Team Code: 14A: Before The

TEAM CODE: 14A
THE 3RD NLIU-JUSTICE R.K. TANKHA MEMORIAL INTERNATIONAL MOOT

COURT COMEPTITION, 2018
Before the
INTERNATIONAL CHAMBER OF COMMERCE ARBITRAL TRIBUNAL AT

LAKE CITY, CENTRAL PROVINCE
ANTARIA INTERNATIONAL INC.
CLAIMANT
v.
RACONIAN DEFENCE TECHNOLOGIES LTD.
RESPONDENT
MEMORANDUM FOR CLAIMANT

MEMORANDUM FOR CLAIMANT TABLE OF CONTENTS
TABLE OF CONTENTS
TABLE OF ABBREVIATIONS .......................................................................................... IV
INDEX OF AUTHORITIES ................................................................................................ VI
STATEMENT OF JURISDICTION .................................................................................. XII
STATEMENT OF FACTS ................................................................................................ XIII
ISSUES RAISED................................................................................................................ XVI
SUMMARY OF ARGUMENTS ...................................................................................... XVII
ARGUMENTS ADVANCED .................................................................................................. 1
ISSUE 1: THE EXPEDITED PROCEDURE PROVISIONS U/ART. 30 WILL APPLY .. 1
A. EXPEDITED PROCEDURE PROVISIONS U/ART. 30 WILL APPLY IN ACCORDANCE WITH
ART. 6(1) OF THE ICC ARBITRATION RULES 2012 .......................................................... 1
I. Parties intended to be governed by the expedited procedure at the time of conclusion

of the Contract................................................................................................................ 2
II. Subsequent conduct of RESPONDENT confirms its original intention ............................ 3
III. Application of Art. 30 is to be upheld as per the principle of party autonomy ............. 3
i. Parties have agreed to the application of Expedited Procedure Provisions u/Art.

30(2) (b) ..................................................................................................................... 4
ii. Alternatively, the Tribunal must act in the spirit of the Rules ................................... 4
B. APPLICATION OF THE EXPEDITED PROCEDURE PROVISIONS WILL NOT VIOLATE THE
DUE PROCESS ..................................................................................................................... 5
ISSUE 2: TESTIMONY OF MR. ANTONY MARTYR SHOULD NOT BE RECORDED

................................................................................................................................................ 6
A. THE TRIBUNAL HAS THE POWER TO EXCLUDE EVIDENCE................................................ 6
B. THE TESTIMONY OF MR. ANTONY MARTYR IS NOT ADMISSIBLE IN THE PRESENT
CASE... ................................................................................................................................ 7
I. The testimony of Mr. Martyr is irrelevant to the case ................................................... 7
II. The testimony of Mr. Martyr is not material to the outcome of the case ...................... 9
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III. The request for the testimony is merely a fishing expedition ...................................... 10
C. EXCLUSION OF EVIDENCE WOULD NOT VIOLATE DUE PROCESS .................................... 11
D. THE TRIBUNAL HAS AN OBLIGATION TO CONDUCT THE ARBITRATION
EXPEDITIOUSLY... ............................................................................................................ 11
ISSUE 3: RESPONDENT HAS NOT LEGALLY AVOIDED THE CONTRACT ........... 12
A. CLAIMANT HAS DULY PERFORMED ITS OBLIGATIONS UNDER THE CONTRACT ............. 12
B. THE ALLEGED BREACH DOES NOT CONSTITUTE FUNDAMENTAL BREACH U/ART.
25………………………………………………………………………………………..13
I. The breach did not cause substantial deprivation ........................................................ 13
II. The substantial deprivation was not foreseeable ......................................................... 14
C. RESPONDENT’S OMISSION HAS LED TO THE FAILURE OF PERFORMANCE BY
CLAIMANT... .................................................................................................................... 15
I. RESPONDENT has breached its duty to cooperate ......................................................... 15
II. RESPONDENT breached its obligation to provide an opportunity to cure the non-
conformity .................................................................................................................... 16
i. CLAIMANT had the right to cure the lack of conformity .......................................... 17
ii. RESPONDENT failed to notify about the non-conformity .......................................... 17
ISSUE 4: RESPONDENT IS NOT ENTITLED FOR COMPENSATORY DAMAGES . 19
A. THE REQUIREMENTS FOR A CLAIM OF DAMAGES U/ART. 74 ARE NOT FULFILLED ........ 19
I. The loss suffered by RESPONDENT has not been caused by the alleged breach of
CLAIMANT .................................................................................................................... 19
II. The loss was not foreseeable........................................................................................ 20
III. RESPONDENT did not prove its losses with reasonable certainty.................................. 21
B. CLAIMANT IS EXEMPTED FROM DAMAGES ..................................................................... 22
ISSUE 5: STORAGE COSTS ARE NOT RECOVARABLE FROM CLAIMANT ......... 23
A. INVALID AVOIDANCE DOES NOT RELEASE RESPONDENT FROM ITS OBLIGATIONS ........ 23
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B. RESPONDENT FAILED TO PERFORM ITS OBLIGATIONS ARISING AFTER THE AVOIDANCE

OF THE CONTRACT .......................................................................................................... 24
I. RESPONDENT had the obligation to preserve the goods ............................................... 24
II. RESPONDENT had the obligation to restitute the goods ................................................ 25
C. STORAGE COSTS CANNOT BE RECOVERED AS DAMAGES U/ART. 74 ............................... 26
I. There is no causation between the storage costs and the breach ................................. 26
II. The storage costs were not foreseeable by CLAIMANT ................................................ 27
PRAYER ............................................................................................................................. XIX
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MEMORANDUM FOR CLAIMANT TABLE OF ABBREVIATIONS
TABLE OF ABBREVIATIONS
Abbreviations Expansions
& And
¶ Paragraph
AG Aktiengesellschaft
APP.L.R. Law Report Appeal Cases
Art. Article
ASA Swiss Arbitration Association
CFR Cost and Freight
United Nations Convention on Contract for the International

CISG
Sale of Goods
Corp. Corporation
CPR Conflict Prevention and Resolution
ed. Edition
eds. Editors
et al. and others
F.3d Federal Reporter 3rd Series
i.e. that is
IBA International Bar Association
ICC International Chamber of Commerce
ICSID International Centre for Settlement of Investment Disputes
Inc. Incorporation
INCOTERMS International Commercial Terms
ITA International Trade Association
Page | IV
MEMORANDUM FOR CLAIMANT TABLE OF ABBREVIATIONS
Ltd. Limited
No. Number
PECL Principles of European Contract Law
Pte Ltd. Private Limited Company
SGHC High Court of Singapore
Spcl. Special
Suppl. Supplement
u/Art. under Article
UN United Nations
UNCITRAL United Nations Commission on International Trade Law
UNIDROIT The International Institute for Unification of Private Law
US$ US Dollars
v. versus
YBCA Yearbook Commercial Arbitration
Page | V
MEMORANDUM FOR CLAIMANT INDEX OF AUTHORITIES
INDEX OF AUTHORITIES
UN DOCUMENTS
UNCITRAL Model Law on International Commercial Arbitration, adopted on June 21, 1985
United Nations Convention on Contracts for International Sale of Goods, in force from
January 1, 1988
RULES
IBA Rules on the Taking of Evidence in International Arbitration, adopted on May 29, 2010
ICC Rules of Arbitration, in force from January 1, 2012
ICC Rules of Arbitration, in force from March 1, 2017
AWARDS
Award in ICSID Case No. ARB(AF)/00/1, ADF Group Inc v. United States, January 9, 2003.
................................................................................................................................................ 8
ICC Case No. 1512, Dalmia Dairy Industries, Ltd. (India) v. National Bank of Pakistan ...... 11
Final Award in ICC Case No. 9187 ......................................................................................... 14
Decision on Preliminary Issues in ICSID Case No. ARB/06/08, Libananco Holdings Co.
Limited v. The Republic of Turkey, June 23, 2008 ............................................................. 10
Final Award in ICC Case No. 6379, Principal v. Distributor, (1990) ....................................... 2
Procedural Order in ICC Case No. 5542 ................................................................................... 7
Interim Award in ICC Case No. 7645, Supplier v. Buyer, (1995) .......................................... 23
Final Awards ICC Case Nos. 7385 and 7402, Ultimate Buyer (case no. 7385) v. Intermediary
Buyer/ Seller (case no. 7385) Intermediary Buyer/Seller (case no. 7402) and Primary Seller
(case no. 7402), (1992) .......................................................................................................... 3
JUDGMENTS
ABB AG v. Hochtief Airport GmbH, [2006] APP.L.R. 03/08, Commercial Court, March 8,
2006, (England and Wales). ................................................................................................. 11
Amtsgerichst [Local Court], Case No. 3 C 75/94, June 14, 1994, (Germany). ....................... 23
AQZ v. ARA, [2015] SGHC 49, High Court of Singapore, February 13, 2015, (Singapore)... 1
Page | VI
Black and Veatch Singapore Pte Ltd v Jurong Engineering Ltd, [2004] SGCA 30, Singapore
Court of Appeal, July 8, 2004, (Singapore) ........................................................................... 1
Bundesgerichtshof [Federal Supreme Court], Case No. VIII ZR 51/95, April 3, 1996,
(Germany). ........................................................................................................................... 18
China Agribusiness Development Corporation v. Balli Trading, [1998] 2 Lloyd's Rep. 76,
Queen's Bench Division (Commercial Court), January 20, 1997, (United Kingdom) .......... 1
Delchi Carrier, S.p.A. v. Rotorex Corp., Federal District Court, September 9, 1994, (United
States)................................................................................................................................... 21
Federal Arbitration Court, Case No. A43-21560/2004-27-724, April 2, 2007, (Russian

Federation) ........................................................................................................................... 20
Geneva Pharmaceuticals Tech. Corp. v. Barr Labs. Inc., Federal District Court [New York],
August 21, 2002, (United States). .......................................................................................... 8
Karaha Bodas Co. v. Perusahaan Pertambangan Minyak Dan Gas Bumi Negara, United
States Court of Appeals for the Fifth Circuit, 02-20042; 03-20602, March 23, 2004,
(United States) ..................................................................................................................... 11
Landgericht [District Court], Case No. 6 O 107/98, September 24, 1998, (Germany) ........... 17
Landgericht [Regional Court], Case No. 10 O 5423/01, February 20, 2002, (Germany) ....... 22
Landgericht [Regional Court], Case No. 4 O 369/99, January 19, 2001, (Germany) ............. 18
Landgericht [Regional Court], Case No. 5 HKO 3936/00, February 27, 2002, (Germany).... 13
Oberlandesgericht [Court of Appeal], Case No. 16 U 20/06, August 31, 2006, (Germany) ... 18
Oberlandesgericht [Court of Appeal], Case No. 2 U 31/96, January 31, 1997, (Germany) .... 22
Oberlandesgericht [Court of Appeal], Case No. 7 U 2070/97, July 9, 1997, (Germany) ........ 22
Oberlandesgericht [Court of Appeal], Case No. 8 U 1667/97, May 26, 1998, (Germany) ..... 18
Oberster Gerichtshof [Supreme Court], Case No. 1 Ob 74/99k, June 29, 1999, (Austria) ..... 24
Rheinland Versicherungen v. S.r.l. Atlarex and Allianz Subalpina S.p.A, Tribunale [District
Court], July 12, 2000, (Italy). .............................................................................................. 18
X AG v. Y AS, 4A 124/2010, Federal Supreme Court of Switzerland, (Switzerland) ............. 1
XXX Ltd. v. YYY S.r.l., Ad Hoc Arbitration, September 28, 2001, (Italy)............................ 15
Page | VII
TREATISES
ALBERT H. KRITZER & SIEG EISELEN, INTERNATIONAL CONTRACT MANUAL (2013).............. 18
DENIS TALLON, INTERNATIONAL SALES: THE UNITED NATIONS CONVENTION ON CONTRACTS

FOR THE INTERNATIONAL SALE OF GOODS (1984) ................................................................ 15
DIETRICH MASKOW, Article 60, in BIANCA-BONELL COMMENTARY ON THE INTERNATIONAL
SALES LAW (1987) ............................................................................................................... 16
DR. PETER SCHLECHTRIEM, UNIFORM SALES LAW: THE UN-CONVENTION ON CONTRACTS FOR
THE INTERNATIONAL SALE OF GOODS (1986)....................................................................... 17
EMMANUEL GAILLARD & JOHN SAVAGE, FOUCHARD GAILLARD GOLDMAN ON
INTERNATIONAL COMMERCIAL ARBITRATION (1999) ........................................................ 2, 3
FRITZ ENDERLEIN & DIETRICH MASKOW, INTERNATIONAL SALES LAW (1992) ................ 14, 18
GARY B. BORN, INTERNATIONAL COMMERCIAL ARBITRATION (2014) ...................................... 5
INGEBORG SCHWENZER & SIMON MANNER, SHARING INTERNATIONAL COMMERCIAL LAW

