TWENTY—SECOND ANNUAL

WILLEM C. VIS (EAST) INTERNATIONAL COMMERCIAL ARBITRATION MOOT

HONG KONG—30 MARCH TO 06 APRIL 2025

MEMORANDUM FOR RESPONDENT

SYMBIOSIS LAW SCHOOL, HYDERABAD

CASE NO. FAI MOOT: 100/MMXXIV

On Behalf Of: Against:

Equatoriana RenPower Ltd. GreenHydro PLC
1 Russell Square 1974 Russell Avenue
Oceanside, Equatoriana Capital City, Mediterraneo

RESPONDENT CLAIMANT

COUNSEL FOR RESPONDENT • SYMBIOSIS LAW SCHOOL, HYDERABAD

ADITYA SIRCAR • DAISY VERGHESE

MAHIMA NIDHI • PARVATHY ARUN • SUPRATIM BAPULI
 SYMBIOSIS LAW SCHOOL, HYDERABAD MEMORANDUM FOR RESPONDENT

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DISCLOSURE STATEMENT PAGE | II

 SYMBIOSIS LAW SCHOOL, HYDERABAD MEMORANDUM FOR RESPONDENT

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DATE: 30th January, 2025

NAME: Aditya Sircar SIGNATURE:

NAME: Daisy Verghese SIGNATURE:

NAME: Mahima Nidhi SIGNATURE:

NAME: Parvathy Arun SIGNATURE:

NAME: Supratim Bapuli SIGNATURE:

DISCLOSURE STATEMENT PAGE | III

 SYMBIOSIS LAW SCHOOL, HYDERABAD MEMORANDUM FOR RESPONDENT

TABLE OF CONTENTS
Index of Abbreviations ………………………………………………………………...{VIII}

Index of Court Decisions ……………………………….………………………………..{XI}

Index of Scholarly Articles .…..………………………...……………………………{XVIII}

Index of Legal Acts and Rules ………………………………………………………{XXIII}

Statement of Facts …………………………………………….…………………………...{1}

Introductory Remarks ………………………….…………………………………………{3}

Summary of Arguments ………………………...…………………………………………{4}

Arguments of Procedure ………………………………..…………………………………{5}

SUBMISSION 1: The Arbitral Tribunal lacks jurisdiction to hear the dispute and the
claim is inadmissible ……………………………………………………..{5}

[I] Mediation is a mandatory condition precedent for the Tribunal’s

jurisdiction……………………………..….……………………………………………...[5]

[A] The Parties’ intention is evidenced through the language of the dispute resolution
clause ………..………………………………………................................................[6]

[1] The dispute resolution clause uses binding terms………………………………..[6]

[2] The Parties amended the FAI Mediation Model

Clause………………………………………………………………………………...[7]

[B] The law of Equatoriana mandates compliance with mediation pre-condition…….....[7]

[C] Non-compliance with the mandatory pre-condition bars arbitral proceeding……….[8]

[II] Mediation was not formally initiated by the Parties and therefore the condition
precedent was not effectively satisfied in accordance with the Agreement………..[9]

[III] Failure to comply with the pre-condition should render the claim inadmissible…...[10]

[A] Mediation is not futile despite alleged irreconcilable disputes between Parties……….[10]

[1] Respondents had legitimate grounds to terminate the agreement…………..…..[10]

TABLE OF CONTENTS PAGE | IV

 SYMBIOSIS LAW SCHOOL, HYDERABAD MEMORANDUM FOR RESPONDENT

[2] Despite legitimate grounds, Respondent demonstrated good faith efforts to

settle……………………………………..……………………………………….....[11]

[B] Requiring mediation does not delay or obstruct proceedings………………………....[11]

Concluding Submission 1 ………..………... [12]

SUBMISSION 2: The Arbitral Tribunal should order the inadmissibility of Evidence C7

and order the inclusion of Evidence R3 therein tendered by the
Respondent ………………………………………...……………...……..[12]

[I] The Respondent has the inherent right to tender all evidences relevant for the judicious
deliberation before the tribunal ……………………………,,…………………………[12]

[A] The Tribunal possesses the Requisite Authority to thoroughly examine the Evidences
necessary to address the Respondent’s Allegation ………………,………………...[13]

[II] The Tribunal must accept the inclusion of exhibit R3…………………………………...[13]

[A] Exhibit R3 is not protected by legal privilege thus need not be excluded…. ………[14]

[B] Alternatively, R3 is further not safeguarded by legal privilege under transnational

legal principles…... …………………………………………………………….…..[14]

[C] The grounds of having illegally procured R3 is not legally sustainable to exclude the
same…... ……………………………………………………………………………[16]

[1] The Respondent was not directly involved in the illegal activity for obtaining
Exhibit R3………………………………………………………………….…..[16]

[2] The Principle of Procedural Fairness and its nexus with taking of evidence
permits Exhibit R3 to be admitted by the Tribunal…………….. ……………..[17]

[D] The Evidence R3 is Admissible sensu lato since the criteria of relevance and
materiality are sensu stricto met thus outweighing Procedural Violations………….[19]

[1] The Evidence Is Substantially Relevant and Material To The Present

Matter……………………………………………………………...…………...[20]

[2] The Evidence Is Necessary To Determine The Claimant’s Objective Intent Of

Acting In Bad Faith……………………………………………………………[21]

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 SYMBIOSIS LAW SCHOOL, HYDERABAD MEMORANDUM FOR RESPONDENT

[III] The Tribunal must exclude the admissibility of exhibit C7…………………………...[22]

[A] The claim of Settlement Privilege is applicable……………………………………[22]

[B] The threshold for removing the claim of privilege has not been met………………..[23]

[C] There exists no threat or coercion that necessitates the disclosure of the evidence[23]

Concluding Submission 2 …...……...……...[24]

Submission 3: The CISG is not applicable to the Purchase and Service Agreement…[25]

[I] The Agreement Is Not A Contract For The Sale Of Goods Under Art. 3(2)
CISG….……………………………………………………………………....…....…..[25]

[II] The Agreement Is Not An International Transaction………………………………..[26]

[A] Equatoriana is the Relevant Place of Business for the Agreement………………...[27]

[B] Claimant and Volta T Are Separate Entities………………………………………..[27]

[III] The Reverse Auction Falls Under The Exclusion Criteria Of Article 2(B)………...[28]

[A] The Reverse Auction Meets the Criteria of an Auction Under Article 2(b) of the
CISG………………………………………………………………………………..[28]

[B] The Auction’s Hybrid Structure Reinforces Its Exclusion….……………………...[29]

Concluding Submission 3 ………..………..……[30]

Submission 4: Since CISG is applicable to the agreement, the PARTIES have validly
executed its application ………………………………………….………..[30]

[I] Existence Of Clear Mutual Intention By Both Parties To Exclude CISG…………... [31]

[A] Character of ius dispositivum of CISG under Article 6………………...….……...[31]

[B] Requirement for Presence of Intent …..…………………………………………...[32]

[1] De facto Agreement…………………………………………………………………………..[33]

[2] Validity of Choice of law Agreement…………..……………………………….[33]

[3] Two-fold prong of clear intent……………………………………..………………...…[34]

[C] In Consonance with Article 8 CISG…………...…………………………………..[35]

TABLE OF CONTENTS PAGE | VI

 SYMBIOSIS LAW SCHOOL, HYDERABAD MEMORANDUM FOR RESPONDENT

[II] Relationship Between Conflict Of Laws & CISG……………..……………………...[35]

[III] Tacit Choice Of Law…………………………………………………….….………...[37]

Concluding Submission 4 ……..………...………[37]

Prayer for Relief ……………...……………………………………………………{VII}

TABLE OF CONTENTS PAGE | VII

 SYMBIOSIS LAW SCHOOL, HYDERABAD MEMORANDUM FOR RESPONDENT

INDEX OF ABBREVIATIONS

Abbreviation Full Form

¶ Paragraph

ARA Answer to the Request for Arbitration

Art. Article

CISG UN Convention on Contracts for the International Sale of Goods

CLAIMANT GreenHydro PLC

DAL Danubian Arbitration Law

Ed. Edition

Eg. Exempli gratia, for example

Et al. et alii/et aliae/et alia, and others.

Exh. C1 Claimant Exhibit C1

Exh. C2 Claimant Exhibit C2

Exh. C3 Claimant Exhibit C3

Exh. C4 Claimant Exhibit C4

Exh. C5 Claimant Exhibit C5

Exh. C6 Claimant Exhibit C6

Exh. C7 Claimant Exhibit C7

Exh. C8 Claimant Exhibit C8

Exh. R1 Respondent Exhibit R1

Exh. R2 Respondent Exhibit R2

Exh. R3 Respondent Exhibit R3

FAI The Arbitration Institute of the Finland Chamber of Commerce

INDEX OF ABBREVIATIONS PAGE | VIII

 SYMBIOSIS LAW SCHOOL, HYDERABAD MEMORANDUM FOR RESPONDENT

Abbreviation Full Form

Fig. Figure

IBA International Bar Association

Ibid. Ibidem

ICC International Chamber of Commerce

ICCA International Council for Commercial Arbitration

ICDR International Centre for Dispute Resolution

ICSID International Centre for Settlement of Investment Disputes

Inc. Incorporated

Int’l International

LLC Limited Liability Company

LLP Limited Liability Partnership

Ltd. Limited

Mr. Mister

Ms. Miss

No. Number

NYC New York Convention on the Recognition and Enforcement of

Foreign Arbitral Awards (1958)

p, pp Page(s)

PO1 Procedural Order No. 1

PO2 Procedural Order No. 2

PSA Purchase and Service Agreement

RA/RfA Request for Arbitration

RESPONDENT Equatoriana RenPower Ltd.

INDEX OF ABBREVIATIONS PAGE | IX

 SYMBIOSIS LAW SCHOOL, HYDERABAD MEMORANDUM FOR RESPONDENT

Abbreviation Full Form

Sr. Serial

SC Supreme Court

ToR Terms of Reference

UNCITRAL United Nations Commission on International Trade Law

UNIDROIT International Institute for the Unification of Private Law

v. Versus

Vol. Volume

INDEX OF ABBREVIATIONS PAGE | X

 SYMBIOSIS LAW SCHOOL, HYDERABAD MEMORANDUM FOR RESPONDENT

INDEX OF COURT DECISIONS

Visions Case Vision Systems, Inc. et. al., v. EMC Corporation No.
Board of Commissioners of City of Danville v. Advocate
Communications, Inc.
527 S.W.3d 803, 807 (Ky. 2017)
Cited in paras: ¶87.

Airbag Systems Case Airbag Systems Case

3 U 336/07, CISG-online no. 1720
Cited in paras: ¶73.

Anupam Mittal case Anupam Mittal v. Westbridge Ventures II Investment

Holdings
[2023] SGCA 1.
Cited in paras: ¶17

Arsanovia Case Arsanovia Ltd v. Cruz City 1 Mauritius Holdings

[2012] EWHC 3702
Cited in paras: ¶16

Bayindir Case Bayindir Insaat Turizm Ticaret Ve Sanayi A.S. v. Islamic

Republic of Pakistan (I)
ICSID Case No. ARB/03/29
Cited in paras: ¶7

Consol. Edison Case Consol. Edison Co . of N .Y . v . Cruz Constr . Corp.

258 A.D.2d 372 (N.Y. App. Div. 1999)
Cited in paras: ¶20

Enka case Enka Insaat Ve Sanayi A.S. v. OOO Insurance Company

Chubb

INDEX OF COURT DECISIONS PAGE | XI

 SYMBIOSIS LAW SCHOOL, HYDERABAD MEMORANDUM FOR RESPONDENT

[2020] UKSC 38
Cited in paras: ¶15

Fiona Trust Fiona Trust & Holding Corp v Privalov

[2007] UKHL 40
Cited in paras: ¶7

Flour Enters case Fluor Enters . Inc . v . Solutia Inc .

147 F.Supp.2d 648, 653 (S.D. Tex. 2001)
Cited in paras: ¶20

Geico Case Geico Ins. Co. v. Silverio

171 A.D.3d 924,96 N.Y.S.3d 329
Cited in paras: ¶20

ICC Case No. 9812 Final Award in Case No. 9812

20(2) ICC Ct. Bull. 69, 73 (2009)
Cited in Paras: ¶18, ¶9

ICC Case No. 6752 Final Award in ICC Case No. 6752
( 1993) 18. YBCA 54-7
Cited in paras: ¶15

ICC Case No. 6840 Final Award in ICC Case No. 6840, (1991)
Cited in paras: ¶15

ICC Case No. 6276 Partial Award in Case No. 6276

14(1) ICC Ct. Bull. 76, 76 (2003)
Cited in paras: ¶9

ICC Case No . 12739 Award in ICC Case No . 12739

Cited in paras: ¶9, ¶18

INDEX OF COURT DECISIONS PAGE | XII

 SYMBIOSIS LAW SCHOOL, HYDERABAD MEMORANDUM FOR RESPONDENT

ICC Case No . 9977 Award in ICC Case No . 9977

14(1) ICC Ct. Bull. 84 (2003)
Cited in paras: ¶9

ICC Case No. 14667 Award in ICC Case No. 14667

XL Y.B. Comm. Arb. 51 (2015)
Cited in Paras: ¶9

ICC Case No. 9480 Award in ICC Case No. 9480

67 F.Supp.3d 338, 343 (D.D.C. 2014)
Cited in paras: ¶15

Int’l Research Corp Int’l Research Corp . plc v . Lufthansa Sys . Asia Pac . Pte Ltd
Case [2012] SGHC 226
Cited in paras: ¶20, ¶12

Ohpen Operations Ohpen Operations UK Ltd v. Invesco Fund Managers Ltd

Case [2019] EWHC 2246
Cited in paras: ¶12

Owerri Commercial Owerri Commercial Inc. v. Dielle Srl.

Inc Case :Van den Berg, Jan (ed.), ICCA Yearbook Commercial
Arbitration, Volume XIX (1994), pp. 703-707
Cited in Paras: ¶14

Passlow Case Passlow v. Butmac Pty Ltd

[2012] NSWSC 225
Cited in paras: ¶24

Penton Bus Case Penton Bus. Media Holdings, LLC v. Informa plc
2018 WL 3343495
Cited in paras: ¶24

INDEX OF COURT DECISIONS PAGE | XIII

 SYMBIOSIS LAW SCHOOL, HYDERABAD MEMORANDUM FOR RESPONDENT

Silverstein Props Silverstein Props ., Inc . v . Paine , Webber , Jackson & Curtis
, Inc .
65 N.Y.2d 785, 787 (N.Y. 1985)
Cited in paras: ¶20

Sucher Case Sucher v . 26 Realty Assocs

54 NYS2d 717, 718. (NY App Div 1990)
Cited in paras: ¶20

White Case White v . Kampner

641 A.2d 1381, 1387 (Conn. 1994)
Cited in Paras: ¶24

Barry case Barry v Davies (t/a Heathcote Ball & Co)

[2000] 1 WLR 1962,
Cited in paras: ¶87.

