Post on 21-Apr-2018
University of Fribourg
Twenty First Annual
WILLEM C. VIS INTERNATIONAL COMMERCIAL ARBITRATION MOOT
Vienna, Austria – 11 to 17 April 2014
_______________________________
MEMORANDUM FOR RESPONDENT
ON BEHALF OF: Hope Hospital 1–3 Hospital Road Oceanside Equatoriana RESPONDENT
AGAINST:
Innovative Cancer Treatment Ltd. 46 Commerce Road
Capital City Mediterraneo
CLAIMANT
COUNSEL Simon Demaurex ! Cheryl De-Souza
Konrad Staeger ! Benjamin Trachsel ! Noémie Zürcher
UNIVERSITY OF FRIBOURG MEMORANDUM FOR RESPONDENT
I
TABLE OF CONTENTS
TABLE OF CONTENTS ............................................................................................................ I!LIST OF ABBREVIATIONS ..................................................................................................... III!INDEX OF AUTHORITIES ..................................................................................................... VI!INDEX OF CASES AND AWARDS ...................................................................................... XXIII!STATEMENT OF FACTS ........................................................................................................... 1!
ARGUMENT ON THE PROCEDURAL ISSUES ............................................................................. 2!
I. ! THIS TRIBUNAL HAS NO JURISDICTION TO HEAR CLAIMS ARISING OUT OF THE FSA .... 2!A. ! THE APPEAL AND REVIEW MECHANISM OF ART. 23(4) FSA RENDERS THE ENTIRE
ARBITRATION AGREEMENT INVALID .............................................................................................. 3!1. ! The appeal and review mechanism of Art. 23(4) FSA is an invalid attempt to expand
judicial review ..................................................................................................................................... 3!(i) ! The appeal and review mechanism of Art. 23(4) FSA is an invalid expansion of the grounds
for setting aside contained in Art. 34(2) DAL ............................................................................... 3!(a)! Art. 23(4) FSA does not correspond to the grounds for setting aside stated in Art. 34(2)
DAL and thereby constitutes an expansion of judicial review ................................................... 4!(b)! The Parties’ expansion of the grounds for setting aside in Art. 23(4) FSA is invalid under
the DAL .............................................................................................................................................. 5!(c)! In order to safeguard the efficiency of arbitration, the expansion of the grounds for setting
aside is to be rejected ......................................................................................................................... 6!(ii)! In any case, CLAIMANT cannot rely on the German BGH case to hold Art. 23(4) FSA valid
as an arbitration clause with conditional finality of the award .................................................... 7!2. ! The validity of the entire arbitration agreement depends on the validity of Art. 23(4) FSA . 9!B. ! IN ANY CASE, THE UNILATERAL LITIGATION RIGHT FOR PAYMENT CLAIMS IN FAVOUR OF
CLAIMANT PRECLUDES THE VALIDITY OF THE ARBITRATION AGREEMENT ........................... 10!C.! IN ANY CASE, THIS TRIBUNAL HAS NO JURISDICTION FOR CLAIMS ARISING OUT OF THE FSA
BASED ON THE ARBITRATION CLAUSE IN THE 2000 STANDARD TERMS ................................... 11!
II. ! THIS TRIBUNAL HAS NO JURISDICTION TO HEAR CLAIMS ARISING OUT OF THE SLA .. 12!A.! ART. 23 FSA DOES NOT APPLY TO CLAIMS ARISING OUT OF THE SLA .................................... 12!1.! Art. 23 FSA and Art. 23 SLA are mutually exclusive clauses ................................................... 13!(i)! The combination of arbitration and litigation clauses is generally invalid .............................. 13!(ii) ! The general invalidity of hybrid clauses cannot, in the present case, be cured by interpreting
the litigation agreement as a conferral of supervisory jurisdiction ........................................... 14!2.! Alternatively, an incorporation of the arbitration agreement of Art. 23 FSA into the SLA is
contrary to the Parties’ intent ......................................................................................................... 15!B. ! IN ANY CASE, THIS TRIBUNAL DOES NOT HAVE JURISDICTION BASED ON AN ARBITRATION
CLAUSE CONTAINED IN THE 2011 STANDARD TERMS ................................................................ 16!
UNIVERSITY OF FRIBOURG MEMORANDUM FOR RESPONDENT
II
III. ! HEARING THE CLAIMS ARISING OUT OF THE FSA AND THE SLA IN ONE SINGLE
ARBITRATION WOULD BE INADMISSIBLE ..................................................................... 16!A.! THE PARTIES’ CONSENT TO MULTI-CONTRACT ARBITRATION IS REQUIRED .......................... 17!1.! Irrespective of the number of arbitration agreements, the Parties’ consent to multi-
contract arbitration is required ...................................................................................................... 17!2. ! In any case, there are two arbitration agreements in the present case ..................................... 18!B. ! RESPONDENT DID NOT CONSENT TO MULTI-CONTRACT ARBITRATION ................................. 18!
ARGUMENT ON THE SUBSTANTIVE ISSUES ........................................................................... 20!
IV.! THE SLA DOES NOT QUALIFY AS A CONTRACT ON THE SALE OF GOODS ..................... 20!A.! THE DEVELOPED SOFTWARE IS NOT A GOOD AND WAS, IN ANY EVENT, NOT SOLD ............ 21!1.! The software downloaded by CLAIMANT is not a good under the CISG ............................... 21!2.! In any case, the software was not sold to RESPONDENT ........................................................... 22!(i)! The offset of the price for the software precludes the application of the CISG ................... 22!(ii)! RESPONDENT provided a substantial part of the data for the development of the software
by CLAIMANT .................................................................................................................................... 23!(iii)! The customisation of the software precludes the application of the CISG ........................... 24!(iv)! The licensing of CLAIMANT’s software does not amount to a sale .......................................... 25!B.! THE SERVICE ELEMENT IS PREPONDERANT UNDER THE SLA .................................................. 26!
V.! THE CHOICE OF LAW CONTAINED IN THE 2011 STANDARD TERMS WAS NOT INCLUDED
IN THE SLA ................................................................................................................. 27!A.! THE 2011 STANDARD TERMS WERE NOT INCLUDED IN THE SLA ............................................ 27!1.! CLAIMANT failed to make the 2011 standard terms available to RESPONDENT .................... 28!(i)! The mere reference to CLAIMANT’s website is not sufficient to make the 2011 standard
terms available to RESPONDENT ................................................................................................... 29!(ii)! In any case, RESPONDENT did not have a reasonable opportunity to take knowledge of the
2011 standard terms ........................................................................................................................ 29!(iii)! RESPONDENT never had access to a version of the 2011 standard terms drafted in a
language it could understand .......................................................................................................... 30!2.! The 2011 standard terms were not subsequently included into the SLA ............................... 31!B.! IN ANY EVENT, THE CHOICE OF LAW CLAUSE CONTAINED IN THE 2011 STANDARD TERMS
DID NOT BECOME PART OF THE SLA ............................................................................................ 32!
VI.! THE PARTIES’ CHOICE OF LAW EXCLUDES THE CISG ................................................. 33!A.! THE 2000 STANDARD TERMS APPLY TO THE SLA AND EXCLUDE THE CISG ......................... 33!B.! IN ANY CASE, THE PARTIES EXCLUDED THE CISG IN THE 2011 STANDARD TERMS ............. 34!
REQUEST FOR RELIEF .......................................................................................................... 35!
UNIVERSITY OF FRIBOURG MEMORANDUM FOR RESPONDENT
III
LIST OF ABBREVIATIONS
&
§(§)
%
AB
Ans
Art(s).
ASA
BetriebskostenV
BGH
BV
CACNIQ
CEPANI
cf.
CISG
CISG-AC
ClaEx
ClaM
CLOUT
CMR
Co.
Corp.
DAL
Dr.
E.D.
e.g.
EGBGB
ed(s).
et al.
et seq.
FAA
and
paragraph(s)
per cent
Akienbolag (Stock corporation)
Answer to Request for Arbitration
Article(s)
Association suisse d’arbitrage (Swiss Arbitration Association)
Betriebskostenverordnung (German ordinance on operating costs)
Bundesgerichtshof (German Supreme Court)
Besloten Vennootschap (Private Partnership)
Canadian Commercial Arbitration Centre
Belgian Centre for Arbitration and Mediation
confer (see)
United Nation Convention on Contracts for the International Sale of Goods
CISG Advisory Council
Claimant’s Exhibit
Memorandum for Claimant
Case Law on UNCITRAL Texts
Convention relative au Contrat de transport international de marchandises par
route (Convention on the Contract for the International Carriage of Goods by
Road)
Company
Corporation
Danubian Arbitration Law
Doctor
Eastern District
exemplum gratia (for example)
Einführungsgesetz zum Bürgerlichen Gesetzbuch (Introductory Act to the
German Civil Code)
editor(s)
et alii (and others)
et sequens (and the following)
Federal Arbitration Act
UNIVERSITY OF FRIBOURG MEMORANDUM FOR RESPONDENT
IV
FactÜ
FSA
GmbH
HeizkostenV
i.e.
ICC
ICCA
Inc.
infra
JILP
IPRG
LLC
Ltd.
M.D.
MAA
N
N.D.
No.
NV
Op.
p.
PICC
PILA
Plc.
pp.
ProcOrd
ReqArb
ResEx
RF CCI
S.D.
SA
SAS
UNIDROIT Übereinkommen über Internationales Factoring (Convention on
International Factoring)
Framework and Sales Agreement
Gesellschaft mit beschränkter Haftung (Limited Liability Company)
Verordnung über Heizkostenabrechnung (German ordinance on heating costs ac-
counting)
id est (that is)
International Chamber of Commerce
International Council for Commercial Arbitration
Incorporation
below
Journal of International Law and Politics
Schweizerisches Bundesgesetz über das Internationale Privatrecht (cf. PILA)
Limited Liability Company
Limited
Middle District
Moot Alumni Association
Marginal Number
Northern District
Number
Naamloze Vennootschap (Stock Corporation)
Opinion
page
UNIDROIT Principles on International Commercial Contracts
Private International Law Act (Switzerland)
Public Limited Company
pages
Procedural Order
Request for Arbitration
Respondent’s Exhibit
Chamber of Commerce and Industry of the Russian Federation
Southern District
Sociedad Anónima or Société anonyme (Stock Corporation)
Société anonyme simplifiée (Simplified joint-stock Corporation)
UNIVERSITY OF FRIBOURG MEMORANDUM FOR RESPONDENT
V
SE
SLA
SMU
SpA
Srl
supra
TermRef
U.S.
UCC
UK
UN
UNICTRAL
UNIDROIT
USD
v.
Vol.
W.D.
Societas Europaea (European Company)
Sales and Licensing Agreement
Singapore Management University
Società per Azioni (Stock Corporation)
Società a Responsabilità Limitata (Limited Liability Company)
above
Terms of Reference
United States
U.S. Uniform Commercial Code
United Kingdom
United Nations
United Nations Commission on International Trade Law
International Institute for the Unification of Private Law
United States Dollar
versus
Volume
Western District
UNIVERSITY OF FRIBOURG MEMORANDUM FOR RESPONDENT
VI
INDEX OF AUTHORITIES
RULES AND LAWS
CEPANI Rules CEPANI Arbitration Rules 2013, Brussels, 1 January 2013
CISG United Nations Convention on Contracts for the International Sales of Goods, Vienna, 11 April 1980
ICC Rules
ICC Arbitration Rules, Paris, 1 January 2012
PICC UNIDROIT Principles of International Commercial Contracts, Rome, 2010
UNCITRAL Model Law on International Commercial Arbitration
UNICTRAL Model Law on International Commercial Arbitra-tion 1985 with amendments as adopted in 2006, Vienna, 21 June 1985
UNCITRAL Model Law on International Commercial Conciliation
UNCITRAL Model Law on International Commercial Concilia-tion, New York, 24 June 2002
COMMENTARIES ABDULLA, ZINA The Arbitration Agreement, in: Kaufmann-Kohler/Stucki (eds.),
International Arbitration in Switzerland Kluwer Law International, The Hague 2004 Cited: Abdulla In § 11
ACHILLES, WILHELM-ALBRECHT
Kommentar zum UN–Kaufrechtsübereinkommen (CISG) Luchterhand, Neuwied/Kriftel/Berlin 2000 Cited: Achilles In §§ 108, 155
ARCHIYAN, ELENA Fate of the Unilateral Option Clause Finally Decided in Russia, in: New York University Journal of International Law and Politics, JILP Online Forum 2013 Available at: http://nyujilp.org/fate-of-the-unilateral-option-clause-finally-decided-in-russia/ Cited: Archiyan In § 51
ARROYO, MANUEL Art. 190 PILA, in: Arroyo (ed.), Arbitration in Switzerland, The Practitioner’s Guide
UNIVERSITY OF FRIBOURG MEMORANDUM FOR RESPONDENT
VII
Kluwer Law International, The Hague 2013 Cited: Arroyo In § 29
BALDUS, CHRISTIAN Regelhafte Vertragsauslegung nach Parteirollen im klassischen Römischen Recht und in der modernen Völkerrechtswissen-schaft, zur Rezeptionsfähigkeit des römischen Rechtsdenkens Peter Lang, Frankfurt 1999 Cited: Baldus In § 73
BÄRTSCH, PHILIPPE PETTI, ANGELINA M.
The Arbitration Agreement, in: Geisinger/Voser, International Arbitration in Switzerland, A Handbook for Practitioners Kluwer Law International, The Hague 2013 Cited: Bärtsch/Petti In § 10
BERGER, BERNHARD KELLERHALS, FRANZ
International and Domestic Arbitration in Switzerland, 2nd edition Sweet & Maxwell, London 2010 Cited: Berger/Kellerhals In § 11
BERGER, KLAUS-PETER Private Dispute Resolution in International Business, Vol. II: Handbook Kluwer Law International, The Hague 2009 Cited: Berger In §§ 10, 11
BERGER, KLAUS-PETER Re-examining the Arbitration Agreement: Applicable Law – Consensus or Confusion? in: van den Berg (ed.), International Arbitration 2006: Back to Basics?, ICCA Congress Series, Vol. 13 (2006), pp. 301–334 Cited: Berger, Applicable Law In § 11
BERNARDINI, PIERO The Arbitration Clause of an International Contract, in: Journal of International Arbitration, Vol. 9 (1992), No. 2, pp. 45–60 Cited: Bernardini In § 65
BOOG, CHRISTOPHER MOSS, BENJAMIN
The Lazy Myth of the Arbitral Tribunal’s Duty to Render an Enforceable Award Available at: http://kluwerarbitrationblog.com/blog/2013/01/28/the-lazy-
UNIVERSITY OF FRIBOURG MEMORANDUM FOR RESPONDENT
VIII
myth-of-the-arbitral-tribunals-duty-to-render-an- enforceable-award/ Cited: Boog/Moss In § 39
BORN, GARY B. International Commercial Arbitration Kluwer Law International, The Hague 2009 Cited: Born In §§ 9, 11, 24, 28, 58, 65, 90
BORN, GARY B.
International Arbitration and Forum Selection Agreements: Drafting and Enforcing Kluwer Law International, Alphen aan den Rijn 2013 Cited: Born, Agreements In § 38
BORN, GARY B. International Arbitration: Cases and Materials Kluwer Law International, The Hague 2011 Cited: Born, Cases In § 10
BORN, GARY B. International Arbitration: Law and Practice Kluwer Law International, The Hague 2012 Cited: Born, Law In §§ 10, 11
BREKOULAKIS, STAVROS The Notion of the Superiority of Arbitration Agreements over
Jurisdiction Agreements: Time to Abandon It?, in: Journal of International Arbitration, Vol. 24 (2008), No. 4, pp. 341–364 Cited: Brekoulakis In § 11
BREKOULAKIS, STAVROS SHORE, LAURENCE
UNCITRAL Model Law, Article 34 [Application for setting aside as exclusive recourse against arbitral award] in: Mistelis (ed.), Concise International Arbitration, Kluwer Law International, Alphen aan den Rijn 2010 Cited: Brekoulakis/Shore In § 28
BRUNNER, CHRISTOPH UN-Kaufrecht – CISG, Kommentar zum Übereinkommen der Vereinten Nationen über Verträge über den internationalen Warenkauf von 1980, Unter Berücksichtigung der Schnittstellen zum internen Schweizer Recht Stämpfli, Bern 2004 Cited: Brunner
UNIVERSITY OF FRIBOURG MEMORANDUM FOR RESPONDENT
IX
In § 108
BÜHLER, MICHAEL W, WEBSTER, THOMAS H.
