NMIMS KIRIT P.

MEHTA SCHOOL OF LAW

32nd Annual Willem C. Vis International Commercial Arbitration Moot

MEMORANDUM FOR RESPONDENT

CASE NO. FAI MOOT 100/2024

On Behalf
On Behalf of: of: Against:
Equatorianiana
GreenHydro Plc. RenPower GreenHydro Plc.
1 Russell
1974 Russell Avenue Square 1974 Russell Avenue

CapitalOceanside, Equatorianiana
City, Mediterraneo Capital City, Mediterraneo
-RESPONDENT
-CLAIMANT - - -CLAIMANT-

Counsel for RESPONDENT

Mohini Acharya ● Krisha Suri ● Khyatiba Zala ● Hanishi Doshi

Vera Kotian ● Nityashree Bhuvanaprasad ● Anaaha Jaishankar

Memorandum for RESPONDENT | I

NMIMS KIRIT P. MEHTA SCHOOL OF LAW

Memorandum for RESPONDENT | II

 NMIMS KIRIT P. MEHTA SCHOOL OF LAW

We hereby certify the truthfulness of our statements, and confirm that we

have not used AI-applications in any other way in preparing the submission
of this memorandum

DATE: 30th January 2025

Name: Mohini Acharya Signature:

Name: Krisha Suri Signature:

Name: Khyatiba Zala Signature:

Name: Hanishi Doshi Signature:

Name: Vera Kotian Signature:

Name: Nityashree Bhuvanaprasad Signature:

Name: Anaaha Jaishankar Signature:

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 NMIMS KIRIT P. MEHTA SCHOOL OF LAW

TABLE OF CONTENTS

INDEX OF ABBREVIATIONS AND DEFINITIONS ................................................VII

INDEX OF LEGAL TEXTS ..............................................................................................X

INDEX OF COURT CASES AND ARBITRAL AWARDS ........................................... XII

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

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

ISSUE 1. CLAIMANT HAS FAILED TO RESPECT THE AGREED DISPUTE

RESOLUTION MECHANISM, RENDERING ITS ARBITRATION REQUEST
INADMISSIBLE. ................................................................................................................ 3

A. Mediation is a mandatory precondition to arbitration and must be respected. .......................... 3

I. The PSA Unambiguously Mandates Mediation as a Precondition to Arbitration. ............... 3

II. The UNCITRAL Model Law reinforces the enforceability of Mediation Prerequisites. ... 4
III. CLAIMANT’s premature initiation of Arbitration undermines RESPONDENT’s good
faith efforts. .................................................................................................................................... 4
IV. Tribunal should stay proceedings and enforce Mediation as the first step. ....................... 4
B. CLAIMANT’s reliance on the UNCITRAL Model law on Mediation is misplaced and
unfounded............................................................................................................................................................... 5

I. CLAIMANT failed to initiate Mediation despite clear procedural mechanisms. ................. 5

II. CLAIMANT’s use of threats undermines their argument of Good Faith. ........................... 5
III. CLAIMANT’s procedural misconduct should preclude their reliance on the
UNCITRAL Model Law. .............................................................................................................. 6
IV. CLAIMANT’s actions are responsible for their business losses. ........................................ 6
C. EQUATORIANIAN LAW IS THE CLOSEST AND MOST REAL CONNECTION. ......... 7

I. Equatorianian Law dominates the Contractual Framework and governs the Arbitration
Agreement. ..................................................................................................................................... 7
II. Equatorianian Law and the validation principal demand enforcing Pre-Arbitration
Mediation. ...................................................................................................................................... 8
III. The selection of Danubia as the seat of arbitration would not affect procedural
impropriety..................................................................................................................................... 8
ISSUE 2: THE ARBITRAL TRIBUNAL SHOULD EXCLUDE EXHIBIT C7 AND
ADMIT EXHIBIT R3 ......................................................................................................... 9

A. Ex. C7 must be excluded due to Irrelevance and Confidentiality breach. .................................... 9

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I. Ex. C7 lacks relevance and materiality and must be excluded............................................... 9

II. Ex. C7 contains confidential and sensitive information and should be excluded. ............ 10
B. Admissibility Ex. C7 is protected by ‘Without prejudice’ privilege and should be excluded.
.................................................................................................................................................................................. 11

I. Ex. C7 is protected under the Without prejudice privilege.................................................. 11

II. Ex. C7 does not fall under any exceptions of Without prejudice privilege. ....................... 12
III. Ex. C7 is protected by privilege and must be excluded ..................................................... 12
C. Inapplicability of Transparency obligations to the admission of Ex. C7 .................................... 13

I. Transparency obligations do not support the admission of Ex. C7 ..................................... 13

II. Inapplicability of the Mauritius Convention on Transparency in this contractual dispute
...................................................................................................................................................... 14
D. Admissibility of Ex. R3 under Doctrine of Independent source and Attenuation. .................. 14

I. Application of the Independent source doctrine to the admissibility of Ex. R3 ................. 15

II. Admissibility of Ex. R3 under the Doctrine of Attenuation. ............................................... 15
E. Admissibility of Ex. R3 under Art. 9.2 of the IBA Rules. ................................................................. 16

F. Ethical objections under Danubian law do not warrant exclusion of Ex. R3.................... 16
ISSUE 3: THE CISG IS NOT APPLICABLE TO THE PSA. ......................................... 17

A. The sale is not the preponderant part of the PSA under Art. 3(2) of the CISG. ......................... 17

I. The PSA primarily involves services, not the sale of goods .................................................. 17
III. Customization and integration are service components................................................... 19
VI. Mutual intent of parties reflects service-oriented agreement............................................. 19
B. THE PSA DOES NOT MEET THE INTERNATIONALITY CRITERIA UNDER THE
CISG. ...................................................................................................................................................................... 19

I. The PSA is domestic in nature for consideration of the extensive use of Equatorian
materials and infrastructure ........................................................................................................ 19
II. The PSA has a strong localised connection with the domestic laws of Equatorian .......... 20
III. The lex loci principles establish the application of domestic laws ................................... 20
III. Clear intent to opt-out of the CISG is demonstrated by the parties. .......................................... 26

1. Establishing evidentiary standard required for ex-ante exclusion ................................... 27

B. Parties have implicitly excluded the CISG from the PSA ................................................................. 27

I. ⁠There is clear and unequivocal agreement between the parties to exclude the CISG .............. 28

1. There is clear subjective intent to exclude the CISG ............................................................ 28

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a. Application of Art. 8(1) of the CISG ................................................................................... 28

b. Parties’ intent to exclude the CISG .................................................................................... 28
II. Conduct of CLAIMANT demonstrates intent to exclude the CISG. ................................. 30
REQUEST FOR RELIEF .................................................................................................32

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 NMIMS KIRIT P. MEHTA SCHOOL OF LAW

INDEX OF ABBREVIATIONS AND DEFINITIONS

AC Advisory Council

ADR Alternative dispute Resolution

Arbitration Agreement Arbitration Agreement under Article 30

ARfA Answer to Request for Arbitration

Art. Article

Arts. Articles

CEO Chief Executive Officer

CLAIMANT GreenHydro Plc.

CNS A contracting state to the United Nations Convention on

Contracts for the International Sale of Goods (CISG) is a country
that has ratified, accepted, or approved the convention.

Convention United Nations Convention on Contracts for the International

Sale of Goods

Contract The Purchase and Supply Agreement concluded between

Claimant and Respondent

Dispute Resolution Clause Art. 30 of PSA; Claimant Exhibit C2, p.12, art. 30

et al. et alia; and others (Latin)

EAI Equatorianian Arbitration Institution

EPC Engineering, Procurement and Construction

EUR Euro

Ex. C Claimant’s Exhibit

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 NMIMS KIRIT P. MEHTA SCHOOL OF LAW

Ex. R Respondent’s Exhibit

FAI Finland Arbitration Institute

Government Government of Equatorianian

J. Int. Arb. Journal of International Arbitration

ibid. ibidem; in the same place (Latin)

id. idem; the same (Latin)

i.e. id est, that is (Latin)

MW Megawatt

Mf C Memorandum for CLAIMANT

No. Number

OAD Letter by Langweiler Objecting to Admittance of Document

p. Page

pp. Pages

para. Paragraph

paras. Paragraphs

Parties GreenHydro Plc. and Equatorianian RenPower

plc Public Limited Company

PO1 Procedural Order Number 1

PO2 Procedural Order Number 2

PSA Purchase Service Agreement

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RESPONDENT Equatorianian RenPower

Ref. Reference

RfA Request for Arbitration

RfQ Request for Quotation

Sec Section

Tribunal The Arbitration Tribunal

v. Versus

% Percentage

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INDEX OF LEGAL TEXTS

AC Act Arbitration and Conciliation Act, 1996

CISG United Nations Convention on Contracts for the International Sale

of Goods

Danubian Law Law of Danubia

Equatorianian Law Law of Equatorianian

FAI Mediation Rules Mediation Rules of the Finland Chamber of Commerce

FAI Arbitration Rules Arbitration Rules of the Finland Chamber of Commerce and the
Rules for Expedited Arbitration of the Finland Chamber of
Commerce

FAI Guidelines Finland Arbitration Institute Guidelines

Hague Convention Hague Convention, 1964

IBA Rules International Bar Association Rules on the Taking of Evidence in

International Arbitration

ICC International Chamber of Commerce

Mauritius Convention United Nations Convention on Transparency in Treaty-based

Investor-State Arbitration

Model Law United Nations Commission on International Trade Law Model Law
on International Commercial Arbitration

Model Law on United Nations Commission on International Trade Law Model Law
Mediation on Mediation

UNCITRAL Digest UNCITRAL Digest of Case Law on the United Nations Convention
on Contracts for the International Sale of Goods

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UNCITRAL Expedited United Nations Commission on International Trade Law Expedited

Rules Arbitration Rules 2021

UNCITRAL Rules on United Nations Commission on International Trade Law Rules on

Transparency Transparency

UNIDROIT Principles The International Institute for the Unification of Private Law
Principles of International Commercial Contracts 2016

ULIS Uniform Law on the International Sale of Goods

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INDEX OF COURT CASES AND ARBITRAL AWARDS

UNITED STATES OF AMERICA

Cited as:

Supreme Court of Connecticut

Bialowans v. Minor 22nd November 1988
Bialowans v. Minor, 550 A.2d 637 (Conn. 1988)
Case Reference:13273

Supreme Court of Connecticut

White v. Kampner 1993 31st May 1994
Dennis E. White v. Philip Kampner et al
Case Reference: 641 A.2d 1381

Rienzi & Sons, Inc. case

United States Court of Appeals for the Second Circuit

27th March 2014

Rienzi & Sons, Inc. v. N. Puglisi & F. Industria Paste Alimentari

S.p.A.

CISG Online Case no. 2485

Available at: [Link]
courts/new-york/nyedce/1:2008cv02540/281831/75/

Hanwha case U.S. District Court, Southern District of New York

18th January 2011

Hanwha Corp. v. Cedar Petrochemicals, Inc.

Case Reference: 09 Civ. 10559 (AKH)

CISG Online Case no. 2178

Available at: [Link]

Doolim Corp. case U.S. District Court, Southern District of New York

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29th May, 2009

Doolim Corp. v. R Doll, LLC, et al.

Case Reference: 08 Civ. 1587 (BSJ)(HBP)

Available at: [Link]

Asante Technologies case U.S. [Federal] District Court for the Northern District of
California

30th July, 2001

Asante Technologies, Inc. v. PMC-Sierra, Inc.

Case Reference: C 01-20230 JW

CLOUT Case no. 433

Available at:
[Link]
[Link]

U.S. [Federal] District Court for the District of Kansas

Guang Dong Light
Headgear Factory case 28th September 2007

Guang Dong Light Headgear Factory Co. v. ACI Int’l, Inc

CLOUT Case no. 844

Available at:
[Link]
[Link]

American Biophysics case U.S. District Court for the District of Rhode Island

30th January 2006

American Biophysics Corp. v. Dubois Marine Specialties

CISG online Case no. 1176

Available at: [Link]

[Link]/files/cases/7099/fullTextFile/1176_13606360.pdf

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Zykronic Inc. case District Court of the State of Colorado USA

22nd March 2019

Zykronic Inc. v. Loxone Electronics GmbH

Case Reference: 2016CV34496

CISG Online Case no. 6751

Available at: [Link]

Amco Ukrservice case U.S. District Court, E.D., Pennsylvania

29th March, 2004

Amco Ukrservice & Promriladamco v. American Meter Company

Case Reference: Civ. A. 00-2638

Available at: [Link]

Viva Vino Import Corp U.S. [Federal] District Court for the Eastern District of
case Pennsylvania

29th August, 2000

Viva Vino Import Corp. v. Farnese Vini S.r.l.; Fercus, S.r.l. v.

