VIETNAM CISG PRE-MOOT

1 MARCH – 3 MARCH 2025

MEMORANDUM FOR CLAIMANT

ASIA PACIFIC INSTITUTE OF INFORMATION TECHNOLOGY, KANDY

CASE NO. FAI MOOT 100/2024

ON BEHALF OF AGAINST
GreenHydro Plc Equatoriana RenPower Ltd.
1974 Russell Avenue 1 Russell Square
Capital City Oceanside
Mediterraneo Equatoriana
(CLAIMANT) (RESPONDENT)

DINURU PERERA • PAVARA RAMBUKWELLA • RIDHA THARIK • VENURI NAWAGAMUWA

 MEMORANDUM FOR CLAIMANT APIIT KANDY

ACADEMIC INTEGRITY AND ARTIFICIAL INTELLIGENCE DISCLOSURE

STATEMENT

UNIVERSITY: ASIA PACIFIC INSTITUTE OF INFORMATION TECHNOLOGY, KANDY

COUNTRY: SRI LANKA

ACADEMIC INTEGRITY YES UNSURE NO

We confirm that this memorandum does not include text from
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MEMORANDUM FOR CLAIMANT APIIT KANDY

The aforementioned Academic Integrity and Artificial Intelligence Disclosure Statement has
been signed by the following

Dinuru Perera

Pavara Rambukwella

Ridha Tharik

Venuri Nawagamuwa

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MEMORANDUM FOR CLAIMANT APIIT KANDY

TABLE OF CONTENTS

TABLE OF CONTENTS ___________________________________________________ IV

INDEX OF ABBREVIATIONS AND DEFINITIONS _________________________ VII

INDEX OF AUTHORITIES ________________________________________________ IX

INDEX OF LAWS AND GUIDELINES _____________________________________ XIII

INDEX OF CASES _______________________________________________________ XV

INDEX OF AWARDS ____________________________________________________ XIX

STATEMENT OF FACTS ___________________________________________________ 1

SUMMARY OF ARGUMENTS _______________________________________________ 2

ARGUMENTS ON THE PROCEEDINGS _____________________________________ 3

ISSUE A: THE ARBITRAL TRIBUNAL SHOULD NOT REJECT THE CLAIM FOR
LACK OF JURISDICTION OR ADMISSIBILITY OR AS PART OF ITS DISCRETION 3

I. THE TRIBUNAL HAS JURISDICTION TO HEAR THE CLAIM ........................................ 3

A. Failure to Comply with the Mediation Requirement Does Not Render an AA
Inoperative __________________________________________________________ 3
i. The Parties Consented to the Jurisdiction of the Tribunal_______________________ 3

ii. The Pre-condition to Mediate Does Not Invalidate the Parties’ Intention to Arbitrate _ 4

II. THE PRE-CONDITION OF MEDIATION IS NOT CONCERNED WITH JURISDICTION

BUT ADMISSIBILITY ................................................................................................... 5

III. THE CLAIM IS ADMISSIBLE ........................................................................................ 5

A. The Pre-condition of Mediation Does Not Constitute a Bar to Any Arbitral
Proceeding ___________________________________________________________ 5
IV. THE TRIBUNAL IN EXERCISING ITS PROCEDURAL DISCRETION SHOULD ADMIT THE
CLAIM ........................................................................................................................ 6
A. The Final Award is Not at a Risk of Being Set Aside as It Ensures Fairness and
Efficiency ____________________________________________________________ 6

ISSUE B: THE ARBITRAL TRIBUNAL SHOULD ORDER THE EXCLUSION OF

RESPONDENT EXHIBIT 3 AND SHOULD NOT ORDER THE EXCLUSION OF
CLAIMANT EXHIBIT 7 ____________________________________________________ 6

I. THE TRIBUNAL SHOULD EXCLUDE RESPONDENT EXHIBIT 3 FROM THE FILE 6

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MEMORANDUM FOR CLAIMANT APIIT KANDY

A. Respondent Exhibit 3 Should be Considered Illegally Procured and Should Be

Excluded from the File _________________________________________________ 7
i. Respondent Exhibit 3 is protected by attorney-client Privilege ____________________ 7

ii. The obtaining of Respondent exhibit 3 violates the principles of good faith and fairness 8

B. The exclusion of Respondent Exhibit 3 does not violate the Respondent’s right to
present their case ______________________________________________________ 8
C. The inclusion of Respondent Exhibit 3 may lead to a risk of the award being set
aside ________________________________________________________________ 8
II. THE TRIBUNAL SHOULD NOT ORDER THE EXCLUSION OF CLAIMANT EXHIBIT 7 ........ 9
A. The without-prejudice offer is not bound by a confidentiality obligation _________ 9
B. The FAI rules do not impose an obligation of confidentiality on the parties. ______ 9
C. The exclusion of Claimant Exhibit 7 would violate the claimant’s right to present
their case and may lead to a risk of the award being set aside _________________ 10
D. Admitting of Claimant Exhibit 7 would not lead to a risk of the award being set
aside ________________________________________________________________ 10

ISSUE C: THE CISG IS APPLICABLE TO THE PURCHASE AND SERVICE

AGREEMENT ___________________________________________________________ 11

I. THE PSA COMPLIES WITH THE TERRITORIAL SCOPE OF APPLICATION UNDER ART. 1
CISG ........................................................................................................................... 11
A. Mediterraneo is the sole Place of Business. ________________________________ 11
B. Alternatively, the Place of Business in Mediterraneo has the closest relationship
with the PSA _________________________________________________________ 11
II. REVERSE AUCTIONS CANNOT BE CONSIDERED AUCTIONS IN TEMRS OF ART. 2(B)
CISG ............................................................................................................................. 12
A. The PSA validly falls within the scope of the CISG’s subject matter _____________ 12
B. The PSA constitutes a Mixed Contract pursuant to Art. 3(2) CISG. _____________ 12
i. As per the Economic Value assessment the preponderant part of the PSA’s Obligations

relate to the goods component ______________________________________________ 13

ii. As per the Party Intention assessment the preponderant part of the PSA’a obligations

relate to the goods component ______________________________________________ 13

ISSUE D: THE PARTIES HAVE NOT EXCLUDED THE APPLICATION OF THE

CISG ____________________________________________________________________ 14

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MEMORANDUM FOR CLAIMANT APIIT KANDY

I. THE LAW CHOSEN BY THE PARTIES DOES NOT DISPLACE THE APPLICATION OF THE
CISG ............................................................................................................................. 14
II. THE CISG DOES NOT FORM PART OF THE CONFLICT OF LAW PRINCIPLES OF
EQUATORIANA .............................................................................................................. 15
III. THE PARTIES NEVER INTENDED TO EXCLUDE THE APPLICATION OF THE CISG AT
ANY POINT DURING NEGOTIATIONS............................................................................. 15
A. The Parties Did Not Explicitly Exclude the Application of the CISG _____________ 15
B. The Parties did not Exhibit an implicit intention to exclude the CISG ___________ 15

