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University of Geneva Willem C Vis Moot Twenty Fifth Annual Willem C Vis International
University of Geneva Willem C Vis Moot Twenty Fifth Annual Willem C Vis International
University of Geneva Willem C Vis Moot Twenty Fifth Annual Willem C Vis International
UNIVERSITY OF GENEVA
¬
TABLE OF CONTENTS
INTRODUCTION ...................................................................................................................2
A. The Parties incorporated the challenge procedure provided by the UNCITRAL Rules
into their arbitration agreement.....................................................................................3
B. The Parties agreed to exclude the involvement of an arbitral institution only with
regards to the initial appointment procedure and not the challenge procedure ............4
C. In any event, a reasonable third person would have understood the exclusion of
institutional support as applying solely to the initial appointment procedure ...............5
1. According to literal interpretation, the term “constitution” in CLAIMANT’s letter of 27 March 2017
designated solely the initial appointment of arbitrators ..................................................... 6
2. The arbitration clause mentions a specific procedure exclusively for the initial appointment of
arbitrators and not for their challenge ........................................................................ 6
3. The Parties’ negotiations could only be understood as further demonstrating the restricted scope
of the exclusion of institutional support ...................................................................... 6
II. IN ANY EVENT, ONLY THE TRIBUNAL IN FULL MAY DECIDE ON THE CHALLENGE OF MR. PRASAD .......7
A. The lex arbitri requires Mr. Prasad to participate in the decision on his own challenge
.......................................................................................................................................7
1. The legislative history of the Model Law indicates that a decision on a challenge of an arbitrator
must be rendered by an arbitral tribunal in its full composition ........................................... 8
2. The nature of the decision on the challenge of an arbitrator requires an arbitral tribunal to decide
in full .............................................................................................................. 8
B. The Parties must have equal influence on the composition of the Tribunal ................9
1. The lex arbitri includes a mandatory disposition on equal treatment of the parties ................... 9
2. Additionally, the breach of the right to equal treatment constitutes a ground for setting the final
award aside under the New York Convention ............................................................... 9
II
Memorandum for CLAIMANT Table of Contents
ISSUE 2: MR. PRASAD SHALL NOT BE REMOVED FROM THE TRIBUNAL ......................... 10
I. MR. PRASAD IS INDEPENDENT AND IMPARTIAL AS REQUIRED BY THE LEX ARBITRI [ART. 12(2) MODEL
LAW] ................................................................................................................................. 10
A. The circumstances at hand do not give rise to justifiable doubts as to Mr. Prasad’s
independence and impartiality under the IBA Guidelines ........................................ 11
1. Mr. Prasad has not been repeatedly appointed by an affiliate of one of the Parties [3.1.3 IBA
Guidelines] ........................................................................................................ 12
2. Mr. Prasad was not repeatedly appointed by Fasttrack’s law firm [3.3.8 IBA Guidelines] ........... 13
3. Mr. Prasad’s law firm does not have any significant commercial relationship with an affiliate of the
Parties [2.3.6 IBA Guidelines] ................................................................................... 13
4. The article Mr. Prasad published does not advocate a position on the present case [3.5.2 IBA
Guidelines] ........................................................................................................ 14
B. Even if the circumstances of the case fell outside the non-exhaustive list provided by
the IBA Guidelines, there would still be no justifiable doubts ...................................... 14
1. Mr. Prasad is independent and impartial from a reasonable third person’s point of view.......... 15
a. The relationships between Mr. Prasad and the entities involved in the present case do not give
rise to justifiable doubts with regards to his independence ............................................ 15
b. Mr. Prasad’s article on the conformity of goods does not give rise to justifiable doubts with
regards to his impartiality .................................................................................. 16
2. The independence and impartiality of Mr. Prasad cannot be questioned with regards to the
disclosure obligation of a party ............................................................................... 16
II. IN ANY EVENT, RESPONDENT IS PRECLUDED FROM CHALLENGING MR. PRASAD ........................... 17
A. RESPONDENT failed to challenge Mr. Prasad, on the grounds of his appointments by
Fasttrack's law firm and his article, within 15 days as provided under the UNCITRAL
Rules ............................................................................................................................ 17
B. RESPONDENT explicitly waived its right to raise the issue regarding Slowfood’s funder
..................................................................................................................................... 18
C. The evidence revealing Findfund’s funding was obtained in violation of client-
attorney privilege ......................................................................................................... 18
III
Memorandum for CLAIMANT Table of Contents
IV
Memorandum for CLAIMANT Table of Contents
B. By applying international practice, CLAIMANT used its best efforts when producing
the chocolate cakes ...................................................................................................... 30
1. When the scope of best efforts is not defined contractually, these are complied with by applying
international practice........................................................................................... 30
2. CLAIMANT complied with the practice in the international trade of sustainable goods by following
verification procedures ........................................................................................ 31
II. ADDITIONALLY, THE CHOCOLATE CAKES DELIVERED WERE CONFORMING [ART. 35(2) CISG] ........ 32
A. The chocolate cakes were fit for the purpose of resale [Art. 35(2)(b) ab initio CISG] . 32
1. CLAIMANT delivered cakes which fit RESPONDENT’s purpose to sell them in its supermarkets.... 32
2. Even if RESPONDENT had made known to CLAIMANT that the cakes had to be sustainable, the cakes
complied with that purpose ................................................................................... 33
B. Alternatively, RESPONDENT could not have expected CLAIMANT, a baker, to verify the
entire supply chain [Art. 35(2)(b) in fine CISG] .............................................................. 33
1. CLAIMANT had limited control over the production of the cocoa ..................................... 34
2. CLAIMANT is not specialized in the trade of sustainable cocoa ......................................... 34
CERTIFICATE .....................................................................................................................CV
V
Memorandum for CLAIMANT Table of Abbreviations and Definitions
§/§§ paragraph/paragraphs
% per cent
AA Arbitration Act
Art./Artt. Article/Articles
Ch. Chapter
CISG United Nations Convention on Contracts for the International Sale of Goods
ed. edition
Eng English
VI
Memorandum for CLAIMANT Table of Abbreviations and Definitions
EU European Union
fn. footnote
IBA Rules IBA Rules on the Taking of Evidence in International Arbitration (2010)
infra below
VII
Memorandum for CLAIMANT Table of Abbreviations and Definitions
LP Limited Partnership
NZ New Zealand
p./pp. page/pages
VIII
Memorandum for CLAIMANT Table of Abbreviations and Definitions
supra above
v. versus (against)
IX
Memorandum for CLAIMANT Statement of Facts
STATEMENT OF FACTS
DELICATESY WHOLE FOODS SP (“CLAIMANT”) is a medium sized manufacturer of fine bakery products in
Equatoriana. It is committed to produce sustainably and ethically and is a United Nations Global Compact
(“UN Global Compact”) member, a voluntary initiative centered on implementing universal
sustainability principles and undertaking partnerships in support of UN goals.
COMESTIBLES FINOS FOODS SP (“RESPONDENT”) is a gourmet supermarket chain in Mediterraneo and is also
a UN Global Compact member.
3-6 March 2014 RESPONDENT and CLAIMANT (“Parties”) first met at the Cucina food fair in
Danubia (“Cucina Fair”), where they extensively discussed CLAIMANT’s supply
chain management strategy, as well as the possibility of doing business together.
10 March 2014 RESPONDENT, being impressed with CLAIMANT’s way of conducting business, sent
to the latter an invitation to tender (“Invitation to Tender”) including its own
standard terms. The same tender documents were sent to four other businesses
and also published in various industry newsletters.
27 March 2014 CLAIMANT submitted an offer (“Offer”) subject to its own general conditions of
sale (“General Conditions”).
7 April 2014 RESPONDENT accepted the Offer. By doing so, the Parties concluded the Contract
1257 (“Contract”).
27 January 2017 After finding out about a sustainability certification scheme scandal in Ruritania,
through a UN Environmental Programme report, RESPONDENT informed
CLAIMANT that it would stop accepting all prospective deliveries and making any
further payments, including for the cakes already delivered, until the issue is
completely resolved. This furthermore affected the cakes already delivered for
which it refused to pay. CLAIMANT immediately replied and expressed confidence
that its supplier of cocoa from Ruritania, Ruritania Peoples Cocoa mbH (“Cocoa
Supplier”), would not be found to be a party to any fraudulent scheme but
promised to investigate the issue further.
10 February 2017 CLAIMANT sent an e-mail to RESPONDENT expressing its surprise after it had
discovered that its Cocoa Supplier had provided falsified official certificates and
therefore breached their contract. However, it had not breached the Contract as
it complied with all its contractual obligations and conveyed its readiness to
continue delivery with newly secured supplies. Despite CLAIMANT’S efforts,
1
Memorandum for CLAIMANT Statement of Facts
RESPONDENT terminated the Contract with immediate effect and without any
attempt to reach a compromise on 12 February 2017.
30 June 2017 As it became clear that no settlement could be reached, CLAIMANT submitted its
Notice of Arbitration (“NoA”) to RESPONDENT and appointed Mr. Prasad as its
arbitrator.
31 July 2017 RESPONDENT filed its Response to the NoA (“RNoA”), in which it acknowledged
CLAIMANT’s choice of arbitrator, and itself appointed Ms. Reitbauer.
7 September 2017 CLAIMANT provided the arbitral tribunal (“Tribunal”) and RESPONDENT with
information regarding its third-party funder, Funding 12 Ltd (“Funding 12”),
whose main shareholder is Findfunds LP (“Findfunds”).
11 September 2017 Mr. Prasad announced that a partner at Prasad & Slowfood (“Partner”) was
representing a client funded by Funding 8 Ltd (“Funding 8”), a subsidiary of
Findfunds. This Partner had formerly worked at Slowfood, which merged with
Mr. Prasad’s law firm on 1 September 2017.
14 September 2017 RESPONDENT submitted its Notice of Challenge of Arbitrator (“NoC”).
INTRODUCTION
1 A man cannot eat his cake and have it still. Yet, after having discovered the corruption scheme in Ruritania,
and declaring CLAIMANT’s chocolate cakes non-conforming, RESPONDENT still made use of them. Its refusal
to pay for the cakes already consumed is inadmissible.
2 Production in today’s world is particularly difficult and competitive. Due to the length of the supply chain, it
has become increasingly challenging to maintain full control over all producers. Perfectly aware of this, as
both Parties do business in the same industry, they decided that CLAIMANT would exclusively have to do its
best in supplying sustainable ingredients. In spite of this, three years later, RESPONDENT suddenly went back
on its word and decided to hold CLAIMANT to unreasonable standards.
3 With regards to the procedural issues, an appointing authority has the jurisdiction to decide on the challenge
of Mr. Prasad, as per the Parties’ arbitration agreement (ISSUE 1.I). If the Tribunal were to find itself
competent to decide on the challenge, it would only be competent with the participation of Mr. Prasad
(ISSUE 1.II). Mr. Prasad should not be removed from the Tribunal, as he is independent and impartial
(ISSUE 2). On the merits, CLAIMANT’s General Conditions are applicable to the Contract, as they were
integrated into the Offer and subsequently accepted by RESPONDENT (ISSUE 3). Finally, even if
RESPONDENT’s general conditions were applicable, the goods were conforming, as these conditions merely
required best efforts regarding the sustainability of the cocoa used in the production (ISSUE 4).
2
Memorandum for CLAIMANT Arguments
I. ACCORDING TO THE PARTIES’ AGREEMENT, THE CHALLENGE OF AN ARBITRATOR CAN ONLY BE DECIDED
BY AN APPOINTING AUTHORITY
6 RESPONDENT alleges that the involvement of an arbitral institution for the challenge of an arbitrator was
excluded in the Parties’ arbitration agreement [NoC, p. 39 §8]. However, CLAIMANT will demonstrate that the
Parties agreed that an appointing authority would decide on the challenge of an arbitrator [Artt. 6 and 13(4)
UNCITRAL Rules]. First, the Parties incorporated the challenge procedure provided by the UNCITRAL Rules
into their arbitration agreement (A). Second, the Parties excluded the involvement of an arbitral institution
only with regards to the initial appointment procedure (B). In any event, a reasonable third person would
have understood the exclusion of institutional support as limited to the initial appointment procedure (C).
A. THE PARTIES INCORPORATED THE CHALLENGE PROCEDURE PROVIDED BY THE UNCITRAL RULES INTO
THEIR ARBITRATION AGREEMENT
7 The Parties agreed to arbitrate under the UNCITRAL Rules, which provide that only an appointing authority
has jurisdiction to decide on the challenge of an arbitrator [Art. 13(4) UNCITRAL; Caron/Caplan, p. 268;
Methanex v. US]. In this regard, the Tribunal shall hold that, by agreeing to arbitrate under the UNCITRAL
Rules, the Parties opted out of the challenge procedure stipulated in the lex arbitri. Indeed, Art. 13(2) Model
Law provides that the arbitral tribunal has jurisdiction to decide on the challenge of an arbitrator.
Additionally, it shall be declared that the challenge procedure set forth in the UNCITRAL Rules applies in its
entirety, as it was validly included into the Parties’ arbitration agreement.
8 According to Art. 13(1) Model Law, parties may derogate from the challenge procedure,
i.e. Art. 13(2) Model Law, inasmuch as the mandatory right to have the challenge decision reviewed by a
court is respected, i.e. Art. 13(3) Model Law [Broches, p. 61; Digest Model Law, p. 69 §4; Weigand, §14.223].
The parties may express their agreement to depart from the Model Law by referring to a procedure set out in
3
Memorandum for CLAIMANT Arguments
arbitration rules, such as the UNCITRAL Rules [Digest Model Law, p. 69 §5; Weigand, §14.225;
OLG Dresden case]. In this event, any disputes shall be settled according to the selected rules, provided no
mandatory provisions of the lex arbitri are breached [Art. 1(1), (3) UNCITRAL Rules; Paulsson/Petrochilos, p. 4 §1;
Webster, §1.95; Born I, p. 2138].