Belt v. Baslidon Belt v Basildon & Thurrock NHS Trust

[2004] EWHC 783 (QB)
Cited in paras: ¶65

Berkeley Square Berkeley Square Holdings Ltd v Lancer Property Asset

Holdings Ltd Management Ltd.
[2021] EWCA Civ 551
Cited in paras: ¶66

Caratube case Caratube International Oil Company LLP v. Republic of

Kazakhstan
ICSID Case No. ARB/13/13
Cited in paras: ¶57

INDEX OF COURT DECISIONS PAGE | XIV

 SYMBIOSIS LAW SCHOOL, HYDERABAD MEMORANDUM FOR RESPONDENT

CEAC case Central European Aluminium Company (CEAC) v

Montenegro
ICSID Case No. ARB/14/8, Decision of the Annulment
Committee of 1 May 2018 [110]
Cited in paras: ¶53

Cheddar Valley Cheddar Valley Engineering Ltd v. Chaddlewood Homes

Engineering Ltd [1992] 1 WLR 820
Cited in paras: ¶65

ConocoPhillips Case ConocoPhillips Petrozuata B.V. v. Bolivarian Republic of

Venezuela
413 F.3d 77, 83-84 (D.C. Cir. 2005)
Cited in paras: ¶38

Dominicana Dominicana Renovables, S.L. v. The Dominican Republic

Removables case ICC Case No. 23364/JPA
Cited in paras: ¶39

EFC case Economy Forms Corporation v The Government of the

Islamic Republic of Iran, the Ministry of Energy
Award No. 55-165-1) - June 14, 1983
Cited in paras: ¶66

Generica case Generica Ltd. v Pharm. Basic, Inc

125 F.3d 1123, 1131 (7th Cir. 1997)
Cited in paras: ¶65

Hoteles Condado Hoteles Condado Beach, La Concha & Convention Center v

Beach, La Concha Union De Tronquistas, Local 901, US District Court for the
District of Puerto Rico
588 F. Supp. 679 (U.S. District Court for the District of Puerto
Rico 1984):

INDEX OF COURT DECISIONS PAGE | XV

 SYMBIOSIS LAW SCHOOL, HYDERABAD MEMORANDUM FOR RESPONDENT

Cited in Paras: ¶60

Libananco Libananco Holdings Co Limited v Republic of Turkey

ICSID Case No ARB/06/8, Award (2 September 2011).
Cited in paras: ¶41, ¶48

Methanax case, Methanex Corporation v United States of America

(2005) 44 ILM 1345
Cited in paras: ¶47, ¶51

Muhammed bin Kadar Muhammad bin Kadar v Public Prosecutor

[2011] 3 SLR 1205
Cited in paras: ¶47

Oostergetel case Jan Oostergetel and Theodora Laurentius v. The Slovak

Republic
ICC, Award of 17 November 2004
Cited in paras: ¶41

Rush & Tompkins Rush & Tompkins Ltd v Greater London Council
case [1989] AC 1280
Cited in paras: ¶65, ¶67

Sportradar AG case Sportradar AG v Football Dataco Ltd/Betgenius

Unilever Plc v Proctor & Gamble Co.
[2011] EWCA Civ 330
Cited in paras: ¶65

Centerless Grinding Centerless Grinding Machine Case

Machine Case
CISG-online no. 701
Cited in paras: ¶74.

INDEX OF COURT DECISIONS PAGE | XVI

 SYMBIOSIS LAW SCHOOL, HYDERABAD MEMORANDUM FOR RESPONDENT

Glass Recycling Glass Recycling Machine Case

Machine Case
4 Ob 179/05k, CISG-online no.
1156
Cited in paras: ¶74.

Hertz Corp Hertz Corp. v. Friend

559 U.S. 77 (2010)
Cited in paras: ¶83.

Online auction of car Online auction of car case

case
11 U 44/14, CISG-online 2727
Cited in paras: ¶91.

Online Auction of Online Auction of Photography Case

Photography Case
451/2016, CISG-online 2803
Cited in paras: ¶91.

Sale of horse via Sale of horse via internet auction case

internet auction case
C/01/360225 / KG ZA 20-386, CISG-online 5398
Cited in paras: ¶91.
Steel Bars Case Steel Bars Case
1 R 273/07t, CISG-online no. 1735
Cited in paras: ¶74.

Window Production Window Production Plant Case

Plant Case
23 U 4446/99, CISG-online no. 585
Cited in paras: ¶74.

Yankee Zindler Yankee Zindler

12 HKO 70/97, CISG-online no. 563
Cited in paras.: ¶74.

INDEX OF COURT DECISIONS PAGE | XVII

 SYMBIOSIS LAW SCHOOL, HYDERABAD MEMORANDUM FOR RESPONDENT

INDEX OF SCHOLARLY AUTHORITIES

Berger Berger, Bernhard/ Kellerhals, Franz

International and Domestic Arbitration in Switzerland

4th edition, Stämpfi Verlag, 2021

Cited in paras.: ¶44

Berger II Berger, Klaus Peter

Law and Practice of Escalation Clauses
In: Arbitration International Vol. 22 Issue 1 pgs. 185-212
Kluwer Law International (2006)
Cited in paras.: ¶44

Berger III Berger, Klaus Peter

Evidentiary Privileges: Best Practice Standards versus/and
Arbitral Discretion’
Markus Wirth (ed), Association Suisse de l’Arbitrage, 2006
Cited in paras. ¶45

Born, Gary B.
Born
International Commercial Arbitration

3rd Edition, Kluwer Law International (2021)

Cited in paras. ¶44

Bühler & Webster Webster, Thomas H/ Bühler, Michael W

Handbook of ICC Arbitration: Commentary and Materials
Sweet & Maxwell
Cited in paras: ¶9, ¶18

INDEX OF SCHOLARLY AUTHORITIES PAGE | XVIII

 SYMBIOSIS LAW SCHOOL, HYDERABAD MEMORANDUM FOR RESPONDENT

Chitty Beale, Hugh

Chitty on Contracts
Sweet and Maxwell,
Cited in paras.: ¶18

Figueres Figueres, Dyala Jimenez

Multi-Tiered Dispute Resolution Clauses in ICC Arbitration,
14 ICC Bull. 71 (No. 1, 2003)
Cited in paras.: ¶8, ¶18

Hauser Hauser, Bernhard Meyer/ Sieber, Phillip

Attorney Secrecy v Attorney-Client Privilege in International

Commercial Arbitration

73 (2) The Int. J. Of Arbitration, Mediation And Dispute

Management, 144 – 188

Cited in paras.: ¶48

Kauffmann- Kohler Kaufmann-Kohler, Gabrielle/ Baertsch, Phillippe

Discovery in International Arbitration: How Much Is Too

Much?

2004 SchiedsVZ 13, 20

Cited in paras: ¶44, ¶59

Shaughnessy, Patricia
Shaughnessy
Dealing with Privileges in International Commercial Arbitration

Scandinavian Studies: Procedural Law (Faculty of Law

Stockholm University 2007)

Cited in paras: ¶44, ¶51

INDEX OF SCHOLARLY AUTHORITIES PAGE | XIX

 SYMBIOSIS LAW SCHOOL, HYDERABAD MEMORANDUM FOR RESPONDENT

Ronald A. Brand.
Brand
Transaction Planning Using Rules on Jurisdiction & The
Recognition and Enforcement of Judgements
194–95 (2014)
Cited in paras: ¶101

Chirstophe Bernasconi
Bernasconi
The Personal and Territorial Scope of the Vienna Convention on
Contracts for the International Sale of Goods
46 Neth. Int’ll. REV. 137
1999
Cited in paras: ¶111
Rotterdam RB. Rotterdam
8646 (Neth.); Hof Arnhem-Leeuwarden,
15 September 2015
Cited in paras: ¶108

Bridge Michael Bridge

Choice of Law and the CISG: Opting In and Opting Out,
in DRAFTING CONTRACTS UNDER THE CISG
65, 71
Cited in paras: ¶106
Michael Joachim Bonell
Bonell Commentary on the International Sales Law
51, 56 (C. Massimo Bianca & Michael Joachim Bonell);
eds., 1987
Cited in paras: ¶116
Nygh
Peter Nugh
Autonomy in International Contracts
72
1999
Cited in paras: ¶117

INDEX OF SCHOLARLY AUTHORITIES PAGE | XX

 SYMBIOSIS LAW SCHOOL, HYDERABAD MEMORANDUM FOR RESPONDENT

Schmidt-Kessel Martin Schmidt-Kessel

Commentary on the UN Convention on the International Sale of
Goods 176
Ingeborg Schwenzer ed., 4th ed.
2016
Cited in paras: ¶121

Lewison Lewison, Sir Kim

The Interpretation of Contracts (7th ed),
Sweet & Maxwell
Cited in paras: ¶18

Ricardo J. Cata/Ricardo
International Commercial Mediation: A Supplement To
International Arbitration
Russell Sutton, David St John/ Gearing, Matthew/ Gill, Judith
Russell on Arbitration, (24th Edition)
Sweet & Maxwell
Cited in paras: ¶20

Salehijam Salehijam, Maryam

The role of the New York Convention in remedying the pitfalls of
multi-tiered dispute resolution clauses
60 Years of the New York Convention : Key Issues and Future
Challenges, edited by Katia Gomez and Ana Rodriguez
Wolters Kluwer, 2019
Cited in paras: ¶8

Tevendale Tevendale, Craig / Cartwright- Finch, Ula

Is It Time to Recognize the Consensus?
26 J. INT’L ARB. 823, 828 (2009)

Cited in paras.: ¶51

INDEX OF SCHOLARLY AUTHORITIES PAGE | XXI

 SYMBIOSIS LAW SCHOOL, HYDERABAD MEMORANDUM FOR RESPONDENT

Von Schlabrendoff Schlabrendoff, Fabian von/ Sheppard Audley

Conflict of Legal Privileges in International Arbitration: An

Attempt to Find a Holistic Solution,

Global Reflections on International Law, Commerce and

Dispute Resolution, Liber Amicorum in honour of Robert
Briner, Paris 2005.

744 (ICC Publishing, 2005)

Cited in paras.: ¶44

Wolff Wolff, Dr, Reinmar

New York Convention - Article-by-Article Commentary (2nd ed,
2019)
Bloomsbury Publishing Plc
Cited in paras: ¶23

INDEX OF SCHOLARLY AUTHORITIES PAGE | XXII

 SYMBIOSIS LAW SCHOOL, HYDERABAD MEMORANDUM FOR RESPONDENT

INDEX OF LEGAL SOURCES

CISG United Nations Convention on Contracts for the International Sale of
Goods, 11 April 1980

FAI Rules Arbitration Rules of the Finland Chamber of Commerce, 1 June 2013

IBA Guidelines IBA Guidelines on Party Representation in International Arbitration,

25 May 2013, IBA Council

NYC Guidelines Convention on the Recognition and Enforcement of Foreign Arbitral

Awards, 10 June 1958 (NYC)

PCA Rules Permanent Court of Arbitration Rules, 2012

UNCITRAL Model UNCITRAL Model Law on International Commercial Arbitration

Law 1985 with amendments as adopted in 2006, 7 July 2006

UNCITRAL UNCITRAL Rules on Transparency in Treaty-based Investor-State

Transparency Rules Arbitration, 1 April 2014

UNIDROIT UNIDROIT Principles of International Commercial Contracts, 18

Principles May 2016

INDEX OF LEGAL SOURCES PAGE | XXIII

 SYMBIOSIS LAW SCHOOL, HYDERABAD MEMORANDUM FOR RESPONDENT

STATEMENT OF FACTS
The Parties to this arbitration [“ARBITRATION”] with seat in Danubia are GreenHydro Plc
[“CLAIMANT”] and Equatoriana RenPower Ltd. [“RESPONDENT”]; [hereinafter together
referred to as “THE PARTIES”].
The CLAIMANT, is a medium-sized engineering company, specializing in the services of
designing, building, and selling of plants that are engaged in the production of green hydrogen.
Additionally, a trailblazer in renewable energy, it further provides connected services across
the entire hydrogen and Power-to-X Chain, thereafter catering to energy, industrial, and
mobility sectors.
The RESPONDENT, a wholly-government-owned company, is a key player in the domain of
wind and solar energy in Equatoriana and the former’s “Green Energy Strategy.” To achieve
its ambitious target of Net-zero-2040, ERenPow was tasked to develop a “sustainable hydrogen
infrastructure covering the entire chain” that was necessitated for decarbonizing the steel and
transport industry of Equatoriana. Here is the timeline with dates included:
DATE EVENT EVENT DESCRIPTION
Early 2023 The announcement of The Equatorian Government makes the
the Green Energy announcement of its Green Energy Strategy,
Strategy with the implementation of the same being
tasked to Equatoriana RenPower.
March 2023 The Tender Process In furtherance of the construction of three major
Begins hydrogen production facilities, Equatoriana
RenPower invites bids, with an aim to develop
local industry, by integrating high requirements
of local content.
April 2023 Bid by the Claimant With a promise of 30% local content, the
Claimant submits its bid, and states its
involvement with Volta Electrolysers and Volta
Transformer, for the procurement of the local
content.
June 2023 Selection of the Final The final two bidders are chosen, including
Bidder Claimant, with the decisive factor in the
selection process being the requirement of the
necessary local content.