PRAYER FOR RELIEF ____________________________________________________ 16

CERTIFICATION _________________________________________________________ 1

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MEMORANDUM FOR CLAIMANT APIIT KANDY

INDEX OF ABBREVIATIONS AND DEFINITIONS

¶/¶¶ Paragraph/s

AA Arbitration Agreement

ARfA Answer to the Request for Arbitration

Art./ Arts. Article/s

CEO Chief Executive Officer

Cl. Ex Claimant Exhibit

CLAIMANT Green Hydro PLC

Convention The United Nations Convention on the Contracts for

the International Sale of Goods (CISG)

COO Chief Operating Officer

et seq. And what follows

FAI Finland Arbitration Institute

IBA Rules The Rules of the International Bar Association

ibid. Same as above

infra See below

Ltd. Limited

Mio € Million Euros

MW Mega Watt

p./pp. Page/s

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MEMORANDUM FOR CLAIMANT APIIT KANDY

PIL Private International Law

PLC Public Limited Company

PO1 Procedural Order No. 1

PO2 Procedural Order No. 2

PSA Purchase and Service Agreement

Pvt./ Pte. Private

Re. Ex. Respondent Exhibit #

RESPONDENT Equatoriana RenPower Ltd

RfA Request for Arbitration

RfQ Request for Quotation

supra See above

UNCITRAL United Nations Commission on International Trade

Law

v. Versus

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MEMORANDUM FOR CLAIMANT APIIT KANDY

INDEX OF AUTHORITIES

BOOKS

Bekker, 2023 PETER H. F. BEKKER

Arbitration of International Disputes in New York
JurisNet, LLC, 2023
Cited in ¶ 4

Born, 2021 GARY BORN

International Commercial Arbitration
Kluwer Law International, 2021
Cited in ¶¶ 6, 9

, 2006 FRANCO FERRARI

The CISG and the Unification of International
Trade Law
Intersentia, 2006
Cited in ¶ 62

Ferrari, 2012 FRANCO FERRARI

Contracts for the International Sale of Goods:
Applicability and Application of the 1980 United
Nations Sales Convention
Martinus Nijhoff Publishers, 2012
Cited in ¶¶ 47, 48, 53

Hascher, 1995 DOMINIQUE HASCHER

Commentary on CLOUT Case 303
Journal du Droit International, 1996
Cited in ¶ 57

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MEMORANDUM FOR CLAIMANT APIIT KANDY

Lookofsky, 2008 JOSEPH LOOKOFSKY

Understanding the CISG: A Compact Guide to the
1980 United Nations Convention on Contracts for
the International Sale of Goods
Kluwer Law International, 2008.
Cited in ¶ 62

Manner & Schmitt in CHRISTOPH BRUNNER AND BENJAMIN GOTTLIEB

Brunner/Gottlieb Commentary on the UN Sales Law (CISG)
Kluwer Law International, 2019
Cited in ¶ 62

Mills, 2018 ALEX MILLS

Party Autonomy in Private International Law
Cambridge University Press, 2018
Cited in ¶ 6

Pereira, 2015 CÉSAR PEREIRA

The Application of the CISG to International
Government Contracts: Changes to Facilitate its
Application
Eleven International Publishing, 2015
Cited in ¶ 60

Schnyder/Liatowitsch, 2017 ANTON K. SCHNYDER AND MANUEL LIATOWITSCH

Internationales Privat- und Zivilverfahrensrecht
Schulthess Juristische Medien, 2017
Cited in ¶ 64

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MEMORANDUM FOR CLAIMANT APIIT KANDY

Schwenzer, 2016 INGEBORG SCHWENZER

Schlechtriem & Schwenzer: Commentary on the UN
Convention on the International Sale of Goods
(CISG)
Oxford University Press, 2016
Cited in ¶¶ 47, 53, 67

Schwenzer/Hachem, 2010 INGEBORG SCHWENZER AND PASCAL HACHEM

Schlechtriem & Schwenzer: Commentary on the UN
Convention on the International Sale of Goods
(CISG)
Oxford University Press, 2010
Cited in ¶¶ 51, 52, 63

Staudinger/Magnus HERMANN STAUDINGER AND ULRICH MAGNUS

Kommentar zum Einheitlichen UN-Kaufrecht
(CISG)
Sellier European Law Publishers, 2009
Cited in ¶ 63

JOURNAL ARTICLES/REPORTS

Paulsson, 2005 JAN PAULSSON

Denial of Justice in International Law
Cambridge University Press, 2005
Cited in ¶¶ 5, 12

Rabel, 1958 ERNEST RABEL

The Conflict of Laws: A Comparative Study
Michigan Legal Studies Series Law School History
and Publications, 1958
Cited in ¶ 63

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MEMORANDUM FOR CLAIMANT APIIT KANDY

Rubinstein/Guerrina, 2001 JAVIER H. RUBINSTEIN AND BRITTON B.

GUERRINA
The Attorney–Client Privilege and International
Arbitration
Journal of International Arbitration, Issue 6, 2001
Cited in ¶ 30

Schroeter, 2004 ULRICH G. SCHROETER

The applicability of the UN Convention on
Contracts for the
International Sale of Goods to cross-border auctions
Belgrade Law Review, 2004
Cited in ¶ 51

Waibel, 2014 MICHAEL WAIBEL

Investment Arbitration: Jurisdiction and
Admissibility
University of Cambridge Faculty of Law Legal
Studies, No. 9, 2014
Cited in ¶ 21

Winship, 2015 PETER WINSHIP

International Sales Contracts under the CISG:
Interpretation of 'Fundamental Breach 2012 Court
of Appeals Decision
Penn State Journal of Law and International Affairs,
2015
Cited in ¶ 66

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MEMORANDUM FOR CLAIMANT APIIT KANDY

INDEX OF LAWS AND GUIDELINES

CIArb CIARB PROFESSIONAL PRACTICE GUIDELINE ON

THE USE OF MEDIATION IN ARBITRATION

Kateryna Honcharenko & others

2021
Cited in ¶ 17

CISG UNITED NATIONS CONVENTION ON CONTRACTS

FOR THE INTERNATIONAL SALE OF GOODS

United Nations Commission on International Trade

Law
1980
Cited in ¶¶ 45, 51, 52, 53, 54, 55, 56, 57, 58, 59, 60,
61, 62, 63, 64, 65, 66

CISG-AC Opinion No. 16 CISG-AC OPINION NO. 16, EXCLUSION OF THE

CISG UNDER ARTICLE 6
CISG Advisory Council
2014
Cited in ¶¶ 62, 66, 67

CISG-AC Opinion No. 4 CISG ADVISORY COUNCIL OPINION NO. 4:

CONTRACTS FOR THE SALE OF GOODS TO BE
MANUFACTURED OR PRODUCED AND MIXED
CONTRACTS UNDER ARTICLE 3 CISG
CISG Advisory Council
2004
Cited in ¶ 56

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MEMORANDUM FOR CLAIMANT APIIT KANDY