9 On 7 April 2014, the Parties concluded an arbitration agreement as set forth in Clause 20 of the Contract
[Exh. C2, p. 12, C5, p. 17]. In the latter, the Parties agreed that any dispute would be “settled by arbitration in
accordance with the UNCITRAL Arbitration Rules” [Exh. C2, p. 12 (Clause 20)]. CLAIMANT therefore initiated the
arbitral proceedings under these rules [NoA, p. 4 ff]. Additionally, RESPONDENT initiated a challenge
procedure under Art. 13 UNCITRAL Rules [Letter NoC, p. 37]. It is thus undisputed that the Parties agreed to
arbitrate under the UNCITRAL Rules and depart from the challenge procedure provided in the lex arbitri
[Exh. C2, p. 12]. Art. 13(4) UNCITRAL Rules, which states that an appointing authority has jurisdiction to
decide on the challenge of an arbitrator, is contrary to Art. 13(2) Model Law. However, because Art. 13(2)
Model Law is not a mandatory provision, Art. 13(4) UNCITRAL Rules is applicable in the case at hand.
Based on the foregoing, the Parties have validly opted out of Art. 13(2) Model Law and agreed on the
challenge procedure of the UNCITRAL Rules.
10 Furthermore, Art. 13(4) of the UNCITRAL Rules provides that if the parties do not agree on the challenge
or the challenged arbitrator does not withdraw, the challenging party must seek a decision by the appointing
authority shall it decide to pursue the challenge [Born I, pp. 1828-1829; Daele, pp. 179-180;
Waincymer, p. 323]. The procedure for designating and appointing authorities is determined in Art. 6
UNCITRAL Rules [Caron/Caplan, pp. 340-341; Grimmer, pp. 502-503; Webster, pp. 101 ff, 112].
11 Given the fact that the Parties have not reached an agreement with regards to the challenge, that Mr. Prasad
has not withdrawn and that RESPONDENT has elected to pursue the challenge [NoC, p. 39 §8], the conditions
of Art. 13(4) UNICTRAL Rules are fulfilled. The appointing authority must therefore be designated pursuant
to the procedure set forth in Art. 6 UNCITRAL Rules [cf. Webster, pp. 102, 224 §13-88; Baker/Davis, p. 64].
12 In view of the above, because the Parties validly incorporated the UNCITRAL Rules in their arbitration
agreement, the appointing authority has jurisdiction to decide on the challenge of Mr. Prasad.
B. THE PARTIES AGREED TO EXCLUDE THE INVOLVEMENT OF AN ARBITRAL INSTITUTION ONLY WITH
REGARDS TO THE INITIAL APPOINTMENT PROCEDURE AND NOT THE CHALLENGE PROCEDURE
13 Contrary to RESPONDENT’s allegations [NoC, p. 39 §8], the Parties reached an agreement limiting the
exclusion of institutional support to the initial appointment procedure. In this regard, CLAIMANT sent
RESPONDENT a letter on 27 March 2014, to which its Offer was attached, explicitly informing RESPONDENT
of its understanding of the exclusion of institutional support [Exh. C3, p. 15]. By its letter of 7 April 2014,
RESPONDENT accepted CLAIMANT’s Offer [Exh. C5, p. 17].
4
Memorandum for CLAIMANT Arguments
14 This agreement is subject to the CISG and thus to its rules on interpretation [PO1, p. 48 §1]. According to
Art. 8(1) CISG, “statements made by […] a party are to be interpreted according to [its] intent where the other party
knew or could not have been unaware what that intent was” [Schlechtriem/Schwenzer, Art. 8 §11; Honnold/Flechtner,
§105; Chatillon, p. 220; Lookofsky, pp. 42-43; TETA case]. Hence, one of the facets of this disposition is the
question of imputable awareness, which shall be analyzed in the light of the formula “could not have been
unaware” [Schlechtriem/Schwenzer, Art. 8 §17; cf. Lookofsky, pp. 42-43; Lautenschlager, p. 260; Huber/Mullis,
p. 12]. Furthermore, where both parties have expressed their intention to the other, they are deemed to have
reached a ‘meeting of minds’ [Schlechtriem/Schwenzer, Art. 8 §11; Digest CISG, p. 58 fn. 14; Franklins v. Metcash].
15 In the case at hand, the Parties agreed to apply the UNCITRAL Rules “without the involvement of any arbitral
institution” [Exh. C2, p. 12 (Clause 20)]. CLAIMANT, referring to this arbitration clause, had informed
RESPONDENT that it was “certain that [the Parties would] be able to overcome any problems relating to the constitution of
the arbitral tribunal even without institutional support” (emphasis added) [Exh. C3, p. 15]. Indeed, the Parties
restricted the scope of this exclusion of institutional support to the constitution of the Tribunal. Consequently,
because CLAIMANT referred expressly to the “constitution” of the Tribunal [ibid.], RESPONDENT knew or at the
very least could not have been unaware of CLAIMANT’s intention to restrict the scope of the exclusion of
institutional support solely to the constitution and not the composition of the Tribunal. Additionally,
RESPONDENT also demonstrated its intention to restrict the exclusion of institutional support exclusively to
the constitution of the Tribunal by accepting the Offer, as the latter was attached to CLAIMANT’s letter
[Exh. C3, p. 15]. Thus, RESPONDENT, by accepting CLAIMANT’s Offer, made CLAIMANT aware that it
understood the arbitration clause in an identical manner [Exh. C5, p. 17].
16 In view of the above, in accordance with Art. 8(1) CISG, the Parties had a reciprocal intention with regards
to the fact that the exclusion of institutional support was only applicable to the initial appointment procedure.
C. IN ANY EVENT, A REASONABLE THIRD PERSON WOULD HAVE UNDERSTOOD THE EXCLUSION OF
INSTITUTIONAL SUPPORT AS APPLYING SOLELY TO THE INITIAL APPOINTMENT PROCEDURE
17 If the Tribunal were to find that there was an absence of common intent (quod non), the question shall be
decided in light of an objective interpretation. In this regard, under the objective test of Art. 8(2) CISG, in
the absence of common intent, the hypothetical understanding of a reasonable third person of the same kind,
placed in the same circumstances, is determining [Schlechtriem/Schwenzer, Art. 8 §20; Chatillon, p. 220;
Farnsworth I, p. 98 §2.4; Huber/Mullis, pp. 12 ff; Lautenschlager, §3.1; Cowhides case; Magnesium case; Marble case].
18 CLAIMANT will demonstrate that, according to literal interpretation, the term “constitution” in CLAIMANT’s letter
of 27 March 2017 designated solely to the initial appointment of arbitrators (1), that the arbitration clause does
not mention a specific challenge procedure (2) and that the Parties’ negotiations demonstrate the restricted
scope of the exclusion of institutional support (3).
5
Memorandum for CLAIMANT Arguments
2. The arbitration clause mentions a specific procedure exclusively for the initial
appointment of arbitrators and not for their challenge
21 A hypothetical reasonable third person could only understand the fact that the Parties did not specify a
challenge procedure in their arbitration agreement as purposeful. Indeed, the Parties specified, in this same
agreement, the procedure applicable to the initial appointment of arbitrators [Exh. C2, p. 12 (Clause 20(a))],
but did not specify the procedure to be applied to the challenge of an arbitrator. In this regard, the general
principle of contract interpretation, expressio unius est exclusio alterius, expresses the idea that to include one
thing implies the exclusion of all the others [Hobér, p. 140; BLD, p. 701; Mobil Oil Iran case; Glamis case].
Furthermore, according to leading case law, modifications to an arbitration agreement, explicit or implicit,
must be evident from the wording of the parties’ written agreement [Econet case].
22 In casu, the Parties did not, unlike for the initial appointment procedure, specifically mention a challenge
procedure in their arbitration agreement. If the Parties’ intention was to exclude the involvement of an
arbitral institution for both the initial appointment procedure and the challenge procedure, a reasonable third
person would have expected them to expressly provide for both cases in their arbitration clause. Indeed, in
the leading Econet case, the arbitral tribunal rejected the argument that the parties’ explicit modification of
Art. 7(1) UNCITRAL Rules implicitly extended to the other paragraphs of that article, as it would have
constituted a major departure from the written text of the parties’ agreement. On the basis of the above, an
unequivocal wording would have been required in case the Parties intended to extend the scope of the
exclusion of institutional support to the challenge procedure.
6
Memorandum for CLAIMANT Arguments
Art. 8(3) CISG [Schlechtriem/Schwenzer, Art. 8 §13; Farnsworth I, p. 96 §1.4; Albrecht, Art. 8 §2; Marble case;
Machinery case].
24 In the case at hand, RESPONDENT voiced its concern for confidentiality in arbitral proceedings under
institutional arbitration [Exh. R5, p. 41; PO2, p. 52 §21]. Under this pretext, it attempts to extend the scope of
the exclusion of institutional support to the challenge procedure [NoC, p. 39 §8]. However, Clause 21 of
RESPONDENT’s general conditions, although they do not apply in casu [infra §§77 ff], states that the
confidentiality obligation may be lifted in order to “protect or pursue a legal right in bona fide legal proceedings
before any court or Arbitral Tribunal [institutional or not] of competent jurisdiction” [Exh. C2, p. 13]. Therefore, in the
eyes of a reasonable third person, RESPONDENT is inconsistent in its statements as it is open to waiving a
confidentiality guarantee in the event where an issue would arise during the arbitral proceedings, including in
the initial appointment procedure. Thus, RESPONDENT did not have a legitimate reason to extend the scope
of the exclusion of institutional support to the challenge procedure.
25 Contrary to RESPONDENT, CLAIMANT had a legitimate reason to restrict the scope of the exclusion of
institutional support. Indeed, CLAIMANT informed RESPONDENT, during the Cucina Fair, about its previous
negative experience with the initial appointment of a presiding arbitrator in the context of an ad hoc
arbitration [Exh. R5, p. 41]. RESPONDENT, catering to CLAIMANT’s concerns regarding the initial appointment
procedure, immediately verified with its legal department whether its arbitration clause would give rise to
any problems and expressly reassured CLAIMANT on the subject [Exh. C1, p. 8, R5, pp. 41-42]. Admittedly,
RESPONDENT’s statement referred to the composition of the Tribunal, rather than to its constitution [ibid.].
However, it could only be understood, in light of CLAIMANT’s negative experience with the initial
appointment of an arbitrator that RESPONDENT’s letter pertained solely to this phase of the proceedings. This
is further demonstrated by CLAIMANT’s letter of 27 March 2017 [supra §§15, 20].
26 Consequently, the Parties’ negotiations could only be understood as demonstrating their intent to exclude
the involvement of an arbitral institution solely with respect to the constitution of the Tribunal.
II. IN ANY EVENT, ONLY THE TRIBUNAL IN FULL MAY DECIDE ON THE CHALLENGE OF MR. PRASAD
27 Should the Tribunal consider that the appointing authority does not have jurisdiction to decide on the
challenge of Mr. Prasad, the Tribunal would only have jurisdiction with the participation of Mr. Prasad.
28 CLAIMANT will demonstrate that the lex arbitri requires Mr. Prasad to participate in the decision on his own
challenge (A); in this regard, the Parties must have equal influence in the composition of the Tribunal with
regards to the challenge decision (B).
A. THE LEX ARBITRI REQUIRES MR. PRASAD TO PARTICIPATE IN THE DECISION ON HIS OWN CHALLENGE
29 Art. 13(2) Model Law provides that “the arbitral tribunal shall decide on the challenge”. The term “arbitral
tribunal” must be understood as the arbitral tribunal in full. CLAIMANT will demonstrate hereinafter that the
7
Memorandum for CLAIMANT Arguments
legislative history of the Model Law indicates that a decision on the challenge of an arbitrator must be
rendered by an arbitral tribunal in its full composition (1), and that due to the nature of such decision, the
Tribunal must decide in full (2).
1. The legislative history of the Model Law indicates that a decision on a challenge of an
arbitrator must be rendered by an arbitral tribunal in its full composition
30 The travaux préparatoires of the Model Law ought to be considered by the Tribunal in the case at hand, as they
are an important guide when interpreting the Model Law [Weigand, §§14.16-14.17; UNCITRAL Report (1985),
§60]. Accordingly, the UNCITRAL Working Group intended Art. 13(2) Model Law to designate the
jurisdiction of the arbitral tribunal in its full composition. Indeed, the Working Group stated that “[it] agreed
that […] the decision was entrusted to all members of the tribunal, including the challenged arbitrator” (emphasis
added) [Working Group Report (1984), §38]. Additionally, this was further confirmed by UNCITRAL [Broches,
p. 62; Weigand, §14.232; UNCITRAL Report (1985), §§128, 130]. In light of the above, there can be no doubt
that the term “arbitral tribunal” in Art. 13(2) Model Law designates the arbitral tribunal in full.
2. The nature of the decision on the challenge of an arbitrator requires an arbitral tribunal to
decide in full
31 The substantive nature of the decision on the challenge of Mr. Prasad warrants the participation of the
Tribunal in full, according to the lex arbitri. Art. 29 Model Law requires any decision of the arbitral tribunal to
be taken by a majority of all its members, unless this decision is a procedural one. In the case of a three-
member arbitral tribunal with equal voting power, the majority can only be reached if the arbitral tribunal sits
in full, as the Model Law does not provide for the presiding arbitrator to have a casting vote, unless the
parties decide otherwise [Art. 29 Model Law; Poudret/Besson I, p. 661; Broches, p. 143; Holtzmann/Neuhaus,
p. 808]. Additionally, the decision on a challenge of an arbitrator shall not be regarded as a procedural
decision, in the sense of Art. 29 Model Law [Working Group Report (1984), §38; Working Group Report (1985),
p. 32 §4; Holtzmann/Neuhaus, p. 407 fn. 3]. Indeed, a procedural decision is a decision that includes “technical
regulations” of the arbitral process, such as the language of the proceedings or the logistical aspects of a hearing
and is thus not outcome-determinative [Caron/Caplan, pp. 709-710; Sanders, No. 14 §194; Konrad/Schwarz,
p. 246 §26-035; van Hof, p. 214; Case B1 IUSCT (Dissenting Opinion Ameli)].