Palazzo, MP

Case Reference: 99-6384

CLOUT Case no. 420

Calzaturificio case U.S. [Federal] District Court for the Southern District of
New York
6th April, 1998
Calzaturificio Claudia S.n.c. v. Olivieri Footwear Ltd.
Case Reference: 96 Civ. 8052(HB)(THK)
CLOUT Case no. 413

Golden Valley case U.S. District Court for the Eastern District of California

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21st January 2010

Case Reference: CV F 09-1424 LJO GSA

CISG Online Case no. 2089

TeeVee Toons case U.S. [Federal] District Court for the Southern District of
New York
28th March, 2002
TeeVee Toons, Inc. v. Gerhard Schubert GmbH
CLOUT Case no. 615

Alpha Prime
Development case U.S. District Court for the District of Colorado

6th July 2010

Alpha Prime Development Corp. v. Holland Loader Co., LLC

Case Reference: 09-cv-01763-WYD-KMT

CISG Online Case no. 2111

OrthoTec case Court of Appeal, Second District, Division 7, California

27th June 2007

Orthotec, LLC. v. Eurosurgical, S.A

Case Reference: B179387, B189213

MCC-Marble Ceramic Center,

Inc case U.S. Court of Appeals for the Eleventh Circuit
29th June 1998
MCC-Marble Ceramic Center, Inc. v. Ceramica Nuova D’Agostino,
S.p.A.
CLOUT Case no. 222

Roser Technologies case

District Court for the Western District of Pennsylvania
10th September 2013
Roser Technologies, Inc. v. Carl Schreiber GmbH

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CLOUT Case no. 1744

Filanto S.p.A. case U.S. [Federal] District Court for the Southern District of
New York

14th April 1992

Filanto, S.p.A. v. Chilewich International Corp.

Case Reference: 91 Civ. 3253 (CLB)

CLOUT Case no. 23

AUSTRIA
Boiler case
Oberster Gerichtshof (Austrian Supreme Court)

2nd April 2009

Case Reference: 8 Ob 125/08b

CISG Online Case no. 1889

Obergericht des Kantons Thurgau (Higher Court of the

Debt Settlement case Canton of Thurgau)
12th December 2006
Case Reference: ZBR.2006.26
CISG Online Case no. 1566

Austrian Price Dispute Oberster Gerichtshof (Austrian Supreme Court)

case 9th March 2000
Case Reference: 6 Ob 311/99z
CLOUT Case no. 424

Oberster Gerichtshof (Austrian Supreme Court)

Tantalum Powder Terms 17th December, 2003
case
Casee Reference: 7Ob 275/03x

CLOUT Case no. 534

Memorandum for RESPONDENT | XVI

 NMIMS KIRIT P. MEHTA SCHOOL OF LAW

Fruits and vegetables case Handelsgericht des Kantons Aargau (Commercial Court
Canton Aargau)

26 November 2008

Case Reference: HOR.2006.79/AC/tv

BELGIUM

BV Scafom case Hof van Cassatie van België/Cour de cassation de Belgique

(Belgian Supreme Court)
19 June 2009
Scafom International BV v. Lorraine Tubes S.A.S.

Case Reference: C.07.0289.N

CISG Online Case no. 1963

UNITED KINGDOM

High Court of justice-chancery division

Bodley Head Ltd v. Flegon 5th October 1972
[1972] 1 WLR 680 Case Reference: [No. 20]
[Link]
.20110803100103414

England and Wales High Court

Cable & Wireless v IBM October 11, 2002
(2003) BLR 89 Case Reference:BLR 89.

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House of Lords
products Limited & others v
Fili Shipping Company 17th October 2007
Limited 2007
Premium Nafta Products Limited and others v. Fili Shipping Company
Limited and others

Case Reference: [2007] UKHL 40

[Link]
017/[Link]

England and Wales Court of Appeal (Civil Division)

Sulamérica v. Enesa
Engenharia 16 May 2012

Sulamerica CIA Nacional De Seguros SA & Ors v Enesa Engenharia

SA & Ors

Case Reference: Civ 638

[Link]
4932?originationContext=document&transitionType=DocumentItem&cont
extData=([Link])&ppcid=acb0415f17da4512ad18b7207daf5f9d&co
mp=pluk

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England and Wales Court of Appeal

Tomkinson v. First 08 December 1958
Pennsylvania Banking and Case reference:- J1208-3
Trust Co. (1960)and In re
United Railways of Havana

England and Wales Court of Appeal (Civil Division)

Cutts case
7th December 1983

Oliver Alfred Sidney Cutts v Albert Head

Case Reference: [1984] Ch 290

Court of Appeal
Seager case
18th April, 1987

Seager v Copydex Ltd.

Case Reference: 828 (1967)

House of Lords
Rush & Tompkins
3rd November, 1988

Rush & Tompkins v Greater London Council

Case Reference: [1989] AC 1280

McTaggart Case McTaggart v. McTaggart

Case Reference: (1948) 2 All ER 754

Sulamérica case High Court

19 Jan, 2012

Sulamérica Cia Nacional De Seguros S.A. and others v Enesa Engenharia

S.A

Memorandum for RESPONDENT | XIX

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Case Reference: [2012] EWHC 42

West London Pipeline case High Court

9th June, 2008

West London Pipeline & Storage Ltd v Total UK Ltd

Case Reference: [2008] EWHC 1296 (Comm)

SWITZERLAND

CISG-2803 Bundesgericht/Tribunal fédéral (Swiss Federal Supreme

Court)

08 November 2016

Online auction of photography case

Case reference: 4A_451/2016

CISG Online Case no. 2803

Fruit and vegetables case Handelsgericht des Kantons Aargau (Commercial Court
Canton Aargau)

26 November 2008

Case Reference: HOR.2006.79/AC/tv

CISG Online Case No. 1739

Bezirksgericht St. Gallen

Unused Raw Material case
3rd July 1997

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Case Reference: 3PZ97/18

CLOUT Case no. 215

Roland Schmidt case Bundesgericht

22nd December 2000

Roland Schmidt GmbH v. Textil-Werke Blumenegg AG

Case reference: 4C.296/2000

CLOUT Case no. 877

Thurgau case Obergericht des Kantons Thurgau (Higher Court of the

Canton of Thurgau)

12th December 2006

Case Reference: ZBR.2006.26
CLOUT Case no. 932

FRANCE

Eiffel Tower lifts case

Court of Appeal of Paris

6th November 2001

Traction Levage SA v. Drako Drahtseilerei Gustav Kocks GmbH

Case reference: 2000/04607

CISG Online Case no. 677

Ceramique Culinaire case

Court of Cassation (Commercial Division)
17th December 1996

Société Céramique culinaire de France v. Société Musgrave Ltd.

CLOUT Case No. 206

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GERMANY

Car auction case Oberlandesgericht Brandenburg (Court of Appeal

Brandenburg)

08th April 2016

Online auction of car case

Case Reference:11 U 44/14

CISG Online Case No. 2727

[Link]

Vegetable auction case Bundesgerichtshof (German Supreme Court)

2nd October 2002

Vegetables auction case

Case reference:-VIII ZR 163/01

CISG Online Case no. 700

[Link]

Swiss Invoice Dispute case Oberlandesgericht Frankfurt a. M

30th August 2000
Case Reference: 9 U 13/00
CLOUT Case no. 429

Used Gear-Cutting Machine Bundesgerichtshof

31st October 2001

Case reference: [2001] BGHZ No. 149, 113

CLOUT Case no. 445

Material for metal covers case Landgericht Landshut (District Court Landshut)
12 June 2008

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Case Reference: 43 O 1748/07

CISG online no. 1703

NETHERLANDS

OHG vs Geld Rechtbank Arnhem (District Court Arnhem)

17th July 1997
Kunsthaus Math. Lempertz OHG v. Wilhelmina van der Geld
CISG Online Case no. 548
[Link]

OHG vs GELD appeal Gerechtshof Arnhem (Court of Appeal Arnhem)

9th February 1999
Kunsthaus Math. Lempertz OHG v. Wilhelmina van der Geld
Case Reference:97/805
CISG Online Case no. 1338
[Link]

CISG-5398 Rechtbank Oost-Brabant (District Court Oost-Brabant)

31 August 2020

Sale of horse via internet auction case

Case Reference: C/01/360225 / KG ZA 20-386

CISG Online Case no. 5398

[Link]

German company case Rechtbank Utrecht (The Netherlands)

21st January, 2009
German company v. Quote Foodproducts BV
Case Reference: 253099/HA ZA 08-1624
CLOUT Case no. 1202

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ITALY

Prada S.p.A. v. Caporicci Camera Arbitrale Milano (CAM)

USA Corp (Milan Chamber of Arbitration)

30th January 2019

Case reference: ARB/17/00120 (Final Award)

CISG Online Case no. 5573
[Link]

Takap B.V case Tribunale di Rovereto

21st November, 2007

Takap B.V. – EUROPLAY S.r.l.

Case Reference: 914/2006

CLOUT Case no. 1189

AUSTRALIA

Bomython v. Commonwealth The High Court of Australia

of Australia (1951 ACT
201) 30 October 1950

New South Wales Court of Appeal

United Group Rail Services
Ltd v Rail Corp New South 3rd July 2009
Wales
Case Reference: 40454/2008

[Link]
limited-v-rail-corporation-new-south-wales-%5B2009%5D-
nswca-177-/

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Supreme Court of New South Wales

Aiton v Transfield 1999
1st October 1999

Aiton Australian Pty Ltd. v. Transfield Pty Ltd.

Case reference: 153 FLR 236.

[Link]

Supreme Court of New South Wales

Hooper Bailie v Natcon
Group 1992 13th April 1992

Hooper bailie associated ltd v Natcon group pvt ltd

Case Reference: NSWLR 194

[Link]
bailie-associated-ltd-v-natcon-group-pty-ltd-1992-28-nswlr-194/

Auckland Corporation v. Court of Appeal of New Zealand

Alliance Assurance Co.
(1937) AC 587 26th January 1937

Case reference:- 86 of 1936

ICJ

International Court of Justice

Barcelona Traction, Light and Power Company, Ltd
[Belgium v. Spain) (1970)] 5th February 1970

Case reference:- I.C.J. 3

[Link]
70.02.05_barcelona_traction.htm

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ICC
Cited as

ICC Case No. 6276 ICC Case No. 6276

In: ICC International Court of Arbitration

Bulletin Vol. 14 No. 1

January 1990

[Link]
ation/en-partial-award-in-case-6276-extracts

ICC Case No. 6277 ICC Case No. 6277

In: ICC International Court of Arbitration

Bulletin Vol. 9 No. 2

[Link]
ation/en-partial-award-in-case-6276-extracts

• Manganese Sale case ICC Case No. 8324

In: Journal du droit international, 1996, 1019-
1022

CHINA

Shenchen Commission case People’s Republic of China: China

International Economic & Trade
Arbitration Commission [CIETAC],
Shenchen Commission (now South China
Branch)
7th December 2005

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CLOUT Case no 1118

SINGAPORE
Singapore Court of Appeal
Anupam Mittal v. Westbridge Ventures II
6th January 2023

[Link]
by-smu/anupam-mittal-v-westbridge-ventures-ii-
investment-
holdings#:~:text=In%20the%20landmark%20cas
e%20of,%E2%80%9Ccomposite%E2%80%9D%
20approach%2C%20i.e.%20by

ARBITRAL AWARDS

Biwater case International Centre for Settlement of

Investment Disputes

24th July, 2008

Biwater Gauff (Tanzania) Ltd. v. United Republic

of Tanzania

Case Reference: ICSID CASE NO.

