TWENTY-SECOND ANNUAL WILLEM C.

VIS (EAST)
INTERNATIONALCOMMERCIAL ARBITRATION MOOT

Guangdong University of Foreign Studies

MEMORANDUM FOR RESPONDENT

ON BEHALF OF AGAINST

Equatoriana RenPower Ltd GreenHydro Plc

1 Russell Square 1974 Russell Avenue
Oceanside Capital City
Equatoriana Mediterraneo

-RESPONDENT- -CLAIMANT-

Li Yiyao • Peng Zixuan • Li Jiawen • Xie Minghui • Zheng Rong• Zheng Kehan • Xu Ziyun •
Xie Sijing • He Xiaolin • Chen Sidi

Guangzhou China
 TWENTY-SECOND ANNUAL WILLEM C. VIS (EAST)
INTERNATIONALCOMMERCIAL ARBITRATION MOOT

Academic Integrity and

Artificial Intelligence Disclosure Statement
[NOTE: This signed declaration must appear as the first page, following the cover page, of the team's
written memorandum submitted in the Willem C. Vis East International Commercial Arbitration Moot. If
you are unsure please tick “unsure”, you should only declare “no” use when you are certain that
there has been no use. In doing so please be mindful of the explicit instructions set out in paragraphs
71 and 72 of the Rules. The text of this note does not need to be reproduced in your declaration]
UNIVERSITY: Guangdong University of Foreign Studies
COUNTRY: China
ACADEMIC INTEGRITY YES UNSURE NO
We confirm that this memorandum does not include text from any
source, whether the source was in hard copy or online available,
which has not been properly distinguished by quotation marks or ✔
citation.

USE OF AI

We have used AI enhanced search engines for researching sources

✔
and (factual or legal) information on the Moot Problem.

We have used AI-enhanced proof-reading tools. ✔

We have used AI enhanced translation tools to translate sources

✔
relevant for our work on the Moot Problem.

We have used AI enhanced translation tools to translate parts of

the text submitted in this Memorandum into English from any other ✔
language.
We have used AI to generate overviews or briefings on relevant
factual and legal topics which are not submitted as part of the
memorandum but have been solely used to advance our own ✔
understanding.
 TWENTY-SECOND ANNUAL WILLEM C. VIS (EAST)
INTERNATIONALCOMMERCIAL ARBITRATION MOOT

We have used AI tools to generate statements that are now

✔
included in the memo. Please tick yes even if you have altered or
amended the text generated by AI before submission.

✔
We have trained an AI tool on Vis Moot documents.

We have used an AI tool that has been trained on Vis Moot ✔

documents to generate text that is part of our Memorandum

Other (please specify):

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:2 November 2024

NAME: Li Yiyao SIGNATURE:

NAME: Peng Zixuan SIGNATURE:

NAME: Li Jiawen SIGNATURE:

NAME: Xie Minghui SIGNATURE:

NAME: Zheng Rong SIGNATURE:

 TWENTY-SECOND ANNUAL WILLEM C. VIS (EAST)
INTERNATIONALCOMMERCIAL ARBITRATION MOOT

NAME: Xu Ziyun SIGNATURE:

NAME: Xie Sijing SIGNATURE:

NAME: He Xiaolin SIGNATURE:

NAME: Chen Sidi SIGNATURE:

NAME: Zheng Kehan SIGNATURE:

 TWENTY-SECOND ANNUAL WILLEM C. VIS (EAST)
INTERNATIONALCOMMERCIAL ARBITRATION MOOT

TABLE OF ABBREVIATIONS ....................................................................................8

STATEMENT OF FACTS.......................................................................................... 10
SUMMARY OF ARGUMENTS .................................................................................. 12
ISSUE A: THE ARBITRAL TRIBUNAL SHOULD DISMISS THE CLAIM BASED ON
ITS JURISDICTION, ADMISSIBILITY, OR EXERCISE OF DISCRETION. ............ 13
A. The Arbitral Tribunal lacks jurisdiction. ..............................................................................13
II. The arbitration agreement may be invalid as it violates the case law of Equatoriana.....14
III. Even if the arbitration agreement is valid, the arbitration agreement is not operative
due to the non-performed mediation. .................................................................................14
1. The mediation is mandatory and enforceable. .........................................................15
2. Failure to perform the mediation undermines the operability of the arbitration
agreement. ..................................................................................................................16
IV. Even if the arbitration agreement is operative, the Tribunal still lacks jurisdiction. .....16
1. The unfulfilled mediation obligation invalidates the initiation of arbitral proceedings.
...................................................................................................................................17
2. The failure to fulfill the preconditions bars the Tribunal's jurisdiction....................17
B. Even the Arbitral Tribunal has the jurisdiction, the claim is inadmissible. ............................18
I. Parties' failure to undergo mediation impacts the admissibility of the claim. ..................18
II. The non-performed mediation undermines the admissibility of the claim......................18
1. Mediation is a binding precedent condition to arbitration. ......................................19
2. Not exhausted attempting at mediation undermines the admissibility of the claim ..20
C. The Arbitral Tribunal can reject the claim based on its own discretion. ................................21
I. CLAIMANT rather than RESPONDENT acted in bad faith and continuing the
arbitration would be detrimental to fairness ......................................................................21
1. CLAIMANT acted in bad faith by failing to initiating mediation ............................22
2. RESPONDENT contests both the jurisdiction and admissibility in good faith ........22
II. Under Art. 26.3 FAI Rules, the Tribunal should be concerned about unnecessary costs
and delays. .........................................................................................................................23
III. Tribunal should reject the claim as it is manifestly without legal merit. .......................23
ISSUE B THE ARBITRAL TRIBUNAL SHOULD EXCLUDE DOCUMENT EXHIBIT
C7 AND INCLUDE R3. .............................................................................................. 25
A. The Arbitral Tribunal should exclude document Exhibit C7. ................................................25
I. Documents related to arbitration should be protected.....................................................25
1. Parties have implied duty of confidentiality.............................................................25
2. The Parties consented to keep Exhibit C7 confidential. ...........................................27
 TWENTY-SECOND ANNUAL WILLEM C. VIS (EAST)
INTERNATIONALCOMMERCIAL ARBITRATION MOOT

II. Exhibit C7 should be protected by "Without prejudice". ..............................................28

1. Under Art 9.4(b) of IBA, “without prejudice” can be applied. .................................28
2. Exhibit C7 is an“without prejudice”offer. ...............................................................28
III. According to FAI Art.34, Exhibit C7 should be exclude. ............................................29
B. The Arbitral Tribunal should include document Exhibit R3..................................................30
I. RESPONDENT did not illegally obtain Exhibit R3 and CLAIMANT has the burden of
proof to challenge it. ..........................................................................................................30
II. There is no persuasive reason for Exhibit R3 to be protected under IBA Rule 9.4 (a) ....32
1. Exhibit R3 is not a legal advice letter ......................................................................32
2. Even though Exhibit r3 is a legal advice letter, it is not protected by attorney-client
privilege......................................................................................................................33
III. Given the factors to weigh the evidence under Art. 34 in FAI Rules, Exhibit R3 should
be included.........................................................................................................................35
ISSUE C. THE CISG IS NOT APPLICABLE TO THE AGREEMENT. ...................... 37
A. The “internationality” requirement under Art.1 of the CISG is not satisfied.........................37
I. CLAIMANT maintains its place of business in Equatoriana. ..........................................38
1. CLAIMANT actively engages in trade in Equatoriana. ...........................................38
2. The construction site in Equatoriana qualifies as a place of business.......................39
II. CLAIMANT's place of business with the closest relationship to the contract is
Equatoriana. ......................................................................................................................39
1. The prevailing view prioritizes the performance place as the most relevant business
place. ..........................................................................................................................39
2. It is irrelevant whether the place serves as an administrative center or a registration
place. ..........................................................................................................................40
III. RESPONDENT was aware of CLAIMANT’s place of business in Equatoriana at the
time of concluding the contract. .........................................................................................40
B. The Agreement is a mixed contract where the supplying of services and labor constitutes a
preponderant part. ....................................................................................................................41
I. By virtue of Art.1, the Plant is not "goods" in the sense of CISG. ...................................41
II. The preponderant part of the Agreement lies in the supplying of services and labor. .....41
1. Under the economic value criterion, the Agreement is never a contract for sales of
goods. .........................................................................................................................42
2. Under the essential criterion, service obligations constitute a preponderant part. ...43
C. The outstanding transaction is classified as sales by auction under Art.2(b) CISG. ...............45
I. Reverse auction involves unpredictability and domestic interference. .............................46
 TWENTY-SECOND ANNUAL WILLEM C. VIS (EAST)
INTERNATIONALCOMMERCIAL ARBITRATION MOOT

II. Reverse auction has the nature of competitive bidding. .................................................46

III. Reverse auction lays the foundation of the contract award. .........................................48
ISSUE D. THE PARTIES HAVE VALIDLY EXCLUDED THE APPLICATION OF THE
CISG UNDER ART.6. ................................................................................................. 49
A. The CISG is excluded by choosing the law of Equatoriana and excluding conflicts of law
principles. .................................................................................................................................49
I. Choosing the law of Equatoriana will Exclude the Application of the CISG. ...................50
1. Choosing to apply general domestic law is sufficient to exclude the application of the
CISG. .........................................................................................................................50
2. Using the word “exclusion” may be seen as excluding the CISG. ............................50
II. The CISG forms part of the conflict of laws principles. .................................................51
B. The Parties exclude the CISG based on their mutual intentions. ...........................................51
I. RESPONDENT proposed an intention to exclude unambiguously. .................................52
II. CLAIMANT knowingly consents to such exclusion. ......................................................52
C. The CISG is excluded by referring to PPL in RfQ and the Agreement. .................................53
I. Choosing a specific domestic law excludes the CISG. ......................................................53
II. The PPL overlaps with the CISG in key provisions leading to a full exclusion. ..............54
REQUEST FOR RELIEF ........................................................................................... 54
TABLE OF ARBITRAL AWARDS AND COURT DECISIONS ................................. 55
TABLE OF AUTHORITIES ...................................................................................... 72
 TWENTY-SECOND ANNUAL WILLEM C. VIS (EAST)
INTERNATIONALCOMMERCIAL ARBITRATION MOOT

TABLE OF ABBREVIATIONS

ABBREVIATION REFERENCE

Art/Arts Article/Articles

CIETAC China International Economic and Trade Arbitration Commission

CLAIMANT GreenHydro Plc

[Link]. CLAIMANT's Exhibit No

ed/eds Editor/editors

edn Edition

et al Et alia (and others)

FAI The Finland Arbitration Institute

ICC International Chamber of Commerce

ICA International Court of Arbitration

Ltd Limited

n Note

No Number

RfA CLAIMANT's Request for Arbitration

p./pp. Page/Pages

para/paras Paragraph/Paragraphs

PICC UNIDROIT Principle of International Commercial Contracts

plc Public Limited Company

PO1 Procedural Order No 1

PPL the Public Procurement Law of Equatoriana

 TWENTY-SECOND ANNUAL WILLEM C. VIS (EAST)
INTERNATIONALCOMMERCIAL ARBITRATION MOOT

Problem The Problem

PSA Purchase and Service Agreement

Respondent Equatoriana RenPower Ltd.

[Link]. RESPONDENT's Exhibit No

RFQ Request for Quotation

ARfA RESPONDENT' Answer to Request for Arbitration

Sec./Secs. Section/Sections

Tribunal The Tribunal of the Arbitration case no 2022-76

UNCITRAL United Nations Commission on International Trade Law

v. versus

vol. Volume
 TWENTY-SECOND ANNUAL WILLEM C. VIS (EAST)
INTERNATIONALCOMMERCIAL ARBITRATION MOOT

STATEMENT OF FACTS

1. CLAIMANT, GreenHydro Plc, based in Mediterraneo, is a medium-sized engineering company

specialized in the planning, construction and sale of plants for the production of green

hydrogen and connected services for the whole hydrogen and Power-to-X value chain for the

industry, energy and mobility sector. RESPONDENT, Equatoriana RenPower Ltd.

(ERenPow), based in Equatoriana, is a fully government-owned company.

2. In 2020, CLAIMANT ordered the transformer from its long-time Equatorianian business

partner Volta Transformer for another project.

3. On 3 January 2023, RESPONDENT invited bids for the construction and delivery of a plant to

produce green hydrogen and potential derivatives. The bids were to cover the following four

elements: a fixed 100 MW plant for the production of green hydrogen (turnkey), maintenance

and training services for one year, and two options for RESPONDENT concerning the

extension of the plant.

4. From early May 2023, RESPONDENT entered into specific negotiations with the two final

bidders. At the same time, CLAIMANT has been in promising negotiations with the

Equatorianian company P2G for the eAmmonia-option.

5. On 12 July 2023, Claimant’s chief negotiator for the entire project, Mr. August W. Deiman,

sent a carefully drafted email which further reinforced the impression that there would most

likely be close to 50% local content. The next day, CLAIMANT informed RESPONDENT

that it was willing to lower its already competitive price by another 5%, in return for

exclusion of the right to terminate the Agreement for convenience and certain commitments

concerning the sharing of data for future marketing purposes. Four days later, the Parties

entered into the Purchase and Service Agreement(“PSA”).

 TWENTY-SECOND ANNUAL WILLEM C. VIS (EAST)
INTERNATIONALCOMMERCIAL ARBITRATION MOOT

6. On 26 August 2023, CLAIMANT informed RESPONDENT about the failure negotiation with

P2G and turned to contract Green Ammonia from Danubia as its partner for the eAmmonia

module.

7. In October 2023, local elections in Equatoriana led to a shift in the power balance within the

Equatorianian government. Mr. Positive, the particularly unpopular minister for energy and

environment, was replaced by a colleague from the Equatoriana National Party(ENP) and Ms.

Theresa Vent, who had long opposed the Green Energy Strategy developed by the previous

minister and announced a revision of the Green Energy Strategy and a major reshuffle in the

board of directors of ERenPow in her first press conference.

8. In November 2023, Volta Transformer was formally acquired by CLAIMANT. On 27

December 2023, CLAIMANT’s CEO, Mr. Cavendish, received a call from his then

counterpart at RESPONDENT, Ms. Michelle Faraday. Ms. Faraday informed Mr. Cavendish

that she would be replaced by the end of the month by a former manager of a solar company,

Mr. Henry la Cour.

9. On 29 February 2024, RESPONDENT gave notice of termination of the PSA. On 25 May

2024, RESPONDENT had made clear that “any further discussion made only sense if

CLAIMANT was willing to talk about serious price reduction of 15% or at least a two-digit

number”.