32 The decision on the challenge of Mr. Prasad has a direct and significant impact on the outcome of the case, as
the challenged arbitrator’s participation during the deliberations is determinant. This decision must therefore be
considered as substantive and not merely procedural. Consequently, the presiding arbitrator, Ms. Rizzo, cannot
decide on the challenge decision on her own. In order for a majority to be reached in casu, all three arbitrators
would have to participate in the decision-making, as the Parties have not provided that Ms. Rizzo has a casting
vote [cf. Art. 29 Model Law]. Mr. Prasad must thus participate in the challenge decision alongside Ms. Rizzo and
Ms. Reitbauer.
8
Memorandum for CLAIMANT Arguments
B. THE PARTIES MUST HAVE EQUAL INFLUENCE ON THE COMPOSITION OF THE TRIBUNAL
33 A party should not have preponderant influence on the composition of an arbitral tribunal, including in the
case of a decision on the challenge of an arbitrator [Blessing, p. 48; Kramer/Urbach, p. 155; Weigand, §§14.225,
14.362; Dutco case]. As such decision cannot be made exclusively by the presiding arbitrator [supra §32], the
Parties must have equal influence on the composition of the Tribunal in order to fulfill their right to equal
treatment according to the lex arbitri. If this right is not respected, the award should be set aside at the
enforcement stage. CLAIMANT will demonstrate that the Model Law requires that the Parties be treated in an
equal manner (1) and that the award should be set aside under the New York Convention of 1958 (“NY
Convention”) if Mr. Prasad is not permitted to participate in the decision on his challenge (2).
1. The lex arbitri includes a mandatory disposition on equal treatment of the parties
34 Art. 18 Model Law stipulates that the parties must be treated with equality. This mandatory disposition
entails that an arbitral tribunal must apply similar standards to all parties and their representatives throughout
the arbitral process [Digest Model Law, p. 97 §5; Weigand, §§14.23, 14.360].
35 In the present case, if the challenge of Mr. Prasad were decided without his participation, RESPONDENT
would exercise an overriding influence on the composition of the Tribunal [cf. Blessing, p. 48; Milutinovic case].
Indeed, Ms. Reitbauer, appointed by RESPONDENT, would decide on the challenge of Mr. Prasad, whereas
CLAIMANT would not have a party-appointed arbitrator participating in the above-mentioned decision. Such
inequality of treatment would constitute a breach of Art. 18 Model Law.
2. Additionally, the breach of the right to equal treatment constitutes a ground for setting
the final award aside under the New York Convention
36 If CLAIMANT’s right to equal treatment is breached, the award should be set aside under the NY Convention.
Equatoriana and Mediterraneo being both Contracting States to the Model Law and the NY Convention, the
award must be enforceable according to both sets of rules [PO1, pp. 49 §4, 55 §47]. In this regard, the arbitral
tribunal must make every effort to render an enforceable award [Weigand, §14.158; Redfern/Hunter, §§9.14,
11.11]. The NY Convention provisions on enforcement and recognition are drafted in an almost identical
manner as the corresponding provisions of the Model Law; the latter provisions can thus be applied mutatis
mutandis [Born I, p. 3436; Broches, p. 164; Carlevaris, p. 539].
37 First, Art. V(1)(b) NY Convention establishes the parties’ right to due process. Second, pursuant to
Art. V(1)(d) NY Convention, the arbitral authority must be composed in accordance with the law of the seat,
unless the parties provided otherwise. Additionally, the award may be set aside if found to be contrary to the
public policy of the country in which the award is enforced or recognized [Art. V(2)(b) NY Convention; Guide NY
Convention, p. 254; Dutco case]. In this regard, Art. V(2)(b) NY Convention has been found to encompass rules
of international public policy [Born I, p. 3655; Schwarz/Ortner, p. 167]. Because of its widely recognized value,
9
Memorandum for CLAIMANT Arguments
it has been considered that the right to equal treatment, including in the context of the composition of an
arbitral tribunal, is a rule of international procedural public policy [Delvolvé, p. 200; Gaillard/Savage, p. 465
§787; Brekoulakis et al., p. 878; Poudret/Besson II §§242, 936; Lalive, p. 299; Schwebel/Lahne, pp. 205, 225;
Schwarz/Ortner, p. 180; Inversiones v. STET; Intelcam case; BGE (2003)].
38 In casu, were the Tribunal to decide that Mr. Prasad should not be given the opportunity to participate in the
decision on his challenge, Art. 18 Model Law would be breached. CLAIMANT would thus have grounds for
setting aside the award as the Tribunal would have violated its right to equal treatment and the law of the seat
would not have been respected under Art. V(1)(b) and (d) NY Convention [supra §35; cf. Bevilacqua/Ugarte,
p. 38]. Additionally, the award would be contrary to international public policy thus risks to be set aside
pursuant to Art. V(2)(b) NY Convention. On the basis of the above, Mr. Prasad must be allowed to
participate in the challenge decision, or else the award would not be enforceable as there would be grounds
for setting aside the award under the NY Convention and the Model Law.
CONCLUSION ON ISSUE 1
39 The Parties agreed to confer an appointing authority the power to decide on the challenge of Mr. Prasad.
Indeed, the Parties’ intent was not to exclude the appointing authority’s jurisdiction with regards to the
challenge procedure but solely with regards to the initial appointment procedure. Therefore, the Tribunal
does not have the jurisdiction to rule on the challenge of Mr. Prasad. In the event the Tribunal would be
found competent to adjudicate such challenge, it must sit in its full composition, or else CLAIMANT’s right to
equal treatment would be breached. Thus, if Mr. Prasad is precluded from participating in the challenge
decision, the final award shall be set aside pursuant to the NY Convention and the Model Law.
I. MR. PRASAD IS INDEPENDENT AND IMPARTIAL AS REQUIRED BY THE LEX ARBITRI [ART. 12(2) MODEL LAW]
41 The decision of Mr. Prasad’s impartiality and independence shall be taken on the limited grounds for
challenge provided in the lex arbitri. Indeed, Art. 12 Model Law is a mandatory disposition and must thus be
applied even if the parties decide to arbitrate under the UNCITRAL Rules [a contrario supra §8; Art. 1(3)
UNCITRAL Rules; Weigand, p. 1011 §14.217; Working Group Report (1985), Art. 13 §1; Desbois v. Industries].
10
Memorandum for CLAIMANT Arguments
Art. 12(2) Model Law provides that “an arbitrator may be challenged only if circumstances exist that give rise to
justifiable doubts as to his impartiality or independence”. Independence relates to the objective relationships the
arbitrator has with the parties or affiliates of the parties [Bucher/Tschanz, p. 69; Gaillard/Savage, § 1028;
Born I, p. 1776]. Impartiality is understood as the absence of bias with regards to the subject-matter [Lew
et al., p. 261 § 11-19]. The existence of justifiable doubts as to an arbitrator’s independence and impartiality
is to be assessed through the eyes of a reasonable third person [Redfern/Hunter, p. 254 §§4.76 ff; Croft et al.,
p. 128 §11.4; von Goeler, p. 3; Cofely v. Bingham; Grid v. Argentina; Gallo v. Canada; Porter v. Magill; Grand River
v. US; Urbaser case; Ad Hoc case (1995)]. A reasonable third person would look at the 2014 IBA Guidelines on
Conflicts of Interest in International Arbitration (“IBA Guidelines”) [Webster, p. 175; Kaufmann-Kohler, p.
296; Wilske/Stock, p. 45; ICS v. Argentina; ASM v. TTMI; Ometto v. ASA; Applied Materials case; Valverde case; Sierra
Fishing case]. These guidelines, which are widely accepted in practice, establish an non-exhaustive list of
circumstances likely to give rise to justifiable doubts [ibid.]. Nonetheless, the IBA Guidelines are not binding,
unless the parties agree to opt into them [IBA Guidelines, p. 3 §6; Hodges, p. 222; von Goeler, p. 257; Born I, p.
2211; Kaufmann-Kohler/Rigozzi, p. 200 §4.130; Voser/Petti, p. 9; Estavillo-Castro, p. 389]. The Parties have not
made such an agreement in the present case. Thus, the IBA Guidelines are not binding on them but merely
act as a source of inspiration.
42 CLAIMANT will demonstrate that there are no justifiable doubts as to Mr. Prasad’s independence and
impartiality under the IBA Guidelines (A). Furthermore, even if the circumstances of the case fell outside the
non-exhaustive list provided by the IBA Guidelines, there would still be no justifiable doubts (B).
A. THE CIRCUMSTANCES AT HAND DO NOT GIVE RISE TO JUSTIFIABLE DOUBTS AS TO MR. PRASAD’S
INDEPENDENCE AND IMPARTIALITY UNDER THE IBA GUIDELINES
43 The IBA Guidelines classify circumstances pertaining to an arbitrator’s independence or impartiality into
distinct lists [IBA Guidelines, p. 2]. The Red and Orange lists provide for situations in which there are or might
be justifiable doubts as to the arbitrator’s independence and impartiality [IBA Guidelines, pp. 17-18; Born I,
pp. 1847-1848; Daele, p. 245; Luttrell, p. 201]. In contrast, the Green list provides for situations that do not
raise justifiable doubts [IBA Guidelines, p. 18].
44 CLAIMANT will demonstrate that none of RESPONDENT’s grounds for challenge [cf. NoC, pp. 38 ff] fall within
the Red or Orange lists of the IBA Guidelines. Firstly, Mr. Prasad has never been appointed by CLAIMANT’s
affiliates [3.1.3 IBA Guidelines] but by separate entities (1). Secondly, he was not appointed repeatedly by
Fasttrack’s law firm [3.3.8 IBA Guidelines] (2). Thirdly, Mr. Prasad’s law firm does not have any significant
commercial relationship with an affiliate of the Parties [2.3.6 IBA Guidelines] (3). Lastly, Mr. Prasad’s article
does not advocate a position on the present case [3.5.2 IBA Guidelines] (4).
11
Memorandum for CLAIMANT Arguments
1. Mr. Prasad has not been repeatedly appointed by an affiliate of one of the Parties [3.1.3
IBA Guidelines]
45 RESPONDENT asserts that Mr. Prasad has been appointed as an arbitrator by Findfunds for the third time and
that this repetition of appointments disproves his independence [NoC, p. 39 §10]. The repeated appointment
of arbitrators by parties or their affiliates falls under 3.1.3 IBA Guidelines, which provides that an arbitrator
shall not be appointed by a party to the arbitration or its affiliate more than twice within three years.
CLAIMANT will demonstrate that Mr. Prasad’s previous appointments occurred in cases funded by separate
subsidiaries and not by CLAIMANT’s affiliates, and that even if they were affiliates, only one of them was
involved in Mr. Prasad’s appointment.
46 Mr. Prasad has never been appointed by a Party, be it RESPONDENT and CLAIMANT, in the past
[Declaration Prasad, p. 36]. RESPONDENT suggests that the funders of the parties that previously appointed
Mr. Prasad are affiliated to CLAIMANT [NoC, p. 39 §10]. However, this view cannot be followed. Indeed,
CLAIMANT is funded by Findfunds’ subsidiary, Funding 12, while the parties that previously appointed
Mr. Prasad were funded by other subsidiaries of Findfunds [ibid.].
47 An affiliate of a party is an entity closely connected to one of the parties [von Goeler, pp. 265, 274]. Third-party
funders are not affiliates of the parties [Bogart, p. 54; Lévy/Bonnan, p. 85]. In casu, Funding 12 is a third party
funding CLAIMANT [Letter Fasttrack, p. 35]. It is not closely connected to CLAIMANT, as it is the first time they
are involved in the same arbitral proceedings and as CLAIMANT manages the proceedings without the
involvement of its funder [PO2, p. 50 §§3-4]. Additionally, CLAIMANT does not fundamentally rely on the
funding provided by Funding 12 [PO2, p. 50 §1]. Thus, Funding 12 is not an affiliate of CLAIMANT. A fortiori,
the other subsidiaries of Findfunds are not affiliates of CLAIMANT either.
48 Moreover, the subsidiaries are not connected to each other. Indeed, each company in a group of companies is
a separate legal entity [Rubbellin-Devichi, p. 515; Adams v. Cape; ICC case No. 4402]. While the ‘group of
companies’ doctrine allows disregarding the independence of separate companies, it is admitted very
restrictively, when at all [Müller/Keilmann, p. 118; Peterson Farms case; Sarhank case; CCIG case No. 137; BGE
(1996)]. Indeed, this doctrine is only applied when one company has an active role in the negotiations,
performance or termination of the contracts of another [Born II, p. 101; Dow chemical case; KIS France case; ICC
case No. 5103; ICC case No. 6519]. Nonetheless, it is not sufficient for a company to detain 100% of the shares
of its subsidiaries [US v. Bestfoods; InterGen v. Grina; Hester v. Nigeria]. In the present case, Funding 12,
Findfunds and its two other subsidiaries are legally four different entities [PO2, p. 50 §3]. Findfunds only
participated in the initial discussions and negotiations with the parties it funded [PO2, p. 50 §4]. It then left the
conduct of the arbitration largely to the parties involved and exercised only little influence on the proceedings
[PO2, p. 50 §5]. Furthermore, Findfunds holds only 60% of the shares of Funding 12 and holds 100% of the
shares of the two other subsidiaries [Letter Prasad, p. 43; PO2, p. 50 §6]. Consequently, the presumption that
12
Memorandum for CLAIMANT Arguments
the four companies are separate legal entities cannot be rebutted. Mr. Prasad has, thus, never been appointed
by an affiliate of CLAIMANT as Findfunds’ subsidiaries are separate legal entities.
