Mzumbe Team 1 Memorandum for Claimant

2023 ALFRED DEAKIN INTERNATIONAL COMMERCIAL ARBITRATION MOOT

MZUMBE TEAM 1

MEMORANDUM FOR CLAIMANT

On behalf of: Against:

YTZ shoes & Accessories Pte Ltd
Trans-Pacific Import & Export Ltd

Level 5-7, 1001 Winford Road, Levels 5-9, Jelutong Road,

Wentworth, Victoria Island. Ranan, Breynia.

CLAIMANT RESPONDENT

2023
Mzumbe Team 1 Memorandum for Claimant

A: THE TRIBUNAL SHOULD ORDER THE RESPONDENT TO PRODUCE MR.

TRAN’S TEXT MESSAGE HISTORY.

I: The text message was validly replied by the respondent showing a sign of acknowledgement
of receipt.

1. CLAIMANT respectfully submits that the RESPONDENT replied to her text messages
confirming the details of the purchase transaction. (Ex.C2, para.10 p.4: Witness Statement).

2. Any written communication is deemed to have been received at place of business, residence,
or mail address; also, any other means which provides a record of the attempt hi deliver it. 1

3. The Arbitral Tribunal may order a party to produce a document if it sufficiently details subject
matter and if it is in electronic form it shall be required to identify specific files, or other means
of searching the document.2

4. In the case of Islamic Republic of Pakistan v Arnold and Porte Kay Scholer 3, the tribunal
identified that it has power to for seeking evidence to the parties including electronic evidence,
or documents relating to the subject matter.

5. The rule applies in this case since the claimant has no access to the text messages due to the
technical problems beyond her will then the tribunal can request the respondent to provide the
text history to prove on the fact of receiving and retrieving regardless of the default. This can be
identified also in the case of Aeryon Labs Inc. v Datron World Communications4 where the
tribunal ordered the retrieving of all documents.

6. Therefore, the CLAIMANT submits that she provided sufficient details of the transaction and
sent it to the respondent, and the respondent did reply the text message concerning the
transaction inspite of a different number from the claimant, this sufficiently shows the existence
of communication between the parties. The tribunal should request the retrieving of the
RESPONDENT’S text messages.

1
Article 3 (1) (a) of UNICITRAL Model Law
2
Article 3 (2) and (3)(a) of the IBA rules on taking evidence in international arbitration 2020
3
LLP D.D.C 10, 2019
4
(S.D Cal. 2020)
Mzumbe Team 1 Memorandum for Claimant

B. THE TRIBUNAL HAS JURISDICTION TO HEAR THE MATTER EVEN WITHOUT

THE PROOF OF TEXT MESSAGES.

I:The arbitration clause was validly incorporated in the agreement through previous dealings
between the parties.

7. CLAIMANT respectfully submits that the arbitration clause was validly incorporated in the
agreement in case of any dispute between them referring to the previous dealings between the
parties on the purchase order where the claimant, preferred arbitration in case of any disputes.
(Ex.C1 p.6).

8. An arbitration agreement is an agreement by the parties to submit their disputes between them
on arbitration and the agreement can be a clause in the contract or a separate document. 5

9. In the case of Thyssen Canada Ltd v Mariana Maritime S.A, 6 the dispute between the parties
was settled in the arbitration tribunal and not the court due to the incorporation of the arbitration
clause in the agreement, hence giving the tribunal the jurisdiction to hear the matter.

10. The Arbitral Tribunal may rule in its own jurisdiction, including any objections with respect
to the existence or validity of the arbitration agreement. Moreover, the arbitration clause is an
independent clause in the agreement of the other terms. 7. The power conferred upon the tribunal
includes the power to determine admissibility and weight of evidence8.

11. The CLAIMANT incorporated the arbitration clause by way of a written document in the
previous dealings of the purchase order made. These dealings verify the inclusion of arbitration
clause in the settling of the disputes between the parties in the existing case. The (Ex.C1 p.6)
vividly renders an arbitration clause to other future agreements including the existing one.

12. Therefore, the CLAIMANT respectfully submits that since the arbitration clause was
incorporated in the previous dealings with the respondent, then it also applies to the existing
dealing, inspite of inexistence of a text message to show the inclusion of the arbitration clause.