10. On 31 July 2024, CLAIMANT's lodged a request for arbitration. RESPONDENT issued a

Response to the Request for Arbitration and appointed its arbitrator half a month later.
 TWENTY-SECOND ANNUAL WILLEM C. VIS (EAST)
INTERNATIONALCOMMERCIAL ARBITRATION MOOT

SUMMARY OF ARGUMENTS

11. ISSUE A: The Arbitral Tribunal should dismiss the claim based on jurisdiction, admissibility,

or discretion. First, RESPONDENT argues that the Tribunal lacks jurisdiction due to

CLAIMANT's failure to fulfill mandatory pre-arbitration mediation, a condition precedent

outlined in the arbitration agreement. Second, even if jurisdiction exists, the claim is

inadmissible as the procedural prerequisites for arbitration remain unmet. Finally, the Tribunal

should exercise its discretion to reject the claim to avoid unnecessary costs and delays, as the

dispute could still be resolved through mediation.

12. ISSUE B: The Arbitral Tribunal should exclude Exhibit C7 and include Exhibit R3 to uphold

procedural integrity and ensure fairness. Exhibit C7, a "without prejudice" offer, is protected

by confidentiality and settlement privilege under arbitration principles and FAI Art. 34,

making it inadmissible. Conversely, Exhibit R3 is relevant and material to RESPONDENT's

claim, and it is not shielded by privilege, supporting its inclusion in the proceedings.

13. ISSUE C: The “internationality” requirement under Art.1 of CISG is not satisfied. Art. 2 of

CISG excludes the application of the Convention. The Agreement is a mixed contract where

supplying of services and labor constitutes a preponderant part. Hence, the CISG is not

applicable to the Agreement.

14. ISSUE D: The implied exclusion of the CISG is widely recognized and acknowledged and in

this case, the Parties agree to exclude CISG under Art.6 because the CISG is excluded by

choosing the law of Equatoriana to the exclusion of conflicts of law principles and the CISG

is excluded by referring to PPL in RfQ and the Agreement.

 TWENTY-SECOND ANNUAL WILLEM C. VIS (EAST)
INTERNATIONALCOMMERCIAL ARBITRATION MOOT

ISSUE A: THE ARBITRAL TRIBUNAL SHOULD DISMISS THE CLAIM

BASED ON ITS JURISDICTION, ADMISSIBILITY, OR EXERCISE OF

DISCRETION.

15. The law governing the arbitral proceedings should be UNCITRAL Model Law because

Danubia, the seat of the arbitration, has adopted the UNCITRAL Model Law [Ex. C 2,p. 13;

PO1, p. 51, para. 4]. Moreover, the FAI Arbitration Rules also applies to the arbitration

[Letter by the Board, p. 39]. PICC applies to the Arbitration Agreement because Danubia's

general contract law is a verbatim adoption of PICC and Equatorian also adopts PICC apart

from an additional provision in Art. 7.3 [PO1, p. 50, para.4]. In addition, the New York

Convention governs the recognition and enforcement of the arbitral award of this claim

because Equatoriana, Mediterraneo, and Danubia are all member states of the New York

Convention [PO1, p. 50, para. 4; Art. III New York Convention].

16. Under the normative framework of arbitration, the Tribunal should reject the claim due to

non-compliance with the pre-arbitration mediation requirement, which constitutes a

jurisdictional condition precedent (A) and a bar to the claim's admissibility (B). Moreover, the

Tribunal can reject this claim as part of its discretion (C).

A. The Arbitral Tribunal lacks jurisdiction.

17. Pursuant to Art. 16 of the Model Law, the Tribunal has the authority to decide its jurisdiction

[Art. 16 Model Law]. While the Parties agreed on Danubia as the place of arbitration and the

application of the FAI Rules, the arbitration agreement may be invalid as it contravenes the

case law of Equatoriana, the governing law of the arbitration agreement (I). Furthermore, the

arbitration agreement, contained in Art. 30 of the Purchase and Service Agreement, forms part

of a multi-tiered dispute resolution clause [[Link].2]. As the required mediation was not
 TWENTY-SECOND ANNUAL WILLEM C. VIS (EAST)
INTERNATIONALCOMMERCIAL ARBITRATION MOOT

performed, the arbitration agreement is inoperative, and the Tribunal lacks jurisdiction (II).

Even if the arbitration agreement were operative, the Tribunal would still lack jurisdiction

(III).

II. The arbitration agreement may be invalid as it violates the case law of Equatoriana.

18. The arbitration agreement is governed by Equatoriana law, which governs the main contract.

Under Equatoriana case law, an unfulfilled mediation requirement renders an arbitration

agreement invalid [[Link].1]. Since mediation has not occurred, the arbitration agreement is

invalid, and the Tribunal lacks jurisdiction.

19. According to Dicey, the proper law of a contract, including an arbitration agreement, is

determined through a three-stage inquiry: express choice, implied choice, and closest

connection [Dicey]. Courts generally presume that an express choice of law for the

substantive contract implies the same choice for the arbitration agreement unless evidence

suggests otherwise [Sulamé rica v. Enesa; XL Insurance Ltd v. Owens Corning]. While

separability allows different laws to govern the substantive contract and arbitration agreement,

the presumption remains that the same law applies unless clear contrary indications exist

[Channel v. Balfour].

20. In this case, Art. 29 explicitly designates Equatoriana law as governing the contract, and the

selection of Danubia as the arbitration seat in Art. 30 does not override this express choice

[PSA]. No evidence indicates that the parties intended otherwise. Therefore, the arbitration

agreement is governed by Equatoriana law, and per its case law, the failure to fulfill the

mediation requirement renders the agreement invalid, depriving the Tribunal of jurisdiction.

III. Even if the arbitration agreement is valid, the arbitration agreement is not operative

due to the non-performed mediation.

 TWENTY-SECOND ANNUAL WILLEM C. VIS (EAST)
INTERNATIONALCOMMERCIAL ARBITRATION MOOT

21. RESPONDENT contends that the mediation requirement under Art. 30 PSA is both mandatory

and enforceable due to its clarity and certainty (1). Failure to perform the mediation

undermines the operability of the arbitration agreement(2).

1. The mediation is mandatory and enforceable.

22. The mediation requirement in Art. 30 PSA is mandatory and enforceable. A pre-arbitration

mediation agreement is binding if it reflects the parties' clear intention and provides sufficient

procedural certainty. The use of mandatory language, such as "shall," indicates the

obligation's binding nature [Born, p. 981; Aydemir, p. 197; ICC Case No. 9977; Casinos

Austria v. Argentina, p. 284]. Additionally, enforceability is ensured when the agreement

specifies detailed procedural rules, such as time limits or adherence to established mediation

frameworks [Walford v. Miles; Aiton Australia v. Transfield, pp.34, 61; Hooper Bailie v.

Natcon Group; Ohpen Operations UK v. Invesco Fund Managers].

23. In this case, the mediation agreement uses the term "shall," explicitly affirming the parties’

intention to create a binding obligation [Art. 30 PSA]. Furthermore, the adoption of the FAI

Mediation Rules ensures procedural certainty by providing detailed guidance on the mediation

process, including the number of mediators and the mechanism for their appointment.

RESPONDENT’s consistent efforts to resolve the dispute amicably further reinforce the

enforceability of the mediation agreement, as evidenced by its lack of resistance to attending

mediation and its ongoing negotiations with CLAIMANT [RfA, pp.19, 21].

24. By contrast, CLAIMANT threatened arbitration without attempting mediation and unilaterally

declared that mediation would be futile [PO2, pp.24; RfA, pp.25]. This behavior does not

negate the enforceable nature of the mediation requirement, which is supported by

RESPONDENT’s demonstrated willingness to engage in good faith efforts to resolve the

 TWENTY-SECOND ANNUAL WILLEM C. VIS (EAST)
INTERNATIONALCOMMERCIAL ARBITRATION MOOT

dispute. Accordingly, the mediation agreement in Art. 30 PSA is valid, mandatory, and

enforceable.

2. Failure to perform the mediation undermines the operability of the arbitration

agreement.

25. The arbitration agreement in this case is inoperative because the mandatory mediation

requirement, a condition precedent to arbitration, was not fulfilled. Under a multi-tiered

dispute resolution mechanism, mediation must occur before arbitration can be initiated, and

failure to comply renders the arbitration agreement inoperative [Kemiron Atlantic v. Aguakem

Intern, p.9; International Research v. Lufthansa Systems Asia Pacific and another, pp.101;

HIM Portland v. DeVito Builders, p. 8].

26. In current case, the parties explicitly agreed to this sequence during negotiations, as evidenced

by the deletion of language in the FAI Model-Mediation Clause allowing arbitration without

prior mediation and the inclusion of terms like “first” and “finally” in Art. 30 PSA, which

emphasized the agreed order of dispute resolution [[Link].1, pp.9; [Link].2; PO2, pp.13].

CLAIMANT’s intentional non-performance of the mediation obligation constitutes a

fundamental breach under Art. 7.3.1 PICC, adopted by the relevant jurisdictions, which allows

termination of a contract for non-performance [PO1, pp.4]. This breach deprived

RESPONDENT of its expectation for amicable settlement through mediation, an essential

element of the dispute resolution process. Therefore, CLAIMANT’s failure to perform

mediation renders the arbitration agreement inoperative.

IV. Even if the arbitration agreement is operative, the Tribunal still lacks jurisdiction.

27. A condition precedent refers to a strict obligation that must be fulfilled in advance and cannot

be completed in parallel or subsequently before arbitration can commence [Casinos Austria v.

 TWENTY-SECOND ANNUAL WILLEM C. VIS (EAST)
INTERNATIONALCOMMERCIAL ARBITRATION MOOT

Argentina, pp.315, 327]. In this case, the mandatory and enforceable mediation requirement

under Art. 30 PSA has not been performed, which prohibits CLAIMANT from initiating

arbitration and creates a jurisdictional bar. The unfulfilled mediation obligation invalidates the

initiation of arbitral proceedings (1) and prevents the TRIBUNAL from exercising jurisdiction

over the dispute (2).

1. The unfulfilled mediation obligation invalidates the initiation of arbitral proceedings.

28. Under the principle that a condition precedent must be fulfilled before arbitration can be

initiated, no duty arises for a counter party to arbitrate until the condition is satisfied

[International Research v. Lufthansa Systems Asia Pacific and another, pp.63; Casinos

Austria v. Argentina, pp.279]. Failure to comply with such mandatory pre-arbitration

obligations constitutes a jurisdictional defect, rendering arbitral proceedings invalid [ICC

Case No. 12739; ICC Case No. 9812].

29. In the present case, the PARTIES’ mediation agreement under Art. 30 PSA is mandatory but

remains unfulfilled [supra, pp.6-8]. Consequently, no obligation exists for RESPONDENT to

participate in arbitration, and CLAIMANT is barred from unilaterally initiating the current

arbitral proceedings.

2. The failure to fulfill the preconditions bars the Tribunal's jurisdiction.

30. Where a condition precedent in arbitration is not fulfilled, no valid arbitration exists [Davis v.

Davis]. A proper referral to mediation or negotiation, as stipulated, is essential for a tribunal to

exercise jurisdiction [Lakeland Fire District v. East Area]. Failure to comply with this

requirement could prevent the tribunal from exercising its jurisdiction, creating a

jurisdictional bar [Lakeland Fire District v. East Area; Burlington Resources Inc. v. Republic

of Ecuador; Telefonica S.A. v. Argentine Republic].

 TWENTY-SECOND ANNUAL WILLEM C. VIS (EAST)
INTERNATIONALCOMMERCIAL ARBITRATION MOOT

31. In this case, CLAIMANT admitted that the parties never initiated the required mediation under

Art. 30 PSA [RfA, pp.25]. This failure to perform mediation undermines the TRIBUNAL’s

basis to assert jurisdiction.

B. Even the Arbitral Tribunal has the jurisdiction, the claim is inadmissible.

32. First, even the failure of jurisdiction, failure to perform mediation relates to the admissibility

of the claim (I). Second, the non-performed mediation undermines the admissibility of the

claim (II).

I. Parties' failure to undergo mediation impacts the admissibility of the claim.

33. The failure to fulfill mandatory pre-arbitration conditions is a matter that pertains to the

admissibility of the claim [BG Group v. Republic of Argentina, p. 16; BBA v. BAZ, p. 73; BTN

v. BTP, p. 68; Republic of Sierra Leone v. SL Mining Ltd., p. 21; NWA v. NVF, p. 2; C v. D, pp.

39-40]. This issue holds significant practical implications, particularly regarding fundamental

policy considerations in arbitration, such as upholding the parties' intentions

[McErlaine/Allsop, p. 4]. Indeed, parties engaged in a multi-tiered dispute resolution process

are generally more inclined to adhere to their chosen procedures to the greatest extent possible

[McErlaine/Allsop, p. 4].

34. In this case, CLAIMANT erroneously contends that the PARTIES' mediation agreement has

no bearing on the admissibility of the claim. As previously argued, the mediation agreement

between the Parties is both mandatory and enforceable [supra pp4-6], with CLAIMANT's

non-compliance further demonstrated by its own admission [RfA, p25]. Thus, the Parties'

failure to proceed with mediation is indeed relevant to the admissibility of the claim.

II. The non-performed mediation undermines the admissibility of the claim

 TWENTY-SECOND ANNUAL WILLEM C. VIS (EAST)
INTERNATIONALCOMMERCIAL ARBITRATION MOOT

35. The Tribunal should consider the claim inadmissible because mediation is a binding precedent

condition to arbitration(1) and CLAIMANT’s not exhausted attempting at mediation

undermines the admissibility of the claim(2).

1. Mediation is a binding precedent condition to arbitration.

36. The binding requirement for mediation as a precedent condition arises primarily from the

Parties' agreement [Art.30 PSA], secondly from pertinent provisions and the perspectives of

authoritative scholars [Art.13 UNCITRAL Model LawI, Born, p.237], and is further

corroborated by the jurisprudence of Equatoriana and international arbitration tribunals

[[Link].R1, p.30, ICC Case No 6276, ICC Case No 9812].

37. First, from a textualist perspective, the clause clearly states that disputes "shall first be

submitted to mediation" and "shall be finally settled by arbitration" [Art.30 PSA]. The terms

"first" and "finally" indicate a mandatory sequence for the application of dispute resolution

mechanisms. Furthermore, the use of "shall" underscores the obligatory nature of the

procedure [Philip Morris v Uruguay (n 8) paras 140–1]. Therefore, by interpreting this

provision in accordance with the understanding of a reasonable person under similar

circumstances [Art.8 CISG], one can confidently conclude that mediation is an obligatory

preliminary step before arbitration.

38. Second, from an intentionalist perspective, the Parties made their intent to enforce mediation

as a mandatory pre-arbitration procedure explicitly clear when they entered into the contract.

Specifically, Miss. Ritter informed Mr. Deiman of Equatoriana’s jurisprudence, stating that

mediation serves as a condition precedent for the arbitral tribunal’s jurisdiction [Re. Ex R1,

p.30]. Furthermore, Mr. Deiman, in his email, explicitly confirmed that "the FAI

Model-Mediation Clause suggested by us clearly provides that the Parties must first attempt to
 TWENTY-SECOND ANNUAL WILLEM C. VIS (EAST)
INTERNATIONALCOMMERCIAL ARBITRATION MOOT

mediate their dispute before resorting to arbitration. Thus, arbitration is only the last resort, as

you wished" [[Link] R2, p.31].