FAI Arbitration Rules ARBITRATION RULES OF THE FINLAND CHAMBER

OF COMMERCE

Finland Chamber of Commerce

2024
Cited in ¶¶ 17, 21, 27, 42

FAI Mediation Rules MEDIATION RULES OF THE FINLAND CHAMBER OF

COMMERCE
Finland Chamber of Commerce
2024
Cited in ¶¶ 18, 37, 38, 42, 43, 45, 57

IBA Guidelines IBA RULES ON THE TAKING OF EVIDENCE IN

INTERNATIONAL ARBITRATION
International Bar Association
2020
Cited in ¶ 28

Model Law UNCITRAL MODEL LAW ON INTERNATIONAL

COMMERCIAL ARBITRATION
United Nations Commission on International Trade
Law
2006
Cited in ¶ 60

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MEMORANDUM FOR CLAIMANT APIIT KANDY

INDEX OF CASES

AUSTRIA

Chinchilla furs case CISG-ONLINE 117

Oberster Gerichtshof
2 Ob 547/93
10 November 1994
Cited in ¶ 67

ENGLAND AND WALES

Fiona Trust FIONA TRUST & HOLDING CORP V. PRIVALOV

UKHL 40
17 October 2007
Cited in ¶ 10

Forster v. Friedland FORSTER V. FRIEDLAND

Court of Appeal of England and Wales
10 November 1992
Cited in ¶¶ 39, 43

Lukoil Asia Pacific Pte. Ltd. v. LUKOIL ASIA PACIFIC PTE LTD V. OCEAN
Ocean Tankers (Pte.) Ltd. TANKERS (PTE) LTD (THE “OCEAN NEPTUNE”)
English Commercial Court
EWHC 163
2 February 2018
Cited in ¶ 9

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MEMORANDUM FOR CLAIMANT APIIT KANDY

NWA v. NVF, 2021 NWA V. NVF

England and Wales Court of Appeal
EWHC 2666
08 October 2021
Cited in ¶ 9

SL Mining Ltd. v. Republic of SL MINING LIMITED V. REPUBLIC OF SIERRA

Sierra Leone LEONE
High Court of Justice England and Wales
16 April 2021
Cited in ¶ 4

HONG KONG

C v. D C V. D
Hong Kong Court of Appeal
HKCA 729
7 June 2022
Cited in ¶ 8

INDIA

Demerara Distilleries DEMERARA DISTILLERIES PVT. LTD. V. DEMERARA

DISTILLERIES LTD
Supreme court of India
No. 11 of 2013
24 November 2014
Cited in ¶ 11

NETHERLANDS

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MEMORANDUM FOR CLAIMANT APIIT KANDY

CISG-Online 4697 GEMINI CORPORATION N.V. V. 24/7 MEDIA B.V.

Rechtbank Noord-Nederland
C/18/190826 / HA ZA 19-51
06 November 2019
Cited in ¶ 63

PORTUGAL
CLOUT Case No. 1532 CLOUT CASE NO. 1532
Tribunal da Relação de Évora
Case Nr. 1725/07-2
4 October 2007
Cited in ¶¶ 47

SINGAPORE

BBA v. BAZ BBA V. BAZ

Singapore Court of Appeal 53
No. 9 and 10 of 2019
15 September 2020
Cited in ¶ 14

SWITZERLAND

CLOUT Case 904 CLOUT CASE 904

Tribunal cantonal du Jura
Ap 91/04
03 November 2004
Cited in ¶ 67

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UNITED STATES

Spectrum Dynamics Med. Ltd. v. SPECTRUM DYNAMICS MEDICAL LIMITED V.

Gen. Elec. Co GENERAL ELECTRIC COMPANY ET AL
United States District Court
18-CB-11386 (VSB)(KHP)
8 October 2021
Cited in ¶ 31

VLM Food Trading Int'l, Inc. v. VLM FOOD TRADING INT'L, INC. V. ILLINOIS
Illinois Trading Comp. et al. TRADING COMP. ET AL.
U.S. District Court for the Northern District of
Illinois
12 C 8154
5 March 2013
Cited in ¶ 49

Zodiac Seats US LLC v. Synergy ZODIAC SEATS US LLC V. SYNERGY AEROSPACE

Aerospace Corp CORP
U.S. District Court for the Eastern District of Texas
4:17-cv-00410-ALM-KPJ
23 April 2019
Cited in ¶ 49

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MEMORANDUM FOR CLAIMANT APIIT KANDY

NEW ZEALAND

Smallmon v. Transport Sales RJ & AM SMALLMON V. TRANSPORT SALES

Limited LIMITED & ANOR
Court of Appeal of New Zealand
[2011] NZCA 340, [2011] NZCCLR 27, [2012] 2
NZLR 109 (CA)
22 July 2011
Cited in ¶ 52

INDEX OF AWARDS

Caratube case CARATUBE INTERNATIONAL OIL COMPANY LLP V.

REPUBLIC OF KAZAKHSTAN (I)
ICSID
Case No. ARB/08/12
5 June 2012
Cited in ¶ 28

CME Czech Republic BV v. Czech CME CZECH REPUBLIC B.V V. CZECH REPUBLIC
Republic UNCITRAL Ad hoc arbitration
14 March 2003
Cited in ¶ 30

Glencore International Case GLENCORE INTERNATIONAL A.G. AND C.I.

PRODECO S.A. V. REPUBLIC OF COLOMBIA
ICSID
Case No. ARB/16/6
27 August 2019
Cited in ¶ 34

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MEMORANDUM FOR CLAIMANT APIIT KANDY

Global Telecom Holding S.A.E. v. GLOBAL TELECOM HOLDINGS S. A. E. V. CANADA

Canada ICSID
Case No. ARB/16/16
27 March 2020
Cited in ¶ 32

Hochtief Aktiengesellschaft v. HOCHTIEF AKTIENGESELLSCHAFT V. ARGENTINE

Argentine Republic REPUBLIC
ICSID
ARB/07/31
2 October 2007
Cited in ¶ 12

ICC Award 7153 ICC AWARD NO. 7153

ICC Court of Arbitration
1992
Cited in ¶ 57

Libananco Holdings Case LIBANANCO HOLDINGS CO. LIMITED V. REPUBLIC

OF TURKEY

ICSID
ARB/06/8
2 September 2011
Cited in ¶ 34

Lone Pine Resources Inc v. LONE PINE RESOURCES INC V. GOVERNMENT OF

Canada CANADA
ICSID
UNCT/15/2
21 November 2022
Cited in ¶ 31

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Methanex case METHANEX CORPORATION V. UNITED STATES OF

AMERICA
Arbitrage ad hoc
3 August 2005
Cited in ¶ 33

Vito G. Gallo v. The Government VITO G. GALO V. THE GOVERNMENT OF CANADA

of Canada Permanent Court of Arbitration
Case No 2008-03
30 March 2007
Cited in ¶ 31

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MEMORANDUM FOR CLAIMANT APIIT KANDY

STATEMENT OF FACTS

GreenHydro PLC (CLAIMANT) based in Mediterraneo is a medium-sized engineering company

specialised in the planning, construction and sale of plants to produce green hydrogen.
Equatoriana RenPower Ltd (RESPONDENT) from Equatoriana is a government-owned energy
company which contracted with CLAIMANT for the construction and delivery of a plant to
produce green hydrogen.
3 January 2023 RESPONDENT invited bids for the construction of the Green Hydrogen
plant through a reverse auction. The RfQ further stated that a minimum
of 25% of local content of the materials was required.

