects the right of the party to present its case [Von Mehren/Salomon, p. 290].
102. In the present case, with respect to the evidence relevant for corroborating the allegations of
CLAIMANT, an opportunity to present the case is not satisfied if it is not evaluated by the Tribunal
[T AG v H Company (SWZ, 1997); G.AG v TAS (SWZ, 1999); Turkey v Italy (ITA, 1999)].
103. Therefore, in line with the duty of the Tribunal to make every reasonable effort to ensure
that an award is valid [HKIAC Rules, Art. 13.10] the evidence sought to be presented by
CLAIMANT should be admitted as it is both relevant and material to the outcome of the case
[X v. Y].
III. TRANSPARENCY PRINCIPLES PERMIT DISCLOSURE DESPITE CONFIDENTIALITY
104. Transparency refers to information about a decisional process provided to interested parties
[Rogers, p.1307] and as a principle of international arbitration, it is synonymous to openness
or accountability. It helps to guarantee democratic principles such as the right of access to
information and also promotes fairness, rule of law, equity, and due process [Maupin, p.142]
105. The admission of the Award as an evidence is in line with the principles of transparency as it
ensures that RESPONDENT does not take advantage of its contradictory behaviour [Claimant
Memorandum, p. 10, para. 63], thereby ensuring fairness to the parties.
106. RESPONDENT may claim absolute confidentiality over the award relying on the
confidentiality provision in the HKIAC Rules [Letter by Fastrack (3rd October, 2018), p. 51].
However, the application of confidentiality depends on the specific circumstances of the
case as it is neither absolute nor is it an overriding principle of international commercial
arbitration [Ruscalla, p. 10; Tweeddale, p. 59; Poudret, p. 316].
107. Rather, confidentiality undermines the legitimacy of the system of international arbitration
[ICCA Congress Series, p. 732] as it may become a tool to hide inappropriately rendered
decisions [Szalay, p. 17]. Therefore, transparency is to be given primacy in certain cases to
[A] avoid contradictory decisions on similar dispute, [B] protect and serve the interest of
the public, and for the [C] development of the arbitral legal order [Ruscalla, p. 9.].

A. Avoid contradictory decisions on similar dispute

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MEMORIAL FOR CLAIMANT ARGUMENTS

108. In situation of similar fact disputes where the same legal provisions are to be applied
[Tung/Lin, p. 83], inconsistent resolution of disputes may arise as conflicting awards may be
rendered by different arbitral tribunals [Confidentiality vs. Transparency, sec. 2.2].
109. In these circumstances, more transparency is desirable [Confidentiality vs. Transparency, sec. 2.2]
as it allows a subsequent tribunal to review the application of the law to the same factual
matrix and would thereby promote consistency [Tung /Lin, p. 83].
110. The present dispute and the other arbitration involve issues concerning similar facts and
legal principles. If this Tribunal ignores the Award passed in the other arbitration, it may
lead to a situation whereby two different tribunals dealing with the same issue of adaptation
due to hardship give contradictory decisions.
B. Protect and serve the interest of the public
111. Public has an interest in seeing that arbitration operates as a legitimate system for dispute
resolution which operates coherently and is fair. This is especially when general public could
be affected by its outcome [Buys, CG, p. 135]. Allowing for this to be observed requires
some degree of transparency [Rogers, p. 1337].
112. Admission of the Award will lead to consistent decisions in matters pertaining to adaptation.
The businessmen engaged in inter-country trade who had been seriously affected could
benefit from the outcome of this adjudication.
C. Development of the arbitral legal order
113. In order to be considered an autonomous system of justice ensuring certainty, international
commercial arbitration needs to have consistent and homogeneous series of arbitral awards
on a specific legal question [Born, p. 3822]. Obligation of confidentiality can harm this by
creating a lack of consistent interpretation of similar legal provisions [Tung/Lin, p. 82].
114. To conclude, the Tribunal should find that the admission of the Award is in consonance
with the principles of transparency. Therefore, it must exercise its discretion to admit the
award despite it being obtained illegally.
115. Even if the Tribunal were to hold the Award to be inadmissible, contradictory behaviour
can be evidenced if the Tribunal may join the Mediterranean buyer to this arbitration.
116. The agreement of the parties to arbitrate includes their intent to pursue the most efficient
and economical means of commercial justice, which would presumably include joinder
[Stipanowich, p. 473].
117. However, to join a ‘third party’ [Letter by Langweiler (2nd October, 2018), p. 50] it must be bound
by an arbitration agreement under the HKIAC Rules [HKIAC Guide, p. 201]. In the present