ACROSS NATIONAL BOUNDARIES: FESTSCHRIFT FOR ALBERT H. KRITZER ON THE OCCASION
OF HIS EIGHTIETH BIRTHDAY (2008) .................................................................................... 23
KAREL DAELE, CHALLENGE AND DISQUALIFICATION OF ARBITRATORS IN INTERNATIONAL
ARBITRATION (2012) .............................................................................................................. 5
LAWRENCE BOO ET AL., ICCA INTERNATIONAL HANDBOOK ON COMMERCIAL ARBITRATION

(1984) ..................................................................................................................................... 3
MARIKE R. P. PAULSSON, THE 1958 NEW YORK CONVENTION IN ACTION (2016) ..................... 5
MATTI S KURKELA ET AL., DUE PROCESS IN INTERNATIONAL COMMERCIAL ARBITRATION

(2010) ................................................................................................................................... 11
MICHAEL WILL, Article 25, in BIANCA-BONELL COMMENTARY ON THE INTERNATIONAL SALES

LAW (1987). ......................................................................................................................... 15
NIGEL BLACKABY ET AL., REDFERN AND HUNTER ON INTERNATIONAL ARBITRATION (2015). .. 7
OLE LANDO, Article 34, in BIANCA-BONELL COMMENTARY ON THE INTERNATIONAL SALES

LAW (1987) .......................................................................................................................... 17
Page | VIII
UNITED NATIONS COMMISSION ON INTERNATIONAL TRADE LAW, UNCITRAL DIGEST OF
CASE LAW ON THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL
SALE OF GOODS (2016) .............................................................................................. 8, 17, 26
ARTICLES
Aleksandra Jurewicz, A Milestone in Polish CISG Jurisprudence and its Significance to the
World Trade Community, JOURNAL OF LAW AND COMMERCE (2009). ................... 22
Andrea Carlevaris & Jose Ricardo Feris, Running in the ICC Emergency Arbitrator Rules:
The First Ten Cases, ICC INTERNATIONAL COURT OF ARBITRATION BULLETIN
(2014). .................................................................................................................................... 3
Anne Marie Whitesell, Note on Expedited ICC Arbitration Procedure, ICC

INTERNATIONAL COURT OF ARBITRATION BULLETIN (2002) .............................. 3
Evelio Verdera y Tuells & Jose Carlos Fernandez Rozas, CPR Protocol on Disclosure of
Documents and Presentation of Witnesses in Commercial Arbitration, ARBITRAJE:
REVISTA DE ARBITRAJE COMERCIAL Y DE INVERSIONES (2009) ...................... 11
Harry Flechtner, Article 79 of the United Nations Convention on Contracts for the
International Sale of Goods (CISG) as Rorschach Test: The Homeward Trend and
Exemption for Delivering Non-Conforming Goods, PACE INTERNATIONAL LAW
REVIEW (2007) .................................................................................................................. 10
Henry D. Gabriel, A Primer on the United Nations Convention on the International Sale of
Goods: From the Perspective of the Uniform Commercial Code, INDIANA
INTERNATIONAL & COMPARATIVE LAW REVIEW (1997). .................................... 24
Henry Deeb Gabriel, The Buyer’s Performance Under the CISG: Articles 53-60 Trends in the
Decisions, JOURNAL OF LAW AND COMMERCE (2005-06) ....................................... 15
Jennifer Kirby and Denis Bensaude, A View From Paris, MEALEY‟S INTERNATIONAL
ARBITRATION REPORT (2010) ...................................................................................... 11
Jose Ricardo Feris, The 2017 ICC Rules of Arbitration and the New ICC Expedited
Procedure Provisions, ICC DISPUTE RESOLUTION BULETIN (2017)........................... 4
Konstantin Pilkov, Evidence in International Arbitration: Criteria for Admission and

Evaluation, ARBITRATION THE INTERNATIONAL JOURNAL OF ARBITRATION,
MEDIATION AND DISPUTE MANAGEMENT (2014) .................................................... 9
Page | IX
M. Fogt, The Knowledge Test under the CISG—A Global Threefold Distinction of
Negligence, Gross Negligence and De Facto Knowledge, JOURNAL OF LAW AND
COMMERCE (2015). ............................................................................................................ 9
Yves Derains, Towards Greater Efficiency in Document Production before Arbitral

Tribunals- A Continental Viewpoint, DOCUMENT PRODUCTION IN INTERNATINAL
ARBITRATION, (2006) ...................................................................................................... 10
ONLINE SOURCES
Albert Jan van den Berg, The New York Convention of 1958: An Overview,
INTERNATIONAL COUNCIL FOR COMMERCIAL ARBITRATION ........................... 2
Allison E. Butler, Limitation of Remedies Due to Failure of Performance Caused by Other

Party: Comparison Between Provisions of the CISG and Counterpart Provisions of the
Principles of European Contract Law, INSTITUTE OF INTERNATIONAL
COMMERCIAL LAW ........................................................................................................ 22
Alysha Salinger, The United Nations Convention on Contracts for the International Sale of
Goods (CISG): What is the Relevant Time of Foreseeability in Art. 25?, INSTITUTE OF
INTERNATIONAL COMMERCIAL LAW ....................................................................... 26
Bruno Zeller, Comparison between the provisions of the CISG on Mitigation of losses (Art..
77) and the counterpart provisions of PECL (Art. 9:505), INSTITUTE OF
Florian Mohs, Remarks on the manner in which Art. 7.3.5 and 7.3.6 of the UNIDROIT
Principles compare with Articles 81 and 82 of the CISG, INSITUTE OF
Francesco G. Mazzotta, Guide to Articles 85, 86, 87, 88 Comparison with Principles of
European Contract Law (PECL), INSTITUTE OF INTERNATIONAL COMMERCIAL
LAW .................................................................................................................................... 24
Ignacio Corbera Dale, Fundamental Breach of Contract under the CISG, UNION
INTERNATIONALE DES AVOCATS .......................................................................................... 14
Irene Welser & Christian Klausegger, Fast Track Arbitration: Just fast or something
different?, CERHA HEMPEL SPIEGELFELD HLAWATI ................................................. 6
Page | X
Juho Kankkunen, Document Production under the IBA Rules on the Taking of Evidence in
International Arbitration, HELDA ........................................................................................ 7
Kartikey M. & Rishabh Raheja, Recognition of Summary Procedures under the ICC Rules:
Considerations, Comparisons and Concerns, KLUWER ARBITRATION BLOG ............. 2
Lucja Nowak & Nata Ghibradze, The ICC Expedited Procedure Rules- Strengthening the
Court’s Power, KLUWER ARBITRATION BLOG ............................................................. 3
Mirghasem Jafarzadeh, Buyer's Right to Withhold Performance and Termination of Contract:

A Comparative Study Under English Law, Vienna Convention on Contracts for the
International Sale of Goods 1980, Iranian and Shi'ah Law, INSTITUTE OF
Sanna Kuoppala, Examination of the Goods under the CISG and the Finnish Sale of Goods
Act, INSTITUTE OF INTERNATIONAL COMMERCIAL LAW .................................... 18
OTHER AUTHORITIES
CISG Advisory Council Opinion No. 6: Calculation of Damages under CISG Article 74……
.................................................................................................................................... 9, 19, 21
CISG Advisory Council Opinion No. 9: Consequences of Avoidance of the Contract .... 25, 26
INTERNATIONAL CHAMBER OF COMMERCE, ICC COMMISSION REPORT CONTROLLING TIME

AND COSTS IN ARBITRATION (2012) ..................................................................................... 11
Page | XI
MEMORANDUM FOR CLAIMANT STATEMENT OF JURISDICTION
STATEMENT OF JURISDICTION
Antaria International Inc., CLAIMANT in the present case, has the honor to submit this
Memorandum pursuant to Clause 15 of the Contract between Antaria International Inc. and
Raconian Defence Technologies Ltd., which provides for the settlement of disputes between
the Parties in accordance with the Rules of Arbitration of the International Chamber of
Commerce.
Clause 15 of the Agreement states that:
Arbitration. “All disputes arising out of or in connection with the present contract shall be
finally settled under the Rules of Arbitration of the International Chamber of Commerce
subject to application of the Expedited Procedure Provisions. The tribunal will consist of a
sole arbitrator as specified under Schedule I of this contract. The seat of the arbitration will
be Lake City, Central Province. The language to be used in the arbitral proceedings will be
English. Judgment upon the award rendered by the arbitrator may be entered by any court
having jurisdiction thereof.”
Page | XII
MEMORANDUM FOR CLAIMANT STATEMENT OF FACTS
STATEMENT OF FACTS
PARTIES
The Parties to this arbitration are Antaria International Inc. [“CLAIMANT”] and Raconian
Defence Technologies Ltd. [“RESPONDENT”].
CLAIMANT is a company, incorporated under the laws of the country of Antaria. Its primary
product in the aerospace and defence markets is the AI Optra which is a ballistic composite
material used for soft and hard armor, manufactured using AI proprietary technology.
RESPONDENT is a company where the Government of Raconia is the majority shareholder. It

is incorporated under the laws of Raconia, and is a primary supplier of defence equipment to
the Government of Raconia. RESPONDENT imports most of the raw materials from various
suppliers and the Government of Raconia subsidizes the procurement of the same.
CONTRACT
The Parties entered into a Contract wherein CLAIMANT agreed to sell and RESPONDENT
agreed to buy 8000 rolls of 45.8 kg roll weight, of 63 inches minimum width AI Optra at a
price of US$ 335.00 per roll of material plus CFR Charges.
The terms of the Contract included:
1. Total price US$ 2,680,000 CFR Capital City to Oceanside Port.

2. Shipment to be made in two equal installments of 4000 rolls each.
3. RESPONDENT responsible for all procedural formalities in the port of import.
4. CLAIMANT to reasonably assist RESPONDENT in regard to procedural requirements that
may arise during delivery of the Goods.
5. Disputes to be submitted to Rules of Arbitration of the ICC subject to application of
the Expedited Procedure Provisions.
ENSUING EVENTS
2016
21 June 2016 Mr. Udeshwar, Chief Executive Officer of RESPONDENT sent an order to
the CLAIMANT for 8000 rolls of 45.8 kg roll weight, of 63 inches
minimum width AI Optra at a price of US$ 335.00 per roll of material.
He further asked for a formal Contract for signature as per their
continuing agreed price list, post acceptance by CLAIMANT.
Page | XIII
23 June 2016 CLAIMANT accepted the order of RESPONDENT and sent the contract as
per their standard terms of business.
20 July 2016 The Contract was signed by the Parties.
2017
12 January 2017 Raconia Times, a reputed national newspaper in Raconia published an

excerpt stating that CLAIMANT has entered into several strategic
partnerships with private players in Raconia.
20 January 2017 Customs Notification No. 14/2017 [“Customs Notification”] was
issued by the Government of Raconia. It stated that for import of
Ballistic Material, Exporter certificate needs to be filed, duly signed
and sealed by the manager of the business of the foreign exporter.
10 February 2017 The first shipment arrived at Oceanside Port.
15 February 2017 CLAIMANT received communication from RESPONDENT seeking
assistance in customs clearance as per the Customs Notification.
16 February 2017 Mr. Antony Martyr, the authorized representative of CLAIMANT in
Raconia, filed the Exporter certificate with the Raconian Customs
Authorities.
17 February 2017 CLAIMANT sent the contact details of Mr. Martyr and enclosed a copy
of the filed exporter certificate. It further offered to assist for any other
requirements from its end.
25 February 2017 CLAIMANT was informed by RESPONDENT that the customs officials
would not accept the clearance from an authorized person, and the
goods would now stand confiscated by the Raconian authorities.
Further, RESPONDENT already placed an order with a competitor and
avoided the present Contract.
27 February 2017 CLAIMANT responded to the avoidance of Contract, asking for payment
of the goods.
13 March 2017 RESPONDENT, however stated that the avoidance of the Contract was
valid and RESPONDENT has no responsibility under law to assist
CLAIMANT in clearance of the goods. Therefore, CLAIMANT can be free
to claim the goods from customs as owner of the goods.
20 March 2017 CLAIMANT thereafter in communication with the Raconian Customs
authorities, requested for the release of the goods.
Page | XIV
15 May 2017 CLAIMANT communicated with the Customs Authorities again,

informing them that the goods should not be subject to deterioration
and disposal under their care. However, the Customs Authorities did
not respond to any such communication.
14 July 2017 RESPONDENT forwarded a communication from the Customs
department stating that the unclaimed confiscated goods would now
stand to be disposed of / sold / destroyed in accordance with Raconian
law owing to no claim by the importer-on-record and storage costs of
US$ 5,000 is liable to be paid by the importer-on-record. RESPONDENT
claimed the cost from CLAIMANT.
02 August 2017 CLAIMANT files the Request for Arbitration to the Secretariat of the
International Court of Arbitration under the ICC [“Secretariat”].
05 August 2017 Correspondence from the Secretariat acknowledging CLAIMANT‟S
request for arbitration is received.
20 August 2017 RESPONDENT sends Answer to Notice of Arbitration and files
Statement of Defence and Counter-claim.
20 September 2017 Secretariat‟s Notification of ICC Court Decision(s) Setting in Motion
the Arbitration.
05 October 2017 Procedural Order No. 1 is issued.
30 January 2018 Procedural Order No. 2 is issued.
Page | XV
MEMORANDUM FOR CLAIMANT ISSUES RAISED
ISSUES RAISED
I. WHETHER THE EXPEDITED PROCEDURE PROVISIONS U/ART. 30 OF THE ICC

ARBITRATION RULES ARE APPLICABLE IN THE FACTS AND CIRCUMSTANCES ARISING OUT
OF THE CLAIM?
II. WHETHER THE TESTIMONY OF MR. ANTONY MARTYR SHOULD BE RECORDED IN THIS
CASE?
III. WHETHER RESPONDENT HAS LEGALLY AVOIDED THE CONTRACT?