49 Even if the Tribunal were to take into consideration Mr. Prasad’s previous appointments in cases funded by
Findfunds’ subsidiaries, the limit of two cases would still not be exceeded as Mr. Prasad has only been
appointed once after a subsidiary was involved [Letter Prasad, p. 43]. In the other case however, Mr. Prasad was
appointed before the involvement of Findfunds or its subsidiary [ibid.]. This appointment can in no way be
attributed to Findfunds and indirectly to CLAIMANT. Therefore, Mr. Prasad has been previously appointed
once at most by a subsidiary of Findfunds and the limit of two appointments is not reached.
50 In light of the above, as the conditions of 3.1.3 IBA Guidelines are not fulfilled, the involvement of
CLAIMANT’s third-party funder does not give rise to justifiable doubts as to Mr. Prasad’s independence.
2. Mr. Prasad was not repeatedly appointed by Fasttrack’s law firm [3.3.8 IBA Guidelines]
51 RESPONDENT alleges that the repeated appointment of Mr. Prasad by the law firm of CLAIMANT’s counsel
affects Mr. Prasad’s independence [NoC, p. 39 §10]. 3.3.8 IBA Guidelines provides that an arbitrator should
not be appointed more than three times within the past three years by the same counsel or law firm [Gomez-
Acebo, p. 123; Koh; Generis v. Novartis].
52 In casu, Mr. Prasad was appointed by Mr. Fasttrack’s law firm only twice within the past three years
[Exh. C11, p. 23; PO2, p. 51 §10]. Thus, Mr. Prasad’s independence cannot be questioned on the basis of his
previous appointments by Fasttrack’s law firm, as the limit of three appointments, provided by the IBA
Guidelines, was not exceeded.
3. Mr. Prasad’s law firm does not have any significant commercial relationship with an
affiliate of the Parties [2.3.6 IBA Guidelines]
53 RESPONDENT, quoting 2.3.6 IBA Guidelines, erroneously alleges that Mr. Prasad’s Partner has a significant
commercial relationship with an affiliate of CLAIMANT [cf. NoC, p. 39 §11]. Such relationship is significant only
when the law firm derives a substantial part of its revenue from it [BGE (2016)]. It is suggested that the fact
that a law firm derives 20% of its annual income from its funder is not a sufficient indicator to determine the
existence of a significant commercial relationship with the latter [von Goeler, p. 267-268]. A long-lasting
relationship is an indicator of its commercial significance [Lew et al., p. 262; Craig et al., §13-03; SGS
v. Pakistan; OLG Hamm case].
54 Firstly, Funding 8, which funds the client of Mr. Prasad’s Partner is not an affiliate of the Parties, as
subsidiaries cannot be considered as such [supra §48]. Secondly, Mr. Prasad’s law firm currently has no
significant commercial relationship with Findfunds or its subsidiaries. Slowfood had represented a party
funded by Funding 8 for only two years [Declaration Prasad, p. 36; PO2, p. 50 §6]. This two-year relationship is
now over and represented only 5% of Slowfood’s annual turnover [PO2, p. 50 §6]. After the merger, this
13
Memorandum for CLAIMANT Arguments
represented less than 5% of the annual turnover of the new entity. Given the low amount of revenue, as well
as the short length of the relationship, Mr. Prasad’s law firm does not have a significant commercial
relationship with an affiliate of the Parties. Thus, no justifiable doubts can be upheld on the basis of this
relationship.
4. The article Mr. Prasad published does not advocate a position on the present case [3.5.2
IBA Guidelines]
55 In 2016, Mr. Prasad published an article entitled “[t]he notion of conformity in Art. 35 in the age of Corporate Social
Responsibility Codes and ‘Ethical Contracting’” in the Vindobona Journal [Exh. R4, p. 40]. Based on this article,
RESPONDENT challenged Mr. Prasad [NoC, p. 38], arguing that he advocates a position on the present case
[3.5.2 IBA Guidelines]. However, this allegation is ill-founded as Mr. Prasad’s article is general and abstract.
56 The publishing of an article by an arbitrator can potentially fall either under the Orange or Green lists
[supra §43; 3.5.2, 4.1.1 IBA Guidelines]. Pursuant to 3.5.2 IBA Guidelines, the situation where “an arbitrator has
publicly advocated a position on the case [at hand]” falls under the Orange list and might therefore raise justifiable
doubts on the arbitrator’s impartiality [supra §43]. This disposition only concerns publicly advocated positions
relating directly to the case at hand and involving the same parties, or to cases treating similar facts
[Bühler/Feit, p. 106; Ghana v. Telekom; Grid v. Argentina; Swiss Airlines case]. In contrast, when an article
expresses a legal opinion related to the issue, which arises in the case but without focusing on the case itself, it
is considered to be general and abstract, and therefore does not allow for the disqualification of the arbitrator
[4.1.1 IBA Guidelines; Part II §7 IBA Guidelines; Born III, p. 141].
57 Mr. Prasad’s article did not address the issue of cocoa sustainability and did not refer to the Parties involved in
the present arbitration proceedings either. The threshold to consider an arbitrator partial is very high,
according to the leading case law. Indeed, in Grid v. Argentina, despite the arbitrator’s comment in favor of
one of the parties during the hearing, he was found to be impartial. Pursuant to the adage qui potest majus potest
et minus [Eng: he who can do more can do less], Mr. Prasad is impartial because he merely addressed a general
issue, which admittedly arises in the present arbitration, but which is neither based on the facts nor on the
identity of the Parties at hand. For these reasons, Mr. Prasad’s article falls under 4.1.1 IBA Guidelines, i.e.
the Green list, and therefore does not give rise to justifiable doubts regarding Mr. Prasad’s impartiality.
B. EVEN IF THE CIRCUMSTANCES OF THE CASE FELL OUTSIDE THE NON-EXHAUSTIVE LIST PROVIDED BY THE
IBA GUIDELINES, THERE WOULD STILL BE NO JUSTIFIABLE DOUBTS
58 If the circumstances did not fall within the scope of the non-exhaustive lists of the IBA Guidelines, they have
to be analyzed on a case-by-case basis [IBA Guidelines, p. 19; Luttrell, p. 108; BGE (1998); BGE (2007)]. Even
under these circumstances, a reasonable third person would not find any justifiable doubts as to Mr. Prasad’s
independence and impartiality (1). Moreover, CLAIMANT did not violate its obligation to disclose, but even if
it had, it would not raise justifiable doubts as to Mr. Prasad’s independence and impartiality (2).
14
Memorandum for CLAIMANT Arguments
1. Mr. Prasad is independent and impartial from a reasonable third person’s point of view
59 No justifiable doubts as to Mr. Prasad’s independence and impartiality can be upheld. Such justifiable doubts
should be “direct, definite, and capable of demonstration rather than remote, uncertain and speculative” [Al-Harbi v.
Citibank; Alston v. UBS; Peoples Life Ins. case; Health Management case; Nationwide case]. The Tribunal is
respectfully requested to hold that the relationships between Mr. Prasad and the entities involved in the
present case do no give rise to justifiable doubts with regards to his independence (a) and that Mr. Prasad’s
article on the conformity of goods does not give rise to justifiable doubts with regards to his impartiality (b).
a. The relationships between Mr. Prasad and the entities involved in the present case do not
give rise to justifiable doubts with regards to his independence
60 Mr. Prasad’s remote business relationships with third-party funders and with CLAIMANT’s counsel do not
constitute justifiable doubts with regards to his independence. Business relationships between an arbitrator
and a company related to a party are possible grounds for justifiable doubts as to the arbitrator’s
independence, depending on the circumstances of the case [Waincymer, pp. 298, 301; Barcon v. Tri-County].
Tribunals have found arbitrators not to be independent in cases implicating parties which the arbitrators were
previously excessively involved with [W v. M SDN BHD; Vivendi v. Argentina]. In contrast, arbitrators were
found to be independent in cases involving parties that were represented by their arbitrator’s partner in an
unrelated case [ibid.]. Deciding circumstances were that the arbitrators were only minimally involved in their
partner’s case, that the case was almost over, and that the arbitrator’s law firm was of large size [ibid.]. In casu,
Mr. Prasad’s Partner was involved in a case unrelated to the subject matter of the present arbitral
proceedings. In addition to the fact that Mr. Prasad’s law firm only recently merged with Slowfood
Mr. Prasad is only one out of 80 partners and associates and there is no indication that he was involved in his
Partner’s case [PO2, p. 50 §8; Declaration Prasad, p. 36].
61 Additionally, arbitrators have been found to not be independent in cases where excessive appointments
demonstrated the arbitrator’s financial dependence on a party. Such would be the case when an arbitrator had
an important number of appointments (e.g. 34 or 51) by companies of the same group [Somoclest v. DV; Époux
X v. Prodim/Logidis; Cofely v. Bingham]. In contrast, a small number of prior appointments has been found to be
inconsequential to the arbitrator’s independence [OPIC v. Venezuela; Fileturn case]. Moreover, the absence of
knowledge by the arbitrator as to the links between him and the parties shall be considered as a significant
clue as to his independence [Locabail case; Gough case]. In the present case, Mr. Prasad had only been appointed
on two occasions by parties funded by subsidiaries of Findfunds and twice by Fasttrack’s law firm [Exh. C11,
p. 23; Declaration Prasad, p. 36]. Furthermore, only around 7% of Mr. Prasad’s annual revenue in these past
three years originated from Findfunds’ subsidiaries [PO2, p. 51 §10]. These numbers are much too small to
conclude that Mr. Prasad would be financially dependent on either Findfunds or Fasttrack’s law firm.
15
Memorandum for CLAIMANT Arguments
Moreover, Mr. Prasad had no prior knowledge of the involvement of Findfunds in the arbitral proceedings
[Letter Prasad, p. 43].
62 The links between Mr. Prasad and the entities involved in the present case are thus too remote for them to
raise doubts as to his independence. As a result, it must be held that a reasonable third person would not have
any justifiable doubts as to Mr. Prasad’s independence.
b. Mr. Prasad’s article on the conformity of goods does not give rise to justifiable doubts
with regards to his impartiality
63 Mr. Prasad’s article on the conformity of goods does not give rise to justifiable doubts as to his impartiality.
The expression by the arbitrator of thoughts that demonstrate that he has prejudged the case or has a
preconception in favor of or against one of the parties, is a ground for having justifiable doubts as to the
arbitrator’s impartiality [Díaz-Candia, p. 291; Reymond, p. 14; Greenberg et al., p. 276 §6.111; Vakauta v. Kelly;
Urbaser case; STMicroelectronics case; Suez case; Swiss Airlines case].
64 In the case at hand, Mr. Prasad solely presented a legal issue in an article. Nothing indicates that he prejudged
the case or that he would treat the Parties unequally as he merely analyzed the subject of the conformity of
goods in a general manner and explained both sides of the legal issue. As a consequence, no circumstance in
the present case would lead a reasonable third person to have justifiable doubts as to Mr. Prasad impartiality.
2. The independence and impartiality of Mr. Prasad cannot be questioned with regards to
the disclosure obligation of a party
65 RESPONDENT wrongfully argues that CLAIMANT failed to disclose that it was being funded by Funding 12
[NoC, p. 39 §9]. Art. 12(1) Model Law stipulates that an arbitrator “shall disclose any circumstances likely to give
rise to justifiable doubts as to his impartiality or independence”. However, under the Model Law, no such obligation
is attributed to the parties. Therefore, CLAIMANT had no obligation to disclose the source of its funding.
66 RESPONDENT argues that CLAIMANT had an obligation to disclose under the IBA Guidelines. However, these
serve as a mere source of inspiration for tribunals [supra §41] and do not impose any obligation to disclose on
the parties. Even if we were to consider that the IBA Guidelines were applicable, there is no obligation for
the parties to disclose their funder [Osmanoglu, p. 337; Lévy/Bonnan, p. 80]. The General Principle 7(a) IBA
Guidelines, which RESPONDENT invokes, provides that the parties must disclose relationships between the
arbitrator and any entity with a direct economic interest in the award to be rendered in the arbitration, such
as a third-party funder. In casu, Funding 12, CLAIMANT’s funder deals exclusively with CLAIMANT, and has no
relationship with Mr. Prasad whatsoever. This is further illustrated by the fact that Mr. Prasad had not even
known about the existence of Funding 12 until CLAIMANT disclosed it [Letter Prasad, p. 43; PO2, p. 51 §13].
Thus, CLAIMANT did not have any duty to disclose the existence of Funding 12.
16
Memorandum for CLAIMANT Arguments
67 Even if CLAIMANT had violated its duty to disclose the funder, it would not be a ground for removal of
Mr. Prasad. There is no legal basis permitting the attribution of a party’s behavior to its appointed arbitrator.
Moreover, it would be absurd to blame the arbitrator for a party’s behavior he was not even aware of [Le Club
des Juristes, p. 40; Gomez-Acebo, p. 127]. Mr. Prasad, who was unaware of Funding 12’s involvement, thus
cannot be challenged with regards to his independence and impartiality.
17
Memorandum for CLAIMANT Arguments
month after the legal deadline had elapsed. RESPONDENT had thus forfeited its right to challenge Mr. Prasad’s
impartiality and independence on these grounds.