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MEMORIAL FOR CLAIMANT ARGUMENTS

case, the Mediterranean buyer may be joined as it is bound by an arbitration agreement

under the HKIAC 2013 Rules [Letter by Fasstrack (3rd October, 2018), p. 51].
118. In the present case, joinder becomes particularly important because CLAIMANT may lose
certain claims or defences or be subjected to inconsistent judgments if the Mediterranean
buyer is not joined to this arbitration [Strong, p. 980].
119. Even if the parties do not consent to a joinder [HKIAC Rules, Art. 27.1], the Tribunal may
exercise its inherent equitable powers [ILA Resolution], which can be used to permit a joinder
[Strong, p. 985].
120. However, the scope of these powers varies in different jurisdictions [Hoellering, p. 2]. In civil
law jurisdictions such as France, arbitrators rely on parties to grant them equitable powers.
Whereas, in common law jurisdiction such as U.S.A and Danubia (for the present matter)
[PO2, p. 61, para. 44], inherent equitable powers to the arbitrators are recognised [Strong, p.
984].
121. To permit a joinder by exercising these powers, the tribunal must assess factors such as
existence of a contractual link between an existing party and the third party, common issues
of law or fact and harm to an existing party if joinder is refused [Strong, p. 986].
122. In the present case, RESPONDENT has a contractual link with the Mediterranean buyer.
Further, both the proceedings involve a common issue of adaptation of contract owing to
hardship, and CLAIMANT will suffer harm as non-joinder will allow RESPONDENT to take
advantage of contradictory stand resulting in unfairness to CLAIMANT.
123. Therefore, the Tribunal may order joinder of an additional party to prevent the Respondent
from taking advantage of its contradictory stand and ensure fairness and due process in the
arbitral proceedings.
CONCLUSION ON ISSUE 2
The Tribunal should find that the award can be submitted as the act of its illegal procurement
cannot be imputed to Claimant. Even if Claimant is held responsible for the illegal procurement,
the award is admissible as it is relevant and material to the outcome of this arbitration. The
award had lost its confidential status and therefore, its admission will not result in breach of
confidentiality. Even if the award is considered to be confidential, it is admissible because
transparency should be given primacy over it to avoid contradictory decisions on similar issues.

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 MEMORIAL FOR CLAIMANT ARGUMENTS

ISSUE 3: CLAIMANT IS ENTITLED TO THE PAYMENT OF US$ 1,250,000 OR

ANY OTHER AMOUNT RESULTING FROM AN ADAPTATION OF THE PRICE
124. A change in government policies of Equatoriana at the time of delivery of the third and last
shipment resulted in an unexpected rise in the cost of delivery causing hardship to
CLAIMANT. Upon communication of the tariffs imposed, RESPONDENT promised that a
solution would be found [Cl. Ex. 8, p. 18].
125. CLAIMANT relied upon this assurance and delivered the goods along with making the
payment for tariffs on behalf of RESPONDENT. Therefore, the price of goods as agreed
between the Parties should be adapted [I] under clause 12 of the Contract or [II] under the
CISG.
I. THE PRICE OF GOODS AS AGREED BETWEEN THE PARTIES SHOULD BE ADAPTED