IV. WHETHER RESPONDENT IS ENTITLED FOR COMPENSATORY DAMAGES?
V. WHETHER STORAGE COSTS ARE RECOVERABLE FROM CLAIMANT PURSUANT TO DEMAND
RAISED BY THE RACONIAN CUSTOMS AUTHORITIES?
Page | XVI
MEMORANDUM FOR CLAIMANT SUMMARY OF ARGUMENTS
SUMMARY OF ARGUMENTS
I. The Expedited Procedure Provisions u/Art. 30 of the ICC Arbitration Rules are
applicable in the facts and circumstances arising out of the claim
The Expedited Procedure Provisions u/Art. 30 will apply in the present case as according to
Art. 6(1), the Rules in force at the time of commencement of arbitration apply to the
proceedings. In the present case, Expedited Procedure Provisions u/Art. 30 will apply, since
as per the principle of party autonomy, the Parties had an intention to conduct the
proceedings in an expedited manner. Art. 30 also recognizes this principle by providing an
option to the parties to agree to the application of Expedited Procedure Provisions,
irrespective of the amount in dispute or date of conclusion of contract. Additionally, the due
process requirements are also not violated by the application of the Expedited Procedure
Provisions.
II. The testimony of Mr. Antony Martyr should not be recorded in this case
The Tribunal has a power to determine the admissibility of evidence under the ICC Rules, as
well as the Model Law. However, since there is no specific procedure for taking evidence, the
Tribunal may use the IBA Rules on Taking Evidence as guidelines. The Tribunal should not
record the testimony of Mr. Martyr since it is irrelevant in the circumstances of the present
case and immaterial to its outcome. Further, the request for the testimony is based on a mere
speculation, and is thus in the nature of a fishing expedition. Due to its irrelevance and
immateriality, the exclusion of the testimony would not violate the due process requirements.
Also, the Tribunal has an obligation to conduct the arbitration expeditiously, and should thus
refrain from recording irrelevant evidence.
III. RESPONDENT has not legally avoided the Contract
RESPONDENT has not legally avoided the Contract as there was no breach of obligation by
CLAIMANT. CLAIMANT filed the exporter certificate by reasonably interpreting the ambiguous
communication of RESPONDENT and thus fulfilled its obligation of reasonably assisting
RESPONDENT. Even if there was a breach, it did not constitute fundamental breach as mere
confiscation of half installment of the Contract cannot lead to substantial deprivation to
RESPONDENT. Further, substantial deprivation, if any, could not be foreseen by CLAIMANT as
subsequent information provided by the aggrieved party does not fall in the ambit of
foreseeability u/Art. 25. Additionally, failure of RESPONDENT to notify the non-conformity in
Page | XVII
MEMORANDUM FOR CLAIMANT SUMMARY OF ARGUMENTS
the document has led to the failure of CLAIMANT to provide a corrected certificate. Hence, by
virtue of Art. 39 and Art. 80 of the CISG, RESPONDENT cannot avoid the Contract.
IV. RESPONDENT is not entitled for compensatory damages
RESPONDENT is not entitled for compensatory damages, as the loss to RESPONDENT was not
caused by the alleged breach of obligation by CLAIMANT, but by its own failure to provide an
opportunity to CLAIMANT to file a correct certificate. Thus, there was no causation between
the breach and the loss. Further, the loss, if any, has not been proved with reasonable
certainty by RESPONDENT. Arguendo, the loss was not foreseeable to CLAIMANT at the time of
conclusion of Contract, since the requirement of the certificate itself arose after the
conclusion of the Contract. Further, as the loss is a result of the non-performance of
obligations by RESPONDENT, damages cannot be recovered from the CLAIMANT.
V. Storage costs are not recoverable from CLAIMANT pursuant to demand raised by
the Raconian Customs Authorities
Storage costs are not recoverable from CLAIMANT as RESPONDENT was not released of its
obligations under the Contract and the Convention, as its avoidance of the Contract was
invalid. Even if the avoidance was valid, RESPONDENT had an obligation to preserve and
restitute the goods after avoidance; and the storage costs arose as a result of RESPONDENT‟S
failure to fulfill this obligation. Thus, costs cannot be recovered from CLAIMANT. Further,
costs cannot be recovered as damages u/Art. 74, as there was no causation between the
storage costs and the alleged breach of obligation by CLAIMANT. Also, the responsibility of
CLAIMANT extended to merely assisting RESPONDENT during delivery. CLAIMANT could not
have foreseen that breach pertaining to such obligation would result in confiscation of goods
leading to storage costs.
Page | XVIII
MEMORANDUM FOR CLAIMANT ARGUMENTS ADVANCED
ARGUMENTS ADVANCED
ISSUE 1: THE EXPEDITED PROCEDURE PROVISIONS U/ART. 30 WILL APPLY
1. CLAIMANT humbly submits that the Expedited Procedure Provisions u/Art. 30 will apply
in the present case in accordance with Art. 6(1) of the ICC Arbitration Rules 2012 [A]
and the application of the Expedited Procedure Provisions will not violate the due process
[B].
A. EXPEDITED PROCEDURE PROVISIONS U/ART. 30 WILL APPLY IN ACCORDANCE WITH

ART. 6(1) OF THE ICC ARBITRATION RULES 2012
2. Expedited Procedure Provisions will apply in the present case according to Art. 6(1) of
the ICC Rules 2012. Art. 6(1) of the ICC Rules 2012 gives effect to the general principle,
that where the rules of a particular institution are referred in an arbitration clause,1 the
clause prima facie refers2 to the most current version of that institution's rules at the time
arbitration was commenced,3 unless otherwise agreed by the parties.4
3. When the Rules contain mainly procedural provisions,5 this presumption takes effect
irrespective of the fact that the Rules in effect at the time of commencement is a new
amended version or an entirely different set of Rules.6 The reason behind this Rule is that
it cannot be expected that arbitrators will, regardless of the fact that new procedures may
have been introduced and applicable at the date of commencement of arbitration, go back
to and apply the old procedure in force as at the date when the contract was made.7
4. In the present case, since specific provisions for Expedited Procedure have been
incorporated in the Amended Rules u/Art. 30, the same should be applied as the Parties
intended to be governed by the expedited procedure at the time of conclusion of the
Contract [I]. Further, subsequent conduct of RESPONDENT confirms its original intention
[II] and application of Art. 30 is to be considered as per the principle of party autonomy
[III].
1
AQZ v. ARA, [2015] SGHC 49, High Court of Singapore, February 13, 2015 (Singapore).
2
China Agribusiness Development Corporation v. Balli Trading, (1997) XXIVa YBCA 732.
3
Black and Veatch Singapore Pte Ltd v. Jurong Engineering Ltd, [2004] SGCA 30, Singapore Court of Appeal,
July 8, 2004 (Singapore) [“Jurong Engineering”].
4
X AG v. Y AS, (2010) XXXVI YBCA 340.
5
Cars & Cars Pte Ltd v. Volkswagen AG, [2009] SGHC 233, High Court of Singapore, October 19, 2009
[“Cars & Cars”].
6
Jurong Engineering, supra note 3.
7
Cars & Cars, supra note 5.
Page | 1
I. Parties intended to be governed by the expedited procedure at the time of

conclusion of the Contract
5. Parties intended to use the expedited procedure at the time of conclusion of the Contract.
In international arbitration, parties are free to agree on the procedure to be followed in
conducting the proceedings, under the principle of party autonomy.8 This principle is
recognized u/Art. V(1) (d) of the New York Convention9 along with Art. 19 of the
UNCITRAL Model Law10 [“Model Law”] and Art. 22 of the ICC Rules 2012,11
according to which a tribunal must conduct the proceedings in accordance with the
agreement between the parties.12
6. In the present case, the procedure to be applied in conducting the arbitration is in dispute.
By application of the principle of party autonomy, the procedure shall be decided by
interpreting the contract in a way that determines the real intention of the Parties.13 Such
intention is derived by interpreting the contract according to the general principles of
interpretation of arbitration agreements.14 The most widely accepted principle of
interpretation is the principle of interpretation in good faith.15
7. Under the principle of good faith the initial intention of the parties, i.e. the intention at the
time of entering into the arbitration agreement, is considered determinative. This is
because at the time of conclusion of the contract, it can be presumed that parties in good
faith would want their disputes to be resolved effectively and amicably, which might not
be the case once a dispute actually arises.16
8. In the present case, as is clear from the terms of the Contract, the Parties specifically
subjected their disputes to Expedited Procedure Provisions at the time of its conclusion of
the Contract. The use of the term „Expedited Procedure‟ is unambiguous, and reflects the
8
Ar. Gor. Seyda Dursun, A Critical Examination of the Role of Party Autonomy in International Commercial
Arbitration and an Assessment of its Role and Extent, 1 YALOVA UNIVERSITESI HUKUK FAKULTESI
DERGISI 161, 180, (2012) [“Dursun”].
9
Albert Jan van den Berg, The New York Convention of 1958: An Overview, INTERNATIONAL COUNCIL
FOR COMMERCIAL ARBITRATION (January 27, 2018, 12:16 PM), http://www.arbitration-
icca.org/media/0/12125884227980/new_york_convention_of_1958_overview.pdf.
10
JEFFREY WAINCYMER, PROCEDURE AND EVIDENCE IN INTERNATIONAL ARBITRATION 9 (2012)
[“WAINCYMER”].
11
Kartikey M. & Rishabh Raheja, Recognition of Summary Procedures under the ICC Rules: Considerations,
Comparisons and Concerns, KLUWER ARBITRATION BLOG, December 4, 2017,
http://arbitrationblog.kluwerarbitration.com/2017/12/04/booked-iccs-new-rules-summary-dismissal-kartikey-
mahajan/.
12
Dursun, supra note 8, at 180.
13
Final Award in ICC Case No. 6379 (1990), Principal v. Distributor, XVII YBCA 212.
14
WAINCYMER, supra note 10, at 140.
15
EMMANUEL GAILLARD & JOHN SAVAGE, FOUCHARD GAILLARD GOLDMAN ON INTERNATIONAL COMMERCIAL
ARBITRATION 257 (1999) [“GAILLARD & SAVAGE”].
16
Id.
Page | 2
commercial intention of the Parties,17 that they wanted to resolve their disputes in a
timely and cost-efficient manner, Thus, CLAIMANT submits that the Parties intended to
use the expedited procedure which has always been possible under the ICC Rules 2012 by
allowing parties to shorten time limits.18
II. Subsequent conduct of RESPONDENT confirms its original intention
9. Subsequent conduct of RESPONDENT confirms its original intention. To determine the