B. RESPONDENT EXPLICITLY WAIVED ITS RIGHT TO RAISE THE ISSUE REGARDING SLOWFOOD’S FUNDER
71 RESPONDENT cannot raise the issue of the Partner’s involvement with an alleged affiliate of the Parties as it
waived that right on 31 July 2017 [RNoA, p. 26 §22]. Art. 11 UNCITRAL Rules contemplates a form of
advance waiver, as an arbitrator does not have the duty to disclose if “parties have already been informed about the
circumstances” [Report of the NY Bar Committee]. Advance waivers enable arbitrators to submit a declaration of
potential conflicts of interest that may arise in the future arbitration, which the parties can accept, thus
waiving their right to challenge the arbitrator on the grounds exposed in the declaration [General Standard 3(b)
IBA Guidelines; Carlevaris, p. 36]. For instance, an arbitrator’s declaration can consist in requesting permission
that other lawyers from the same law firm as the arbitrator get engaged in cases involving the parties
[Voser/Petti, p. 17]. More specifically, advance waivers must be assessed in view of the specific text, the
circumstances and the applicable law [Pihlblad/Tufte-Kristensen, p. 587].
72 In its letter of 26 June 2017, Mr. Prasad explicitly declared that his partners might get involved with the
“Parties as well as related companies” [Exh. C11, p. 23]. Indeed, according to RESPONDENT’s claims, Funding 8 is a
company related to CLAIMANT. Furthermore, while Mr. Prasad referred to his “colleagues at Prasad & Prasad”,
the declaration is to be understood as including also the partners of the newly formed Prasad & Slowfood.
Indeed, employees at law firms change often [cf. Deloitte Report 2016, p. 13], and RESPONDENT should have
thus understood that Mr. Prasad referred to his co-workers in a broad way. Consequently, the issue at hand
falls within the scope of Mr. Prasad’s declaration, which RESPONDENT acknowledged having been aware of
and expressly agreed to [RNoA, p. 26 §22]. RESPONDENT therefore waived its right to challenge Mr. Prasad on
the basis of the relationship between the Partner and Funding 8, and cannot raise it now.
18
Memorandum for CLAIMANT Arguments
[IBA Rules, p. 3; Ireton, p. 235; Meyer, p. 365; Gardiner, §248; Tidewater v. Venezuela]. These rules provide
multiple reasons, such as legal impediment or privilege, for which evidence shall be excluded [Art. 9(2)(b) IBA
Rules; Marghitola, p. 70; Morse, p. 95; Swidler & Berlin v. US]. Client-attorney privilege is “the right to withhold
certain […] documentary evidence from a legal proceeding, including the right to prevent another [person] from disclosing
such information” [Marghitola, p. 74; cf. Morse, p. 96]. Indeed, assembling information, expressing opinions or
personal beliefs, are protected from unnecessary intrusion by opposing parties [ibid.]. Art. 9(3)(a) and (c) IBA
Rules complement Art. 9(2) by providing aspects to be taken into consideration when analyzing a privilege
such as the need to protect confidentiality or the expectations of the parties and their advisors. Furthermore,
information sent inadvertently by a counsel is not to be considered as a waiver of client-attorney privilege
[Bouchenaki/El-Ahdab, p. 111; Gallo v. Canada]. Secondly, the ‘fruit of the poisonous tree’ doctrine provides that
information acquired through illegal sources is inadmissible by association [Boykin/Havalic, p. 35;
Reisman/Freedman, p. 747; Nardone v. US].
75 In the present dispute, the retrieved metadata revealed Fasttrack’s personal beliefs and impressions, which are
part of his legal work. They are, thus, covered by the client-attorney privilege. Indeed, Mr. Fasttrack could have
reasonably assumed that his comments would not be used due to their confidential nature. No waiver of this
privilege may be upheld in casu. Furthermore, CLAIMANT’s disclosure is excluded as per the ‘fruit of the poisonous
tree’ doctrine. The Tribunal should, thus, exclude these pieces of evidence from the present proceedings.
RESPONDENt is thus precluded from invoking all of the grounds it raised regarding Mr. Prasad.
CONCLUSION ON ISSUE 2
76 Mr. Prasad should not be removed from the Tribunal. Indeed, there are no doubts that he will act in an
independent and impartial manner. In any event, RESPONDENT is precluded from challenging Mr. Prasad.
19
Memorandum for CLAIMANT Arguments
1. RESPONDENT’s Invitation to Tender was a mere invitatio ad offerendum [Art. 14(2) CISG]
81 CLAIMANT received RESPONDENT’s Invitation to Tender following their discussion during the Cucina Fair
[Exh. C1, p. 8, C2, pp. 9 ff]. This Invitation to Tender constituted a mere invitation to treat and had no binding
effect whatsoever. Indeed, Art. 14(2) CISG contains a legal presumption that a proposal not addressed to one
or more specific persons is not an offer [Chatillon, p. 216; Schlechtriem/Schwenzer, Art. 14 §32; Owen, p. 231;
Butler, Ch. 3 pp. 3-4; Schulze, p. 178; Poole; Spencer case; Shivas case]. This presumption can be rebutted by a
clear indication – such as a statement in the text – that the offeror wishes to be bound [Lookofsky, p. 52; Butler,
Ch. 3 p. 4; Leete]. The same solution is further confirmed expressly in relation with tendering [Burgess, §1;
Sidwell et al., p. 108; Pratt v. Transit]. Indeed, “a simple […] request for bids will generally be no more than an
invitation to treat, not giving rise to contractual obligations” [Wood/Fitzalan, pp. 4, 18].
82 In casu, RESPONDENT’s Invitation to Tender was not only sent to CLAIMANT, but also to four other businesses,
and published in various industry newsletters [RNoA, p. 25 §7]. This illustrates that the proposal was
addressed to an undefined number of people, a factual circumstance sufficient for the abovementioned
presumption to come in effect. RESPONDENT must not have intended to be bound by all offers received, as its
documents did not express its readiness to be bound towards all of the addressees [cf. Schwenzer et al.,
pp. 136 ff]. Therefore, the Invitation to Tender was a mere invitation to bargain. A habitual response is thus
for the addressee to submit an offer, as CLAIMANT did [cf. Giannini].
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Memorandum for CLAIMANT Arguments
2. Alternatively, CLAIMANT made clear that its Offer was independent of the Tender Process
[Art. 8 CISG]
83 If we were to consider that the Invitation to Tender bound CLAIMANT with regards to the content of its
Offer, it must be held that it submitted an independent offer, disrupting the Tender Process initiated by
RESPONDENT. Indeed, CLAIMANT’s Offer was accompanied by a letter underlining that it was “a proper offer”
[Exh. C3, p. 15, C4, p. 16]. The analysis of RESPONDENT’s understanding of said letter is to be carried out
pursuant to Art. 8 CISG using the subjective and objective tests [supra §§14,17].
84 The term proper is to be understood as “denoting something that is truly what it is said or regarded to be; genuine”
[OD, p. 1210; cf. BLD, p. 1410], ergo in our case a genuine or true offer. In the same letter, CLAIMANT justified
the choice to submit an independent offer by the changes it wished to implement, namely the payment terms,
the product attributes, and the general conditions governing the Contract [Exh. C3, p. 15]. It would be
unfounded for RESPONDENT to allege that it was not aware of CLAIMANT’s intent, given the wording of the
accompanying letter. Moreover, RESPONDENT is a professional who engages in transactions of this kind on a
regular basis [cf. Lautenschlager, p. 262; Berger, p. 4]. Thus, it has expansive knowledge and experience in the
field of contract formation and tendering and could have only understood the Offer as independent. Based on
the foregoing, it must be held that CLAIMANT’s Offer was independent of the Tender Process.
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Memorandum for CLAIMANT Arguments
objection, these were the ones incorporated into the Contract (1). Furthermore, CLAIMANT was indeed free
to subject its Offer to these terms (2). Finally, the manner in which it incorporated them was valid (3).
1. CLAIMANT incorporated its General Conditions into the Contract as it was the party who
last referred to its own terms
88 In its Invitation to Tender, RESPONDENT referred to its standard terms [Exh. C2, pp. 8 ff]. However,
CLAIMANT subsequently made its Offer subject to its own General Conditions [Exh. C4, p. 16]. It is the latter
document that prevails, and CLAIMANT’s General Conditions therefore apply.
89 Where it is ambiguous which set of standard terms is applicable as each party referred to its respective terms
prior to the conclusion of the contract, the issue of ‘battle of forms’ arises [Schlechtriem/Schwenzer, Art. 19
§§31 ff; Vytopil, p. 86; Furmston/Tolhurst, p. 131]. As the CISG does not expressly address this question,
general principles on contract formation are to be used in order to fill the gap [CISG-AC 13, §2.7; Piltz, Art. 5
No. 75; Magnus I, p. 310; Butler, Ch. 3 pp. 15-16; Schlechtriem/Butler, p. 81; Gillette, pp. 44-45; Spagnolo, p. 265;
Digest CISG, p. 80 §11; Propane case]. According to the ‘last shot rule’ doctrine, a solution confirmed by several
national codes, e.g. the American UCC and the Dutch civil code [Kadner Graziano, pp. 76-77], the standard
terms of the contracting party which referred to its terms and conditions last become part of the contract
unless objected to [Schlechtriem/Schwenzer, Art. 19 §35; Lautenschlager, §3.4.2.1; CISG-AC 13, §§10.5-10.6;
Bianca/Bonell, Art. 19 §2.5; Furmston/Tolhurst, p. 131; Magnus II, pp. 192-193; Butler Machine case (Lords Justice
Lawton and Bridge); Powdered Milk case]. Admittedly, some prefer to apply the ‘knock-out rule’ [CISG-AC 13, §10.6;
Kadner Graziano, pp. 77 ff; Magnus II, pp. 193-194]. It must nevertheless be specified that it will not apply if “a
party has explicitly excluded the operation of the rule by explicitly indicating in advance that it will not be bound by other
standard terms than its own” [CISG-AC 13, §10.8].
90 In the case at hand, by its Offer, CLAIMANT was the party who last referred to its standard terms without
these being objected to [Exh. C4, p. 16]. Furthermore, during the Cucina Fair, CLAIMANT made it clear that,
were it to enter into a business relationship with RESPONDENT, the application of its own General Conditions
to this relationship was the only option [Exh. R5, p. 41]. Indeed, these terms were discussed in great detail as
confirmed by RESPONDENT [ibid.]. CLAIMANT thus expressed that it was willing to only be bound by its own
standard terms. Therefore, it must be held that CLAIMANT’s General Conditions are the only standard terms
applicable in casu.
2. CLAIMANT retained the freedom to shape the contract through the content of its Offer
91 RESPONDENT alleges that CLAIMANT could not have submitted an offer containing its own standard terms as
the Invitation to Tender bound CLAIMANT [RNoA, p. 27 §25] as a result of the Letter of Acknowledgement
that CLAIMANT returned to RESPONDENT, dated 17 March 2017 [Exh. R1, p. 28]. However, this allegation
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Memorandum for CLAIMANT Arguments
cannot be followed as CLAIMANT retained the freedom to shape the content of the contract and this both if its
Offer is to be considered as independent of the Tender Process and if it falls under this latter.
92 Conforming to the principle of party autonomy, which is amongst the core principles governing international
law, the parties to a contract have the ability to shape it [Art. 1.1 UNIDROIT Principles; Nygh, p. 1; Elcin, p. 1;
Schulze, pp. 6-7; TransLex-Principles, No. IV.1.1; Ortega/Zambrana, p. 68 §65; Magnus II, p. 191]. It is not only
relevant when it comes to the parties’ decision to enter into contract, but is also applicable to shaping its
content [Coester-Waltjen, pp. 41-42; Chatillon, pp. 81-82; Printing v. Sampson]. Furthermore, this principle is not
only applicable if it is admitted that the tender process was disrupted or never existed [supra §§83-84], but
also if one concedes that it was followed through. While its application is rather obvious in the first
hypothesis, as pursuant to Art. 1.1 UNIDROIT Principles, parties are free to determine the content of the
contract, the second hypothesis calls for a more thorough analysis. First of all, one needs to make a difference
between a State-initiated tender process and a business-to-business one [BP Guide, p. 26; Newman, p. 10;
Forshaw]. As a matter of fact, this latter is by definition more flexible as it falls under the private sector, which
leaves the person making a submission following an invitation to tender with a greater freedom and
consequently more space for the parties to negotiate the final contract [Tadelis, pp. 299-300; Newman, p. 10].
Second, it is important to examine whether a ‘pre-award contract’ exists [Burgess, §1; Sidwell et al., p. 109].
Indeed, letters of acknowledgement only express the will of one of the parties, meaning they are unilateral
[Kuyven, p. 83]. While this does not exclude the possibility of existence of a pre-award contract completely,
the use of strong and unequivocal language demonstrating a common intent of the parties is indispensable if
such contract is to be deemed concluded [Kuyven, p. 85; Bugg, p. 36; Wood/Fitzalan, pp. 26-27; Burgess, §1;
Sidwell et al., p. 109; Craig, p. 93; Levin, p. 325; Pratt v. Transit; Cubic Transportations case; Cour de cass. (1987)].
Last but not least, the obligations such contract would impose differ substantially from one case to another
[Wood/Fitzalan, pp. 20, 24; Pratt v. Transit; Cubic Transportation case; Prime Commercial case]. Generally, pre-
award contracts tend to only impose obligations on the party inviting tenders with regards to how this party
shall choose amongst the tenderers [Sidwell et al., p. 109; Burgess, §2].
93 In casu, the RESPONDENT-initiated Tender Process arose in a business-to-business environment, and
CLAIMANT thus maintained significant freedom due to the nature of the process. Furthermore, the freedom
the Parties wished to uphold was evident namely from the way the Letter of Acknowledgement was worded
[RNoA, p. 25 §8; Exh. R1, p. 28]. Indeed, no language indicating duties such as ‘must’ or ‘obliged to’ was used,
as a result of which it was not binding and no pre-award contract was formed [cf. Bugg, p. 36]. In any event,
stating that somebody “will tender in accordance with the specified requirements” [Exh. R1, p. 28 §3] does not
constitute a specific enough obligation for CLAIMANT to only submit an offer subject to RESPONDENT’s
general conditions. In light of the above, it must be held that there was no obligation for CLAIMANT’s
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Memorandum for CLAIMANT Arguments
submission to be governed by RESPONDENT’s general conditions and CLAIMANT was thus free to shape the
Contract as it deemed appropriate.