Handbook of ICC Arbitration, Commentary, Precedents, Materials, 2nd edition Sweet & Maxwell, London 2008 Cited: Bühler/Webster In § 11
CHANG, LENG SUN Singapore Law on Arbitral Awards, Singapore Academy of Law, Singapore 2011 Cited: Chang In § 28
CISG ADVISORY COUNCIL CISG-AC Opinion No. 4, Contracts for the Sale of Goods to Be Manufactured or Produced and Mixed Contracts (Article 3 CISG) Available at: http://www.cisg.law.pace.edu/cisg/CISG-AC-op4.html Cited: CISG-AC Op. 4 In § 134
CISG ADVISORY COUNCIL CISG-AC Opinion No. 13, Inclusion of Standard Terms under the CISG Available at: http://www.cisg.law.pace.edu/cisg/CISG-AC-op13.html Cited: CISG-AC Op. 13 In §§ 161, 165
COX, TREVOR Chaos versus Uniformity: The Divergent Views of Software in the International Community, in: Vindobona Journal of International Commercial Law and Arbitration, Vol. 4 (2000), pp. 3–29 Cited: Cox In § 108
DE MEULEMEESTER, DIRK Multicontract Arbitration Under The CEPANI Arbitration Arbitration (Article 10), Available at: http://kluwerarbitrationblog.com/blog/2013/10/23/multicontr act-arbitration-under-the-cepani-arbitration-rules-article-10/ Cited: De Meulemeester In § 95
DERAINS, YVES SCHWARTZ, ERIC A.
Guide to the ICC Rules of Arbitration, 2nd edition Kluwer Law International, The Hague 2005
UNIVERSITY OF FRIBOURG MEMORANDUM FOR RESPONDENT
X
Cited: Derains/Schwartz In § 10
DIEDRICH, FRANK Maintaining Uniformity in International Uniform Law Via Au-tonomous Interpretation: Software Contracts and the CISG, in: Pace International Law Review, Vol. 8 (1996), pp. 303–338 Cited: Diedrich In § 121
DIEDRICH, FRANK The CISG and computer software revisited, in: The Vindobona Journal of International Commercial Law and Arbitration, Vol. 6 (2002), pp. 55–75 Cited: Diedrich, software In §§ 120, 121
DORNIS, TIM W. Pre Arts. 14–24, Art. 14, in: Honsell (ed.), Kommentar zum UN Kaufrecht, Übereinkommen der Vereinten Nationen über Verträge über den Internationalen Warenverkauf (CISG), 2nd
edition Springer, Berlin/Heidelberg 2010 Cited: Dornis In §§ 147, 155, 156
EISELEN, SIEG The Requirements for the Inclusion of Standard Terms in International Sales Contracts, in: Potchefstroom Electronic Law Journal, Vol. 14 (2011), pp. 1–31 Cited: Eiselen In § 165
FEDURKO, ANNA SULAMÄGI, MARII
Estonia, in: Beale/Lautenschlager/Scotti/Van den hole (eds.), Dispute resolution clauses in international contracts, A global guide, Schulthess, Zurich et al. 2013 Cited: Fedurko/Sulamägi In § 50
FERRARI, FRANCO Art. 14, in: Kröll/Mistelis/Perales Viscasillas (eds.), UN Convention on Contracts for the International Sale of Goods (CISG) C.H. Beck, Munich 2011 Cited: Ferrari In §§ 141, 147
FERRARI, FRANCO
Arts. 1, 3, 6, in: Schlechtriem/Schwenzer (eds.), Kommentar zum Einheitlichen UN-Kaufrecht, Das Übereinkommen der
UNIVERSITY OF FRIBOURG MEMORANDUM FOR RESPONDENT
XI
Vereinten Nationen über den internationalen Warenkauf, CISG, 6th edition C.H. Beck, Munich 2013 Cited: Ferrari/Schlechtriem In §§ 108, 115, 119, 120, 126, 134, 136, 175
FERRARI, FRANCO Contrat de vente internationale, Applicabilité et applications de la Convention de Vienne sur les contrats de vente international de marchandises, 2nd edition Helbing & Lichtenhahn, Basel 2005 Cited: Ferrari, Applicabilité In §§ 108, 126
FRANC, LAURENCE Contractual Modification of Judicial Review of Arbitral Awards: The French Position, in: American Review of International Arbitration, Vol. 10 (1999), pp. 215–225 Cited: Franc In § 29
FRIGNANI, ALDO Drafting Arbitration Agreements, in: Arbitration International, Vol. 24 (2008), No. 4, pp. 561–570 Cited: Frignani In §§ 65, 73
FRY, JASON GREENBERG, SIMON MAZZA, FRANCESCA
Commentary on the 2012 ICC Rules, in: The Secretariat’s Guide to ICC Arbitration, 2012 Cited: Fry/Greenberg/Mazza In §§ 90, 97
FURRER, ANDREAS GIRSBERGER, DANIEL SCHRAMM, DOROTHEE
Art. 190 IPRG, in: Andreas Furrer, Daniel Girsberger, Markus Müller-Chen (eds.), Handkommentar zum Schweizer Privatrecht – Internationales Privatrecht, 2nd edition Schulthess, Zurich 2012 Cited: Furrer/Girsberger/Schramm In § 29
GAILLARD, EMMANUEL BANIFATEMI, YAS
Negative Effect of Competence-Competence: The Rule of Priority in Favour of the Arbitrators, in: Gaillard/Di Pietro (eds.), Enforcement of Arbitration Agreements and International Arbitral Awards Cameron May, London 2008 Cited: Gaillard/Banifatemi In § 65
UNIVERSITY OF FRIBOURG MEMORANDUM FOR RESPONDENT
XII
GAILLARD, EMMANUEL SAVAGE, JOHN (EDS.)
Fouchard, Gaillard, Goldman On International Commercial Arbitration Kluwer Law International, The Hague 1999 Cited: Fouchard In §§ 20, 35, 41, 58, 65, 73
GHARAVI, HAMID G. The International Effectiveness of the Annulment of an Arbitral Award Kluwer Law International, The Hague 2002 Cited: Gharavi In § 28
GIRSBERGER, DANIEL VOSER, NATHALIE
International Arbitration in Switzerland, 2nd edition Schulthess, Zurich/Basel/Geneva 2012 Cited: Girsberger/Voser In § 10
GOTTWALD, PETER Introduction, in: Gottwald (ed.), Internationale Schiedsgerichtsbarkeit Giesekind, Bielefeld 1997 Cited: Gottwald In § 65
GREEN, SARAH SAIDOV, DJAKHONGIR
Software as Goods, in: Journal of Business Law (March 2007), pp. 161–181 Cited: Green/Saidov In §§ 121, 126
GRUBER, URS PETER Arts. 14, 24, in: Krüger/Westermann (eds.), Münchener Kom-mentar zum Burgerlichen Gesetzbuch, Band 3, Besonderer Teil, Finanzerungsleasing, HeizkostenV, BetriebskostenV, CISG, 6th edition C.H. Beck, Munich 2012 Cited: Gruber In §§ 141, 156
GU, WEIXIA Recourse against Arbitral Awards: How Far Can a Court Go? Supportive and Supervisory Role of Hong Kong Courts as Lessons to Mainland China Arbitration, in: Chinese Journal of International Law Vol. 4 (2005), No. 2, pp. 481–500 Cited: Gu In §§ 28, 29
HANOTIAU, BERNARD Complex Arbitrations: Multiparty, Multicontract, Multi-Issue and Class Actions
UNIVERSITY OF FRIBOURG MEMORANDUM FOR RESPONDENT
XIII
Kluwer Law International, The Hague 2006 Cited: Hanotiau In § 96
HERBER, ROLF Art. 1, in: Schlechtriem (ed.), Commentary on the UN Convention on the International Sale of Goods (CISG), 2nd edition Oxford University Press, Oxford 1998 Cited: Herber In § 136
HOLTZMANN, HOWARD M. NEUHAUS, JOSEPH E.
A Guide to UNCITRAL Model Law on International Commercial Arbitration: Legislative History and Commentary Kluwer Law and Taxation Publishers, Deventer 1989 Cited: Holtzmann/Neuhaus In § 28
HONNOLD, JOHN O. FLECHTNER, HARRY M.
Uniform Law for International Sales under the 1980 United Nation Convention, 4th edition Kluwer Law International, Alphen aan den Rijn 2009 Cited: Honnold In § 120
HUBER, PETER MULLIS, ALASTAIR
The CISG, A new textbook for students and practitioners Sellier, Munich 2007 Cited: Huber/Mullis In §§ 119, 141
HWANG, MICHAEL LAI, AMY
Do egregious errors amount to a breach of public policy?, in: Arbitration, Vol. 71 (2005), No. 1, pp. 1–24 Cited: Hwang/Lai In § 24
IZZO, GIOVANNI VISCOMI, ROBERTO
Italy, in: Beale/Lautenschlager/Scotti/Van den hole (eds.), Dispute resolution clauses in international contracts, A global guide Schulthess, Zurich et al. 2013 Cited: Izzo/Viscomi In § 50
KANAE, HIROYUKI Japan, in: Beale/Lautenschlager/Scotti/Van den hole (eds.), Dispute resolution clauses in international contracts, A global guide Schulthess, Zurich et al. 2013 Cited: Kanae
UNIVERSITY OF FRIBOURG MEMORANDUM FOR RESPONDENT
XIV
In § 50
KAWHARU, AMOKURA The Public Policy Ground for Setting Aside and Refusing Enforcement of Arbitral Awards, Comments on the New Zealand Approach, in: Journal of International Arbitration, 1996 Vol. 24 (2007), pp. 491–513 Cited: Kawharu In § 50
KIRBY, JOSEPHINE Finality of Arbitral Rules: Saying an Award is Final Does Not Necessarily Make It So, in: Journal of International Arbitration, Vol. 29 (2012), No. 1, pp. 119–128 Cited: Kirby In § 20
KNULL, WILLIAM H. III RUBINS, NOAH D.
Betting the Farm on International Arbitration: Is it Time to Offer an Appeal Option?, American Review of International Arbitration, Vol. 11 (2000), No. 4, pp. 531–566 Cited: Knull/Rubins In § 29
KOCON, AGNIESKA Poland, in: Beale/Lautenschlager/Scotti/Van den hole (eds.), Dispute resolution clauses in international contracts, A global guide Schulthess, Zurich et al. 2013 Cited: Kocon In § 50
KRÖLL, STEFAN
Setting aside proceedings in Model Law jurisdictions – selected procedural and substantive questions from the case law, in: International Arbitration Law Review, Vol. 8 (2005), No. 5, pp. 170–178 Cited: Kröll In §§ 24, 28
KRUISINGA, SONJA A. Incorporation of standard terms according to the CISG and the CESL: Will these Competing Instruments Enhance Legal Certainty in Cross-Border Sales Transactions?, in: European Business Law Review, Vol. 2 (2013), No. 3, pp. 341–362 Cited: Kruisinga In § 141
KRUISINGA, SONJA A. Incorporation of Standard Terms under the CISG and Electron-ic Commerce, in: Schwenzer/Spagnolo (eds.), Towards Uni-formity: The 2nd Annual MAA Schlechtriem CISG Conference,
UNIVERSITY OF FRIBOURG MEMORANDUM FOR RESPONDENT
XV
International Commerce and Arbitration, Vol. 8 (2011), pp. 69–82 Cited: Kruisinga, Incorporation In §§ 147, 150
LARSON, MARCUS G. Applying uniform sales law to international software transactions: The use of the CISG, its shortcomings, and a comparative look at how the proposed UCC Article 2B would remedy them, in: Tulane Journal of International and Comparative Law, Vol. 5 (1997), pp. 445-489 Cited: Larson In § 131
LAUTENSCHLAGER, FELIX Current Problems Regarding the Interpretation of Statements and Party Conduct under the CISG – The Reasonable Third Person, Language Problems and Standard Terms and Conditions, in Vindobona Journal of International Commercial Law and Arbitration, Vol. 11 (2007), pp. 259-290 Cited: Lautenschlager In § 161
LEBOULANGER, PHILIPPE Multi-Contract Arbitration, in: Journal of International Arbitration, Vol. 13 (1996), pp. 43–97 Cited: Leboulanger In § 96
LEW, JULIAN D. M. The Law Applicable to the Form and Substance of the Arbitration Clause, in: van den Berg (ed.), Improving the Efficiency of Arbitration Agreements and Awards: 40 Years of Application of the New York Convention, ICCA Congress Series, Vol. 9 (1998), pp. 114–145 Kluwer Law International, The Hague 1999 Cited: Lew In § 11
LEW, JULIAN D. M. MISTELIS, LOUKAS A. KRÖLL, STEFAN
Comparative International Commercial Arbitration Kluwer Law International, The Hague 2003 Cited: Lew/Mistelis/Kröll In §§ 11, 20, 24, 50
LEWISON, KIM The Interpretation of Contracts, 5th edition Sweet & Maxwell, London 2011 Cited: Lewison In § 73
UNIVERSITY OF FRIBOURG MEMORANDUM FOR RESPONDENT
XVI
LINDBACH, JOCHEN Rechtswahl im Einheitsrecht am Beispiel des Wiener UN-Kaufrechts Shaker Verlag, Aachen 1996 Cited: Lindbach In § 175
LOHMANN, ARND Parteiautonomie und UN-Kaufrecht, Zugleich ein Beitrag zum Anwendungsbereich des Wiener Kaufrechtsubereinkommens der Vereinten Nationen vom 11. April 1980 Mohr Siebeck, Tubingen 2005 Cited: Lohmann In §§ 165, 171, 175, 178
LOOKOFSKY, JOSEPH Understanding the CISG, 4th edition
Wolters Kluwer, Alphen aan den Rijn 2012 Cited: Lookofsky In § 141
LORENZ, MANUEL Arts. 1, 3, in: Witz/Salger/Lorenz (eds.), International Einheitliches Kaufrecht, Praktiker-Kommentar und Vertragsgestaltung zum CISG Recht und Wirtschaft, Heidelberg 2000 Cited: Lorenz In §§ 120, 126
MAGNUS, ULRICH Art. 1, in: Staudinger (ed.), Kommentar zum Bürgerlichen Gesetzbuch mit Einfuhrungsgesetz und Nebengesetzen, Wiener UN-Kaufrecht (CISG) Sellier-De Gruyter, Berlin 2013 Cited as: Magnus/Staudinger In §§ 115, 126, 141, 150, 161
MAGNUS, ULRICH Incorporation of Standard Contract Terms under the CISG, in: Andersen/Schroeter (eds.), Sharing International Commercial Law across National Boundaries, Festschrift for Albert H. Kritzer on the occasion of his eightieth birthday, pp. 303–325 Wildy, Simmonds & Hill Publishing, London 2008 Cited: Magnus In §§ 142, 147, 161
MANKOWSKI, PETER Pre Arts. 14–24, in: Ferrari et al. (eds.), Internationales Vertragsrecht, EGBGB, CISG, CMR, FactÜ, Kommentar C.H. Beck, Munich 2007 Cited: Mankowski
UNIVERSITY OF FRIBOURG MEMORANDUM FOR RESPONDENT
XVII
In §§ 142, 147, 161
MASKOW, DIEDRICH Art. 53, in: Bianca/Bonell (eds.), Commentary on the International Sales Law, The 1980 Vienna Sales Convention Giuffrè, Milan 1987 Cited: Maskow In § 115
MEIER, ANDREA Introduction to Articles 7–10 ICC Rules, in: Arroyo (ed.), Arbitration in Switzerland, The Practitioner’s Guide Kluwer Law International, The Hague 2013 Cited as: Meier In §§ 90, 93
MISTELIS, LOUKAS Arts. 1, 6 in: Kröll/Mistelis/Perales Viscasillas (eds.), UN Convention on Contracts for the International Sale of Goods (CISG) C.H. Beck, Munich 2011 Cited: Mistelis In §§ 103, 108, 115, 136, 175
MISTELIS, LOUKAS RAYMOND, ANJANETTE
Art. 3, in: Kröll/Mistelis/Perales Viscasillas (eds.), UN Convention on Contracts for the International Sale of Goods (CISG) C.H. Beck, Munich 2011 Cited: Mistelis/Raymond In §§ 121, 136
MOSES, MARGHARETH Can Parties Tell Court What to Do? Expanded Judicial Review of Arbitral Awards, University of Kansas Law Review, Vol. 52 (2004), pp. 429–465 Cited: Moses In § 31
MOSES, MARGHARETH Party Agreements to Expand Judicial Review of Arbitral Awards, in: Journal of International Arbitration, Vol. 20 (2003), pp. 315–323 Cited: Moses, Party Agreements In § 31
MOWBRAY, JACQUELINE The Application of the United Nations Convention on Contracts for the International Sale of Goods to E-Commerce Transactions: The Implications for Asia, in: The Vindobona Journal of International Commercial Law and Arbitration, Vol. 7 (2003), pp. 121–150
UNIVERSITY OF FRIBOURG MEMORANDUM FOR RESPONDENT
XVIII
Cited: Mowbray In §§ 109, 126
NESBITT, SIMON PUGH, MICHAEL RYMKO, ALEXANDER SCARD, ALEXANDER
Unilateral option clauses: unenforceable in Russia Available at: http://www.hoganlovells.com/unilateral-option clauses-unenforceable-in-russia-09-05-2012/ Cited: Nesbitt/Pugh/Rymko/Scard In § 51
NEWHOUSE, ADAM TANAKA, TSUNEYOSHI
CISG – A Tool for Globalization (1): American and Japanese Perspectives, in: Ritsumeikan Law Review, Vol. 29 (2012), pp. 1–42 Cited: Newhouse/Tanaka In § 131
PARLIAMENT OF AUSTRALIA
International Arbitration Amendment Bill 2010, Revised Explanatory Memorandum, Available at: http://www.austlii.edu.au/au/legis/cth/bill_em/ iaab2010366/memo_2.html Cited as: Parliament of Australia In § 28
PILTZ, BURGHARD Internationales Kaufrecht, Das UN-Kaufrecht (Wiener Übereinkommen von 1980) in praxisorientierter Darstellung C.H. Beck. Munich 1993 Cited: Piltz In § 155
PILTZ, BURGHARD Standard Terms in UN-Contracts of Sale, in: Vindobona Journal of International Commercial Law and Arbitration, Vol. 8 (2004), pp. 233–244 Cited: Piltz, standard terms In § 142
POUDRET, JEAN-FRANÇOIS BESSON, SÉBASTIEN
Comparative Law of International Arbitration, 2nd edition Schulthess, Zurich 2007 Cited as: Poudret/Besson In §§ 9, 11, 28, 65
PRIMAK, SCOTT L. Computer Software: Should the UN Convention on Contracts for the International Sale of Goods Apply? A Contextual Ap-proach to the Question, in: Computer Law Journal, Vol. 11/2 (1997), pp. 197–231
UNIVERSITY OF FRIBOURG MEMORANDUM FOR RESPONDENT
XIX
Cited: Primak In § 131
RAGHAVAN, VIKRAM Heightened Judicial Review of Arbitral Awards: Perspectives from the UNCITRAL Model Law and the English Arbitration Act of 1996 on some US Developments, in: Journal of International Arbitration, Vol. 15 (1998), pp. 103–134 Cited: Raghavan In §§ 20, 28, 41
REDFERN, ALAN HUNTER, MARTIN BLACKBY, NIGEL PARTASIDES CONSTANTINE
Redfern and Hunter on International Arbitration, 5th edition Oxford University Press, Oxford et al. 2009 Cited: Redfern In §§ 11, 20, 24
SAENGER, INGO Arts. 1, 3 CISG, in: Ferrari et al. (eds.), Internationales Vertrags-recht, EGBGB, CISG, CMR, FactÜ, Kommentar C.H. Beck, Munich 2007 Cited: Saenger In § 115, 126
SCHLECHTRIEM, PETER BUTLER, PETRA
UN Law on International Sales Springler, Heidelberg 2009 Cited: Schlechtriem/Butler In §§ 115, 131, 134
SCHLECHTRIEM, PETER SCHROETER, ULRICH G.