ARB/05/22

Court of Arbitration of the International

6653/1993 case Chamber of Commerce

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1st January, 1993

Case Reference: 6653/1993

CLOUT Case no. 103

Methanex case Methanex Corporation v. United States of

America, UNCITRAL

Final Award: 3 August 2005

Metal-Tech case Metal-Tech Ltd. v. Republic of

Uzbekistan, ICSID

Case Reference: Case No. ARB/06/18

EDF case EDF (Services) Limited v. Republic of

Romania, ICSID

8 October, 2009
Case Reference: Case No. ARB/05/13

Maffezini v. The Kingdom of Spain Emilio Agustín Maffezini v. The Kingdom of

Spain, ICSID Case No. ARB/97/7

28 October,1999

Case Reference:ARB/97/7

INDIA

Construction case Supreme Court of India

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30 January, 1979
Hind Construction Contractors vs The State Of
Maharashtra
Case Reference: 1979 AIR 720

United India Insurance Co. Ltd. & Anr. V. Supreme Court of India
Hyundai Engineering and Construction Co. Ltd. &
Ors. 21 August, 2018

Case Reference: SLP(C) No. 4260/2018

Oriental case Supreme Court of India

2 May, 2018

Oriental Insurance Company Limited vs M/S

Narbheram Power And Steel Pvt Ltd

Case Reference: 4 S.C.R. 826

ARTICLES

Schlechtriem/ Schlechtriem, Peter; Schwenzer, Ingeborg; Schroeter, Ulrich Gerd

Schwenzer Commentary on the UN Convention on the International Sale of
Goods (CISG)
5th edition Oxford, 2022
Cited in paras.:

Ferrari Ferrari, Franco

Art. 3
In: Schlechtriem, Peter / Schwenzer, Ingeborg / Schroeter, Ulrich
(eds.) Kommentar zum UN-Kaufrecht C.H. Beck, Helbing
Lichtenhahn (2019)

MünchKomm/ Harm Peter Westermann

Westermann Munich Commentary on the German Civil Code(Münchener
Kommentar zum BGB)
7th edition
Cited in:

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Bamberger/Roth/Sae H G Bamberger, H Roth

nger Art.3
Saenger In: H G Bamberger, H Roth (eds.), Kommentar zum
Bürgerlichen Gesetzbuch
Cited in

Dicey, Morris and Dicey, Morris, & Collins (2008)

Collins on the Conflict The Conflict of Laws.
of Laws In: 7th Edition
Cited in para.:

Comments by Summary Records of the First Committee, 4th Meeting, 13

Rognilen March 1980

UN Doc. A/CONF.97/C.1/SR.4

Comments by Mr Rognlien for Norway and Mr Plantard for France

Available at: [Link]

[Link]/files/ac_op/CISG_Advisory_Council_Opinion_No_16.p
df

Cited in paras.:

William P. Johnson William P. Johnson

Understanding Exclusion of the CISG: A New Paradigm of

Determining Party Intent

In: Buffalo Law Review, Volume 59, Issue 1, Article 5

Available at:
[Link]
1/5

Cited in paras.:

AC Opinion 16
CISG Advisory Council

CISG Advisory Council Opinion No. 16: Exclusion of the CISG under
Article 6 Rapporteur: Spagnolo, Lisa

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Available at: [Link]

Cited in paras.:

Honnold
John O Honnold

Uniform Law for International Sales under the 1980 United Nations
Convention
3rd edition (1999)
Cited in para.: 149

Małgorzata Pohl- Małgorzata Pohl-Michałek

Michałek CISG Exclusion during Legal Proceedings
In: The Chinese Journal of Comparative Law, Volume 11, Issue 1, April
2023,
Cited in para.:

B. Zeller
Bruno Zeller
Determining the Contractual Intent of Parties under the CISG and
Common Law - A Comparative Analysis
In: European Journal of Law Reform, Vol. 4, No. 4, Kluwer Law
International 2002.

Fransworth Allan Fransworth

In: Bianca-Bonell Commentary on the International Sales Law,

Giuffrè: Milan (1987) 95-102

Bulko Natallia Bulko

CISG and Auctions: Interpreting ‘Auction’ under Article 2(b)

In: The Maritime Law Blog

Pereira Cesar Pereira

Auction and Auction-like Processes under the CISG: Two peas in a

pod?

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In: Chartered Institute of Arbitrators (CIARB)

Pereira Cesar Pereira

CISG and Government Contracts: Regulating International Public

Procurement

In: Daily Jus

Redfern & Hunter Blackaby KC, Nigel, Constantine Partasides, and Alan Redfern

International Arbitration. 7th ed

In: Redfern and Hunter on International Arbitration, 7th Edition (2022;

online edn, Oxford Academic)

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STATEMENT OF FACTS
The Parties to the present arbitration are GreenHydro Plc. (“CLAIMANT”), a corporation
involved in green energy infrastructure development, and Equatorianian RenPower
(“RESPONDENT”), promoting renewable energy projects (together, “Parties”).

3 January 2023 RESPONDENT issued a Request for Quotation (“RFQ”).

17 July 2023 The Parties concluded a Purchase and Service Agreement (“PSA”).

27 December 2023 RESPONDENT’s previous CEO, Michelle Faraday, informed

CLAIMANT that she would be replaced by Henry la Cour, who was
skeptical of hydrogen investments.

28 February 2024 CLAIMANT delayed the submission of its Final Plans by 28 days and
did not submit EAmmonia Plans in it.

29 February 2024 RESPONDENT terminated the PSA with immediate effect, citing
CLAIMANT’s delayed submission and asserting that the project no
longer aligned with Equatoriana’s energy strategy.

25 May 2024 RESPONDENT proposed, without prejudice, a price reduction of at

least 15%, as a condition for resuming discussions. CLAIMANT
rejected the proposal, asserting the terms were untenable.

20 July 2024 CLAIMANT submitted a written statement indicating that negotiations

had failed and initiated arbitration proceedings without fulfilling
mediation.

31 July 2024 CLAIMANT filed the Request for Arbitration (“RfA”).

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SUMMARY OF ARGUMENT

ISSUE 1

RESPONDENT argues that CLAIMANT’s arbitration request is inadmissible for failing to comply
with the PSA’s mandatory mediation requirement, as stipulated under Equatorianian law.
CLAIMANT’s premature arbitration disregards contractual and international legal principles,
reflecting procedural misconduct and bad faith. The Tribunal must stay the arbitration and enforce
mediation to uphold procedural integrity and prevent CLAIMANT from benefiting from its breach.

ISSUE 2

RESPONDENT argues Ex. C7 is inadmissible due to irrelevance, confidentiality breach, and the
Without Prejudice privilege. Ex. R3, however, is admissible under the Independent Source
Doctrine, Doctrine of Attenuation, and Art. 9.2 of the IBA Rules, as it is lawfully obtained and
relevant. CLAIMANT’s objections lack a strong legal basis. The Tribunal should exclude Ex. C7
and admit Ex. R3 to ensure fairness and a just resolution.

ISSUE 3

The Agreement is not governed by the CISG as it primarily involves services rather than the sale
of goods. The obligation of the CLAIMANT center on services like engineering and maintenance,
not the sale of physical components. Additionally, the PSA is deeply tied to Equatoriana's domestic
context, with significant reliance on local infrastructure and regulations. Therefore, the PSA should
be governed by Equatoriana’s domestic laws, not the CISG.

ISSUE 4

RESPONDENT has validly excluded the CISG from the PSA. The PSA contains a choice of law
clause specifying the Law of Equatoriana, which excludes the CISG under Art. 6 of the
Convention. Furthermore, the 2022 amendment to the Model Contract proves RESPONDENT’s

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intent to explicitly exclude the Convention. CLAIMANT’s failure to object to these changes and its
agreement to the PSA’s governing law clause confirms mutual consent to exclude the CISG,
making the Law of Equatoriana applicable.

ISSUE 1. CLAIMANT HAS FAILED TO RESPECT THE AGREED DISPUTE

RESOLUTION MECHANISM, RENDERING ITS ARBITRATION REQUEST
INADMISSIBLE.
A. Mediation is a mandatory precondition to arbitration and must be respected.
1. At the heart of the procedural dispute lies a fundamental principle, the mandatory nature of
mediation as a precondition to arbitration. CLAIMANT’s attempt to bypass this essential step not
only contravenes the explicit terms of the PSA but also disregards well-established legal principles
that uphold the sanctity of multi-tiered dispute resolution clauses. The deliberate circumvention
by CLAIMANT.
2. CLAIMANT has failed to respect the agreed dispute resolution mechanism, rendering its arbitration
request inadmissible as the PSA explicitly mandates mediation as a precondition to arbitration,
which CLAIMANT wrongfully bypassed [I]. The UNCITRAL Model Law upholds the
enforceability of such mediation prerequisites, reinforcing RESPONDENT’s stance [II].
CLAIMANT premature arbitration undermines RESPONDENT’s good faith efforts to resolve the
dispute amicably [III]. The Tribunal must stay proceedings and enforce mediation to uphold
contractual and procedural integrity [IV].

I. The PSA Unambiguously Mandates Mediation as a Precondition to Arbitration.

3. CLAIMANT’s contention that mediation is not a condition precedent to arbitration is a blatant
misrepresentation of the PSA's terms. Art. 30 explicitly states that disputes "shall first" be referred
to in mediation and only "finally" resolved through arbitration [Ex. C2, Art. 30, p. 12]. The use of
these terms leaves no room for CLAIMANT’s deliberate attempts to bypass this sequence. Their
argument contradicts the very principle of contractual interpretation that they advocate, respect
for the express language of the agreement [Cables case].
4. CLAIMANT’s argument that RESPONDENT’s alleged refusal to mediate justifies their direct leap to
arbitration is equally unfounded. By acknowledging RESPONDENT’s willingness to engage in
discussions, as evidenced in their own memorandum [MfC, p. 2, para 4], CLAIMANT admits that
mediation was a viable path. Their insistence on sidestepping mediation reflects an opportunistic
disregard for agreed dispute resolution mechanisms, not an unavoidable necessity [Products case].

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II. The UNCITRAL Model Law reinforces the enforceability of Mediation Prerequisites.
5. CLAIMANT’s disregard for the pre-arbitration mediation clause is not only a breach of the PSA but
also a violation of international legal norms. Art. 14 of the Model Law on Mediation obligates
parties to adhere to mediation clauses, barring arbitration until mediation has been attempted [ICC
Case No. 6276]. By unilaterally initiating arbitration, CLAIMANT has undermined this widely
recognized legal framework and violated procedural fairness.

III. CLAIMANT’s premature initiation of Arbitration undermines RESPONDENT’s

good faith efforts.
6. CLAIMANT’s assertion that RESPONDENT demonstrated bad faith by not pursuing mediation is
factually and legally unsound. It was CLAIMANT who dismissed RESPONDENT’s without-prejudice
offers, a clear demonstration of RESPONDENT’s openness to dialogue [PO2, p. 55, para. 24].
CLAIMANT’s unwillingness to engage in collaborative resolution, coupled with their aggressive
initiation of arbitration, demonstrates a blatant disregard for good faith principles [ibid.].
7. Contrary to CLAIMANT’s assertions, RESPONDENT has repeatedly shown a willingness to mediate,
as evidenced by the PSA, the documented communications, and their adherence to the agreed
dispute resolution process [Bialowans case; Ex. R1, p. 29]. Further, the principle of good faith
demands that an obligation of good faith takes precedence over any uncertainty in procedure
[Group Rail case]. Thus, CLAIMANT’s actions characterized by haste and self-serving disregard for
the contractually agreed sequence of mediation followed by arbitration established malafide
intentions on their part, rendering the dispute non-arbitrable [India Insurance case].

IV. Tribunal should stay proceedings and enforce Mediation as the first step.
8. The Tribunal has both the power and obligation to enforce the agreed preconditions to arbitration.
By staying these proceedings, the Tribunal would uphold the sanctity of multi-tier dispute
resolution clauses, which are widely recognized in international arbitration [ICC Case No. 6276].
9. Allowing CLAIMANT’s arbitration request to proceed without fulfilling the mediation prerequisite
would set a dangerous precedent, undermining the enforceability of contractually agreed
mechanisms [Aiton case; Hooper case]. The Tribunal must prioritize procedural integrity over
CLAIMANT’s attempts to circumvent contractual obligations.

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B. CLAIMANT’s reliance on the UNCITRAL Model law on Mediation is misplaced and

unfounded.
10. CLAIMANT’s reliance on the UNCITRAL Model Law on Mediation is misplaced, as they failed to
initiate mediation despite clear procedural requirements. [I]. The FAI provides a clear mediation
process, yet CLAIMANT bypassed it for premature arbitration. CLAIMANT’s use of threats
undermines their argument of good faith. [II]. They used threats instead of cooperation,
dismissing RESPONDENT’s efforts. Consequently, CLAIMANT’s procedural misconduct should
preclude their reliance on the UNCITRAL Model Law [III]. CLAIMANT’s own actions are the
reason for their business losses [IV].