UNDER CLAUSE 12 OF THE CONTRACT

126. CLAIMANT changed the mode of delivery to DDP upon RESPONDENT’s request. Such a
change was made only to profit from CLAIMANT’s experience in the transportation of frozen
semen and not to impose any additional risk [Cl. Ex. 3, p. 11].
127. Accordingly, the Parties intended that RESPONDENT was to bear majority of the risk arising
out of said change. This is evidenced by the fact that a hardship clause, merged with the
force majeure clause, was inserted into the Contract therefore, transferring the risk
associated with the ‘DDP’ delivery of goods [Cl. Ex. 5, p. 14].
128. CLAIMANT shall demonstrate that [A] the tariffs imposed by the Equatorianian Government
constitute hardship under clause 12 of the Contract, [B] price of the Contract should be
adapted to resolve such a situation of hardship and [C] adaptation of the price should be
made in favour of CLAIMANT.
A. The tariffs imposed by the Equatorianian Government constitute hardship under clause 12
of the Contract
129. CLAIMANT had contracted with RESPONDENT for making a profit margin of 5% which was
necessary to achieve its goal of earning a profit of 300,000 USD in 2018. This was
imperative for prolonging the two main credit lines which were issued to CLAIMANT from
the bank [PO2, p. 59, para. 29].
130. However, due to the imposition of the new tariff of 30% by the Equatorianian authorities,
CLAIMANT is incurring a loss of 25% amounting to 1,250,000 USD which is seriously
endangering its plan for continuation of credit lines.
131. Hardship is said to occur if the performance of the Contract has become excessively
onerous, in other words, if the equilibrium of the Contract has been fundamentally altered

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MEMORIAL FOR CLAIMANT ARGUMENTS

[Rimke, p.219; Art. 6.2.2, UNIDROIT]. To ascertain this, primary consideration is to be

given to the circumstances of each individual case [Schwenzer, p. 715].
132. Clause 12 of the Contract, which is the hardship clause, states:
“Seller shall not be responsible […] for hardship, caused by additional health and safety requirements or
comparable unforeseen events making the Contract more onerous.”

133. Therefore, the Parties agreed upon a general definition of exempting impediments to ensure
that all events having the characteristics set forth in clause 12 will be considered to
constitute hardship [UNCITRAL legal guide, p. 251].
134. The imposition of tariffs qualifies as hardship under clause 12 because [a] it constitutes a
‘comparable unforeseen’ event and [b] made the Contract more onerous for CLAIMANT.
a) The imposition of tariffs qualifies as a ‘comparable unforeseen’ event
135. While demanding the inclusion of hardship clause, CLAIMANT stated that it shall not take
any further risk, in particular, risks relating to any additional health and safety requirements
[Cl. Ex. C4, p. 12]. CLAIMANT here made a reference to an earlier incident that was widely
reported in the press. It had suffered a loss of 40% which nearly resulted in its insolvency.
[PO2, p. 58, para. 26] The said loss was incurred due to imposition of unforeseen health and
safety requirements by the buyer's country (Danubia) in that case.
136. Accordingly, the Parties intended that the word ‘comparable’ should be interpreted in light of
events of such similar nature [comparable, in Merriam-Webster]. Therefore, all unforeseen
changes in government policies resulting in imposition of additional costs that financially
burden a party qualify the criteria of a ‘comparable’ event.
137. Furthermore, the Equatorianian Government has always been an ardent supporter of free
trade and has, with one exception [Notice of Arbitration, p. 7, para. 19], never imposed any
retaliatory tariffs [Cl. Ex. 6, p. 15].
138. Additionally, Equatoriana in the past has always tried to solve disputes amicably [Cl. Ex. 6,
p. 15]. Therefore, the imposition of 30% tariffs on selected products from Mediterraneo
after a very short period of unsuccessful discussions could not have been anticipated.
139. The inclusion of racehorse semen in abovementioned category could also not have been
anticipated as it is generally categorized differently from pigs, sheep, or cattle [Notice of
Arbitration, p. 6, para. 11].
140. Furthermore, RESPONDENT may not argue that since the tariffs imposed by Mediterraneo
were foreseeable, the retaliatory measures by Equatoriana could have been anticipated. This
is because the former imposition was extraordinary by itself in several regards i.e., the