STATEMENT OF FACTS PAGE | 1

 SYMBIOSIS LAW SCHOOL, HYDERABAD MEMORANDUM FOR RESPONDENT

12 July 2023 Misrepresenting the August W. Deiman, Claimant’s negotiator,

requirement of Local communicates via email to the RESPONDENT,
Conten1t with the impression of closing up to 50% local
content, despite being aware of the potential
failure in its negotiations with P2G.
August 2023 The Signing of the Claimant and RESPONDENT enter into a contract
Purchase and Share for the 100MW hydrogen plant, with the
Agreement agreement including a “best endeavors” clause
and excluding termination rights.
November Change in the sub- The RESPONDENT is informed by the Claimant
2023 contractor for the that that the eAmmonia module will be
procurement of developed by Green Ammonia [Danubian
eAmmonia company], instead of P2G. Consequently, the
RESPONDENT expresses grave concerns due to
the lack of local content and thereafter warns
the Claimant about public scrutiny concerning
the same.
28 - 29 Failure to meet the The final detailed plans were not submitted
February required timeline within the deadline. The final submission
2024 entailed an incomplete plan, and didn’t delve
into eAmmonia details, citing reasons of issues
with the sub-contractor. Consequentially, the
RESPONDENT terminates the contract.
March 2024 Initiation of Criminal August W. Deiman, now CEO of Volta
investigation against Transformer, faced criminal investigation for
the Claimant’s CEO unrelated charges. Despite having been
acquitted, the negative press led to further
reputational damage.
April 2024 Initiation of Arbitral The request for initiation of arbitration is filed
Proceedings by the by the Claimant, challenging the termination
Claimant and seeking remedies.

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 SYMBIOSIS LAW SCHOOL, HYDERABAD MEMORANDUM FOR RESPONDENT

INTRODUCTORY REMARKS
“Contracts are the bedrock of commerce, yet when ambition outpaces integrity, dissolution
is but an inevitability.”
The CLAIMANT, a forerunner in green energy technologies, and the RESPONDENT, a state-owned
enterprise, aimed at instituting a landmark project that aimed at achieving net-zero emissions
by the year of 2040. At the heart of this Arbitration lies the RESPONDENT’S steadfast
commitment to realising Equatoriana’s Green Energy strategy – a visionary endeavor aimed at
facilitating a sustainable energy transition.
Well-regarded to be the “hammer and anvil of international commerce, forging solutions
beyond the reach of fragmented national courts…” International Arbitration is pivotal in
addressing concerns of unlawful breaches in contractual obligation. The Tribunal plays a
critical role in transcending across national boundaries, and ensure that conflicts are resolved
fairly among parties belonging to different legal systems. Thus, the contravention of
contractual obligations by the CLAIMANT calls for a judicial deliberative action against the
former, and thus the RESPONDENT respectfully contends for the jurisdictary power of this
Tribunal [Issue 1].
What started from an insignia of sustainable innovation and green energy, unfortunately
resulted in a saga of unfulfilled promises, misrepresentations, and operational inefficiencies by
the CLAIMANT. As has been rightly said by Gordon Hinkley, “a contract is only as good as
those who enter it” and in furtherance to the same, the deliberate omissions by the CLAIMANT
and failure to secure the requisite 50% local content was nothing but a clear display of the
CLAIMANT’S hollow commitment. Compounding the duplicity, the CLAIMANT knowingly
withheld information regarding its failed negotiation and leveraged its position to convince the
respondent to exclude the termination clause and include the best endeavors clause. Thus, the
this necessitates the inclusion of Evidence R3 as it reflects the CLAIMANT’S actions to be a mere
opportunistic pivot, thereby forsaking the spirit of accountability and cooperation.
Additionally, CLAIMANT’S reliance on Evidence C7 is contested as the same entail settlement
negotiations, underscoring the applicability of non-disclosure and Privilege [Issue 2].
Reinforcing Aristotle’s “Law is order, and good law is good order” the RESPONDENT sheds
light on the non-applicability of the provisions of CISG, that is central to the dispute governing
the contract, as, the Agreement expressly adopts the Law of Equatoriana. Additionally,
government entities possess the unequivocal right to terminate contracts, thus ensuring the
paramountcy of public interest. [Issue 3 AND 4].

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 SYMBIOSIS LAW SCHOOL, HYDERABAD MEMORANDUM FOR RESPONDENT

SUMMARY OF ARGUMENTS
The Tribunal lacks jurisdiction to hear the dispute due to Claimant’ to comply with the mediation pre-
condition, which was expressly intended by the Parties as a pre-requisite for the Tribunal’s jurisdiction.
The mediation process was not formally initiated in accordance with the Arbitration Agreement, thereby
rendering the condition precedent unfulfilled. Even if the Tribunal is found to have jurisdiction, the
claim should not be rendered admissible due to this non-compliance. Furthermore, contrary to
Claimant’s assertions, mediation cannot be held futile in the present case, as RESPONDENT has
demonstrated a genuine willingness to settle. Additionally, mediation being a cost-effective and
expeditious method of dispute resolution compared to arbitration, would not result in unnecessary
delays or costs. [Submission 1]

The arbitration rests its premise on the inherent right of Parties to present their case and consequently,
asserts the inclusion of Evidence R3 and the exclusion of Evidence C7. In order to establish the merits
of this contention, the RESPONDENT submits the following as a three-fold contention: firstly, the
CLAIMANT has the inherent right to tender necessitated evidences for the Tribunal’s thorough perusal,
secondly, the Tribunal must accept the inclusion of Exhibit R3, and finally, the Tribunal must exclude
the admissibility of Exhibit C7. [Submission 2]

The CISG does not apply to the Agreement as it is not a contract for the sale of goods under Article
3(2) CISG. The Agreement primarily involves engineering, planning, construction, and commissioning
services, which preponderantly outweigh the delivery of goods. Additionally, the Agreement is not an
international transaction, as the relevant place of business is Equatoriana, where CLAIMANT’s
substantial performance occurred. Further, the reverse auction process falls under the exclusion criteria
of Article 2(b) CISG, as it involved a structured, competitive bidding mechanism. Therefore, the CISG
does not govern the Agreement in the present matter. [Submission 3]

There is a clear indication of exclusion from the CISG provisions contrary to the claims of the
CLAIMANT. There is both the presence of clear choice of law as per Agreements signed between the
parties but also mutual intention to carry out the contractual obligations. The CLAIMANT has presented
facts in a misleading manner with wrongful interpretation of statutory and contract provisions. The
RESPONDENT humbly pleads through their arguments that, that shall be a grave miscarriage of justice.
[Submission 4]

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 SYMBIOSIS LAW SCHOOL, HYDERABAD MEMORANDUM FOR RESPONDENT

ARGUMENTS ON PROCEDURE
SUBMISSION 1: THE ARBITRAL TRIBUNAL LACKS JURISDICTION TO HEAR THE DISPUTE AND
THE CLAIM IS INADMISSIBLE

1. It is undisputed that the Parties have expressly agreed to resolve any disputes arising from the
Agreement through a two-step process: first by mediation and, if unresolved by arbitration. This
sequence is clearly outlined in the Arbitration Agreement [Ex. C2, pp. 12–13, Art. 30], which
stipulates that any dispute shall first be "submitted to mediation in accordance with the Mediation
Rules of the Finland Chamber of Commerce" and, if mediation does not result in a resolution, the
dispute shall be "finally settled by arbitration in accordance with the Rules for Expedited
Arbitration of the Finland Chamber of Commerce" [ibid.].

2. In accordance with this Agreement, the RESPONDENT asserts that mediation is a necessary pre-
condition for the Tribunal’s jurisdiction, or at the very least, a requirement for the admissibility of
the CLAIMANT’s claim [ARfA, p. 27, ¶. 16]. It is the RESPONDENT’s position that mediation should
have been attempted prior to resorting to arbitration [ARfA, p. 27, ¶ 16; PO2, p. 56, ¶, 36(c)], as it
is the intended first step in the dispute resolution process.

3. The CLAIMANT's assertion that the RESPONDENT’s conduct rendered mediation futile is
unfounded. It was the CLAIMANT’s "fundamental breach of contract" that prompted the
RESPONDENT to validly terminate the Agreement under “Article 7.3.1 of the Equatorianian Civil
Code” [C6, p.19]. Despite valid grounds for termination, the RESPONDENT engaged in good-faith
discussions and offered to continue the contract with a reasonable price adjustment in line with
state policy [C7, p.20]. By bypassing mediation and proceeding directly to arbitration, the
CLAIMANT disregards the cooperative efforts of the RESPONDENT and violates the agreed dispute
resolution process outlined in the Arbitration Agreement.

4. RESPONDENT thus humbly submits that the Arbitral Tribunal should not exercise its
jurisdictional competence to hear the dispute and must reject the claim for lack of admissibility.
To support this contention, the RESPONDENT will first demonstrate that mediation is a mandatory
condition precedent for the Arbitral Tribunal's jurisdiction [I]. Following which, the RESPONDENT
contends that mediation was not formally initiated by the Parties and therefore the condition
precedent was not effectively satisfied in accordance with the Agreement [II]. Finally, the failure
to comply with the pre-condition should render the claim inadmissible [III].

[I] MEDIATION IS A MANDATORY CONDITION PRECEDENT FOR THE TRIBUNAL’S JURISDICTION

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 SYMBIOSIS LAW SCHOOL, HYDERABAD MEMORANDUM FOR RESPONDENT

5. The character of pre-arbitration procedural requirements depends on the terms of the parties’
agreement. Absent clear language, national courts and arbitral tribunals have held contractual pre-
arbitration requirements as aspirational. Per contra, where the parties’ intent is clear, such
requirements are held to be mandatory with potentially significant results [Born, pg. 1726].

6. Contrary to the CLAIMANT’s contentions, the Parties in the present dispute clearly intended for
the mediation requirement to be a mandatory pre-condition to arbitration. This intention is
evidenced by the language of the dispute resolution clause [A] and is further reinforced by the
governing law of the contract which provides for mediation as a mandatory condition precedent
[B]. Consequently, non-compliance with the mandatory pre-condition bars arbitral proceeding [C].

[A]. The Parties’ intention is evidenced through the language of the dispute resolution clause

7. In order to decide whether the parties intended mediation to be a bar for the tribunal’s
jurisdiction, tribunals primarily rely on the language of the relevant dispute resolution clause
because it reflects “parties’ genuine intentions and objectives” [Born II, p. 239; Fiona Trust case,
¶ 5–8; Bayindir case, ¶ 98–100]. In the present case, the intention of the Parties is clearly
evidenced through the binding terms of the dispute resolution clause [1] and the amended FAI
Model Mediation Clause [2].

1. The dispute resolution clause uses binding terms

8. Dispute resolution clause must be interpreted according to the terms and the intent of the parties.
While permissive terms such as “may” or “can” suggest non-mandatory provisions, the use of
obligation-expressing terms such as “shall” or “must” in connection with pre-arbitration
procedures renders such provisions binding and compulsory before arbitration [Figueres, pg. 76 ;
Salehijam pg. 543]. Additionally, agreements requiring mediation before a specific mediator or
institution are treated as more binding than general requirements to “negotiate in good faith”[Born,
pg. 1459].

9. Arbitral Tribunals have repeatedly dismissed arbitration requests due to a party’s failure to fulfill
pre-arbitration procedural requirements [ICC Case No . 12739 ; Bühler & Webster pg. 564 ; ICC
Case No. 14667, ¶99; ICC Case No . 9977, ¶ 61 ]. This is because pre-arbitration procedures were
“strictly binding upon the parties and govern their conduct before resorting to arbitration.” [ICC
Case No. 6276, ¶ 45; ICC Case No . 9812, ¶ 45].

10. In the present case, Article 30 explicitly uses the term “shall” imposing a binding obligation to
comply with mediation before initiating arbitration [C2,Art. 30, pg.12]. The clause further specifies

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 SYMBIOSIS LAW SCHOOL, HYDERABAD MEMORANDUM FOR RESPONDENT

that the mediation should be conducted in accordance with the FAI Mediation Rules, reinforcing
its mandatory nature and eliminating ambiguity. Therefore, contrary to CLAIMANT’s allegations,
the language of the clause unequivocally establishes mediation as a condition precedent to
arbitration.

2. The Parties amended the FAI Mediation Model Clause

11. The CLAIMANT’s reliance on the FAI Mediation Rules’ provision that “[u]nless so agreed by
the parties, an agreement on FAI Mediation does not constitute a bar to any judicial, arbitral or
similar proceedings” [FAI Mediation Rules, Art. 11.1; FAI Mediation Guidelines, p. 6, §32]
disregards the Parties’ explicit agreement to the contrary. The default position of the FAI
Mediation Rules is rebutted by the Parties’ express intention, as evidenced through their
communication and conduct.

12. The email correspondence dated 12th July 2023, in which the CLAIMANT unambiguously stated
that mediation must be exhausted before arbitration, with arbitration serving only as a last resort
[R2, pg. 31], demonstrates the Parties’ clear and mutual intent to make mediation a mandatory
pre-condition to arbitration. Contrary to the CLAIMANT’s assertion, the absence of specific
procedural details, such as a time period or termination procedure for mediation, does not
invalidate this agreement. Jurisprudence has consistently held that the lack of detailed modalities
does not necessarily render a pre-arbitration mediation clause non-binding, especially when the
clause uses binding language and the parties have clearly indicated their intent to follow a
structured procedure [Ohpen Operations case, ¶ 35; Int’l Research Corp case, ¶22].

13. Additionally, the Parties’ deliberate deletion of the caveat in the FAI Model Mediation Clause
further reinforces their intention to mandate mediation. The CLAIMANT’s argument that the
amendment lacks significance fails to take into account the Parties’ conduct and intent to deviate
from the default FAI Mediation Rules. By agreeing to amend the Mediation Clause and expressly
committing to mediation as a pre-condition, the Parties exercised their right under Article 11.1 of
the Mediation Rules to “agree otherwise”. Therefore, the CLAIMANT’s position fails to recognize
the Parties’ intention to establish mediation as a pre-condition to arbitration.

[B]. The law of Equatoriana mandates compliance with mediation pre-condition

14. The CLAIMANT’s claim that the Danubian Law governs the Arbitration Agreement merely
because it is the law of the seat is unfounded and without substance. Where the parties have not
expressly or impliedly chosen the law governing the arbitration agreement, but they have chosen

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 SYMBIOSIS LAW SCHOOL, HYDERABAD MEMORANDUM FOR RESPONDENT

a law governing the main contract, the law of the arbitration agreement will usually be governed
by that law [Owerri Commercial Inc. Case, ¶12]

15. This is because arbitration clauses are considered integral parts of the main contract and hence,
it is reasonable to assume that the governing law of the contract extends to the arbitration
agreement [Redfern and Hunter ¶3.12; ICC Case No. 6752, ¶28; ICC Case No. 9480, ¶37; ICC
Case No. 6840, ¶67]. Such an approach fosters certainty, consistency and coherence, and avoids
complexities, uncertainties and artificiality [Enka case, ¶88].

16. While the law of the seat often applies by default, it does not override the law of the main
contract unless there is clear evidence that the parties intended otherwise or if applying the chosen
law would invalidate the Arbitration Agreement [Arsanovia case, ¶17-21]. In this case, the mere
choice of Danubia as the seat does not demonstrate an intent to apply Danubian law to the
Arbitration Agreement.