39. Finally, as supporting indirect evidence, Article 30 of the PSA closely follows the FAI model

clause, with the sole modification being the removal of the phrase “mediation shall not

preclude arbitration” [Model Clause]. This modification signals that both Parties recognize

mediation as an essential step before arbitration can take place.

In conclusion, the Parties' dispute resolution agreement is sufficiently specific and clear. In

this case, mediation is a binding precedent condition to arbitration. As such, the arbitral

tribunal should reject the arbitration request on the grounds that the claim is not admissible.

2. Not exhausted attempting at mediation undermines the admissibility of the claim

40. Given the fact that there is still room for mediation, the parties should attempt to initiate the

mediation procedure and comply with the FAI Mediation Rules under Art. 30 of the

Agreement. RESPONDENT holds that there is still room for mediation when considering

several factors.

41. First, the RESPONDENT had sent a without prejudice letter to the CLAIMANT to discuss the

condition and find a settlement [[Link].7]. The letter offering a 15% price reduction showed

the RESPONDENT’s intention for further discussion to reach a settlement in discount with

the CLAIMANT. Given the without prejudice letter, the RESPONDENT reasonably believes

that the parties are negotiating and may enter into mediation.

42. Second, the Parties did not make every effort to discuss frequently to complete their mediation

obligation. In the ETA v. PME case, the parties had constant and friendly discussions and

finally endeavored to satisfy the mediation obligation. The parties’ discussions aimed at
 TWENTY-SECOND ANNUAL WILLEM C. VIS (EAST)
INTERNATIONALCOMMERCIAL ARBITRATION MOOT

resolving PMEPL’s claim lasted from 1 December 2009 until, at least, 9 March 2010. The

parties have set aside enough time and patience to mediate PMEPL’s claim for US$45 million.

They finally submitted the claim to arbitration in June 2010 [ETA v. PME, paras. 65, 70].

Compared with the ETA v. PME, it is clear that the Parties have not been discussed many

times. Since the RESPONDENT indicates that the negotiations between the Parties after the

termination of the contract were infrequent, the RESPONDENT believes there is room for

mediation [RfA, paras. 19, 21].

43. In light of the room for further mediation, therefore, to proceed forwards an arbitration,the

Parties still need to satisfy the mediation requirement and the current non-compliance with

such requirement makes the claim inadmissible to the Tribunal.

C. The Arbitral Tribunal can reject the claim based on its own discretion.

44. The Arbitral Tribunal shall have the power to determine at its discretion and reject the claim.

Because it was CLAIMANT rather than RESPONDENT who acted in bad faith (I). Moreover,

according to Art. 26.3, FAI Rules, all participants in the arbitral proceedings including the

Tribunal shall avoid unnecessary costs and delays(II). Concerning the termination of the

Agreement, the claim of specific performance is manifestly without merit for RESPONDENT

(III).

I. CLAIMANT rather than RESPONDENT acted in bad faith and continuing the

arbitration would be detrimental to fairness.

45. According to Article 8.5 of the FAI Mediation Rules, all participants are required to act in

good faith and make genuine efforts to reach a mutually agreeable settlement. CLAIMANT,

however, acted in bad faith by failing to initiate mediation(1), whereas RESPONDENT

 TWENTY-SECOND ANNUAL WILLEM C. VIS (EAST)
INTERNATIONALCOMMERCIAL ARBITRATION MOOT

contested both the jurisdiction and admissibility in a manner consistent with good faith (2).

1. CLAIMANT acted in bad faith by failing to initiating mediation.

46. CLAIMANT defends its failure to comply with the mediation requirement by claiming that

mediation would be pointless. However, even if mediation may appear to be futile, a party

cannot rely on this argument unless it has made a sincere and good faith effort to engage in

the mediation process, including taking the necessary steps outlined by the mediation rules

[George, pp. 122-123]. Under Article 2.1 of the FAI Mediation Rules, the party seeking to

initiate mediation must submit a Request for Mediation to the FAI.

47. Moreover, CLAIMANT delayed fulfilling its obligations under the PSA and performed the

contract [Link] neither invited RESPONDENT to mediate nor submitted a

Request for Mediation to the FAI, failing to take the required steps and acting in bad faith.

These conducts contributed to a deadlock and denied RESPONDENT the opportunity to

resolve the dispute amicably, placing RESPONDENT at a disadvantage. The tribunal should,

therefore, prioritize fairness and reject CLAIMANT's claim.

2. RESPONDENT contests both the jurisdiction and admissibility in good faith.

48. A party may be deemed to be acting abusively and barred from relying on non-compliance

with pre-arbitral ADR requirements if: first, it did not make a sincere effort to engage in the

pre-arbitral ADR process [George, p. 122]; and second, it failed to raise an objection in the

arbitration proceedings [Y v.X].

49. In this case, RESPONDENT made a genuine effort to engage in mediation. RESPONDENT

did not outright refuse mediation; rather, RESPONDENT actively participated in the

negotiations and consistently offered to continue the contract contingent on CLAIMANT

agreeing to a price reduction [[Link].5, p15; [Link].8, p3; PO2, p23]. This demonstrates
 TWENTY-SECOND ANNUAL WILLEM C. VIS (EAST)
INTERNATIONALCOMMERCIAL ARBITRATION MOOT

RESPONDENT's good faith effort. Furthermore, RESPONDENT raised a timely objection to

CLAIMANT's failure to comply with the mediation requirement. On 14 August 2024,

RESPONDENT submitted the AfRA, which specifically objected to jurisdiction and

admissibility due to CLAIMANT's failure to meet its mediation obligation. Consequently,

RESPONDENT’s challenges to jurisdiction and admissibility were not made in bad faith.

II. Under Art. 26.3 FAI Rules, the Tribunal should be concerned about unnecessary

costs and delays.

50. Under Article 26.3 of the FAI Rules and Article 16 of the Model Law, the Tribunal must

consider unnecessary costs and delays when exercising its discretion. RESPONDENT argues

that the Tribunal should reject the claim based on these [Link] exercising its

discretion, the Tribunal must avoid unnecessary delay and expense, ensuring a fair and

efficient dispute resolution process [BORN 2014, p. 2150].

51. Mediation, administered by the FAI, is typically completed in one or two sessions, taking only

one or two days [FAI website], while a final arbitral award under FAI’s administration may

take up to 9 months [Art. 44, Arbitration Rules], making arbitration significantly more

time-consuming and costly.

52. Furthermore, RESPONDENT notified CLAIMANT on 29 February 2024 of the termination of

the Agreement due to CLAIMANT’s 28-day delay in delivering the final plans [RfA, para.

19]. In light of this termination, CLAIMANT’s request for RESPONDENT to continue

performance would lead to unnecessary costs and delays.

53. Given these considerations, RESPONDENT concludes that the Tribunal should be mindful of

avoiding unnecessary costs and delays in its discretion.

III. Tribunal should reject the claim as it is manifestly without legal merit.
 TWENTY-SECOND ANNUAL WILLEM C. VIS (EAST)
INTERNATIONALCOMMERCIAL ARBITRATION MOOT

54. The CLAIMANT's request for specific performance is manifestly without legal merit, and thus

the tribunal should reject this claim [ARfA, para. 23]. The Tribunal possesses broad

discretionary powers under the arbitration agreement and the arbitration rules, sufficient to

reject a unreasonable claim in a early stage [Travis case]. Undoubtedly, in our case,

CLAIMANT’s request is devoid of any substance. Firstly, it is axiomatic that a contract, once

properly terminated, absolves the parties of their obligations to perform under it. The assertion

that we must continue to fulfill our duties despite having lawfully terminated the agreement is

a clear misapprehension of contractual obligations [RfA, para.31]. Secondly, the

counterparty's claim is devoid of any substance, as it fails to acknowledge the legal and

factual basis for our termination. RESPONDENT validly terminated the Agreement with its

Termination Letter of 29 February 2024 [ARfA, para. 18]. Under the Law of Equatoriana,

RESPONDENT, as a government entity, was entitled to terminate it both for cause and for

convenience [ARfA, para. 21].

55. Therefore, the Tribunal should reject the claim as it is manifestly without legal merit.

Conclusion

56. The Arbitral Tribunal should dismiss the claim based on jurisdiction, admissibility, or

discretion. First, RESPONDENT argues that the Tribunal lacks jurisdiction due to

CLAIMANT's failure to fulfill mandatory pre-arbitration mediation, a condition precedent

outlined in the arbitration agreement. Second, even if jurisdiction exists, the claim is

inadmissible as the procedural prerequisites for arbitration remain unmet. Finally, the Tribunal

should exercise its discretion to reject the claim to avoid unnecessary costs and delays, as the

dispute could still be resolved through mediation.

 TWENTY-SECOND ANNUAL WILLEM C. VIS (EAST)
INTERNATIONALCOMMERCIAL ARBITRATION MOOT

ISSUE B THE ARBITRAL TRIBUNAL SHOULD EXCLUDE

DOCUMENT EXHIBIT C7 AND INCLUDE R3.

57. The Tribunal should exclude Exhibit C7 and include Exhibit R3 to balance confidentiality and

relevance. Exhibit C7, a "without prejudice" offer, is protected to preserve fair negotiations

and excluded under FAI Art. 34(A). In contrast, Exhibit R3 is directly relevant and does not

breach confidentiality, making it admissible and essential for resolving the dispute(B).

A. The Arbitral Tribunal should exclude document Exhibit C7.

58. The Arbitral Tribunal should exclude Exhibit C7 due to its protected nature under arbitration

principles and the FAI Rules. First, documents related to arbitration are generally safeguarded

to ensure the confidentiality and integrity of the process, essential for fostering trust between

parties(I). Second, Exhibit C7 is labeled as a "without prejudice" offer, which under common

legal practices protects settlement communications from being used as evidence to ensure

open and honest negotiations (II). Finally, pursuant to Article 34 of the FAI Rules, which

governs the admissibility of evidence, the Tribunal has the discretion to exclude any

documents that compromise procedural fairness or breach established principles, such as

confidentiality and the protection of privileged communications (III) .

I. Documents related to arbitration should be protected.

1. Parties have implied duty of confidentiality.

59. An implied duty of confidentiality exists that extends to all negotiations preceding mediation

and arbitration. The possible information that falls within the scope of confidentiality includes

information pertaining to the arbitral process itself and the documents and other materials

which are part of the arbitration, as well as documents and information used, introduced, and

disclosed in arbitration proceedings from external sources and awards[Kenneth I. Ajibo, p.

 TWENTY-SECOND ANNUAL WILLEM C. VIS (EAST)
INTERNATIONALCOMMERCIAL ARBITRATION MOOT

350.].

60. Confidentiality in arbitration proceedings is ideal for parties who wish to save themselves

from the glaring eyes of the media, their competitors, etc., and avoid any negative publicity

which can potentially harm their position in the market. The implied duty of confidentiality

extends naturally to pre-mediation negotiations, ensuring sensitive information remains

protected.

61. In this case, Exhibit C7, a “without prejudice” offer dated May 25, 2024, contains sensitive

details about the commercial terms proposed by RESPONDENT and the counteroffers made

by Claimant[[Link].7]. These disclosures constitute commercially sensitive information,

including trade secrets related to Claimant’s pricing models and operational strategies.

Admitting Exhibit C7 in arbitration would expose RESPONDENT’s bargaining positions and

business strategies to external scrutiny, potentially damaging its market reputation. Similarly,

Claimant’s willingness to make specific financial concessions reflects its reliance on the

expectation that such sensitive discussions would not be disclosed or used against it in

arbitration proceedings[Answer to the Request for Arbitration]. The confidential nature of

pre-mediation communications, as demonstrated in Exhibit C7, fosters an environment where

parties can negotiate freely and candidly without fear of repercussions[[Link].1]. Allowing

such evidence to be admitted would deter future parties from engaging in transparent

discussions, undermining the efficiency of pre-conditional dispute resolution procedures and

the broader arbitration process.

62. Therefore, Exhibit C7, as part of the pre-mediation negotiations, falls within the implied duty

of confidentiality. It should be excluded from arbitration proceedings to ensure that parties

can engage in open, effective, and confidential pre-mediation negotiations.

 TWENTY-SECOND ANNUAL WILLEM C. VIS (EAST)
INTERNATIONALCOMMERCIAL ARBITRATION MOOT

2. The Parties consented to keep Exhibit C7 confidential.

63. The Parties have reached an agreement that Exhibit R3 should be confidential. After

discussing with Mr. Ritter, the Head of Equatoriana Renpower Ltd and knowing the concerns

of confidentiality about documents in negotiations, Mr. Deiman, COO of Volta Transformer,

has reassured RESPONDENT that the foreseen ADR mechanisms and the communications

made therein are under confidentiality[[Link].2].

64. In ADR continuum, negotiation comes as the first step to alternatively resolve the

dispute[Joshua, p.4; Scott, p.4; BORN 2012, p.221], indicating that negotiation is involved in

the ADR mechanisms. As it is universally recognized, RESPONDENT believes that the

Parties have reasonable expectations to acknowledge negotiation as a process of ADR

mechanism. RESPONDENT has raised a “15% or at least two-digit number” condition in

good faith, leaving room for CLAIMANT to consider and reply. Since the mediation hasn’t

been activated, Exhibit C7 could be seen as a document presenting RESPONDENT’s

mediation invitation according to precedent communications between the Parties[[Link].7].

Thus, Exhibit C7 should be regarded as a communicating letter made in the foreseen ADR

mechanisms.

65. CLAIMANT asserted that the confidential obligation of Art.15 of the FAI Mediation Rules

should not extend to negotiations prior to mediation. However, as RESPONDENT attaches

great importance repeatedly to a “separate full-fledged confidentiality agreement for the

resolution of disputes”[[Link].1, para.10], CLAIMANT should obviously understand

RESPONDENT’s expectations and apply using the exact phrase “foreseen ADR mechanism”.

RESPONDENT has reasonable reliance to believe that CLAIMANT has guaranteed

confidentiality during the whole dispute-resolving process and sent Exhibit C7, even under
 TWENTY-SECOND ANNUAL WILLEM C. VIS (EAST)
INTERNATIONALCOMMERCIAL ARBITRATION MOOT

pressure from the government. Therefore, the Parties have consented to the extension of

negotiations in Art.15 of the FAI Mediation Rules and Exhibit C7 is involved.

66. RESPONDENT concludes that the Parties have consented to keep Exhibit C7 confidential.

II. Exhibit C7 should be protected by "Without prejudice".

67. RESPONDENT argues that Exhibit C7 should be protected because Under Art 9.4(b) of IBA,

“without prejudice” can be applied (1). Exhibit C7 is an “without prejudice”offer (2).