original intention of the parties, their subsequent conduct after conclusion of the contract,
till the time the dispute arises is also considered, as it indicates how the parties themselves
actually perceived the agreements in dispute.19 It is pertinent to note that the draft of the
revised Rules, which specifically included the Expedited Procedure Provisions, was
released on November 4, 2016.20 The dispute in the present case arose on February 25,
2017, which was 4 months after the release of the Amended Rules. Further, the arbitration
commenced only in August 2017.
10. CLAIMANT humbly submits that RESPONDENT ought to have known the general principle,
that in the absence of any specific agreement to the contrary, the latest version of the
Rules at the time of arbitration is applicable. If RESPONDENT did not intend for the
Expedited Procedure Provisions to apply, it could have amended the arbitration
agreement anytime before the arbitration commenced. Failure of RESPONDENT to do so21
confirms its original intention of conducting the arbitration in an expedited manner under
the Amended Rules as well.
III. Application of Art. 30 is to be upheld as per the principle of party autonomy
11. Application of Art. 30 is to be considered as per the principle of party autonomy, as;
Parties have agreed to the application of Expedited Procedure Provisions u/Art. 30(2) (b)
(i). Alternatively, the Tribunal must act in the spirit of the Rules (ii).
17
LAWRENCE BOO ET AL., ICCA INTERNATIONAL HANDBOOK ON COMMERCIAL ARBITRATION 11 (Jan Paulsson
& Lise Bosman eds., 1984).
18
Anne Marie Whitesell, Note on Expedited ICC Arbitration Procedure, 13 ICC INTERNATIONAL COURT
OF ARBITRATION BULLETIN 29, (2002); See also Final Awards ICC Case Nos. 7385 and 7402, Ultimate
Buyer (case no. 7385) v. Intermediary Buyer/ Seller (case no. 7385) Intermediary Buyer/Seller (case no. 7402)
and Primary Seller (case no. 7402), (1992) XVIII YBCA 68.
19
GAILLARD & SAVAGE, supra note 15, at 258.
20
Lucja Nowak & Nata Ghibradze, The ICC Expedited Procedure Rules- Strengthening the Court’s Power,
KLUWER ARBITRATION BLOG, December 13, 2016,
http://arbitrationblog.kluwerarbitration.com/2016/12/13/reserved-for-13-december-the-icc-expedited-procedure-
rules-strengthening-the-courts-powers/.
21
Andrea Carlevaris & Jose Ricardo Feris, Running in the ICC Emergency Arbitrator Rules: The First Ten
Cases, 25 ICC INTERNATIONAL COURT OF ARBITRATION BULLETIN 25, (2014).
Page | 3
i. Parties have agreed to the application of Expedited Procedure Provisions u/Art. 30(2)
(b)
12. Parties have agreed to the application of Expedited Procedure Provisions u/Art. 30(2) (b).
According to Art. 30(2), the Expedited Procedure Provisions u/Art. 30 shall apply if the
amount in dispute does not exceed US$ 2 million or if the parties so agree.22 Art. 30(2)
(b) gives the parties an option to agree to the application of the Expedited Procedure,
irrespective of the amount in dispute.23 Further, Art. 30 also gives an opportunity to the
parties to opt out from the Expedited Procedure where it will otherwise be applicable, or
to request for its non-application where the Expedited Procedure appears to be
inappropriate.24
13. Additionally, Art. 30(3) (a) which restricts the retrospective application of Art. 30 does
not apply in the present case. The Expedited Procedure Provisions u/Art. 30 applies
irrespective of the date of conclusion of the contract,25 when the parties agree to its
application even in cases of contracts concluded before March 1, 2017.26 This option
makes it clear that the condition of non-retroactivity of the Expedited Procedure is
effective only where Art. 30 applies automatically to disputes of amounts less than US$ 2
million in agreements concluded before March 1, 2017.
14. This shows that Art. 30 gives paramount importance to the autonomy of the parties, by
giving the parties an option of agreeing to its application irrespective of any other
restriction. In the present case, since the Parties have agreed to the application of
Expedited Procedure, the condition of non-retroactivity of Art. 30 will not apply and such
agreement of the Parties is recognized u/Art. 30(2) (b).
ii. Alternatively, the Tribunal must act in the spirit of the Rules
15. Alternatively, the Tribunal must act in the spirit of the Rules. Even if the Tribunal
considers that Art. 30 makes no specific provision for a situation where parties to an
agreement, concluded before March 1, 2017, intended to apply the Expedited Procedure,
the Tribunal shall fill in this gap as per Art. 5 of Appendix VI and Art. 42 of the
Amended Rules.
22
ICC Rules of Arbitration (March 2017), Art. 30(2) [“2017 Rules”].
23
Jose Ricardo Feris, The 2017 ICC Rules of Arbitration and the New ICC Expedited Procedure Provisions, 1
ICC DISPUTE RESOLUTION BULETIN 63, (2017).
24
2017 Rules, supra note 22, Art. 30(3).
25
Note to Parties and Arbitral Tribunals on the Conduct of the Arbitration under the ICC Rules of Arbitration,
(International Chamber of Commerce), October 2017 at 11 [“Note to Parties”].
26
Page | 4
16. These provisions provide that where there are lacunas in the Rules, the tribunal shall fill
in the gap by acting in the spirit of the Rules,27 keeping in mind its obligation to render an
enforceable award.28 Party autonomy is one of the major elements which constitute the
spirit of the Rules.29 Further, being one of the most important principles of international
commercial arbitration, its violation may lead to the non-enforceability of an arbitral
award.30
17. In the present case, it is evident that the Parties in the present case have agreed to the
application of the Expedited Procedure Provisions, as is clear from the terms of their
Contract.31 Thus, acting in the spirit of the Rules, the Tribunal should apply the Expedited
Procedure Provisions u/Art. 30 to the present case.
B. APPLICATION OF THE EXPEDITED PROCEDURE PROVISIONS WILL NOT VIOLATE THE

DUE PROCESS
18. Expedited Procedure Provisions do not violate due process. Art. 22(2) of the ICC Rules
2012, and the general principles of international commercial arbitration, state that a
tribunal shall generally respect any agreement that the parties may reach, and do not
permit it to adopt procedural measures that deviate from the agreement of the parties.32
The tribunal may adopt a different procedure only if giving effect to the parties‟
procedural agreement would conflict with the due process requirements and the conduct
of the arbitration fairly and efficiently.33
19. CLAIMANT submits that application of Art. 30 would not violate due process. In
conducting the arbitration under the Expedited Procedure Provisions, the tribunal has a
duty to act fairly and impartially and ensure that each party has a reasonable opportunity
to present its case.34 This is ensured by giving the tribunal a considerable discretion to
adopt procedural measures it considers appropriate35 in the circumstances of the case.
20. Thus, as the Parties have agreed to the application of the expedited procedure, the
Tribunal should, by virtue of Art. 22(2) apply the same, since it ensures a fair and
27
JASON FRY ET AL., THE SECRETARIAT‟S GUIDE TO ICC ARBITRATION 297 (2012) [“FRY”].
28
2017 Rules, supra note 22, Art. 42.
29
KAREL DAELE, CHALLENGE AND DISQUALIFICATION OF ARBITRATORS IN INTERNATIONAL ARBITRATION 160
(2012).
30
MARIKE R. P. PAULSSON, THE 1958 NEW YORK CONVENTION IN ACTION 226 (2016).
31
Request for Arbitration and Statement of Claim, ¶12.
32
FRY, supra note 27, at 234.
33
GARY B. BORN, INTERNATIONAL COMMERCIAL ARBITRATION 2138 (2d ed. 2014).
34
Note to Parties, supra note 25, at 13.
35
2017 Rules, supra note 22, Appendix VI, Art. 3(4).
Page | 5
efficient arbitration if managed in a professional manner by all participants involved,36

and does not violate due process.
CONCLUSION OF ISSUE 1
CLAIMANT submits that by virtue of Art. 6(1), Art. 30 should be applied to the present case,
as being a specific provision for an Expedited Procedure, it provides the best way to give
effect to the intention of the parties to use an Expedited Procedure in their arbitration.
Further, as the Tribunal has a duty to act fairly and impartially u/Art. 30 as well, application
of the same would not violate due process.
ISSUE 2: TESTIMONY OF MR. ANTONY MARTYR SHOULD NOT BE

RECORDED
21. CLAIMANT humbly submits that the testimony of Mr. Antony Martyr should not be
recorded in the present case, as; the Tribunal has the power to exclude evidence [A] and
the testimony of Mr. Antony Martyr is not admissible in the present case [B]. Further,
exclusion of testimony would not violate due process [C], and the Tribunal has an
obligation to conduct the arbitration expeditiously [D].
A. THE TRIBUNAL HAS THE POWER TO EXCLUDE EVIDENCE
22. The Tribunal has the power to exclude evidence. Art. 25(3) of the ICC Rules 2012
provides that the tribunal has the discretion to decide whether or not to hear a witness.
According to this provision, a tribunal is not necessarily required to hear a witness
provided that the due process is not violated.37 Further, the Model Law, which is the law
of the seat in the present arbitration, gives power to the tribunal to determine the
admissibility, relevance, materiality and weight of any evidence. 38 However, the ICC
Rules 2012 or Model Law does not provide any guidance concerning the procedure of
taking evidence.39
23. Thus, as the practice of international arbitration is devoid of any binding set of rules
governing evidence,40 in addition to the ICC Rules 2012 and the Model Law, the Tribunal
may also use the IBA Rules on Taking Evidence in International Arbitration, 2010 [“IBA
36
Irene Welser & Christian Klausegger, Fast Track Arbitration: Just fast or something different?, CERHA
HEMPEL SPIEGELFELD HLAWATI, (January 27, 2018, 06:08 PM),
http://www.chsh.com/fileadmin/docs/publications/Welser/Beitrag_Welser_2009.pdf.
37
38
UNCITRAL Model Law on International Commercial Arbitration, (June 1985), Art. 19(2).
39
NATHAN D. O‟MALLEY, RULES OF EVIDENCE IN INTERNATIONAL ARBITRATION: AN ANNOTATED GUIDE 1
(2012) [“O‟MALLEY”].
40
Id. at 2.
Page | 6
Rules”]. These Rules are designed to supplement the legal provisions and the institutional
rules that apply to the conduct of the arbitration,41 and are used widely by tribunals as a
guide even when not binding upon them.42 They are considered to be an internationally
applicable standard for an effective and relatively economical evidence production
regime.43
24. Therefore, CLAIMANT submits that under the ICC Rules 2012, the Tribunal is empowered
to either include or exclude any evidence, and can use the IBA Rules as guidelines for the
exercise of such power.
B. THE TESTIMONY OF MR. ANTONY MARTYR IS NOT ADMISSIBLE IN THE PRESENT