I. CLAIMANT failed to initiate Mediation despite clear procedural mechanisms.

11. The UNCITRAL Model Law on Mediation enforces pre-arbitration mediation clauses only when
the parties make genuine efforts to initiate the mediation process and requires parties to adhere to
their contractual obligations by taking active steps toward mediation [Art. 14, UNCITRAL Model
Law on Mediation].
12. The FAI provides a straightforward and accessible pathway for initiating mediation, yet CLAIMANT
chose to bypass this entirely [Rule 2, FAI Rules on Mediation]. Had they been genuinely interested in
resolving the dispute, filing such a request would have demonstrated their commitment to amicable
settlement. Instead, they opted to escalate the matter prematurely to arbitration while pointing
fingers at RESPONDENT, a tactic that undermines the integrity of their case [ICC Case No. 6276].

II. CLAIMANT’s use of threats undermines their argument of Good Faith.

13. CLAIMANT resorted to escalating the matter rather than fostering a collaborative atmosphere [PO1,
p. 55, para. 24]. This coercive approach is antithetical to the principles of good faith and
cooperation embedded in both the PSA and international arbitration standards [Methanex case].
14. RESPONDENT, on the other hand, consistently displayed a willingness to engage in dialogue,
including through informal communications [Ex. C7, p. 20]. CLAIMANT’s dismissal of these efforts
as inadequate further exposes their intent not to mediate but to manipulate the process for strategic
gain. Their claim that mediation would be “pointless” rings hollow when viewed alongside their
failure to extend even the most basic invitation to mediate [MfC, p. 2, para 4].

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III. CLAIMANT’s procedural misconduct should preclude their reliance on the

UNCITRAL Model Law.
15. CLAIMANT’s reliance on Model Law is a thinly veiled attempt to legitimize their procedural
violations. The Model Law enforces mediation clauses precisely to avoid the scenario CLAIMANT
has created: a party unilaterally bypassing mediation and escalating a dispute prematurely [Art. 14,
UNCITRAL Model Law on Mediation]. By failing to honor their obligations under the PSA,
CLAIMANT has deprived both parties of the opportunity to explore resolution through mediation,
as originally agreed [Ex. C2, Art. 30, p. 12].
16. If CLAIMANT had respected the procedural sequence outlined in the PSA, they would have
recognized that mediation is not merely a formality but a crucial step in resolving disputes
effectively and efficiently [White case]. Instead, their actions reflect a calculated strategy to
circumvent their obligations, shifting the blame onto RESPONDENT’s while disregarding the
agreed framework [Ex. R2, p. 31]. CLAIMANT’s failure to initiate mediation, their reliance on
threats over collaboration, and their misuse of the UNCITRAL Model Law reflect a pattern of
bad faith and procedural manipulation. The Tribunal should exercise its power and reject
CLAIMANT’s arguments and reaffirm the mandatory nature of pre-arbitration mediation [ICC Case
No. 6276]. CLAIMANT must not be permitted to benefit from their own procedural failures while
undermining the agreed dispute resolution process.

IV. CLAIMANT’s actions are responsible for their business losses.

17. CLAIMANT mischaracterizes their threat of arbitration as an “invitation to mediate” [PO2, p. 55,
para. 24]. This distortion reflects a deliberate attempt to place undue blame on RESPONDENT while
concealing their own unwillingness to follow the agreed-upon dispute resolution process.
RESPONDENT will show how CLAIMANT is responsible for their own business losses and quash
this outrageous allegation.
18. First, mediation, as outlined in the PSA, is less expensive and more efficient than arbitration.
CLAIMANT’s decision to bypass mediation and proceed directly to arbitration undermines their
own argument about minimizing costs and mitigating losses [RfA, p. 6, para. 25]. If CLAIMANT
were genuinely concerned about preserving their business opportunities and financial stability, they
would have initiated mediation under the FAI rules, which provides a quicker, cost-effective
resolution pathway [FAI Rules on Mediation].
19. Second, CLAIMANT’s business troubles stem not from RESPONDENT’s actions but from their own
bad conduct and contractual breaches. CLAIMANT failed to adhere to agreed timelines, unilaterally

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altered key project components (e.g., switching from P2G to Green Ammonia), and neglected
critical obligations under the PSA [ARfA, p. 24, paras.8,11]. These breaches, coupled with
CLAIMANT’s disregard for procedural fairness, have eroded their credibility and reliability as a
business partner. Any future reputational damage or loss of business opportunities is a direct
consequence of CLAIMANT’s own behaviour, not RESPONDENT’s insistence on compliance with
the agreed dispute resolution framework.
20. Finally, CLAIMANT’s argument that RESPONDENT’s enforcement of procedural obligations has
worsened their financial situation is a blatant attempt to weaponize their own procedural
misconduct. By ignoring mediation and escalating the dispute to arbitration, CLAIMANT has
unnecessarily prolonged the resolution process and incurred additional costs, all of which could
have been avoided through adherence to the PSA [Ex. C2, Art. 30, p. 12].

C. EQUATORIANIAN LAW IS THE CLOSEST AND MOST REAL CONNECTION.

21. Equatorianian law governs the PSA and its dispute resolution framework, making CLAIMANT’s
attempt to bypass it legally flawed. Equatorianian law dominates the contractual framework and
governs the arbitration agreement [I]. It mandates pre-arbitration mediation, enforcing multi-tier
dispute resolution clauses to uphold party autonomy. Equatorianian law and the validation
principal demand enforcing pre-arbitration mediation [II]. Danubia’s role is limited to procedural
matters and does not override Equatorianian law. Hence, the selection of Danubia as the seat of
arbitration would not affect the procedural impropriety [III].

I. Equatorianian Law dominates the Contractual Framework and governs the Arbitration
Agreement.
22. Equatorianian law is indisputably the governing law of the PSA, forming the backbone of the
contractual obligations, including the dispute resolution clause. The negotiations, performance,
and disputes arising under the PSA are rooted in Equatorianian jurisdiction, making it the law with
the “closest and most real connection” [Ex. C2, Art. 4, p. 11]. The PSA was executed under
Equatorianian regulatory requirements, including the renewable energy sector’s stringent
obligations, such as local content requirements [Ex. C2, Art. 29, p. 12]. These provisions directly
impacted the contractual relationship and shaped its dispute resolution mechanism. This
undeniable link between Equatorianian law and the PSA renders CLAIMANT’s attempts to sideline
its application both misguided and legally untenable.
23. The principle in Sulamérica case is clear, the law governing the arbitration agreement must have the
closest and most real connection to the contractual framework. Here, Equatorianian law governs

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 NMIMS KIRIT P. MEHTA SCHOOL OF LAW

the PSA and therefore governs the arbitration clause, including the mandatory mediation
precondition. The reliance on Danubia as the seat of arbitration to escape procedural compliance
is not only legally flawed but a desperate attempt to subvert the agreed obligations [Ex. C2, Art.
30, p. 12].

II. Equatorianian Law and the validation principal demand enforcing Pre-Arbitration
Mediation.
24. The decision in Westbridge case reinforces that the governing law of the arbitration agreement takes
precedence, especially in enforcing procedural preconditions. The express choice of Equatorianian
law in the PSA reflects the parties' intent to prioritize adherence to its legal standards, including
recognizing mediation as a condition precedent to arbitration [Ex. C2, Art. 29, p. 12].
Equatorianian law provides a clear framework for enforcing multi-tier dispute resolution clauses.
Courts in Equatorianian consistently uphold mediation preconditions, recognizing their binding
nature as a fundamental part of party autonomy [Ex. R1, p. 30, para. 9]. Ignoring this would not
only invalidate the agreed dispute resolution framework but also set a dangerous precedent for
disregarding procedural obligations under international arbitration norms.

III. The selection of Danubia as the seat of arbitration would not affect procedural
impropriety
25. CLAIMANT’s reliance on Danubia as the seat of arbitration is a distraction designed to deflect from
their procedural misconduct [RfA, p. 6, para. 24]. The procedural laws of Danubia govern the
arbitration process once initiated but do not erase the preconditions agreed upon by the parties
under Equatorianian law. The Tribunal’s authority flows from the arbitration agreement embedded
within the PSA, and Equatorianian law governs that agreement in its entirety [Ex. C2, Art. 30, p.
12]. The precondition of mediation, as outlined in Art. 30 of the PSA, must be enforced before
arbitration can proceed. CLAIMANT’s attempt to conflate the seat of arbitration with the law
governing the arbitration agreement reflects a deliberate misunderstanding of basic international
arbitration principles.
26. The Tribunal must reject CLAIMANT’s diversionary tactics and reaffirm that Equatorianian law,
not the seat of arbitration, governs the preconditions of the arbitration agreement. The principle
of closest and most real connection and validation demand strict adherence to the PSA’s mediation
precondition [Sulamérica case]. Allowing CLAIMANT to exploit procedural technicalities would
reward bad faith and set a perilous precedent for international arbitration. The Tribunal must

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enforce the agreed sequence of mediation before arbitration to preserve the integrity of the dispute
resolution process and the rule of law [Investment case].
27. CLAIMANT’s failure to comply with the agreed dispute resolution mechanism renders their
arbitration request inadmissible. By skipping the mandatory mediation requirement under the PSA,
they have disregarded both contractual obligations and established international legal principles.
Their premature initiation of arbitration not only undermines procedural integrity but also
dismisses RESPONDENT’s good faith efforts to resolve the dispute amicably. Ignoring these
obligations would set a dangerous precedent, weakening the enforceability of multi-tiered dispute
resolution clauses. To uphold party autonomy and preserve the integrity of the arbitration process,
the Tribunal must enforce mediation as the necessary first step before arbitration can proceed.

ISSUE 2: THE ARBITRAL TRIBUNAL SHOULD EXCLUDE EXHIBIT C7 AND

ADMIT EXHIBIT R3
28. RESPONDENT submits Ex. C7 inadmissible due to irrelevance and breach of confidentiality [A].
Ex. C7 falls within the ambit of ‘Without prejudice’ privilege [B]. Inapplicability of Transparency
obligations for admission of Ex. C7 [C]. Admissibility of Ex. R3 under Doctrine of Independent
source and Attenuation [D]. Admissibility of Ex. R3 under Art. 9.2 of the IBA Rules [E]. Ethical
objections under Danubian law do not warrant exclusion of Ex. R3 [F].

A. Ex. C7 must be excluded due to Irrelevance and Confidentiality breach.

29. CLAIMANT has accused RESPONDENT of improperly attempting to exclude Ex. C7 but has failed
to support this claim with any evidence or arguments [MfC, p. 3, para. 6]. However, RESPONDENT
will demostrate the Tribunal that Ex. C7 is inadmissible due to lack of relevance and materiality
[I], and Ex. C7 contains confidential and sensitive information [II].

I. Ex. C7 lacks relevance and materiality and must be excluded.

30. RESPONDENT asserts that Ex. C7, created during settlement negotiations, is inadmissible under
Art. 9.2(a), as it does not address the key issues of this dispute, like the validity of the contract
termination or CLAIMANT’s repeated breaches [IBA Rules]. Instead, it only states the settlement
discussions and an offer to negotiate, which do not contribute to resolving the dispute [Ex. C5, p.
18, para. 15; PO2, p. 55, para. 23]. Admitting this document will waste the Tribunal’s time and
resources, violating principles of procedural economy and proportionality under Art. 9.2(g) [IBA
Rules].

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31. CLAIMANT’s reliance on Ex. C7 is a diversion from its own failures, including unilaterally switching
from P2G to Green Ammonia without RESPONDENT's consultation, reducing local content from
50% to almost 30% and violating contractual obligations [Ex. C5, p. 18, para. 12; RfA, p. 26, para.
9]. CLAIMANT also failed to meet critical deadlines and submitted incomplete plans, yet demanded
50% payment which was due on February 10, prioritizing financial gain over fulfilling their
contractual obligations, clearly violating the principle of quantum meruit, which allows restitution
only for completed work that meets contractual standards [PO2, p. 54, para. 23].
32. Ex. C7 merely reflects RESPONDENT's efforts to comply with regulations and engage in settlement
discussions, with the price reduction mentioned being a legitimate action tied to regulatory
requirements [Ex. C5, p. 18, para. 15]. RESPONDENT's transparent approach contrasts with
CLAIMANT's decision to bypass mediation and escalate the dispute to arbitration.
33. Therefore, Ex. C7 should be excluded as it is irrelevant, does not address material issues, and
serves as a distraction from CLAIMANT's non-performance.