19
MEMORIAL FOR CLAIMANT ARGUMENTS

breadth of the included goods, the countries covered and the amount and the speed with
which it had been imposed [PO2, p. 58, para. 23].
141. Accordingly, even if imposition of tariffs by Mediterraneo could have been foreseen, the
‘severity of the disruption’ caused due to such imposition could not have been anticipated
[McKendrick, p. 721].
142. Therefore, imposition of tariffs qualifies as a ‘comparable unforeseen’ event.
b) The imposition of tariffs has made performance of Contract more onerous for the CLAIMANT
143. The Contract is said to be ‘onerous’ when its performance causes great difficulty [onerous, in
Black’s Law, p. 1122]. Last several years have been financially difficult for CLAIMANT and it
has been able to stay in business only through extensive restructuring measures and a
considerable cut in the work force [Cl. Ex. 8, p. 17].
144. Imposition of tariff of 30% changed the circumstances surrounding the Contract. This
destroyed the profit margin of 5% anticipated by CLAIMANT and resulted in a situation of
financial difficulty [PO2, p. 59, para. 29].
145. Thereby, continuation of performance resulted in CLAIMANT ‘risking ruin’ [Bonell, p. 130]
since the same became excessively burdensome making the Contract more onerous.
146. To conclude, imposition of tariffs was an unanticipated change levying additional costs
upon CLAIMANT and therefore, qualifies the criteria of hardship under clause 12 of the
Contract.
B. Price of the Contract should be adapted to resolve such a situation of hardship
147. Hardship clauses organise the revision of the Contract whenever a change of circumstances
significantly modifies the economy of the Contract [Haerynck, p. 232]. They apply to
situations of changed circumstances in which the Parties intend to continue the Contract, as
opposed to terminating it [Rimke, p. 198].
148. Since CLAIMANT duly performed the Contract upon request of RESPONDENT, the price of
the Contract should be adapted because [a] Parties intended for price adaptation as a
remedy for hardship, [b] delivery was authorized only upon RESPONDENT’s assurance that a
solution would be found and [c] price adaptation is the most appropriate remedy in the
present situation.
a) Parties intended for price adaptation as a remedy for hardship
149. Previous negotiations reflect that the parties had agreed on an adaptation mechanism [Cl.
Memorandum, p. 7, para. 46]. Therefore, the said agreement between the Parties denotes an
intention to provide for adaptation as a remedy for hardship.
b) Delivery was authorized only upon RESPONDENT’s assurance that a solution would be found

20
MEMORIAL FOR CLAIMANT ARGUMENTS

150. Upon receiving communication of the tariffs imposed, CLAIMANT requested RESPONDENT
to enter into negotiations and made delivery of goods conditional on reaching a solution [Cl.
Ex. 7, p. 16].
151. Mr. Greg Shoemaker while negotiating stated that a solution would be found given the good
relationship between the Parties and their interest in further business [Cl. Ex. 8, p. 18].
Considering the fact that the hardship clause in the contract provided for the buyer’s liability
in a situation relating to ‘increased remuneration’, the statement made my Mr. Shoemaker
deemed to be an assurance to adapt the Contract. [Cl. Memorandum p. 8, para. 57].
152. Therefore, CLAIMANT finally authorized delivery of the goods upon the representation of
Mr. Shoemaker that a solution would be found i.e., price adaptation of the Contract in the
present case.
c) Price adaptation is the most appropriate remedy in the present situation
153. Given the financial condition of CLAIMANT, the fundamental change in circumstances due
to imposition of tariffs rendered performance much more burdensome [Brunner, p. 123].
154. The hardship clause imposed an obligation on Parties to renegotiate the Contract under the
principle of good faith in order to alleviate the hardship which had arisen [McKendrick, p.
257; Beale/ Bishop/ Furmston, p. 493; Berger, p. 297; Molinaux, p. 55; Mustill, p. 111]. In
furtherance of the same, CLAIMANT approached the RESPONDENT to renegotiate price of
the Contract. However, RESPONDENT refused to pay any additional amount in relation to
tariffs [Cl. Ex. 8, p. 18].
155. Since, Parties could not agree upon revision of the Contract, therefore, sanctions which are
usually termination or adaptation of the Contract by a third person shall follow [Rimke, p.
241]. In the present case, CLAIMANT upon RESPONDENT’s request, delivered the goods and
performed its part of the Contract, therefore, termination of the Contract is not possible.
156. Accordingly, the most appropriate remedy is price adaptation which has been universally
recognized [Silveira, p. 323] and widely followed [Horn, p. 54, Aluminium v. Essex Group,
(USA, 1980)]. Therefore, this remedy should be granted to restore contract equilibrium
between the Parties as inferred from the initial spirit of the Contract [Brunner, p. 392].
C. Adaptation of the Price should be made in favour of CLAIMANT
157. Price of the Contract should be adapted completely in the favour of CLAIMANT as [a]
CLAIMANT is facing a situation of financial ruin and cannot bear further losses, [b] the sum
paid by CLAIMANT for tariffs exceeds the risks accepted by it under the Contract and [c]
RESPONDENT has unlawfully earned profits by breaching the resale prohibition in the
Contract.

