Issue M: Do the facts of the case represent hardship under clause 12 of the

Frozen Semen Sales Agreement or under the CISG? (no need to discuss the
availability of the remedy of adaptation)

Law is founded on common sense. R. v. Mahony, 183

A. Regarding the issue M, we shall work as follows:

Our task, as CLAIMANT, is to demonstrate that our situation matches the

conditions of hardship as these are outlined in the Frozen Semen Sales Agreement
and in the CISG. To do this, we shall look at our contract, then look at one
internationally recognized definition of hardship, see if they match, then we shall
look at the conditions CISG for hardship and see if they march again. This double
match, speaking of horse breeding, by the way, would lead us to a firm
demonstration.

Now, just as a joke, you know the famous quote with America first, we might as
well say the contract first, and the convention second. So first, we shall look at
the contract.

B. First step:

In our text, art 12 of the Agreeent, we have two distinct situations. The first is
similar to a force majeur, that is the seller is not responsible, that is he cannot
respond or and cannot be forced to undertake any suplimentary costs, in case of
lost semen shipments or delays in delivery not within the control of the Seller
such as missed flights, weather delays, failure of third party service, or acts of
God.

The second tells us that the seller is exonerated from any task, any suplimenary
cost and so on in case of hardship, caused by additional health and safety
requirements or comparable unforeseen events making the contract more
onerous. The conditions stem naturally here: a comparable unforeseen event,
the contract becomes more onerous.

C. Second step:
The UNIDROIT Principles of International Commercial Contracts, in art.
6.2.2 define hardship as
 occurrence of events fundamentally alters the equilibrium of the contract
either because the cost of a party's performance has increased or because
the value of the performance a party receives has diminished, and (a) the
events occur or become known to the disadvantaged party after the
conclusion of the contract; (b) the events could not reasonably have been
taken into account by the disadvantaged party at the time of the conclusion
of the contract; (c) the events are beyond the control of the disadvantaged
party; and (d) the risk of the events was not assumed by the disadvantaged
party."

D. A careful read of the mail of Mrs Napravnik tells us:

At inimum, a harship clause should be included into the contract to
address such subsequent changes.

It is clear then that the very reason of the introduction of the 12 clause was
to protect the seller from being obliged to undertake excessive means that
would destroy the commercial basis of the contract.

Respondent’s assumption that we have no hardship in that clause would

simply make that clause inapplicable, thus devoiding it of any practical
finality.
E.

Frozen Semen Sales Agreement, art. 12

12. Seller shall not be responsible for lost semen shipments or delays in delivery
not within the control of the Seller such as missed flights, weather delays, failure
of third party service, or acts of God neither for hardship, caused by additional
health and safety requirements or comparable unforeseen events making the
contract more onerous.

Respondent argued that the parties excluded the application of art. 79 CISG due
to the inclusion of a hardship clause into the Contract [ANoA, p. 32, par. 20].
However, no derogation under art. 6 CISG can be alleged, because clause 12 of
the Contract does not exclude the application of art. 79 CISG, but only clarifies the
latter’s scope of application.
Conditions:

a. an external event; imposition of an import tariff that comes 8 months after

conclusion of the Contract
b. a fundamental
alteration of the The loss is double the profit CLAIMANT expected, an
equilibrium of the alteration that amounts to 200%. This destroyed the
contract ; commercial basis of the contract.

c. the cost on one The cost of CL performance has increased by 30%.

party’s performance
has increased,
making the contract
more onerous;

Naturally, the main principle is the traditional doctrine of "pacta sunt servanda",
i.e. a contract shall be fulfilled as the parties have agreed. The only Article in the
CISG that regulates changed circumstances is Article 79. Hence, all situations of
hardship must be evaluated on the basis of Article 79 or be treated as a breach
of contract. The CISG does not seem to have any provision that would allow a
different solution than the ones mentioned above. (from Nordic Journal of
Commercial Law (2006/1), Changed Circumstances and Hardship in the
International Sale of Goods, by Niklas Lindström)

CISG, art. 79 (1)

A party is not liable for a failure to perform any of his obligations if he proves that
the failure was due to an impediment beyond his control and that he could not
reasonably be expected to have taken the impediment into account at the time of
the conclusion of the contract or to have avoided or overcome it or its
consequences.