17. In the present case, Article 29 explicitly stipulates that the Agreement is governed by the
Equatorianian law [C2, pg. 12]. In the absence of an express choice of law for the arbitration
agreement, the starting point for determining implied choice is the law of the main contract
[Anupam Mittal case, ¶75]. Therefore, in accordance with the governing law, non-compliance with
the condition precedent constitutes a jurisdictional defect of the Tribunal [R2, pg 30].

[C]. Non-compliance with the mandatory pre-condition bars arbitral proceeding

18. The RESPONDENT submits that the failure to comply mandatory pre-arbitration procedural
requirements is inherently a jurisdictional defect that prevents a party from validly initiating
arbitral proceedings [ICC Case No . 12739 ¶56; Bühler & Webster, pg. 878 ; ICC Case No. 9812,
¶ 49; Figueres, pg. 132]. This approach aligns with the principle that, unless a condition precedent
is fulfilled, no enforceable contract arises [Lewison, pg. 650 ] and no obligation to perform the
principal promise exists [Chitty, pg. 987 ].

19. The CLAIMANT’s argument that the objection targets the claim rather than the Tribunal’s
jurisdiction is misplaced. While the arbitration agreement states that all disputes shall be “finally
settled by arbitration”, this provision is conditional upon the fulfillment of the mandatory
mediation requirement. In the absence of compliance with this pre-condition, the Tribunal lacks
jurisdiction to hear the claim.

20. International jurisprudence has consistently upheld that conditions precedent to arbitration are
prerequisite[s] to the submission of any dispute to arbitration, and a precondition to access to the

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 SYMBIOSIS LAW SCHOOL, HYDERABAD MEMORANDUM FOR RESPONDENT

arbitral forum [Silverstein Props Case, ¶34; Geico Case, ¶66; Sucher Case, ¶85]. Therefore, a
party’s failure to comply with these preconditions “foreclose[s]” access to arbitration [Consol.
Edison Case, ¶38]. In the same vein, an arbitral tribunal would not have jurisdiction before the
condition precedent is fulfilled [Int’l Research Corp, ¶10; Russell, pg. 2-022].

21. In light of the above contentions, mediation constitutes a mandatory pre-condition to arbitration
in the present case. As such, the Tribunal cannot exercise its jurisdiction until this pre-condition is
met. Therefore, contrary to CLAIMANT’s arguments, the objection raised by the RESPONDENT
directly challenges the Tribunal’s jurisdiction in the present case.

[II] MEDIATION WAS NOT FORMALLY INITIATED BY THE PARTIES AND THEREFORE THE
CONDITION PRECEDENT WAS NOT EFFECTIVELY SATISFIED IN ACCORDANCE WITH THE

AGREEMENT

22. The CLAIMANT argues that general pre-arbitration negotiations satisfy the condition
precedent; however; this interpretation undermines the specificity of the dispute resolution
clause. While the general discussions or ad hoc meetings referenced by the CLAIMANT satisfies
broad aspirational obligations to settle disputes amicably, an agreement to mediate before a
designated institution impliedly requires efforts to select and cooperate with a mediator [Born,
pg. 1452]. As the Parties explicitly agreed to engage in FAI Mediation, such mediation was not
merely limited to a matter of informal discussions; it required a structured process for resolving
disputes, guided by an impartial mediator.

23. Moreover, an arbitral award can be annulled if the arbitral procedure deviates from the
parties’ agreed terms [NYC, Art. V(1)(d); UNCITRAL Model Law, Art. 34(2)(a)(iv)]. Pre-
arbitration conditions precedent, such as mediation, is encompassed within arbitral procedure
[Wolff, pg. 324-324a]. The CLAIMANT’s reliance on the absence of “perfect forms” in the pre-
arbitration process overlooks the fact that any deviation from the agreed upon procedure
constitutes a breach of the pacta sunt servanda principle, which obligates Parties to fulfill their
contractual agreements as agreed [Lotamblau Investments Case, ¶ 17.2].

24. In the present case, the CLAIMANT’s reference to the Parties’ sole meeting in May 2024,
which was neither conducted under the FAI Mediation Rules nor in the presence of a mediator,
cannot be considered a valid attempt at mediation as required by the Arbitration Agreement.
At best, it can be viewed as an attempt at negotiation or informal discussions. However, these
efforts fall short of the structured mediation process expressly agreed to therein constituting a
clear breach of the agreed obligations [ Born, pg. 1453; Passlow case, ¶13; Penton Bus, ¶ 71].

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 SYMBIOSIS LAW SCHOOL, HYDERABAD MEMORANDUM FOR RESPONDENT

[III] FAILURE TO COMPLY WITH THE PRE-CONDITION SHOULD RENDER THE CLAIM
INADMISSIBLE

25. The CLAIMANT argues that the claim should be dismissed, asserting that any attempt at
mediation would be futile and would lead to unnecessary costs and delays. However, this
argument is unfounded. The RESPONDENT submits that, even if Tribunal is found to have
jurisdiction, it must exercise its jurisdictional discretion to find the claim inadmissible. This is
because mediation is not futile despite alleged irreconcilable disputes between parties [A].
Additionally, requiring mediation does not delay or obstruct proceedings [B].

A. Mediation is not futile despite alleged irreconcilable disputes between Parties

26. The CLAIMANT’s assertion that mediation is futile due to the Parties’ position being a
“hundred miles apart” is misplaced. This is because parties who initially seem hostile and see
little benefit in mediation can, under the guidance of a mediator, reach a solution to their dispute
[Lotamblau Investments Case, ¶ 5.2; Gathier, pg. 38 ; Bosnak, pg. 64; Rosmuller, pg. 678].

27. Mediation cannot be deemed futile in the present case as the RESPONDENTs had legitimate
grounds to terminate the agreement (1). Despite having valid grounds, they demonstrated good
faith efforts to settle with the CLAIMANT (2). These efforts reflect the RESPONDENTs’
willingness to explore amicable solutions, underscoring the potential for mediation to succeed
even in contentious cases.

(1). Respondents had legitimate grounds to terminate the agreement

28. The RESPONDENT’s decision to terminate the Agreement was lawful and justified based on
the following reasons. First, the CLAIMANT misrepresented the 50% local content in the project,
which the RESPONDENTs’ only became aware of after the Agreement was signed [R2, pg. 31].
Second, despite continuous warnings regarding the shift in government strategy and the
importance of adhering to timelines and budgets, the CLAIMANT failed to meet critical
milestones under the Agreement. Notably, the detailed final plans were delivered 28 days late
and were incomplete [C6, pg. 19] further straining the RESPONDENTS’ trust in the CLAIMANTS’
ability to fulfill the project’s objectives.

29. Third, the RESPONDENTS’ being a state-owned entity, acted in accordance with Article 7.3
of the Agreement, which permits termination in light of evolving government policies [ PO,
pg. 50]. Finally, the negative publicity surrounding criminal investigations into Mr. Deiman

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 SYMBIOSIS LAW SCHOOL, HYDERABAD MEMORANDUM FOR RESPONDENT

made continuing with the project untenable. For these reasons, the RESPONDENTs were fully
justified in terminating the Agreement.

(2). Despite legitimate grounds, RESPONDENT demonstrated good faith efforts to settle

30. Unlike the Cardno and CZQ cases cited by the CLAIMANT, where neither party
demonstrated willingness to engage, the RESPONDENTs in the present case made a concerted
effort to preserve the Agreement, despite having valid grounds for termination. They actively
engaged in personal meetings and proposed solutions, including a detailed without prejudice
offer aimed at preserving the relationship. The new CEO, Mr. Henry Cour, although known as
a tough negotiator, extended offers of a 15% or a two-digit price reduction to address the
CLAIMANT’s concerns [C7, pg. 20]. This stands in stark contrast to the CZQ case cited by the
CLAIMANT where the parties were uncooperative and showed “almost no enthusiasm” in
pursuing negotiations or settlement discussions.

31. Therefore, the CLAIMANTS’ decision to bypass mediation disregards the cooperative spirit
demonstrated by RESPONDENTS and is essentially on bad faith grounds. It was CLAIMANT’s
own delays that led to subsequent challenges, yet the RESPONDENTS still sought an amicable
resolution in good faith. This conduct starkly contrasts with the futility narrative CLAIMANT
attempts to portray.

B. Requiring mediation does not delay or obstruct proceedings

32. The CLAIMANT’s argument that mediation will lead to delays because the Arbitration
Agreement does not specify a timeframe for a meaningful mediation attempt is unfounded. In
a properly formulated mediation clause, the obligation to mediate is satisfied when the parties
engage in atleast one meeting with a mediator [Sanders, pg. 895; Rosmuller,, pg. 1]. The
obligation to use best endeavors to mediate is assessed on a case-based analysis, and even a
single mediation meeting can suffice to fulfill this obligation. Therefore, any claim that
mediation inherently causes delays due to absence of a set timeframe is speculative and fails to
take into account the flexible nature of mediation.

33. The CLAIMANT’s reliance on the NWA case is also misplaced as the facts of that case are
distinguishable from the present dispute. In NWA, the CLAIMANT failed to engage in the
mediation process despite multiple attempts made by the RESPONDENT, due to which the
tribunal permitted to resolve the dispute by arbitration. In contrast, the present case
demonstrates a clear consensus by both Parties to engage in settlement discussions prior to
arbitration.

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 SYMBIOSIS LAW SCHOOL, HYDERABAD MEMORANDUM FOR RESPONDENT

34. Furthermore, the argument that the selection of FAI Rules for expedited arbitration reflects
an intent for swift resolution is flawed. The dispute resolution clause expressly provides that
either party may request the application of regular Arbitration Rules based on the complexity
of the case [C2, p 13]. In fact, the CLAIMANT has voluntarily chosen to deviate from expedited
arbitration by opting for the application of regular arbitration rules [ibid], thereby undermining
their argument that swift resolution is the exclusive intention.

35. Finally, the CLAIMANT’s assertion that requiring mediation would lead to unnecessary costs
is also misguided. Mediation is generally considered to be more cost-effective than arbitration,
as it enables parties to resolve disputes early, avoiding the need for prolonged arbitration
proceedings [Ricardo, pg no. 35 ]. The CLAIMANT’s contention that mediation will incur
unnecessary costs due to the re-filing of arbitration is erroneous as the dispute resolution clearly
outlines an obligation to mediate. It is therefore, CLAIMANT’s refusal to comply with this
obligation that creates the risk of additional costs. In light of the above arguments, the Tribunal
should find the CLAIMANT’s claim to be inadmissible.

CONCLUDING REMARKS FOR SUBMISSION 1.

The Tribunal lacks jurisdiction over this dispute and shall reject the claim as inadmissible.

SUBMISSION 2: THE ARBITRAL TRIBUNAL SHOULD ORDER THE INADMISSIBILITY OF

EVIDENCE C7 AND, ORDER THE INCLUSION OF EVIDENCE R3 THEREIN TENDERED BY THE

RESPONDENT

36. The RESPONDENT submits that arbitration rests its premise on the inherent right of Parties
to present their case and consequently, asserts the inclusion of Evidence R3 and the exclusion
of Evidence C7. In order to establish the merits of this contention, the RESPONDENT submits
the following as a three-fold contention: firstly, the CLAIMANT has the inherent right to tender
necessitated evidences for the Tribunal’s thorough perusal [I], secondly, the Tribunal must
accept the inclusion of Exhibit R3 [II], and finally, the Tribunal must exclude the admissibility
of Exhibit C7 [III].

[I]. THE RESPONDENT HAS THE INHERENT RIGHT TO TENDER ALL EVIDENCES RELEVANT
FOR THE JUDICIOUS DELIBERATION BEFORE THE TRIBUNAL

37. The RESPONDENT argues in this section that in the instant case, the inherent right of the
RESPONDENT to tender all relevant evidences is necessitated for the judicious deliberation of
the Tribunal. The RESPONDENT thereafter asserts the exclusion of evidence C7, and inclusion

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 SYMBIOSIS LAW SCHOOL, HYDERABAD MEMORANDUM FOR RESPONDENT

for evidence R3, and the same stems from the submission that it is the prerogative of the
Tribunal to address the RESPONDENT’s allegation through a thorough examination of all
necessary evidences.

A. The Tribunal possesses the requisite authority to thoroughly examine the evidences
necessary to address the Respondent’s allegation

38. The Tribunal is tasked with the obligation to adequately peruse through all relevant
evidence for making an informed decision. Per the provisions outlined in Art. 27(3) PCA Rules,
an arbitral tribunal “may require the parties to produce all documents, exhibits or other
evidence” as deemed necessary. If a party fails to comply with the request therein tendered for
admission of an evidence, it must expect that this will be considered to have been “detrimental
in its decision.” [PCA 4 Sep 2020; PCA 22 Aug 2016; ICC Case No. 20549; ICC Case No
19299; ICSID 28 May 2013; Mourre, Arb Int, p. 115].

39. Exhibit R3 entails the communication between the CLAIMANT and her Head of Legal
Department, Heidi and sheds light on CLAIMANT’s awareness of the possible failure of its
negotiations with P2G and the consequent deliberations on addressing said issue. This email
thereafter clearly shows that, despite CLAIMANT’s awareness of the potential falter in its
negotiations with P2G, no such disclosure was intimated to the RESPONDENT. This misled the
RESPONDENT into believing that the CLAIMANT was still in a position to meet the requirement
of 50% local content, which eventually influenced the RESPONDENT to accept the “best
endeavours” clause and exclude the termination rights [ARA, p.6]. Thus, the Tribunal has the
necessary means to address this travesty of good faith.

[II]. THE TRIBUNAL MUST ACCEPT THE INCLUSION OF EXHIBIT R3

40. In international arbitral proceedings, there exists no standard prevailing rule, or a one-size-
fits-all provision when an illegally obtained evidence’s admissibility is brought before the
Tribunal’s deliberation. Rather, the accepted principle is that arbitral tribunals are vested with
expansive discretion in deeming an evidence admissible or otherwise [Poudret/Besson, p.834,
¶ 934]. It is thus respectfully urged by the RESPONDENT that, tribunals often agree with the
proposition that the interest vested in the admission of the evidence often outweigh the interest
that has been impugned in the procurement of the evidence [Schlabrendorff & Sheppard, p.99].
While exercising such discretion, the Tribunal must account for all surrounding circumstances
such as, whether there was an occurrence of a criminal act while obtaining such evidence,

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 SYMBIOSIS LAW SCHOOL, HYDERABAD MEMORANDUM FOR RESPONDENT

whether other corroborating evidence is available, among others [Poudret/Besson, p.834, ¶

945].