II. Ex. C7 contains confidential and sensitive information and should be excluded.
34. Ex. C7 contains sensitive commercial information, including details about plant usage, costs, and
government strategies, which are protected under Art. 9.2(e) and 9.2(f) [IBA Rules; Ex. C7, p. 20].
Disclosing this document would violate RESPONDENT's confidentiality rights and discourage
open, transparent discussions in future settlement negotiations [Redfern & Hunter, Chp. 2.163]. The
admission of Ex. C7 would not only compromise trust between the parties but also undermine the
integrity of arbitration as a dispute resolution mechanism [Biwater case].
35. Despite RESPONDENT's repeated efforts to maintain the contractual relationship, including
accommodating CLAIMANT’s unauthorized switch to Green Ammonia, CLAIMANT failed to meet
contractual deadlines and deviated from agreed terms. These actions significantly disrupted
performance of the contractual obligations, jeopardizing RESPONDENT's Net-Zero 2040 goal
[RfA, pp. 3,4, para.2]. CLAIMANT’s assertion that the delays would not affect the final handover is
speculative and unsupported by evidence leading to termination which is justified if there is non-
performance that materially affects contractual interests [Construction case].
36. Thus, the Tribunal should reject Ex. C7 as it is irrelevant to the key issues in the dispute and
contains highly sensitive and confidential information.

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B. Admissibility Ex. C7 is protected by ‘Without prejudice’ privilege and should be

excluded.
37. CLAIMANT might assert that Ex. C7 is not protected by the Without prejudice privilege. However,
RESPONDENT will demonstrate the Tribunal that Ex. C7 is protected under the without prejudice
privilege [I]. Ex. C7 does not fall under any exceptions of Without prejudice privilege [II]. Ex.
C7 is protected by privilege and must be excluded [III].

I. Ex. C7 is protected under the Without prejudice privilege.

38. RESPONDENT firmly asserts that CLAIMANT’s attempt to admit Ex. C7 into evidence is entirely
unjustified. The document is protected by the principle of Without prejudice privilege [Ex. C7, p.
20], as it represents RESPONDENT’s attempt to initiate settlement discussions, which falls within
the scope of the privilege [Mc Taggart case]. Admitting the document would violate the principles
of procedural fairness and set a negative precedent, discouraging open and honest settlement
negotiations in the future [Cutts case].
39. Following the termination of the contract, RESPONDENT sent Ex. C7 to initiate negotiations, as
requested by CLAIMANT [PO2, p. 54, para. 23]. It was sent post the meeting between both parties,
wherein the price deduction along with the necessity of the government’s support for the project
was discussed [Ex. C5, p. 18, para. 15; PO2, p. 55, para. 23]. These discussions occurred post-
termination, clearly demonstrating intention to negotiate for re-establishment of the contract.
Despite the meeting lasting only 30 minutes, RESPONDENT tried to engage in discussions by
voluntarily sending the offer involving sensitive and confidential information, such as government
plans and competitive market rates [Ex. C7, p. 20]. While CLAIMANT blatantly rejects it and directly
initiates arbitration, along with the submission of Ex. C7 as evidence for their own benefit.
40. The parties are obligated to safeguard the confidentiality of information disclosed during
negotiations. The principle of equity established mandates that any party receiving confidential
information during negotiations must not misuse such information to the detriment of the
disclosing party [Seager case], which is completely violated by CLAIMANT.
41. CLAIMANT’s allegation that RESPONDENT is improperly attempting to exclude Ex. C7 [MfC, p. 3,
para. 6] is entirely unfounded. On the contrary, as established in the case of Rush & Tompkins,
efforts to settle disputes are protected under the without prejudice privilege. Thus, Ex. C7 will be
protected under the without prejudice privilege.

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II. Ex. C7 does not fall under any exceptions of Without prejudice privilege.
42. Ex. C7 is confidential, protected by the principle of "Without prejudice privilege," which shields
negotiation communications [Cutts case; M/s Peacock case]. Submitting Ex. C7 as evidence before
the Tribunal is unauthorized and is a violation of the privilege [ICC Case No. 6653]. If CLAIMANT
asserts that Ex. C7 falls under the exceptions that would permit a Without prejudice offer to be
included as evidence then, the assertion is unfound. Therefore, its inclusion as evidence is entirely
unjustified.
43. Considering potential exceptions CLAIMANT may rely upon, Ex. C7 cannot be admitted as
evidence. The recognized exceptions to the Without prejudice privilege fall into five categories
[Unilever case]. The categories are: (1) when the issue between parties is whether a settlement
agreement was reached based on the Without prejudice offer [Tomlin case]; (2) when one party's
statement led the other to rely on and act upon it, even in the absence of an express agreement,
potentially giving rise to estoppel [Hodgkinson case]; (3) when excluding offer would conceal perjury,
blackmail, or other serious misconduct [Fazil case]; (4) when negotiation evidence is used to explain
delays or apparent agreements [Walker case]; and (5) when the contention is whether a party
attempted to mitigate their losses through settlement [Muller case].
44. From the case at hand, none of these exceptions apply here. There is no evidence of a concluded
agreement between the parties, and in the absence of such an agreement, no contention regarding
its existence can arise; as CLAIMANT did not rely on the offer, or act in furtherance of it, but
instead rejected it outright [PO2, p. 55, para. 24]. Additionally, Ex. C7 contains no statements
suggesting perjury, blackmail, or misconduct. Furthermore, the offer does not address delays or
any apparent agreement between the parties. Lastly, there is no indication that RESPONDENT
sought to mitigate its losses through this settlement offer [Ex. C7, p. 20]. CLAIMANT has not
proved that any of these exceptions are applicable on Ex. C7 for its admission [MfC, p. 3, para. 6].
45. Thus, the Tribunal should exclude Ex. C7 as evidence from the record as it is protected under the
ambit of the without prejudice privilege and none of the established exceptions apply to it.

III. Ex. C7 is protected by privilege and must be excluded

46. Under Art. 9.2 (b), which excludes legally privileged evidence, RESPONDENT asserts Ex. C7 to be
protected under the without-prejudice privilege [IBA Rules]. This protection is further supported
by Art. 9.4 (b), which protects documents and communications specifically created for negotiation
purposes [Ibid]. Ex. C7, as part of ongoing settlement discussions, is covered under these
protections.

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47. Ex. C7 is a document created for initiating the negotiation process as agreed by CLAIMANT [MfC,
p. 2, para. 3]. Thus, the document represents a genuine attempt to find common ground, and its
disclosure would undermine confidentiality, which is essential for settlement discussions
[Bombardier case].
48. Additionally, for a document to be waived of its without prejudice privilege, it can only be done at
the consent of both the parties [Chairman case]. RESPONDENT here denies the waiver of the
privilege and thus, CLAIMANT’s attempt to use Ex. C7 as evidence is clearly impossible. And the
privilege is further supported by RESPONDENT’s statements within the document were not
ultimatums or coercive tactics, but rather RESPONDENT’s willingness to negotiate. Admission of
Ex. C7 would violate Art. 9.2(b) by breaching its legally privileged status and contravening Art.
9.2(g), which prioritizes procedural economy and proportionality [IBA Rules].
49. Thus, the Tribunal must exclude Ex. C7 from evidence to preserve the integrity of the settlement
process, protect privileged communications, and uphold the fairness and confidentiality
guaranteed under the IBA Rules.

C. Inapplicability of Transparency obligations to the admission of Ex. C7

50. CLAIMANT might assert that under the Mauritius Convention the Ex. C7 is admissible. However,
RESPONDENT will show that the transparency obligations do not support the admission of Ex.
C7 [I]. Mauritius Convention on Transparency inapplicable in this contractual disputes [II].

I. Transparency obligations do not support the admission of Ex. C7

51. RESPONDENT, as a fully state-owned entity of Equatorianian, acknowledges its obligations under
the Mauritius Convention on Transparency and the UNCITRAL Rules on Transparency [RfA, p.
3, para. 2; OAD, p. 34, para. 5]. However, these transparency commitments do not support the
admission of Ex. C7. While Equatorianian law has publicly expressed its intent to promote
transparency in arbitration [OAD, p. 35, para. 1], such commitments are not against the need to
protect confidential and privileged communications.
52. Art. 7.2 explicitly provides exceptions to disclosure requirements, including the protection of
business secrets, legally privileged information, and data, which if released will harm procedural
fairness or obstruct law enforcement [UNCITRAL Rules on Transparency]. Ex. C7, created during
settlement discussions, falls within these exceptions as it contains sensitive information regarding
RESPONDENT’s negotiation strategies, pricing, and government plans, that is protected under Art.
9.2(b), 9.2(e), and 9.2(f) [IBA Rules].

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53. The transparency obligations under the Mauritius Convention are not designed to compromise
the confidentiality of sensitive negotiation materials, the principles of transparency must be
balanced with fairness and confidentiality, especially when the proceedings involve state-owned
entities or sensitive settlement talks [EDF case].
54. Thus, RESPONDENT’s request to exclude Ex. C7 is fully aligned with its obligations under the
Mauritius Convention and the UNCITRAL Rules on Transparency.

II. Inapplicability of the Mauritius Convention on Transparency in this contractual

dispute
55. The Mauritius Convention on Transparency primarily applies to disputes arising from investment
treaties [Art. 1, Mauritius Convention]. Specifically, applies to arbitration conducted between an
investor and a State or regional economic integration organization under an investment treaty [Art.
1(1), Mauritius Convention].
56. In the present case, however, the dispute arises not from an investment treaty but from a
commercial contract between a state-owned entity (RESPONDENT) and a private party
(CLAIMANT). Since this is a contractual dispute and not an investment treaty arbitration, the
transparency obligations stipulated under the Mauritius Convention do not extend to this case
[Kaufmann-Kohler]. And to hold otherwise would result in an overextension of the rule, effectively
granting retroactive confidentiality to commercial contracts, which is inconsistent with the intent
and purpose of the convention [West London Pipeline case]. Therefore, the transparency framework
under the Mauritius Convention does not apply here, and RESPONDENT's effort to maintain the
confidentiality of Ex. C7, aligns with its contractual obligations.
57. Thus, while RESPONDENT adheres to the general principles of transparency as outlined in the
Mauritius Convention, this does not require the disclosure of Exhibit C7. And thus, the Tribunal
should exclude Exhibit C7 to uphold the integrity of contractual confidentiality.

D. Admissibility of Ex. R3 under Doctrine of Independent source and Attenuation.

58. CLAIMANT asserts that RESPONDENT has illicitly gained the Ex. R3, by means they, themselves
are not sure [MfC, p. 3, para. 9]. However, RESPONDENT is sure that Ex. R3 is admissible with
the support of Independent source Doctrine [I]. Mauritius Convention on Transparency
inapplicable in this Contractual Disputes [II].

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I. Application of the Independent source doctrine to the admissibility of Ex. R3

59. RESPONDENT submits that Ex. R3 should be admitted into evidence despite allegations of
improper acquisition. CLAIMANT concedes that the document was "most likely obtained in the
course of an illegal criminal investigation" [MfC, p. 6, para. 8]. However, the Independent Source
Doctrine permits the admission of evidence if it is later obtained through lawful means, even if
initially acquired improperly [Stratton; Nix case].
60. While the Exclusionary Rule generally prohibits unlawfully obtained evidence, its application is
limited in arbitration, where tribunals prioritize fairness and efficiency [Hazron Maira]. Here, Ex.
R3, a privileged document containing CLAIMANT’s legal advice, was originally linked to a criminal
investigation into Mr. Deiman [Ex. C8, p. 36, para. 5]. However, RESPONDENT had no direct
involvement in any unlawful acquisition and obtained the document through third-party sources,
weakening any alleged misconduct link [New Jersey case].
61. Arbitral tribunals have broad discretion to assess admissibility, ensuring procedural integrity
[Siemens AG case]. RESPONDENT acted in good faith by transparently disclosing Ex. R3, aligning
with principles of fairness and due process. Since the document was independently sourced and
lawfully separated from any alleged misconduct, its exclusion would unjustly hinder the tribunal’s
ability to consider material and relevant evidence [Larry E. Holtz].
62. Thus, RESPONDENT respectfully requests the admission of Ex. R3 under the Independent Source
Doctrine to uphold fairness, transparency, and the integrity of the arbitration process.