CASE
25. The testimony of Mr. Antony Martyr is not admissible in the present case. Art. 9(2) of the
IBA Rules provides that the tribunal shall exclude evidence if there is lack of sufficient
relevance to the case or materiality to its outcome. Thus, the Tribunal should not record
the testimony of Mr. Martyr, since the testimony is irrelevant to the case [I] and it is also
not material to the outcome of the case [II]. Further, the request for the testimony is
merely a fishing expedition [III].
I. The testimony of Mr. Martyr is irrelevant to the case
26. The testimony of Mr. Antony Martyr is irrelevant to the present case. The tribunal may
refuse to admit evidence, if it lacks relevance. The term relevant evidence means that the
evidence must be relevant in support of an important contention in the petitioning party‟s
case.44 In other words, there must be a relevant connection between the claims made by a
party45 and the information sought from the evidence.46 Thus, the question of relevance
requires a substantive inquiry into whether the evidence requested is relevant to and
necessary for, the purposes of the proceedings where it is being used.47
27. In the present case, RESPONDENT has avoided the Contract due to the alleged breach of
contractual obligations by CLAIMANT, by filing of a non-conforming exporter certificate.
41
IBA Rules on the Taking of Evidence in International Arbitration, (May 2010), Preamble 1.
42
O‟MALLEY, supra note 39, at 6.
43
NIGEL BLACKABY ET AL., REDFERN AND HUNTER ON INTERNATIONAL ARBITRATION 358 (6th ed. 2015).
44
45
Juho Kankkunen, Document Production under the IBA Rules on the Taking of Evidence in International
Arbitration, HELDA, (January 27, 2018, 06:16 PM),
https://helda.helsinki.fi/bitstream/handle/10138/136412/Document%20Production%20under%20the%20IBA%2
0Rules%20on%20the%20Taking%20of%20Evidence%20in%20International%20Arbitration.pdf?sequence=1.
46
Procedural Order in ICC Case No. 5542, in O‟MALLY, supra note 39, at 56.
47
Award in ICSID Case No. ARB(AF)/00/1, ADF Group Inc v. United States, January 9, 2003.
Page | 7
With the oral testimony of Mr. Antony Martyr, RESPONDENT seeks to prove that
CLAIMANT in the past had filed exporter certificate signed by the manager of the business.
Through this, RESPONDENT contends that CLAIMANT should be held at a higher degree of
care, and that allowing Mr. Martyr to sign the certificate in this case was gross negligence
on its part.48
28. CLAIMANT submits that negligence of CLAIMANT is of no consequence in the present
case, as claims of negligence are outside the scope of the CISG [“Convention”],49 which
is the law governing the merits of the dispute. In particular, Art. 45(1) of the Convention,
which provides for remedies for breach of contract by the seller, does not require that the
seller have acted with negligence, fault or intent in order for the buyer to claim the
remedies mentioned in the provision.50 Thus, for a claim of breach, fault or negligence on
the part of the breaching party is not required to be established.51 It suffices that, upon
being due, an obligation has not been performed at all.52
29. Further, under the Convention, an intentional or negligent breach does not in itself qualify
as a fundamental breach in terms of Art. 25.53 For a breach to be fundamental, the
essential criteria u/Art. 25 need to be fulfilled which include breach and substantial
deprivation caused due to that breach.54 Also, whether there has been a substantial
deprivation is determined from an objective point of view,55 and thus, the prior
knowledge of CLAIMANT would not be relevant in proving the fundamental nature of the
alleged breach.
30. Thus, CLAIMANT submits that proof of negligence or higher degree of care on its part is
not required to establish any of the substantive issues of the case, i.e. the alleged breach,
or its fundamental nature. Hence, the testimony of Mr. Martyr is irrelevant to the present
case.
48
Statement of Defence and Counter-Claim, ¶3.
49
Geneva Pharmaceuticals Tech. Corp. v. Barr Labs. Inc., No. 98 CIV.961 RWS, United States District Court,
August 21, 2002, (United States).
50
UNITED NATIONS COMMISSION ON INTERNATIONAL TRADE LAW, UNCITRAL DIGEST OF CASE LAW ON THE
UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS 218 (2016)
[“UNCITRAL DIGEST”].
51
Ulrich Magnus, The Remedy of Avoidance of Contract under CISG—General Remarks and Special Cases, 25
JOURNAL OF LAW AND COMMERCE 423, 426, (2005-06) [“Magnus”].
52
INGEBORG SCHWENZER, COMMENTARY ON THE UN CONVENTION ON THE INTERNATIONAL SALE OF GOODS
(CISG) 1003 (3d ed. 2010) [“SCHWENZER”].
53
ROBERT KOCH, REVIEW OF THE CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS
(CISG) 299 (Pace International Law Review ed., 1998) [“KOCH”].
54
Leonardo Graffi, Case Law on the Concept of “Fundamental Breach” in the Vienna Sales Convention, 3
INTERNATIONAL BUSINESS LAW JOURNAL 338, 339, (2003) [“Graffi”].
55
Magnus, supra note 51, at 426.
Page | 8
II. The testimony of Mr. Martyr is not material to the outcome of the case
31. The testimony of Mr. Antony Martyr is not material to the outcome of the case. The
materiality can be assessed only with respect to evidence which is relevant to the case.56
Thus, even if the Tribunal considers that the evidence bears some relevant connection to
the case, it shall not record it, if it is not material to its outcome.57 Evidence is considered
material to the outcome of a case if it helps in the complete consideration of the facts
from which legal conclusions are drawn.58 In other words, evidence is recorded if the
tribunal considers that the proffered evidence will affect its deliberations in reaching the
final award.59
32. The outcomes of the present case pertain to, first, whether the Contract has been legally
avoided by RESPONDENT as a result of alleged fundamental breach by CLAIMANT, and
second, whether RESPONDENT is entitled for compensatory damages for loss suffered as a
result of the breach. The testimony of Mr. Martyr would be immaterial to both these
outcomes, since the Convention does not rely on the concept of negligence60 or degree of
care of a breaching party, which RESPONDENT intends to prove through the testimony.
33. First, as regards the avoidance of Contract by RESPONDENT as a result of alleged
fundamental breach by CLAIMANT, CLAIMANT submits that even if RESPONDENT, through
the testimony of Mr. Martyr, proves the prior knowledge of CLAIMANT and gross
negligence on its part in performance of its duties, it would be immaterial in determining
the legality of the avoidance. This is because, as shown above, fault or negligence on the
part of the breaching party is not required for the innocent party to avoid the contract on
grounds of fundamental breach of contract.61
34. Similarly, with regard to RESPONDENT‟S claim for damages, prior knowledge or
negligence of CLAIMANT would not determine its entitlement to damages or the quantum
of damages. RESPONDENT would be entitled to damages for breach of contract under the
Convention, if it proves that it has suffered a loss as a result of the alleged breach, 62 and
56
Konstantin Pilkov, Evidence in International Arbitration: Criteria for Admission and Evaluation, 80
ARBITRATION THE INTERNATIONAL JOURNAL OF ARBITRATION, MEDIATION AND DISPUTE
MANAGEMENT 123, 149, (2014).
57
Id.
58
RETO MARGHITOLA, DOCUMENT PRODUCTION IN INTERNATIONAL ARBITRATION 49 (2015)
[“MARGHITOLA”].
59
60
Morten M. Fogt, The Knowledge Test under the CISG—A Global Threefold Distinction of Negligence, Gross
Negligence and De Facto Knowledge, 34 JOURNAL OF LAW AND COMMERCE 24, 26, (2015).
61
Magnus, supra note 51, at 426.
62
CISG Advisory Council Opinion No. 6: Calculation of Damages under CISG Article 74, ¶2.2 [“Opinion No.
6”].
Page | 9
CLAIMANT would be liable for all such losses irrespective of fault or negligence.63
Further, if damages will be awarded based on the alleged negligence of CLAIMANT, it
would amount to punitive damages, which are not awarded under the Convention.
35. Thus, it is clear that neither the avoidance, nor the damages and quantum of damages,
depend on the fact that CLAIMANT has filed the exporter certificate in the past and should
be held at a higher degree of care or was negligent in performance of its duties. Therefore,
even if the Tribunal considers the testimony of Mr. Martyr to be relevant to the case in
any manner, it should not be recorded, as it would be immaterial to the final award of the
case.
III. The request for the testimony is merely a fishing expedition
36. The request for the testimony is merely a fishing expedition. RESPONDENT‟S request for
the testimony of Mr. Martyr amounts to a fishing expedition as it is in the hope of
uncovering material to serve as the foundation for its arguments64 and is based on a
purely speculative premise.65 RESPONDENT wishes to rely on the testimony of Mr. Martyr,
to show that CLAIMANT was aware of the exporter certificate compliance since it had
made delivery of products to private contractors after the release of the Customs
Notification. This allegation of RESPONDENT is based on the newspaper clipping of
January 12, 2017.
37. However, the clipping merely states that CLAIMANT has entered into several strategic
partnerships with private players in Raconia.66 It does not talk about any deliveries made
pursuant to these partnerships. Thus, the request for evidence by RESPONDENT is based on
a mere speculation67 in its endeavor to construct its case on the basis of information it
finds through the testimony, without setting down its claims on the basis of facts already
in its knowledge.68 Hence, the request for the testimony is in the nature of a fishing
expedition,69 and should not be recorded by the Tribunal.
63
Harry Flechtner, Article 79 of the United Nations Convention on Contracts for the International Sale of
Goods (CISG) as Rorschach Test: The Homeward Trend and Exemption for Delivering Non-Conforming
Goods, 19 PACE INTERNATIONAL LAW REVIEW 29, 34, (2007).
64
Decision on Preliminary Issues in ICSID Case No. ARB/06/08, Libananco Holdings Co. Limited v. The
Republic of Turkey, June 23, 2008.
65
Wakefield v. Outhwaite, [1990] 2 Lloyd‟s Rep 157, Queen‟s Bench Division (Commercial Court), May 1,
1990 (England and Wales).
66
RESPONDENT‟S Exhibit No. 1.
67
68
Yves Derains, Towards Greater Efficiency in Document Production before Arbitral Tribunals- A Continental
Viewpoint, Spcl. Suppl. DOCUMENT PRODUCTION IN INTERNATINAL ARBITRATION 83, (2006).
69
Page | 10
C. EXCLUSION OF EVIDENCE WOULD NOT VIOLATE DUE PROCESS
38. Exclusion of the testimony of Mr. Martyr would not violate due process. A full
opportunity to present a case under the due process requirements of international
commercial arbitration does not mean that every request for evidence must be granted.70
Further, it is also universally accepted that a tribunal is not bound to hear all the evidence
adduced by the parties, so as to comply with their right to be heard.71
39. The power of a tribunal to hear a witness is not necessarily a duty and it may refuse to
hear evidence even if a party requests it.72 Any such refusal by the tribunal to address
irrelevant73 and immaterial evidence74 does not violate the parties‟ procedural rights.75
Hence, as the testimony of Mr. Martyr is not relevant in the present case and is also not
material to the outcome of the case, exclusion of the testimony would not violate due
process.
D. THE TRIBUNAL HAS AN OBLIGATION TO CONDUCT THE ARBITRATION

EXPEDITIOUSLY
40. The Tribunal has a general obligation to conduct the arbitration in an expeditious and cost
effective manner.76 This principle is also recognized u/Art. 22(1) of the ICC Rules 2012.77
To ensure timeliness, which also constitutes one of the criteria of a fair trial;78 the tribunal
should record only that evidence which is relevant and material. 79 Also, in the present
case, the intention of the Parties to conduct the proceedings in an expeditious manner is
clear from the arbitration clause80 and should be respected.
70
MARGHITOLA, supra note 58, at 23.
71
Karaha Bodas Co. v. Perusahaan Pertambangan Minyak Dan Gas Bumi Negara, United States Court of
Appeals for the Fifth Circuit, 02-20042; 03-20602, March 23, 2004 [“Karaha Bodas Co. Case”].
72
ICC Case No. 1512, Dalmia Dairy Industries, Ltd. (India) v. National Bank of Pakistan, in W. LAURENCE
CRAIG ET AL., INTERNATIONAL CHAMBER OF COMMERCE ARBITRATION 416 (3d ed., 2000).
73
Jennifer Kirby and Denis Bensaude, A View From Paris, MEALEY‟S INTERNATIONAL ARBITRATION
REPORT 8 (2010).
74
ABB AG v. Hochtief Airport GmbH, [2006] APP.L.R. 03/08, Commercial Court, March 8, 2006 (England
and Wales).
75
Karaha Bodas Co. Case, supra note 71, at 8.
76
INTERNATIONAL CHAMBER OF COMMERCE, ICC COMMISSION REPORT CONTROLLING TIME AND COSTS IN
ARBITRATION 4 (2d ed. 2012).
77
FRY, supra note 27, at 18.
78
MATTI S KURKELA ET AL., DUE PROCESS IN INTERNATIONAL COMMERCIAL ARBITRATION 192 (2d ed. 2010).
79
Evelio Verdera y Tuells & Jose Carlos Fernandez Rozas, CPR Protocol on Disclosure of Documents and
Presentation of Witnesses in Commercial Arbitration, 2 ARBITRAJE: REVISTA DE ARBITRAJE
COMERCIAL Y DE INVERSIONES 583, 605, (2009).
80
CLAIMANT‟S Exhibit No. 3.
Page | 11
41. Therefore, CLAIMANT submits that the Tribunal should not record the testimony of Mr.
Martyr, which is irrelevant to the present case and would not affect the final award,
keeping in mind its obligation to conduct the proceedings in an expeditious manner.
CLAIMANT submits that as the Tribunal has the power to exclude evidence, the testimony of
Mr. Martyr should not be recorded as it is irrelevant to the case, and immaterial to its
outcome. Further, the testimony is in the nature of a fishing expedition which is not allowed
in international arbitration. Also, the exclusion of the testimony would not violate due
process.
ISSUE 3: RESPONDENT HAS NOT LEGALLY AVOIDED THE CONTRACT
42. CLAIMANT submits that the Contract has not been legally avoided u/Art. 49(1) (a), as
CLAIMANT has duly performed its obligations under the Contract and the Convention [A].
Further, the alleged breach does not constitute fundamental breach u/Art. 25 [B].
Furthermore, RESPONDENT‟S omission has led to the failure of performance by CLAIMANT
[C].
A. CLAIMANT HAS DULY PERFORMED ITS OBLIGATIONS UNDER THE CONTRACT
43. CLAIMANT has duly performed its obligations under the Contract of assisting
RESPONDENT in completing the procedural requirements. CLAIMANT filed the exporter
certificate according to the communication by RESPONDENT dated February 15, 2017.
Although the said communication had the relevant notification attached, but subsequently
it was stated that the exporter certificate signed by the authorized signatory be sent
across.81
44. As the intent of RESPONDENT was not clear from the communication, it shall be derived as
per the standards of a reasonable person of the same kind in those circumstances82
according to Art. 8(2) r/w Art. 8(3) of the Convention. It is pertinent to note that
RESPONDENT and CLAIMANT were Parties to an international transaction, in which the
requirement of the exporter certificate came unprecedented. Since the matter was
urgent,83 any reasonable man of that trade84 would assert that a company would be in a
81
82
Donald J. Smythe, Reasonable Standard for Contract Interpretations under the CISG, CARDOZO
JOURNAL OF INTERNATIONAL AND COMPARATIVE LAW, September 2016, at 14 [“Smythe”].
83
84
Smythe, supra note 82, at 15.
Page | 12
better position to know the law of its land and thus, convey the intricacies of the same as
well.
45. Thus, as different terminologies were used in the notification and the communication,
CLAIMANT relied on the words of RESPONDENT looking at the urgency of the matter, and
filed an exporter certificate signed by the authorized signatory. Hence, by providing the
certificate as per the communication, CLAIMANT has duly performed its obligation under
the Contract, of reasonably assisting the buyer for all procedural formalities during
delivery
B. THE ALLEGED BREACH DOES NOT CONSTITUTE FUNDAMENTAL BREACH U/ART. 25
46. The alleged breach does not constitute fundamental breach u/Art. 25 of the Convention,
which provides that a breach is fundamental only if a substantial deprivation of
expectations was caused by the breach, which was reasonably foreseeable to the
breaching party.85 Thus, the alleged breach does not constitute fundamental breach; as
first, the breach did not cause substantial deprivation [I]. Second, the substantial
deprivation was not foreseeable [II].
I. The breach did not cause substantial deprivation
47. The alleged breach did not cause any substantial deprivation to RESPONDENT. A breach
can be considered fundamental if it results in such detriment which substantially deprives
the aggrieved party of what he was entitled to expect under the contract.86 However, it is
to be kept in mind that the remedy of avoidance is only available as a last resort,87 as the
underlying purpose of fundamental breach is more concerned with preserving the
enforceability of the contract, if it is at all feasible and avoiding any economic waste. 88
48. In the present case, the Contract as a whole included two installments.89 RESPONDENT
cannot avoid the Contract in its entirety,90 as only one installment of the goods was seized
while the other installment could still have been delivered. Considering that a detriment
would only become a fundamental breach when the aggrieved party has lost interest in
85
United Nations Convention on Contracts for International Sale of Goods, (January 1988), Art. 25 [“CISG”].
86
Mirghasem Jafarzadeh, Buyer's Right to Withhold Performance and Termination of Contract: A Comparative
Study Under English Law, Vienna Convention on Contracts for the International Sale of Goods 1980, Iranian
and Shi'ah Law, INSTITUTE OF INTERNATIONAL COMMERCIAL LAW, (January 29, 2018, 12:58 AM),
http://www.cisg.law.pace.edu/cisg/biblio/jafarzadeh1.html.
87
Landgericht [Regional Court], Case No. 5 HKO 3936/00, February 27, 2002, (Germany) (Globes Case).
88
KOCH, supra note 53, at 294.
89
C LAIMANT‟S Exhibit No. 3.
90
CISG, supra note 85, Art. 73(1).
Page | 13
receiving performance under the contract,91 it cannot be claimed that the confiscation of
merely the first installment caused such substantial deprivation that RESPONDENT could
avoid the whole Contract. Thus, the alleged breach has not caused any substantial
deprivation to RESPONDENT.
II. The substantial deprivation was not foreseeable
49. The substantial deprivation was not foreseeable. In order to constitute a fundamental
breach of contract, the knowledge or foreseeability92 of the consequences is an essential
criterion.93 Non-foreseeability of the consequences exempts the breaching party from its
liability for breach of the contract.94 Generally, foreseeability is referred at the time of
conclusion of the contract, and only in exceptional circumstances subsequent information
is taken into account.95 Further, where subsequent information is considered, it should be
provided only up to the time of commencement of preparations in view of performance.96
50. In the present case, the information regarding the requirement of the exporter certificate
was provided even after the delivery had been made. Such late information would clearly
be outside the scope of Art. 25 as it would deprive the party of the opportunity to give
special attention to minor details of performance.97 Thus, it cannot be considered that the
substantial deprivation was foreseeable.
51. Further, Art. 25 is composed of both an objective and subjective test of foreseeability,98
where the breaching party has to show that it had not foreseen the detriment and a
reasonable man would not have foreseen it either.99 CLAIMANT had filed the exporter
certificate on February 16, 2017 and informed about it to RESPONDENT on February 17,
2017. CLAIMANT had also offered to provide any further assistance with regard to the
procedural requirements.100 In such circumstances, CLAIMANT or any reasonable man
91
Graffi, supra note 54, at 340.
92
93
FRITZ ENDERLEIN & DIETRICH MASKOW, INTERNATIONAL SALES LAW 115 (1992) [“ENDERLIN &
MASKOW”].
94
95
ENDERLIN & MASKOW, supra note 93, at 116.
96
Id.
97
JOHN HONNOLD, UNIFORM LAW FOR INTERNATIONAL SALES UNDER THE 1980 UNITED NATIONS CONVENTION
258 (2d ed. 1991) [“HONNOLD”].
98
Ignacio Corbera Dale, Fundamental Breach of Contract under the CISG, UNION INTERNATIONALE DES
AVOCATS, (January 27, 2018, 08:16 PM), www.uianet.org/sites/.../CORBERA%20DALE,%20Ignacio%20-
%20Presentation.pdf.
99
Final Award in ICC Case No. 9187, in 11 ICC INTERNATIONAL COURT OF ARBITRATION
BULLETIN 93, (2000).
100
Page | 14
would have only foreseen, that in case of any non-conformity of documents, RESPONDENT
would inform about the same.
52. Where such substantial deprivation comes as a surprise to the breaching party, it can
escape the ambit of fundamental breach.101 Thus, the confiscation of the goods which
caused substantial deprivation to RESPONDENT was not foreseeable.
C. RESPONDENT’S OMISSION HAS LED TO THE FAILURE OF PERFORMANCE BY