1. Under Art 9.4(b) of IBA, “without prejudice” can be applied.

68. Under Article 9.4(b) of the IBA Rules, the issue of legal privilege shall be considered in the

exclusion of evidence by the arbitral tribunal[Article 9.2 (b) IBA Rules]. And Rule 9.4(b)

provides that documents produced for the purpose of settlement negotiations should be

privileged[Article 9.4(b) IBA Rules]. This shows that the privilege of without prejudice is

recognised under the rules of the IBA[A Guide to IBA Rules]. What’ s more, the without

prejudice principle is a well-established general rule in international arbitration[Andreas J

Roquette]. Therefore, the rule of without prejudice can be applied in this case.

2. Exhibit C7 is an“without prejudice”offer.

69. The without prejudice privilege means that evidence marked "without prejudice" by a party

will be protected and will not be allowed to be disclosed during subsequent

proceedings[Andreas J Roquette; Nicky Quek Case; Cutts v. Head; Rush v. Greater London

Council].

70. To determine whether a letter is privileged, the tribunal needs to determine whether the content

of the letter has the intention of genuine settlement of the dispute[Schering v. CIPLA;

Nicholls]. RESPONDENT holds that Exhibit C7 is an invitation in good faith for mediation

since there is room for mediation as CLAIMANT considered the project highly important and
 TWENTY-SECOND ANNUAL WILLEM C. VIS (EAST)
INTERNATIONALCOMMERCIAL ARBITRATION MOOT

was willing to enter into the contract at a loss[RfA, p.4, para.9, para.13]. Therefore, even

though RESPONDENT faces pressure from the shifting government policies and has no

choice but to raise a price reduction offer, RESPONDENT believes that the Parties could

enter into mediation and endeavor to continue cooperation. Moreover, if the material indicates

that the negotiations are still in progress and there is no finality on what was contained in the

document marked ‘without prejudice’ then the document marked ‘without prejudice’ cannot

be considered without consent of both the Parties[Gautam Mohanty; ICC Award No. 6653 of

1993].

71. In this case, Exhibit C7 was marked “without prejudice” by the RESPONDENT[[Link].7]. In

this letter, the RESPONDENT referred to its efforts after the meeting and proposed a solution

to the dispute, namely to negotiate with the applicant on the price. This price is not final.

Moreover, this letter is sent after the RESPONDENT has made a request to terminate the

contract, which is sufficient to indicate that the RESPONDENT is making a final effort before

proceeding with the formal termination of the contract. So the Exhibit C7 is an “without

prejudice” offer and can not be disclosed.

III. According to FAI Art.34, Exhibit C7 should be exclude.

72. Under FAI Art.34, the Arbitral Tribunal has a wide discretion on the admissibility, relevance,

materiality, and weight of the evidence. And the tribunal is assisted by provisions of the IBA

Rules. The evidence that merits admission is that which is relevant to the case and material to

its outcome[A Guide to the IBA Rules, para.12.233; R. v. Seaboyer]. Thus, the tribunal has the

power to exclude evidence that is not sufficiently relevant and material[A Guide to the IBA

Rules, para.12.17].

73. Clearly, in our case, the Exhibit C7 is irrelevant to the case, not to mention its materiality to
 TWENTY-SECOND ANNUAL WILLEM C. VIS (EAST)
INTERNATIONALCOMMERCIAL ARBITRATION MOOT

the award. RESPONDENT submits that Exhibit C7 is not relevant and not material, as neither

of the above reflects the true intent of issuing the offer. Firstly, the price proposed is not

immutable so this offer can not be evidence the RESPONDENT's unwillingness to

mediate[[Link].7]. Moreover, as mentioned previously, the mediation is binding regardless of

intent[ARfA, para.16]. Secondly, the offer was issued after RESPONDENT terminated the

Agreement so it can not reveal the genuine reason of the termination[[Link].6]. In fact,

RESPONDENT terminated the Agreement because of CLAIMANT’s lack of future

performance. Therefore, the Exhibit C7 has nothing to do with the case, namely, whether

mediation procedure should be conducted and whether RESPONDENT should continue to

perform the contract.

74. Thus, the Exhibit C7 is irrelevant to the case and immaterial to the award so the Tribunal

should exclude it.

B. The Arbitral Tribunal should include document Exhibit R3.

75. Given the Tribunal’s discretion, the Tribunal should include document Exhibit R3 based on the

RESPONDENT’s action, the applicable law, and the weight of evidence. RESPONDENT did

not illegally obtain Exhibit R3 and CLAIMANT has the burden of proof to challenge it (I).

There is no persuasive reason for Exhibit R3 to be protected under IBA Rule 9.4 (a) (II).

Given the factors to weigh the evidence under Art. 34 in FAI Rules, Exhibit R3 should be

included (III).

I. RESPONDENT did not illegally obtain Exhibit R3 and CLAIMANT has the burden

of proof to challenge it.

76. From the RESPONDENT’s perspective, the RESPONDENT did not conduct an illicit act, and

the Tribunal should include Exhibit R3.

 TWENTY-SECOND ANNUAL WILLEM C. VIS (EAST)
INTERNATIONALCOMMERCIAL ARBITRATION MOOT

77. Based on considerations of the public interest, Mr. la Cour raised serious allegations on his

own against Mr. Deiman on 28 April 2024 [[Link]. 8, para. 3]. After two weeks, police from

the prosecution office searched Mr. Deiman’s office [[Link]. 8, para. 5]. It is the prosecution

office that confiscated all documents from Mr. Deiman and leaked the document Exhibit R3

[[Link].8, para. 6]. RESPONDENT finally obtained the document R3. Given that the

allegation is made by Mr. la Cour himself and it’s the prosecution office to search and

disclosed Exhibit R3, RESPONDENT obtain Exhibit R3 legally.

78. Even if Mr. la Cour charged Mr. Deiman illegally, it has nothing to do with RESPONDENT.

Mr. Deiman’s illegal action cannot represent the action of RESPONDENT, so

RESPONDENT did not constitute an illicit act. Moreover, when the evidence is independent

and illegally obtained by a third party, the evidence that has become established facts can be

accepted [Nicole, para. 17]. After the prosecution office obtained Exhibit R3 illegally, Exhibit

R3 has become established fact and RESPONDENT’s obtainment did not constitute an illicit

act [[Link]. 8, para. 6].

79. Though Mr. la Cour’s allegation constitute an illegal act, Exhibit R3 did not damage the

interest of the CLAIMANT so the Tribunal can include Exhibit R3. First, Exhibit R3 isn’t a

document under any confidential privilege. Because the Parties have determined Danubia as

the arbitration place, the law of the seat of arbitration should apply to the evidence [Fabien,

para. 10]. However, Danubia has no rules on legal privileges protecting such documents from

disclosure [[Link]. 4]. Since Exhibit R3 isn’t a document under the attorney-client privilege,

the disclosure after the police searching for Mr. Deiman’s documents would not damage

CLAIMANT’s interest. Moreover, if Exhibit R3 is excluded by the Tribunal, it will hurt the

fairness of the procedure [Nicole, para. 31].

 TWENTY-SECOND ANNUAL WILLEM C. VIS (EAST)
INTERNATIONALCOMMERCIAL ARBITRATION MOOT

80. Even if the CLAIMANT submits that Mr. Deiman’s act represents the RESPONDENT’s

responsibility, the CLAIMANT should bear the burden of proof. If the evidence is disputed,

the burden of proof rests on the proposer [SA v. Ed]. CLAIMANT puts forward different

opinions on the evidence, so CLAIMANT should assume the burden of proof. It is the

CLAIMANT that held that the RESPONDENT obtained Exhibit R3 illegally and request the

Tribunal to exclude the document. RESPONDENT could conclude that it’s the CLAIMANT’s

burden of proof. Furthermore, allegations of wrongful conduct require an increased burden of

proof [BORN 2014, p. 3921]. In light of the greater burden of proof, the CLAIMANT failed to

meet the burden of proof of illicit evidence.

81. Concerning all the arguments above, RESPONDENT could draw a conclusion that

RESPONDENT did not illegally obtain Exhibit R3 and CLAIMANT has the burden of proof

to challenge it.

II. There is no persuasive reason for Exhibit R3 to be protected under IBA Rule 9.4 (a)

82. For this reason, RESPONDENT argues that Exhibit r3 is not a legal advice letter (1). Even

though Exhibit r3 is a legal advice letter, it is not protected by attorney-client privilege (2).

1. Exhibit R3 is not a legal advice letter

83. Attorney-client privilege alleged by CLAIMANT applies solely to communications wherein

an attorney provides legal advice to their client [A Guide to the IBA Rules, pp. 407-510]. This

principle was underscored in 2009 [Glamis Gold v. USA]. The tribunal emphasized that

privilege only attaches when an attorney is acting in their capacity as a legal adviser [Glamis

Gold v. USA]. So the scope of privilege does not extend to communications devoid of legal

substance.

84. In the present case, Document Exhibit R3 authored by Ms. Heidi merely presents factual
 TWENTY-SECOND ANNUAL WILLEM C. VIS (EAST)
INTERNATIONALCOMMERCIAL ARBITRATION MOOT

observations and does not offer substantive legal advice [[Link].3]. Specifically, Ms. Heidi

does not analyze legal issues or provide advice concerning the legal rights, obligations, or

risks associated with the CLAIMANT’s actions [[Link].3]. The nature of the communication

reflects an informational purpose rather than a legal advisory role.

85. Thus, Document Exhibit R3 fails to meet the foundational criteria for attorney-client privilege

and should not be protected from disclosure.

2. Even though Exhibit r3 is a legal advice letter, it is not protected by attorney-client

privilege.

86. Respondent submits that the law applicable in this case does not protect attorney-client

privilege (a). Exhibit r3 constitutes an exception to the attorney-client privilege (b). Even if it

does not constitute an exception,the attorney-client privilege does not protect in-house

counsel (c).

a. The law applicable in this case does not protect attorney-client privilege.

87. The standard of solicitor-client privilege differs across jurisdictions [IBA Guidelines on

Privilege, p. 5]. Article 9.4(b) of the IBA Rules provides that in considering whether evidence

is privileged, the arbitral tribunal shall take into account the mandatory rules of law applicable

or the relevant ethical rules[Article 9.4(b) IBA rule]. Lex causae is determined by the

jurisdiction with the closest connection to the evidence and in the case of communications

between an attorney and client, the applicable law is that of the jurisdiction where the

relationship between attorney and client is established [Inter-Pacific Bar Association, paras.

116, 117].

88. In this case, The attorney of GreenHydro Plc, Mr. Joseph Langweiler, has established the

relationship in Mediterraneo [Letters by FAI, p.21]. Given that, it is the law of Mediterraneo
 TWENTY-SECOND ANNUAL WILLEM C. VIS (EAST)
INTERNATIONALCOMMERCIAL ARBITRATION MOOT

that governs Exhibit R3. However, Mediterraneo has no rules on attorney-client privilege

protecting such documents from disclosure [[Link]. 4, p. 33]. Thus, R3 can not be protected by

this privilege.

89. CLAIMANT argues that the client's expectations should be taken into account when

considering attorney-client privilege and that the case should therefore be governed by the

Equatoriana standard. [Cl. Memo, p. 17, para. 51] However, CLIMANT’s interpretation of

this is wrong. Since the document in this case was signed in Mediterraneo,[[Link].3, p. 32]

how can the parties expect that a document signed in a territory without privileged protection

will end up with privileged protection? Therefore, according to the expectation of the parties,

r3 in this case is also not protected by the attorney-client privilege.

b. Even if the Tribunal determines that Document Exhibit R3 contains legal advice, it

should still not be protected due to the iniquity exception.

90. Attorney-client privilege does not extend to communications made in furtherance of fraud,

crime, or other unlawful conduct [JSC BTA Bank v. Ablyazov]. In that case, the England and

Wales High Court explicitly held that privilege is forfeited when the dominant purpose of the

communication is to facilitate iniquitous behavior [JSC BTA Bank v. Ablyazov].

91. In the current case, Document Exhibit R3 reflects a communication between the CLAIMANT

and its in-house counsel, Ms. Heidi. It was intended to further fraudulent conduct against the

RESPONDENT [[Link].3]. The communication in question involves an attempt by the

CLAIMANT to misrepresent facts on the realization of local content and the cooperation with

P2G [[Link].2; [Link].3; ARfA, para.5]. The CLAIMANT took advantage of the

RESPONDENT's emphasis on the local content to commit fraud and thereby gain an undue

advantage in the bidding [[Link].1]. Such actions clearly fall within the scope of the iniquity
 TWENTY-SECOND ANNUAL WILLEM C. VIS (EAST)
INTERNATIONALCOMMERCIAL ARBITRATION MOOT

exception, as they constitute an abuse of the attorney-client relationship for unlawful purposes

[Clarifications for the iniquity exception]. It is crucial to recognize that the iniquity exception

is rooted in the principle that privilege should not be used as a shield to protect wrongful acts.

92. Therefore, Document Exhibit R3 should not be protected as it should apply the iniquity

exception.

c. Even if it does not constitute an exception,the attorney-client privilege does not

protect in-house counsel.

93. In-house counsel are attorneys employed directly by a company[Greg Cavanaugh]. At present,

many jurisdictions do not consider the scope of attorney-client privilege to include in-house

advisers[IBA Task Force on Privilege; Lex Mundi; Akzo case]. In Akzo case, the Court ruled

that solicitor-client privilege does not protect communications with in-house lawyers as “the

in-house lawyer’s economic dependence and the close ties with his employer meaning that he

does not enjoy a level of professional independence comparable to that of an external

lawyer[Akzo case].

94. In this case, Exhibit R3 is an internal email written by the legal director of the

CLAIMANT[[Link].3]. Therefore, this is an internal attorney-client document that is not

protected by attorney-client privilege and should be disclosed by the tribunal as evidence.

III. Given the factors to weigh the evidence under Art. 34 in FAI Rules, Exhibit R3

should be included.

95. Under FAI Art.34, the Arbitral Tribunal has wide discretion on the admissibility, relevance,

materiality, and weight of the evidence [Art.19 Model Law]. When evaluating the

admissibility of the evidence, RESPONDENT again refers to the IBA rules. If it is the

tribunal’s view that evidence is relevant and material, it has a place in the proceedings [A
 TWENTY-SECOND ANNUAL WILLEM C. VIS (EAST)
INTERNATIONALCOMMERCIAL ARBITRATION MOOT

Guide to the IBA Rules, para.12.17]. Firstly, the evidence is relevant when it can reasonably

assist a party in establishing its case [Art 9.2 IBA Rules; A Guide to the IBA Rules, para.6.92;

O’ Malley, p.46]. Secondly, the evidence is material when it can influence the tribunal's

determination of issues in dispute [A Guide to the IBA Rules, para.6.103].