A. Exhibit R3 is not protected by legal privilege thus need not be excluded

41. It is submitted by the RESPONDENT that the Claim of Confidentiality under the Law of
Equatoriana to preclude Exhibit R3 does not outweigh the Right to Present Evidence in Arbitral
Proceedings. Thus, in arguendo, if the claim of confidentiality holds countenance, the
RESPONDENT further asserts that alleged obligations of confidentiality do not automatically
warrant its exclusion by the Tribunal. The pre-necessity of relevance and materiality outweigh
general concerns of confidentiality. [A.I. Trade Finance Inc. case, ¶ 34]. Additionally,
Tribunals have underscored that confidentiality claims should not obstruct evidence critical to
a party’s claim, especially when such evidence relates directly to alleged misconduct
[Libananco case, ¶ 24; Oostergetel case, ¶ 31].

42. Finally, claims of confidentiality in arbitration generally applies in instances wherein it

intends to protect sensitive data or business, rather than shield evidence of potentially improper
conduct or intent during contract negotiations. Departing from this, in this matter, excluding
R3 based on vague confidentiality concerns, would obstruct RESPONDENT’s ability to
substantiate its claims of the CLAIMANT conducting negotiations in bad faith, potentially
leading to an incomplete and unbalanced assessment.

B. Alternatively, R3 is further not safeguarded by legal privilege under transnational

legal principles

43. Crafting a practical remedy to address the challenges concerning the question of privilege
in international arbitration necessitates a nuanced understanding of a plethora of policies that
underpin this field. It is thus necessary to take into account the expectations of both parties
upon entering arbitration, and therein, maintain the equilibrium between their respective
positions, thus imparting fairness and impartiality [Tavendal/Finch, p.828]. Therefore, being
mindful of these inter-connected essentialities is vital to defining a proper arbitration
proceeding [Tavendal/Finch, p.828]. Thus, keeping in mind the peculiar domestic approaches
to according the status of a privileged communication, the RESPONDENT argues in this section
that, in the instant case, by perusing through the domain of transnational legal principles
concerning the same, and effectuating this by meeting out the necessary essentialities, it
becomes evident that Exhibit R3 does not come under the ambit of a privileged communication.
In order to substantiate the RESPONDENT’s claim for the inclusion of evidence R3, the sine qua

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non concerning the conclusive transnational legal privilege surrounding privilege is balancing
the expectations of the parties.

44. Therefore, the RESPONDENT argues that a necessary consideration for constructing a fair
solution stem from the premise of complying with the reasonable expectations of the parties
[Kaufmann-Kohler/Baretsch, p. 30; B. Born, p. 1891]. Each of the parties involved in a dispute
have certain expectations while initiating an arbitral proceeding. These assumptions are
elevated to attain the status of “legitimate expectations” in lieu of the doctrine of equal
treatment [von Schlabrendorff/Sheppard, p.766], commonly known as “equality of arms”
[Berger, p. 516]. Equality of Arms, a fundamental criterion for fair procedural rules in an arbitral
proceeding, stems its premise from legal provisions of UNCITRAL Arbitration Rules specify
that “the arbitral tribunal must guarantee that the parties are treated with equality,” [UAR,
Art.15(1)], while the provisions of the IBA Rules on the Taking of Evidence in International
Arbitration ordain that, the exclusion of evidence should be done based on considerations of
“fairness or equality of the parties,” that the Tribunal, on perusal, deems to “be compelling”
[IB Rules, Art. 9(2)(g)]. Thus, it is evident that the threshold for the ground of a compelling
reason for excluding evidence is high [von Schlabrendorff/Sheppard, p.766]. It is pertinent to
note that applying equal treatment does in no manner relate to parties being granted “absolute
equality” in quantitative terms [von Schlabrendorff/Sheppard, p.767]. No two parties are at the
same footing and thereafter, one party always has a higher burden of proof to establish, thus
necessitating more witnesses or evidences to substantiate their arguments [Shaughnessy,
p.271].

45. In the present matter, Exhibit R3 entails the communication between the CLAIMANT and
her Head of Legal Department, Heidi. This evidence is pertinent as it shed light on CLAIMANT’s
awareness of the possible failure of its negotiations with P2G and the consequent deliberations
on addressing said issue. This email thereafter clearly shows that, despite CLAIMANT’s
awareness of the potential falter in its negotiations with P2G, no such disclosure was intimated
to the RESPONDENT. This wanton non-disclosure misled the RESPONDENT into believing that
the CLAIMANT was still in a position to meet the requirement of 50% local content, which
eventually influenced the RESPONDENT to accept the “best endeavours” clause and exclude the
termination rights [ARA, p.6]. It is thus humbly urged before this Tribunal that This lack of
nondisclosure shows Akhyar Kart picture of the bad faith faced by the RESPONDENT while
dealing with the CLAIMANT. The exhibit R 3 das assertively displays the internal negotiation
communication that undermine the credibility and the blatant lack of good faith on part of the

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 SYMBIOSIS LAW SCHOOL, HYDERABAD MEMORANDUM FOR RESPONDENT

CLAIMANT. Thus, the request for excluding said exhibit would be flagrant violation to the
procedural fairness and would unfairly tip the balance to favour only the CLAIMANT.

C. The grounds of having illegally procured R3 is not legally sustainable to exclude

the same

46. On a bare perusal of the IBA Rules, 2020, it is evident that there exists no straitjacket
formula for determining the criteria set out concerning the admissibility of illegally obtained
evidences. Article 9.3 and Article 9.2 deals with same, with the former vesting Tribunals with
the discretionary power to include or exclude evidence, and Article 9.2 being a mandatory
provision. Thus, in furtherance to substantiating this submission, the Counsel does so, in a two-
fold manner; firstly, The RESPONDENT was not directly involved in the illegal activity for
obtaining Exhibit R3 [1], and secondly, The Principle of Procedural Fairness and its nexus with
taking of evidence permits Exhibit R3 to be admitted by the Tribunal [2].

[1] The Respondent was not directly involved in the illegal activity for obtaining
Exhibit R3

47. One of the foremost considerations adopted by Tribunals for determining whether the
illegal evidence has been obtained through any “unlawful means” stems its premise on the
doctrine of Clean Hands which necessitate that, the parties in pursuance of their own wrongful
acts, do not take advantage of the same. It is necessary to clarify that the scope of said illegal
act is restricted to evidence that have been obtained either from a third party or from an agent,
that have a vested interest in the outcome of the dispute [Methanax case, para.54].

48. The Counsel thus submits that if the party to a dispute, is directly involved in acquiring the
evidence wrongfully, then the former must be precluded from placing reliance on such
evidence, as it is vehemently opposed against parties to benefit off of their own misconduct
[Libananco case, para 24]. However, this principle does not have an inherent strict
interpretation. Not every piece of evidence that has been submitted by the parties with the
allegation of having procured the same through an illegal activity can be ruled out off the
Tribunal’s discretion. Therefore, the nature of said illegal activity and its proportionality, plays
an essential role in determining the admissibility of the said evidence by the tribunal. Otherwise
even the most minor irregularity would effectuate the exclusion of pertinent evidences
[Blair/Gojkovic, p.250]. The Counsel thus requests the tribunal to understand that such a
practise bolsters discretionary power vested in tribunals in admitting evidences that have been
illegally obtained by taking into account of all the prevailing circumstances. This is further

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been affirmed by an ICC Tribunal that held that in instances of international arbitration, strict
rules of evidence are not applicable as they may “apply in the seat of arbitration or in the
jurisdiction of the parties” [van den Berg, p.132]. Thus, the tribunal has absolute power in
determination of the admissibility of evidence and with respect to its credibility. Therefore, the
nature of the evidence’s illegality is to be juxtaposed with the probative value, in determining
the evidence’s admissibility.

49. In the present matter, it is to be noted by this Tribunal that the factual matrix remains silent
as to the procurement of the Exhibit R3. To draw an assumption that the RESPONDENT is directly
linked to the illegal procurement of the evidence, is in stark violation to the integrity of the
proceedings. Drawing an adverse assumption against a particular party, absent substantial
information, is severely prejudicial to the procedural fairness of the arbitration proceeding.
Additionally, despite such assumption, the same does not automatically vitiate the admissibility
of the evidence; as afore-mentioned, the same must be considered by taking into account all
relevant factual considerations and the probativeness of the evidence therein procured. Exhibit
R3 is a pertinent evidence that underpins the CLAIMANT’s attitude of conducting negotiations
with the RESPONDENT in bad faith. Thus, in a dispute concerning contractual obligations, the
act of the Tribunal to not include evidence that clearly entails the intention of the party and
their behavioural tendencies during the process of negotiations and the subsistence of the
contract, would be subversive to the procedural integrity of the arbitration proceeding.

[2] The Principle of Procedural Fairness and its nexus with taking of evidence permits
Exhibit R3 to be admitted by the Tribunal

50. Under Article 15 of the UNCITRAL Arbitration Rules, the arbitral tribunal has broad
discretion to conduct proceedings in a manner it considers appropriate, provided it ensures
equality of treatment. This principle of procedural fairness is central to deciding whether to
exclude evidence such as Exhibit R3. Ethical guidelines in arbitration emphasize the integrity
of proceedings, discouraging exclusion of evidence without a compelling reason justifying the
same.

51. The principle was staunchly reiterated and emphasized in the case of Methanex v USA,
wherein it was reasoned that the principle of safeguarding equality and procedural fairness
must apply to both parties. Thus, the deliberative question before the tribunal is how the
principle of procedural fairness / that of equality of arms allow for the inclusion of an evidence,
whose procurement is shrouded with ambiguity. Equality of arms refers to “granting a

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 SYMBIOSIS LAW SCHOOL, HYDERABAD MEMORANDUM FOR RESPONDENT

reasonable opportunity to present their claims and evidence in arbitration...” [von

Mehran/Salomon, p.296]. The same stems its premise on the contention that the refusal is
admitting material evidence would have an adverse impact on the right of a party to present
their case, thereafter, impeding the enforceability of the arbitral award per the provisions of
Art.5(1)(b) of the New York Convention [von Mehran/Salomon, p.296]. Additionally, if the
Tribunal was to exclude illegally obtained evidence, that is material to the final outcome of the
proceedings, the same would lead to the “exclusion of justice” [Shaughnessy, p.114]. This
submission is furthered through the following two submissions; firstly, the non-admission of
evidence would stymie the due process in the arbitral proceeding [a], and secondly, the Tribunal
has the final prerogative to decide on matters of procedure.

a. Non-Admission Of Evidence Would Stymie The Due Process In The Arbitral

Proceeding

52. If a Party is unable to produce key evidence, due process would be considered to have been
violated, if the evidence would have materially altered the outcome of the Tribunal’s
proceeding [Fotochrome Case, p. 516; License Case, p. 530; Reynolds Case, pp. 4, 7]. It is
asserted that a decision to exclude the admission of evidence could amount to denying a Party’s
“due opportunity to present proofs and arguments” [Tempo Shain case, ¶ 17-21; Fraport (n33)
[185]; Tracey Frisch (2015), pg. 162-165]. Additionally, a rejection of including evidence that
is palpably material and relevant, without good reason, would be tantamount to failure of the
Tribunal to appropriately consider Parties’ submissions, thus trespassing on the ‘right to be
heard’ [Hoteles Condado Beach, La Concha Case, pp. 901; BGHZ pp. 96, 40].

53. Thus, the RESPONDENT clamour for the Tribunal’s determination on what is material and
relevant to be the former’s prerogative and, “without more such as perhaps outright
arbitrariness, to not contravene the right to be heard” [Ferrari & Ors. (n 76), p. 7]. Thus,
allowing the CLAIMANT to submit evidences for their submissions and consequently
disallowing the RESPONDENT of its crucial evidences that are necessary to foundationally set
its arguments in the proceedings to defend the CLAIMANT’s averments, would trespass on
equality of arms [CBS Case, ¶ 61; Central European Aluminium Company Case, p. 110; Tulip
Real Estate case; p. 23]. Consequently, the RESPONDENT contends for the admissibility of the
pivotal evidence R3 to ensure due process of this Tribunal’s arbitral proceedings.

b. The Tribunal Has The Final Prerogative To Decide On Matters Of Procedure

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 SYMBIOSIS LAW SCHOOL, HYDERABAD MEMORANDUM FOR RESPONDENT

54. Through a catena of the Tribunal’s decisions, it is evident that, in circumstances that entail
a lack of an express agreement among the disputing Parties, matters of procedure fall within
the ambit of the Tribunal’s power. It is asserted that matters of confidentiality and transparency
are matters of the Tribunal’s procedure. Thus, the eventual and definitive decision to determine
whether admissibility of evidence is hit by the claims of confidentiality or otherwise [Rand
Investments Ltd case, ¶ 27].

55. Similarly, it has been provided in Section 33 of the English Arbitration Act that the
Tribunal’s general duty entails to “act fairly and impartially as between the parties, giving each
party a reasonable opportunity of putting his case and dealing with that of his opponent.”
Furthermore, the RESPONDENT contends that, on the face of it, there exists a clear dearth in
strict rules that govern exclusionary rules of evidences in arbitral proceedings, and the
responsibility rests on the Tribunal to decide the same, all the while ensuring no contravention
to the principles of due process [Mojtaba Kazazi, pg. 207 – 208; Jeffrey Waincymer, pg. 797].

56. Additionally, in instances involving objections of an issue relating to matters of procedure,

the Tribunal may sua sponte deliberate on the same, while ensuring to strike a balance of
fairness and efficiency, and not merely adjudging in the favour of the Party who raised the
evidentiary objection [IBA Rules, Art. 9(2) and (3); O’Malley (n6), pg. 336]. Thus, the
RESPONDENT concludes that Tribunals had the broad evidentiary discretion concerning
admissibility of evidence, and with the backdrop of the objection on the superfluous ground of
confidentiality, coupled with the materiality and relevancy of the evidence therein tendered
before the Tribunal, the non-admission of the former would heavily deviate from the striking
the right balance of fairness and efficiency.

