The Fourth Issue deals with the question of whether the data supplied by my client is

defective and non-conforming under the CISG.

Members of the tribunal it is humbly submitted that the data were not defective and non-
conforming under Art 35 of CISG.

The counsel would establish that my clients have not supplied defective and non-conforming data
as Firstly, it is submitted that the burden of proof rests on the claimant to demonstrate that the data
provided was non-conforming. Secondly, In any case, the data was not non-conforming. Thirdly,
the right of claimant to rely on non-conformity is extinguished since they did not give any notice.
Fourthly, my clients have acted in good faith throughout and even after the agreement.

• Moving onto the first leg of my argument. I would like the tribunal to refer to pg 534 of
Kroll. It is mentioned from para 195 to 200 that the burden of Proof under Article 35 (1),
35 (2) (a), 35 (2) (b) relies solely on the claimaint. In this context it is submitted that in the
current case also the burden of proof lies with the Claimant to demonstrate that the data
exhibits specific non-conformities that hinders its usability for safe expedition planning, as
per Article 35 of the CISG. A mere report by an AI tool (BranStark) is insufficient evidence
without supporting technical analysis from established industry experts. Moreover, it is
important to note that expeditions in extreme environments always carry inherent risks.
Therefore, to establish non-conformity, the Claimant needs to demonstrate more than mere
theoretical discrepancies.

• Moving onto the second leg of my submissions. Members of the Tribunal, the Claimant's
entire case is based on a single piece of document —an AI report. An AI which has no
track record in analysing data pertaining to extreme tourism, has no evidence supporting
its authenticity and accuracy within this field, no one can explain how it came to its
conclusions ("black box" nature), and finally, is against the findings of an actual expert in
the field, David Attenborough. Not to mention that the report was obtained by violating the
Non-Disclosure clause under clause 38 of the DSA (given on pg. 7 of PO2). As my co-
counsel has already proved in issue 2, the Report can by no stretch of imagination be termed
as an express report.
 Additionally, the interpretation of "conformity" under Article 35 of the CISG should be
guided by the spirit of Article 8. Article 8 calls for consideration of the parties' reasonable
expectations. Our understanding, based on industry practices and the nature of extreme
tourism, is that the Claimant sought data suitable for informing expedition planning, not
hyper-precise data that could guarantee zero-risk scenarios in inherently unpredictable
environments. The level of accuracy found in the re-supplied data, particularly when
considering Prof. Attenborough's report, falls within the realm of what is reasonably
expected given the purpose for which the data was sought.

• Moving onto the third leg of my submissions. Article 39 of CISG provides that the buyer
loses the right to rely on a lack of conformity of the goods if he does not give notice to the
seller specifying the nature of the lack of conformity within a reasonable time after he has
discovered it or ought to have discovered it. Before proving that that the period for
reasonable time has long passed, for removal of any doubts, I would like the tribunal to
note that notice of Arbitration cannot to be considered as a valid notice under this Article.
To support this I would like the tribunal to refer to pg._ of Kroll………

A German court, while interpreting reasonable time, held that a common assumption is that
[the notice period] should be short, normally be not more than a few days. Similarly, The
Austrian Supreme Court in the case of this considered a time span of two weeks for
examination and notification to be generally more than sufficient and, therefore, reasonable
in the sense of Art. 39.

However, in this instant case, members of the tribunal, if you may pls refer to Exhibit C8
on page 21, wherein the report given by Bran Stark was generated on 31st January 2023,
giving ample of time to the claimants to provide notice of non-conformity regarding the
inaccuracy of data, however, no such notice was given to my client

• Moving onto the fourth leg of my submissions. Throughout this transaction and even after
my client completed its contractual obligations, members of the Tribunal, it consistently
 acted in good faith, exceeding their contractual obligations. This commitment to fair
dealing shows that my client have acted in complete consonance to the principle of good
faith that is mentioned in Article 7 of the CISG.
•
• Firstly, while the claimant did not care to specify the format for supplying the data, we,
rather than giving the data in any format that we deemed appropriate, contacted the
claimant to get clarification from their end on the format that they would want the data to
be in. The ld.arbitrators may refer to the para 2 of the witness statement of Carter Durry on
pg 28. This extra step ensured we delivered data that was not just accurate, but also readily
usable within the Claimant's systems.

Secondly, our response to the self-destruct protocol issue further shows our good faith and
due-diligence. Though the self-destruct protocol was only inserted to protect data integrity,
and was triggered by the Claimant's actions, we understood the potential disruption it
caused. Therefore, we promptly re-supplied the, within a single day. This swift action
prioritized the Claimant's expedition timeline, and it demonstrates our commitment to
project’s success.

Ld Arbitrator it is important to note that our actions went beyond the strict requirements of
the contract and we were always readily available in case the claimant required our help.
But what did they choose to do? Breach the confidentially agreement, and submit the data
to a reinforcement AI! Thereafter relying on their report and initiating arbitration without
even asking us for clarification or sending us any notice.

• Moving onto the fifth leg of my submission. Members of the Tribunal, even if one were to
accept that the initial data supply contained a minor non-conformity in the form of the self-
destruct protocol, it is crucial to recognize our swift action to rectify the issue. We
responded within a single day of notification, re-supplying the data without the protocol in
question. This prompt action aligns with our right to cure under Article 48 of the CISG.

Article 48 recognizes the importance of giving sellers an opportunity to address non-

conformities in a timely manner, as long as this doesn't cause undue inconvenience to the
buyer. In this instance, as Ive stated in the fourth limb of my argument, our swift resolution
prevented any significant disruption to the Claimant's expedition planning.

Even though Article 48 of the CISG explicitly states that the buyer retains the right to claim
damage, the significance of the right to cure is that it significantly mitigates any potential
damages the Claimant might seek