Internationales UN-Kaufrecht, Ein Studien- und Erläuterungsbuch zum Übereinkommen der Vereinten Nationen uber Verträge uber den internationalen Warenkauf (CISG), 5th
edition Mohr Siebeck, Tubingen 2013 Cited: Schlechtriem/Schroeter In § 155
SCHMIDT-KESSEL, MARTIN Art. 8, in: Schlechtriem/Schwenzer (eds.), Commentray on the UN Convention on the International Sale of Goods, 3rd edition Oxford University Press, New York 2010 Cited: Schmidt-Kessel In §§ 55, 73, 150, 165
SCHROETER, ULRICH G. Art. 14, in: Schlechtriem/Schwenzer (eds.), Commentary on the UN Convention on the International Sale of Goods, 3rd edition Oxford University Press, New York 2010 Cited: Schroeter In §§ 141, 142, 147, 150, 155, 156, 161
UNIVERSITY OF FRIBOURG MEMORANDUM FOR RESPONDENT
XX
SCHROETER, ULRICH G. Vienna Sales Convention: Applicability to “Mixed Contracts”
and Interaction with the 1968 Brussels Convention, in: Vindobona Journal of International Commercial Law and Arbitration, Vol. 5 (2001), pp. 74–86 Cited: Schroeter, Applicability In § 135
SCHWARTZ, ERIC A. Choosing Between Broad Clauses and Detailed Blueprints, in: van den Berg (ed.), Improving the Efficiency of Arbitration Agreements and Awards: 40 Years of Application of the New York Convention, ICCA Congress Series, Vol. 9 (1998) Kluwer Law International, The Hague 1999 Cited: Schwartz In § 41
SCHWENZER, INGEBORG FOUNTOULAKIS, CHRISTIANA DIMSEY, MARIEL
International Sales Law – A guide to the CISG, 2nd edition Hart Publishing, Oxford 2012 Cited: Schwenzer/Fountoulakis/Dimsey In § 171
SCHWENZER, INGEBORG HACHEM, PASCAL
Arts. 1, 3, 6 in: Schlechtriem/Schwenzer (eds.), Commentary on the UN Convention on the International Sale of Goods, 3rd edition Oxford University Press, New York 2010 Cited: Schwenzer/Hachem In §§ 100, 119, 121, 131, 134, 136, 175
SEXTON, EDGAR J. KOTRLY, MICHAEL
Looking Out and Looking In: Reconciling Domestic and Internationalist Considerations in the Enforcement and Review of Arbitration Awards in Canada, in: Arbitration International, Vol. 27 (2011), No. 2, pp. 211–231 Cited: Sexton/Kotrly In § 24
SIEHR, KURT Arts. 2, 3, 6, in: Honsell (ed.), Kommentar zum UN Kaufrecht, Übereinkommen der Vereinten Nationen über Verträge über den Internationalen Warenverkauf (CISG), 2nd
edition Springer, Berlin/Heidelberg 2010 Cited: Siehr In §§ 134, 171
SMIT, HANS Contractual Modification of the Scope of Judicial Review of Arbitral Awards, in: American Review of International
UNIVERSITY OF FRIBOURG MEMORANDUM FOR RESPONDENT
XXI
Arbitration, Vol. 8 (1997), pp. 147–153 Cited: Smit In §§ 31, 35
SONO, HIROO The Applicability and Non-Applicability of the CISG to Software Transaction, in: Andersen/Schroeter (eds.), Sharing International Commercial Law across National Boundaries, Festschrift for Albert H. Kritzer on the occasion of his eightieth birthday, pp. 512–526 Wildy, Simmonds & Hill Publishing, London 2008 Cited: Sono In §§ 108, 109
SPAGNOLO, LISA Green Eggs and Ham: The CISG, Path Dependence, and the Behavioural Economics of Lawyer’s Choice of Law in International Sales Contracts, in: Journal of Private International Law, Vol. 6 (2010), No. 2, pp. 417–464 Cited: Spagnolo In § 165
TIBORCZ, ATTILA People’s Republic of China, in: Beale/Lautenschlager/Scotti/ Van den hole (eds.), Dispute resolution clauses in international contracts, A global guide Schulthess, Zurich et al. 2013 Cited: Tiborcz In § 50
TRAIN, FRANÇOIS-XAVIER Les contrats liés devant l’arbitre du commerce international Librairie Générale de Droit et de Jurisprudence, Paris 2003 Cited: Train In § 96
UNCITRAL WORKING
GROUP ON ELECTRONIC
COMMERCE
Legal aspects of electronic commerce, Possible future work in the field of electronic contracting: An analysis of the United Nations Convention on Contracts for the International Sale of Goods, Note by the Secretariat for the 38th session of the UN-CITRAL Working Group on Electronic Commerce, New York 2001 Cited: UNCITRAL Working Group In § 126
VAIDYANATHAN, RAMESH K. ICHHAPORIA, NAZNEEN R.
India, in: Beale/Lautenschlager/Scotti/Van den hole (eds.), Dispute resolution clauses in international contracts, A global guide, Schulthess, Zurich et al. 2013
UNIVERSITY OF FRIBOURG MEMORANDUM FOR RESPONDENT
XXII
Cited: Vaidyanathan/Ichhaporia In § 50
VOGENAUER, STEFAN Arts. 2.1.20, 4, in: Vogenauer/Kleinheisterkamp (eds.), Commentary on the UNIDROIT Principles of Internation Commercial Contracts (PICC) Oxford University Press, New York 2009 Cited: Vogenauer In §§ 55, 73, 165
WASCO, MARK D. When Less is More: The International Split Over Expanded Judicial Review in Arbitration, in: Rutgers Law Review, Vol. 62 (2010), No. 2, pp. 599–626 Cited: Wasco In § 31
WEIGAND, FRANK-BERND Introduction, in: Weigand (ed.), Practitioner’s Handbook on International Arbitration C.H. Beck, Munich 2002 Cited: Weigand In § 65
WELLMANN, GYÖRGY Hungary, in: Beale/Lautenschlager/Scotti/Van den hole (eds.), Dispute resolution clauses in international contracts, A global guide Schulthess, Zurich et al. 2013 Cited: Wellmann In § 50
WESTERMANN, HARM PETER Arts. 1, 3, in: Krüger/Westermann (eds.), Münchener Kommen-tar zum Burgerlichen Gesetzbuch, Band 3, Besonderer Teil, Fi-nanzerungsleasing, HeizkostenV, BetriebskostenV, CISG, 6th edition C.H. Beck, Munich 2012 Cited: Westermann In §§ 103, 108, 115, 126
WILLIAMS, DAVID A.R. Defining the Role of the Court in Modern International Commercial Arbitration, Herbert Smith Freehills-SMU Asian Arbitration Lecture, 11 October 2012, Available at: http://www.globalarbitrationreview.com/cdn/files/gar/articles/ david_williams_Defining_the_Role_of_the_Court_in_Modern_ Intl_Commercial_Arbitra_pdf Cited as: Williams
UNIVERSITY OF FRIBOURG MEMORANDUM FOR RESPONDENT
XXIII
In § 28
WITZ, WOLFGANG Art. 8, Pre Arts. 14–24, in: Witz/Salger/Lorenz, International Einheitliches Kaufrecht, Praktiker-Kommentar und Ver-tragsgestaltung zum CISG Verlag Recht und Wirtschaft, Heidelberg 2000 Cited: Witz In §§ 55, 155
WOLFF, REINMAR Party Autonomy to Agree on Non–Final Arbitration?, in: ASA Bulletin, Vol. 26 (2008), No. 3, pp. 626–641 Cited: Wolff In §§ 16, 28, 31, 35
INDEX OF CASES AND AWARDS
AUSTRIA OBERSTER GERICHTSHOF Oberster Gerichtshof, 22 October 2001
CISG-online 614, 1Ob77/01g Cited as: Oil case In § 175
OBERSTER GERICHTSHOF Oberster Gerichtshof, 21 June 2005 CISG-online 1047, 5Ob45/05m Cited as: Module T case In § 126
BELGIUM HOF VAN BEROEP, GENT Hof van Beroep, Gent, 24 November 2004
Orintix Srl v. Fabelta Ninove NV CISG-online 966, 224/2004/PBH Cited as: Computer case In § 126
RECHTBANK VAN KOOPHANDEL, KORTRIJK
Rechtbank van Koophandel, Kortrijk, 8 December 2004 Drukkerij Baillien en Maris NV v. C.P.F. Landgraaf CISG-online 1511 Cited as: Printed materials case In § 161
CANADA FEDERAL COURT OF CANADA
Federal Court of Canada, 7 April 1988 D. Frampton & Co. Ltd. v. Sylvio Thibeault and Navigation Harvey & Frères Inc.
UNIVERSITY OF FRIBOURG MEMORANDUM FOR RESPONDENT
XXIV
CLOUT No. 12 Cited as: Frampton case In § 28
FEDERAL COURT OF CANADA
Federal Court of Canada, 13 January 2004 The Attorney General of Canada v. S. D. Myers, Inc. Available at: http://reports.fja.gc.ca/eng/2004/2004fc38.html Cited as: Myers case In §§ 24, 28
COURT OF APPEAL OF BRITISH COLUMBIA
Court of Appeal of British Columbia, 24 October 1990 Quintette Coal Ltd. v. Nippon Steel Corp. et al. CLOUT No. 16 Cited as: Quintette case In § 24
SUPERIOR COURT OF ONTARIO Superior Court of Ontario, 22 September 1999 Re Corporacion Transacional de Inversiones SA et al. v. STET International, SpA. et al. CLOUT No. 391 Cited as: Transnacional case In § 24
SUPREME COURT OF ONTARIO Supreme Court of Ontario, 4 November 1998 Noble China Inc. et al. v. Lei Available at: http://canlii.ca/t/1vvkr Cited as: Noble China case In § 28
CHILE CORTE SUPREMA Corte Suprema, 22 September 2008
CISG-online 1787, 1782-2007 Cited as: Leather products case In § 171
ENGLAND AND WALES COURT OF APPEALS Court of Appeals, 24 March 1987
Deutsche Schachtbau- und Tiefbohrgesellschaft mbH v. Ras Al Khaimah National Oil Co., Shell International Petroleum Co. Ltd. Available at: http://www.kluwerarbitration.com/CommonUI/print.aspx?ids=ipn3491
UNIVERSITY OF FRIBOURG MEMORANDUM FOR RESPONDENT
XXV
Cited as: Deutsche Schachtbau case In § 24
COURT OF APPEALS Court of Appeals, 26 July 1996 St. Albans City and District Council v. International Computers Ltd. Available at: http://www2.warwick.ac.uk/fac/soc/law/elj/jilt/1997_3/white/ Cited: St. Albans case In § 108
HIGH COURT OF JUSTICE High Court of Justice, 18 February 1991 Paul Smith Ltd. v. H & S International Holding Inc. Available at: http://translex.uni-koeln.de/303000 Cited as: Paul Smith case In § 69
HIGH COURT OF JUSTICE High Court of Justice, 22 December 1992 Union of India v. McDonnell Douglas Corp. Available at: http://www.kluwerarbitration.com/CommonUI/print.aspx?ids=IPN4855 Cited as: Union of India case In § 11
HIGH COURT OF JUSTICE High Court of Justice, 22 May 1998 Shell International Petroleum Co. Ltd. v. Coral Oil Co. Ltd. Available at: http://www.simic.net.cn/upload/201005/20100531152147929.pdf Cited as: Shell case In § 69
HIGH COURT OF JUSTICE High Court of Justice, 4 October 2001 Sonatrach Petroleum Co v. Ferrell International Ltd. Available at: http://alrr.oxfordjournals.org/content/2001/1/693.full. pdf Cited as: Sonatrach Petroleum case In § 11
HIGH COURT OF JUSTICE High Court of Justice, 20 January 2006 Axa Re v. Ace Global Markets Ltd.