D. The Evidence R3 Is Admissible sensu lato since the criteria of relevance and
materiality are sensu stricto met thus outweighing Procedural Violations

57. The RESPONDENT argues in this section that, internationally recognized guideline for the
admission of an evidence tendered, rely on the balance of the former’s probative value and its
prejudicial effect, with the latter not outweighing the probativeness of such admission
[Muhammed bin Kadar case, ¶ 55]. The principle has further found paramountcy in
international arbitration, wherein, Article 9.1 of IBA Rules 2020, gives the tribunal the power
to adjudge the admissibility of a piece of evidence based on its materiality, relevance, and
weight [Boykin and Havalic, p. 34]. In order to prove the admissibility of said evidence, the
following contentions are submitted as follows: firstly, the evidence presently tendered by the

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 SYMBIOSIS LAW SCHOOL, HYDERABAD MEMORANDUM FOR RESPONDENT

RESPONDENT is of material nature and subsequently relevant to the matter [1] and secondly, the
evidence is pertinent for determining the CLAIMANT operating in bad faith [2].

[1] The Evidence Is Substantially Relevant and Material To The Present Matter

58. The RESPONDENT substantiates its allegations against the CLAIMANT by tendering evidence
R3. The same hinges its admission on the grounds of it being of material nature [a], and relevant
to the deliberation of the present matter [b].

[a]. The evidence is of significant material nature

59. Evidence’ s relevancy and materiality are to be determined by placing reliance on Art. 27(4)
PCA Rules. Evidence is to be deemed ‘material’ if it proves a fact which allows to draw
necessary legal conclusions [Piklov, p. 148; Kaufman-Kohler/Bartsch, p. 18; Aspen, p. 26] and
provide a comprehensive assessment of the legal issues at hand. [Nater-Bass/Pfisterer, p.681;
Raeschke-Kessler, p.427; Marghitola, pp. 52 et seq]. Materiality refers to the bearing the tender
of evidence would have over the Tribunal’s award [DO. O’Malley (n3), p. 63]. Furthermore,
courts have adjudged the necessity for Tribunal’s to ensure it does not unfairly deny documents
or exhibits during its proceeding, that were relevant to its argument. [Hochtief case, ¶ 58].
Evidence R3, as has been reiterated, showcases the clear display of the CLAIMANT’s bad faith
while negotiating with the RESPONDENT. This thereafter necessitates the same to be admitted
as evidence, in order to ensure that the Tribunal is being presented with the complete picture
of the dispute.

[b]. The evidence holds weighty relevancy to the matter in dispute

60. The standard for determining relevancy stems from the evaluation of the evidence’s
probative value, to the Party’s burden of proof. While considering relevancy, the Tribunal is
tasked with examining the necessity of the evidence for the Party to prove an allegation, or in
its defence [D. O’Malley (n3) p. 63]. Thereafter, the Tribunal has clearly enunciated that the
exclusion of an evidence can be called for only if; the particular issue in concern has been
established; it is not required for the substantiation of a contention; or the Tribunal after an
anticipatory evaluation, considers that the non-admission of such evidence would not alter its
decision [D. GmbH case, p. 597].

61. It is undisputed between the Parties that, while the Tribunal takes the issues concerning
jurisdiction and applicability of CISG as its pinnacle point of deliberation, essentially, the
Tribunal stands the subject of the contractual relationship between the Parties, on its head. The

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 SYMBIOSIS LAW SCHOOL, HYDERABAD MEMORANDUM FOR RESPONDENT

perusal of exhibit R3 would prove the contractual relation that unfortunately founded its
premise on bad faith. Misleading the RESPONDENT despite knowing of the potential failure in
its crucial negotiations with P2G, dawned the point of departure for the present dispute. Further,
with the production of said evidences, the Tribunal could conclusively assess the alleged
invalid termination of the PSA, thus having an impact on the Tribunal’s decision of whether
the RESPONDENT is obliged to perform their role per the PSA, or CLAIMANT is entitled to
damages – or none of the above. Since these results will make it possible to evaluate the relation
between the Parties, the evidence therein tendered are relevant. In either case, the Tribunal’s
result hinges on a complete consideration of the issue at hand, thus materialising the necessity
for the admission of evidence R3.

[2] The Evidence Is Necessary To Determine The Claimant’s Objective Intent Of

Acting In Bad Faith

62. The RESPONDENT argues that, to establish the accountability of a contracting Parties’
obligation per the Purchase and Service Agreement, it becomes germane for comprehending
the objective intent behind the said Party’s actions. Tribunals have, in a plethora of their
decisions, employed the provisions of Art. 8(2) of the CISG, wherein, objective evidence forms
the basis for the Tribunal’s decision. When there exists divergent understanding between the
Parties concerning the interpretation of their conduct, it becomes crucial to construe the same
per the language of Art. 8(2) of the CISG [An International Approach to the Interpretation of
the United Nations Convention on Contracts for the International Sale of Goods (1980), pp.
48-51]. The RESPONDENT maintains the position of “reasonably interpreting the parties’
statements” and additionally interpret the Parties’ conduct per a reasonable individual’s
understanding, who would have the characteristics of the other Party had he been in an identical
circumstance [Art. 8(2) CISG]. Additionally, evidences that relate to negotiations, allow leeway
in clarifying any surrounding ambiguousness relating to the Parties’ intent and can thus be
admitted by the Tribunal [Trustid Inc case, ¶ 7].

63. Basing its premise on the same, the CLAIMANT thereafter asserts that, in the present
scenario, the actions of the CLAIMANT did not parallel that of a reasonable persons’. This
assertion stems its basis from examining the contents of the emails communicated between the
legal counsel of the CLAIMANT and the latter [R3]. The former oversees that, despite
CLAIMANT’s awareness of the potential falter in its negotiations with P2G, no such disclosure
was intimated to the RESPONDENT. This wanton non-disclosure misled the RESPONDENT into

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 SYMBIOSIS LAW SCHOOL, HYDERABAD MEMORANDUM FOR RESPONDENT

believing that the CLAIMANT was still in a position to meet the requirement of 50% local
content, which eventually influenced the RESPONDENT to accept the “best endeavours” clause
and exclude the termination rights [ARA, p.6]. This consequently led to the CLAIMANT being at
a pedestal higher in their contractual relationship and further, sheds light on the fact that the
former is merely acting in furtherance of their personal commercial motives and not to sustain
a contractual obligation in good faith. It is thus maintained by the RESPONDENT that through
the lens of a reasonable person, it becomes apparent through the wordings of the email when
carefully perused, that the same shows a clear picture of the CLAIMANT’s operating on bad
faith, and thus, the former’s non-admission would be prejudicial to the Tribunal’s axiom of fair
proceedings.

[III]. THE TRIBUNAL MUST EXCLUDE THE ADMISSIBILITY OF EXHIBIT C7

64. The RESPONDENT Submits that exhibit C7 is protected under settlement privilege and does
not constitute any act of coercion or threat settlement privilege exists in order to facilitate
candid and open negotiations without any fear of subsequent disclosure and the high threshold
for such a removal has not been met in the present case. The submission will be substantiated
in a three-fold manner; firstly, the claim of settlement privileges is applicable in the present
matter, secondly, the threshold for removing the claim of privilege has not been met, and finally,
there exists no threat or coercion that necessitates the disclosure of the evidence.

A. The claim of Settlement Privilege is applicable

65. It is a well-established rule that, Parties may convey on the ground of the need for genuine
settlement negotiations and that of good faith, “written or oral information and concessions
with the assurance that the counterparty will not be able to disclose it or use against” them in
the instance wherein, a settlement was not reached and, proceedings were initiated [Rush &
Tompkins case, Cutts case]. The threshold for the claim of privilege in the instances of
settlement negotiations have always been regarded as high by the Tribunals. It is pertinent to
note that, even in instances wherein the document is not labelled as “without-prejudice” the
tribunal has accorded the same with settlement privilege [Unilever Plc case, Belt v Basildon
case]. In fact, the tribunal has held that in instances wherein, within a chain of communications,
the usage of “without prejudice” has occurred only in the first instance and not in any
subsequent exchanges, the interaction in its entirety is considered to be struck by the claim of
settlement privilege, and is thus protected from disclosure [Cheddar Valley Engineering Ltd
case]. Additionally, precedence by the tribunal have stated that if discussions generally aim

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 SYMBIOSIS LAW SCHOOL, HYDERABAD MEMORANDUM FOR RESPONDENT

that arriving at a settlement in the nature and contents of the document is relevant since
privileges automatically extended to “cover even commercial matters as well as legal
exchanges” [Sportradar AG case]. In the present instance, the exhibit C7 explicitly aimed at
reaching an agreement, and the sole reason for the 15% price reduction was only to ensure the
feasibility of the project. Drawing adverse presumptions stating that the letter had elements of
coercion and threat, clearly evidentiates the bad faith with which this contractual relationship
premised itself on. Thus, this privilege cannot be disregarded by the tribunal and the inclusion
are the same with stymie procedural fairness and integrity of the proceedings.

B. The threshold for removing the claim of privilege has not been met

66. The RESPONDENT argues that, for the applicability of the grounds in which evidences
relating to settlement privilege can be admissible is rather high. This includes instances of
blackmail, unambiguous impropriety or perjury [Berkeley Square Holdings Ltd case, p.24] or
for the necessary to explain delay in proceedings without prejudice communication can be used
as evidence [Unilever PLC case, p.45]. The trend was further supported by the Court of Appeals
which conclusively held that without prejudice privilege is applicable with respect to
communications when they occur in the course of genuine negotiations for settling a
discrepancy of contractual obligation. Additionally, this rule is also applicable to any implied
agreements or conversations that arise from negotiations under such situations [Ernest
Ferdinand case, p.37]. It is submitted that the inability of a party to be able to proceed with
respect to a particular condition of contractual agreement, does not amount to the refusal of the
party to negotiate. Such instances are part and parcel of any commercial negotiation. To draw
such adverse assumptions against the RESPONDENT would be highly prejudicial and thereafter
shifts a focus of the tribunal to be able to arrive at a fair deliberation. Thus, due to the high
threshold for removing the claim of privilege for settlement negotiations, in the present
scenario exhibit C7 should be excluded.

C. There exists no threat or coercion that necessitates the disclosure of the evidence.

67. It is argued by the CLAIMANT that the communication entailed in exhibit C7 constitute a
threat from the RESPONDENT. It is therein submitted that, the communication is nothing but a
legitimate and commercially justified negotiation stance taken by the RESPONDENT to ensure
continuity and feasibility of the project. Holding a firm bargaining position, when outlined with
other financial constraints, cannot be equated to grave threshold of improper conduct or
coercion [Rush & Tompkins, p. 3; Octagon, para 22]. Unlike in the case of Muller, wherein

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 SYMBIOSIS LAW SCHOOL, HYDERABAD MEMORANDUM FOR RESPONDENT

there was an explicit and illegal threat being made, the letter by the RESPONDENT merely shed
light on the economic realities under which the project could be feasible. The statement that
the continuation of the project was contingent by to the Minister’s approval is an objective fact
and not a threat or demand that is backed by an improper pressure on the CLAIMANT. It is
common knowledge that during commercial negotiations parties often set conditions in order
to proceed further with their participation and such conditions do not automatically equate to
being coercive or unlawful.

68. As has been reiterated, settlement privilege can be vitiated only through unambiguous
impropriety, such as blackmail perjury or threat of an active unlawful action [Unilever PCL
case; Ferster case]. The CLAIMANT has failed to establish any such improper contact imparted
by any RESPONDENT. Additionally, the letter does not contain any implied or express threat, nor
is it seeking to impose unfair pressure on the CLAIMANT. In fact, the offer by the RESPONDENT
for a 15% reduction in prices and a performance guarantee clearly reflects a genuine attempt
to facilitate and continue the viability of the project. The language in the letter therefore, does
not foreclose any negotiation but rather invites the CLAIMANT to engage in decisions
discussions on a more commercially and economically feasible term. Merely because the
proposal was deemed unfavourable by the CLAIMANT, the same does not transform it into a
threat. The core objective of a settlement privilege is to facilitate open dialogue between parties
with other risk of any adverse consequences; the exhibit C7 aligns with said principle as it
aimed to seek a mutually beneficial resolution rather than imposing an ultimatum on the
CLAIMANT. Therefore, it is submitted that, permitting the CLAIMANT to introduce exhibit C7
would distort the inherent nature of commercial negotiations, and set up precedents where mere
economic and commercial realities will be mischaracterized as coercion.

CONCLUDING REMARKS FOR SUBMISSION 2.

THEREFORE, CONTRADICTORY to the CLAIMANT's submissions, the RESPONDENT has the

inherent right to render necessitated evidences for the Tribunal's thorough perusal.
Additionally, Evidence R3 hinges on relevance, materiality, and procedural fairness, and
therefore necessitates its admission before the Tribunal. Finally, the RESPONDENT vehemently
contends the exclusion of Exhibit C7, due to its blatant disregard to the principles governing
Settlement Privilege.

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 SYMBIOSIS LAW SCHOOL, HYDERABAD MEMORANDUM FOR RESPONDENT

ARGUMENTS ON MERITS

SUBMISSION 3: THE CISG IS NOT APPLICABLE TO THE PURCHASE AND SERVICE AGREEMENT

69. In July 2023, RESPONDENT entered into the Agreement with CLAIMANT for the delivery
of a 100 MW green hydrogen plant [RfA, p. 5, para 14: Ex. C1, p. 8]. The Agreement was
essential to RESPONDENT’s goal to "decarbonize energy production" under the Green Energy
Strategy [RfA, p. 3, para 2], which excluded the right of termination for convenience but
required CLAIMANT’s compliance with strict deadlines and local content obligations [Ex. C1,
p. 9, Art. 9]. Both Parties agreed that the governing law would be Equatoriana’s domestic law,
excluding its conflict of laws principles [Ex. C1, p. 12, Art. 29].

70. Despite RESPONDENT’s clear reliance on CLAIMANT’s ability to meet the deadlines,
CLAIMANT failed to deliver the detailed planning for the plant by the agreed milestone of
February 1, 2024, delaying submission by 28 days and omitting the necessary plans for the
eAmmonia module [ARA, p. 26, para 11]. This delay occurred despite CLAIMANT’s knowledge
of the project's time-sensitive nature and its critical role in RESPONDENT’s strategy to
achieve Net-Zero 2040 [RfA, p. 3, para 2]. RESPONDENT, under Equatorianian Public
Procurement Law and contractual provisions, rightfully terminated the Agreement, as the delay
constituted a fundamental breach and raised serious concerns about CLAIMANT’s ability to
perform the contract as required [RfA, p. 5, para 14: Ex. C6, p. 19].

71. Contrary to CLAIMANT’s assertions, the RESPONDENT submits that CISG does not apply
to the Agreement because; firstly, the Agreement is not a contract for the Sale of Goods under
Art. 3(2) CISG [I]; secondly, the Agreement is not an International Transaction [II]; thirdly,
the Reverse Auction falls under the exclusion criteria of Article 2(b) Of CISG [III].