CLAIMANT
53. RESPONDENT‟s omission has led to the failure of performance by CLAIMANT, and thus it
cannot rely on such failure. Art. 80 of the Convention entails that a party to a contract will
not obtain any rights out of the breach by the other party when it has caused the breach by
its own act or omission.102 This is so, because such acts by one party which preclude
performance by the other party is inconsistent with both party‟s conjoint expectations.103
54. Art. 80, which incorporates the general obligations of good faith of Art. 7(1)104 is placed
under the heading exemption and thus, it exempts responsibility from all the remedies,
including avoidance.105 In the present case, RESPONDENT‟s omission has led to the failure
of performance by CLAIMANT as, RESPONDENT has breached its duty to cooperate [I] and
RESPONDENT breached its obligation to provide an opportunity to cure the non-conformity
[II].
I. RESPONDENT has breached its duty to cooperate
55. RESPONDENT breached its duty to cooperate with CLAIMANT in effecting the delivery of a
conforming exporter certificate. The duty to cooperate, which is a recognized principle in
international trade,106 requires parties to not hinder the execution of the contract and is
incorporated in the Convention u/Art. 80.107
56. The duty of the buyer u/Art. 60(a) of the Convention includes making all reasonable
preparations,108 including completion of various kinds of formalities109 for taking the
101
MICHAEL WILL, Article 25, in BIANCA-BONELL COMMENTARY ON THE INTERNATIONAL SALES LAW 205, 215
(Cesare Massimo Bianca & Michael Joachim Bonell eds., 1987).
102
CISG, supra note 84, Art. 80.
103
HONNOLD, supra note 97, at 555.
104
SCHWENZER, supra note 52, at 1088.
105
Thomas Neumann, Shared responsibility under Article 80 CISG, NORDIC JOURNAL OF COMMERCIAL
LAW, 2009, at 5 [“Neumann”].
106
XXX Ltd. v. YYY S.r.l., Ad Hoc Arbitration, September 28, 2001, (Italy).
107
108
Henry Deeb Gabriel, The Buyer’s Performance Under the CISG: Articles 53-60 Trends in the Decisions, 25
JOURNAL OF LAW AND COMMERCE 273, 282, (2005-06).
Page | 15
delivery of the goods. The duty further consists of doing such acts which could
reasonably assist the seller in obtaining import documents and subsequently placing the
goods at the buyer‟s disposal.110 Such duty of the buyer is one of the important aspects of
a duty to cooperate.111
57. Further, the primary obligation of the buyer to complete all the formalities at the port of
import, including clearance of the goods, is also specifically mentioned under Clause
13(c) of the Contract.112 In addition to this primary responsibility, the obligations of the
buyer can be determined and interpreted according to the Incoterms,113 which are
incorporated in the Convention through Art. 9(2).114 B10 of the CFR Incoterms Rules also
provide that the buyer must provide any information of the requirements in a timely
manner.115
58. These responsibilities on the part of RESPONDENT were not performed properly as it failed
to inform CLAIMANT about the requirement of the exporter certificate on time.
RESPONDENT informed CLAIMANT about the certificate five days after the delivery was
made,116 even when the notification was released on January 20, 2017,117 and also
RESPONDENT was informed about the requirement by the Customs Authorities on
February 13, 2017 itself.
59. Additionally, as stated earlier, even the communication in which RESPONDENT informed
CLAIMANT about the requirement of the additional document was ambiguous. Therefore,
by non-performance of its various obligations, RESPONDENT failed to cooperate with
CLAIMANT.
II. RESPONDENT breached its obligation to provide an opportunity to cure the non-
conformity
60. RESPONDENT breached its obligation to provide an opportunity to cure the non-
conformity. CLAIMANT had the right to cure the lack of conformity (i), and RESPONDENT
failed to notify about the non-conformity (ii).
109
DENNIS TALLON, INTERNATIONAL SALES: THE UNITED NATIONS CONVENTION FOR THE INTERNATIONAL SALE
OF GOODS, 7-7 (Nina M. Galston & Hans Smit eds., 1984).
110
DIETRICH MASKOW, Article 60, in BIANCA-BONELL COMMENTARY ON THE INTERNATIONAL SALES LAW 435,
438 (Cesare Massimo Bianca & Michael Joachim Bonell eds., 1987).
111
112
113
114
CISG, supra note 85, Art. 9(2).
115
JAN RAMBURG, ICC GUIDE TO INCOTERMS 2010 196 (2011) [“RAMBURG”].
116
117
RESPONDENT‟S Exhibit No. 2.
Page | 16
i. CLAIMANT had the right to cure the lack of conformity
61. CLAIMANT humbly submits that it had the right to cure the lack of conformity. Art. 34 of
the Convention provides for the seller‟s right to cure a non-conforming tender prior to the
date of performance.118 The provision covers all documents which give the buyer control
over the goods.119 It permits the seller to cure any lack of conformity in documents of sale
if he has delivered them on or before the date of delivery.120 The date for delivery can be
inferred from the contract or determined by reference to a usage or practice, and only a
delivery after such date would constitute a breach of contract.121
62. This right of curing any non-conformity of documents reflects the general principle of the
Convention which is to preserve the enforceability of the contract wherever possible.122
The idea of fundamental breach must be construed in the light of possibility to cure,123
and an offer to cure.124 Further, where the buyer does not provide the seller with the
opportunity to make use of his right to cure the non-conformity, he is not entitled to avoid
the Contract.125
63. The delivery date for the exporter certificate was February 25, 2017, as it could be filed at
any time before completion of 15 days from the date of import.126 CLAIMANT filed the
exporter certificate on February 16, 2017 itself and also offered to further assist in any
manner if required.127 Thus, as there was time till February 25, 2017 to cure the defects in
the certificate by easily filing a new certificate, delivery by CLAIMANT did not constitute a
breach, and it had a right to cure the non-conformity.
ii. RESPONDENT failed to notify about the non-conformity
64. RESPONDENT failed to notify about the non-conformity, and thus, cannot rely on it to
avoid the Contract. RESPONDENT had a duty to examine the goods u/Art. 38 and provide a
notice of non-conformity u/Art. 39 of the Convention. Since a breach of duty to transfer
suitable documents is treated exactly the same as the delivery of non-conforming
118
119
OLE LANDO, Article 34, in BIANCA-BONELL COMMENTARY ON THE INTERNATIONAL SALES LAW 265, 265
(Cesare Massimo & Bianca & Michael Joachim Bonell eds., 1987).
120
121
UNCITRAL DIGEST, supra note 49, at 133.
122
123
Id. at 284.
124
125
Landgericht [District Court], Case No. 6 O 107/98, September 24, 1998, (Germany) (Cloth case).
126
CLAIMANT‟s Exhibit No. 4.
127
CLAIMANT‟s Exhibit No. 5.
Page | 17
goods,128 the provisions u/Art. 38 and 39 which apply to goods129 would apply
analogously to a lack of conformity of documents.130 This is also because the right to cure
u/Art. 34 cannot be exercised unless the documents are examined131 and any non-
conformity is made known to the seller.132
65. In order to rely on a lack of conformity and claim avoidance thereto, 133 the buyer must
send a notice of such non-conformity as soon as he knows or ought to have known about
such non-conformity134 by inspecting the documents within a reasonable period of
time.135 The purpose of this obligation is to prevent disputes136 by clarifying the non-
conformities quickly;137 as such early detection enables the seller to remedy the non-
conformity, if possible.138
66. RESPONDENT had an obligation to check the document when CLAIMANT attached a copy
of the filed exporter certificate to its communication dated February 17, 2017.139
RESPONDENT ought to have known about the non-conformity, as the signature of the
authorized representative was clearly evident from the copy attached to the
communication. A prompt examination by RESPONDENT would have led it to discover the
non-conformity.
67. The good faith principle embodies in itself the duty that the parties ought to communicate
and cooperate for the cure of any defects.140 Thus, by virtue of Art. 39, the RESPONDENT
cannot rely on the lack of conformity as it failed to notify the CLAIMANT about the same
even when the CLAIMANT‟S right of cure was easily exercisable. A similar principle is
also embodied u/Art. 80 of the Convention. Hence, by virtue of Art. 39 and Art. 80,
RESPONDENT cannot avoid the Contract as it failed to notify about the non-conformity.
128
DR. PETER SCHLECHTRIEM, UNIFORM SALES LAW: THE UN-CONVENTION ON CONTRACTS FOR THE
INTERNATIONAL SALE OF GOODS 66 (1986).
129
Bundesgerichtshof [Federal Supreme Court], Case No. VIII ZR 51/95, April 3, 1996, (Germany) (Cobalt
Sulphate Case).
130
131
Sanna Kuoppala, Examination of the Goods under the CISG and the Finnish Sale of Goods Act, INSTITUTE
OF INTERNATIONAL COMMERCIAL LAW, (January 28, 2018, 01:55 PM),
https://cisgw3.law.pace.edu/cisg/biblio/kuoppala.html#76.
132
ENDERLIN & MASKOW, supra note 93, at 159.
133
Landgericht [Regional Court], Case No. 4 O 369/99, January 19, 2001, (Germany) (Live Sheep Case).
134
Rheinland Versicherungen v. S.r.l. Atlarex and Allianz Subalpina S.p.A, Tribunale [District Court], July 12,
2000, (Italy).
135
ALBERT H. KRITZER & SIEG EISELEN, INTERNATIONAL CONTRACT MANUAL 89-28 (2013).
136
Oberlandesgericht [Court of Appeal], Case No. 16 U 20/06, August 31, 2006, (Germany) (Chlorine Tablets
Case).
137
Oberlandesgericht [Court of Appeal], Case No. 8 U 1667/97, May 26, 1998, (Germany) (Live Fish Case).
138
139
140
Page | 18
CLAIMANT submits that the Contract has not been legally avoided by RESPONDENT u/Art.
49(1) (a), since there was no breach of obligation by CLAIMANT. Arguendo, the alleged
breach does not constitute fundamental breach as neither was there any substantial
deprivation to RESPONDENT, nor, was the deprivation caused, if any, foreseeable to
CLAIMANT. Moreover, RESPONDENT cannot avoid the Contract for such breach u/Art. 80 as
Respondent‟s own omission led to failure of performance by CLAIMANT.
ISSUE 4: RESPONDENT IS NOT ENTITLED FOR COMPENSATORY DAMAGES
68. CLAIMANT submits that RESPONDENT is not entitled for compensatory damages as the
requirements for a claim of damages u/Art. 74 are not fulfilled [A]. Even if damages can
be claimed u/Art 74, CLAIMANT is exempted from damages u/Art. 80 [B].
A. THE REQUIREMENTS FOR A CLAIM OF DAMAGES U/ART. 74 ARE NOT FULFILLED
69. The requirements for claim of damages u/Art. 74 of the Convention are not fulfilled. U/
Art. 74 damages equal to the loss suffered as a consequence of breach will be awarded.
Further, such damages are provided only up to the extent of what was, or ought to have
been foreseen at the conclusion of the contract, by the breaching party, as a possible
consequence of breach.141
70. RESPONDENT is not entitled to damages as CLAIMANT has already proved above that it has
not breached any of its obligations.142 Further, the requirements for claim of damages
u/Art. 74 of the Convention are also not fulfilled, as; the loss suffered by RESPONDENT
has not been caused by the alleged breach of CLAIMANT [I], and the loss suffered was not
foreseeable [II]. Further, RESPONDENT did not prove its loss with reasonable certainty
[III].
I. The loss suffered by RESPONDENT has not been caused by the alleged breach of
CLAIMANT
71. The loss suffered by RESPONDENT has not been caused by the alleged breach by
CLAIMANT. In order to recover damages for breach of contract u/Art. 74, the aggrieved
party must prove that it has suffered loss as a result of the breach, 143 i.e., there is a causal
141
142
¶43-45.
143
Opinion No. 6, supra note 62, at ¶2.2.
Page | 19
link between the loss and the breach of contractual obligations.144 Where some event or
act of the injured party occurs after the breach but before the loss, such acts or omissions
wholly break the causal link.145
72. In the present case, RESPONDENT suffered loss since the goods were confiscated by the
Customs Authorities. However, the goods would not have been confiscated, if the correct
exporter certificate had been filed on time. This could not be done as RESPONDENT failed
to fulfill its obligation of providing an opportunity to CLAIMANT to cure the non-
conforming certificate, by informing CLAIMANT about the non-conformity.
73. This omission on part of RESPONDENT is the intervening cause, which breaks the chain of
causation between the alleged breach of obligation by CLAIMANT and the loss suffered by
RESPONDENT.146 Thus, the failure of RESPONDENT to provide an opportunity for cure is
much more responsible for the loss, than the breach, and it is unfair to hold CLAIMANT
liable.147 Hence, as it is clear, the facts disclose no causation between the loss suffered by
RESPONDENT and the alleged breach.
II. The loss was not foreseeable
74. The loss suffered was not foreseeable. The foreseeability test which is used as a method
of limiting damages,148 is widely based on the function of allocation of risk as the test is
understood in light of the nature and purpose of the contract.149 Foreseeability of a loss is
to be assessed as of the time of the conclusion of the contract, as only the risk assumed by
the party at the conclusion of the contract should, as a rule, be of legal significance.150
75. Further, Art. 74 provides that foreseeability depends on what the party knew or ought to
have known at the time of conclusion of contract as a possible consequence of the
breach.151 A result can only be foreseeable if the breaching party has or ought to have the
knowledge of relevant facts and matters.152 In the present case, CLAIMANT‟S duty of
assistance under the Contract has to be understood in the light of the relevant
circumstances at the time of conclusion of the Contract.
144
Federal Arbitration Court, Case No. A43-21560/2004-27-724, April 2, 2007, (Russian Federation)
(Accumulator Batteries Case).
145
DJAKHONGIR SAIDOV, THE LAW OF DAMAGES IN THE INTERNATIONAL SALE OF GOODS 85 (2008)
[“SAIDOV”].
146
Id. at 85.
147
Id. at 86.
148
Id. at 101.
149
Id. at 102.
150
Id. at 119.
151
152
SAIDOV, supra note 145, at 105.
Page | 20
76. CLAIMANT submits that the requirement of exporter certificate was an unprecedented
requirement, which only arose after the conclusion of the Contract.153 Thus, CLAIMANT or
any reasonable person cannot be presumed to have the knowledge of the requirement or
any losses resulting from its non-fulfillment. Such presumption would be grossly unfair
and against the purpose of allocating the risk in fair and reasonable manner. 154 Thus, as
CLAIMANT did not have the requisite knowledge of the relevant facts and circumstances at
the time of conclusion of the Contract, the loss caused was not foreseeable.
III. RESPONDENT did not prove its losses with reasonable certainty
77. RESPONDENT has failed to prove its losses with reasonable certainty, which is an integral
part of the exercise of the right to damages u/Art. 74.155 The underlying principle is that
the damages claimed must not place the aggrieved party in a better position than it would
have enjoyed if the contract would have been properly performed.156 Therefore, in a claim
of damages u/Art. 74, the aggrieved party has the burden to prove, with reasonable
certainty, that it suffered loss as a result of the breach, and also the extent of the loss.157
78. The aggrieved party must provide sufficient evidence to show the fact of a loss and the
amount of damages with reasonable certainty.158 In the present case, RESPONDENT has
only stated that it is entitled to compensatory damages, as it had to purchase of low
quality goods as a consequence of the breach which has led to irreparable losses to it.
However, it failed to prove any loss caused as a result of such purchase or the consequent
late delivery. Thus, it has clearly failed to show the nature of loss as well as the extent of
it.
79. Further, even if the Tribunal determines the aggrieved party suffered a loss as a
consequence of the breach, the same has to be determined according to the circumstances
of the particular case.159 In the present case, considering the fact that RESPONDENT is a
primary supplier to the Government of Raconia, and gets subsidies from the Government
for procurement of raw material160 and also that RESPONDENT had already procured
153
154
155
Id. at 168.
156
Opinion No. 6, supra note 62, at ¶9.
157
Id. at ¶2.
158
Delchi Carrier, S.p.A. v. Rotorex Corp., 88-CV-1078, Federal District Court, September 9, 1994, (United
States).
159
Opinion No. 6, supra note 62, at ¶1.1.
160
Page | 21
substitute raw material by placing another order, it is highly improbable that any losses
would have been suffered as a consequence of the breach.
80. Thus, considering the circumstances of the case, RESPONDENT‟S burden to prove its losses
with reasonable certainty increases, which it has failed to fulfilled, as it has merely
claimed US$ 150,000 as compensatory damages161 without providing any certain grounds
for such claim.
B. CLAIMANT IS EXEMPTED FROM DAMAGES
81. CLAIMANT is exempted from damages u/Art. 80 of the Convention which provides that an
aggrieved party cannot rely on the non-performance of duties by the other party, to the
extent that the aggrieved party itself has caused the non-performance by its acts or
forbearances.162 Further, Art. 39 of the Convention also provides that the buyer cannot
rely on lack of conformity if it fails to notify the seller about the same. Thus, CLAIMANT
is exempt from all legal consequences163 including any liability to pay damages,164 as its
failure to perform its obligations under the Contract, was due to the lack of cooperation of
RESPONDENT itself.
82. It was the responsibility of RESPONDENT under Clause 13(c) of the Contract, to complete
formalities in the port of import. CLAIMANT had no further obligation than to assist
RESPONDENT,165 which it had done by providing the exporter certificate as per the
communication of RESPONDENT. Even though the certificate was rejected due to non-
conformity, a correct certificate could have been filed. Thus, RESPONDENT cannot rely on
the non-conformity, as it could have been cured but for RESPONDENT‟S own omission to
notify and provide a chance to correct it.
83. Art. 80 which deals with exemption from responsibility in all respects affects all remedies
available,166 including a claim for possible damages167 which may be recoverable under
Art. 74.168 In the present case, RESPONDENT hindered the performance of the Contract169
161
Statement of Defence and Counter-Claim, ¶9.
162
Landgericht [Regional Court], Case No. 10 O 5423/01, February 20, 2002, (Germany) (Shoes Case) [“Shoes
Case”].
163
164
Oberlandesgericht [Court of Appeal], Case No. 7 U 2070/97, July 9, 1997, (Germany) (Leather Goods Case).
165
166
Neumann, supra note 105, at 6.
167
Shoes Case, supra note 162.
168
Oberlandesgericht [Court of Appeal], Case No. 2 U 31/96, January 31, 1997, (Germany) (Acrylic Blankets
Case).
169
Aleksandra Jurewicz, A Milestone in Polish CISG Jurisprudence and its Significance to the World Trade
Community, 28 JOURNAL OF LAW AND COMMERCE 63, 67, (2009).
Page | 22
due to its own unreasonable behavior.170 Thus, by virtue of Art. 39 & 80 of the
Convention, it is precluded from asserting any remedy171 and CLAIMANT is exempted
from damages.
CLAIMANT submits that RESPONDENT is not entitled for compensatory damages u/Art. 74 of
the Convention, as the loss caused was not as a result of breach of obligation by CLAIMANT.
Further, the loss was not foreseeable to CLAIMANT and RESPONDENT has failed to prove the
loss with reasonable certainty. In any case, even if damages can be claimed u/Art. 74,
CLAIMANT is exempt from paying any damages as per Art. 80, as failure of performance by
CLAIMANT is attributable to RESPONDENT itself.
ISSUE 5: STORAGE COSTS ARE NOT RECOVARABLE FROM CLAIMANT
84. CLAIMANT submits that storage costs are not recoverable from CLAIMANT pursuant to
demand raised by the Raconian Customs Authorities since; invalid avoidance of the
Contract by RESPONDENT does not release it from its obligations [A]. Even if the Contract
was validly avoided, RESPONDENT has failed to perform its obligations arising after the
avoidance of the Contract [B]. Further, costs cannot be recovered as damages u/Art. 74
[C].
A. INVALID AVOIDANCE DOES NOT RELEASE RESPONDENT FROM ITS OBLIGATIONS
85. Since the avoidance of Contract by RESPONDENT was invalid, it was not released of its
obligations under the Contract and the Convention.172 RESPONDENT had the obligation of
completing all formalities at the port of import, under Clause 13(c) of the Contract,173
after which it had the obligation to take over the goods u/Art. 60(b) of the Convention
which forms part of its obligation to take delivery of the goods.
86. Further, the wording of the contract has to be read in conjunction with the provisions of
the CFR clauses of the Incoterms 2010.174 Under B2 of CFR, the buyer has the duty to
clear the goods for import. In B6 of CFR, the buyer has to pay the costs arising from the
170
Allison E. Butler, Limitation of Remedies Due to Failure of Performance Caused by Other Party:
Comparison Between Provisions of the CISG and Counterpart Provisions of the
Principles of European Contract Law, INSTITUTE OF INTERNATIONAL COMMERCIAL LAW, (January
29, 2018, 12:54 PM), http://cisgw3.law.pace.edu/cisg/text/peclcomp80.html.
171
INGEBORG SCHWENZER & SIMON MANNER, SHARING INTERNATIONAL COMMERCIAL LAW ACROSS NATIONAL
BOUNDARIES: FESTSCHRIFT FOR ALBERT H. KRITZER ON THE OCCASION OF HIS EIGHTIETH BIRTHDAY 475
(Camilla B. Andersen & Ulrich G. Schroeter eds., 2008).
172
Amtsgerichst [Local Court], Case No. 3 C 75/94, June 14, 1994, (Germany).
173
174
Interim Award in ICC Case No. 7645, Supplier v. Buyer, (1995) XXVI YBCA 130.
Page | 23
clearance including all charges and costs of carrying out custom formalities.175 Also, as
per B5 of CFR, the risk of loss of or damage to the goods has to be borne by the buyer
from the moment the goods are placed on board the vessel at the port of shipment.
87. Thus, as the Contract was not validly avoided by RESPONDENT, the goods were at
RESPONDENT‟S risk by virtue of Incoterms, and its obligation to complete the custom
formalities and take over the goods, subsisted. Since the storage cost was incurred
because of the failure of RESPONDENT to fulfill these obligations, RESPONDENT has no
right to reclaim any expenses pertaining to the lying of the goods in the customs
warehouse. Hence, RESPONDENT cannot claim the storage costs, as illegal avoidance of
the Contract does not release RESPONDENT of its obligations.
B. RESPONDENT FAILED TO PERFORM ITS OBLIGATIONS ARISING AFTER THE