UNIVERSITY OF FRIBOURG MEMORANDUM FOR RESPONDENT
XXVI
Available at: http://www.bailii.org/ew/cases/EWHC/Comm/2006/216.html Cited as: Axa Re case In § 69
HIGH COURT OF JUSTICE High Court of Justice, 3 October 2006 McConnell Dowell Constructors (Aust) Pty Ltd. v. National Grid Gas Plc. Available at: http://www.bailii.org/ew/cases/EWHC/TCC/2006/2551.html Cited as: McConnell Dowell case In § 69
HIGH COURT OF JUSTICE High Court of Justice, 5 November 2010 Guangzhou Dockyards Co. Ltd. v ENE Aegiali I Available at: http://www.bailii.org/ew/cases/EWHC/Comm/2010/2826.html Cited as: Guangzhou case In § 29
HIGH COURT OF JUSTICE High Court of Justice, 9 November 2012 Interserve Industrial Services Ltd. v. ZRE Katowice SA Available at: http://www.bailii.org/cgi-bin/markup.cgidoc=/ ew/cases/EWHC/TCC/2012/3205.html Cited as: Interserve case In § 69
HIGH COURT OF JUSTICE High Court of Justice, 8 February 2013 Hyundai Merchant Marine Co. Ltd. v. Americas Bulk Transport Ltd. Available at: http://www.kluwerarbitration.com/CommonUI/print.aspx?ids=KLI-KA-1321791 Cited as: Hyundai case In § 73
HIGH COURT OF JUSTICE High Court of Justice, 24 May 2013 Mauritius Commercial Bank Ltd. v. Hestia Holdings Ltd., Sujana Universal Industries Ltd. Available at: http://www.bailii.org/ew/cases/EWHC/Comm/2013/13
UNIVERSITY OF FRIBOURG MEMORANDUM FOR RESPONDENT
XXVII
28.html Cited as: MCB case In § 51
EUROPEAN COURT OF JUSTICE EUROPEAN COURT OF JUSTICE European Court of Justice, 3 July 2012
UsedSoft GmbH v. Oracle International Corp. Case C-128/11 Cited as: Oracle case In § 131
FRANCE COUR DE CASSATION Cour de Cassation, 6 April 1994
Société Buzzichelli Holding v. Hennion Available at: http://www.legifrance.gouv.fr/affichJuriJudi.do?old Action=rechJuriJudi&idTexte=JURITEXT 000007031765&fastReqId=1920004938&fastPos=1 Cited as: Buzzichelli case In § 29
COUR DE CASSATION Cour de Cassation, 25 October 2005 CISG-online 1098, U 99-12.879 Cited as: Weed killer case In § 171
COUR DE CASSATION Cour de Cassation, 13 March 2007 Société Chefaro International v. Barrère et al. Available at: http://www.kluwerarbitration.com/CommonUI/print. aspx?ids=ipn28189 Cited as: Chefaro case In § 29
COUR DE CASSATION Cour de Cassation, 26 September 2012 X. v. Banque privée Edmund de Rothschild Europe Available at: http://www.legifrance.gouv.fr/affichJuriJudi.do?oldActi on=rechJuriJudi&idTexte=JURITEXT000026431679&fastReqId= Cited as: Rothschild case In § 51
COUR D’APPEL DE CHAMBÉRY
Cour d’appel de Chambéry, 25 May 1993 AMD Electronique v. Rosenberger Siam SpA
UNIVERSITY OF FRIBOURG MEMORANDUM FOR RESPONDENT
XXVIII
CISG-online 223 Cited as: Connectors case In § 120
COUR D’APPEL DE COLMAR Cour d’appel de Colmar, 26 September 1995 Céramique Culinaire de France SA v. Musgrave Ltd. CISG-online 226, 1 B 9400488 Cited as: Dishes case In § 175
COUR D’APPEL DE PARIS Cour d’appel de Paris, 12 December 1989 Societe Binate Maghreb v. Soc Screg Routes Commented in: Level, Note - Cour d'appel de Paris (1re Ch. suppl.) 12 décembre 1989, Revue de l'Arbitrage, Vol. 4 (1990), pp. 863–874 Cited as: Binate Maghreb case In §§ 29, 41
COUR D’APPEL DE PARIS Cour d’appel de Paris, 27 October 1994 Société de Diseno v. société Mendes Available at: http://www.kluwerarbitration.com/CommonUI/print.aspx?ids=IPN15107 Cited as: Diseno case In § 41
COUR D’APPEL DE PARIS Courd d’appel de Paris, 6 November 2001 CISG-online 677, 2000/04607 Cited as: Cables case In § 175
GERMANY BUNDESGERICHTSHOF Bundesgerichtshof, 31 October 2001
CISG-online 617, VIII ZR 60/01 Cited as: Machinery case In §§ 141, 142
BUNDESGERICHTSHOF Bundesgerichtshof, 1 March 2007 Available at: http://openjur.de/u/78680.html Cited as: Wiesbaden case In §§ 34, 35
BAYERISCHES OBERSTES LANDESGERICHT
Bayerisches Oberstes Landesgericht, 15 December 1999 CLOUT No. 375
UNIVERSITY OF FRIBOURG MEMORANDUM FOR RESPONDENT
XXIX
Cited as: Car door case In § 24
OBERLANDESGERICHT CELLE Oberlandesgericht Celle, 24 May 1995 CISG-online 152, 20 U 76/94 Cited as: Printing machine case In § 171
OBERLANDESGERICHT CELLE Oberlandesgericht Celle, 24 July 2009 CISG-online 1906, 13 W 48/09 Cited as: Recorders case In § 147
OBERLANDESGERICHT DÜSSELDORF
Oberlandesgericht Düsseldorf, 21 July 2003 CISG-online 919, I-17 U 22/03 Cited as: Rubber case In § 142
OBERLANDESGERICHT DÜSSELDORF
Oberlandesgericht Düsseldorf, 21 April 2004 CISG-online 915, I-15 U 88/03 Cited as: Car phone case In §§ 141, 156, 165
OBERLANDESGERICHT HAMBURG Oberlandesgericht Hamburg, 5 October 1998 CISG-online 473, 12 U 62/97 Cited as: Electronic parts case In § 178
OBERLANDESGERICHT HAMM Oberlandesgericht Hamm, 8 February 1995 CISG-online 141, 11 U 206/93 Cited as: Socks case In § 156
OBERLANDESGERICHT HAMM Oberlandesgericht Hamm, 6 December 2005 CISG-online 1221, 19 U 120/05 Cited as: Used motor case In § 155
OBERLANDESGERICHT KARLSRUHE
Oberlandesgericht Karlsruhe, 25 June 1997 CISG-online 263, 1 U 280/96 Cited as: Foil case In § 175
OBERLANDESGERICHT KOBLENZ Oberlandesgericht Koblenz, 16 January 1992 CISG-online 47, 5 U 534/91
UNIVERSITY OF FRIBOURG MEMORANDUM FOR RESPONDENT
XXX
Cited as: Motor yacht case In § 155
OBERLANDESGERICHT KOBLENZ Oberlandesgericht Koblenz, 17 September 1993 CISG-online 91, 2 U 1230/91 Cited as: Chip case In § 127
OBERLANDESGERICHT KÖLN Oberlandesgericht Köln, 26 August 1994 CISG-online 132, 19 U 282/93 Cited as: Market study case In § 108
OBERLANDESGERICHT KÖLN Oberlandesgericht Köln, 21 December 2005 CISG-online 1201, 16 U 47/05 Cited as: Trade usage case In § 142
OBERLANDESGERICHT MÜNCHEN Oberlandesgericht München, 9 July 1997 CISG-online 282, 7 U 2070/97 Cited as: Leather goods case In § 178
OBERLANDESGERICHT MÜNCHEN Oberlandesgericht München, 3 December 1999 CISG-online 585, 23 U 4446/99 Cited as: Production equipment case In § 119
OBERLANDESGERICHT STUTTGART Oberlandesgericht Stuttgart, 16 July 2002 Available at: http://lrbw.juris.de/cgi-bin/laender_ rechts pre-chung/document.py?Gericht=bw&nr=726 Cited as: Soccer license case In § 24
OBERLANDESGERICHT STUTTGART Oberlandesgericht Stuttgart, 31 March 2008 CISG-online 1658, 6 U 220/07 Cited as: Automobile case In § 171
LANDESGERICHT LANDSHUT Landesgericht Landshut, 12 June 2008 CISG-online 1703, 43 O 1748/07 Cited as: Metal slabs case In § 165
UNIVERSITY OF FRIBOURG MEMORANDUM FOR RESPONDENT
XXXI
LANDESGERICHT MÜNCHEN Landesgericht München, 8 February 1995 CISG-online 203, 8 HKO 24667/93 Cited as: Graphiplus case In §§ 108, 126
LANDESGERICHT NEUBRANDENBURG
Landesgericht Neubrandenburg, 3 August 2005 CISG-online 1190, 10 O 74/04 Cited as: Sour cherries case In § 142
AMTSGERICHT KEHL Amtsgericht Kehl, 6 October 1995 CISG-online 162, 3 C 925/93 Cited as: Knitwear case In § 155
INDIA SUPREME COURT OF INDIA Supreme Court of India, 9 May 2006
M/S Centrotrade Minerals et al. v. Hindustan Copper Ltd. Available at: http://indiankanoon.org/doc/1597776/ Cited as: Centrotrade case In § 28
ITALY TRIBUNALE CIVILE DI MONZA Tribunale Civile di Monza, 14 January 1993
CISG-online 540 Nuova Fucinati SpA v. Fondmetal International AB Cited as: Ferrochrome case In § 175
TRIBUNALE DI ROVERETO Tribunale di Roveeto, 21 November 2007 Takap BV v. Europlay S.r.l. CISG-online 1590, 914/06 Cited as: Mirrors case In § 141
AD HOC ARBITRATION, FLORENCE
Ad Hoc Arbitration, Florence, 19 April 1992 Società X v. Società Y CLOUT No. 92 Cited as: Leather wear case In § 175
NEW ZEALAND COURT OF APPEAL Court of Appeal, 17 June 2004
Methanex Motunui Ltd. v. Spellman
UNIVERSITY OF FRIBOURG MEMORANDUM FOR RESPONDENT
XXXII
New Zealand Reports, Vol. 3 (2004), p. 454 et seq. Cited as: Methanex case In § 28
PEOPLE’S REPUBLIC OF CHINA HIGH COURT OF HONG KONG High Court of Hong Kong, 17 February 1993
William Co. v. Chu Kong Agency Co. Ltd. CLOUT No. 44 Cited as: Chu Kong case In § 66
RUSSIA RUSSIAN SUPREME COURT Russian Supreme Court, 19 June 2012
Russian Telephone Company (RTC) v. Sony Ericsson Mo-bile Communications (Sony) Available at: http://www.arbitrations.ru/userfiles/file/Case%20Law/ Enforcement/Sony_Ericsson_Russian_Telephone_Comp any_Supreme_Court%20eng.pdf Cited as: Sony Ericsson case In §§ 50, 51
TRIBUNAL OF INTERNATIONAL
COMMERCIAL ARBITRATION, RF CCI
Tribunal of International Commercial Arbitration, RF CCI, 9 March 2004 CISG-online 1184, 91/2003 Cited as: Barter case In § 115
SINGAPORE SINGAPORE HIGH COURT Singapore High Court, 2 March 1992
The “Dai Yun Shan” Available at: http://www.singaporelaw.sg/sglaw/images/Arbitration Cases/%5B1992%5D_1_SLR%28R%29_0461.pdf Cited as: Dai Yun Shan case In § 66
SINGAPORE HIGH COURT Singapore High Court, 14 March 2001 John Holland Pty Ltd. v. Toyo Engineering Corp. Available at: http://www.singaporelaw.sg/sglaw/images/Arbitration Cases/[2001]_1_SLR(R)_0443.pdf Cited as: John Holland case In § 24
UNIVERSITY OF FRIBOURG MEMORANDUM FOR RESPONDENT
XXXIII
SINGAPORE HIGH COURT Singapore High Court, 8 May 2003 ABC Co. v. XYZ Co. Ltd. Clout Case 566 Cited as: ABC case In § 28
SINGAPORE HIGH COURT Singapore High Court, 12 January 2009 P.T. Tri-M.G. Intra Asia Airlines v. Norse Air Charter Ltd. Available at: http://www.singaporelaw.sg/sglaw/laws-of-singapore /case-law/free-law/high-court-judgments/13593-p-t-tri-m-g-intra-asia-airlines-v-norse-air-charter-limited-2009-sghc-13 Cited as: Norse Air Charter case In §§ 66, 69
SINGAPORE HIGH COURT Singapore High Court, 14 August 2012, Quarella SpA v. Scelta Marble Australia Pty Ltd. Available at: http://www.singaporelaw.sg/sglaw/laws-of-singapore/ case-law/free-law/high-court-judgments/14958-quarella-spa-v-scelta-marble-australia-pty-ltd-2012-sghc-166 Cited as: Quarella case In § 28
SPAIN AUDIENCIA PROVINCIAL DE NAVARRA
Audiencia Provincial de Navarra, 27 December 2007 CISG-online 1798 Cited as: Bricks case In § 142
SWITZERLAND BUNDESGERICHT Bundesgericht, 3 October 1989
A v. B, ATF 115 II 288 Available at: http://www.servat.unibe.ch/dfr/bge/c2115288.html Cited as: A. v. B case In § 29
BUNDESGERICHT Bundesgericht, 2 September 1993 National Power Corporation v. Westinghouse International Projects Co. et al., ATF 119 II 380 Available at: http://www.polyreg.ch/d/informationen/bgeleitentsche ide/Band_119_1993/BGE_119_II_380.html
UNIVERSITY OF FRIBOURG MEMORANDUM FOR RESPONDENT
XXXIV
Cited as: Westinghouse case In § 29
BUNDESGERICHT Bundesgericht, 14 May 2001 Fomento de Construcciones y Contratas SA v. Colon Container Terminal SA, ATF 127 III 279 Available at: http://www.polyreg.ch/d/informationen/bgeleitentsche ide/Band_127_2001/BGE_127_III_279.html Cited as: Fomento case In § 29
BUNDESGERICHT Bundesgericht, 16 October 2001 X. v. O., ATF 128 III 50 Available at: http://www.polyreg.ch/d/informationen/bgeleitentsche ide/Band_128_2002/BGE_128_III_50.html Cited as: Antishock case In § 29
BUNDESGERICHT Bundesgericht, 22 January 2008 A.C. SE et al. v. K. SAS, ATF 134 III 186 Available at: http://jumpcgi.bger.ch/cgi-bin/JumpCGI?id=BGE 134-III-186 Cited as: Product development case In § 29
BUNDESGERICHT Bundesgericht, 4 January 2012 X. v. Z. Available at: http://www.polyreg.ch/d/informationen/bgeunpubliziert/ Jahr_2011/Entscheide_4A_2011/4A.238__2011.html Cited as: X v. Z case In § 29
KANTONSGERICHT ZUG Kantonsgericht Zug, 16 March 1995 CISG-online 230, A3 1993 20 Cited as: Cobalt case In § 175
KANTONSGERICHT ZUG Kantonsgericht Zug, 11 December 2003 CISG-online 958, A2 02 93 Cited as: Granulate case In § 161
UNIVERSITY OF FRIBOURG MEMORANDUM FOR RESPONDENT
XXXV
HANDELSGERICHT ZÜRICH Handelsgericht Zürich, 17 February 2000
CISG-online 637, HG 980472 Cited as: Software case In § 136
THE NETHERLANDS GERECHTSHOF ‘S HERTOGENBOSCH
Gerechtshof ‘s Hertogenbosch, 16 October 2002 CISG-online 816, C0100017 Cited as: Plants case In § 142
RECHTBANK ARNHEM Rechtbank Arnhem, 28 June 2006 Silicon Biomedical Instruments BV v. Erich Jaeger GmbH CISG-online 1265, 82879/HA ZA 02-105 Cited as: Cephalo pro case In § 121
RECHTBANK UTRECHT Rechtbank Utrecht, 21 January 2009 A. GmbH v. Quote Foodproducts BV CISG-online 1814, 253099/HAZA 08-1624 Cited as: Seeds case In § 141
UNITED STATES U.S. SUPREME COURT U.S. Supreme Court, 27 November 1979
Linda Miner v. Richard Walden et al. Available at: http://www.leagle.com/decision/1979915101Misc2d814_1760.xml/MINER%20v.%20WALD Cited as: Miner case In § 47
U.S. SUPREME COURT U.S. Supreme Court, 25 March 2008 Hall Street Associates LLC. v. Mattel, Inc. Available at: http://www.supremecourt.gov/opinions/07pdf/06-989.pdf Cited as: Hall Street case In § 29
U.S. SUPREME COURT
Brief of Professors and Practioners of Arbitration Law as Amicus Curiae in Support of Petition for a Writ of Certiorari, 16 January 2014, Arun Walia v. Dewan, CPA, P.A. & Kiran Moolchand
UNIVERSITY OF FRIBOURG MEMORANDUM FOR RESPONDENT
XXXVI
Dewan Available at: http://globalarbitrationreview.com/cdn/files/gar/articles/Walia_Amicus_Brief.pdf Cited as: Amicus brief In § 29
U.S. COURT OF APPEALS, SECOND CIRCUIT
U.S. Court of Appeals, Second Circuit, 30 March 1967 Saxis Steamship Co. v. Multifacs International Traders Inc. Available at: http://www.leagle.com/decision/19679523 75F2d577_1835.xml/SAXIS%20STEAMSHIP%20CO.% 20v.%20MULTIFACS%20INTERNATIONAL%20TRA DERS,%20INC Cited as: Saxis Steamship case In § 31
U.S. COURT OF APPEALS, FOURTH CIRCUIT
U.S. Court of Appeals, Fourth Circuit, 17 August 1992 Richmond, Fredericksburg & Potomac Co. v. Transportation Communications International Union Available at: https://www.casetext.com/case/richmond- fredericksburg-potomac-r-co-v-transportation-communi cations-intern-union Cited as: Richmond case In § 31
U.S. COURT OF APPEALS, FOURTH CIRCUIT
U.S. Court of Appeals, Fourth Circuit, 19 August 1994 Remmey v. Painewebber, Inc. Available at: https://www.casetext.com/case/remmey-v-painewebber-inc/ Cited as: Remmey case In § 31
U.S. COURT OF APPEALS, FOURTH CIRCUIT
U.S. Court of Appeals, Fourth Circuit, 25 March 1999 Westvaco Corp. v. United Paperworkers International Union Available at: https://www.casetext.com/case/westvaco-corp-v-united-paperworkers-intern-union-afl-cio-ex-rel-local-union-676 Cited as: Westvaco case In § 31
U.S. COURT OF APPEALS, U.S. Court of Appeals, Fourth Circuit, 30 November 1999
UNIVERSITY OF FRIBOURG MEMORANDUM FOR RESPONDENT
XXXVII
FOURTH CIRCUIT United States Postal Service v. American Postal Workers Union Available at: https://www.casetext.com/case/us-postal-serv-v-am-postal-workers-union/ Cited as: Postal Service case In § 31
U.S. COURT OF APPEALS, NINTH CIRCUIT
U.S. Court of Appeals, Ninth Circuit, 9 December 1997 LaPine Technology Corp. v. Kyocera Corp. Available at: http://www.leagle.com/decision/19971014130F3d884_1896 Cited as: LaPine case In § 29
U.S. COURT OF APPEALS, NINTH CIRCUIT
U.S. Court of Appeals, Ninth Circuit, 27 May 1998 Evolution Online Systems, Inc. v. Koninklijke Ptt Nederland NV et al. CISG-online 768, 97-7466 Cited as: Evolution case In § 127
U.S. COURT OF APPEALS, NINTH CIRCUIT
U.S. Court of Appeals, Ninth Circuit, 5 May 2003 Château des Charmes Ltd. v. Sabate USA Inc., Sabate SA CISG-online 767, 02-15727 Cited as: Wine corks case In § 161
U.S. COURT OFAPPEALS, NINTH CIRCUIT
U.S. Court of Appeals, Ninth Circuit, 29 August 2003 Kyocera v. Prudential Bache Trade Services Available at: http://www.leagle.com/decision/20031328341F3d987_11223 Cited as: Kyocera case In § 29
U.S. COURT OF APPEALS, ELEVENTH CIRCUIT
U.S. Court of Appeals, Eleventh Circuit, 4 March 1985 Robert E. Hull v. Norcom, Inc. and Norman J. Kauffmann Available at: http://www.leagle.com/decision/19852297750F2d1547_12075 Cited as: Hull case In § 50
UNIVERSITY OF FRIBOURG MEMORANDUM FOR RESPONDENT
XXXVIII
COURT OF APPEALS OF INDIANA, FOURTH DISTRICT
Court of Appeals of Indiana, Fourth District, 28 April 1986 Data Processing Services Inc. v. L.H. Smith Oil Corp. Available at: http://www.leagle.com/decision/1986806492NE2 d314_1778 Cited as: DPS case In § 108
U.S. DISTRICT COURT, CALIFORNIA (E.D.)