13 July 2023 The final negotiations between the two CEOs were held, where
CLAIMANT offered to lower its price by 5% in exchange for excluding
the right to terminate the Agreement for convenience and securing data-
sharing commitments.

17 July 2023 The PSA was signed for a 100 MW plant at a price of 285 Mio €.

25 August 2023 A different contract was signed by CLAIMANT with Volta Transformer
to provide the transformer for the project, 40% of the electrolyser stacks
and packaging of all stacks at the site in Greenfield in Equatoriana.

October 2023 Local elections in Equatoriana led to a change in government, and a

revision of the Green Energy Strategy and a major reshuffle in the
board of directors of ERenPow, and the minister for energy and
environment was replaced.

29 February 2024 RESPONDENT gave notice of termination of the PSA due to a delay of
28 days in delivering the final plans for the entire plant including the
options.

25 May 2024 A without-prejudice offer was sent by RESPONDENT to CLAIMANT

requesting a price reduction of 15%.

31 July 2024 The RfA was sent.

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MEMORANDUM FOR CLAIMANT APIIT KANDY

SUMMARY OF ARGUMENTS

Issue A: CLAIMANT submits that the Tribunal on account of jurisdiction or admissibility should
not reject the claim as the procedural pre-condition of mediation in Art. 30 PSA does not impact
the jurisdiction of the Tribunal, nor the operability of the AA. It does not hinder the Tribunal
from hearing the claim or issue an award with regard to the merits of the same. This is due to
the original intention of the Parties to mediate having now become futile resulting in an
intention to arbitrate the claim. The discretionary powers conferred on the Tribunal by virtue of
the FAI Arbitration Rules and the Arbitration Law of Danubia should be exerted realising the
principles of fairness and efficiency. Thus, given the interest of time and cost, and the
redundancy of mediation, the claim should be added to the arbitration proceeding.

Issue B: CLAIMANT asserts that the Tribunal should order the exclusion of document
RESPONDENT Exhibit 3 an internal email of CLAIMANT and should not order the exclusion of
document CLAIMANT Exhibit 7, the ‘without-prejudice’ offer made by RESPONDENT.
RESPONDENT Exhibit 3 is protected by Attorney Client Privilege and had been obtained illegally.
Admittance would violate Public Policy and the principles of good faith, fairness and equality.
CLAIMANT Exhibit 7 should be admitted as evidence as it is not bound by any confidentiality
obligation and exclusion would hinder CLAIMANT’S right to a fair arbitral proceeding.

Issue C: CLAIMANT argues that the PSA is governed by the CISG. It is drawn up to be an
international sales contract as per Art. 1 CISG. Mediterraneo functions as the place of business
with the closest relationship to the contract with the predominant subject matter involving the
sale of goods beyond just services. The sale is not a result of a public auction as in Art. 2(b)
CISG but rather a reverse auction. Thus, it falls within the scope of the CISG. Although the
PSA contains service components, the predominant part is the sale of goods. Hence, it
constitutes a mixed contract under Art. 3 CISG, falling validly within the CISG’s sphere of
application.

Issue D: CLAIMANT contends as the Parties have not excluded the CISG from the agreement
implicitly or explicitly, the CISG applies to this dispute. As opposed to RESPONDENT’S assertion
that the Equatorianian law excludes and displaces the CISG, it does not provide a clear intent
to do so. No mutual agreement as per Art. 6 CISG is present to allow the convention to be
excluded through the same. The Conflict of Laws principles of Equatoriana does not comprise
of the CISG as it autonomously governs and applies.

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MEMORANDUM FOR CLAIMANT APIIT KANDY

ARGUMENTS ON THE PROCEEDINGS

ISSUE A: THE ARBITRAL TRIBUNAL SHOULD NOT REJECT THE CLAIM FOR
LACK OF JURISDICTION OR ADMISSIBILITY OR AS PART OF ITS
DISCRETION

1. CLAIMANT submits that the Tribunal should not reject the claim as the Tribunal has
jurisdiction to hear the claim [I] and the pre-condition of Mediation is not concerned with
jurisdiction, but admissibility [II] and thus the claim is admissible [III]. Therefore, the
Tribunal in exercising its procedural discretion should admit the claim [IV].

I. THE TRIBUNAL HAS JURISDICTION TO HEAR THE CLAIM

2. The Tribunal has jurisdiction to hear this claim due to the existence of consent of the Parties
and their intention to arbitrate the dispute as evidenced by the interpretation of the AA.
Hence, the failure to comply with the mediation requirement does not render an AA
inoperative [A].

A. FAILURE TO COMPLY WITH THE MEDIATION REQUIREMENT DOES NOT RENDER

AN AA INOPERATIVE

3. Art. 8(1) Danubian Arbitration Law, provides for the relationship between the AA and the
courts in the context of the operability of the AA. Accordingly, unless the AA is found to be
inoperative inter alia, the court on request of a party shall refer the parties to arbitration.
This is also emulated in Art. II.3 NYC which Parties are contracting states [PO1, p. 50, ¶
III.4]. In the present dispute, the Parties consented to the jurisdiction of the Tribunal [i]. and
the pre-condition to mediate does not invalidate the Parties’ intention to arbitrate [ii].

i. The Parties Consented to the Jurisdiction of the Tribunal

4. It is CLAIMANT’S submission that the AA should be interpreted as it embodies the basis and
extent of the consent of parties to the jurisdiction of a tribunal [Bekker, 2023]. In
interpreting, the accurate wording of the escalation clause is irrelevant [SL Mining Ltd. v.
Republic of Sierra Leone, ¶ 16].
5. review of the AA establishes that there exists no issue with regard to the Parties’ consent to
arbitration as no distinction exists between the dispute resolution clause which provides ‘any
dispute…shall first be submitted to mediation’ and ‘shall be finally settled by arbitration’
[ibid.; PSA, Art. 30]. Therefore, there exists a ‘powerful policy reason’ to realise the

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MEMORANDUM FOR CLAIMANT APIIT KANDY

Tribunal’s jurisdiction and resolve the other issues at hand which are matters of
admissibility [Paulsson, 2005, p. 617].
6. The issue should be conclusively dealt with as a dispute of the contract as it is a matter of
admissibility [Mills, 2018, ¶ 6.4.1]. The optimal method is to assume that pre-arbitration
procedural requirements do not constitute matters of jurisdiction [Born, 2021, p. 1000].

ii. The Pre-condition to Mediate Does Not Invalidate the Parties’ Intention to
Arbitrate