II. RESPONDENT ACCEPTED CLAIMANT’S OFFER INCLUDING ITS GENERAL CONDITIONS [ART. 18 CISG]
97 A contract is in principle formed through the expression of mutual agreement of the parties [Lookofsky, p. 48;
Chatillon, p. 216; Bugg, pp. 19 ff, 27; d’Auzon, p. 55; Butler, Ch. 3 p. 1; Schlechtriem/Schwenzer, Art. 18 §2]. As a
contract binds the parties, it is inconceivable for RESPONDENT to be released from its commitment almost
three years later, under the pretext that it did not know what it had signed [Licensor case]. RESPONDENT
accepted CLAIMANT’s Offer and this by statement (A) and, in any event, by conduct (B).
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Memorandum for CLAIMANT Arguments
1. The wording of RESPONDENT’s letter can only be interpreted as accepting the Offer
inclusive of CLAIMANT’s General Conditions
99 RESPONDENT accepted CLAIMANT’s Offer as including the latter’s standard terms. Indeed, an incorporation
where the offeree creates “a reasonable impression in the mind of the offeror that the offer has been accepted without
any modification” is in principle valid [CISG-AC 13, §1.7; cf. Tantalum Powder case]. It is pertinent to make
reference to the ‘usual meaning’ doctrine concerning this question [supra §19].
100 In point of fact, “notwithstanding the changes suggested by [CLAIMANT]” is, under the usual meaning of the words,
to be understood as referring to all of the changes, including, in casu, the modification made regarding the
applicable terms. Consequently, based on its wording, RESPONDENT’s letter can only be interpreted as
accepting CLAIMANT’s Offer including the modification of standard terms.
2. A reasonable third person would have understood RESPONDENT’s letter of 7 April 2014 as
accepting CLAIMANT’s General Conditions [Art. 8(2) CISG]
101 RESPONDENT’s letter could only be understood as accepting CLAIMANT’s Offer, including its General
Conditions. Indeed, a reasonable third person would have only declared to the other party that it accepted an
offer in its entirety, by using words akin to the ones used by RESPONDENT [supra §100], if it unambiguously
understood the content. When a reasonable third person has any doubts, it shall seek clarification, i.e. there is a
duty to inquire or object [Schlechtriem/Schwenzer, Art. 8 §§37 ff; Schlechtriem/Butler, p. 57 §57; Veyron v. Ambrosio;
Household goods case; Footware case; OLG Köln case]. Moreover, there is no reason to overprotect one party when
both parties are of equal stature [Mittmann, pp. 103 ff; a contrario Masarova, pp. 61-62; Rozehnalova, p. 12].
102 In casu, RESPONDENT did not abide by its duty to inquire. CLAIMANT not only included its phone number, but
also its e-mail address, means for RESPONDENT to obtain more information had it not understood the Offer
[cf. Kindler, p. 229; CIETAC (2005)]. On this topic, one must note that as RESPONDENT is a professional, and
not a consumer, there is no reason to overprotect it. Based on the foregoing, a reasonable third person would
have assumed that RESPONDENT accepted CLAIMANT’s General Conditions, as it raised no objections.
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Memorandum for CLAIMANT Arguments
CONCLUSION ON ISSUE 3
105 CLAIMANT made a valid offer, independent of the RESPONDENT-initiated Tender Process, which was validly
accepted by RESPONDENT. The said offer was subject to CLAIMANT’s General Conditions, which as a result
are applicable to the relationship between the Parties.
I. CLAIMANT COMPLIED WITH ITS CONTRACTUAL OBLIGATION TO USE BEST EFFORTS WHEN PRODUCING
THE CHOCOLATE CAKES
107 RESPONDENT argues that CLAIMANT did not deliver conforming goods, i.e. goods that it alleges should have
been in line with “high ethical and environmental standards” [RNoA, p. 24 §1]. This claim is inferred from
Principles C and E of RESPONDENT’s standard terms, which stipulate that CLAIMANT shall ensure that its own
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Memorandum for CLAIMANT Arguments
suppliers conduct their business in an environmentally sustainable way [Exh. C2, pp. 13-14]. The Tribunal is
respectfully requested to hold that the cakes were conforming, as RESPONDENT's general conditions only
provide for an obligation of best efforts (A) and that CLAIMANT indeed complied with this obligation by
applying international practice (B).
1. The intent of the Parties was for CLAIMANT to be bound by an obligation of best efforts
109 Pursuant to Art. 8(1) in fine CISG, a contract shall first be interpreted according to the parties’ subjective
intent, where the other party could not have been unaware of what this intent was [supra §14]. Due regard
must be given not only to the text of the contract, but also to surrounding circumstances [Art. 8(3) CISG].
Firstly, during the negotiations of the Contract, the Parties manifested their common will for CLAIMANT to
be bound by an obligation of best efforts. Secondly, CLAIMANT’s obligation of best efforts was confirmed by
the Parties’ subsequent conduct.
110 The negotiations of the Contract show that the Parties’ common intent was for CLAIMANT to be bound by an
obligation of best efforts when producing the chocolate cakes. Indeed, negotiations must be taken into
consideration when determining the parties’ intent [Art. 8(1), (3) CISG; supra §23]. In this regard, if the
Parties’ hold negotiations, the scope of the contractual obligations must be determined therein [Peterkova
Mitkidis, pp. 153-154; Ramberg, pp. 14 ff; Schwenzer et al., p. 276 §24.08].
111 In casu, on 10 March 2014, RESPONDENT sent a letter to CLAIMANT stating that it was “impressed” by its
“management supply chain, including regular audits and reporting obligation” [Exh. C1, p. 8], so much so that
RESPONDENT subsequently “decided to make no further audits or site visits” [PO2, p. 54 §34]. Nevertheless,
RESPONDENT did not mention at any time that the sustainability of the cocoa used when producing the cakes
should be guaranteed. Moreover, on 27 March 2014, CLAIMANT used clear wording in the letter
accompanying its Offer when stating that it would “do everything possible to guarantee […] to comply with [the
Parties’] joint commitments to Global Compact Principles” (emphasis added) [Exh. C3, p. 15]. However, since the
UN Global Compact does not provide for an obligation of result [infra §123], CLAIMANT could not have been
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Memorandum for CLAIMANT Arguments
aware of RESPONDENT’s intention to provide otherwise. The Parties therefore did not agree on a duty to
achieve a specific result, but rather on the application of best efforts with regards to the sustainability of the
cocoa used in the production of the chocolate cakes.
112 Furthermore, following the conclusion of the Contract, the Parties’ intent to bind CLAIMANT by best efforts
can be drawn from their conduct. Indeed, the original intent of parties can be analyzed in light of their
subsequent conduct [Art. 8(1), (3) CISG; Honnold, p. 167 §111; Schlechtriem/Schroeter, p. 111 §219;
Staudinger/Magnus, Art. 8 §25; Fruit and vegetables case]. In addition, parties have a duty to object if they do not
agree with a statement [supra §101]. In its letter of 27 January 2017, CLAIMANT confirmed that “[it] ha[d] […]
complied with [its] obligations under the contract” as it “used [its] best efforts to ensure” the delivery of sustainable
chocolate cakes [Exh. C8, p. 20]. CLAIMANT thus made RESPONDENT aware that its understanding of its
obligation was limited to best efforts. Additionally, RESPONDENT did not object to CLAIMANT’s statement that
it was solely bound by a best efforts obligation, as it should have done, had it disagreed with CLAIMANT’s
understanding of the nature of its obligation. Consequently, the Parties’ subsequent conduct reflects their
understanding of the Contract, which is only to impose on CLAIMANT an obligation of best efforts.
113 In light of the above, the Parties’ intent was thus for Claimant to be bound by an obligation of best efforts as
demonstrated in their negotiations and subsequent conduct.
2. In any event, a reasonable third person would have understood that CLAIMANT was to be
bound only by best efforts
114 In cases where the parties’ statement is not clear, the subjective intention of the parties is not determinable
[Digest CISG, p. 56 §10; Building materials case]. This is often the case, when parties include standard conditions
to the contract [Marble case]. In such case, the tribunal should resort to the objective interpretation of Art.
8(2) CISG [supra §17]. The language of RESPONDENT's general conditions could only be understood as
providing an obligation of best efforts (a), which was further demonstrated by the Parties' conduct (b).
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Memorandum for CLAIMANT Arguments
Principle C provides that its suppliers “shall conduct [their] business in a sustainable way”. The use of the word
shall [OED-online, “promise”], which is less strong than for instance “must”, does not produce a binding effect
[Federal Reg. Doc; Federal Plain Language Guideline, p. 25; FAA Plain Language Order, p. 4; Unilever]. Had
RESPONDENT wanted a stronger obligation, it would have had to use stronger terms, such as guarantee,
warrant, or assure. Therefore, Principle C of RESPONDENT’s general conditions does not use a strong enough
language to impose an obligation of result.
117 Furthermore, corporate social responsibility clauses must be precise and clear in their wording in order to
bind the parties [Peterkova Mitkidis, pp. 175 ff; Schwenzer/Leisinger, p. 264]. Companies impose legal obligations
by using forceful and explicit language [Art. 9(2) CISG]. For instance, in the chocolate industry, Mars Inc. uses
a specific clause on deforestation, which forbids “deforestation of primary forest” and “burning to clear land for new
developments” [Mars Def. Policy]. Equally, Ferrero uses the verb request when it imposes the obligation of
sustainable production on its suppliers [Ferrero, p. 4]. Moreover, in order to intensify suppliers’ commitments,
chocolate producers generally require them to sign a declaration of conduct [Nestlé, p. 5; Lindt & Sprüngli II,
p. 6; Mars Inc., p. 16; Peterkova Mitkidis, p. 245]. RESPONDENT’s sustainability clause fails to establish an
obligation of result, since it lacks the well-established clarity and precision used in the industry.
118 In view of the above, it could only be understood that CLAIMANT was bound by best efforts according to the
wording of RESPONDENT’s Code of Conduct.
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Memorandum for CLAIMANT Arguments
3. Parties are bound by usages they agreed upon [Art. 9(1) CISG]
122 By virtue of Art. 9(1) CISG, parties are bound by usages to which they have agreed by express terms [Melis,
Art. 9 §2; Staudinger/Magnus, Art. 9 §7; Witz, Art. 9 §16]. If both parties to a contract are members of the same
initiative, it must be presumed that the parties have, at least implicitly, made it a part of their contract
[Schwenzer/Leisinger, p. 264]. All ten principles of the UN Global Compact start with “businesses should”, and
not by must, will or are required to. This wording shows that all these principles are merely suggestive [Peterkova
Mitkidis, p. 132; Dysted, p. 14; Schwenzer/Leisinger, p. 265].
123 In the present case, both Parties are members of the UN Global Compact [NoA, p. 4; RNoA, p. 24]. This is
further demonstrated by the fact that RESPONDENT expressly addressed its commitment to UN Global
Compact Principles in the Contract as well as in its subsequent correspondence with CLAIMANT [Exh. C1, p. 8,
C2, p. 13, etc.]. The Parties thus explicitly chose to apply mutatis mutandis the UN Global Compact Principles,
without resorting to more stringent language indicating an obligation of result. Consequently, a reasonable
third person could only infer, from the suggestive nature of the UN Global Compact, that CLAIMANT had an
obligation of best efforts under the Contract.
B. BY APPLYING INTERNATIONAL PRACTICE, CLAIMANT USED ITS BEST EFFORTS WHEN PRODUCING THE
CHOCOLATE CAKES
124 RESPONDENT's Code of Conduct does not specify how the best efforts obligation should be fulfilled.
Consequently, using best efforts is to be understood as applying international practice (1), which CLAIMANT
did by following verification procedures (2).
1. When the scope of best efforts is not defined contractually, these are complied with by
applying international practice
125 When a party is bound to use its best efforts, it must act as a reasonable third person would under the same
circumstances, without guaranteeing the achievement of a specific result [Art. 5.1.4 UNIDROIT Principles;
Lando, p. 507; Farnsworth II, p. 11; TransLex-Principle, No. IV.6.5; Perma Research case; Pips case]. The party is
obliged to do all it can within reason, but no more [Young, p. 97; Terrell v. Mabie; Sheffield District Railway case;
Hospital Products case; Triple-A Baseball Club case; Bloor case; LTV case]. Especially, it does not have to incur
unreasonable costs or go against its own interests [ibid.]. The question of whether a party used its best efforts
is a subjective factual issue, and due regard must be given to the party’s abilities, but also to its expertise. A
professional has to live up to the standard of the trade industry it is part of [TransLex-Principle, No. IV.6.5;
Triple-A Baseball Club case; Carlson Brewing case; Perma Research case].
126 In the case at hand, CLAIMANT was bound to use its best efforts, and thus had to act as a reasonable third
person would have in its place. It had to act within reason of its abilities, and behave as another sustainable
chocolate cake producer would have.