II. Admissibility of Ex. R3 under the Doctrine of Attenuation.

63. RESPONDENT submits that the Doctrine of Attenuation governs the admissibility of Ex. R3, as
any alleged misconduct in its acquisition is too remote to warrant exclusion. The tribunal has broad
discretion to admit evidence, balancing fairness, justice, and procedural efficiency [Siemens case].
64. While concerns exist regarding the origin of Ex. R3, RESPONDENT was not involved in any
misconduct. The evidence was obtained via third-party disclosure related to a criminal
investigation involving Mr. Deiman, distancing RESPONDENT from any impropriety [Tokio Case].
The Doctrine of Attenuation applies when intervening factors, such as time, independent
discovery, or third-party involvement, break the causal link between alleged misconduct and the
evidence [Ceccolini case]. Here, the involvement of independent actors and RESPONDENT’s good
faith use of the document dilutes any initial taint, justifying its inclusion.
65. Arbitrators are not bound by rigid exclusionary rules but must ensure fairness and efficiency
[Sulamérica case]. The Tribunal should recognize that Ex. R3 has been handled transparently and

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used solely for legitimate purposes and as the evidence is obtained in good faith and is relevant to
the dispute, it can be admitted [Sec. 42B, AC Act].
66. In conclusion, the attenuated connection between the alleged misconduct and Ex. R3, combined
with RESPONDENT’s good faith conduct, supports its admissibility. Excluding relevant evidence
would undermine arbitration’s goal of resolving disputes efficiently and fairly. Therefore, the
Tribunal should admit Ex. R3 to uphold justice, fairness, and procedural integrity.

E. Admissibility of Ex. R3 under Art. 9.2 of the IBA Rules.

67. RESPONDENT asserts that Ex. R3 should be admitted under Art. 9.2(a) of the IBA Rules, as it is
relevant and material to the resolution of this dispute. Ex. C7 provides critical insights into
CLAIMANT’s conduct and intent during the performance of the PSA, directly impacting the
determination of whether CLAIMANT breached its contractual obligations [IBA Rules].
68. Excluding Ex. R3 would hinder the tribunal’s ability to assess whether CLAIMANT violated the
PSA, limiting access to key facts necessary for a fair resolution. The Tribunal has discretion to
admit evidence that aids in determining the dispute's core issues, and Ex. R3 meets this standard
[Dallah Case; Methanex case]. CLAIMANT’s contractual performance is central to RESPONDENT’s
defense, making this evidence indispensable to a just decision [Tokio case].
69. Thus, the Tribunal should admit Ex. R3, as it is crucial to evaluate CLAIMANT’s compliance with
the PSA. Excluding it would obstruct a fair and thorough adjudication.

F. Ethical objections under Danubian law do not warrant exclusion of Ex. R3.
70. CLAIMANT may argue that Danubian law’s ethical standards justify excluding Ex. R3, but Ex. R4
clarifies that these protections apply only to attorney-client communications ethically and do not
extend [Ex. R4, p. 33]. CLAIMANT cannot misuse these ethical principles to suppress critical
evidence demonstrating their failure to disclose key facts [Ex. R3, p. 32].
71. RESPONDENT acted in good faith, and there is no evidence of unethical conduct in submitting
Ex. R3. But, CLAIMANT knowingly withheld material information, misleading RESPONDENT
regarding local content in the P2G deal [RfA, p. 26, para. 6]. This intentional delay underscores
CLAIMANT’s bad faith conduct, forcing RESPONDENT to bear the consequences [Ex. C4, p. 15;
RfA, p. 26, para. 9].
72. Transparency is a fundamental principle in arbitration, especially in public interest sectors like
renewable energy, it fosters fairness and trust. Excluding Ex. R3 on ethical grounds would unfairly
shield CLAIMANT from scrutiny and obstruct a just resolution [Metal-Tech case].

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73. Finally, CLAIMANT has failed to prove any specific ethical violation under Danubian law that
would justify exclusion. Their objections remain unsupported and speculative.
74. In conclusion, RESPONDENT respectfully submits that Ex. R3 is admissible under the Independent
source Doctrine, Doctrine of Attenuation, and Art. 9.2 of the IBA Rules. Any alleged misconduct
in its acquisition is too remote, and CLAIMANT’s ethical objections lack merit. Therefore,
RESPONDENT urges the Tribunal to admit Ex. R3.

ISSUE 3: THE CISG IS NOT APPLICABLE TO THE PSA.

A. The sale is not the preponderant part of the PSA under Art. 3(2) of the CISG.
75. The CISG does not apply to contracts where the preponderant part of the seller’s obligations
consists of the supply of services rather than goods [Art. 3(2), CISG]. The service components of
the PSA outweigh the sale, both in substance and cost.
76. The CISG is inapplicable to the PSA, as the agreement primarily concerns services rather than the
sale of goods, making it fall outside the CISG’s scope under Article 3(2) [I]. The PSA’s
predominant obligations involve engineering, installation, and maintenance, which qualify it as a
service contract rather than a sale of goods agreement [II]. Additionally, the contract is deeply
embedded within Equatoriana’s domestic legal and regulatory framework, further excluding the
CISG’s application [III]. The Tribunal must apply Equatoriana law as the governing framework,
ensuring consistency with the contract’s nature and intent [IV].

I. The PSA primarily involves services, not the sale of goods

77. Art. 3(2) of the CISG requires a comprehensive evaluation of the economic substance of the
contract [Art. 2(b), Schlechtriem/Schwenzer]. Here, the financial breakdown of the PSA confirms that
services constitute the preponderant portion. Significant investments in project management,
engineering, and EPC services highlight that these elements, rather than the physical components
of the hydrogen plant, form the essence of the PSA [Ex. C5, p. 17, para. 11].
78. CLAIMANT contends that the economic value of the goods exceeds 50%. However, this alone
cannot determine the applicability of the CISG. The essential criterion must also be considered during
economic comparison of mixed contracts [CISG Case No. 13487]. The service part of the PSA
constitutes a core part of the agreement, ensuring the delivery and functionality of a fully
operational system. Based on the number and consistency of the services to be provided over a
period of one year or more, the value of the services to be provided by CLAIMANT exceeds the
value of goods to be supplied [Prada case].

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79. The obligations of CLAIMANT under the PSA are centred on providing specialized services that would
enable RESPONDENT to operate the hydrogen plant effectively. The service components of
training, engineering, and maintenance are not secondary but central to the agreement [Ex. C1, p.
8, para. 1]. CLAIMANT’s fixation on the sale of the plant’s physical components overlooks the
economic reality: CLAIMANT’s core obligations involve ensuring the hydrogen plant’s design,
installation, and functionality. These obligations, critical to RESPONDENT’s needs, extend far
beyond the mere sale of goods [Ex. C2, Art. 2, p. 13].
80. A significant portion of the PSA's cost is dedicated to project management and engineering
services [Ex. C5, p. 17, para. 11]. These tasks require specialized knowledge and expertise,
distinguishing them from the delivery of goods. The objective of the RESPONDENT was not
merely to purchase a hydrogen plant but to ensure its long-term operation, which relied on
CLAIMANT’s technical expertise. Without proper training and maintenance, the plant would be
inoperative. These services are integral to the contract’s purpose and cannot be considered
secondary to the supplied goods.
81. CLAIMANT’s obligations under the PSA includes assembly, packaging, and other technical services
on-site [Ex. R2, p. 31]. These obligations, requiring active participation, are distinctly service-
oriented. RESPONDENT did not purchase a ready-to-install hydrogen plant; instead, CLAIMANT
was required to perform substantial on-site services.

II. The PSA is primarily driven by EPC services.

82. CLAIMANT argues that the plant was a movable object at the time of contract formation, this
characterization fails to account for the integrated delivery of goods and services that transformed
the plant into an immovable asset upon installation [MfC, para. 32, p. 6]. CLAIMANT’s reliance on
Art. 1(1), CISG and the classification of the plant as “movable goods” disregards the fact that the
plant’s primary utility and value lie in its installed and operational state.
83. The PSA includes extensive engineering, procurement, and construction (EPC) services, such as
site works, installation, and connections [Ex. C5, p. 17, para. 11]. CLAIMANT’s role extended
beyond delivering components to transforming a construction site into a fully operational
hydrogen plant [Ex. C2, Art. 4, p. 10]. EPC services are inherently service-driven, underscoring
the PSA’s focus on services rather than the sale of goods.

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 NMIMS KIRIT P. MEHTA SCHOOL OF LAW

III. Customization and integration are service components.

84. CLAIMANT was tasked with designing and integrating PEM-electrolysis technology tailored to
RESPONDENT’s site-specific conditions [PO2, p. 52, para. 9]. Such extensive customization and
integration reflect a service-oriented agreement [ibid]. Rather than supplying a pre-made product,
CLAIMANT provided a customized solution requiring specialized engineering.
85. Beyond delivering physical components, CLAIMANT ensured the system’s compatibility,
functionality, and seamless integration, which are key indicators of a service-driven agreement. The
extensive customization and technical expertise involved confirm that services, not just goods,
form the core of the PSA.

VI. Mutual intent of parties reflects service-oriented agreement

86. Contrary to CLAIMANT’s assertion, the title of the contract, "Purchase and Service Agreement,"
does not indicate that the sale of goods is the preponderant component of the PSA [MfC, para.
40]. This interpretation overlooks the structure and substantive obligations of the agreement.
87. Obligations under Art. 2 of the PSA does not diminish the significance of the service components,
it reflects the practical necessity of delivering physical components before the performance of
subsequent service-related obligations. The title of the PSA does not transform it into a mere sales
contract [Ex. C2, Art. 2, p. 13].
88. RESPONDENT intended the agreement to be service-oriented, given the turnkey nature of the
project. [Schlechtriem, Art. 3, para. 8; Ferrari, Art. 3, para. 18; MünchKomm/ Westermann, Art. 3, para.
7; Bamberger/Roth/Saenger, Art. 3, para. 8; Grieser, p. 153.] The Convention will not apply, as the sale
of goods element is not at the forefront of the turnkey-agreement.

B. THE PSA DOES NOT MEET THE INTERNATIONALITY CRITERIA UNDER

THE CISG.
89. The PSA is inherently domestic and fails to meet the internationality threshold necessary for
application of CISG [Art. 1(1), CISG]. Upon a bare perusal of the PSA, it is evident that it is
primarily rooted in Equatoriana, with production, delivery, and operational activities localized
within the country. CLAIMANT’s absolute reliance on Equatorian resources and infrastructure
further demonstrates that the PSA falls outside the substantive scope of the CISG.

I. The PSA is domestic in nature for consideration of the extensive use of Equatorian
materials and infrastructure
90. The contributions of the RESPONDENT extended beyond production, encompassing essential
infrastructure and support pivotal to the performance of the PSA. RESPONDENT was to provide

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utilities such as electricity, water, and sewage, which were indispensable for the construction of the
hydrogen plant [Ex. C2, p. 12, Art. 4]. These resources were entirely sourced from Equatoriana,
forming a foundation for the execution of the project.
91. RESPONDENT’s facilitation of regulatory approvals demonstrates their crucial involvement in the
performance of the PSA [RfA, p. 3, para. 7]. The reliance on Equatorian infrastructure and
regulatory support establishes that the agreement is inherently tied to the domestic framework of
Equatoriana

II. The PSA has a strong localised connection with the domestic laws of Equatorian
92. Equatoranian laws govern the PSA as it has the closest connection to the agreement. The closest
connection principle establishes that the proper law of the contract is the law of the country with
which it has its most significant ties [Tomkinson case]. RESPONDENT drafted the PSA with the clear
expectation that the contract would be localized within Equatoriana. The performance of the
PSA—a service-oriented construction project—is centered in Equatoriana, where CLAIMANT’s
principal business operations, through its subsidiary Volta Transformers, were conducted.

III. The lex loci principles establish the application of domestic laws
93. Under the lex loci contractus principle, a contract is governed by the jurisdiction with its closest and
most real connection [Bomython case]. The PSA was formed, executed, and regulated in Equatoriana,
with Volta Transformers handling production, delivery, and infrastructure support [RfA, p. 4, para.
11]. Equatoriana’s regulatory authorities oversee compliance, safety, and public procurement laws,
demonstrating that contractual obligations are primarily carried out within its jurisdiction [Ex. C
5, p. 14 para. 8]. Since governing law is tied to the jurisdiction enforcing contractual obligations,
Equatoriana must govern the PSA [ibid].
94. A contract’s centre of gravity determined by its performance, obligations, and regulatory oversight
dictates its governing law [Tomkinson case]. Presently, the centre of gravity of the PSA is
Equatoriana. The formation, performance, subject matter, and regulatory framework of the PSA
have all taken place within Equatoriana and should therefore be the only legally valid governing
jurisdiction. Equatorianian regulatory authorities oversee critical aspects of the project, including
environmental compliance, safety standards, and the administration of public procurement laws
that directly impact contract execution [RfA, p. 3, para. 7]. Given the depth of Equatoriana’s
involvement, the PSA cannot be severed from its jurisdictional framework without undermining
legal coherence.