[I]. THE AGREEMENT IS NOT A CONTRACT FOR THE SALE OF GOODS UNDER ART. 3(2) CISG

72. The Agreement was a mixed contract, encompassing both the delivery of goods (e.g., PEM-
electrolyser stacks and transformers) and extensive service obligations, including engineering,
maintenance, and site-specific construction [Ex. C1, p. 8, Art. 1]. RESPONDENT required
these services to ensure compliance with Equatoriana’s Green Energy Strategy and strict local
content requirements [Ex. C1, p. 9, Art. 9]. CLAIMANT’s service obligations included
“engineering, planning, construction, and commissioning,” all critical to the operational
success of the plant [Ex. C1, p. 8, Art. 1]. The PEM-electrolyser stacks and transformers, while
necessary components, could not fulfill RESPONDENT’s objectives without CLAIMANT’s

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 SYMBIOSIS LAW SCHOOL, HYDERABAD MEMORANDUM FOR RESPONDENT

services to integrate them into the larger plant infrastructure. CLAIMANT’s role extended beyond
delivery to encompass the plant’s successful commissioning and continued operability.

73. Art. 3(2) CISG states that “[t]his Convention does not apply to contracts in which the
preponderant part of the obligations […] consists in the supply of labour or other services.” In
response to Paras 92 to 101 of the CLAIMANT Memo, the RESPONDENT argues that, the
preponderant part of the contract is to be determined by an overall assessment including the
parties’ intent [Potato chips plant case; Czerwenka, p. 144; Säcker/et al./Huber, Art. 3, para.
14; cf. Schroeter III, p. 46; Kröll/Mistelis/Perales Viscasillas/Ferrari, Art. 3, para. 18; CISG-
AC No 4]. The economic approach only serves as a starting point and can be superseded by the
parties allocating the importance of each part of the contract differently
[Schlechtriem/Schroeter/Hachem II, Art. 3, para. 18; cf. Airbags case; Steel bars case].

74. This argumentation should not be followed as the service part of the Supply Agreement is
preponderant. The RESPONDENT further argues that the circumstances surrounding the
conclusion of the contract, namely the purpose of the contract [Yankee-Zylinder Case; Glass
Recycling Machine Case] as well as the interests [Centerless Grinding Machine Case; Window
Production Plant Case; Airbag Systems Case; Steel Bars Case] and intentions
[Schwenzer/Hachem, in: Schlechtriem/Schwenzer, Art. 3 para. 19] of the parties have to be
taken into account.

75. In the present case, the Agreement’s core purpose was to ensure the plant’s operability and
compliance with RESPONDENT’s sustainability mandates. CLAIMANT’s services—spanning
engineering, integration, and maintenance—were indispensable to achieving this goal. The
PEM-electrolyser stacks and transformers were ancillary to CLAIMANT’s service obligations,
as these components alone could not fulfill RESPONDENT’s operational needs without
integration into the larger plant [Ex. C1, p. 8, Art. 1]. RESPONDENT’s reliance on CLAIMANT’s
expertise, evidenced by the maintenance period and training obligations, solidifies the
argument that services formed the Agreement’s essence.

76. In response to Paras 92 to 101 of the CLAIMANT Memo, it is argued that the Agreement’s
service obligations constitute the preponderant part under Art. 3(2) CISG, excluding it from
the scope of the CISG.

[II]. THE AGREEMENT IS NOT AN INTERNATIONAL TRANSACTION

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77. The RESPONDENT argues that the Purchase and Service Agreement is not an international
transaction, as firstly, Equatoriana is the Relevant Place of Business for the Agreement [A]
And secondly, CLAIMANT and Volta T Are Separate Entities [B].

(A) Equatoriana is the Relevant Place of Business for the Agreement

78. The RESPONDENT submits that the Agreement was entered into between CLAIMANT,
purportedly based in Mediterraneo, and RESPONDENT, a state-owned company in
Equatoriana. The Agreement required CLAIMANT to meet Equatoriana’s strict local content
requirements, including sourcing a minimum of 25% of materials locally [Ex. C1, p. 9, Art. 9].
CLAIMANT fulfilled over 55% of its contractual obligations in Equatoriana, including the supply
of transformers and electrolyser stacks through Volta T [ARA, p. 26, para 6; Ex. R2, p. 31].
RESPONDENT facilitated expedited permits and approvals, which further anchored the
Agreement in Equatoriana’s domestic framework [RfA, p. 3, para 7].

79. According to Art. 1(1)(a), the CISG is applicable to “contracts of sale of goods between
parties whose places of business are in different States, when the States are contracting states
(…).” It is further reiterated in Article 10(a) that the relevant place of business is the one most
closely connected to the contract and its performance. The courts have previously held that the
operational hub tied to contract execution determines the relevant place of business. (Vision
Systems, Inc. et. al., v. EMC Corporation & Target Corp. v. JJS Developments LTD)

80. In response to Paras 117-126 of the CLAIMANT Memo, it is argued that, the CLAIMANT’s
substantial performance in Equatoriana aligns with RESPONDENT’s local content provisions.
RESPONDENT demonstrates that CLAIMANT’s reliance on Volta T shifted the Agreement’s
operational base to Equatoriana. Volta T’s contributions included critical components and
services, making Equatoriana the central location for the Agreement’s performance [RfA, p. 4,
para 11]. CLAIMANT’s post-facto reliance on Mediterraneo as its business location ignores the
operational realities of the Agreement. Thus, CLAIMANT’s assertion of Mediterraneo as its
place of business is inconsistent with the actual execution of the Agreement.

81. The RESPONDENT submits that the Agreement does not qualify as international under
Article 1(1)(a) of the CISG. CLAIMANT’s operational activities tied to Equatoriana undermine
its claim of an international transaction under Article 10(a) of the CISG. CLAIMANT’s
operational activities and RESPONDENT’s reliance on local infrastructure and policies
establish the non-international nature of the Agreement.

(B) Claimant and Volta T Are Separate Entities

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82. After signing the Agreement, CLAIMANT acquired Volta T, a company based in
Equatoriana, to fulfill local content obligations. Volta T provided transformers, electrolyser
stacks, and packaging services, contributing significantly to the execution of the Agreement
[RfA, p. 4, para 11]. However, Volta T and CLAIMANT maintained separate legal personalities.
Volta T continued to independently manage its operations and supplied components to other
clients, demonstrating a lack of operational integration [PO. No. 2, p. 52, para. 6,8].

83. It is pertinent to note that separate legal entities must show substantial operational
integration to be treated as one. For the purposes of federal diversity jurisdiction, a
corporation's principal place of business can be defined as its "nerve center," where its leading
officers direct, control, and coordinate its activities. The Supreme Court overruled but
cautioned that the corporate headquarters will not be considered the “principal place of business
(…).” (Hertz Corp. v. Friend)

84. In response to Paras 108-116 of the CLAIMANT Memo, it is argued that, the
RESPONDENT’s local content requirements placed Equatoriana at the center of the
Agreement’s performance. CLAIMANT’s post-Agreement acquisition of Volta T shows that
Equatoriana was integral to its operations. However, CLAIMANT and Volta T did not merge
operations or exhibit substantial integration. Volta T retained its independence and continued
its operations for other clients, at the time of conclusion of the PSA, which supports
RESPONDENT’s position that CLAIMANT’s primary place of business for the Agreement was
in Equatoriana, not Mediterraneo.

[III]. THE REVERSE AUCTION FALLS UNDER THE EXCLUSION CRITERIA OF ARTICLE 2(B)

85. The RESPONDENT argues that the Reverse Auction falls under the Exclusion Criteria of
Article 2(b), as firstly, it meets the criteria of an Auction under Article 2(b) of the CISG. [A]
And secondly, the Auction’s hybrid structure reinforces its exclusion. [B]

(A) The Reverse Auction Meets the Criteria of an Auction Under Article 2(b) of the CISG
86. The reverse auction conducted by RESPONDENT was part of a structured procurement
process comprising three steps. While the first step involved online submission of bids, the
second step—the reverse auction—was conducted in person to finalize calculated prices using
RESPONDENT’s predefined formulas. This in-person auction involved multiple bidders, with
the final two advancing to direct negotiations [PO. No. 2, p. 52, para. 9]. RESPONDENT
ensured that the reverse auction process aligned with principles of fairness and transparency

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by weighing various factors, such as technology and efficiency, to calculate comparable prices
for bidders.

87. Pursuant to Article 2(b) of the CISG, the CISG does not apply to sales by auction. Auctions,
by their nature, involve competitive bidding, where the contract is only formed after a final bid
is accepted. In jurisdictions like the U.S. and the UK, courts have clarified that in an auction
without reserve, the seller is deemed to make an offer by virtue of putting the goods up for
auction, and each bid made on the goods is an acceptance and thereby forms a contract, subject
only to the contingencies of (a) a higher bid/acceptance or (b) the withdrawal of the bid made
before the fall of the hammer, i.e., the conclusion of the auction. (Board of Commissioners of
City of Danville v. Advocate Communications, Inc.; Barry v Davies; Restatement (Second) of
Contracts, § 28(1)(b) stating that “when goods are put up without reserve, the auctioneer
makes an offer to sell at any price bid by the highest bidder, (…)”).

88. In the present case, the process was structured to allow competitive bidding, where
RESPONDENT could assess the calculated prices before advancing to direct negotiations with
the final two bidders. This process aligns with the principles underlying the exclusion of
auctions from the CISG, as articulated in Article 2(b). The decisive in-person stage of the
reverse auction mirrors traditional auction practices, further supporting its exclusion from the
CISG. Furthermore, the use of predefined formulas and competitive adjustments for
comparability reinforces the auction-like nature of the process.

89. In response to Paras 127 to 131 of the CLAIMANT Memo, it is argued that the rationale for
excluding auctions from the CISG is premised on the unique nature of auction processes. These
processes often involve a seller inviting multiple bidders to compete for the contract, with the
sale typically awarded to the highest bidder or, in reverse auctions, the lowest. Such
transactions are considered fundamentally different from conventional bilateral sales contracts
governed by the CISG.

(B) The Auction’s Hybrid Structure Reinforces Its Exclusion

90. The RESPONDENT submits that the reverse auction process was not a purely in-person
auction but instead a structured, hybrid mechanism incorporating significant online elements.
The first phase of the auction required all registered suppliers to submit their bids online. Due
to the “technology-open” nature of the RfQ, RESPONDENT utilized a complex formula to
standardize and compare bids based on technological efficiency, plant capacity, and pricing

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factors. These formulas, along with the resulting calculated bid prices, were communicated to
each supplier exclusively through their technological structure. [PO. No. 2, p. 52, para. 9].

91. The Federal Supreme Court of Switzerland found that the CISG, according to its Article
2(b), did not apply to the contract of sale formed through an online auction. (Online Auction of
Photography Case) Further, the Higher Regional Court of Brandenburg found that the CISG
was not applicable to the sales contract formed through an online auction “because the [seller]
was not aware of the foreign element of the contract when it was concluded (Article 1(2) CISG)
and (…).” (Online auction of car Case, Sale of horse via internet auction Case)

92. In response to Paras 132-134 of the CLAIMANT Memo, it is argued that, the online
submission of bids and the complex formula-based standardization of pricing were integral to
the auction. The reliance on an online component for bid submission creates a fundamental
distinction between this process and traditional in-person auctions. Given that key aspects of
the auction were conducted electronically, the transaction does not fall within the scope of
auctions excluded under Article 2(b) of the CISG.

CONCLUSION FOR SUBMISSION 3.

THEREFORE, CONTRARY to the CLAIMANT’s assertions, the RESPONDENT submits that

the Agreement is not governed by the CISG but by Equatoriana’s domestic law. Firstly, the
Agreement does not qualify as a contract for the sale of goods under Art. 3(2) CISG, as its
preponderant obligations involve engineering, construction, and commissioning services,
rather than the mere supply of goods. Secondly, the Agreement is not an international
transaction under Art. 1(1)(a) CISG, as CLAIMANT’s substantial performance and local content
obligations tie the Agreement primarily to Equatoriana. Thirdly, the reverse auction process
meets the criteria for exclusion under Art. 2(b) CISG, as it involved structured online
competitive bidding, which aligns with auction-based exclusions from the CISG’s scope.

SUBMISSION 4: SINCE CISG IS INAPPLICABLE TO THE AGREEMENT, THE PARTIES HAVE

VALIDLY EXCLUDED ITS APPLICATION

93. The RESPONDENT humbly submits to the Hon’ble Tribunal that as mentioned in the
previous contention, the non-applicability of CISG has been proved beyond any reasonable
doubt. Having established the very same, the RESPONDENT submits that there exists a valid
exclusion from the applicability of CISG in the instant case. In order to establish the merits of
this contention, it is submitted that there is a glaring mention and presence of exclusion from

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the application of CISG, as established in the Answer to the Request of Arbitration pursuant to
Article 6 of the FAI-rules [RfA p.2]. The counsel submits the following as a three-fold
contention; firstly, existence of clear mutual intention by both the Parties to exclude CISG (I);
secondly, relationship between conflict of laws and CISG (II); thirdly, tacit choice of law (III).

94. Further, it is submitted that the RESPONDENT vehemently denies all claims made by the
CLAIMANT, on grounds that they are misleading and an attempt has been made by them to
wrongfully interpret statutory provisions.

[I] EXISTENCE OF CLEAR MUTUAL INTENTION BY BOTH PARTIES TO EXCLUDE CISG

95. The RESPONDNET submits that conversant to the argument made by the CLAIMANT in
their first prong, signing off on the PSA should be considered as a mutual agreement by both
the parties to abide by its provisions. As per Article 8 PSA [PSA p.9 ¶8], which highlights the
Applicable Law to Bidding Process, “The bidding process is governed by the Public
Procurement Law of Equatoriana, which also governs the award of the contract.” In order to
prove that the CLAIMANT agreed to follow the Equatorian Law as per the PSA, the following
submissions are made; firstly, character of ius dispositivum of CISG under Article 6 (A);
secondly, requirement for presence of intent (B); thirdly, in consonance with Article 8 CISG
(C).

(A) Character of ius dispositivum of CISG under Article 6

96. The RESPONDENT submits that there is a fundamental right to choose the choice of law
by any party to a contract. In the instant case, as per Article 29 PSA, “The Agreement is
governed by the law of Equatoriana to the exclusion of its conflict of laws principles.” The
counsel submits that in tandem to the said Agreement that was mutually agreed and signed
upon by the parties provide for mutual intent.