7. CLAIMANT asserts that the intention of the Parties in including an escalation clause in the
PSA is for the dispute to be heard in arbitration. Mediation as a pre-arbitration procedural
requirement is bound to have been redundant as RESPONDENT’S approach leaves no room
for settlement with its non-negotiable demands [infra ¶ 13; Cl. Ex. 7, p. 20].This actualises
the Parties’ presumed intention to conclude any disputes under a tribunal chosen by their
own volition [C v. D, ¶ 63].
8. In discerning the intention of the Parties, the interpretation of the agreement is to be done
in accordance with the ordinary principles of contractual interpretation [NWA v. NVF, ¶ 32;
Born, 2021, p. 1321 et seq.]. The objective meaning of the agreement should be identified
in the manner a reasonable third party of the same standing would have understood [Lukoil
Asia Pacific Pte. Ltd. v. Ocean Tankers (Pte.) Ltd., ¶ 8].
9. CLAIMANT asserts that the Tribunal should interpret the common intention of the Parties
presuming that as rational businessmen, the Parties aim to hear the dispute by this Tribunal
[Fiona Trust, ¶ 7]
10. The negotiations between the Parties before the RfA was sent in July, April and early May
2024—demonstrate the existence of correspondence between the Parties [RfA, p. The
negotiations between the Parties before the RfA was sent in July, April and early May 2024,
demonstrate the existence of correspondence between the Parties [RfA, p. 6, ¶ 21; Cl. Ex. 8,
p. 36, ¶ 3; Cl. Ex. 5, p. 18, ¶ 15]. Initiating mediation at this instance would only serve as
an ‘empty formality’ [Demerara Distilleries, ¶ 5].

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MEMORANDUM FOR CLAIMANT APIIT KANDY

II. THE PRE-CONDITION OF MEDIATION IS NOT CONCERNED WITH JURISDICTION

BUT ADMISSIBILITY

11. In ascertaining whether an issue is concerned with admissibility or jurisdiction, the Tribunal
ought to determine if the reason for such is that the claim cannot be brought to the ‘particular
forum seized’ or not heard at present or at all [Paulsson, 2005, p. 617].
12. The issue relating to the pre-condition is with the claim itself [Hochtief Aktiengesellschaft
v. Argentine Republic, ¶ 90].
13. CLAIMANT uses the ‘tribunal versus claim’ test to validate the above assertion. It questions
if the claim should not be arbitrated owing to an issue with the consent to arbitration that is,
a question of the Tribunal’s jurisdiction, or a deficiency of the claim itself and thus should
not be heard [BBA v. BAZ, ¶ 77].
14. In establishing the jurisdiction of the Tribunal, the consent of the Parties to arbitrate the
dispute has been established [supra ¶¶ 5 - 7]. The Tribunal has the capacity to issue an
award both with regard to the merits and the admissibility of the claim.

III. THE CLAIM IS ADMISSIBLE

15. Given that the claim is concerned with admissibility, CLAIMANT submits that the pre-
condition of mediation does not constitute a bar to any arbitral proceedings [A].

A. THE PRE-CONDITION OF MEDIATION DOES NOT CONSTITUTE A BAR TO ANY

ARBITRAL PROCEEDING

16. Art. 26.6 FAI Arbitration Rules provide for the parties to reach a settlement through
arbitration, Arbitrators may utilize a range of uncontroversial facilitative mediation-like
approaches to promote settlement [CIArb, 2021, p. 5, ¶ 5.1].
17. The disputes can be mediated parallel to this arbitration proceeding as per Art. 11.1 FAI
Mediation Rules which stipulate an agreement to mediation does not prevent any arbitral
proceedings unless agreed by the parties. It is CLAIMANT’s submission that no such
agreement has been reached by the Parties.
18. Time is crucial for CLAIMANT. This is evident by the favourable purchase price offered to
RESPONDENT and CLAIMANT’s request for specific performance of the PSA [Cl. Ex. 5, p.
17, ¶ 10; RfA, p. 7, ¶ 34.3]. It is apparent that CLAIMANT’s interest lies in the potential
increase in orders[PO2, p. 54, ¶ 22] and expandntion of CLAIMANT’s target market a with
regard to the PEM-technique [RfA, p. 4, ¶ 9].

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MEMORANDUM FOR CLAIMANT APIIT KANDY

IV. THE TRIBUNAL IN EXERCISING ITS PROCEDURAL DISCRETION SHOULD ADMIT

THE CLAIM

19. CLAIMANT submits admitting the claim is within the discretionary procedural power of the
Tribunal as in doing so the final award is not at risk of being set aside as it ensures fairness
and efficiency [A].

A. THE FINAL AWARD IS NOT AT A RISK OF BEING SET ASIDE AS IT ENSURES

FAIRNESS AND EFFICIENCY

20. CLAIMANT acknowledges RESPONDENT’S assertion that compliance with the mediation
requirement should guide the Tribunal in exercising its procedural discretion [ARfA, p. 27,
¶ 16]. Broader procedural independence is enjoyed by tribunals in relation to disputes over
which jurisdiction has been established [Waibel, 2014, p. 9]. Art. 19(2) Danubian Arbitration
Law and Art. 34 FAI confers power onto a tribunal to conduct an arbitration in a manner as
it considers appropriate.
21. RESPONDENT’s reluctance to participate in mediation is apparent by the fact that there had
been no specific request indicating such inclination [PO2, p. 53, ¶ 14]. RESPONDENT’S
conduct with regard to the other hydrogen projects affirms that the primary objective is to
renegotiate an already favourable agreement to an even more advantageous agreement
[PO2, p. 55, ¶ 25].

ISSUE B: THE ARBITRAL TRIBUNAL SHOULD ORDER THE EXCLUSION OF

RESPONDENT EXHIBIT 3 AND SHOULD NOT ORDER THE EXCLUSION OF
CLAIMANT EXHIBIT 7

22. CLAIMANT submits that the Tribunal should exclude Exhibit R 3 from the file [I] and the
Tribunal should not order the exclusion of Claimant Exhibit 7 [II].

I. THE TRIBUNAL SHOULD EXCLUDE RESPONDENT EXHIBIT 3 FROM THE FILE

23. RESPONDENT Exhibit 3 is an internal email sent by the Head of the Legal Department of
CLAIMANT, regarding advice on phrasing suggestions for an email that was to be sent to
RESPONDENT regarding the negotiations with P2G.
24. Following accusations by Mr. La Cour, CEO of RESPONDENT [PO2, ¶ 27], Mr. Deiman was
under investigation for fraud and was detained and had his documents and devices seized
by the police. [Cl. Ex. 8, p. 36, ¶ 5]. CLAIMANT asserts that RESPONDENT Exhibit 3 was most

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MEMORANDUM FOR CLAIMANT APIIT KANDY

likely obtained directly through this investigation [Letter by Langweiler, p. 32; PO2, ¶ 27;
Cl. Ex. 8, p. 36, ¶ 8]. Mr. la Cour, in his discussion with Mr. Deiman had mentioned he is
in very close contact with the prosecution office [Cl. Ex. 8, p. 36, ¶ 7].
25. Tribunal should exclude RESPONDENT Exhibit 3 as RESPONDENT Exhibit 3 should be
considered illegally procured and should be excluded from the file [A], The exclusion of
Respondent Exhibit 3 does not violate RESPONDENTS’ right to present their case [B], and
the inclusion of Respondent Exhibit 3 may lead to a risk of the award being set aside [C].