C: THE CONTRACT OF SALE OF GOODS HAS BEEN FORMED UNDER THE APPLICABILITY OF CISG
5
Article 7 of the UNICITRAL Model Law
6
(1999)167 F.T.R. 105 (TD)
7
Article 16 of the UNICITRAL Model law
8
Jacob Dollinger International Commercial Arbitration, State University of Rio de Janeiro.
Mzumbe Team 1 Memorandum for Claimant

The contract was valid formed under the application of the CISG

1. CLAIMANT respectfully submits that there is a valid Sale of Goods contract

formed between the parties which is according to [Exh. C1, Para.5, page.3]
of the Purchase Order 2016

2. Any written submission as to the essence of the contact of sale of goods, it

clearly show that the parties will only be bound by the rules which they
established between themselves.9

3. By the reason, the contract has been formed and concluded when the offeree
communicate clear assent to the terms. Also there is no need or evidence by
writing and is no subjected to any requirement as to form needed. But it may
be proved by any means, including witnesses.10

4. As per the current case, the respondent show the real communication of
acceptance through his email exchange to the third person (Triumph).

5. The reason why there the contract of sale could be formed is that, the above
provision carries the required element of the agreement to be valid contract
without even the proper form. That is to say, offer must be there, parties,
intention on legal relation and the acceptance after it reaches the offeree.
Which according to the scenario, both of them are there. Example as to the
case of J. Jarvis & Sons Ltd v. Blue Circle Dartford Estate Ltd.11

6. Lastly, Claimant respectfully submit that there is all reasonable cause for
this tribunal to recognize the format of the contract as applied by the rules of
the CISG to resolve the dispute which are in disputed.

D: THE CLAIMANT’S REJECTION OF THE GOODS COULD BE UPHELD

The aspect of the claimant rejection the CISG requires the rejection of non- conforming goods

9
Article 9 (1) of the CISG
10
Article 11 of the CISG
11
[2007] BLR 439
Mzumbe Team 1 Memorandum for Claimant

7. CLAIMANT respectfully submit that by being left with no option to bring

such rejection as per the incorporation of the transaction made under the
applicability of the CISG, as explained in [Exh. C3, Para.12, page. 4]

8. Aspect of the additional or different terms relating otherwise per the contract
or agreement, then such aspect the settlement of such dispute are considered
to alter the terms of the offer materially.12

9. As long as the matter of rejection is based on the conformity of the goods

and third-party claims, which mandate the seller to deliver the goods as per
the manner require by the contract.13 And as long as to [Exh. C1] which
show and cementing by another agreement they entered on the second order
on 17 June 2022, [Para, 9. Page. 3]

10. Since the claimant is the one who supply such good and the triumph is the
buyer, then they have power to examine the goods and report to the seller
within a reasonable time.14 As been made under [Exh. C3, para. 12. Page 4]

11. The application of the rule above explain and support the argument on the
issue that, the claimants rejection could be upheld, the buyer may declare the
contract avoided, by the failure by the seller to perform any of his
obligations under the contract.15

12.So, the claimant respectfully through under the application of the CISG,
request this tribunal to uphold such rejection of the goods and grant the
appropriate relief on the performance of the duty by the respondent as
required by the contract.

12
Article 19 (3) of the CISG
13
Article 35 (1) of the CISG
14
Article 38 (1) of the CISG
15
Article 49 (1) of the CISG
Mzumbe Team 1 Memorandum for Claimant

BIBLIOGRAPHY

A. ARTICLES

Jacob Dollinger, International Commercial Arbitration, State University of Rio de Janeiro,

www.hyahn.org , Retrieved on 30th July, 2023

B. CASES

J. Jarvis & Sons Ltd v. Blue Circle Dartford Estate Ltd, [2007] BLR 439

Aeryon Labs Inc. v Datron World Communications (S.D Cal. 2020)

Islamic Republic of Pakistan v Arnold and Porte Kay Scholer (LLP D.D.C 10, 2019)

Thyssen Canada Ltd v Mariana Maritime S.A (1999)167 F.T.R. 105 (TD)

C. LEGISLATIONS

UNCITRAL Model Law on International Commercial Arbitration

IBA Rules on Taking Evidence in International Arbitration 2020