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MEMORIAL FOR CLAIMANT ARGUMENTS

a) CLAIMANT is facing a situation of financial ruin and cannot bear further losses
158. CLAIMANT is in a weak financial position as it has been incurring losses since 2014 primarily
due to the high interest payments on the loan taken to finance the new stables in 2013 [PO2,
p. 59, para. 29].
159. Additionally, the restructuring plan which CLAIMANT has agreed with its creditors provides
that the automatic prolongation of the two main credit lines is dependent on the guarantee
that CLAIMANT shall earn a profit of 300,000 USD in 2018. This plan will be seriously
endangered if it has to bear the amount of 1,250,000 USD that had not been anticipated
[PO2, p. 59, para. 29].
160. Furthermore, one of CLAIMANT’s major creditors is now the house bank of its largest
competitor who is interested in buying the ‘dressage division’ of CLAIMANT. Therefore, it is
probable that the bank would make the said sale a precondition for the entry into a new
credit agreement [PO2, p. 59, para. 29].
161. Therefore, the distribution of losses between the Parties should be done fairly keeping in
view the financial condition of CLAIMANT [Commentary Art. 6.2.3 UNIDROIT; Darankoum, p.
473] and to make performance of the Contract bearable [Fucci, p. 38].
162. CLAIMANT is willing to forego the 5% profit which it expected to earn from the present
transaction [PO2, p. 59, para. 31] and RESPONDENT is in a position to bear the entire amount
of 1,250,000 USD without it being caused any financial strain [PO2, p. 59, para. 30].
163. Therefore, CLAIMANT should be reimbursed to the extent of additional cost incurred due to
tariffs.
b) The sum paid by CLAIMANT for the tariffs exceeds the risks accepted by it under the Contract
164. CLAIMANT cannot be forced to comply with efforts which are beyond what it reasonably
envisaged or was reasonably expected to perform in good faith while concluding the
Contract [Silveira, p. 353 ; Aluminium v. Essex Group, (USA, 1980)]
165. To accommodate RESPONDENT’s demands, CLAIMANT made an exception to its usual
practice and adjusted the Contract by accepting the delivery to be made by DDP. However,
this was conditional on non-acceptance of any risks arising from such change in
circumstances [Cl. Ex. 3, p. 11].
166. Accordingly, RESPONDENT accepted to bear any further risks arising from change in
delivery terms as evidenced from wording of clause 12 of the Contract which states “Seller
shall not be responsible […]”.
167. Therefore, an inference can be drawn from the circumstances surrounding the case [Uribe, p.
202] that the tariffs exceeds the risks accepted by CLAIMANT under the Contract.

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 MEMORIAL FOR CLAIMANT ARGUMENTS

Consequently, the entire amount paid by CLAIMANT on behalf of the RESPONDENT should
be reimbursed to it.
c) RESPONDENT has unlawfully earned profits by breaching the resale prohibition in the Contract
168. Principle of good faith is incumbent on all who participate in international arbitration and
without which it cannot operate [Veeder, p. 439].
169. CLAIMANT had never sold more than 10 doses to any breeder at a time and therefore, was
concerned with the size of the doses requested by RESPONDENT. However, it made an
exception and furthermore, informed RESPONDENT that it could not resell the frozen
semen to any third party without its express written consent [Cl. Ex. C2, p. 10]. This later
materialised as part of the Contract [Cl. Ex. 5, p. 13; PO2, p. 57, para. 16].
170. RESPONDENT committed a breach of this condition by reselling 15 doses of semen at a
price, 20% higher than the price charged by CLAIMANT thereby earning unlawful profits
[PO2, p. 57, para. 20]. Therefore, it breached the principle of good faith since it concluded
the Contract with an intention to deceive and deprived CLAIMANT of its reasonable
expectations [Keily, p. 19].
171. This resulted in the equilibrium of the Contract being skewed in favour of RESPONDENT
[Maskow, p. 663; Bund, p. 392]. CLAIMANT was expecting to earn a profit of 5%, however, it
is presently incurring huge losses. In contrast, RESPONDENT is unlawfully earning profits
over and above that had been agreed upon by the Parties.
172. Therefore, price adaptation should be granted completely in favour of CLAIMANT to balance
the financial disequilibrium between the Parties [Bonell, p. 117; Figure 2].