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95. The governing law is also determined by the jurisdiction where consideration is exchanged
[Auckland case]. RESPONDENT has already fulfilled its part-payment obligations, demonstrating
that consideration has been conferred in Equatoriana [PO2, p. 53, para. 15].
96. Given that payments represent a material part of contractual performance, the jurisdiction in which
consideration is exchanged gains legal precedence [Dicey's Conflict of Laws]. CLAIMANT ignores
the fact that the entire financial and material foundation of the PSA is embedded in Equatoriana.
97. The Parties entered into the PSA with the principal objective of performance of services, being
33.33% of the contract value, and sale of domestic goods, being 26.70% of the contract value. If
the preponderant part of a contract consists of services, it is indisputably ungovernable by the
CISG. Further, it is clearly infelicitous on the part of the Claimant to try and apply the CISG to a
domestic sale of goods. More than 60% of the contract value is agreed to be outside the scope of
CISG, and therefore is not subject to a law meant to govern international goods transactions.
98. In the present case, the contract breakdown reveals the following:
• Services Component: 33.33% of the contract value is explicitly allocated to services. This
substantial portion immediately raises the question of CISG applicability.
• Goods Component: The remaining 66.66% of the contract pertains to goods. However, a
significant portion of this is not international.
• Domestic Sales Component: 40% of the 66.66% goods component (i.e., 26.7% of the total
contract value) is designated as domestic sales. These domestic sales are clearly outside the
scope of the CISG, as they do not involve international trade between Contracting States.
• International Goods Component: This leaves only 40% (66.66% - 26.7%) of the contract
(approximately) as potentially falling under the CISG.

99. 100. 101. A 102. B 103. C 104. D

105.106. Price 107. Initial 109. Reduction Calculation

110. Final Amount
111. Percentage
Structure 108. Amount Share

112. 113.
1 115. € 118. € 285,000,000119. 100%
116. The 5% reduction from
114. Price 300,000,000 the initial total price.

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117. [(100-5)% of €
300,000,000]

120.121.
2 Domestic 122. € 125. € 80,000,000126. 26.66%
123. 40% of the initial sales
Sales 80,000,000 element.
Element 124. [40% of € 200,000,000]

127.128.
3 Services 129. € 132. € 95,000,000133. 33.33%
130. Proportionate reduction
Element 100,000,000 of 5% from the initial
services element.
131. [(100-5)% of €
100,000,000]

134.135.
4. International
136. € 138. € 110,000,000139. 40%
137. Final amount - Domestic
sale of goods 110,000,000 Sales and Services

[Table 1: Breakdown establishing international sale of goods as ancillary]

99. If the "preponderant part" of the seller's obligations consists of the supply of services, the CISG
does not apply at all, even if the contract also involves the sale of goods. While "preponderant" is
not precisely defined, courts often interpret it in a quantitative sense. [Schlechtriem/Schwenzer, Art.
3(2)]
100. In this scenario, the combined value of the services (33.3%) and the domestic sales of goods
(26.7%) constitute 60% of the total contract value. This combined portion, which is demonstrably
not subject to the CISG, is arguably the "preponderant part" of the seller's obligations.
101. Given that nearly 60% of the contract value is comprised of services and domestic sales, neither
of which fall under the CISG, a strong argument can be made that the "preponderant part" of the
seller's obligations lies outside the scope of the CISG. Therefore, the CISG should not govern this
contract.

IV. The principal place of effective management confirms Equatoriana as the applicable
jurisdiction.
102. Equatoriana is the principal place of management and operations for CLAIMANT, making it subject
to its domestic jurisdiction [Barcelona Case]. CLAIMANT, having acquired Volta Transformers, has

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established a significant operational presence in Equatoriana. Volta plays a crucial role in fulfilling
the PSA, including production, delivery, and infrastructure support [RfA, p. 4, para. 11].
103. A place of business established specifically for the purpose of fulfilling the contract is the relevant
jurisdiction [Gwin case]. The acquisition of Volta transformers by CLAIMANT for the sole purpose
of executing the PSA highlights that Equatoriana is not just an auxiliary location but the principal
place of business. As such, the legal obligations related to this contract are governed by the
domestic laws of Equatoriana.
104. The principal place of effective management ensures that legal obligations align with the
jurisdiction where economic activities are concentrated [Maffezini case]. CLAIMANT cannot
circumvent this principle to avoid the domestic laws of Equatoriana. CLAIMANT being completely
reliant on its Equatorian subsidiary, thereby subjects them to domestic jurisdiction.
C. THE PSA FALLS WITHIN THE EXCLUSION OF ART. 2(b), CISG.
105. CLAIMANT’s contention that online auctions by their nature will not fall under the exclusion of
“auctions” is a blatant ignorance of the provisions of CISG [MfC, p. 6, para. 25].
106. The Parties engaged in this transaction and entered into PSA through a structured reverse auction
process, conducted online, that adhered to predefined bidding rules [RfA, p. 3, para. 3]. CLAIMANT
has conveniently forgotten that online auctions are barred from being governed by the CISG [MfC,
p. 6, para. 25] as Art. 2(b) sets out a very defined and intentional exclusion of the CISG.

I. RfQ qualifies as an online auction excluded under CISG.

107. The transaction was conducted through a competitive bidding process, where all participants
adhered to the structured framework established by the RfQ [Ex. C1, RfQ, p. 9, para. 1]. RFQ
outlined specific rules and requirements that bidders were obligated to meet before they could
even submit their bids. Best bid was determined based on the pre-established evaluation criteria
for securing the contract [ibid]. Auction in question was public in nature, open on an international
scale with no restrictive criteria limiting participation. This distinguishes it fundamentally from a
private sale.
108. This process is the hallmark of an auction, as it embodies the same fundamental characteristics
found in traditional auctions, which are, competitive bidding, predefined rules, and the selection
of the most advantageous bid [Schlechtriem, Art. 2, para. 19] Such features align directly with the
spirit of the exclusion under Art. 2(b) of the CISG. Consequently, this online auction is no
exception and must be excluded from the CISG’s purview [OHG appeal case; OHG case].

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II. Auction will be governed by Equatorian law

109. Auctions have operated under distinct national laws to uphold transparency, fairness, and public
oversight. This distinct nature has led to their deliberate exclusion from the CISG [CISG and
Auctions: Interpreting ‘Auction’ under Article 2(b),]. Online auctions, while modern, are no exception to
this rule [Car auction case; Vegetable auction case]. The online auction [PO2, p. 52, para. 9] was governed
by Equatoriana’s Public Procurement Law [Ex. C1, RfQ, p. 9, para. 8], ensuring compliance with
national policy objectives through mandatory procedures. The governing law for auctions is
typically determined by the jurisdiction of the seller or, as in this case, the buyer regulations [C.
Pereira, CISG and Government Contracts; C. Pereira, auction and auction like processes; horse auction case].
Furthermore, auction sales are governed by the domestic law of the jurisdiction where they take
place [Sec.3(3), Hague Convention 1964; Online photography case]. CLAIMANT’s attempt to impose the
CISG disregards the clear legal boundaries of an already well-regulated system, making its
application not only redundant but entirely inappropriate. [Secretariat Commentary, p. 40].
110. Furthermore, all three states are signatories to the VCLT [PO2, p. 55 para. 31]. As such, any
interpretation of Article 2(b) CISG must adhere to VCLT principles, ensuring that treaty terms are
understood in good faith, based on their ordinary meaning, context, and purpose [Art. 31(1)
VCLT]. Where ambiguity arises, VCLT permits recourse to drafting history and surrounding
circumstances to confirm the intended meaning [Art. 32(a) VCLT]. The CLAIMANT’s attempt
to stretch the CISG’s application to cover an auction-based transaction ignores the clear intent
behind Article 2(b) and undermines established treaty interpretation rules. This argument is not
just flawed—it is directly at odds with the CISG’s carefully crafted exclusions and must be rejected
outright.
111. Thus, online auctions do not merely avoid the application of the CISG, they actively preclude it.
Online auction in this case unequivocally falls within the exclusion under Article 2(b). The
RESPONDENT respectfully submits that this exclusion must be upheld, and the governing law
remains Equatoriana’s Public Procurement Law. To rule otherwise would contravene the clear
intent of the CISG.

ISSUE 4 - PARTIES HAVE VALIDLY EXCLUDED APPLICATION OF THE CISG.

112. RESPONDENT has validly excluded the CISG from the PSA, as the contract’s choice of law
clause expressly selects Equatoriana law, which excludes the CISG under Article 6 [I]. The 2022
amendment to the Model Contract further confirms RESPONDENT’s intent to expressly

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derogate from the CISG’s application [II]. CLAIMANT’s failure to object to these modifications
and its acceptance of the PSA’s governing law clause demonstrate mutual consent to exclude the
CISG [III]. Accordingly, the Tribunal must uphold the parties’ agreement and apply Equatoriana
law exclusively [IV].
RESPONDENT has explicitly excluded the CISG from the PSA
113. According to Art. 6 of the CISG, both parties have the right to exclude the application of the
Convention or derogate from or vary the effect of any of its provisions [Cla. Memo, para 46].
Contrary to CLAIMANTs argument that there is explicit inclusion of the CISG,
RESPONDENT contests the same and justifiably excludes the CISG through an explicit
mention of the Law of Equatoriana [I], including a choice of law clause in the PSA [II] and by
showing sufficient basis of having a clear intent to opt-out [III].
I. Explicit exclusion by mentioning the domestic law under Art. 6
114. Art. 6 of the CISG allows exclusion, derogation or variation from the application of the CISG.
CLAIMANT asserts that RESPONDENT did not expressly exclude the application of the CISG
under Art. 6 [MfC, para. 46]. However, Art. 6 does not stipulate the requirement of express
exclusion of CISG from terms of an agreement. Article 11 of the CISG specifically rejects any
writing requirement and allows a contract to be proved “by any means, including witnesses.”
[CISG, note 3, art. 11] Art. 6 does not require explicit mention of the exclusion of the convention
in a choice of law clause. The drafters of the convention have omitted the inclusion of any
provision regarding the requirement of express language to exclude the CISG. Such express
language is not necessary where the parties have affirmatively and clearly agreed that a domestic
law would control the agreement [American Biophysics case].
115. Reference to the title of a municipal law can be interpreted as having the effect of excluding
CISG [Comments by Rognilen; Doolim Corp. case; Asante Technologies case]. The choice of law clause
unambiguously states that the Law of Equatoriana applies. When there is only one choice of law
option, i.e., the domestic law of the state, and both parties have agreed to the provision, it is
evident that both parties have intended for the Law of Equatoriana to control the agreement
[Zykronic Inc. case]. The parties’ reliance on domestic law during legal proceedings has been taken
as evidence that the reference to the law of a Contracting State in the choice of law clause of the
contract was meant to exclude the CISG. [Rienzi & Sons case; Boiler case]. RESPONDENTs
always intended to use domestic laws. The tender process was also governed by the Public
Procurement Law of Equatoriana. RESPONDENT, in the PSA, has included an express choice-

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of-law clause purporting to choose the laws of a particular jurisdiction, i.e., Equatoriana to
govern the agreement.