96. In our case, while the CLAIMANT argues that Exhibit R3 merely contains some advice

irrelevant to the issue [[Link], para.64], the RESPONDENT submits it shall be included as

evidence considering the relevancy and materiality. RESPONDENT has been emphasizing the

amount of local content was a decisive criterion for the final selection [[Link].1] and Exhibit

R3 is closely related to the realization of the local content by CLAIMANT. It shows that

before the signing of the Agreement, CLAIMANT had been internally aware of the high

possibility of failure of its negotiation with P2G [[Link].3]. But it later deliberately told the

RESPONDENT of the opposite opinion by saying that they had a very good discussion with

them [ARfA, para.5]. Together with CLAIMANT’s later delayed delivery, RESPONDENT

finally lost trust in CLAIMANT's ability to the realization of this program. Therefore,

RESPONDENT terminated the contract. Under Art.7.3.1(d) of the Equatorianian Civil Code,

the non-performance gives the aggrieved party reason to believe that it cannot rely on the

other party’s future performance [ARfA, para.19]. So Exhibit R3 proves the validity of the

termination of the Agreement and the impossibility of specific performance by

RESPONDENT.

97. Furthermore, the probative value of Exhibit R3 outweighs its prejudicial effect [Art. 9 IBA

Rules; ABB v. Hochtief; Methanex v. USA; Muhammad v. Prosecutor]. The tribunal's

determination that the CLAIMANT acted in bad faith is based on factual evidence rather than

prejudice. In this context, the probative value of Exhibit R3 is crucial in determining the final
 TWENTY-SECOND ANNUAL WILLEM C. VIS (EAST)
INTERNATIONALCOMMERCIAL ARBITRATION MOOT

award, and any purported prejudice is non-existent and insufficient to outweigh its relevance.

Thus, Exhibit R3 should be included as it is relevant and material.

Conclusion

98. The Arbitral Tribunal should exclude Exhibit C7 and include Exhibit R3 to uphold procedural

integrity and ensure fairness. Exhibit C7, a "without prejudice" offer, is protected by

confidentiality and settlement privilege under arbitration principles and FAI Art. 34, making it

inadmissible. Conversely, Exhibit R3 is relevant and material to RESPONDENT's claim, and

it is not shielded by privilege, supporting its inclusion in the proceedings.

ISSUE C. THE CISG IS NOT APPLICABLE TO THE AGREEMENT.

99. RESPONDENT submits that the CISG is not applicable to the Agreement since the

“internationality” requirement under Art.1 of CISG is not satisfied (A), Art. 2 of CISG

excludes the application of the Convention (B) and the Agreement is a mixed contract where

supplying of services and labor constitutes a preponderant part (C). Hence, the CISG is not

applicable to the Agreement.

A. The “internationality” requirement under Art.1 of the CISG is not satisfied.

100. Pursuant to the Preamble and Art. 1(1) CISG, contracts for international sales of goods are

subject to the CISG's jurisdiction [Schlechtriem/Schwenzer, Art.1, para.6; Kröll 2018, p.22;

Schlechtriem/Butler II, p.22]. CLAIMANT initially ignores that the Parties are located in the

same country, which neglects the requirement of “internationality”. This requirement is

 TWENTY-SECOND ANNUAL WILLEM C. VIS (EAST)
INTERNATIONALCOMMERCIAL ARBITRATION MOOT

fulfilled solely when the parties' respective places of business are situated in different

contracting states [Art.1(1), CISG]. Notably, while RESPONDENT is an Equatoriana

company, CLAIMANT also maintains its place of business in Equatoriana (I). Among the two

business locations, CLAIMANT's place of business with the closest relationship to the

contract is Equatoriana (II). Regardless, the RESPONDENT was aware of CLAIMANT’s

place of business in Equatoriana at the time of concluding the contract (III).

I. CLAIMANT maintains its place of business in Equatoriana.

101. While there is no dispute that CLAIAMNT has a business place in Mediterraneo, the

Tribunal could not disregard its additional location in Equatoriana, as CLAIMANT actively

engages in trade there (1), and the construction site in Equatoriana qualifies as a place of

business(2).

1. CLAIMANT actively engages in trade in Equatoriana.

102. A place of business is deemed established when a party utilizes it openly for trade purposes,

demonstrating a certain degree of duration, stability, and independence[CISG online-583, p. 5

para. 21; CISG online-1978, p. 4, para. 25; Schlechtriem/Schwenzer, p.146]. It needs to be

defined as "the place from which a business activity is de facto carried out", merely requiring

to execute a minimum of actual functions within the business of the company concerned.

[CISG online-1627, p.7; CISG online-659, p.2, CISG online-737, p. 4, Chinchilla Furs Case,

p. 4 para. 10].

103. Back to our case, CLAIMANT operates a business place in Equatoriana. From January 2024,

when the RESPONDENT handed over the construction site, the CLAIMANT dedicated itself

entirely to fulfilling the Agreement in Equatoriana until the project's completion in 2027 or

2028. Consequently, it is evident that the CLAIMANT openly uses Equatoriana for trade
 TWENTY-SECOND ANNUAL WILLEM C. VIS (EAST)
INTERNATIONALCOMMERCIAL ARBITRATION MOOT

purposes [[Link].2].

2. The construction site in Equatoriana qualifies as a place of business.

104. When the contract concluding and performance locations coincide, the construction site may

constitute a place of business. In Walter Bau v. General Kommerz, the seller's place of

business is the construction site where the contract was concluded and performed [CISG

online-1627, p. 7].

105. In the present case, both the Parties signed the PSA, explicitly stating that the contract was

concluded in Equatoriana [[Link].2]. Furthermore, the plant was constructed in Equatoriana,

with nearly half of the goods and packaging of all stacks occurring there, indicating that most

of the contract performance occurs in Equatoriana [[Link].5, para. 8]. Therefore, the

construction site in Equatoriana qualifies as a place of business.

II. CLAIMANT's place of business with the closest relationship to the contract is

Equatoriana.

106. When considering the closest relationship to the business place, the main factor should be the

performance place of the contract (1), and it is irrelevant whether the place serves as an

administrative center or registration place (2).

1. The prevailing view prioritizes the performance place as the most relevant business

place.

107. The performance place shall be the most pertinent business place [Schlechtriem/Schwenzer,

Art. 10, para.6; Kröll 2018, Art. 10, para.8; Honnold, Art. 10, para.31]. Often, the closest

nexus to the place of business is primarily determined by contract performance, goods

manufacture, and delivery, and where the bulk of business activities are carried out [Steel wire

case, p. 10; Floor coverings case, p. 5; Equipment for packaging of milk case, p. 6; Zodiac
 TWENTY-SECOND ANNUAL WILLEM C. VIS (EAST)
INTERNATIONALCOMMERCIAL ARBITRATION MOOT

Seats v. Synergy Aerospace case, p. 5; VLM Food v. Illinois Trading case, p.7].

In the present case, the actual contract performance and delivery are executed by Volta

Transformer in Equatoriana, with extensive equipment assembly and maintenance occurring

there [[Link].5, para. 11]. Hence, it is the most pertinent place of business.

2. It is irrelevant whether the place serves as an administrative center or a registration

place.

108. When considering accessing the closest relationship, the place of registration and

administrative center are not determinative. In the Steel wire case, the CLAIMANT was a

Cypriot company with registered offices and central administration in Nicosia, Cyprus. Since

the Tribunal considered Nicosia's place of business not to be the actual contract performance

location but rather a financial and accounting hub, it found that the closest place of business

was in Moscow [Steel wire case, p. 10]. Moreover, the place where the transactional

communications at issue and the invoices were sent from the Montreal office is not decisive

[VLM Food v. Illinois]. Consequently, CLAIMANT's place of registration and administrative

center does not affect the closest relationship to the place of business located in Equatoriana

[[Link].5, para. 11; [Link].4; supra].

III. RESPONDENT was aware of CLAIMANT’s place of business in Equatoriana at the

time of concluding the contract.

109. When considering the closest relationship to the contract and its performance, the parties'

circumstances known or contemplated at any time before or at contract formation are taken

into account [Art. 10, CISG; Kröll 2018, Art. 10, para.21; Honnold, Art. 10, para.34]. Prior to

contract formation, the RESPONDENT was already aware that Volta Transformer had been

consistently working for the CLAIMANT through the previous emails from both Parties, for
 TWENTY-SECOND ANNUAL WILLEM C. VIS (EAST)
INTERNATIONALCOMMERCIAL ARBITRATION MOOT

most of them the construction site would be located in Equatoriana [[Link].4; [Link].2].

Therefore, RESPONDENT is aware of the place of business in Equatoriana at the time of

concluding the contract.

B. The Agreement is a mixed contract where the supplying of services and labor

constitutes a preponderant part.

110. By virtue of Article 1, the Plant is not considered "goods" within the meaning of the CISG (I).

Additionally, the Agreement is a mixed contract where the preponderant part of it lies in the

supplying of services and labor (II).

I. By virtue of Art.1, the Plant is not "goods" in the sense of CISG.

111. According to Art.1 CISG, the CISG is applicable to "contracts of sale of goods". Despite the

absence of a definition of "goods" within the CISG, as a term within the Convention, it must

be interpreted in accordance with Article 7(1), ie. goods are to be autonomously interpreted,

taking into consideration the "international character" of the CISG and the "necessity to

promote uniformity in its application". Goods within the meaning of the CISG are movable

and tangible items at the time of delivery. Moreover, it is widely acknowledged that the CISG

does not apply to immovable property [Kröll 2018, p.32; Schlechtriem/Schwenzer p.145;

Peter Huber, p.41; CISG online-737; PVC Case; Chinchilla Furs Case].

112. In this case, CLAIMANT agreed to deliver and hand over the Plant no later than 2 January

2026 [[Link].2]. As the Plant is immovable at the time of delivery, it does not meet the "goods"

standard within the CISG's definition. Hence, the CISG should not be applicable.

II. The preponderant part of the Agreement lies in the supplying of services and labor.

113. In interpreting the words "preponderant part" under Article 3(2) CISG, primarily an

"economic value" criterion should be used. An "essential" criterion should only be considered
 TWENTY-SECOND ANNUAL WILLEM C. VIS (EAST)
INTERNATIONALCOMMERCIAL ARBITRATION MOOT

where the "economic value" is impossible or inappropriate to apply taking into account the

circumstances of the case [AC No.4, para.1]. In this case, regardless of whether the

"economic value" criterion (1) or the "essential value" (2) is used, the preponderant part of the

Agreement invariably lies in the provision of services and labor.

1. Under the economic value criterion, the Agreement is never a contract for sales of

goods.

114. Although the economic value approach is correct and the majority seems to favor an

economic value test [AC No.4, para.3.3; Schlechtriem/Schwenzer p.171; CISG-Online 2026;

CISG-Online 2351], it is inappropriate to apply the economic criterion to the Agreement ((1)).

Even under the economic value test, the most probable outcome will be in favor of the

RESPONDENT ((2)).

(1) It is inappropriate to apply economic criterion to the Agreement.

115. In this case, it is inappropriate to apply economic criterion to the Agreement.

116. Firstly, it is impossible to calculate the value of sales or services in this case. Against the

opposing counsel’s allegation [[Link], para.98], the word "preponderant" should not be

quantified by predetermined percentages of values [AC No.4, para.3.4]. The economic value

criterion should not be used when it is impossible or inappropriate to determine the economic

values of obligations at the time of contracting [AC No.4, para.3.3]. In the Agreement, the

Parties stipulated that the RESPONDENT has two expansion options to choose from, which

makes the pricing structure of the Agreement dynamic and heavily reliant on uncertain future

events [[Link].2]. Therefore, it is unsure whether or which options in the Agreement will be

activated.

117. Secondly, judicial practice finds it unfeasible to determine preponderance on the basis of
 TWENTY-SECOND ANNUAL WILLEM C. VIS (EAST)
INTERNATIONALCOMMERCIAL ARBITRATION MOOT

economic value [Cylinder for the production of tissue-paper case; Prada S.p.A.v. Caporicci

USA Corp]. The Agreement is a turnkey contract [[Link].1]. It includes a variety of obligations

on both sides, making a direct economic comparison almost impossible and the CISG will

frequently not apply to such contracts. Therefore, in this case, it is inappropriate to determine

the preponderant part of the obligations using the economic value criterion.

(2) Even under the economic value test, the most possible outcome will be in favor of

RESPONDENT.

118. Even if the Tribunal finds the economic value test is appropriate in this case, the most likely

outcome will be in favor of RESPONDENT.

119. According to the economic value criterion, the preponderant part of the seller's obligations is

the obligation that exceeds over 50% of the entire contract's value [AC No.4, para.3.4; Hotel

materials case; Saltwater isolation tank case; Warehouse case; Waste recycling plant case;

Ferrari 2019, Art. 3, para. 15]. In this case, considering the willingness of both parties, the

most likely option to be implemented is the eAmmonia-Option [ARfA para.5]. Under this

option, the service obligation will account for 52.5%.

2. Under the essential criterion, service obligations constitute a preponderant part.

120. A contract is not governed by the CISG if the supply of labor forms the preponderant part of

the obligations [Art.3(2), CISG; Inter Rao v. CELEC case; CISG-online 726]. In this case,

service obligations take precedence over the sales part for two firm reasons: CLAIMANT’s

service obligations take a dominant position in the contract ((1)); the contractual terms

demonstrate the parties' intent to view the Agreement more to be a service contract ((2)).

(1) CLAIMANT’s service obligations take a dominant position in the contract.

121. Turnkey contracts will most likely be excluded from the Convention as the sale of goods
 TWENTY-SECOND ANNUAL WILLEM C. VIS (EAST)
INTERNATIONALCOMMERCIAL ARBITRATION MOOT

element is rarely at the forefront [Schlechtriem/Schwenzer, p.174].

122. In the Waste separation machines case, the court considered that different components of the

Plant need to be put together to form a whole new unit [CISG-online 726]. The functioning,

respectively the correct adjustment of the various Plant parts and their coordination with each

other can only be undertaken when the Plant is already effectively in operation. Accordingly,

the assembly, adaptation, instruction, and similar works constitute a considerable part of the

contractual performance. In light of this, the court assumes that the CISG does not apply to

turnkey contracts, which do not so much provide for an exchange of goods against payment,

but rather for a network of mutual duties to collaborate with and assist the other party. Besides,

the period of the service time is another critical factor in determining the preponderance of the

Agreement. In another arbitration case, the Tribunal held that the service time over 12 months

would be rather long to indicate an essential service duty [Prada S.p.A. v. Caporicci USA

Corp.].

123. Theoretically, training and technical assistance are often important in turnkey contracts. In

judicial practice, the tribunal considered that the turnkey agreement is frequently used for

large-scale infrastructure projects, where the employer may have no expert knowledge and

experience in the process of designing and construction and consequently, rests the

responsibility for the whole project upon the Contractor [Oprema v. Gazprom; CISG-online

2840].