II. THE PRICE OF GOODS AS AGREED BETWEEN THE PARTIES SHOULD BE ADAPTED

UNDER CISG

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MEMORIAL FOR CLAIMANT ARGUMENTS

173. Even if the Tribunal rejects the request to grant price adaptation under clause 12 of the
Contract, there exists a remedy for the same under CISG. CLAIMANT shall demonstrate that
[A] application of Art. 79 CISG has not been excluded by the Parties, [B] there exists a gap
in relation to price adaptation as remedy of hardship under CISG and [C] price adaptation
should be granted as a remedy under Art. 7 (2) CISG using UNIDROIT.
A. Application of Art. 79 CISG has not been excluded by the Parties
174. Art. 79 CISG is applicable in the present case in spite of the Contract providing for a
hardship clause. This is because its application was not excluded either [a] expressly or [b]
impliedly.
a) Parties have not expressly excluded the application of Art. 79 CISG
175. Art. 6 CISG reserves the Parties' option to set aside, totally or partially, the application of
CISG. However, to be effective, such exclusion must be expressed in a clear manner [cf.
Fallon/ Philippe, p. 21].
176. Like any other contractual term, a clause stating such total or partial exclusion of the CISG
has to be validly stipulated in the Contract to become effective [Bonell, p. 56]. Therefore,
exclusion requires a clear [ICC Case No. 2291 of 1975], unequivocal [Auto case (AUT, 2007)]
and affirmative [American Mint LLC v. GOSoftware, Inc. (USA, 2005)] agreement of the
Parties [Bernards v. Carstenfelder, (NED, 2007)].
177. In the present case, no such stipulation was inserted into the Contract. Furthermore, clause
14 of the Contract distinctly provides for the application of the CISG to the whole of the
Sales Agreement [Cl. Ex. C5, p. 14] thereby, negating any possible intention to exclude the
application of the CISG.
178. Therefore, application of Art. 79 CISG is not excluded since the Contract does not have
clear language to that effect [Asante Technologies v. PMC-Sierra, (USA, 2001)].
b) Parties have not impliedly excluded the application of Art. 79 CISG
179. An implied exclusion is possible only when the Parties' intent to exclude the CISG is clear
[Auto case (AUT, 2007); Corn Case, (UKR, 2012)] and real [Building materials case, (SWZ, 2004)].
This requires interpretation of statements made by and other conduct of the Parties,
reference should be made to Art. 8 CISG [Bonell, p. 56].
180. In the present case, there is an absence of any pre-contractual negotiations reflecting an
intention of the Parties to impliedly exclude the application of Art. 79 CISG. Therefore, the
mere presence of a hardship clause does not reflect the clear intention of the Parties to
exclude the application of Art. 79 CISG since its use is not incompatible with CISG
[Borisova, p. 3].

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MEMORIAL FOR CLAIMANT ARGUMENTS