A. RESPONDENT EXHIBIT 3 SHOULD BE CONSIDERED ILLEGALLY PROCURED AND

SHOULD BE EXCLUDED FROM THE FILE

26. Both Art. 34.1 FAI Arbitration Rules and Art. 19.2 of the Danubian Arbitration Law provide
that the Tribunal may decide the admissibility, relevance, materiality, and weight of
evidence presented.
27. The Tribunal may refer to the IBA Rules, a tribunal either on request of the parties or by their
own digression may exclude illegally obtained evidence [IBA, 9.3], The Tribunal should
consider evidence in view of fairness or equality [Caratube Case, ¶ 287] The Tribunal shall
exclude any evidence or production of any document, statement on the grounds on legal
impediment or privilege under the legal or ethical rules [IBA, 9.2(b)]. The submission of the
document conflicts with public policy and would be illegal under domestic law [PO2, p. 55,
¶ 29].
28. The Tribunal should exclude Respondent Exhibit 3 from the case record as Respondent
Exhibit 3 is protected by Attorney-Client Privilege [i] and the obtaining of Respondent
Exhibit 3 violates the principles of good faith and fairness [ii].

i. Respondent Exhibit 3 is protected by attorney-client Privilege

29. Both common law and civil law jurisdictions protect Attorney Client Privilege. , therefore,
such communications cannot be submitted as evidence [Rubinstein/Guerrina, 2001].
Documents from the client's in-house counsel are qualified as Privileged [CME Czech
Republic BV v. Czech Republic, ¶ 64].
30. The general rule is that communications are Privileged if the main purpose is to seek legal
advice [Spectrum Dynamics Med. Ltd. v. Gen. Elec. Co]. In Vito G. Gallo v. The Government
of Canada the tribunal held that domestic law recognizes Attorney-Client Privilege as
protected by international law. in Lone Pine Resources Inc v. Canada, held that the same
protection should be applied to in-house counsels as had been in Gallo.

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 MEMORANDUM FOR CLAIMANT APIIT KANDY

31. Privilege will remain constant even where the counsel is based in a different jurisdiction
from their bar of call or from the place where the recipient of the advice is situated [Global
Telecom Holding S.A.E. v. Canada]

ii. The obtaining of Respondent exhibit 3 violates the principles of good faith
and fairness

32. In Methanex case, the Tribunal excluded the illegally obtained evidence, noting that it would
be ‘wrong for Methanex to introduce evidential materials obtained unlawfully’, and that the
‘conduct offended basic principles of justice and fairness required by all parties in every
international arbitration’ [Methanex Case, ¶ 54]. The illegally obtained evidence was held
inadmissible based on principles of good faith, justice, and fairness [Methanex Case, ¶ 52].
33. Tribunals in the past have decided against admitting evidence obtained through investigations
such as in Glencore International Case, where documents that had been seized from the
premises the claimant in the context of an investigation were excluded from the record on the
basis that it breached the principles of good faith and equality of arms and in Libananco
Holdings Case, where the tribunal barred the entry of Privileged and confidential e-mails,
obtained during criminal investigations, also citing the Parties' obligation to arbitrate fairly and
in good faith.

B. THE EXCLUSION OF RESPONDENT EXHIBIT 3 DOES NOT VIOLATE THE RESPONDENT’S

RIGHT TO PRESENT THEIR CASE

34. The RESPONDENT submitting an exhibit protected by privilege [supra ¶¶ 38 - 44] amounts
to illegality. The RESPONDENT relying on such evidence gives them an unfair advantage in this
arbitration.. According to Art. 34.2(a)(ii) Danubian Arbitration law, Parties in arbitration
must be given an equal opportunity to present their case, the exclusion of the document
would not violate the RESPONDENTS right to present their case.

C. THE INCLUSION OF RESPONDENT EXHIBIT 3 MAY LEAD TO A RISK OF THE AWARD

BEING SET ASIDE

35. Enforcement can be refused under Article 36.1(b)(ii) of Danubian Arbitration law, that
states that if the court finds that: the recognition or enforcement of the award would be contrary
to the public policy of this State, the awards enforcement may be refused.

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 MEMORANDUM FOR CLAIMANT APIIT KANDY

II. THE TRIBUNAL SHOULD NOT ORDER THE EXCLUSION OF CLAIMANT EXHIBIT 7

36. CLAIMANT Exhibit 7 contains a without-prejudice offer by RESPONDENT to CLAIMANT [Cl.

Ex. 7, p. 20, ¶ 4]. The RESPONDENT claims that the CLAIMANT had breached confidentiality
under Art. 15 FAI Mediation Rules and states that the duty extends to negotiations prior to
the mediation as well.
37. The without-prejudice offer is not bound by confidentiality [A] and the FAI rules do not
impose an obligation of confidentiality on the Parties [B], the exclusion of Claimant Exhibit
7 would violate the CLAIMANT’S right to present their case and may lead to a risk of the
award being set aside [C], Admitting of Claimant Exhibit 7 would not lead to the award
being set aside [D].

A. THE WITHOUT-PREJUDICE OFFER IS NOT BOUND BY A CONFIDENTIALITY

OBLIGATION

38. Unilever Case established grounds where without-prejudice offers could be held
admissible. Courts may consider them admissible if it comes to the conclusion that the offer
is not bona fide [Unilever case]. Without-prejudice offer can only be communications
genuinely aimed at settling disputes [Forster v. Friedland].
39. RESPONDENT in their offer states that further negotiations would not be fruitful if CLAIMANT
refuses the 15% price reduction [Cl. Ex. 7, p. 20].
40. As Respondent had signed another agreement for another hydrogen plant on 1 October that
same year [PO2, ¶ 25] implies that Respondent was only interested in Green Energy
Strategy but with favourable price reductions. Hence the offer made should be admitted as
it was not an offer made in bona fide.

B. THE FAI RULES DO NOT IMPOSE AN OBLIGATION OF CONFIDENTIALITY ON THE

PARTIES.

41. FAI Mediation Rules, Art. 15, the parties are bound by a duty of confidentiality which extends
from the commencement of the proceedings. [Mediation R. 15], the FAI Arbitration Rules also
refer to confidentiality in the same light [FAI, R. 51]. Both these duties are dependent on
whether the proceedings have been completed and therefore cannot be applied.