124. In this case, CLAIMANT argues that the Agreement focuses on the delivery of the Plant.

However, CLAIMANT's service obligations play an important role in the whole project,

involving the mounting of the electrolyzers, supervision, control, maintenance, training

services, and the transfer of know-how, which represent the preponderant service part of the
 TWENTY-SECOND ANNUAL WILLEM C. VIS (EAST)
INTERNATIONALCOMMERCIAL ARBITRATION MOOT

Agreement. Moreover, the service time lasts almost five years [Cl. Ex.2, Art.2], which

indicates an essential service duty. Hence, the service obligations under the Agreement go

beyond the sale elements.

(2) Contractual terms show the Parties' intent to perceive the Agreement more to be a

service contract.

125. The designation of the parties under the mixed contract reflects their attitude towards the

contractual obligations [CISG-online 5706; CISG-online 2840].

126. Firstly, according to the preamble of the Agreement, the parties reiterate themselves as

"customer and contractor", but not "buyer and seller", indicating their willingness to regard

the agreement as a construction contract as much as possible [Cl. Ex.2]. Moreover, paragraph

five of the preamble clearly states that the main purpose is to build the plant and make it

operational, reflecting the focus of the services [Cl. Ex.2].

127. Secondly, the parties precisely stipulate the scope of supply and service, milestone payment

conditions, and acceptance test requirements [Cl. [Link].2, Art.4, Art.7, Art.18], which

crystallizes the parties' concerted expectation to ensure that all technological, administrative,

and functional requirements that are necessary for the establishment of a fully operational

power Plant are effectively addressed. Above all, it stands to the conclusion that the parties

intend to perceive the Agreement more to be a service contract.

C. The outstanding transaction is classified as sales by auction under Art.2(b) CISG.

128. CLAIMANT alleged that reverse auction is not covered by Art.2 CISG and that the contract

was concluded by tender process [Cl. Memo para.74]. However, CLAIMANT discounts the

nature of the reverse auction phase. RESPONDENT submitted that the CISG does not apply

since the outstanding transaction is a sale by auction under Art.2 CISG. Reasons can be
 TWENTY-SECOND ANNUAL WILLEM C. VIS (EAST)
INTERNATIONALCOMMERCIAL ARBITRATION MOOT

grouped in three folds. First, reverse auction involves unpredictability and domestic

interference (I). Second, reverse auction has the nature of competitive bidding (II). Third,

reverse auction lays the foundation of the contract award (Ⅲ).

I. Reverse auction involves unpredictability and domestic interference.

129. CLAIMANT wrongly ignored the drafting history of Art.2(b) and hurriedly shifted to the

analysis of the contract formation mechanism [Cl. Memo para.76]. However, it's pivotal for

the tribunal to gain a deeper insight into the reasons for excluding auction sales under Art.2(b)

CISG. From the drafters' perspective, sales by auction shall be excluded for two firm reasons.

130. First, in an auction sale, the applicability of the Convention is uncertain until the highest

bidder is knocked down, i.e. the acceptance of the best offer [Kröll., Art. 2, para.4; Hachem,

Art. 2, para.3].

131. Second, sales by auction are often subject to special rules under the applicable national law,

which would undermine legal certainty [Kröll, Art. 2, para.4; Hachem, Art. 2, para.3;

Honnold, Art. 2, para.51; Secretariat commentary, Art. 2, para.5].

132. In the current case, the surprise effect in traditional auction sales remains in the outstanding

transaction, since the applicability of the CISG would be uncertain until the auction is

completed [RfQ, Art.1, p.8]. Moreover, the interference of national law also exists since the

reverse auction is subject to the public procurement law of Equatoriana [PO2, para.9; [Link].1,

para.8], which contradicts CISG in freedom of forms and formation rules [Inter Rao v.

CELEC case, para.245].

133. Therefore, considering the drafters' intent, reverse auction falls within the scope of the

exclusion list under Art.2(b) CISG.

II. Reverse auction has the nature of competitive bidding.

 TWENTY-SECOND ANNUAL WILLEM C. VIS (EAST)
INTERNATIONALCOMMERCIAL ARBITRATION MOOT

134. CLAIMANT tries to prove that reverse auction conducted through the public procurement

process is not covered by Art.2(b) CISG [[Link] para.79]. However, CLAIMANT's

explanation about this issue is plain and the Electronic Electricity Meters case they invoked is

not feasible. It's key to note that the public tender in the aforementioned case does not contain

any competitive bidding process [Electronic Electricity Meters Case, para.30]. On the

contrary, the competitive bidding process is a salient cog of the procurement process in this

dispute [RfQ, Art.1, p.8].

135. To help the tribunal crystallize the core problem, RESPONDENT submitted that reverse

auction is covered by Art.2(b) CISG since its nature of competitive bidding is consistent with

traditional auctions.

136. Competitive bidding is an essential element of an auction sale [Wyoming case, p.9; The Law

of Auctions, Stimmel & Roeser, para.5]. Free and fair competition among bidders brings the

highest financial return to the seller [Ibid.]. In every sort of auction, there are either successive

bids for the property or successive offerings at different prices to promote competition [Ibid.].

The definition of auction should be interpreted to preserve and promote competition [Ibid.].

137. Back to our case, the nature of reverse auction is the same as the traditional auction, where

the mere difference between them is the direction of bidding. A traditional auction must be

publicly announced in advance, where the goods are awarded to the highest bidder by

‘knockdown’, ie an acceptance of the best offer [Schlechtriem/ Schwenzer, Art. 2, para.20;

Brunner/Meier/Stacher, Art. 2, para.11]. In contrast, a reverse auction is a type of auction in

which the traditional roles of buyer and seller are reversed [wikipedia]. Accordingly, the

reverse auction’s nature aligned with the traditional auction’s framework and therefore

reinforces a broader interpretation of Art.2(b) exclusion.

 TWENTY-SECOND ANNUAL WILLEM C. VIS (EAST)
INTERNATIONALCOMMERCIAL ARBITRATION MOOT

III. Reverse auction lays the foundation of the contract award.

138. CLAIMANT alleged that the essence of this transaction is a public tender based on detailed

negotiation. However, CLAIMANT exaggerates the link between the negotiation and the

outcome of the contract award. If we penetrate the surface, it's reasonable to find that it's the

reverse auction that plays a critical role in contract awards.

139. First, reverse auction lays the foundation of negotiation. An award decision can only be made

if the final bidder has been selected in an auction [RfQ, Art.7, p.9]. Since the final bidder had

to be selected by the auction procedure before the contract could be concluded, the stage of

competitive bidding should be decisive.

140. Second, the influence of negotiation is limited because price should be the determined

element in the conclusion of the Agreement. What RESPONDENT deadly concerns is the

price and thus the second stage of reverse auction is put forward. In a real-time dynamic

process, the lowest two bidders would automatically enter into the negotiation stage based

purely on the price [RfQ, Art.7, p.9]. Even if the final two bidders commence negotiation in

the last phase, negotiation between the procuring entity and the bidders leads to an 'auction

effect' because that would put the bidders under pressure to reduce their prices [Kristijan,

p.29]. Beneath the surface, the procedure of negotiation aims at bringing RESPONDENT the

best financial return through invisible price competition. In light of this, the inherent of this

transaction is different from public tender.

141. To conclude, price is the critical segment in the formation of the PSA, complying with the

essence of a traditional auction sale. Therefore, this transaction should be viewed as a sale by

auction under Art.2(b) CISG.

Conclusion
 TWENTY-SECOND ANNUAL WILLEM C. VIS (EAST)
INTERNATIONALCOMMERCIAL ARBITRATION MOOT

142. The “internationality” requirement under Art.1 of CISG is not satisfied. Art. 2 of CISG

excludes the application of the Convention. The Agreement is a mixed contract where

supplying of services and labor constitutes a preponderant part. Hence, the CISG is not

applicable to the Agreement.

ISSUE D. THE PARTIES HAVE VALIDLY EXCLUDED THE

APPLICATION OF THE CISG UNDER ART.6.

143. Even if the CISG is applicable to the Agreement, the Parties have validly excluded the

application of the CISG through their choice-of-law clause [Art.29 PSA]. The existing text of

Art.6 CISG was sufficient to support that the CISG could be implicitly excluded by choosing

a Contracting State's law [AC No.16, para.2.1; Summary Records of the 4th Meeting, p.12;

William P. Johnson, p.226; Albertine-Theresa, para.3.2.2]. Moreover, interpreting CISG with

the Vienna Convention on the Law of Treaties leads to the same result.

144. In this case, the Parties validly exclude the CISG because the Parties chose the law of

Equatoriana while excluding conflicts of law principles (A), the exclusion is valid based on

the Parties' mutual consents (B) and the CISG is excluded by referring to PPL in RfQ and the

Agreement (C).

A. The CISG is excluded by choosing the law of Equatoriana and excluding conflicts of

law principles.

145. Contrary to CLAIMANT’s submissions [Cl. Memo para.113], the CISG is excluded by Art.

29 of the Agreement because choosing the law of Equatoriana will Exclude the Application of

CISG(I), and CISG forms part of the conflict of laws principles (II).
 TWENTY-SECOND ANNUAL WILLEM C. VIS (EAST)
INTERNATIONALCOMMERCIAL ARBITRATION MOOT

I. Choosing the law of Equatoriana will Exclude the Application of the CISG.

146. At the level of the relationship between international law and domestic law, the national legal

systems in the world can be divided into monism and dualism. In the dualistic state legal

system, international law and domestic law are two separate legal systems [Ferraro, para.12;

Stigen, p.101; Moses, p.11; Lim, p.79] and the application of treaty rules must be facilitated

through an 'act of transformation,' which refers to the governmental action of incorporating

treaty norms into domestic law [Xiao-hong, page. 23, para. 4]. On this basis, the CISG is not

part of domestic law for a dualistic state as Equatoriana, in other words, if the Parties choose

to apply the law of Equatoriana, the Convention is excluded (1), like using the word

“exclusive” (2).

1. Choosing to apply general domestic law is sufficient to exclude the application of the

CISG.

147. In both Fluorite Case II and Biophysics Corp. v. Dubois Marine, the parties specified the

governing law in their agreements: Swiss law in Fluorite Case II and Rhode Island law in

Biophysics Corp. v. Dubois Marine. Both tribunals held that this was sufficient to exclude the

CISG [Fluorite Case II, para29; Biophysics Corp. v. Dubois Marine, para.15]. In this way,

choosing to apply general domestic law is sufficient to exclude the application of the CISG

[Kazakh sales contract case I; Nuova Fucinati S.p.A. v. Fondmetal International A.B., p.2;

Zykronic Inc. v. Loxone Electronics GmbH, para.8; AC No.16, Para. 4.3].

148. Back to our case, the Parties stipulate that “the Agreement is governed by the law of

Equatoriana” and this could be regarded as an exclusion from the CISG [PSA, Art. 29].

2. Using the word “exclusion” may be seen as excluding the CISG.

149. A number of courts held that the choice-of-law clause had to be interpreted as an exclusion of
 TWENTY-SECOND ANNUAL WILLEM C. VIS (EAST)
INTERNATIONALCOMMERCIAL ARBITRATION MOOT

the CISG's application due to the use of the term "exclusively". For example, in the Leather

and Textile Wear case, the contract was to be "governed exclusively by Italian law" and in the

view of the tribunal, this amounted to an implicit exclusion of CISG [Leather and Textile

Wear case, para.2; Adex International v. Eaconncase, para.7.5.6].

150. In this case, comparing the old and new model contracts reveals that the new model contract

has deleted "The Agreement is governed by the CISG." which indicates that per the new

model contract, the contract is exclusively governed by Equatorian law and excludes the

CISG [PSA, Art. 29].

II. The CISG forms part of the conflict of laws principles.

151. Under Article 29 of the Agreement, the Parties clearly state that the Agreement is governed

by the law of Equatoriana to the exclusion of its conflict of laws principles. CLAIMANT may

argue that the CISG is a substantive law treaty instead of a conflict of laws instrument.

However, Art. 1 of the CISG is a conflict of laws provision. On the one hand, Art. 1(1)(b)

acknowledges the application of conflict of laws rules and also makes explicit that the

Convention will be part of national domestic law in all Contracting States. On the other hand,

in recent times an increasing number of commentators have advocated that, under voie

indirecte, Article 1(1)(a) would also serve as the relevant rule on the conflict of laws

[Equipment for packaging of milk case, p.6; Indian-Russian sales contract case, para.5.3;

Kröll 2018, p.5,22-23; Schlechtriem/ Schwenzer, Intro to Articles 1–6, para.13].

B. The Parties exclude the CISG based on their mutual intentions.

152. To make the CISG be excluded, the real intent of the parties must be manifested clearly

between the parties [LED screen case; Road vehicles case; Replacement parts for ships case;

Schlechtriem/Schwenzer, p.205; AC No.16, para.3.1]. Art. 8 of the CISG provides two ways
 TWENTY-SECOND ANNUAL WILLEM C. VIS (EAST)
INTERNATIONALCOMMERCIAL ARBITRATION MOOT

of interpretation. On the subjective level, regard is the intent where the other party knew or

could not have been unaware of what that intent was. For the objective level, the Tribunal

should consider the understanding of a reasonable person of the same kind as the other party

would have had in the same circumstances [Citroen Type C 5 case; Construction Materials

case IV; BP Oil International case; Gasoline and Gas oil case]. All relevant circumstances

including the negotiations, any practices the parties have established between themselves,

usages, and any subsequent conduct of the parties to be examined [Albertine-Theresa

Albrektsen; Fruits and Vegetables case].

I. RESPONDENT proposed an intention to exclude unambiguously.

153. RESPONDENT indicates its intent to exclude the CISG sufficiently and unambiguously. It

based the Agreement on its 2022 Model Contract, a mechanism clearly against the CISG

[Art.29 PSA]. Early in 2022, the official press release characterized the amendment of the

Model Contract as "to strengthen the role of Equatorianian Law" [PO2, para.10]. This shows

the RESPONDENT's intent to make the Agreement as local as possible without being

interfered with by other instruments.

II. CLAIMANT knowingly consents to such exclusion.

154. Quite contrary to CLAIMANT ’s allegation [[Link] para.112], they consents with the

exclusion of the CISG subjectively and objectively based on three relevant facts.

155. Firstly, from the subjective perspective, Ms. Smith, the lawyer of CLAIMANT, had

interpreted the choice of law clause in the Model Contract as non-harmonized law that does

not involve the CISG. She and her intern evaluated the applicability of the CISG and

concluded that it was not applicable [PO2, para.11].

156. Secondly, at the objective level, since CLAIMANT had formerly engaged in transactions
 TWENTY-SECOND ANNUAL WILLEM C. VIS (EAST)
INTERNATIONALCOMMERCIAL ARBITRATION MOOT

with other Equatoriana government entities [PO2, para.2], it should keep an eye on policy

changes in the pivotal governing law. Specifically, one main negotiator [Link] specializes in

international contracts [PO2, para.2 and para.11], and the other Mr. Deiman has an LLM

degree. They could not be unaware that displacing the CISG with Equatorianian Law would

manifest an intent to exclude.