181. Clause 12 of the Contract acts complementary to the CISG and performs a function that
cannot be well served by it [Hellner, p. 86; Honnold II, p. 161]. Unlike CISG, it enumerates the
events which may make the Contract more onerous for any of the Parties thereby, acting
harmoniously with the CISG.
182. Since no contrary intention can be established from the Parties’ statements and other
conduct, the balance shall tip in favour of non-exclusion of Art. 79 CISG [Spagnolo, p. 208].
B. There exists a gap in relation to price adaptation as remedy of hardship under CISG
183. Art. 79 CISG provides for a remedy of exemption of damages in circumstances wherein a
party fails to perform any of its obligations. However, CLAIMANT has already performed its
part of the Contract by delivering the goods thereby, making the remedy under Art. 79
CISG ineffectual.
184. Art. 79 CISG does not explicitly provide for a remedy in situations of hardship. This is
evidenced by its legislative and drafting history which reveals that the drafters did not agree
on remedies in case of hardship [Silveira, p. 358]. However, such a silence does not result in
an inference that no remedy is available to a party or that the only remedy available is the
one offered under Art. 79 [CISG-AC OP. NO. 7; Neumayer/Ming, p. 535].
185. Therefore, there exists a gap in the CISG regarding remedy for hardship where the Contract
has been duly performed. CLAIMANT shall demonstrate that there exists [a] an external gap
or [b] alternatively, an internal gap in respect of remedy for hardship.
a) There exists an external gap regarding price adaptation of the Contract as a remedy for hardship
186. ‘External gaps’ are said to occur when the CISG does not govern a matter at all [Second-hand
tractor case, (SWZ, 2008)]. These matters are resolved by placing reliance on the domestic law
applicable pursuant to the rules of private international law [Flowers case, (GER, 2009); San
Lucio, v. Import & Storage Services, (USA, 2009)]
187. In adherence to these rules, the law governing the Contract (Mediterraneo), which is a
verbatim adoption of UNIDROIT [PO1, p. 52, para. 4], shall be used for the purpose of
filling in the gap [Bonell, p. 69; Lookofsky, 80].
b) Alternatively, there exists an internal gap regarding price adaptation of the Contract as a remedy for
hardship
188. Even if it is considered that the remedies available for hardship are a matter governed by the
CISG, it remains a matter not explicitly settled in CISG [Honnold, p. 622; Kroll et al., p. 1089].
Therefore, there exists an ‘internal gap’ regarding the same [Garro]. This gap must be filled
according to the prescriptions of Art. 7(2) CISG [Silveira, p. 312; Garro].

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MEMORIAL FOR CLAIMANT ARGUMENTS

189. An analogical application of specific provisions of CISG, as required under Art. 7(2) CISG,
is ineffectual in situations of hardship. This is because the same was not expressly envisaged
by the drafters and as a result would be contrary to their intention [Zeller, p. 67].
190. Therefore, reliance should be placed on general principles as provided under Art. 7(2) CISG
for gap-filling [Kropholler, p. 292; Minibus case, (NED, 2009); Scafom v. Lorraine Tubes (BEL,
2009)].
191. UNIDROIT provisions on hardship implement general principles that underlie both the
UNIDROIT and the CISG [Slater, p. 252]. Accordingly, they should be relied upon as ‘general
principles’ to fill the gaps [Perillo, p. 114, Scafom v. Lorraine Tubes (BEL, 2009)]. This is further
substantiated by the fact that the preamble to UNIDROIT explicitly provides for the
abovementioned possibility of its usage to supplement international uniform law
instruments [UNIDROIT Preamble].
192. In the ‘Scafom International case’, the Belgian Supreme Court while relying on Art. 7(2) CISG
to fill the CISG's internal gap regarding situations of hardship, turned to general principles
as incorporated in the UNIDROIT [Scafom International v. Lorraine Tubes S.A.S].
193. Therefore, the internal gap regarding price adaptation of the Contract as a remedy must be
filled using UNIDROIT. If the Tribunal decides that UNIDROIT cannot be considered as
‘general principles’ to fill the gap regarding hardship then, the gap must be filled in
conformity with the law applicable by virtue of the rules of private international law [Art.
7(2), CISG].
194. In adherence to these rules, the law governing the Contract (Mediterraneo) shall be used for
the purpose of filling in the gap i.e. UNIDROIT [Cl. Memorandum, p. 62, para. 187].
C. Price adaptation should be granted as a remedy using UNIDROIT
195. CLAIMANT shall demonstrate that the tariffs constitute hardship under Art. 6.2.2 of the
UNIDROIT as [a] the events occurred or became known to CLAIMANT after the
conclusion of the Contract, [b] the events could not reasonably have been taken into
account by CLAIMANT at the time of conclusion of the Contract, [c] the events were beyond
the control of CLAIMANT and [d] the risk of the events was not assumed by CLAIMANT.
a) The events occurred or became known to CLAIMANT after the conclusion of the Contract
196. The Contract was concluded on 6th May, 2017 and CLAIMANT received knowledge of the
newly imposed tariffs only on 20th January, 2018 [Cl. Ex. 7, p. 16], which is subsequent to
the conclusion of the Contract.
b) The events could not reasonably have been taken into account by CLAIMANT at the time of conclusion of the
Contract