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 MEMORANDUM FOR CLAIMANT APIIT KANDY

C. THE EXCLUSION OF CLAIMANT EXHIBIT 7 WOULD VIOLATE THE CLAIMANT’S

RIGHT TO PRESENT THEIR CASE AND MAY LEAD TO A RISK OF THE AWARD BEING

SET ASIDE

42. The CLAIMANT submits that the execution of Claimant Exhibit 7 would hinder CLAIMANT
opportunity to present their case and would not respect the fairness of parties.. As CLAIMANT
Exhibit 7 was readily accessible, CLAMANT is within their right to submit it into evidence.
Claimant believes it has not been made in bona fide [Unilever Case, ¶ 29; Forster v. Friedland]
it falls within the exceptions to the general rule and there for can be admitted to the Tribunal.

D. ADMITTING OF CLAIMANT EXHIBIT 7 WOULD NOT LEAD TO A RISK OF THE AWARD

BEING SET ASIDE

43. RESPONDENT Exhibit 3 should be excluded from the file for illegality and unfairness.
CLAIMANT Exhibit 7 does not fall within the grounds for exclusion.

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MEMORANDUM FOR CLAIMANT APIIT KANDY

ISSUE C: THE CISG IS APPLICABLE TO THE PURCHASE AND SERVICE

AGREEMENT

44. The PSA falls within the application of the CISG. As the PSA complies with the territorial
scope of application under Art. 1 CISG [I]; the exclusion under Art. 2 CISG is not applicable
to the PSA [II], and the PSA is predominantly focused on the sale of goods [III].

I. THE PSA COMPLIES WITH THE TERRITORIAL SCOPE OF APPLICATION UNDER

ART. 1 CISG

45. CLAIMANT asserts, it is evident that Mediterraneo is the sole Place of Business[A].
Alternatively, the place of business in Mediterraneo has the closest relationship with the
PSA [B].

A. MEDITERRANEO IS THE SOLE PLACE OF BUSINESS.

46. The term ‘place of business’ must be given an autonomous interpretation in line with its
application of two preconditions [Schwenzer, 2016, Art. 10, ¶ 4]. Firstly, to identify the place
of business, the location must ascertain a certain degree of ‘permanence/stability’ [Ferrari,
2012, p. 27]. Volta transformers should be considered as an ancillary place of business that
does not meet the ‘permanence requirement’ [CLOUT Case 1532; RfA, p. 4, ¶ 11; Cl. Ex. 4,
p. 15].
47. Secondly, the Place of Business is to be identified by determining the location’s ability to
administer the business ‘autonomously’ [Ferrari, 2012, p. 27]. CLAIMANT’S subsidiary,
Volta Transformers, does not have any form of operational autonomy over the performance
of the PSA and the administrative rights are solely reserved by CLAIMANT [PO2, p. 52, ¶
8].

B. ALTERNATIVELY, THE PLACE OF BUSINESS IN MEDITERRANEO HAS THE CLOSEST

RELATIONSHIP WITH THE PSA

48. Pursuant to Article 10(a) the principal place of business is to be determined by identifying
the location which has the ‘closest relationship’ to the contract. Firstly, priority must be
given to the place that performs most of the contractual obligations [ibid.; Kroll, 2018, p.
255, ¶ 30]. Secondly, the place of business is ascertained by the business that is responsible
for the conclusion of the contractual obligations [VLM Food Trading Int’l Inc v. Illinois

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MEMORANDUM FOR CLAIMANT APIIT KANDY

Trading]. Thirdly, precedence is to be given to the place that has more power over the
contract [Zodiac Seats v. Synergy Aerospace Corp].
49. CLAIMANT affirms that the majority of the contract is performed in Mediterraneo. The total
cost of the contract was 300 Mio €, of which 200 Mio € was performed in Mediteranneo
and the 100 Mio € in Equatoriana [Cl. Ex. 6; Cl. Ex. 7; M. v. N.V. M].

II. REVERSE AUCTIONS CANNOT BE CONSIDERED AUCTIONS IN TEMRS OF ART.

2(B) CISG

50. The drafters of the CISG excluded the CISG’s application due to the anonymity of the buyer
[Schwenzer/Hachem, 2010, p. 44; Schroeter, 2004, p. 23; Magnus, 2013, p. 102;
Spohnheimer, 2020]. The Parties to the reverse auctions were clearly known to everyone.
The bidders knew RESPONDENT’S identity [RfQ, p. 8, ¶ 1].
51. Art. 2(b) CISG must be given an autonomous interpretation subject to Art. 7(1) CISG
[Poljanec, 2021; Smallmon v. Transport Sales Limited]. Art. 7(1) CISG should be applied
to interpret Art. 2(b) exclusively on its terms [Schwenzer/Hachem, 2010]. CLAIMANT states
the contract predominantly focuses on the goods as opposed to services. as, the PSA validly
falls within the scope of the CISG’s subject matter [A]. Subsequently, the PSA constitutes
a mixed contract pursuant to Art. 3(2) CISG [B].

A. THE PSA VALIDLY FALLS WITHIN THE SCOPE OF THE CISG’S SUBJECT MATTER

52. The CISG does not provide an express definition on the term “sales contract”, therefore, to
invoke an autonomous definition of “sales contracts” regard is to be made to Art. 30 and 53
CISG [Ferrari, 2012, p. 99; Schwenzer, 2016, Art 1, ¶ 9]. Pursuant to Art. 30 CISG, the
seller must hand over the goods, documents with relevance to the goods and the title to the
buyer subject to the contract.
53. The “goods” are “corporeal items irrespective of their state of aggregation” subject to the
exclusions provided under Art. 2(d) – (f) CISG [Schlechtriem/Schwenzer, 2015, Art 1, ¶
39]. Thereby, production plants fall within the CISG’s scope of application.

B. THE PSA CONSTITUTES A MIXED CONTRACT PURSUANT TO ART. 3(2) CISG.

54. Claimant identifies the PSA as a mixed contract subject to Art. 3(2) CISG [RfA, p 7, ¶ 28].
The Economic Value assessment concludes that the preponderant part leads to the goods
component [i]. Furthermore, party intention concludes that the preponderant part leads to
the goods component [ii].

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MEMORANDUM FOR CLAIMANT APIIT KANDY

i. As per the Economic Value assessment the preponderant part of the PSA’s
Obligations relate to the goods component

55. Art. 3(2) CISG states that a mixed contract can be deterred by the CISG if the preponderant
part of the contract is services. The term “preponderant” must be interpreted in terms of the
“economic value” and should not be limited to the percentage of values but an overall
assessment of the contract. [CISG-AC Opinion No. 4]. If the supply of service is
predominant to the sale of good components by 50% then the convention is not applicable.

Goods Services
Core System 100 Project management 15
and engineering
Trafo and electrical 40 Site works 15
equipment
Packaging 20 Training and 10
maintenance
Compressor, pipes, cable 50 Buildings and 25
installation, connections, foundations for the
and other equipment facility
- - Remaining “EPC” 25
services for
constructing the
turnkey facility
Total 210 (Mio Total 90 (Mio
€) €)
Percentage 70 % Percentage

ii. As per the Party Intention assessment the preponderant part of the PSA’a
obligations relate to the goods component

56. CLAIMANT submits that the intention of the parties prove that the PSA constitutes a valid
“sale of goods” contract, thus complies with Art. 3(2) CISG. The weight of the
preponderance assessment is to be given to the intention of the parties the wording of the
contract and the terms used by the Parties to determine the preponderant part of the contract
[ICC Award 7153; Hascher 1995, p. 222].