157. Thirdly, in 2022, the same year RESPONDENT revised our Model Contract, CLAIMANT

voluntarily applied to be the potential seller of RESPONDENT. It seems impossible that a

reasonable businessman hasn’t noticed an important press that clearly expressed exclusion

purpose before making a commercial application [Cl. Ex.5, para.6]. However, CLAIMANT

signed the Agreement without raising any concerns about the governing law. It consents to the

exclusion subjectively and objectively.

C. The CISG is excluded by referring to PPL in RfQ and the Agreement.

158. The selection of a particular choice of law may amount to an implied exclusion of the CISG

[Asante v. PMC case; Schlechtriem/Schwenzer, p.207; AC No.16, para.4.1]. Contrary to

CLAIMANT’s opinion, the CISG is excluded, but not derogated by choosing the Public

Procurement Law of Equatoriana (I). This is particularly true since the PPL overlaps with the

CISG in key provisions (II).

I. Choosing a specific domestic law excludes the CISG.

159. Choosing a specified domestic law implies an intent to exclude the CISG regardless of the

position that it is invoked [Kröll 2018, p.107]. The Austrian Supreme Court held that referring

to the Austrian Consumer Protection Act in the standard term was an implied exclusion, even

if the choice was only stated in the guarantee clause outside the main contract [Citroen Type C

5 case]. In our case, since the Parties have mentioned the PPL in both Art.8 of RfQ and Art.31
 TWENTY-SECOND ANNUAL WILLEM C. VIS (EAST)
INTERNATIONALCOMMERCIAL ARBITRATION MOOT

of the Agreement, it is clear that they prefer to apply domestic mechanisms to deal with

potential conflicts.

II. The PPL overlaps with the CISG in key provisions leading to a full exclusion.

160. CLAIMANT agrees whether the CISG is excluded depends on a case-by-case analysis of

the compatibility between the CISG and the domestic laws [Cl. Memo para.125], the CISG

shall be excluded in this case since the PPL considerably conflicts with the CISG. In the Inter

Rao V. CELEC EP case, the Tribunal concluded that the choice of public procurement law

stipulating contracting procedure and the requirements makes the CISG excluded. Therefore,

it can be inferred that a specific procurement law like PPL is highly overlapping with the

general rules of the CISG and can lead to a full exclusion.

Conclusion

161. The implied exclusion of the CISG is widely recognized and acknowledged and in this case,

the Parties agree to exclude CISG under Art.6 because the CISG is excluded by choosing the

law of Equatoriana to the exclusion of conflicts of law principles and the CISG is excluded by

referring to PPL in RfQ and the Agreement.

REQUEST FOR RELIEF

In light of the above, Counsel for Respondent respectfully requests the Tribunal to make the
following orders:
1) To reject the claim for lack of jurisdiction, admissibility or exercise of direction;
2) To exclude Exhibits C7 and include Exhibits R3;
3) To declare the CISG is not applicable to the Agreement; and if not
4) To declare the Parties have validly excluded its application.
 TWENTY-SECOND ANNUAL WILLEM C. VIS (EAST)
INTERNATIONALCOMMERCIAL ARBITRATION MOOT

TABLE OF ARBITRAL AWARDS AND COURT DECISIONS

CITED AS REFERENCE

ABB v. Hochtief Cited in para(s): 97

England
Queen’s Bench Division (Commercial
Court)
[8 March 2006]
ABB AG v. Hochtief Airport GmbH
[2006] EWHC 388 (Comm)

Adex International Ltd v. Eaconn Cited in paras:149

B.V. Netherlands
Gerechthof 's-Hertogenbosch (Court of
Appeal 's-Hertogenbosch)
[13 November 2007]
Netherlands v. United Kingdom
C0401754

Akzo case Cited in para(s):93

England
England and Wales Court of Appeal
[14 September 2010]
Akzo Nobel Chemicals and Akcros
Chemicals v Commission
30 Case No: C-550/07P

Aiton Australia v. Transfield Cited in para(s): 22

Australia
New South Wales Supreme Court
Aiton Australia Pty Ltd v. Transfield Pty Ltd
[1999] NSWSC 996

Asante v. PMC case Cited in paras:158

 TWENTY-SECOND ANNUAL WILLEM C. VIS (EAST)
INTERNATIONALCOMMERCIAL ARBITRATION MOOT

United States
District Court for the Northern District of
California
[30 July 2001]
Asante Technologies, Inc. v. PMC-Sierra,
Inc.
C 01-20230 JW

Biophysics Corp. v. Dubois Marine Cited in para(s): 147

USA
U.S. District Court for the District of Rhode
Island
[30 January 2006]
USA v. Canada
C.A. 05-321-T

BP Oil International case Cited in paras:152

United States
U.S. Court of Appeals (5th Circuit)
[03 November 2004]
BP Oil International, Ltd. v. Empresa
Estatal
02-20166

Burlington Resources Inc. v. Cited in para(s): 30

Republic of Ecuador ICSID
[2 June 2010]
Burlington Resources Inc. v. Republic of
Ecuador
Case No. ARB/08/5

Casinos Austria v. Argentina Cited in para(s):22、27、28

ICSID
[29 June 2018]
Casinos Austria International GmbH and
 TWENTY-SECOND ANNUAL WILLEM C. VIS (EAST)
INTERNATIONALCOMMERCIAL ARBITRATION MOOT

Casions Austria Aktiengesellschaft v.

Argentina Republic
Case No. ARB/14/32

Channel v. Balfour Cited in para(s): 19

England
House of Lords
[11 February 1993]
Channel Tunnel Group Ltd v. Balfour Beatty
Construction Ltd
[1993] A.C. 334

Chinchilla Furs Case Cited in para(s): 102、111

Austria
Oberster Gerichtshof (Austrian Supreme
Court)
[10 November 1994]
Germany v. Austria
2 Ob 547/93

CISG online-659 Cited in para(s): 102

Germany
Amtsgericht Duisburg (Local Court
Duisburg)
[13 April 2000]
Italy buyer v. Germany seller
Case No.49 C 502/00

CISG-online 726 Cited in para(s):120、122

Switzerland
Handelsgericht des Kantons Zürich
(Commercial Court Canton Zurich)
[09 July 2002]
Switzerland [Link]
HG000120/U/zs
 TWENTY-SECOND ANNUAL WILLEM C. VIS (EAST)
INTERNATIONALCOMMERCIAL ARBITRATION MOOT

CISG online-737 Cited in para(s): 102、111

Italy
Tribunale di Rimini (District Court Rimini)
[26 November 2002]
Italy buyer v. France seller
Case No.3095

CISG online-1627 Cited in para(s):102、104

Austria
Oberlandesgericht Graz (Court of Appeal
Graz)
[29 July 2004]
Germany buyer v. Austria seller
Case No.5 R 93/04t

CISG-Online 2026 Cited in para(s):114

Switzerland
Kantonsgericht Zug (Court of First Instance
Canton Zug)
[14 December 2009]
Switzerland v. Indonesia
A2 2001 105

CISG-Online 2351 Cited in para(s): 114

European Union
European Court of Justice
[25 February 2010]
Germany v. Italy
C-381/08

CISG-online 2840 Cited in para(s): 123、125

Netherlands
Rechtbank Overijssel (District Court
Overijssel)
 TWENTY-SECOND ANNUAL WILLEM C. VIS (EAST)
INTERNATIONALCOMMERCIAL ARBITRATION MOOT

[19 July 2017]

B.V. v. EnviTec Biogas AG
C/08/175962 / HA ZA 15-468

CISG-online 5706 Cited in para(s):125

Slovak Republic
Okresný súd Žilina (District Court Žilina)
[30 July 2019]
Coplass di Gianni Cortini e c.- s.a.s.
[Link] Ruzomberok, s.r.o
10Cb/213/2014 / 5114217183

Citroen Type C 5 case Cited in para(s):152、159

Austria
Court of Appeal Linz
[04 July 2007]
N[...] G[...] v. F[...] C[...] Fahrzeughandel
und Reparatur GmbH
6 R 160/05z

Construction Materials case IV Cited in para(s): 152

France
Court of Appeal Canton Jura
[03 November 2004]
Seller (France) v. Buyer (Switzerland)
Ap 91/04

Cylinder for the production of Cited in para(s): 117

tissue-paper case Germany
Landgericht Mainz (District Court Mainz)
[26 November 1998]
Sweden v. Germany
12 HKO 70/97

Davis v. Davis Cited in para(s): 30

 TWENTY-SECOND ANNUAL WILLEM C. VIS (EAST)
INTERNATIONALCOMMERCIAL ARBITRATION MOOT

United States
Supreme Court of the State of New York
Salamon DAVIS v. Helen DAVIS
133 A.D.3d 700 (2015)

Electronic Electricity Meters Case Cited in para(s): 134

Switzerland
Bundesgericht/Tribunal fédéral (Swiss
Federal Supreme Court)
[28 May 2019]
IWB Industrielle Werke Basel v. Iskraemeco
d.d. and Iskraemeco Schweiz AG
[2019] 4A_543/2018

Equipment for packaging of milk Cited in para(s):107、151

case Serbia
Spoljnotrgovinska arbitraža pri Privrednoj
komori Srbije (Foreign Trade Court of
Arbitration of the Chamber of Commerce
and Industry of Serbia)
[15 July 2008]
Switzerland buyer v. Serbia seller
Case No.T-4/05

Floor coverings case Cited in para(s):107

Germany
Oberlandesgericht Stuttgart (Court of
Appeal Stuttgart)
[28 February 2000]
German buyer v. Spanish seller
Case No.5 U 118/99

Fluorite Case II Cited in para(s):147

Switzerland
Bundesgericht/Tribunal fédéral (Swiss
 TWENTY-SECOND ANNUAL WILLEM C. VIS (EAST)
INTERNATIONALCOMMERCIAL ARBITRATION MOOT

Federal Supreme Court)

[16 December 2009]
South Africa v. USA
4A_240/2009

Fruits and Vegetables case Cited in paras:152

Switzerland
Commercial Court Canton Aargau
[26 November 2008]
HOR.2006.79/AC/tv

Gasoline and gas oil case Cited in para(s): 152

Austria
Austrian Supreme Court
[22 October 2001]
Seller (Hungary) v. Buyer (Austria)
1 Ob 77/01g

Glamis Gold v. USA Cited in para(s): 83

ICSID
[2009]
Glamis Gold, Ltd. v. United States of
America
ICSID Case No. ARB(AF)/03/8

HIM Portland v. DeVito Builders Cited in para(s): 25

United States
United States Court of Appeals, First Circuit
HIM Portland LLC v. Devito Builders Inc
317 F.3d 41 (1st Cir. 2003)

Hooper Bailie v. Natcon Group Cited in para(s):22

Australia
New South Wales Supreme Court
Hooper Bailie Associated Ltd v. Natcon
 TWENTY-SECOND ANNUAL WILLEM C. VIS (EAST)
INTERNATIONALCOMMERCIAL ARBITRATION MOOT

Group Pty Ltd

[1992] 28 NSWLR 194

Hotel materials case Cited in para(s): 119

France
ICC International Court of Arbitration
[1992]
Austria v. Yugoslavia
7153

ICC Award No. 6653 of 1993 Cited in para(s):70

ICC
[Judgment of 1993]
Plaintiff v. Defendent
No. 6653 of 1993
ICC Award No. 6653, Clunet 1993, at 1040
et seq. | [Link]

ICC Case No. 9812 Cited in para(s): 28、36

ICC
Final Award
Claimant(s) v. Respondent(s)
Case No. 9812

ICC Case No. 9977 Cited in para(s): 22

ICC
Final Award
Claimant(s) v. Respondent(s)
Case No. 9977

ICC Case No. 12739 Cited in para(s): 28

ICC
Final Award
Claimant(s) v. Respondent(s)
Case No. 12739
 TWENTY-SECOND ANNUAL WILLEM C. VIS (EAST)
INTERNATIONALCOMMERCIAL ARBITRATION MOOT

International Research v. Lufthansa Cited in para(s):25、28

Systems Asia Pacific and another Singapore
Singapore Court of Appeal
[18 October 2013]
International Research Corp PLC v.
Lufthansa Systems Asia Pacific Pte Ltd and
another
[2012] SGHC 226

Indian-Russian sales contract case Cited in para(s): 151

Russia
Tribunal of International Commercial
Arbitration at the Russian Federation
Chamber of Commerce and Industry
(MKAC)
[18 July 2005]
India v. Russian Federation
134/2004

Inter Rao v. CELEC case Cited in paras:120、132

Santiago de Chile
Centro de Arbitraje y Mediación de la
Cámara de Comercio de Santiago (CAM
Santiago)
[29 May 2023]
Inter Rao UES et al. v. CELEC EP
[2023] 3568-18

JSC BTA Bank v. Ablyazov Cited in para(s):90

England
High Court of Justice, Commercial Court
(England and Wales)
[21 October 2015]
JSC BTA Bank v. Ablyazov & Ors
 TWENTY-SECOND ANNUAL WILLEM C. VIS (EAST)
INTERNATIONALCOMMERCIAL ARBITRATION MOOT

[2014] EWHC 2788

Kazakh sales contract case I Cited in para(s): 147

Russia
Tribunal of International Commercial
Arbitration at the Russian Federation
Chamber of Commerce and Industry
(MKAC)
[12 April 2004]
Russian Federation v. Kazakhstan
11/2003

Kemiron Atlantic v. Aguakem Intern Cited in para(s): 25

United States
United States Court of Appeals, Eleventh
Circuit
Kemiron Atlantic, Inc. v. Aguakem
International, Inc.
290 F.3d 1287 (11th Cir. 2002)

Lakeland Fire District v. East Area Cited in para(s): 30

United States
Supreme Court of the State of New York
Lakeland Fire District v. East Area General
Contractors, Inc.
16 A.D.3d 417 (2005)

Leather and textile wear case Cited in paras:149

Italy
Ad hoc Arbitral Tribunal
[19 April 1994]
Italy v. Japan
940419i3

LED screen case Cited in paras:152

 TWENTY-SECOND ANNUAL WILLEM C. VIS (EAST)
INTERNATIONALCOMMERCIAL ARBITRATION MOOT

Netherlands
District Court of Northern Netherlands
[06 November 2019]
Gemini Corporation N.V. v. 24/7 Media B.V
C/18/190826 / HA ZA 19-51

Methanex v. USA Cited in para(s):97

Ad hoc Arbitration
[3 August 2005]
Methanex Corporation v. United States of
America

Muhammad v. Prosecutor Cited in para(s):97

Singapore
Singapore Court of Appeal
[5 July 2011]
Muhammad bin Kadar v. Public Prosecutor
[2011] SGCA 32

Nicky Quek Case Cited in para(s):69

Singapore
The High Court of the Republic of
Singapore
[Judgment of August 8, 2022]
CSO v. CSP and another
[2023] SGHC 24