II. Presence of choice of law clause excludes applicability of CISG

116. CISG is said to govern contracts for the sale of goods where; a) the parties have places of
business in different nations, and b) the nations are CISG signatories. Additionally, another
requirement for the governance of a contract by the CISG is that the contract should not contain a
choice of law provision [Amco Ukrservice case]. CISG governs contracts for sales of goods by default
unless the contract contains a choice of law provision to the contrary [Viva Vino Import Corp case;
Calzaturificio case; Golden Valley case]. The mention of a domestic law explicitly provides for the
exclusion of the CISG because of the presence of a choice of law clause. Art. 29 of PSA inserts a
choice of law clause to the agreement.
117. The real intent and conduct of the parties determined supersedes written agreements when it
comes to the CISG. [TeeVee Toons case; Alpha Prime Development case]

III. Clear intent to opt-out of the CISG is demonstrated by the parties.

118. Under Art. 8(3) of the CISG, ambiguity on the problem of inclusion or exclusion of the CISG can
be solved by analysing the intentions of the party wanting to exclude [OrthoTec case; William P.
Johnson] The actual intent can be construed on the basis of- i) the parties' interests, ii) the purpose
of the contract and iii) the objective circumstances at the time of the conclusion of the contract
[Fruit and Vegetables case].
119. In case of any inconsistency in the inclusion of the CISG between the initial draft and the final
agreement, the omission of the CISG in the final agreement should be interpreted as the parties'
intent to exclude the CISG from governing their contract. The domestic law referred to will be
applicable [OrthoTec case].
120. The party desiring to exclude application of the CISG must introduce evidence of any and all
relevant circumstances showing the parties’ intent to exclude application of the CISG. Such
evidence could include, but is not limited to, negotiations, established practices between the
parties, relevant trade usages, and the parties' conduct [William P. Johnson].
121. The intent to opt out of the CISG for all government contracts is clearly evidenced. The previous
Model Contract of the Equatorianianan Government stated, “The Agreement is governed by the
CISG. For all issues not regulated by the CISG, the law of Equatorianiana shall apply” [PO2, p.
10]. However, the Ministry of Justice revised this Model Contract in 2022 to ensure the application

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of Equatorianian law, aiming to strengthen domestic legislation [Ex. R1, p. 29, para. 7]. These
modifications to the Model Contract clearly reflect the government's intent to replace the CISG
with the application of domestic laws. The CLAIMANT was aware of these amendments made in
the model contract and raised no objections to the same. It shows intent on the part of the
CLAIMANT to opt-out of the CISG. An evidentiary threshold is required to be established to prove
intent of the parties to opt-out.

1. Establishing evidentiary standard required for ex-ante exclusion

122. When examining the choice of law clause from the perspective of the potential intention to exclude
at the time of contracting ex-ante exclusions, an evidentiary standard of the parties' intent is
required. The parties' intent should be 'common', [Eiffel Tower lifts case] 'clearly implied in fact, [AC
Opinion No. 16] or 'certain' [Ceramique Culinaire case], "real—as opposed to theoretical or factious'
[Honnold], or 'tangible intent rather than hypothetical intent [AC Opinion No. 16], especially in cases
where the parties argue implicit exclusion. In this respect, the parties' true intent is established
[Małgorzata Pohl-Michałek].
123. Parties ‘clearly implied in fact’ that they only wished for domestic laws to apply. The amendment
in the Model Contract in 2022, explicitly mentioned that changes were made in the forum selection
clause and the choice of law clause, pursuant to the aim of strengthening the role of
Equatorianianian Law and Equatorianiana as a place of dispute resolution [PO2, p.53, point 10].
The government prioritized the inclusion of majority local content in contracts. By opting for
domestic laws to govern these contracts, it furthered this objective. This intent was clear, tangible,
and unmistakable, as evidenced by the explicit reference to the Law of Equatorianiana and the
amendment made to the Model Contract.
124. The CISG has been explicitly excluded by Parties. Contrary to CLAIMANT’s contention, the Parties
have by choosing a domestic law, by default, excluded the convention [MfC, p. 9 para 48]. The
presence of the choice of law clause provides the same and there is also an unambiguous intent to
ensure explicit exclusion.

B. Parties have implicitly excluded the CISG from the PSA

125. Parties’ intention and conduct prove that the CISG was implicitly excluded from the scope of the
agreement [MfC, p.10, para. 49]. Parties have implicitly intended to exclude the CISG from the
scope of the PSA, pursuant to Art. 8 of the CISG [I]. The Tribunal must ascertain the intention

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of the Parties, and their surrounding negotiations and conduct [II] when implicitly excluding the
Convention from its scope.

I. ⁠There is clear and unequivocal agreement between the parties to exclude the CISG
126. There was an unambiguous agreement between the Parties on the exclusion of the CISG from the
scope of the agreement pursuant to Art. 8 of the CISG.

1. There is clear subjective intent to exclude the CISG

127. Under Art. 8(1), CISG, the subjective intent of the parties is assessed through their statements and
conduct. RESPONDENT 's explicit exclusion of the CISG in the amended Model Contract,
combined with CLAIMANT 's failure to object, demonstrates their shared intent to exclude it [Ex.
R1, p. 29, para. 7].

a. Application of Art. 8(1) of the CISG

128. Under Art. 8(1) of the CISG, tribunals are required to assess both the subjective [Hanwha case;
Guang Dong Light Headgear Factory case; Thurgau case; TeeVee Toons case] and real intent [Fruit and
Vegetable case; Navarre Machinery Dispute case; Debt Settlement case; Ceramique Culinaire case] of the parties,
even if the parties did not use clear or formal means to express their intent [MCC-Marble Ceramic
Center, Inc. case]. The intent must be 'common' [Eiffel Tower Lifts case] and clearly implied in fact [AC
Opinion No. 16] through the interpretation of their statements and actions [Schlechtriem/Schwenzer,
Austrian Price Dispute case; Swiss Invoice Dispute case; Manganese Sale Case], provided the other party
knew or could not have been unaware of the intent [Roser Technologies case; 30 Bales Pricing Dispute
case; Thurgau case; Shenchen Commission case].

b. Parties’ intent to exclude the CISG

129. CLAIMANT could not have been unaware of RESPONDENT’s intention to exclude the CISG.
[Unused Raw Material case]. RESPONDENT demonstrated its intent by explicitly referencing the
amended 2022 version of the Model Contract in the PSA, which excluded the CISG [PO2, point
10]. This revision was a deliberate and significant departure from the prior version of the Model
Contract, which explicitly included the CISG. CLAIMANT, having concluded two contracts based
on the Old Model Contract with RESPONDENT’s government entities, was familiar with the Model
Contract and its revisions. CLAIMANT’s conduct during negotiations specifically their failure to
raise any objection to the revised Model Contract despite being in a position to do so—

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demonstrates their acceptance of RESPONDENT’s intent to exclude the CISG [Ex. R1, p. 29, para.
7]
130. Pursuant to Art. 8(1), the statements and conduct of the parties clearly establish their shared intent
to exclude the CISG. RESPONDENT’s inclusion of the amended Model Contract in the PSA
reflects their subjective intent, while CLAIMANT’s silence and continued participation in
negotiations indicate their agreement to this exclusion. RESPONDENT, as the party asserting the
exclusion of the CISG, has satisfied its burden of proving that CLAIMANT could not have been
unaware of RESPONDENT’s intent to exclude the CISG.
131. The application of Art. 8(1) of the CISG requires the parties to have a close relationship and a
thorough understanding of one another [Manganese Sale Case]. The Parties had been working closely
together on this project for nearly 15 months and had established a strong contractual relationship
through two prior agreements, both of which were concluded at the time by Mr. Henry La Cour
[PO2, para. 2].

2. There is clear objective intent from the standard of a “reasonable man” to opt-out of
the CISG

132. If the tribunal finds that subjective intent under Article 8(1) cannot be established, the parties must
prove objective intent under Art. 8 (2). [AC Opinion 16; William P. Johnson; B. Zeller]. It has been
opined that when parties have differing understandings of the contract’s meaning, the language
must be interpreted under Art. 8(2) “according to the understanding that a reasonable person of
the same kind as the other party would have had in the same circumstances” [Roland Schmidt case].
133. A reasonable person standard requires that the terms be presented in a manner such that the other
party could “become aware of them in a reasonable manner” [Roser Technologies case; Used Gear-
Cutting Machine case; Tantalum Powder Terms case] and that the intention to incorporate such terms is
apparent [German company case; Takap B.V case].
134. The deliberate reference in Article 8(2) to a “reasonable person of the same kind” implies that the
interpretation must consider the recipient’s perspective in this case CLAIMANT, as agreed by the
Vienna Convention delegates [Fransworth].
135. From the perspective of a reasonable person, CLAIMANT’s conduct signaled acceptance of the
exclusion of the CISG. The revised 2022 Model Contract explicitly excluded the CISG, and
CLAIMANT, having prior dealings with RESPONDENT [PO2, para. 2] and being familiar with its
procedures, could not have failed to notice this significant change. CLAIMANT’s lack of objection

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during negotiations was tacit acceptance on their part. Furthermore, any reasonable man would
deduce that such a contract of high public welfare would benefit from being governed by domestic
laws as it is not limited to being a sales contract, CLAIMANT must have considered this perspective
as the public importance of this project had been clear from the side of RESPONDENT from the
beginning of the tender process as well, mandating their strict requirement of sticking to timelines.
This satisfies the objective standard of Article 8(2).
136. Thus, it is proved that Parties had an unambiguous, clear and unequivocal agreement to exclude
the CISG from the scope of the PSA.

II. Conduct of CLAIMANT demonstrates intent to exclude the CISG.

137. CLAIMANT’s conduct demonstrates an implicit intent to exclude the CISG. For determining the
intent of the parties to a contract, CISG requires courts to consider all relevant surrounding
circumstances, including negotiations and the conduct of the parties. The actual intent can be
inferred from the parties’ interests, the purpose of the contract, and the objective circumstances
at the time the contract was concluded [Art.8(3) CISG; fruits and vegetables case].
138. Party conduct indicates agreement to terms under the contract, such as when silence amounts to
acceptance [Filanto S.p.A. case] or when parties accept certain terms without protest [BV Scafom
case].
139. CLAIMANT’s conduct during prior meetings demonstrate that CLAIMANT had agreed to the
exclusion of the CISG. CLAIMANT was aware of the changes to the Model Law contract, as its
then head of legal, Mr. Law, had reviewed the amendments in the Old Model Law. These changes
were included in the list of issues for discussion in a meeting between Mr. Cavendish and Ms.
Faraday, by Mr. Law. Subsequently, CLAIMANT’s new head of legal, Ms. Smith, agreed to the
Governing Law clause of the PSA without raising objections [PO2, p. 11]. This conduct indicates
that CLAIMANT had internally reviewed and discussed the changes and had agreed to move
forward with the agreement, thereby demonstrating intent and conduct to exclude CISG.

1. CLAIMANT always intended to enter into a domestic transaction

140. Upon entering into PSA, the largest negotiating tool used by CLAIMANT, which ensured
CLAIMANT won the right to construct the plant, was that P2G (a domestic company) was set to
cover the raw materials used in the e-Ammonia extension option. Upon analysis of the table listed
below, which elaborates upon the total domestic Equatoranian production versus the international
Mediterranean production. The Parties' always intended to enter into a domestic contract where

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the domestic sale of goods took precedence. Hence, Parties reasonably would have assumed the
CISG to be inapplicable.

Mediterraneo Equatoriana

List of modules GreenHydro Volta Transformers P2G

Core System 60 40 0

Electric Equipment 0 40 0

Total - Electrolyser 60 80

Other Equipment 50 0 0

Total - others 50 0

eAmmonia Option 20 0 80

Total (Million - EUR) 130 - International 160 – Domestic

[Table 2: Breakup of International and Domestic Obligations]

141. RESPONDENT believes that CLAIMANT was aware these negotiations were going to fail.
However, to the utter surprise of the RESPONDENT, CLAIMANT refutes these allegations which
displays one of two possibilities:
i. CLAIMANT has committed fraud; or
ii. CLAIMANT has always intended for the PSA to be a domestic agreement, where the
CISG never had any dominion.
142. CLAIMANT has stated they intended to enter into a contract with P2G but the same failed
through no fault of their own. This shows that their intention at the time of entering into the
contract must have been to apply domestic law. It is axiomatic, not to mention res ipsa loquitur; that
international law cannot apply to a domestic contract.
143. This displays that the CISG has always been inapplicable and that the Parties intended to apply
domestic law, which is the entire submission on merits that RESPONDENT is making in front of
this Tribunal.

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REQUEST FOR RELIEF

In the light of the submissions above, on behalf of RESPONDENT, we herewith respectfully
request the tribunal to grant the following relief:
1. DECLARE that the Arbitral Tribunal does not have jurisdiction to hear the case.
2. DECLARE that the Tribunal should order the inclusion of the document Exhibit R3 and not
of Exhibit C7.
3. DECLARE that the Purchase and Service Agreement between the Parties is not governed by
the CISG; and
4. DECLARE that the Parties have validly excluded the application of the CISG from the
Purchase and Service Agreement.

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