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MEMORANDUM FOR CLAIMANT APIIT KANDY

ISSUE D: THE PARTIES HAVE NOT EXCLUDED THE APPLICATION OF THE

CISG

57. CLAIMANT submits that law chosen by the PartiesParties Public Procurement Law of
Equatoriana does not displace the application of the CISG [I]; the CISG does not form part
of the conflict of law principles of Equatoriana [II]; and the Parties never intended to
exclude the CISG at any point during the negotiations [III].

I. THE LAW CHOSEN BY THE PARTIES DOES NOT DISPLACE THE APPLICATION OF
THE CISG

58. CLAIMANT contends that such inference to exclude the application cannot be drawn as; the
Public Procurement Law of Equatoriana does not displace the application of the CISG [A],
alternatively, the Civil Code of Equatoriana does not displace the application of the CISG
[B].
A. THE PUBLIC PROCUREMENT LAW OF EQUATORIANA DOES NOT DISPLACE THE

APPLICATION OF THE CISG

59. CLAIMANT submits that by explicitly agreeing to the use of the Public Procurement Law of
Equatoriana the Parties never intended to exclude the application of the CISG [ARfA, p. 27,
¶ 19]. The Public Procurement Law of a country deals with an ‘entirely separate body of
rules and recommendations concerning a government procurement’ and takes the form of a
model law contrary to the nature of the CISG which deals with a uniform law [Pereira,
2015].
60. Even though the parties have agreed on the application of the Public Procurement Law it
only covers the extent of the bidding process and the awarding of the contract and does not
cover the performance of the PSA [PO2, p. 55, ¶ 32].
B. Alternatively, the Civil Code of Equatoriana does not displace the application of
the CISG

61. The reference to a code such as Civil Code is insufficient to evince an intent to exclude,
rather a specific reference to the Sales law within the code is required [CISG-AC Opinion
No 16, ¶ 4.4; Lookofsky, 2008, P 27; Schwenzer/ Hachem, 2010 Art.6, ¶ 26] As there is no
specification, the intent of choosing the law of a contracting State is not an implied choice
against the CISG but rather for the application of it. [CISG-AC Opinion No. 16, ¶ 4.2;
Manner & Schmitt in Brunner/Gottlieb, P 78; Ferrari 2006, ¶ 25; Broilers Case, ¶ 19].

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 MEMORANDUM FOR CLAIMANT APIIT KANDY

II. THE CISG DOES NOT FORM PART OF THE CONFLICT OF LAW PRINCIPLES OF
EQUATORIANA

62. The CISG determines its sphere of applicability autonomously [Staudinger/Magnus, Art. 6,
¶ 11; CISG-Online 4697]. Conflict of Law Principles falls within the ambit of a municipal
law branch, which denotes a country's national or domestic law [Rabel, 1958]. Such law to
contracts containing a foreign element refers to the substantive law of other than its conflict
law and procedural law.
63. The purpose of the Convention is to provide a uniform set of substantive rules in cross-
border transactions of goods, rather than to designate the law applicable
[Schlechtriem/Schwenzer, 2015]. The CISG is a substantive international treaty that takes
precedence over the conflict-of-laws rules [Schnyder/Liatowitsch, 2017].

III. THE PARTIES NEVER INTENDED TO EXCLUDE THE APPLICATION OF THE CISG
AT ANY POINT DURING NEGOTIATIONS

64. CLAIMANT contends that the CISG is not validly excluded as; the Parties did not explicitly
exclude the application of the CISG [A] and the Parties did not exhibit an implicit intention
to exclude the CISG [B].

A. THE PARTIES DID NOT EXPLICITLY EXCLUDE THE APPLICATION OF THE CISG

65. Art. 6 CISG allows the parties to exclude the application of the convention under the
principle of party autonomy. For an exclusion to be valid, both parties must express their
mutual intent to this effect [CISG-AC Opinion No. 16, ¶ 3]. Until it is evident that the parties
agreed to exclude the CISG pursuant to Art. 6, the Convention governs the PSA [Winship
2015; CISG-AC Opinion No. 16]. RESPONDENT has not raised any objections to the
application of the CISG during the negotiations. Further, there is no indication of the parties’
explicitly opting out of the CISG when concluding the PSA. Such as the explicit mention
of the law of a non-contracting state.

B. THE PARTIES DID NOT EXHIBIT AN IMPLICIT INTENTION TO EXCLUDE THE CISG

66. CLAIMANT contends that there is no implicit exclusion of the CISG as there is no clear or real
intention of the parties to do so [CLOUT Case 904, 2004; Schlechtriem/Schwenzer, 2016, Art.
6, ¶ 18]. The intent of the parties to determine an implicit exclusion of the CISG must be
determined pursuant to Art. 8 CISG. CLAIMANT entered into the PSA with the intention of the

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 MEMORANDUM FOR CLAIMANT APIIT KANDY

CISG applying to the contract, and there were no objections raised by RESPONDENT in this
regard. A Tribunal must determine whether the words or conduct of the parties clearly infers an
intention to exclude the CISG, as reasonably understood under Art. 8(2) CISG. [CISG-AC
Opinion No 16, ¶ 3.6]. When inferring such intent the interpretation must take into
consideration all relevant circumstances of the case [Art. 8(3), CISG; Chinchilla furs case].
67. Further, there has been no correspondence whatsoever from the side of the RESPONDENT in
relation to an implicit exclusion as it has not raised anything, even when Mr Deiman mentioned
the CISG being the ‘gold standard’ for the international transaction of sale of goods [Re. Ex 1,
p. 30, ¶ 11]. Additionally, there has been no mention of the exclusion of the CISG brought up
at any point during the negotiations. In summation, CLAIMANT respectfully requests the tribunal
to find that in light of the mentioned facts, the Parties did not exhibit an intention to implicitly
exclude the CISG when concluding the PSA.

PRAYER FOR RELIEF

In light of the above established facts and foregoing arguments, CLAIMANT respectfully
requests the Tribunal to,

1. declare that the Tribunal has jurisdiction to hear this dispute and the claim is admissible;
2. order the exclusion of the Exhibit R 3 from the file and reject RESPONDENT’s request to
exclude Exhibit C 7 from the file;
3. declare that the PSA is governed by the CISG;
4. declare that the application of CISG has not been validly excluded by the Parties.

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MEMORANDUM FOR CLAIMANT APIIT KANDY

CERTIFICATION

We hereby confirm that this Memorandum was drafted solely by the undersigned. No assistance
was received during the drafting process from any person that is not a member of this team.

Dinuru Perera

Pavara Rambukwella

Ridha Tharik

Venuri Nawagamuwa

Respectfully signed and submitted on 26 January 2025.