Nuova Fucinati S.p.A. v. Fondmetal Cited in para(s): 147

International A.B. Italy
Tribunale Civile di Monza
[14 January 1993]
Italy v. Sweden
CLOUT case 54

NWA v. NVF Cited in para(s):33

 TWENTY-SECOND ANNUAL WILLEM C. VIS (EAST)
INTERNATIONALCOMMERCIAL ARBITRATION MOOT

United Kingdom
English High Court
NWA v. NVF
[2021] EWHC 2666

Ohpen Operations UK v. Invesco Cited in para(s): 22

Fund Managers United Kingdom
English High Court
Ohpen Operations UK Ltd v. Invesco Fund
Managers Ltd
[2019] EWHC 2246

Oprema v. Gazprom Cited in paras:123

Stockholm
SCC (Stockholm Chamber of Commerce)
[24 April 2019]
Oprema v. Gazprom
SCC Case No. V2017/201

Philip Morris v Uruguay Cited in para(s): 37

ICSID
The Lords Of Appeal For Judgment
[8 July 2016]
Philip Morris Brand Sàrl (Switzerland),
Philip Morris Products S.A. (Switzerland) v.
Oriental Republic of Uruguay
ICSID Case No. ARB/10/7

Prada S.p.A. v. Caporicci USA Corp. Cited in para(s):122

Italy
Andrew Garnett Paton (Sole arbitrator)
[30 January 2019]
US v. Italy
ARB/17/00120 (Final Award)
 TWENTY-SECOND ANNUAL WILLEM C. VIS (EAST)
INTERNATIONALCOMMERCIAL ARBITRATION MOOT

PVC Case Cited in para(s): 111

Germany
Oberlandesgericht Naumburg
(Oberlandesgericht des Landes
Sachsen-Anhalt) (Court of Appeal
Naumburg)
[24 April 2019]
Germany v. Czech Republic
12 U 152/18

Replacement parts for ships case Cited in para(s): 152

Germany
German Supreme Court
[25 March 2015]
VIII ZR 125/14

Republic of Sierra Leone v. SL Cited in para(s): 33

Mining Ltd. England
England and Wales High Court
[15 February 2021]
Republic of Sierra Leone v. SL Mining Ltd.
[2021] EWHC 286

Road vehicles case Cited in para(s): 152

Netherlands
District Court Overijssel
[30 July 2019]
Syrmos Levantis S.A. Rotosal v. Twente
Trucks
7336571 \ CV EXPL 18-3828

Rush v. Greater London Council Cited in para(s):69

England
House of Lords
[Judgment of November 3, 1988]
 TWENTY-SECOND ANNUAL WILLEM C. VIS (EAST)
INTERNATIONALCOMMERCIAL ARBITRATION MOOT

Rush & Tompkins Ltd v Greater London

Council
[1988] UKHL J1103-3
Rush & Tompkins Ltd v Greater London
Council - Case Law - VLEX 793491937

R. v. Seaboyer Cited in para(s):72

Canada
Supreme Court of Canada
[Judgment of August 22, 1991]
R. v. Seaboyer
[1991] 2 S.C.R. 577
R. v. Seaboyer; R. v. Gayme - SCC Cases

SA v. Ed Cited in para(s): 80
England
The Lords Of Appeal For Judgment
[16 May 1985]
Rhesa Shipping Co SA v Edmonds
[1984] EWCA Civ J0720-1

Saltwater isolation tank case Cited in para(s): 119

Switzerland
Handelsgericht des Kantons Zürich
(Commercial Court Canton Zurich)
[26 April 1995]
Switzerland v. Germany
HG 920670

Schering v. CIPLA Cited in para(s):70

England and Wales
Chancery Division
[Judgment of November 10, 2004]
Schering Corporation v Cipla Ltd
[2004] EWHC 2587 (Ch)
 TWENTY-SECOND ANNUAL WILLEM C. VIS (EAST)
INTERNATIONALCOMMERCIAL ARBITRATION MOOT

Schering Corporation v Cipla Ltd - Case

Law - VLEX 793582881

Steel wire case Cited in para(s): 107、108

Jurisdiction: Italy
Camera Arbitrale Milano (CAM)
(Milan Chamber of Arbitration)
[28 September 2001]
Cyprus buyer v. Italy seller

Sulamérica v. Enesa Cited in para(s): 19

England
England and Wales Court of Appeal
[16 May 2012]
Sulamérica Cia Nacional de Seguros SA &
Ors v. Enesa Engenharia SA & Ors
[2013] EWCA Civ 638

Travis case Cited in para(s): 54

International Chamber of Commerce
[Final Award of 07 March 2014]
Travis Coal Restructured Holdings LLC v.
Essar Global Limited
ICC Case No. 18724/VRO/AGF

Telefonica S.A. v. Argentine Republic Cited in para(s): 30

ICSID
[25 May 2006]
Telefonica S.A. v. Argentine Republic
Case No. ARB/03/20

VLM Food v. Illinois Trading Cited in para(s):107

Jurisdiction: U.S.A
U.S. Court of Appeals (7th Circuit)
[10 April 2014]
 TWENTY-SECOND ANNUAL WILLEM C. VIS (EAST)
INTERNATIONALCOMMERCIAL ARBITRATION MOOT

Canadian buyer v. America seller

Case No.13-1799 & 13-1697

Walford v. Miles Cited in para(s):22

United Kingdom
House of Lord
Martin Walford v. Charles Miles
[1993] 2 AC 128

Warehouse case Cited in para(s):119

Switzerland
Tribunal de Première Instance de Genève
(Court of First Instance Geneva)
[25 June 2020]
Germany v. Switzerland
C/19241/2017-16 / JTPI/8162/2020

Wyoming case Cited in para(s): 136

America
Supreme Court of Wyoming
[18 August 1980]
Pitchfork Ranch Co. v. Bar TL
[1980] 615 P.2d 541

XL Insurance Ltd v Owens Corning Cited in para(s): 19

England
High Court of Justice, Commercial Court
(England and Wales)
[25 April 2000]
XL Insurance Ltd v. Owens Corning
[2000] C.L.C. 940

Y v.X Cited in para(s): 48

Switzerland
Swiss Supre Court
 TWENTY-SECOND ANNUAL WILLEM C. VIS (EAST)
INTERNATIONALCOMMERCIAL ARBITRATION MOOT

Claimant Y v. Hong Kong Company X

[2007]
4A 18/2007

Zodiac Seats v. Synergy Aerospace Cited in para(s):107

Jurisdiction: U.S.A
U.S. District Court for the Eastern District
of Texas
[23 April 2019]
America buyer v. Brazil seller
Case No.4:17-cv-00410-ALM-KPJ

Zykronic Inc. v. Loxone Electronics Cited in para(s):147

GmbH USA
District Court of the State of Colorado,
Denver County
[22 March 2019]
Canada v. USA
2016CV34496
 TWENTY-SECOND ANNUAL WILLEM C. VIS (EAST)
INTERNATIONALCOMMERCIAL ARBITRATION MOOT

TABLE OF AUTHORITIES

CITED AS REFERENCE

A Guide to the IBA Rules Cited in para(s):72、83、95

Roman Khodykin, Carol Mulcahy,
Nicholas Fletcher (ed.), A Guide to the
IBA Rules on the Taking of Evidence in
International Arbitration, Published:
October 3, 2019

AC No.4 Cited in para(s): 113、114、116、119

CISG Advisory Council Opinion No 4

AC No.16 Cited in para(s):143、147、152、158

CISG Advisory Council Opinion Number
16

Albertine-Theresa Albrektsen Cited in para(s): 152

Albertine-Theresa Albrektsen, Can the
parties to a contract for the sale of goods
implicitly exclude the application of the
United Nations Convention on Contracts
for the International Sale of Goods?
(Aalborg Universitet, 2020)

Andreas J Roquette Cited in para(s): 68、69

Andreas J Roquette & Deborah Keller, The
Without Prejudice Principle in Common
and Civil Law, Published: International
Disputes Digest, June 2023

Brunner/Meier/Stacher Cited in para(s): 137

Christoph Brunner, Benjamin Gottlieb,
Commentary on the UN Sales Law (CISG)
 TWENTY-SECOND ANNUAL WILLEM C. VIS (EAST)
INTERNATIONALCOMMERCIAL ARBITRATION MOOT

(Wolters Kluwer, 2019)

Dicey Cited in para(s): 19

Dicey, A.L., Morris, J.H.C., & Collins, L.,
The Conflict of Laws (14th ed.)

Fabien Cited in para(s):79

Fabien V. RUTZ, Admissibility of
unlawfully obtained evidence in
international arbitration in Switzerland

Ferrari 2019 Cited in para(s): 119

Schlechtriem / Schwenzer / Schroeter
Kommentar zum UN-Kaufrecht
(CISG)(2019)

Ferraro Cited in para(s):146

KeIsen's Highest Moral Ideal
(Book Review)

Gautam Mohanty Cited in para(s): 70

Gautam Mohanty, Gautam Mohanty
Without Prejudice in Arbitration:
Negotiators Beware Apr 2, 2019

George Cited in para(s):46、48

Chapter 8: Good Faith and Pre-arbitral
Alternative Dispute Resolution
Requirements in Elliott Geisinger,
Christoph Müller, Andrea Menaker,
Sabrina Pearson-Wenger (eds)
ASA Special Series No. 49: Good Faith in
International Arbitration –Myth, Reality,
Label ... or All of the Above?
Kluwer Law International, 2024
 TWENTY-SECOND ANNUAL WILLEM C. VIS (EAST)
INTERNATIONALCOMMERCIAL ARBITRATION MOOT

Greg Cavanaugh Cited in para(s):93

Greg Cavanaugh, In-House vs. Outside
Counsel: Choosing the Right Option, 2024

Hachem Cited in paras:130、131

Pascal Hachem, Preamble, Art 1, Art 2, Art
3, Art 4, Art 6 CISG in Ingeborg
Schwenzer / Ulrich Schroeter Schlechtriem
& Schweitzer: Commentary on the UN
Convention on the International Sales of
Goods
(Oxford University Press, 2022)

Honnold Cited in para(s):107、109、131

John Honnold, Harry M Flechtner,
Uniform law for international sales under
the 1980 United Nations Convention (Fifth
Edition) (Kluwer Law International, 2021)

IBA Guidelines on Privilege Cited in para(s): 87

IBA Guidelines on Privilege International
Bar Association, Report on Uniform
Guidelines on Privilege in International
Arbitration

IBA Task Force on Privilege Cited in para(s):93

IBA Task Force on Privilege in
International Arbitration Report on
Uniform Guidelines on Privilege in
International Arbitration Annex 2 – Legal
Advice Privilege

Inter-Pacific Bar Association Cited in para(s): 87

Inter-Pacific Bar Association Guidelines
 TWENTY-SECOND ANNUAL WILLEM C. VIS (EAST)
INTERNATIONALCOMMERCIAL ARBITRATION MOOT

on Privilege and Attorney Secrecy in

International Arbitration, 2019

Joshua Cited in para(s): 64

Professor Joshua E. Bienstock, An
Introduction to Alternative Dispute
Resolution, Dispute Resolution Institute of
New York

Kenneth I. Ajibo Cited in para(s):59

Kenneth I Ajibo, CONFIDENTIALITY IN
INTERNATIONAL COMMERCIAL
ARBITRATION: ASSUMPTIONS OF
IMPLIED DUTY AND A PROPOSED
SOLUTION, Revista Latinoamericana de
Derecho Comercial Internacional / Latin
American Journal of International Trade
Law, Volume 3, Issue 2, Year 2015,
December 2015

Kristijan Cited in para(s):140

Kristijan Poljanec, Legal Theory of
Auction (first Edition) (Routledge, 2023)

Kröll 2018 Cited in para(s):100、107、109、111、

151、159
Kröll, Stefan, UN Convention on Contracts
for the International Sale of Goods (CISG)
A Commentary (2nd edn, Beck, Hart &
Nomos, 2018)

Lex Mundi Cited in para(s): 93

Lex Mundi, In-House Counsel and the
Attorney-Client Privilege Global Practice
Guide, 2014
 TWENTY-SECOND ANNUAL WILLEM C. VIS (EAST)
INTERNATIONALCOMMERCIAL ARBITRATION MOOT

Lim Cited in para(s): 146

EXECUTIVE LAWMAKING IN
COMPLIANCE OF INTERNATIONAL
TREATY

McErlaine/Allsop Cited in para(s):33

Michael McErlaine, James Allsop (Herbert
Smith Freehills LLP)
Trends in Questions of Jurisdiction and
Admissibility in International Arbitration
November 2, 2021 /
1 Comment
Herbert Smith Freehills

Moses Cited in paras:146

DIRECT APPLICABILITY OF THE SO
UTHERN AFRICAN DEVELOPMENT
COMMUNITY LAW IN ZIMBABWE
AND SO UTH AFRICA: ARE CO UR TS
ANY CLEARER?

Nicole Cited in para(s): 78、79

Nicole S NG, ILLEGALLY OBTAINED
EVIDENCE IN INTERNATIONAL
ARBITRATION, Protecting the Integrity
of the Arbitral Process

Nicholls Cited in para(s): 70

David Nicholls, Without Prejudice: Dos
and Don’ts (Landmark Chambers)

O’Malley Cited in para(s): 95

Nathan D. O’Malley, Rules of Evidence in
International Arbitration: An Annotated
 TWENTY-SECOND ANNUAL WILLEM C. VIS (EAST)
INTERNATIONALCOMMERCIAL ARBITRATION MOOT

Guide Informa Law, 2012

Peter Huber Cited in paras:111

The CISG: A new textbook for students
and practitioners

Schlechtriem/ Cited in paras:111、114

Schwenzer Schlechtriem, Peter/Schwenzer, Ingeborg,
Commentary on the UN Convention on the
International Sale of Goods (CISG)
(Oxford University Press, 2016)

Schlechtriem/Butler II Cited in para(s):100

Peter Schlechtriem/Petra Butler,
The UN Convention on the International
Sale of Goods(2009)

secretariat commentary Cited in para(s): 131

The Secretariat of the United Nations,
Commentary on the Draft Convention on
Contracts for the International Sale of
Goods

Stigen Cited in para(s):146

The Right or Non-Right of States to
Prosecute Core International Crimes under
the Title of "Universal Jurisdiction"

Summary Records of the 4th Meeting Cited in paras:143

Summary Records of the First Committee,
4th Meeting

The Law of Auctions Cited in paras:136

available:
[Link]
 TWENTY-SECOND ANNUAL WILLEM C. VIS (EAST)
INTERNATIONALCOMMERCIAL ARBITRATION MOOT

w-auctions

wikipedia Cited in para(s):137

available:
[Link]
rentem

William P. Johnson Cited in para(s):143

Understanding Exclusion of the CISG: A
New Paradigm of Determining Party Intent

Xiao-hong Cited in paras:146

On a Methodology for CISG's Application
in China Commercial Research