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Memorandum for CLAIMANT Arguments
127 There are no trade usages in the bakery industry pertaining to the sustainable production of goods, which
would bind the Parties under 9(2) CISG [PO2, p. 54 §35]. However, in recent decades, sustainability has
come into the spotlight, with the proliferation of private and public instruments [Grunert et al., p. 177; Koos,
p. 128; Boiral et al., pp. 1, 18; Vecchio/Annunziata, p. 335]. Notably, ISO 14001, a set of rules which guides
companies seeking to be environmental friendly, has led to over 340’000 companies worldwide being ISO
14001-certified [ISO Survey]. Moreover, private initiatives such as UTZ, Rainforest Alliance and Fairtrade
provide for cocoa ecolabels [Fairtrade Cocoa; Rainforest Cocoa; UTZ Cocoa]. Many chocolate industry giants have
declared their will to comply with such instruments [Mars Inc., p. 14; Lindt & Sprüngli I; Nestlé, p. 3; Hershey
CSR, p. 41]. Given the widespread application of the ISO 14001 rules and the importance of ecolabels on the
market for sustainable goods, any reasonable business in the place of CLAIMANT would, firstly, have made
sure that it manages its business in a sustainable way in accordance with ISO 14001. Secondly, to make sure
that its supplier also acts in accordance with those rules, a reasonable third person would have followed
verification procedures, in line with the practices applied by ecolabel organizations. In contrast, given that
even big players on the market run their business focusing on those ecolabels and ISO rules, it would be
unreasonable to expect a middle-sized company such as CLAIMANT to do more, for example by creating its
own, more extensive control mechanism.
128 In conclusion, using its best efforts means to follow international practice relating to business management
and the ecolabeling of sustainable goods, which CLAIMANT complied with.
2. CLAIMANT complied with the practice in the international trade of sustainable goods by
following verification procedures
129 CLAIMANT fulfilled its obligation of best efforts by complying with international practice. Firstly, it is not
disputed that CLAIMANT leads its business in a sustainable way. Secondly, CLAIMANT will demonstrate that it
took the appropriate steps to ascertain that its supplier also led its business in a sustainable way. Business
standards such as the ISO 14000 series and ISO 26000, as well as ecolabels such as Rainforest, Fairtrade and
UTZ, provide for steps to be taken in order to verify that the traded goods are sustainable, and, in particular,
are not grown on land that was deforested. The producer must be able to show that it did not destroy a
protected area to grow his crops. The plantation should only be on agricultural land [Fairtrade Standards, p. 50],
or on land that was not deforested in the five years preceding the application for an ecolabel [SAN, p. 38].
130 CLAIMANT made sure that the cocoa was grown on land managed sustainably. The farmers had certificates
issued by the government, which proved that the land was agricultural [Exh. C7, p. 19]. Moreover, Theobroma
cacao, the tree on which cocoa beans grow, takes about five years to bear pods and ten years to reach its prime
production stage [cf. Belitz et al., p. 960; Lewis/Berry, p. 150; Fernandez, p. 243]. Consequently, by the time the
Cocoa Supplier started its deliveries to CLAIMANT, as the trees were already producing cocoa, at least five
years must have elapsed since they were planted. CLAIMANT thus knew that the land could not have been
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Memorandum for CLAIMANT Arguments
deforested for the past five years. Therefore, CLAIMANT took all the appropriate steps to make sure that the
land was sustainably managed.
131 Moreover, ecolabels provide that audits must be performed. Those must be carried out once every year [UTZ
Certification Protocol, p. 15; SAN Certification Rules, p. 12] or twice every three years [Fairtrade Website]. In
addition to audits, companies place a high importance on self-assessments, which statistically are performed
more often that audits [Peterkova Mitkidis, p. 211].
132 CLAIMANT organized one thorough audit of its Cocoa Supplier in 2014 and required its supplier to submit
self-assessment questionnaires on a regular basis [PO2, p. 53 §32]. Further, the Cocoa Supplier had a good
reputation on the market, which demonstrates other buyers’ trust in the Cocoa Supplier’s practice [ibid.].
133 In conclusion, CLAIMANT acted as a reasonable third person in the same circumstances would have, as it
complied with the international practice usual in its industry. CLAIMANT had taken the steps which could
reasonably be expected from it, and thus complied with its obligation of best efforts.
II. ADDITIONALLY, THE CHOCOLATE CAKES DELIVERED WERE CONFORMING [ART. 35(2) CISG]
134 Pursuant to Art. 35 CISG, goods must not only comply with the contractual requirements the parties agreed
on, but they must also be fit for the purpose made known by the buyer, unless it was unreasonable for him to
rely on the seller’s skill to meet those expectations. In casu, the cakes were in conformity with the contractual
requirements [supra §106]. Additionally, they fit the purpose made known by RESPONDENT (A).
Alternatively, RESPONDENT could not have expected CLAIMANT, a baker, to verify the entire supply chain (B).
A. THE CHOCOLATE CAKES WERE FIT FOR THE PURPOSE OF RESALE [ART. 35(2)(b) AB INITIO CISG]
135 Goods are conforming if they are fit for the purpose made known by the buyer at the time of conclusion of
the contract [Art. 35(2)(b) ab initio CISG; Schlechtriem/Schwenzer, p. 606; Enderlein/Maskow, p. 145;
DiMatteo et al., p. 396; Coin machine case; Rijn Blend case]. Despite RESPONDENT’s recent allegations that its
purpose was to acquire sustainable cakes [RNoA, p. 24 §1], CLAIMANT will demonstrate that RESPONDENT
only ever specified that it wanted for the cakes to be sellable in its supermarkets, a purpose that the chocolate
cakes indeed fit (1). Even if RESPONDENT’s purpose was to sell sustainable cakes, CLAIMANT fulfilled the
requirement (2).
1. CLAIMANT delivered cakes which fit RESPONDENT’s purpose to sell them in its supermarkets
136 When RESPONDENT met CLAIMANT, it presented itself as a gourmet supermarket chain [NoA, p. 4 §2].
RESPONDENT never specified, be it explicitly or implicitly, that its purpose was to sell sustainable chocolate
cakes. It merely stated that it wanted to sell CLAIMANT’s cakes in its supermarkets, a purpose that CLAIMANT
complied with. For a buyer to make a particular purpose known to the seller, he must do so in a clear enough
manner [Saidov, p. 80; Cloth case; ICC case No. 16561; CIETAC (1996)]. In the case at hand, RESPONDENT never
asserted to be specialized in the sale of sustainably produced goods. If it needed sustainable cakes to be able to
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Memorandum for CLAIMANT Arguments
sell them in its supermarkets, it should have clearly said so. Moreover, RESPONDENT alleges that the
advertising campaign on a “healthy, natural world” should have made CLAIMANT aware that it was required to
only provide RESPONDENT with sustainable cakes [RNoA, p. 25 §6]. Advertising campaigns are centered on a
segment of the advertiser’s supply. Typically, supermarkets advertise locally produced or organic products,
while also selling non-organic, imported goods [Migros commercial; Carrefour commercial; Lidl commercial]. Thus,
not all goods ultimately fit into the advertised concept. When it comes to chocolate cakes, these are high in
fat and sugar [Reedy/Krebs-Smith, p. 1480; Drewnowski, p. 348]. They surely are not the emblems of healthiness,
and this is why they often appear in anti-obesity campaigns [Safefood commercial; Strong4Life commercial]. It is
clear that chocolate cakes were not targeted by the healthy and sustainable advertising campaign. Therefore,
CLAIMANT could not have known that its cakes had to be sustainable to fit RESPONDENT’s requirements.
137 As RESPONDENT’s aim was to sell the cakes in its supermarkets, the goods had to be tradable and fit for
consumption, which in the food industry signifies that the goods must be edible [NZ mussels case; Shoes case]. In
casu, even after RESPONDENT learned about the true origin of the cocoa, it decided to use them to advertise its
newly opened supermarkets [PO2, p. 54 §38]. This shows that the cakes perfectly fit RESPONDENT’s product
line [cf. Doors case]. Moreover, RESPONDENT had sold 100’000 cakes each week during nearly three years [Exh.
C4, p. 16; NoA, p. 5]. In view of the above, RESPONDENT itself considered the cakes to be fit for sale in its
supermarkets.
138 Consequently, CLAIMANT delivered cakes, which fit the purpose made known by RESPONDENT.
2. Even if RESPONDENT had made known to CLAIMANT that the cakes had to be sustainable, the
cakes complied with that purpose
139 CLAIMANT delivered cakes, which could be sold in supermarkets selling sustainable goods.
140 Ecolabels typically award their label even when not all ingredients are sustainable, when only some
ingredients are, or when only part of an ingredient is [Fairtrade USA Website; Council Regulation (EC), §25].
141 In the case at hand, the chocolate cakes contained at least 50% of sustainable cocoa [PO2, p. 54 §41].
Moreover, cakes contain predominantly flour and sugar, the sustainability of which is not disputed.
Consequently, the cake would be eligible to receive an ecolabel as it was for the most part sustainable. Under
the present circumstances, CLAIMANT’s cakes thus match the purpose of sustainability.
B. ALTERNATIVELY, RESPONDENT COULD NOT HAVE EXPECTED CLAIMANT, A BAKER, TO VERIFY THE
ENTIRE SUPPLY CHAIN [ART. 35(2)(b) IN FINE CISG]
142 If the Tribunal were to consider that the cakes do not fulfill the purpose of resale in RESPONDENT’s
supermarket, it would have to hold that RESPONDENT could not have reasonably relied on a baker to verify
the entire supply chain. Indeed, CLAIMANT had only limited control over the production process of the cocoa
(1) and its domain of expertise is not sustainable farming (2).
33
Memorandum for CLAIMANT Arguments
34
Memorandum for CLAIMANT Arguments
conclusion, CLAIMANT is not specialized in the trade of sustainable cocoa and it was thus unreasonable of
RESPONDENT to expect a baker to verify the entire supply chain.
147 Consequently, the cakes delivered by CLAIMANT are conforming pursuant to Art. 35(2) CISG.
CONCLUSION ON ISSUE 4
148 RESPONDENT’s general conditions only provide for an obligation of best efforts, and CLAIMANT entirely
fulfilled that obligation when it selected and controlled its Cocoa Supplier. Moreover, CLAIMANT took all the
steps, which were required to deliver chocolate cakes fitting RESPONDENT’s demands. Therefore, CLAIMANT
delivered conforming goods.
CLAIMANT reserves the right to amend its prayer for relief as may be required.
35
Memorandum for CLAIMANT Table of Authorities
TABLE OF AUTHORITIES
Cited as Reference
XXXVI
Memorandum for CLAIMANT Table of Authorities
XXXVII
Memorandum for CLAIMANT Table of Authorities
Born III Born B. Gary, International Arbitration: Law and Practice, Kluwer
Law Intern (2016)
in: VAN DEN BERG Albert Jan, 15 ICCA Congress Series 2010,
Kluwer Law International (2011), pp. 65-113
Cited in: § 74
Boykin/Havalic BOYKIN H. James, HAVALIC Malik, Fruits of the Poisonous Tree: The
Admissibility of Unlawfully Obtained Evidence in International
Arbitration
XXXVIII
Memorandum for CLAIMANT Table of Authorities
Brekoulakis et al. BREKOULAKIS Stavros L., RIBEIRO John, et al., UNCITRAL Model
Law, Chapter V, Article 18 [Equal treatment of parties]
XXXIX
Memorandum for CLAIMANT Table of Authorities
Available at:
http://www.cisg.law.pace.edu/cisg/biblio/butler6.html
(consulted on 10 November 2017)
Caron/Caplan CARON David D., CAPLAN Lee M., The UNCITRAL Arbitration
Rules: a commentary, Second Edition, Oxford Commentaries on
International Law, 2013
XL
Memorandum for CLAIMANT Table of Authorities
CISG-AC 13 EISELEN Sieg, CISG-AC Opinion No. 13, Inclusion of Standard Terms
under the CISG, CISG Advisory Council (2013)
Commentary CISG draft Legislative history of CISG article 35: Secretariat Commentary,
UN DOC.A/CONF.97/5
in:
http://www.cisg.law.pace.edu/cisg/text/secomm/newsecom
m/secomm-35.html (consulted on 22 November 2017)
XLI
Memorandum for CLAIMANT Table of Authorities
Deloitte Report 2016 Deloitte, Developing legal talent Stepping into the future law firm,
Deloitte LLP (2016).
Available at:
https://www2.deloitte.com/content/dam/Deloitte/uk/Doc
uments/audit/deloitte-uk-developing-legal-talent-2016.pdf
(consulted on 4 December 2017)
XLII
Memorandum for CLAIMANT Table of Authorities
Digest CISG UNCITRAL Digest of Case Law on the United Nations Convention on
Contracts for the International Sale of Goods, United Nations
(2012)
Digest Model Law UNCITRAL Digest of Case law on the Model Law on International
Commercial Arbitration, United Nations (2012)
XLIII
Memorandum for CLAIMANT Table of Authorities
XLIV
Memorandum for CLAIMANT Table of Authorities
FAA Plain Language Order FAA Writing Standards, Order No. 1000.36, Department of
Transportation, Federal Aviation Administration (2003)
Available at:
https://www.faa.gov/documentlibrary/media/order/brandin
g_writing/order1000_36.pdf (consulted on 5 December 2017)
Federal Plain Language Guide Federal Plain Language Guide, Plain Language.gov (2011)
Available at:
https://www.plainlanguage.gov/media/FederalPLGuidelines.
pdf (consulted on 5 December 2017)
XLV
Memorandum for CLAIMANT Table of Authorities
Fiche Rome Pôle emploi, Fiche Rome D1102 – Boulangerie – Viennoiserie, Pôle
emploi (2017)
XLVI
Memorandum for CLAIMANT Table of Authorities
Forshaw FORSHAW Amy, Public Sector Bids vs Private Sector Bids, Executive
Compass (2017)
Available at:
https://www.cisg.law.pace.edu/cisg/biblio/giannini.html
(consulted on 24 November 2017)
XLVII
Memorandum for CLAIMANT Table of Authorities
XLVIII
Memorandum for CLAIMANT Table of Authorities
Hodges HODGES Paula, Chapter II: The Arbitrator and the Arbitration
Procedure, The Proliferation of “Soft Laws” in International
Arbitration: Time to Draw the Line?