26
MEMORIAL FOR CLAIMANT ARGUMENTS

197. The imposition of tariffs was unforeseeable since the government of Equatoriana always
resorted to solving disputes amicably and as a practice, did not impose retaliatory tariff [Cl.
Ex. 6, p. 15]. Therefore, CLAIMANT could not have anticipated imposition of tariff at the
time of the conclusion of the Contract [Cl. Memorandum, p. 56, para. 137]
c) The events were beyond the control of CLAIMANT
198. Since, the tariffs were imposed by the government of Equatoriana, the decision of
imposition was beyond the control of CLAIMANT [McKendrick, p. 721].
d) The risk of the events was not assumed by CLAIMANT.
199. CLAIMANT, during negotiation of the Contract, specifically stated that it shall be willing to
make delivery of goods via DDP only on the condition that it will not be taking any further
risks associated with the DDP [Cl. Ex. 2, p. 10]. This is further substantiated by the language
of clause 12 of the Contract. Therefore CLAIMANT did not assume risk of the
abovementioned event.
200. In conclusion, imposition of tariffs constitutes hardship under Art. 6.2.2 UNIDROIT.
Accordingly, it should be granted a remedy under UNIDROIT which provides for
termination or adaptation of the Contract [Art. 6.2.3(4), UNIDROIT; Brunner, p. 124.]. Since
CLAIMANT has already performed the Contract by delivering the shipment, the remedy of
termination would be ineffectual.
Therefore, the Tribunal should adapt the price of the Contract entirely in favour of
CLAIMANT to restore the equilibrium between the Parties [Cl. Memorandum p. 58, para.
157].
CONCLUSION ON ISSUE 3
The Tribunal should find that that tariffs imposed by the Equatorianian Government constitute
hardship under clause 12 of the Contract. The Contract must be adapted since it is the most
appropriate remedy. Furthermore, price adaptation should be made entirely in favour of
CLAIMANT to balance the financial disequilibrium between the Parties. Alternatively, there exists
a remedy for price adaptation under CISG. This remedy should be granted by filling gaps under
Art. 7(2) CISG using UNIDROIT.

27
MEMORIAL FOR CLAIMANT REQUEST FOR RELIEF

REQUEST FOR RELIEF

Counsels for CLAIMANT respectfully request the Tribunal:

1. To find and hold that the Tribunal has the jurisdiction and power to adapt the contract
under the arbitration agreement.
2. To find and hold that the Award from the other arbitral proceedings is admissible as
evidence before the Tribunal and that CLAIMANT is entitled to rely on the same.
3. To find and hold that CLAIMANT is entitled to an increased remuneration resulting from
adaptation of the price under clause 12 of the Contract or under CISG.

Based on these findings, CLAIMANT respectfully requests the Tribunal:

1. To order RESPONDENT to pay the additional amount of US$ 1,250,000 which is 25 per
cent of the price for the third delivery of semen.

Respectfully submitted,

Bhopal, 6th December, 2018

Pranjal Agarwal Aditya Wadhwa

Ankit Gupta Nilakshi Srivastava

Shiuli Mandloi

28
 Certificate and Choice of Forum
To be attached to each Memorandum

I PRANJAL AGARWAL, on behalf of the Team for (name of School) NATIONAL LAW INSTITUTE
UNIVERSITY, BHOPAL, INDIA hereby certify that the attached memorandum was prepared by the
members of the student team, and that no person other than a student team member has participated
in the writing of this Memorandum.

Check off the boxes as appropriate:

□ Our School will be participating only in the Vis East Moot and is not competing in the Vienna
Vis Moot.

□ Our School is competing in both Vis East Moot and Vienna Vis Moot.

□ We are submitting two separately prepared, different Memoranda to Vis East Moot
and to Vienna Vis Moot.
Or

□ We are submitting the same Memorandum to both Vis East Moot and Vienna Vis
Moot, and we choose to be considered for an Award in (check one box)

□Vis East Moot in Hong Kong, or

□ Vienna Vis Moot

Authorised Representative of the Team for (School name): NATIONAL LAW INSTITUTE UNIVERSITY,
BHOPAL

Name: PRANJAL AGARWAL

Signature: _________________________________