AVOIDANCE OF THE CONTRACT
88. In Arguendo, RESPONDENT failed to perform its obligations arising after the avoidance of
the Contract. According to the Convention, the contract is not entirely annulled by the
avoidance, but rather is changed into a winding up relationship176 wherein, the buyer has
the obligation to arrange the restitution of the goods to the seller and preserve them until
they are restituted.177
89. Even if the Contract was validly avoided by RESPONDENT, it is not entitled to recover the
storage costs from CLAIMANT, since it arose because of the failure of RESPONDENT to
perform its obligations. RESPONDENT had the obligation to preserve the goods [I]; and
restitute the goods [II].
I. RESPONDENT had the obligation to preserve the goods
90. RESPONDENT had the obligation to preserve the goods u/Art. 86 of the Convention. The
storage costs could have been avoided altogether, had RESPONDENT taken timely
possession of the goods, as part of its duty of preservation. If goods are dispatched to the
buyer and he intends to reject them, he cannot then avoid the obligation178 to preserve the
175
RAMBURG, supra note 137, at 195.
176
Oberster Gerichtshof [Supreme Court], Case No. 1 Ob 74/99k, June 29, 1999, (Austria) (Dividing Wall
Panels Case).
177
Francesco G. Mazzotta, Guide to Articles 85, 86, 87, 88 Comparison with Principles of European contract
Law (PECL), INSTITUTE OF INTERNATIONAL COMMERCIAL LAW, (January 31, 2018, 05:51 PM),
https://iicl.law.pace.edu/cisg/page/guide-Art.icles-85-86-87-88-comparison-principles-european-contract-law-
pecl.
178
Henry D. Gabriel, A Primer on the United Nations Convention on the International Sale of Goods: From the
Perspective of the Uniform Commercial Code, 7 INDIANA INTERNATIONAL & COMPARATIVE LAW
REVIEW 279, 309, (1997).
Page | 24
goods, if they are placed at his disposal at their destination.179 The reason for this rule is
that the party which is in a better position to gain control of the goods is obliged to take
due care for them in case of conflict,180 provided that the other party does not have an
opportunity to take charge of them.181
91. In the present case, RESPONDENT had the obligation to preserve the goods after it avoided
the Contract since they had been placed at the port of destination.182 RESPONDENT was in
a better position to gain control of the goods, since the Customs Authorities were only
communicating with the importer-on-record, and not the foreign exporter.183 Thus, as
only RESPONDENT had the power to take possession of the goods from the port of the
destination, he was obligated to take possession of the goods on behalf of the seller.
92. Furthermore, it was possible for RESPONDENT to take possession of the goods without any
unreasonable inconvenience or costs. Unreasonable inconvenience is decided on a case to
case basis,184 and reasonability of the costs is decided by seeing its proportionality to the
value of the goods.185 In the present case, RESPONDENT was merely required to file an
appeal186 and pay custom duty to clear the goods from the customs,187 which cannot be
considered unreasonable, keeping in mind that this could only be done by RESPONDENT as
the importer-on-record. Thus, on avoidance of the Contract, RESPONDENT was under an
obligation to take possession of the goods on behalf of the CLAIMANT, and preserve them.
II. RESPONDENT had the obligation to restitute the goods
93. RESPONDENT had the obligation to restitute the goods u/Art. 81 of the Convention, which
provides that a party may claim restitution of what has been performed under the
contract.188 In the present case, CLAIMANT performed its obligations under the Contract as
it had delivered the goods and was thus, authorized u/Art. 81(2) to claim restitution. The
requirement of restitution binds both parties and not just the party whose non-
performance led to avoidance.189
179
180
181
Id.
182
183
184
185
Id. at 1151.
186
187
188
Florian Mohs, Remarks on the manner in which Art. 7.3.5 and 7.3.6 of the UNIDROIT Principles compare
with Articles 81 and 82 of the CISG, INSITUTE OF INTERNATIONAL COMMERCIAL LAW, (January 29,
2018, 12:50 AM), https://www.cisg.law.pace.edu/cisg/biblio/mohs.html.
189
CISG Advisory Council Opinion No. 9: Consequences of Avoidance of the Contract, ¶3.7 [“Opinion No. 9”].
Page | 25
94. Since RESPONDENT had exercised its right to reject the goods, and subsequently
CLAIMANT had claimed the return of its goods,190 RESPONDENT was bound to arrange for
their restitution, irrespective of the fact that it was CLAIMANT‟s alleged non-performance
that led to the avoidance. Further, under the general principle of good faith u/Art. 7(1),191
RESPONDENT had the duty to reduce any extra costs that may arise, 192 which it could have
done by fulfilling its obligations u/Art. 86 and 81(2)193 within a reasonable time.194 Thus,
since the costs occurred due to RESPONDENT‟S own failure to perform its obligations to
restitute and preserve the goods, the same cannot be recovered from CLAIMANT.
C. STORAGE COSTS CANNOT BE RECOVERED AS DAMAGES U/ART. 74
95. RESPONDENT cannot recover the storage costs as damages u/Art. 74 of the Convention,
pursuant to a demand by the Raconian Customs Authorities, since; there is no causation
between the storage costs and the breach [I]. Further, the storage costs were not
foreseeable by CLAIMANT [II].
I. There is no causation between the storage costs and the breach
96. There is no causation between storage costs and the breach. Art. 74 of the Convention
provides that damages for breach of contract comprise all losses that were caused by the
breach.195 However, in the present case, the storage costs have not been caused by the
breach of obligation by CLAIMANT, but rather by the non-performance of obligations by
RESPONDENT itself.
97. As discussed above, since avoidance of the Contract by RESPONDENT was not valid, it
was not released of its duty to complete the customs formalities and take over the goods,
which it failed to fulfill. Further, even if the Contract was validly avoided, RESPONDENT
had the duty to preserve and restitute the goods, which it again failed to perform. The
storage costs would not have arisen, but for the non-fulfillment of obligations by
RESPONDENT and thus, the costs have not occurred by the breach of the Contract by
CLAIMANT.
190
191
Alysha Salinger, The United Nations Convention on Contracts for the International Sale of Goods (CISG):
What is the Relevant Time of Foreseeability in Art. 25?, INSTITUTE OF INTERNATIONAL COMMERCIAL
LAW, (January 28, 2018, 12:43 AM), https://www.cisg.law.pace.edu/cisg/biblio/salinger.pdf.
192
Id.
193
Bruno Zeller, Comparison between the provisions of the CISG on Mitigation of losses (Art.. 77) and the
counterpart provisions of PECL (Art. 9:505), INSTITUTE OF INTERNATIONAL COMMERCIAL LAW,
(January 28, 2018, 12:49 AM), http://www.cisg.law.pace.edu/cisg/biblio/zeller77.html.
194
Opinion No. 9, supra note 189, ¶2.6.
195
UNCITRAL DIGEST, supra note 50, at 351.
Page | 26
II. The storage costs were not foreseeable by CLAIMANT
98. The storage costs were not foreseeable. Damages u/Art. 74 may not exceed the loss which
the party in breach foresaw or ought to have foreseen at the time of conclusion of the
contract, in the light of the facts and matters of which he then knew or ought to have
known, as a possible consequence of the breach of contract.196 The real concern of the
foreseeability rule is the type, nature as well as the extent of the loss and whether they
were reasonably foreseeable.197
99. CLAIMANT‟s obligation under the Contract consisted in merely reasonably assisting
RESPONDENT during delivery.198 It could not have been foreseen at the time of conclusion
of the Contract that breach of this obligation would result in loss in the nature of
confiscation of goods leading to storage cost. Further, the foreseeable loss is only that
which cannot be reasonably avoided or reduced.199 In the present case, RESPONDENT
could have reasonably avoided the storage costs by preserving the goods. Since
RESPONDENT failed in doing so, the costs cannot be considered to be foreseeable.
100. Thus, RESPONDENT cannot recover the storage costs from CLAIMANT u/Art. 74, since the
costs are not a result of the breach of Contract by CLAIMANT. Further, they were not
foreseeable to CLAIMANT at the time of conclusion of the Contract. Hence, RESPONDENT
is liable to bear the storage costs.
CLAIMANT submits that as the avoidance of Contract by RESPONDENT was illegal, it was not
released of its obligations under the Contract and the Convention, and hence had the duty to
pay the storage costs. Further, even if the avoidance was legal, the costs cannot be recovered
from CLAIMANT, as they have arisen due to failure of RESPONDENT to perform its duty of
preservation and restitution. Additionally, as there was no causation between the costs and
the alleged breach, and the costs were also not foreseeable the same cannot be recovered from
CLAIMANT u/Art. 74.
196
197
198
199
Page | 27
MEMORANDUM FOR CLAIMANT PRAYER
PRAYER
On the basis of prior and foregoing written submissions, CLAIMANT respectfully requests this
Tribunal, to FIND and DECLARE that-
1. The Expedited Procedure Provisions u/Art. 30 of the Amended Rules are applicable in
the facts and circumstances arising out of this claim;
2. The testimony of Mr. Antony Martyr should not be recorded in this case;
3. RESPONDENT has not legally avoided the Contract;
4. RESPONDENT is not entitled for compensatory damages;
5. Storage costs are not recoverable form CLAIMANT pursuant to demand raised by the
Raconian Customs Authorities.
Respectfully submitted by the Counsels for CLAIMANT.
Page | XIX