U.S. District Court, California (E.D.), 21 January 2010 Golden Valley Grape Juice and Wine, LLC v. Centris Corp. CISG-online 2089, CV F 09-1424 LJO GSA Cited as: Centrifuge case In § 161
U.S. DISTRICT COURT, CALIFORNIA (N.D.)
U.S. District Court, California (N.D.), 27 July 2001 Asante Technologies, Inc. v. PMC-Sierra, Inc. CISG-online 616, C 01-20230 JW Cited as: Asante case In § 171
U.S. DISTRICT COURT, NORTH CAROLINA (W.D.)
U.S. District Court, North Carolina (W.D.), 25 January 2006 Wachovia Securities, LLC v. Tonya M. Blankenship et al. Available at: http://nc.findacase.com/research/wfrmDocViewer.aspx/ xq/fac.20060125_0000132.WNC.htm/qx Cited as: Wachovia case In § 31
U.S. DISTRICT COURT, PENNSYLVANIA (M.D.)
U.S. District Court, Pennsylvania (M.D.), 16 August 2005 American Mint LLC v. GOSoftware, Inc. CISG-online 1104, Civ.A. 1:05-CV-650 Cited as: Mint case In § 175
SUPREME COURT OF APPEALS OF
WEST VIRGINIA Supreme Court of West Virginia, 11 December 1998 Orville Arnold and Maxine Arnold Plaintiffs v. United Companies Lending Corp. and Michael T. Searls Available at: http://www.leagle.com/decision/19981365511SE2d854_11348 Cited as: Arnold case In § 50
SUPREME COURT OF MINNESOTA Supreme Court of Minnesota, 11 April 1963
UNIVERSITY OF FRIBOURG MEMORANDUM FOR RESPONDENT
XXXIX
Suad A. Niazi et al. v. St. Paul Mercury Insurance Co. Available at: http://www.leagle.com/decision/1963487265Minn222_1458.xml/NIAZI-v.-ST.-PAUL-MERCURY-INSURANCE-CO Cited as: Niazi case In § 58
SUPREME COURT OF NEW MEXICO Supreme Court of New Mexico, 29 April 2009 Laura A. Cordova v. World Finance Corp. of New Mexico Available at: http://www.leagle.com/decision/In%20NMCO%2020090430231 Cited as: Cordova case In § 50
SUPREME COURT OF TENNESSEE
Supreme Court of Tennessee, 31 August 2004 Sharon Taylor v. Douglas Butler and City Auto Sales Available at: http://www.leagle.com/decision/2004419142SW3d277_1418 Cited as: Taylor case In § 50
SUPERIOR COURT OF NEW JERSEY Superior Court of New Jersey, 1 February 1993 Duerlein v. New Jersey Automobile Full Insurance Underwriting Association Available at: https://www.courtlistener.com/njsuperctappdiv/cBki/duerlein-v-nj-auto-full-ins/ Cited as: Duerlein case In § 58
COURT OF APPEALS OF ARIZONA Court of Appeals of Arizona, 7 August 1990 Stevens/Leinweber/Sullens, Inc. v. Holm Development and Management, Inc. Available at: http://www.leagle.com/decision/1990190165Ariz25_1186 Holm case In § 50
DISTRICT COURT OF APPEAL OF
FLORIDA, FIFTH DISTRICT
District Court of Appeal of Florida, Fifth District, 22 December 1982 R.W. Roberts Construction Co., Inc., v. St. Johns River Water Management
UNIVERSITY OF FRIBOURG MEMORANDUM FOR RESPONDENT
XL
Available at: http://www.leagle.com/decision/19821053423So2d630_1867 Cited as: Roberts case In § 50
INTERNATIONAL CHAMBER OF COMMERCE ICC AWARD NO. 2626 ICC Arbitral Award (1977)
Case No. 2626 Cited as: ICC Case No. 2626 In § 11
ICC AWARD NO. 6752 ICC Arbitral Award (1991) Case No. 6752 Cited as: ICC Case No. 6752 In § 11
ICC AWARD NO. 6840 ICC Arbitral Award (1991) Case No. 6840 Cited as: ICC Case No. 6840 In § 11
ICC AWARD NO. 8203 ICC Arbitral Award (1996) Case No. 8203 Unpublished, commented in Train Cited as: ICC Case No. 8203 In § 62
ICC AWARD NO. 11256 ICC Arbitral Award (2003) Case No. 11256 Cited as: ICC Case No. 11256 In § 120
UNIVERSITY OF FRIBOURG MEMORANDUM FOR RESPONDENT
1
STATEMENT OF FACTS
1 Hope Hospital (hereinafter RESPONDENT) is an Equatorianean university hospital and the na-
tional centre for cancer treatment and research. It treats 90% of the country’s cancer patients.
2 Innovative Cancer Treatment Ltd. (hereinafter CLAIMANT) is a Mediterranean corporation active
in the field of cancer treatment devices. It is namely specialised in particle therapy.
3 On 13 January 2008, CLAIMANT and RESPONDENT (hereinafter together the Parties) concluded a
Framework and Sales Agreement (hereinafter FSA) [ClaEx 2]. The FSA provided for the delivery
of a complete proton therapy facility using passive scattering technology to RESPONDENT by
CLAIMANT against payment of a purchase price of USD 50 million. RESPONDENT insisted during
the negotiations on an appeal and review mechanism that would allow the review of an arbitral
award by a state court. The proton therapy facility was completed on 15 April 2010.
4 On 6 May 2010, RESPONDENT contacted CLAIMANT about the conclusion of a Sales and Licens-
ing Agreement for the joint development of the active scanning software (hereinafter SLA). It
namely offered to provide CLAIMANT with medical data for the development of the necessary
software and to conduct the clinical trials required to obtain official approval of this technology.
5 On 2 June 2011, during the negotiations, CLAIMANT mentioned that it had revised its standard
terms, however, it promised that they would not contain any major change from their previous
2000 version, which governed the FSA, apart from the liability regime [ClaEx 9].
6 On 1 July 2011, an erroneous and unintelligible English translation of CLAIMANT’s 2011 standard
terms was uploaded. CLAIMANT promptly removed this translation from its website on 4 July
2011. From then on and until after the conclusion of the SLA, the standard terms were solely
available in Mediterranean. In a letter dated 5 July 2011, CLAIMANT’s representative Dr. Vis
promised RESPONDENT that it would receive a perfect English translation of the standard terms
before the conclusion of the SLA – a promise CLAIMANT failed to keep.
7 On 20 July 2011, the Parties concluded the SLA [ClaEx 6], under which RESPONDENT was
required to pay USD 3.5 million instead of USD 9.5 million, given that USD 6 million of the
purchase price were offset against the important provision of data by RESPONDENT.
8 On 20 May 2012, RESPONDENT had to stop using the active scanning technology due to severe
software dysfunctions. It informed CLAIMANT that it would therefore withhold the final pay-
ments for both the FSA and the SLA. On 6 June 2013, CLAIMANT filed a Request for Arbitration
at CEPANI, the Belgian Centre for Arbitration and Mediation. It claimed the outstanding parts
of the purchase prices under both the FSA and the SLA. Hereafter, the present Arbitral Tribunal
(hereinafter Tribunal) was constituted.
UNIVERSITY OF FRIBOURG MEMORANDUM FOR RESPONDENT
2
ARGUMENT ON THE PROCEDURAL ISSUES
9 RESPONDENT disputes the jurisdiction of this Tribunal [TermRef N6]. For the purposes of the
arguments set out in this submission, the seat of arbitration is assumed to be Vindobona, Danu-
bia [ProcOrd 1, N3(3)]. Given that the law at the seat of the arbitral tribunal, i.e. the lex arbitri,
governs the arbitration [Born, p. 306; Poudret/Besson, p. 112], RESPONDENT will base its argument
on the Danubian Arbitration Law for International Arbitration (hereinafter DAL). This shall, how-
ever, in no way be construed as RESPONDENT’s acceptance of this Tribunal’s jurisdiction.
10 The DAL is a verbatim adoption of the UNCITRAL Model Law on International Commercial
Arbitration (hereinafter Model Law) with the 2006 amendments [ProcOrd 1, N3(3)]. According to
Art. 16(1) DAL, an arbitral tribunal may rule “on its own jurisdiction, including any objections
with respect to the existence or validity of the arbitration agreement,” which reflects the well-
established principle of competence-competence [Bärtsch/Petti, N3.05; Berger, N20.33; Born, Cases,
p. 219; Born, Law, p. 52; Derains/Schwartz, p. 111–112; Girsberger/Voser, N409]. Accordingly, this
Tribunal is competent to decide on its own jurisdiction.
11 When ruling on its jurisdiction or absence thereof, a tribunal must decide whether there was a
“meeting of the minds” between the parties to conclude an arbitration agreement, which is a
question of substantive validity [Berger, Applicable Law, p. 302; cf. Brekoulakis, p. 359; Born, Law,
p. 69; Lew/Mistelis/Kröll, N7.34]. The substantive validity of the arbitration clause is to be deter-
mined according to the law the parties chose to apply to the arbitration clause [Berger/Kellerhals,
N374–375; Born, p. 426]. Absent a specific choice of law for the arbitration clause, the choice of
law for the underlying contract extends to the arbitration clause [ICC Case No. 2626; ICC Case
No. 6752; ICC Case No. 6840; Sonatrach Petroleum case; Union of India case; Abdulla, p. 17; Born,
p. 426; Berger, N20–61; Bühler/Webster, N6.6; Lew, p. 143; Poudret/Besson, N178; Redfern, N3.12].
12 In the present case, the Parties did not expressly choose a specific law to apply to the arbitration
clause. Hence, the question of whether the Parties validly agreed to submit disputes to arbitration
will be determined according to the specific law chosen for the underlying contract.
13 Contary to CLAIMANT’s submission, the following will establish that this Tribunal lacks jurisdic-
tion to hear claims arising out of the FSA (I) as well as the SLA (II). In any case, it is inadmissi-
ble to hear the claims arising out of the FSA and the SLA in a single arbitration (III).
I. THIS TRIBUNAL HAS NO JURISDICTION TO HEAR CLAIMS ARISING OUT OF
THE FSA
14 Art. 23(3) FSA contains an arbitration clause providing for arbitration under the CEPANI Rules
with Vindobona, Danubia, as seat of the arbitration [ClaEx 2]. RESPONDENT submits that this
UNIVERSITY OF FRIBOURG MEMORANDUM FOR RESPONDENT
3
arbitration clause is void due to both the invalidity of the appeal and review mechanism (A) and
CLAIMANT’s unilateral litigation right for payment claims (B). Furthermore, also Section 21 of
the 2000 standard terms does not confer jurisdiction upon this Tribunal (C).
A. THE APPEAL AND REVIEW MECHANISM OF ART. 23(4) FSA RENDERS THE ENTIRE
ARBITRATION AGREEMENT INVALID
15 The Parties agreed to subject arbitral awards to an appeal and review mechanism, which they
included in Art. 23(4) FSA [ClaEx 2]. Contrary to CLAIMANT’s assertion [ClaM §§3 et seq.], RE-
SPONDENT submits that the appeal and review mechanism of Art. 23(4) FSA is invalid (1) and
that the entire arbitration agreement depends on the validity of Art. 23(4) FSA (2).
1. The appeal and review mechanism of Art. 23(4) FSA is an invalid attempt to expand
judicial review
16 Agreements allowing for a post-award review by a state court on the merits of a dispute can
either be construed as an expansion of the statutory grounds for setting aside or as subjecting the
finality of that award to certain conditions agreed on by the parties [Wolff, p. 626]. Both options
compromise the finality of the award [Idem].
17 The Parties agreed on the following appeal and review mechanism in Art. 23(4) FSA: “The award
shall be final and binding upon the Parties. Each Party has […] the right within three months
after it has received the award to refer the case to the applicable state courts if it considers the
award to be obviously wrong in fact or in law. The state court shall then have jurisdiction to re-
view the case and to decide the issue in accordance with the applicable law” [ClaEx 2].
18 CLAIMANT argues that the appeal and review mechanism is a modification of the procedure for
setting aside the award [ClaM §§3–5]. Alternatively, it could have submitted that Art. 23(4) FSA
subjects the finality of the award to the condition that neither of the Parties introduces litigation
within three months. It will be shown that the expansion of the grounds for setting aside is inva-
lid (i). Furthermore, the Parties did not subject the finality of the award to a condition (ii).
(i) The appeal and review mechanism of Art. 23(4) FSA is an invalid expansion of the
grounds for setting aside contained in Art. 34(2) DAL
19 The following will establish that Art. 23(4) FSA amounts to an expansion of the grounds for
setting aside (a), that the expansion of the grounds for setting aside is invalid under the DAL (b),
and that such an expansion must be rejected in order to safeguard the efficiency of arbitration
(c).