97. The PSA explicitly states in Article 29 that the governing law is the domestic law of
Equatoriana, explicitly excluding any reference to international conventions, including the
CISG [Ex. C2, p. 12]. This clause was a central component of RESPONDENT’s negotiation
strategy, as compliance with Public Procurement Act of Equatoriana and local regulations was
paramount to the Green Energy Strategy’s implementation [Ex. C1, p. 8]. CLAIMANT expressly
agreed to this term during the pre-contractual negotiations, as evidenced by the correspondence
confirming CLAIMANT’s acknowledgment of RESPONDENT’s local regulatory framework
requirements [Ex. R4, p. 35].

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98. The exclusion was incorporated into the PSA to ensure that RESPONDENT could rely on
Equatoriana’s legal framework to oversee the contract’s execution, particularly in light of
RESPONDENT’s need to meet local content requirements and regulatory approvals.
CLAIMANT, aware of these conditions, not only accepted the exclusion but structured its
operational plan around RESPONDENT’s jurisdiction, as seen in its acquisition of Volta T
[Ex. C6, p. 19].

99. According to Art. 6 CISG, “the principle of party autonomy allows contracting parties to
exclude the CISG either wholly or partially at the time of contract formation.” The PSA’s
Article 29 expressly enforces this autonomy.

CISG-AC Opinion No. 16 (para. 1.1): Recognizes the right of contracting parties to exclude
the CISG by including an express choice-of-law clause that references domestic law while
excluding international conventions. The counsel submits the following precedence,

(i) Golden Valley Grape Juice v. Centrisys Corp. (U.S., 2010): The court upheld
the exclusion of the CISG through an explicit clause adopting state law,
demonstrating that party autonomy prevails where exclusion is expressly
articulated.
(ii) Ceramique Culinaire Case (France, 1996): Found that adopting domestic law
with express exclusion suffices to exclude the CISG.
100. In the present case, Article 29 of the PSA reflects the parties’ mutual intent to exclude the
CISG and adhere to Equatoriana’s domestic legal framework. CLAIMANT’s willingness to
operate within this legal framework, as demonstrated by its agreement to the exclusion clause
and subsequent operational decisions, supports the enforceability of this exclusion.
RESPONDENT’s insistence on this clause was not a mere formal requirement but a substantive
necessity for ensuring regulatory compliance.

(B) Requirement for Presence of Intent

101. The RESPONDENT seeks to address the applicability of the CISG in light of a choice of
law agreement designating the laws of a non-Contracting State (Brand). It is respectfully
submitted that such a choice of law agreement may preclude the application of the CISG in its
entirety, in accordance with Article 6 of the Convention, which permits the parties to implicitly
derogate from its provisions by selecting the law of a non-Contracting State. If a scrutiny on
the pactum de lege utenda needs to be performed by the competent court, then the question of
which are the legal parameters to be used inevitably arises. In order to justify the very same a

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three-fold contention is submitted; firstly, de facto Agreement (1); secondly, validity of choice
of law agreement (2); thirdly, two-fold prong of clear intent (3).

1. De facto Agreement
102. The RESPONDENT submits that in order to produce effects, the first step is to identify if
the exclusion has been fundamentally de facto agreed upon. The counsel submits that only a
choice of law agreement that has been mutually consented to by the parties involved in the
dispute can be deemed “existent.” Only once that “consent” as a threshold-requirement has
been established, it becomes possible to determine whether the agreement factually reached
can be considered valid (Ferrari ).

103. In the instant case, as mentioned in the previous contention, the choice of law was agreed
upon and consented by the parties in Article 29 PSA. Therefore, the PSA can stand as a de
facto agreement by the parties. The CLAIMANT has submitted the lack of mutual intention by
stating that the very same is “speaking in favor of application of CISG”. However, this is
entirely false, on the grounds that a ratified document by both the parties exist to the very effect
of implementation of Equitorianian Law as opposed to conflict of laws principles, of which
CISG is very much a part.

104. Furthermore, in response to Para 114 of the CLAIMANT Memo, it is argued that the parties
did not mention the agreement to be governed by laws of Equitoriana. This is statement with
no factual merit as Article 29 PSA clearly mentions “to the exclusion of its conflict of laws
principles”. Therefore, there is the presence of a de facto agreement in the instant case.

2. Validity of Choice of law Agreement

105. The RESPONDENT submits that in order to justify the validity of the said choice of law
agreement a two-fold procedure is followed, firstly, formal validity (a); secondly, material
validity (b).

(a) Formal Validity

106. It is submitted that this section relates (Bridge)to the compliance of the choice of law
agreement with the formal requirements possibly applicable to the instant case. In the instant
case, the formal aspect is covered as per contractual obligations arising from Article 29. The
mere ratification shows the presence of the very same.

(b) Material Validity

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107. It is submitted that this section involves the verification of the “genuineness” of consent,
or lack thereof covering issues such as fraud, mistake, duress, misrepresentation, or questions
of capacity. In the instant case, the CLAIMANT has made it look as though the RESPONDENT
has been carrying out their actions without material validity. However, in government contracts
this is common place. With the change in government of a country, the style of governance
changes. The mere change of certain contractual obligations is a pre-emptive aspect of
government contracts. Furthermore, this does not amount to a lack of genuineness of consent
as the very same is merely a policy taken to help the people of the nation.

108. Having said that, the counsel submits that there is a clear validity of the choice of law in
the instant case making it applicable due to the ratification by both the parties. Hence, mutual
intention is present during the signing of the PSA (Rotterdam).

3. Two-fold prong of clear intent

109. The RESPONDENT submits that in arguendo, if it is considered that there is no clear
intent of use of laws of Equatoriana, it would still fall in favor of the RESPONDENT as per
CISG Advisory Council Opinion No. 16 (para 4 (a) & (b)) which states that there are two
aspects to mutual intention of the parties. They are as follows,

“4. Generally, such a clear intent to exclude:

(a) should be inferred, for example, from:

(i) express exclusion of the CISG;
(ii) choice of the law of a non-Contracting State;
(iii) choice of an expressly specified domestic statute or code where that would
otherwise be displaced by the CISG’s application.
(b) should not be inferred merely from, for example:
(i) the choice of the law of a Contracting State;
(ii) choice of the law of a territorial unit of a Contracting State.”

110. In the instant case it is submitted that the RESPONDENT aligns with Para 4(a) as stated
above in its entirety. As per the previous submission, the presence of Article 29 PSA clearly
and expressly excludes the application of CISG. Such exclusion is not merely in tandem to the
PSA and public procurement but also with reference to any Agreement that stems as a result
of the very same. The counsel pleads that by ratification of the said document, mutual
agreement and intent is clearly visible. Furthermore, Article 29 PSA also talk about the choice

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of law to be implemented and the domestic statute that shall be followed. Therefore, it can be
concluded that a clear intent to exclude can be inferred.

111. Having established the very same, the RESPONDENT does not align with Para 4(b) as
mentioned above. It is submitted that not inference is made merely on the law of choice being
of the Contracting State or a territorial unit of the Contracting State. It is a result of express
intent. Therefore, the RESPONDENT submits that a clear intent to exclude is derived from the
very same.

(C) In Consonance with Article 8 CISG

112. The RESPONDENT explicitly communicated its intent to exclude the CISG and adhere
to Equatoriana’s domestic law to ensure compliance with local regulations [Ex. R4, p. 35].
CLAIMANT’s acceptance of this exclusion was evidenced by its operational adjustments,
including the acquisition of Volta T, to align with RESPONDENT’s regulatory framework [Ex.
C6, p. 19].

113. The Art. 8 CISG, determines the intent of the parties through their statements, conduct,
and surrounding circumstances. RESPONDENT’s insistence on domestic law and CLAIMANT’s
acquiescence demonstrates mutual intent to exclude the CISG. CISG-AC Opinion No. 16
(para. 3.1–3.4) further emphasizes that exclusion intent can be inferred from contractual
provisions and the conduct of the parties. It is submitted by the counsel that they recognized
that intent to exclude must be clear from the contractual language and negotiations. In the case
of Oberster Gerichtshof (Austria, 2001) it was found that pre-contractual negotiations
affirming a domestic law preference sufficed to demonstrate exclusion intent. (Steel Bars Case)

114. In the present case, the parties’ negotiations and conduct demonstrate a clear and mutual
intent to exclude the CISG. RESPONDENT’s reliance on domestic law and CLAIMANT’s
alignment with these requirements through operational adjustments confirm this intent. The
clear and mutual intent of the parties, as evidenced by Article 29 and pre-contractual
communications, confirms the exclusion of the CISG.

[II] RELATIONSHIP BETWEEN CONFLICT OF LAWS & CISG

115. The RESPONDENT submits that in the instant case, the CLAIMANT has argued that a mere
mention of conflict of law principles does not amount to exclusion of CISG as per Para 146-
CLAIMANT Memo. However, the counsel contends that CISG falls under the ambit of conflict
of laws principles and therefore a clear exclusion has been made.

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116. The CLAIMANT contends in Para 147 Cl. Memo that CISG does not form part of conflict
of laws principles. At the very outset of CLAIMANT argument, it is submitted that the very same
is not factual in nature. It is submitted that while CISG in itself is not a part of conflict of law
rules, it operates within the sphere of conflict of laws principles. Therefore, when a dispute
arises involving international sales contracts, courts may need to apply conflict of laws rules to
determine which jurisdiction's law should be used to fill gaps not covered by the CISG itself.
Therefore, the CISG acts as a uniform law that can be applied alongside conflict of laws rules
depending on the specific circumstances of a case (Bonell).

117. Furthermore, Article 7(2) CISG clearly mentions the gap filing requirement principle. The
first attempt to fill the gaps is the conflict of law principles. In the instant case, the CLAIMANT
has submitted in Para 148 Cl. Memo, by citing the Boiler Case that there is a need to mention
CISG even if conflict of law is mentioned. However, that is not the contention in the instant
matter. The RESPONDENT submits that mentioning conflict of laws principles is inclusive of
CISG provisions. Moreover, it is of implied nature that Equatorian Law was to be used as a
mechanism of dispute resolution and not CISG (Nugh). Therefore, the argument that CISG
does not conform under conflict of laws principles is incorrect and a gross violation of the
interpretation of the Agreement.

118. The CLAIMANT provides in Para 151 an in arguendo argument, stating that there is no
obligation to analyze the legal system of Equatoriana. It is submitted that the very same
obligation arose merely after the ratification of the PSA. It is wrongfully claimed that merely
being a party to the Vienna Convention of the Law of Treaties, means that CISG must be
implemented in Para 153 Cl. Memo. This is factually incorrect as Article 6 CISG clearly
mentions as option to choose the governing law of choice and exclude the provisions of CISG.

119. The CLAIMANT has submitted that in Para 152 Cl. Memo that a reasonable party is not
obligated to analyze the internal process of implementation of law of Equatoriana. The
CLAIMANT qua exclusion of CISG clearly ratified to the very same in the PSA. Furthermore,
the de facto agreement of the PSA by a reasonable party is the question in contention and not
an obligation to analyze.

120. Furthermore, in Para 160-162 Cl. Memo, the contra preferentum rule has been used by
the CLAIMANT. It is submitted that in the instant case it does not apply as there is a clear mention
of the very same in the PSA and any further agreements derived from the very same contractual
provisions shall abide by the very same. Therefore, there is no lack of clarity. The

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RESPONDENT submits that in the instant case, an attempt has been made by the CLAIMANT
to twist the facts of the case to benefit from the very same.

[III] TACIT CHOICE OF LAW

121. The RESPONDENT submits that in arguendo, if it is considered that the said choice of
law is not expressly mentioned that does not immediately mean that CISG is the governing
law. In the instant case, the role to be recognized to the private international law of the forum
in respect to a possible scrutiny on a choice of law agreement as a factor leading to the
applicability or exclusion of the CISG, it should be borne in mind that pursuant to the Rome I
Regulation, choice of law agreements do not need to be expressed. This implies that, for the
purpose of Article 1(1)(b) and Article 6 CISG, a choice of law (selecting the law of a Contract
State or the law of a non-Contracting State) might be inferred by a national court seated in EU
Member State bound by the Rome I Regulation (Schmidt-Kessel).

122. However, while the Rome Convention required an implied choice of law to be
demonstrated “with a reasonable degree of certainty” from the terms of the contract and the
surrounding circumstances, the Rome I Regulation demands the court to infer an implied
choice when “clearly demonstrated” by the terms of the contract or the circumstances of the
case.

123. In the instant case, there exists a clear demonstration of exclusion vide Article 29 PSA.
Therefore, the counsel submits that the CLAIMANT has argued that express mention is not
present in para 114 CLAMAINT Memo, the very same can be implied from the same. Further
Agreements or contractual obligations arising out of the PSA shall follow the Governing Law
of the PSA is an implied factor not in the hypothetical but real sense. Therefore, tacit choice of
law applies in the instant matter.

CONCLUDING REMARKS FOR SUBMISSION 4.

The RESPONDENT humbly submits that the CLAIMANT has made an attempt to wrongfully
interpret the PSA and therefore mislead this Hon’ble Tribunal to believe that there is no mutual
intention between the parties to exclude the provisions of CISG. The reality of the instant matter
is significantly different as there exists both mutual intentions vide ratification of PSA and
clear mention of choice of law.

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 SYMBIOSIS LAW SCHOOL, HYDERABAD MEMORANDUM FOR RESPONDENT

PRAYER FOR RELIEF

In light of the submissions made above, on behalf of the RESPONDENT, we herewith respectfully
request this Arbitral Tribunal:

1. To declare that the Tribunal doesn’t have the jurisdiction to hear the case, and accept
the RESPONDENT’S claim for lack of jurisdiction or admissibility. (Submission 1)
2. To declare the inadmissibility of evidence C7 and, order the inclusion of evidence R3
therein tendered by the RESPONDENT. (Submission 2)
3. To find that the CISG is not applicable to the Purchase and Service Agreement as it is
not a contract of sale within the ambit of CISG. (Submission 3)
4. To declare that there has been a valid exclusion from the applicability of CISG in the
instant case. (Submission 4)
Respectfully submitted on 30th January, 2025 by the Vis (East) Team, Symbiosis Law School,
Hyderabad.

ADITYA SIRCAR DAISY VERGHESE

MAHIMA NIDHI PARVATHY ARUN

SUPRATIM BAPULI

We hereby certify that this Memorandum was written only by the persons whose names are
mentioned above. Additionally, we confirm that we did not receive any assistance during the
writing process from any person that is not a member of this team.

Hyderabad, 30th January, 2025

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