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THE 3RD NLIU-JUSTICE R.K. TANKHA MEMORIAL INTERNATIONAL MOOT

INTERNATIONAL CHAMBER OF COMMERCE ARBITRAL TRIBUNAL AT

ANTARIA INTERNATIONAL INC.

RACONIAN DEFENCE TECHNOLOGIES LTD.

MEMORANDUM FOR CLAIMANT

TABLE OF ABBREVIATIONS .......................................................................................... IV

INDEX OF AUTHORITIES ................................................................................................ VI

STATEMENT OF JURISDICTION .................................................................................. XII

STATEMENT OF FACTS ................................................................................................ XIII

ISSUES RAISED................................................................................................................ XVI

SUMMARY OF ARGUMENTS ...................................................................................... XVII

ARGUMENTS ADVANCED .................................................................................................. 1

ISSUE 1: THE EXPEDITED PROCEDURE PROVISIONS U/ART. 30 WILL APPLY .. 1

A. EXPEDITED PROCEDURE PROVISIONS U/ART. 30 WILL APPLY IN ACCORDANCE WITH

ART. 6(1) OF THE ICC ARBITRATION RULES 2012 .......................................................... 1

I. Parties intended to be governed by the expedited procedure at the time of conclusion

II. Subsequent conduct of RESPONDENT confirms its original intention ............................ 3

i. Parties have agreed to the application of Expedited Procedure Provisions u/Art.

B. APPLICATION OF THE EXPEDITED PROCEDURE PROVISIONS WILL NOT VIOLATE THE

DUE PROCESS ..................................................................................................................... 5

ISSUE 2: TESTIMONY OF MR. ANTONY MARTYR SHOULD NOT BE RECORDED

A. THE TRIBUNAL HAS THE POWER TO EXCLUDE EVIDENCE................................................ 6

B. THE TESTIMONY OF MR. ANTONY MARTYR IS NOT ADMISSIBLE IN THE PRESENT

I. The testimony of Mr. Martyr is irrelevant to the case ................................................... 7

C. EXCLUSION OF EVIDENCE WOULD NOT VIOLATE DUE PROCESS .................................... 11

D. THE TRIBUNAL HAS AN OBLIGATION TO CONDUCT THE ARBITRATION

ISSUE 3: RESPONDENT HAS NOT LEGALLY AVOIDED THE CONTRACT ........... 12

B. THE ALLEGED BREACH DOES NOT CONSTITUTE FUNDAMENTAL BREACH U/ART.

I. The breach did not cause substantial deprivation ........................................................ 13

II. The substantial deprivation was not foreseeable ......................................................... 14

C. RESPONDENT’S OMISSION HAS LED TO THE FAILURE OF PERFORMANCE BY

I. RESPONDENT has breached its duty to cooperate ......................................................... 15

i. CLAIMANT had the right to cure the lack of conformity .......................................... 17

ii. RESPONDENT failed to notify about the non-conformity .......................................... 17

ISSUE 4: RESPONDENT IS NOT ENTITLED FOR COMPENSATORY DAMAGES . 19

II. The loss was not foreseeable........................................................................................ 20

B. CLAIMANT IS EXEMPTED FROM DAMAGES ..................................................................... 22

ISSUE 5: STORAGE COSTS ARE NOT RECOVARABLE FROM CLAIMANT ......... 23

B. RESPONDENT FAILED TO PERFORM ITS OBLIGATIONS ARISING AFTER THE AVOIDANCE

I. RESPONDENT had the obligation to preserve the goods ............................................... 24

II. RESPONDENT had the obligation to restitute the goods ................................................ 25

C. STORAGE COSTS CANNOT BE RECOVERED AS DAMAGES U/ART. 74 ............................... 26

II. The storage costs were not foreseeable by CLAIMANT ................................................ 27

PRAYER ............................................................................................................................. XIX

APP.L.R. Law Report Appeal Cases

ASA Swiss Arbitration Association

CFR Cost and Freight

United Nations Convention on Contract for the International

CPR Conflict Prevention and Resolution

et al. and others

F.3d Federal Reporter 3rd Series

IBA International Bar Association

ICC International Chamber of Commerce

ICSID International Centre for Settlement of Investment Disputes

INCOTERMS International Commercial Terms

ITA International Trade Association

PECL Principles of European Contract Law

Pte Ltd. Private Limited Company

SGHC High Court of Singapore

u/Art. under Article

UNCITRAL United Nations Commission on International Trade Law

UNIDROIT The International Institute for Unification of Private Law