UNIVERSITY OF FRIBOURG MEMORANDUM FOR RESPONDENT
4
(a) Art. 23(4) FSA does not correspond to the grounds for setting aside stated in
Art. 34(2) DAL and thereby constitutes an expansion of judicial review
20 As CLAIMANT correctly submits, “the finality of an award depends on the law of the seat of
arbitration” [ClaM §3]. The lex arbitri at the seat of the arbitration determines on what grounds an
award can be challenged [Fouchard, N1194; Kirby, p. 121; Raghavan, p. 122; Redfern, N10.28].
Art. 34 DAL states that recourse against an arbitral award may be made only by an application
for setting aside. If one of the parties makes such an application, the potentially competent state
court only has jurisdiction to set the award aside if it was made on its territory [Fouchard, N1593;
Lew/Mistelis/Kröll, N25.15; Redfern, N10.21]. Pursuant to Art. 1(2) DAL, only a Danubian court
can set aside an award made in Danubia. Therefore, only the DAL determines whether an award
rendered in this dispute can be set aside.
21 Accordingly, CLAIMANT’S enumeration of other leges arbitri than the DAL that allegedly contain
grounds for setting aside allowing for “the possibility to appeal [against] ‘obviously wrong’ arbi-
tral awards” [ClaM §3], are irrelevant when determining the finality of an award rendered in Da-
nubia, as only the DAL is pertinent.
22 With regards to the DAL, the Parties’ agreement that a state court may set an award aside if it is
“obviously wrong in fact or in law” [Art. 23(4) FSA, ClaEx 2], i.e. if it contains manifest errors of
fact or law, amounts to an expansion of the grounds for setting aside for two reasons.
23 First, the DAL contains no provision that expressly allows the setting aside of arbitral awards on
the grounds of manifest errors of fact or law.
24 Second, also beyond their express wording, none of the statutory grounds for setting aside con-
tained in the DAL allows setting aside of an award based on manifest errors of fact and law [Car
door case; John Holland case; Myers case; Transnacional case; Lew/Mistelis/Kröll, N25-33; Redfern, N10.68].
In particular, the public policy exception of Art. 34(2)(b)(ii) DAL, which holds that an award may
be set aside if it “is in conflict with the public policy of Danubia” cannot be interpreted as
providing for a review on the grounds of manifest errors of fact or law. Unanimous case law
holds that the grounds for setting aside, in particular the public policy exception are to be “con-
strued narrowly” [Transnacional case; cf. Deutsche Schachtbau case; Myers case; Quintette case; Born,
p. 2563; Kröll, p. 179; Sexton/Kotrly, p. 212]. In order to violate public policy, an “award must fun-
damentally offend the most basic and explicit principles of justice and fairness” in the respective
jurisdiction [Sexton/Kotrly, p. 217; cf. Soccer license case]. Only “extremely serious or egregious errors justify
a setting aside of the award under the public policy ground” [Hwang/Lai, p. 5, emphasis added].
In the present case, CLAIMANT recognised that the appeal and review mechanism should allow
UNIVERSITY OF FRIBOURG MEMORANDUM FOR RESPONDENT
5
for review of an obviously erroneous award [ClaEx 3]. Thereby, the Parties’ intent as to the
grounds for setting aside goes beyond the statutory grounds of Art. 34(2) DAL, in particular the
public policy exception, which only allow setting aside on extremely narrow grounds.
25 Accordingly, the Parties’ agreement that an award may be set aside if it is “obviously wrong in
fact or in law” [Art. 23(4) FSA, ClaEx 2], i.e. contains manifest errors of fact or law, constitutes
an attempt to expand the grounds for setting aside.
(b) The Parties’ expansion of the grounds for setting aside in Art. 23(4) FSA is invalid
under the DAL
26 CLAIMANT submits that an expansion of the grounds for setting aside is valid by referring to
different Model Law jurisdictions as well as other jurisdictions. Art. 2 A DAL states, “in the in-
terpretation of this Law, regard is to be had to its international origin and to the need to promote
uniformity in its application”. Accordingly, the fact that Danubian courts have not yet addressed
the validity of an expansion of judicial review [ProcOrd 2, N15] is irrelevant.
27 Contrary to CLAIMANT, the following will establish that such an expansion is, first, not valid
under the DAL and, second, is – to the extent that non-Model Law jurisdictions can be taken into
account – equally invalid.
28 First, Art. 34(2) DAL provides that an arbitral award may be set aside “only if” one of the six
specified grounds is held to be fulfilled. Unanimous case law and doctrine related to the Model
Law leave no doubt that this list of statutory grounds for setting aside is exhaustive and therefore
cannot be expanded by an agreement between the parties [ABC case; Centrotrade case; Frampton case;
Methanex case; Myers case; Quarella case; Born, p. 2562; Brekoulakis/Shore, p. 646; Chang, N3.72; Ghara-
vi, p. 31; Gu, p. 487; Kröll, p. 176; Parliament of Australia, N46; Poudret/Besson, p. 788; Raghavan,
p. 126; Williams, p. 20]. Not only the exclusionary terms of Art. 34(2) Model Law impose the ex-
haustive nature of the list of grounds for setting aside [Born, p. 2562], but also Art. 5 Model Law,
which states that “[i]n matters governed by this Law, no court shall intervene except where so
provided in this Law.” This provision is mandatory and, accordingly, parties may not derogate
from it by expanding judicial review [Raghavan, p. 124–125; Williams, p. 8; Wolff, p. 635; cf. Noble
China case]. The travaux préparatoires reaffirm this conclusion: “[T]he prevailing view, adopted by
the Working Group, was that it was desirable to express the non-mandatory character in all pro-
visions of the final text which were intended to be non-mandatory” [Holtzmann/Neuhaus,
p. 1153]. In consequence, given that Art. 34 Model Law does not contain an indication such as
“unless otherwise agreed by the parties,” it is a mandatory provision. To sum up, the expansion
UNIVERSITY OF FRIBOURG MEMORANDUM FOR RESPONDENT
6
of the grounds for the setting aside by party agreement is invalid under the Model Law pursuant
to unanimous case law, doctrine and its drafting history and, accordingly, also under the DAL.
29 Second, this conclusion, contrary to CLAIMANT, is reaffirmed by case law from non-Model Law
jurisdictions. CLAIMANT bases its submission on the U.S. LaPine case [ClaM §4]. In this decision,
the Ninth Circuit Court of Appeals held that a court may set aside an award not only on the
grounds listed in the Federal Arbitration Act (hereinafter FAA), i.e. the lex arbitri, but also on addi-
tional grounds if the parties provided so in their arbitration agreement [LaPine case]. However, the
very same court, in a case related to the same dispute, came back on its own decision and held
that “[p]rivate parties have no power to alter or expand those grounds, and any contractual provi-
sion purporting to do so is, accordingly, legally unenforceable” [Kyocera case]. More importantly,
the U.S. Supreme Court subsequently ruled that the FAA as lex arbitri states an exhaustive list of
grounds for challenging an award, thereby banning the parties from contractually expanding the
grounds for setting aside [Hall Street case]. Furthermore, in an amicus brief submitted to the U.S.
Supreme Court as recently as 16 January 2014, leading scholars and practitioners emphasised the
exhaustive nature of the list of grounds for setting aside [Amicus brief, p. 6]. Not only U.S. courts,
but also courts from other major arbitration fora reject the validity of an agreement between the
parties expanding the exhaustive list of statutory grounds for setting aside, namely France [Buzzi-
chelli case; Binate Maghreb case; Chefaro case; Franc, p. 218; Knull/Rubins, p. 547], Switzerland [A. v. B
case; Antishock case; Fomento case; Product development case; Westinghouse case; X v. Z case; Arroyo, Art. 190
N 14; Furrer/Girsberger/Schramm, Art. 190 N3], China [Gu, p. 492], and the UK [Guangzhou case].
Accordingly, case law from non-Model Law jurisdictions confirms that the parties cannot expand
the grounds for setting aside as stated in the lex arbitri.
30 In conclusion, the agreement that a Danubian court may set aside an arbitral award if it is “obvi-
ously wrong in fact or in law” [Art. 23(4) FSA, ClaEx 2], i.e. on the expanded grounds of mani-
fest errors of fact and law, is invalid under the DAL. This is reaffirmed by substantial case law
from non-Model Law jurisdictions.
(c) In order to safeguard the efficiency of arbitration, the expansion of the grounds for
setting aside is to be rejected
31 The invalidity of an expansion of the grounds for setting aside is underlined by cost and time
efficiency considerations: A court review of arbitral awards on the grounds of errors of fact and
law would destroy “one of the great advantages of arbitration, which is to provide a speedy and
efficient process for completing the adjudication of disputes in a single instance” [Moses, Party
Agreements, p. 317; cf. Saxis Steamship case; Moses, p. 434; Smit, p. 152; Wasco, p. 615; Wolff, p. 639].
This is confirmed by substantive U.S. case law, submitting that a review of arbitral awards on fact
UNIVERSITY OF FRIBOURG MEMORANDUM FOR RESPONDENT
7
and law would compromise their finality and “transform a binding process into a purely advisory
one, and ultimately impair the value of arbitration” [Postal Service case; Remmey case; Richmond case;
Wachovia case; Westvaco case]. As it is submitted, “[p]arties agreeing on post-award state court re-
view on the merits aim to utilize the traditional advantages of arbitration deriving from the finali-
ty of the award while avoiding the risks associated with any final decision. The parties cannot at
the same time make use of arbitration and mistrust it” [Wolff, p. 640].
32 In conclusion, the invalidity of the expansion of the grounds for setting aside does not only
follow from the case law and doctrine relating to the Model Law as well as other leges arbitri, but is
reaffirmed by the goal to maintain the time and cost efficiency of arbitration.
(ii) In any case, CLAIMANT cannot rely on the German BGH case to hold Art. 23(4) FSA
valid as an arbitration clause with conditional finality of the award
33 Alternatively to a modification of the procedure for setting aside an arbitral award, CLAIMANT
could have submitted that Art. 23(4) FSA subjects an award to a conditional finality: During three
months following the notification of the award, each Party could introduce litigation of the dis-
pute. The award would only become final and binding if three months had passed without either
of the Parties using its right to “refer the case to the applicable state courts” [Art. 23(4) FSA,
ClaEx 2]. If one of the Parties introduced litigation, the award would be disregarded altogether
without having to be set aside, and the state court would render a new decision on the dispute.
34 A singular decision rendered by the German BGH hints at the validity of arbitration clauses
subjecting the finality of award to the non-introduction of litigation during a limited period of
time [Wiesbaden case]. In this case, the arbitration clause provided that “[t]he parties could accept
the decision as final and binding. A party unsatisfied with the outcome of these proceedings was
entitled to bring a suit before the state courts within one month after the award has been ren-
dered. In case of failure to observe this time limit, the award was deemed to be final and binding
between the parties” [Wolff, p. 628]. Thereby, the finality of the award as such is agreed from the
outset in the arbitration agreement, however, each party can opt out at its discretion and the
clause provides “for a de novo review on the merits and thus establishes a second ‘first instance’
before the state courts” [Wolff, p. 627].
35 The court upheld the validity of the arbitration clause and the award [Wiesbaden case] – a decision
which was subsequently criticised as “legally erroneous” [Wolff, p. 628], given that parties cannot
use conditions to modify mandatory aspects of arbitration such as the finality of the award while
still retaining the framework of arbitration [Wolff, p. 632; Smit, p. 150]. The decision is equally
questionable in light of the trend within international commercial arbitration to “draw a clear
UNIVERSITY OF FRIBOURG MEMORANDUM FOR RESPONDENT
8
distinction between conciliation and arbitration” [Fouchard, N20], given that it creates a dispute
resolution mechanism in between arbitration and conciliation [Wolff, p. 634]: An arbitration
agreement with conditional finality of the award is closer to conciliation since the parties in fact
agree (or disagree) with the proposed solution after the award is rendered [Idem].
36 Even if assumed to be of relevance as to the interpretation of the DAL, the Wiesbaden decision
cannot create validity of the appeal and review mechanism of Art. 23(4) FSA, as it cannot be ap-
plied to the facts of the present case. It will be shown that the Parties intended for the award to
be unconditionally final and binding, unless set aside by the competent state court.
37 The clause in Wiesbaden provided that “[t]he arbitral award can be recognised by both Parties as
ultimate, final and binding upon both Parties [unofficial translation, emphasis added],” whereas
Art. 23(4) FSA states that “[t]he award shall be final and binding” [ClaEx 2, emphasis added].
Accordingly, the Parties provided for the award to become immediately binding, rather than stat-
ing that it merely could do so after a certain period of time. This is confirmed by the fact that the
clause in Wiesbaden explicitly stated that “as of the expiration of this time limit, the award is con-
sidered final and binding upon the Parties” [unofficial translation], whereas Art. 23(4) FSA does
not contain such a provision.
38 Furthermore, an interpretation of Art. 23(4) FSA as establishing a conditional finality of the
award is contrary to the Parties’ intent. Multi-tier dispute resolution clauses are intended to pre-
cede the binding arbitration step with a non-binding mechanism of alternative dispute resolution,
in order to promote a settlement between the parties [Born, Agreements, p. 100; cf. Berger, Escalation
Clauses, p. 1]. Given that the Parties agreed on mediation in Art. 23(2) FSA [ClaEx 2] – mediation
and conciliation being used as synonym terms pursuant to Art. 1(3) UNCITRAL Model Law on
International Commercial Conciliation – they had already included a non-binding conciliation
step in their multi-tier dispute resolution clause. It would have been contrary to the Parties’ inter-
est in an efficient resolution of their disputes to add an additional non-binding step following
negation [Art. 23(1) FSA] and conciliation [Art. 23(2) FSA].
39 Consequently, the Parties’ intent can only be construed as providing for the award to be final and
binding from the outset. In any case, it is highly unlikely that a Danubian court would follow the
German BGH in its controversial holding. Given that it is any arbitral tribunal’s aim to render an
enforceable award [Boog/Moss; Lew, p. 145], this Tribunal is respectfully requested to abstain from
validating Art. 23(4) FSA as a clause establishing a conditional finality of the award.
UNIVERSITY OF FRIBOURG MEMORANDUM FOR RESPONDENT
9
2. The validity of the entire arbitration agreement depends on the validity of Art. 23(4)
FSA
40 CLAIMANT alleges that “[the a]rbitration clause remains in force even if the [appeal and] review
mechanism is invalid” [ClaM §9]. Whilst RESPONDENT does not contest that, in general, invalid
provisions may be severed from an arbitration agreement if this corresponds to the parties’ intent
[ClaM §10], this condition is not fulfilled in the present case: RESPONDENT submits that it would
not have agreed to arbitration at all without the appeal and review mechanism of Art. 23(4) FSA,
thereby asserting a so-called conditio sine qua non.
41 Consistent case law holds that if the parties expand judicial review in their arbitration agreement,
said entire agreement is invalid if the expansion of review constituted an essential element of the
clause and the parties’ agreement to it, i.e. a conditio sine qua non [Diseno case; Binate Maghreb case;
Schwartz, p. 110; Fouchard, N1596 et seq.]. The same applies under the Model Law, under which
an arbitration agreement providing for an expansion of judicial review is entirely void if one of
the parties agreed to arbitrate only under the condition of expanded review and such intent was
expressed very clearly, i.e. formed the “bed rock” of the agreement to arbitrate [Raghavan, p. 123].
42 Whether or not and under which conditions the parties concluded an arbitration agreement is a
question of substantive validity, which is to be determined according to the choice of law for the
underlying contract [supra §11]. It is common ground between the Parties that, pursuant to Sec-
tion 22 of the 2000 standard terms, the FSA is governed by the Mediterraneo Sale of Goods Act
[ProcOrd 2, N20]. Given that the Mediterranean contract law corresponds to the UNIDROIT
Principles of International Commercial Contracts (hereinafter PICC) [ProcOrd 2, N4], the PICC
determines the substantive validity of the arbitration agreement concluded under the FSA [supra
§11]. Pursuant to Art. 4.3(a) PICC, contracts, statements and other conduct made by a party are
to be interpreted with regard to the preliminary negotiations between the parties.
43 In the present case, CLAIMANT, in a letter during the contract negotiations, referred to Art. 23
FSA as “taking account of [RESPONDENT’s] concern that as a public hospital it is accountable to
Equatoriana’s tax payers” and recognised that RESPONDENT did not want to agree to “a dispute
resolution clause according to which it could be bound by a decision of an arbitral tribunal that
may be considered to be obviously wrong without having the opportunity to appeal against it”
[ClaEx 3]. Thereby, CLAIMANT expressly acknowledged RESPONDENT’s conditio sine qua non, ac-
cording to which it could only agree to arbitration with the possibility of requesting arbitral
awards to be set aside on grounds of manifest errors of fact and law.