Conditions:
1) an impediment
something which makes the
performance objectively
impossible can constitute an
impediment.
impossibilium nulla obligatio est
2) beyond control
Hence, a party's actual
possibility to control events is
irrelevant. What matters is what
kind of events a party normally
can control. An event
constituting an impediment
beyond control must be of a
type that is uncontrollable. Only
events outside a party's sphere
of control can be regarded as
relevant grounds for an
exemption.

3) that could not reasonably have

been taken into account at the
time of the conclusion of the
contract = UNFORESEEABILITY

Stoll and Gruber point out,

however, that since virtually all
events are theoretically
foreseeable it would be wrong
to interpret Article 79 purely
empirically. Instead, the
scholars argue that the question
of foreseeability is one about
what a party reasonably could
foresee. Thereby the scholars
give their support to the view
that also this element of Article
79 requires an evaluation of
reasonability. The scholars
argue that Article 79 expresses
an allocation of risk for the
completion of the contract.
According to this, the notion of
unforeseeability ought to be
understood in the following
way: Should a party under
conditions prevailing at the time
of the conclusion of the
 contract and taking into account
the trade usage within a
particular branch have foreseen
that an impediment exists or
that an impediment will occur?

4) the consequences of which

could not have been avoided or
overcome. = AVOIDANCE
Issue P: Should Claimant be allowed to submit evidence from the other
arbitration in front of the Hong Kong International Arbitration Center to which
Respondent is a party, on the assumption that it is undisputed that the evidence
was obtained either through a breach of confidentiality or through a hack of
Respondent’s computer systems?

Apart from being about conditions, law is also about hard choices. It is
about putting to balance the unweighable and trying to have the best
choice out of the hardest. Given this, we shall go as follows...

1. First step> Analyse relevant law sources. And these are two: HKIAC 2018
and IBA Rules on the
The standard for submitting evidence is provided by art. 22.2 HKIAC
Rules, which states that this Tribunal shall have the power “to
determine the admissibility, relevance, materiality and weight of
the evidence, including whether to apply strict rules of evidence”
Arbitral tribunals have broad discretion to determine the
admissibility of evidence and are not bound by strict rules [Guide to
HKIAC Rules, p. 191, par. 9153].

The IBA Rules, even though they are not binding, are commonly adopted or
referred to in HKIAC arbitration [Guide to HKIAC Rules, p. 191, par. 9155].
Art. 9(2)(b) IBA Rules mentions that the arbitral tribunal “shall, at the
request of a Party or on its own motion, exclude from evidence or
production any Document, statement, oral testimony or inspection for any
of the following reasons: [...] (b) legal impediment or privilege under the
legal or ethical rules determined by the Arbitral Tribunal to be applicable”.

1. As we can see, there is no strict interdiction or imperative stipulation on

what can or cannot be admitted. It is mostly for the Tribunal to decide

2. Claimant will first argue that the evidence is admissible irrespective of the
fact that it was obtained through a breach of confidentiality or through an
illegal hack (I), and second, that the evidence fulfils the criteria of
relevance, materiality and weight (II). Hence the claimant should be
allowed to come up with this sort of evidence.
3. Many speak in this sense about the clean hands doctrine. But what is the
use of clean hands if one cannot dispose properly of his right with thes very
hands?

You see, at this point we are obliged to put to balance some moral
imperative regarding the idea of confidentiality and the interdiction to steal
(assumimg hack is also a theft) and, on the other hand, the importance of
finding the truth, the impearativ of bringing equity into a situation?

In this sense, we must see that the way the information was obtained is
harmful in only a small way and only to a ceratin group of people.
Common sense leads us to the natural conclusion that it is far more
important to determine the right thing to do in this very sutuation.

This is the argument of the even balance.

4. Moreover, when we put to balance the two things we see that the Partial
Interim Award from the other arbitral procedure contains no esentially
secret information, no things that

5. It goes without saying that we also put in balance an individual interest

with a general one. The last is of course the interest for the HKIAC to have a
uniform policy on conflict solution.

The evidence could prove instrumental to establish the practice of HKIAC

tribunals, an important goal in light of the principle of uniformity and
predictability in international arbitration practice [see infra, par. 124-127].