XLIX
Memorandum for CLAIMANT Table of Authorities
Honnold HONNOLD John O., U, Uniform Law for International Sales under
the 1980 United Nations Convention, Third Edition, Kluwer Law
International (1999)
Available at:
http://www.cisg.law.pace.edu/cisg/biblio/honnold.html
(consulted on 1 November 2017)
Huber/Mullis HUBER Peter, MULLIS Alastair, The CISG: A new textbook for
students and practitioners, Sellier, European Law Publishers
(2007)
L
Memorandum for CLAIMANT Table of Authorities
Koh KOH Will Sheng Wilson, Think Quality Not Quantity: Repeat
Appointments and Arbitrator Challenges
LI
Memorandum for CLAIMANT Table of Authorities
LII
Memorandum for CLAIMANT Table of Authorities
LIII
Memorandum for CLAIMANT Table of Authorities
Available at:
http://cisgw3.law.pace.edu/cisg/biblio/lautenschlager.html
(consulted on 26 November 2017)
Le Club des Juristes Le Club des Juristes, Financement du procès par les tiers, Rapport
du Club des Juristes, Commission financement de procès par
les tiers (2014)
Leete LEETE Burt A., Formation under the United Nations Convention on
Contracts for the International Sale of Goods and the Uniform
Commercial Code: Pitfalls for the Unwary
LIV
Memorandum for CLAIMANT Table of Authorities
LV
Memorandum for CLAIMANT Table of Authorities
Available at:
https://www.cisg.law.pace.edu/cisg/biblio/magnus3.html
(consulted on 26 November 2017)
Magnus II Magnus Ulrich, Last Shot vs. Knock Out -- Still Battle over the Battle
of Forms Under the CISG
Available at:
https://www.cisg.law.pace.edu/cisg/biblio/magnus4.html
(consulted on 2 November 2017)
LVI
Memorandum for CLAIMANT Table of Authorities
Available at:
https://webcache.googleusercontent.com/search?q=cache:_c
ZUBeRFTRQJ:https://is.cuni.cz/webapps/zzp/download/12
0092625+&cd=1&hl=en&ct=clnk&gl=ch (consulted on 7
November 2017)
LVII
Memorandum for CLAIMANT Table of Authorities
LVIII
Memorandum for CLAIMANT Table of Authorities
Available at:
http://www.summitconnects.com/Articles_Columns/PDF_
Documents/060205.pdf (consulted on 23 November 2017)
Available at:
http://www.onisep.fr/content/download/791674/14940181
/file/Fiche_boulanger.pdf (consulted on 6 December 2017)
LIX
Memorandum for CLAIMANT Table of Authorities
LX
Memorandum for CLAIMANT Table of Authorities
LXI
Memorandum for CLAIMANT Table of Authorities
Report of the NY Bar Committee Report of the International Commercial Disputes Committee
Of the New York City Bar Association, Advance waivers of
Arbitrator conflicts of interest in International Commercial Arbitrations
seated in New York, New York City Bar (2013)
LXII
Memorandum for CLAIMANT Table of Authorities
Sanders SANDERS Pieter, Procedures and Practices under the UNCITRAL Rules
LXIII
Memorandum for CLAIMANT Table of Authorities
Cited in: §§14, 17, 19, 23, 80, 81, 85, 89, 94, 97, 98, 101,
103, 104, 135
LXIV
Memorandum for CLAIMANT Table of Authorities
Sidwell et al. SIDWELL A. C., BUDIAWAN D., MA T., The significance of the
tendering contract on the opportunities for clients to encourage
contractor led innovation
LXV
Memorandum for CLAIMANT Table of Authorities
LXVI
Memorandum for CLAIMANT Table of Authorities
Tadelis TADELIS Steven, Public procurement design: Lessons from the private
sector (2012)
Available at:
http://faculty.haas.berkeley.edu/stadelis/Pub_Proc_Des.pdf
(consulted on 23 November 2017)
LXVII
Memorandum for CLAIMANT Table of Authorities
Available at:
http://www.uncitral.org/uncitral/en/commission/sessions/1
8th.html (consulted on 29 October 2017)
Cited in: §30
LXVIII
Memorandum for CLAIMANT Table of Authorities
LXIX
Memorandum for CLAIMANT Table of Authorities
Wilske/Stock WILSKE Stephan, STOCK Michael, Rule 3.3.7 of the IBA Guidelines
on Conflicts of Interest in International Arbitration – The Enlargement
of the Usual Shortlist?
Working Group Report (1984) United Nation Commission on International Trade Law,
Report of the Working Group on International Contract
Practice on the work of its seventh session25 June -13 July
1984, Doc. A /CN.9/246
Available at:
http://www.uncitral.org/uncitral/en/commission/sessions/1
7th.html (consulted on 2 November 2017)
LXX
Memorandum for CLAIMANT Table of Authorities
Working Group Report (1985) United Nation Commission on International Trade Law,
Analytical Commentary on draft text of a model law on
international commercial arbitration, Report of the Secretary-
General on the work of its eighteenth session, 3-21 June 1985,
Doc. A/CN.9/264
Available at:
http://www.uncitral.org/uncitral/en/commission/sessions/1
8th.html (consulted on 2 November 2017)
Cited in: §31, 41
LXXI
Memorandum for CLAIMANT Table of Arbitral Awards
Cited as Reference
AD HOC ARBITRATION
LXXII
Memorandum for CLAIMANT Table of Arbitral Awards
LXXIII
Memorandum for CLAIMANT Table of Arbitral Awards
LXXIV
Memorandum for CLAIMANT Table of Arbitral Awards
LXXV
Memorandum for CLAIMANT Table of Arbitral Awards
LXXVI
Memorandum for CLAIMANT Table of Arbitral Awards
Mobil Oil Iran case Case Nos. 74. 76, 81 and 150
Mobil Sales and Supply Corporation and others v. Government of The
Islamic Republic of Iran, National Iranian Oil Company
14 July 1987
Cited in: §21
LXXVII
Memorandum for CLAIMANT Table of Arbitral Awards
LXXVIII
Memorandum for CLAIMANT Table of Court Decisions
Cited as Reference
AUSTRALIA
Cubic Transportations case Supreme Court of New South Wales, Common Law Division
Cubic Transportations Systems Inc & Anor v. State of New South
Wales
26 July 2002
Case No.: NSWSC 656
Cited in: §92
LXXIX
Memorandum for CLAIMANT Table of Court Decisions
AUSTRIA
BELGIUM
LXXX
Memorandum for CLAIMANT Table of Court Decisions
CANADA
ENGLAND
LXXXI
Memorandum for CLAIMANT Table of Court Decisions
Cofely v. Bingham The High Court of Justice Queen’s Bench Division (Commercial
Court)
Cofely Limited v. Anthony Bingham et al.
17 February 2016
Cited in: §§41, 61
Fileturn case The High Court of Justice Queen’s Bench Division (Technology
and Construction Court)
Fileturn Ltd v. Royal Garden Hotel Ltd
13 July 2010
Case No. [2010] EWHC 1736 (TCC)
Cited in: §61
LXXXII
Memorandum for CLAIMANT Table of Court Decisions
Sierra Fishing case The High Court of Justice Queen’s Bench Division (Commercial
Court)
Sierra Fishing Co v. Farran
30 January 2015
Case No. EWHC 140
Cited in: §41
W v. M SDN BHD The High Court of Justice Queen’s Bench Division (Commercial
Court)
W Limited v. M SDN BHD
16 December 2015
Case No. EWHC 422
Cited in: §60
FINLAND
LXXXIII
Memorandum for CLAIMANT Table of Court Decisions
FRANCE
Dutco case BKMI and Siemens v. Dutco, Cour de Cassation [(Supreme Court])
BKMI and Siemens v. Dutco
7 January 1992
Cited in: §§33, 37, 38
LXXXIV
Memorandum for CLAIMANT Table of Court Decisions
GERMANY
LXXXV
Memorandum for CLAIMANT Table of Court Decisions
LXXXVI
Memorandum for CLAIMANT Table of Court Decisions
NETHERLANDS
LXXXVII
Memorandum for CLAIMANT Table of Court Decisions
NEW ZEALAND
Pratt v. Transit Privy Council from the Court of Appeal of New Zealand
Pratt Contractors Ltd v Transit New Zealand
1 December 2003
Case No. [2005] 2 NZLR 433
Cited in: §§81, 92
LXXXVIII
Memorandum for CLAIMANT Table of Court Decisions
Shivas case Shivas & Westmark Investments Ltd v. BTR Nylex Holdings NZ
Limited & Ors
1997
Case No. 1 NZLR 318 (HC)
Cited in: §81
PORTUGAL
SPAIN
LXXXIX
Memorandum for CLAIMANT Table of Court Decisions
SWITZERLAND
XC
Memorandum for CLAIMANT Table of Court Decisions
XCI
Memorandum for CLAIMANT Table of Court Decisions
UNITED KINGDOM
XCII
Memorandum for CLAIMANT Table of Court Decisions
Sheffield District Railway case Sheffield District Railway Co. v. Great Central Railway Co.
1911
Case No. [1911] 27 T.L.R. 451
Cited in: §125
Swidler & Berlin v. US The United States Court of Appeals for the District of Columbia
Circuit
Swidler & Berlin et al. v. United States
25 June 1998
Case No. [1998] 524.U.S.399
Cited in: §74
UNITED STATES
XCIII
Memorandum for CLAIMANT Table of Court Decisions
Footware case US District Court for the Southern District of New York
Filanto S.p.A. v. Chilewich Int'l Corp.
14 April 1992
Case No. 91 CIV 3253 (CLB)
in: CISG-online 45
Cited in: §101
XCIV
Memorandum for CLAIMANT Table of Court Decisions
Hester v. Nigeria The United States Court of Appeals for The Fifth Circuit
Hester International Corporation v. Federal Republic of Nigeria
9 August 1989
Case No. 88-4178, 88-4219; 879 F.2d 170
Cited in: §48
InterGen v. Grina The United States Court of Appeals for The First Circuit
InterGen N.V. v. Eric F. Grina, Alstom (Switzerland) Limited,
and Alstom Power NV
22 September 2003
Case No. 03-1056; 344 F. 3d 134
Cited in: §48
LTV case US District Court for the Southern District of New York
LTV Aerospace and Defense Co. v. Thomson
30 July 1996
Case No. 198 B.R. 848
Cited in: §125
XCV
Memorandum for CLAIMANT Table of Court Decisions
Perma Research case US District Court for the Southern District of New York
Perma Research & Development Company v. Singer Company
27 January 1970
Case No. 66 Civ. 665
Cited in: §125
XCVI
Memorandum for CLAIMANT Table of Court Decisions
Sarhank case The United States Court of Appeals for The Second Circuit
Sarhank Group v. Oracle Corporation
14 April 2005
Case No. 02-9383; 404 F.3d 657
Cited in: §48
STMicroelectronics case The United States Court of Appeals for The Second Circuit
StMicroelectronics N.V. v. Credit Suisse Securities (USA) LLC
2 June 2011
Docket No. 10-3847-cv
Cited in: §63
Triple-A Baseball Club case US District Court for the District of Maine
Triple-A Baseball Club Associates v. Northeastern Baseball Inc.
20 February 1987
Case No. 655 F.Supp.513
Cited in: §125
US v. Bestfood The United States Court of Appeals for The Sixth Circuit
United States v. Bestfoods et al.
8 June 1998
Case No. 97-545
Cited in: §48
XCVII
Memorandum for CLAIMANT Other sources
OTHER SOURCES
Cited as Reference
Available at:
https://www.youtube.com/watch?v=BHiCqf3rfpQ
(consulted on 6 November)
Available at:
https://data.worldbank.org/indicator/IQ.CPA.TRAN.XQ
(consulted on 23 November 2017)
Available at:
https://www.fairtrade.net/fileadmin/user_upload/content/2
009/standards/documents/HL_EN.pdf (consulted on 3
November 2017)
XCVIII
Memorandum for CLAIMANT Other sources
Available at:
https://www.fairtradecertified.org/business/multiple-
ingredient-product-policy (consulted on 2 November 2017)
Available at:
https://www.fairtrade.net/pl/producers/certifying-
producers.html (consulted on 4 November 2017)
Available at:
https://www.thehersheycompany.com/content/dam/corpora
te-us/documents/csr-reports/2016-hershey-csr-report-
detail.pdf (consulted on 22 October 2017)
XCIX
Memorandum for CLAIMANT Other sources
Available at:
https://www.youtube.com/watch?v=JaoVLC29eDk
(consulted on 6 November 2017)
Lindt & Sprüngli I Lindt & Sprüngli Farming Program, Verification Guidance
Document, August (2016)
C
Memorandum for CLAIMANT Other sources
Available at:
http://www.rspo.org/acop/2014b/lindt-and-sprungli-ag/M-
Policies-to-PNC-laborrights.pdf (consulted on 7 November
2016)
Available at:
https://www.youtube.com/watch?v=e4fLlruoMzg&feature=y
outu.be (consulted on 6 November)
CI
Memorandum for CLAIMANT Other sources
Available at:
https://www.dropbox.com/s/hxwm1udqyha20c8/SAN-
Standard-2017.pdf?dl=0 (consulted on 2 November 2017)
CII
Memorandum for CLAIMANT Other sources
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https://www.dropbox.com/s/dq4ah48itjjzfsn/SAN%20Certif
ication%20Rules.pdf?dl=0 (consulted on 3 November 2017)
Available at:
https://www.youtube.com/watch?v=xUmp67YDlHY
(consulted on 5 November 2017)
Available at:
https://www.transparency.org/news/feature/corruption_per
ceptions_index_2016 (consulted on 24 November 2017)
CIII
Memorandum for CLAIMANT Other sources
CIV
Memorandum for CLAIMANT Certificate
CERTIFICATE
We hereby certify that this Memorandum was written only by the persons whose names are listed below
and who signed this certificate:
CV