UNIVERSITY OF FRIBOURG MEMORANDUM FOR RESPONDENT
10
44 This is not altered by the fact that RESPONDENT, “on a purely legal analysis, [was] not required by
law to do so” [ProcOrd 2, N9]. RESPONDENT’s accountability to the Equatorianean taxpayers
determined its voluntary intent to abide by the government circular that prohibits government
entities from foregoing the right of appeal against manifestly wrong awards [ResEx 1].
45 In conclusion, RESPONDENT would not have agreed to arbitration without the possibility of
challenging an award containing manifest errors of fact and law, which formed the “bed rock” of
its agreement to arbitrate. The statutory grounds for setting aside of Art. 34(2) DAL do not pro-
vide for such a challenge [supra §20–25]. In light of the aforementioned, the invalid expansion of
grounds for setting aside [supra §30] renders the entire arbitration agreement void.
B. IN ANY CASE, THE UNILATERAL LITIGATION RIGHT FOR PAYMENT CLAIMS IN FAVOUR
OF CLAIMANT PRECLUDES THE VALIDITY OF THE ARBITRATION AGREEMENT
46 According to Art. 23(6) FSA, CLAIMANT “has the right to bring any and all claims relating to
payments in the courts of Mediterraneo” [ClaEx 2]. RESPONDENT submits that this unilateral
litigation right vitiates the arbitration clause of Art. 23(3) FSA.
47 If a unilateral litigation right is restricted to a limited category of claims, such as payment claims,
it has to be considered a full unilateral litigation right. This is namely the case if the unilateral
optional litigation right covers all possible claims of its beneficiary under the contract, e.g. if the
beneficiary is only entitled to payment under the contract [Miner case].
48 In the case at hand, under the FSA RESPONDENT solely owes CLAIMANT the payment of the
purchase price according to Art. 3 FSA [ClaEx 2]. Therefore, the unilateral litigation right for
payment claims amounts to a full unilateral litigation right in favour of CLAIMANT.
49 CLAIMANT submits that its unilateral litigation right for payment claims is valid, since its invalida-
tion “would manifestly interfere with the principle of party autonomy” [ClaM §16].
50 However, the principle of party autonomy is not absolute, but limited by other fundamental
procedural principles of arbitration such as party equality [Kawharu, p. 498–499; cf.
Lew/Mistelis/Kröll, N25.33]. Accordingly, dispute resolution clauses giving only one party the
right to chose between either arbitration or litigation have been held invalid and therefore unen-
forceable due to their violation of party equality both by substantive case law [Arnold case; Cordova
case; Holm case; Hull case; Roberts case; Sony Ericsson case; Taylor case] and doctrine [Fedurko/Sulamägi,
p. 175; Izzo/Viscomi, p. 361; Kanae, p. 379; Kocon, p. 455; Tiborcz, p. 137; Vaidyanathan/Ichhaporia,
p. 321–322; Wellmann, p. 299].
51 Namely, in a recent leading case, the Russian Supreme Court declared invalid a dispute resolution
clause providing for arbitration and giving one of the parties the right to choose between arbitra-
UNIVERSITY OF FRIBOURG MEMORANDUM FOR RESPONDENT
11
tion and litigation [Sony Ericsson case; c.f. Archiyan; Nesbitt/Pugh/Rymko/Scard]. The court argued
that “dispute resolution clause[s] cannot give the right to refer to a competent state court to only
one party (the seller) under the Contract and deprive the second party (the purchaser) of equal
rights” and that, “if such a clause is entered into, [it] will be invalid because it violates the
balancing of the rights of the parties” [Sony Ericsson case; cf. Rothschild case; MCB case].
52 CLAIMANT’s additional argument that the “unilateral jurisdictional clause is a result of arm’s
length negotiations between the Parties“ [ClaM §17] is irrelevant, given that it merely implies that
RESPONDENT was aware of the unilateral clause when concluding the FSA. As results from the
above-referenced case law, the invalidity of such clauses stems from the resulting inequality be-
tween the parties, irrespective the Parties’ awareness thereof.
53 Art. 23(6) FSA creates a unilateral litigation right for payment claims in favour of CLAIMANT, in
addition to the arbitration clause in Art. 23(3) FSA [ClaEx 2]. Due to a violation of party equality,
the unilateral litigation right precludes the validity of the arbitration agreement.
C. IN ANY CASE, THIS TRIBUNAL HAS NO JURISDICTION FOR CLAIMS ARISING OUT OF THE
FSA BASED ON THE ARBITRATION CLAUSE IN THE 2000 STANDARD TERMS
54 Given that the arbitration clause contained in Art. 23(3) FSA is void, CLAIMANT could have
submitted that Section 21 of the 2000 standard terms would revive and that this Tribunal could
have jurisdiction based on this clause.
55 Individually negotiated clauses prevail over contradicting provisions in standard terms [Schmidt-
Kessel, Art. 8 N30, N64; Witz, N14; Vogenauer, Art. 4.2 N6]. Accordingly, if the individually nego-
tiated clause is void, it could be argued that the contradicting standard terms clause revives, as
there is no individually negotiated clause prevailing over it any longer.
56 Whether the parties concluded an arbitration agreement is a question of substantive validity and,
in case of the FSA, must be determined according to the PICC [supra §42]. The parties’ intent
must namely be determined by taking into account the pre-contractual negotiations [Art. 4.3(a)
PICC].
57 During the negotiations of the FSA, RESPONDENT stated clearly that Section 21 of the 2000
standard terms was “not acceptable to it” [Ans N10]. Accordingly, the Parties included the appeal
and review mechanism of Art. 23(4) in the FSA, without which RESPONDENT would not have
agreed to arbitrate, as acknowledged by CLAIMANT [ClaEx 3; supra §45]. Even in the event that
Art. 23(4) FSA would be invalid, RESPONDENT’s initial intent logically excludes the revival of
Section 21 of the 2000 standard terms as this cause provides for arbitration without a possibility
for challenging the award.
UNIVERSITY OF FRIBOURG MEMORANDUM FOR RESPONDENT
12
58 In addition, for an arbitral tribunal to have jurisdiction over a dispute, it must be competent
according to the arbitration agreement [Fouchard, N46]. If the parties determined a seat of the
arbitral proceeding, the parties are bound to arbitrate according to the terms of their agreement
[Duerlein case; Niazi case; Born, pp. 1004–1005], in particular at the agreed upon seat of arbitration
[Born, pp. 1008–1009]. This implies that an arbitral tribunal seated in another state than the one
chosen by the parties cannot have jurisdiction over the disputes.
59 As Section 21 of CLAIMANT’s 2000 version of the standard terms provides for arbitration in
Mediterraneo [ClaEx 2], the current Tribunal seated in Danubia [TermRef N4] would, in any
case, not have jurisdiction over the dispute.
CONCLUSION: The invalidity of the review and appeal mechanism of Art. 23(4) FSA as well as
the Claimant’s unilateral litigation right of Art. 23(6) FSA render the arbitration agreement of Art.
23(3) FSA void. Furthermore, also the arbitration clause in the 2000 standard terms does not
create jurisdiction of this Tribunal for claims arising out of the FSA.
II. THIS TRIBUNAL HAS NO JURISDICTION TO HEAR CLAIMS ARISING OUT OF
THE SLA
60 According to the preambles of both the FSA and the SLA as well as Art. 45 FSA, certain provi-
sions of the FSA may also apply to the SLA [ClaEx 2; ClaEx 6]. RESPONDENT does not dispute
that the Parties’ agreed on an incorporation of provisions of the FSA into the SLA, unless the
SLA contains a “specific provision [...] contrary” to a corresponding clause of the FSA [Art. 45
FSA; ClaM §§19–20]. With regards to claims arising out of the SLA, CLAIMANT alleges that the
Parties validly agreed on an alternative right to choose between litigation and arbitration, i.e. a so-
called hybrid clause [ClaM §21].
61 CLAIMANT errs since Art. 23 FSA (the arbitration clause) and Art. 23 SLA (the litigation agree-
ment) cannot be combined and accordingly, Art. 23 SLA is a specific provision contrary to
Art. 23 FSA. Therefore, Art. 23 FSA does not apply to claims arising out of the SLA (A). Fur-
thermore, given the invalidity of the arbitration clause of Art. 23 FSA [supra I.1.A. & B.], CLAIM-
ANT cannot rely on the arbitration clause of its 2011 standard terms, should they have been in-
cluded in the SLA, to create jurisdiction of this Tribunal for claims arising out of the SLA (B).
A. ART. 23 FSA DOES NOT APPLY TO CLAIMS ARISING OUT OF THE SLA
62 CLAIMANT submits that the arbitration clause contained in Art. 23 FSA applies to the SLA
despite the litigation agreement of Art. 23 SLA [ClaM §22]. It argues on the basis of the ICC Case
No. 8203 that Art. 23 SLA is not a specific provision contrary to Art. 23 FSA [ClaM §21]. How-
UNIVERSITY OF FRIBOURG MEMORANDUM FOR RESPONDENT
13
ever, CLAIMANT overlooks that the ICC Case No 8203 does not address the issue of combined
arbitration and litigation clauses, i.e. hybrid clauses. In fact, the ICC Case No 8203 merely ad-
dresses the extension of an arbitration agreement to contracts that do not contain any dispute
resolution clause, and accordingly, it is not pertinent to the present dispute.
63 In the following, RESPONDENT will establish that Art. 23 SLA and Art. 23 FSA are mutually
exclusive clauses (1). RESPONDENT will further establish that, in any case, it was the Parties’ in-
tent to submit disputes arising out of the SLA to litigation instead of arbitration (2).
1. Art. 23 FSA and Art. 23 SLA are mutually exclusive clauses
64 It will be established that Art. 23 SLA is a “specific provision to the contrary” of Art. 23 FSA,
thereby excluding its application on claims arising out of the FSA, for two reasons:
First, the combination of arbitration and litigation clauses is generally invalid (i). Second, this
general invalidity cannot be cured by an interpretation of the litigation agreement as a mere de-
termination of the instance responsible for potentially required court intervention in an ongoing
arbitration, i.e. supervisory jurisdiction (ii).
(i) The combination of arbitration and litigation clauses is generally invalid
65 If the parties conclude a valid arbitration agreement, its positive effect is to confer exclusive
jurisdiction to an arbitral tribunal for all disputes arising out of a determined legal relationship
[Born, p. 1005; Fouchard, N627; Frignani, p. 564]. This entails as a negative effect to exclude any
state court’s jurisdiction over the disputes that might arise out of said legal relationship that it
governs [Bernardini, p. 46; Born, p. 1020; Frignani, p. 564; Fouchard, N661; Gaillard/Banifatemi,
p. 257; Gottwald, p. 33; Poudret/Besson, N367; Weigand, N44]. Accordingly, dispute resolution
clauses granting both parties a choice between arbitration and litigation are necessarily pathologi-
cal [Fouchard, N488, FN133; Frignani, p. 564].
66 The principle that hybrid clauses are invalid was only abandoned by state courts in singular cases
relating to rare circumstances in which the dispute resolution clause clearly provided for an alter-
native choice between litigation and arbitration [Chu Kong case; Dai Yun Shan case]. As resorts from
the analysis of these cases reflected in the Norse Air Charter case, only a “clear and unequivocal”
language used by the parties can cure the inherent invalidity of a hybrid clause. Namely, the dis-
pute resolution clause in Chu Kong provided that “all disputes arising under or in connection with
this bill of lading shall, in accordance with Chinese law, be resolved in the courts of the People’s Re-
public of China or be arbitrated in the People’s Republic of China [emphasis added]”. In addition,
both the litigation and the arbitration agreement were contained in the same clause within the
same contract [Chu Kong case; Dai Yun Shan case].
UNIVERSITY OF FRIBOURG MEMORANDUM FOR RESPONDENT
14
67 In the present case, Art. 23(3) FSA states that all disputes arising out of the FSA “shall become
subject to arbitration, to be finally settled under the CEPANI Rules,” whilst Art. 23 SLA confers
jurisdiction to the state courts of Mediterraneo and Equatoriana for “any and all claims”. The
clauses do not refer to one another, let alone clarify the relationship between the litigation and
the arbitration agreement. Moreover, they are neither contained in the same clause nor in the
same contract. In fact, 3.5 years elapsed between the conclusion of the FSA and the SLA [ClaEx
2; ClaEx 6]. Therefore, the circumstances of the above-cited case law differ diametrically from
the case at hand and accordingly, cannot create an exceptional validity of a hybrid clause.
68 In conclusion, Art. 23 FSA and Art. 23 SLA cannot coexist, because hybrid clauses are generally
invalid and given that the specific circumstances exceptionally allowing for hybrid clauses are not
fulfilled in the present case.
(ii) The general invalidity of hybrid clauses cannot, in the present case, be cured by
interpreting the litigation agreement as a conferral of supervisory jurisdiction
69 State courts have attempted to salvage invalid hybrid clauses by reducing the litigation clause to a
mere conferral of supervisory jurisdiction to the state courts at the seat of the arbitration [Axa Re
case; Interserve case; McConnell Dowell case; Norse Air Charter case; Paul Smith case; Shell case]: In these
cases, the courts upheld the validity of the agreement to arbitrate, since the selected litigation
forum was identical with the selected seat of arbitration. The respective state courts agreed that
the reduction of the litigation clause to an attribution of supervisory jurisdiction was only possi-
ble due to the identity between the seat of the arbitration and litigation forum [Idem].
70 In the present case, if the arbitration clause of Art. 23(3) FSA were valid, it would provide for
arbitration in Danubia. The litigation agreement of Art. 23 SLA confers jurisdiction to the Medi-
terranean and Equatorianean state courts. Given that the seat of arbitration is not identical with
the chosen litigation fora, the litigation agreement of Art. 23 SLA cannot be interpreted as a con-
ferral of supervisory jurisdiction over the arbitral proceedings to the Mediterranean and Equato-
rianean state courts.
71 Given that hybrid clauses are generally not possible [supra §65] and given that the arbitration
clause of Art. 23(3) FSA and the litigation agreement of Art. 23 SLA cannot be combined by a
reduction of the litigation agreement to a conferral of supervisory jurisdiction to state courts,
Art. 23 SLA is a “specific provision to the contrary” of Art. 23 FSA. Accordingly, Art. 23 FSA
cannot apply to claims arising out of the SLA.
UNIVERSITY OF FRIBOURG MEMORANDUM FOR RESPONDENT
15
2. Alternatively, an incorporation of the arbitration agreement of Art. 23 FSA into the
SLA is contrary to the Parties’ intent
72 If the Tribunal were to hold that Art. 23 FSA and Art. 23 SLA are not mutually exclusive,
RESPONDENT will establish that a combination of the two clauses in a hybrid clause is contrary to
the Parties’ intent of submitting claims arising out of the SLA exclusively to litigation.
73 A choice between arbitration and litigation for claims arising out of a contract – if assumed to be
valid – may only be admitted if the parties expressed an intent to that effect [Fouchard, N484;
Frignani, p. 565]. The determination of the parties’ intent is a question of substantive validity and
thereby determined by the parties’ choice of law for the underlying contract [supra §11]. Follow-
ing RESPONDENT’s submission [Ans N15–19] and as will be established further below [infra IV–
VI], the SLA is governed by the PICC, which govern the substantive validity of an arbitration
clause. Pursuant to Art. 4.2(2) PICC, statements and other conduct made by a party are to be
interpreted according to the understanding of a reasonable person in the shoes of the other party
[Vogenauer, Art. 4.2 N6]. Additionally, it is internationally acknowledged that unclear contract
terms shall be interpreted against the party who drafted them, i.e. contra proferentem [Hyundai case;
Baldus, p. 118; Fouchard, N479; Lewison, N7.08; Schmidt-Kessel, Art. 8 N49; Vogenauer, Art. 4.6 N1 et
seq.]. This principle applies to individually negotiated contract provisions, if only one of the par-
ties drafted them [Fouchard, N479].
74 Art. 23 SLA as well as Art. 23 FSA contain a complete dispute resolution clause, meaning that
they cover the entirety of disputes arising out of the respective contracts. Likewise, both clauses
are identically entitled and numbered with “Art. 23 Dispute Resolution” [ClaEx 2; ClaEx 6]. Giv-
en that Art. 23 FSA is a complete clause in itself, it would not have been necessary to introduce a
new, complete dispute resolution clause into the SLA. Accordingly, RESPONDENT and any rea-
sonable person in its shoes could only have understood Art. 23 SLA as “a specific provision […]
contrary” to Art. 23 FSA, thereby excluding the latter from incorporation into the SLA.
75 This conclusion is not altered by the fact that CLAIMANT asserts for the first time in its Request
for Arbitration that it only introduced the litigation clause of Art. 23 SLA to honour RESPON-
DENT’s contribution to the development of active scanning technology [Req N21]: Only the time
of the conclusion of the SLA rather than subsequent assertions is decisive the Parties’ intent.
76 Moreover, since CLAIMANT’s legal team drafted the SLA [ProcOrd 2, N10], Art. 23 SLA must be
interpreted against CLAIMANT, i.e. contra proferentem, and thus excludes arbitration under the SLA.
77 Accordingly, an incorporation of the arbitration clause of Art. 23 FSA into the SLA is contrary to
the Parties’ intent to submit disputes under the SLA to litigation instead of arbitration.
UNIVERSITY OF FRIBOURG MEMORANDUM FOR RESPONDENT
16
B. IN ANY CASE, THIS TRIBUNAL DOES NOT HAVE JURISDICTION BASED ON AN
ARBITRATION CLAUSE CONTAINED IN THE 2011 STANDARD TERMS
78 CLAIMANT seems to argue that this Tribunal would, in any case, have jurisdiction, by submitting
that “[s]hould the Tribunal find that it does not have jurisdiction under the arbitration clause
contained in Art. 23 of the [FSA], the agreement to arbitrate is still validly incorporated in the
SLA by reference to the 2011 version of the Standard Terms” [ClaM §18]. RESPONDENT will
establish further below that the 2011 standard terms were not included into the SLA [infra V.A.],
thereby also excluding the arbitration clause contained therein. Even if the Tribunal were to fol-
low CLAIMANT’s submission that Section 21 of its 2011 standard terms were incorporated into
the SLA, the Tribunal nonetheless lacks jurisdiction for claims arising out of the SLA.
79 An arbitral tribunal at another seat than the one chosen by the parties cannot have jurisdiction
over the dispute, given that the parties must arbitrate according to the terms of their agreement,
namely at the chosen seat of the arbitration [supra §58].
80 In the present case, if Art. 23 FSA were not to apply to the SLA, there would be no individually
negotiated arbitration clause that would entitle the Parties to request arbitration. Accordingly,
CLAIMANT attempts to create jurisdiction for this Tribunal by arguing that Art. 23 SLA could be
combined with the arbitration clause contained in the 2011 standard terms [ClaM §24–28].
81 Given that the 2011 standard terms provide for arbitration in Mediterraneo [ClaEx 9], and given
that this Tribunal is seated in Danubia in accordance with Art. 23(3) FSA [TermRef N4], this
Tribunal would, in any case, lack jurisdiction over claims arising out of the SLA.
CONCLUSION: Art. 23 SLA is a specific provision contrary to Art. 23 FSA and therefore ex-
cludes this Tribunal’s jurisdiction for claims arising out of the SLA. Additionally, even if the 2011
standard terms were included into the SLA, the arbitration clause contained therein does not
confer jurisdiction upon this Tribunal.
III. HEARING THE CLAIMS ARISING OUT OF THE FSA AND THE SLA IN ONE
SINGLE ARBITRATION WOULD BE INADMISSIBLE
82 CLAIMANT submits that the claims should be heard in a single arbitration, given that they arise
out of allegedly related contracts [ClaM §36] and that “nothing in the [FSA] and the SLA suggests
that the parties had prejudice against a single set of proceedings” [ClaM §40].
83 As a preliminary matter, RESPONDENT emphasises that its submission on the issue of admissibil-
ity of multi-contract arbitration shall in no way be construed as an acceptance of the validity of
any arbitration agreement.
UNIVERSITY OF FRIBOURG MEMORANDUM FOR RESPONDENT
17
84 Contrary to CLAIMANT’s submission, establishing an effective consensus is a requirement for
multi-contract proceedings to be admissible (A). This requirement is not met in the present case
and accordingly, both claims cannot be heard in a single arbitration (B).
A. THE PARTIES’ CONSENT TO MULTI-CONTRACT ARBITRATION IS REQUIRED
85 Art. 10(1) CEPANI Rules states the following:
“Claims arising out of various contracts or in connection with same may be made in a
single arbitration.
This is the case when the said claims are made pursuant to various arbitration agreements:
a) if the parties have agreed to have recourse to arbitration under the CEPANI Rules and
[first requirement; emphasis added]
b) if all the parties to the arbitration have agreed to have their claims decided within a single set of
proceedings [second requirement; emphasis added].”
86 Whilst RESPONDENT disputes the validity of the arbitration clause of Art. 23(3) FSA [supra
I.1.A. & B] as well as its extension to the SLA [supra II.A.], it does not contest that, irrespective of
whether the clause and its incorporation by reference in the SLA are considered as one or two
arbitration agreements, it provides for arbitration under the CEPANI Rules. Thus, RESPONDENT
does not dispute that the first requirement of Art. 10(1)(a) CEPANI Rules is met.
87 With regards to the second requirement, the following will show that consent to multi-contract
arbitration needs to be established, irrespective of the number of arbitration agreements (1).
Also in the alternative, consent is required in the present case, given that an incorporation by
reference is considered two arbitration agreements (2).
1. Irrespective of the number of arbitration agreements, the Parties’ consent to
multi-contract arbitration is required
88 CLAIMANT could have argued that the requirements for multi-contract arbitration of Art. 10(1)(a)
and (b) only apply “when [the] claims are made pursuant to various arbitration agreements,” as
stated in Art. 10(1) CEPANI Rules. Accordingly, it could have submitted that no particular re-
quirements have to be fulfilled if various contracts are governed by one sole arbitration agree-
ment instead of various arbitration agreements. RESPONDENT will establish that consent is re-
quired even if there would be only one arbitration agreement governing the FSA and the SLA.
89 First, this understanding corresponds to the precise wording of Art. 9 ICC Rules, requiring
consent to multi-contract arbitration “irrespective of whether such claims are made under one or
more than one arbitration agreement”. Given that the Belgian ICC Committee orchestrated the
UNIVERSITY OF FRIBOURG MEMORANDUM FOR RESPONDENT
18
drafting of the new CEPANI Rules, the 2013 CEPANI Rules were based on the model of the
2012 ICC Rules [Verbist, p. 607]. Accordingly, the ICC Rules may serve as a background for in-
terpretation of the provision on multi-contract proceedings under the CEPANI Rules.
90 Second, the number of arbitration agreements governing multiple contracts cannot be decisive as
to whether consent is required or not. What is in turn important is the parties’ consent due to the
contractual nature of arbitration [Born, p. 2104; Fry/Greenberg/Mazza, N3.343; Meier, N10]. There-
fore, absent any effective consent and regardless of the number of arbitration agreements, an
arbitral tribunal cannot join proceedings without having regard to the parties’ intent.
91 Thus, irrespective of the number of arbitration agreements, an effective consent of the parties is
required under Art. 10(1) of the CEPANI Rules.
2. In any case, there are two arbitration agreements in the present case
92 If this Tribunal were to decide, contrary to the aforementioned, that – if there were only one
arbitration agreement – it has the discretion to hear the claims arising out of the FSA and the
SLA in one proceeding, RESPONDENT submits that that there are two arbitration agreements in
the present case. Thus, this Tribunal still has to establish the Parties’ consent to multi-contract
arbitration.
93 If an arbitration agreement is incorporated into a contract by reference to another contract, the
contracts are considered to contain each their own arbitration agreement [Meier, N11]. Accord-
ingly, if the arbitration clause in Art. 23(3) FSA were valid and if it were to apply to the SLA, the
FSA and the SLA would each contain an arbitration clause, thereby requiring consent of both
Parties in order for multi-contract arbitration to be admissible.
B. RESPONDENT DID NOT CONSENT TO MULTI-CONTRACT ARBITRATION
94 In the present case, there is no indication whatsoever, neither in the FSA and the SLA nor in the
negotiations between the Parties, as to consent to multi-contract arbitration. Thus, the Parties did
not conclude an explicit agreement on the admissibility of multi-contract arbitration. According-
ly, the Tribunal would need to establish the Parties’ implied consent to multi-contract arbitration
in order to hear both claims in one proceeding.
95 In the absence of an explicit agreement in the contract, the CEPANI Rules contain a so-called
“red-flag” presumption in Art. 10(3), which provides that “[a]rbitration agreements concerning
matters that are not related to one another give rise to a presumption that the parties have not
agreed to have their claims decided in a single set of proceedings” [De Meulemeester]. The notion of
“matters that are not related” signifies that the various contracts do not constitute a single eco-
nomic transaction [Idem].
UNIVERSITY OF FRIBOURG MEMORANDUM FOR RESPONDENT
19
96 In order for different contracts to be qualified as constituting a single economic transaction, they
must be interrelated [Leboulanger, p. 46; Train, N18]. Specifically, Leboulanger requires that the dif-
ferent contracts form an “indivisible transaction [...] that actually amounts to one fundamental
single relationship” [Leboulanger, p. 46; cf. Hanotiau, N355]. An example is the sale of a piece of
real estate between two parties comprised of a sales contract, a financing agreement and a mort-
gage agreement [Idem]. The obligations are interrelated since they arise out of one overall syn-
allagmatic agreement, meaning that one obligation arising out of one contract is performed in
exchange for the performance of an obligation out of another contract [Hanotiau, N355; Leboulan-
ger, p. 47]. When successive contracts simply are of the same nature and concluded between the
same parties, this does not suffice to consider them as linked [Hanotiau, N219; Train, N20].
97 Moreover, when determining whether the contracts constitute a single economic transaction, the
time difference between the contracts must be taken into account: If the contracts were conclud-
ed at the same time and relate to the same purpose, a single economic transaction between the
contracts is likely [Fry/Greenberg/Mazza, N3-249]. However, where the dates of the conclusion of
the contracts are far apart, an interrelation between the contracts in the sense of a single econom-
ic transaction cannot be easily assumed [Idem].
98 In the case at hand, the FSA was concluded on 13 January 2008 [ClaEx 2] and, according to
CLAIMANT’s letter, covered the sale of “a complete proton therapy facility” [ClaEx 3, emphasis
added] – thereby confirming that the FSA did not depend on the conclusion of an eventual fu-
ture contract. The SLA was concluded on 20 July 2011 and provided for the sale of the active
scanning technology as well as the construction of an additional treatment room [ClaEx 6]. Ac-
cordingly, a time difference of 3.5 years, i.e. 42 months, seperates the conclusion of the two con-
tracts, which were not synallagmatic, as no obligation under the FSA was performed in exchange
with the performance of an obligation under the SLA or vice-versa. Therefore, the FSA and the
SLA are non-related contracts in the sense of Art. 10(3) CEPANI Rules, thus giving rise to the
presumption that it was the Parties’ intent, when the SLA was concluded, not to consent to mul-
ti-contract arbitration. In line with this presumption, RESPONDENT disagreed to multi-contract
arbitration from the very outset of the dispute [Ans N12 et seq.].
99 Considering that, first, there is no explicit agreement between the Parties to submit disputes
arising out of the FSA and the SLA to a multi-contract arbitration, and that, second, the Parties
are, pursuant to Art. 10(3) CEPANI Rules, presumed not to have wanted their claims arising out
of both contracts heard in a single proceeding. Claimant failing to rebut this legal presumption,
there is no consent to multi-contract arbitration.
UNIVERSITY OF FRIBOURG MEMORANDUM FOR RESPONDENT
20
CONCLUSION: Given that the Parties neither explicitly nor implicitly consented to hearing the
claims arising out of the FSA and the SLA in one proceeding, the second requirement of
Art. 10(1)(b) CEPANI Rules is not fulfilled, and this Tribunal is requested to deny the admissibil-
ity of multi-contract arbitration in the present case.
ARGUMENT ON THE SUBSTANTIVE ISSUES
100 In the present case, it is common ground between the Parties that the FSA is governed by the
Mediterraneo Sale of Goods Act [ProcOrd 2, N20]. In turn, the law applicable to the SLA is dis-
puted. Whilst CLAIMANT alleges that the CISG applies to the SLA [ClaM §44], RESPONDENT will
establish that the CISG does not apply to the SLA on several grounds. Pursuant to Procedural
Order No. 2, RESPONDENT will not address the claims on the merits at this point of the proceed-
ings [ProcOrd 2, N1].
101 First, the SLA does not qualify as a contract on the sale of goods in the sense of the CISG (IV).
Furthermore, the choice of law clause contained in the 2011 standard terms was not included in
the SLA (V) and the Parties chose Mediterranean domestic sales law to apply to the SLA (VI).
IV. THE SLA DOES NOT QUALIFY AS A CONTRACT ON THE SALE OF GOODS
102 The SLA provided for CLAIMANT to deliver an additional treatment room with active scanning
technology [ClaEx 6]. This included the delivery of the magnets for the use of the active scanning
technology, construction work and construction materials for the additional treatment room and
the training of RESPONDENT’s staff [ClaEx 6; ResEx 3]. However, the SLA was mainly con-
cerned with the development of the necessary software by CLAIMANT, which also had to provide
further services, namely installation support, testing and fine-tuning [ResEx 3; ProcOrd 2 N29].
103 A sales contract is defined as the delivery of goods against payment of the purchase price
[Mistelis, Art. 1 N25; Westermann, Art. 1 N6].
104 CLAIMANT erroneously contends that the SLA qualifies as a contract on the sale of goods in the
sense of Art. 1(1) CISG and that software qualifies as a good [ClaM §45]. Furthermore, it alleges
that the SLA was only concerned with the sale of tangible hardware and, in any case, was not
predominantly concerned with the provision of services by CLAIMANT [Idem].
105 The following will establish that the software is not a good, which was, in any case, not sold (A).
Further, given that the central element of the SLA, namely the development of the software,
qualifies as a service, the SLA is predominantly concerned with the provision of services (B).
UNIVERSITY OF FRIBOURG MEMORANDUM FOR RESPONDENT
21
A. THE DEVELOPED SOFTWARE IS NOT A GOOD AND WAS, IN ANY EVENT, NOT SOLD
106 RESPONDENT will establish that, contrary to CLAIMANT’s submission [ClaM §52], the software
for the use of the active scanning technology is not a good in the sense of the CISG (1). Should
this Tribunal rule otherwise, RESPONDENT respectfully requests that it finds that the software
was not subject to a sale (2), thus precluding the application of the CISG to the development of
the software.
1. The software downloaded by CLAIMANT is not a good under the CISG
107 CLAIMANT alleges that the software it delivered, which was partly installed on the hardware but
mostly downloaded by its engineers, qualifies as a good in the sense of the CISG [ClaM §§53–63].
108 It is established that principally only movable, tangible objects qualify as “goods” in the sense of
Art. 1 CISG, thereby excluding intangibles [Market study case; Mistelis, Art. 1 N37 et seq.; Schwen-
zer/Hachem, Art. 1 N16]. Computer software in itself is intangible, because it consists of a certain
arrangement of information that manages and controls hardware [St. Albans case]. In this respect,
software can be compared to the information contained in an operating manual [Idem]. Although
the information itself is not a good, the fact that it is contained in the book, i.e. its tangible sup-
port, allows for the application of sales law [Idem]. Thus, computer software can only be regard-
ed as a good if it has a tangible support [DPS case; Graphiplus case; Achilles, Art. 1 N4; Brunner, Art.
2 N4; Cox, NII.A; Ferrari, Applicabilité, p. 95 et seq.; Ferrari/Schlechtriem, Art. 1 N38; Sono, p. 520 et
seq.; Westermann, Art. 1 N6].
109 When software is downloaded, no tangible support is passed, but only the information is trans-
ferred from one computer to the other [Mowbray, p. 129 et seq.; Sono, p. 521]. Given that infor-
mation is moved from the provider to the receiver without supporting hardware, software lacks a
tangible support at the time of the transfer via download. This is contrary to the approach fol-
lowed by the CISG, which “clearly contemplates the transfer of tangible goods from one party to
the other” [Mowbray, p. 129 et seq.]. Therefore, software transferred online cannot be regarded as
a good providing for the application of the CISG [Sono, p. 521].
110 In the present case, CLAIMANT did not provide the main part of the software on a tangible
support, but only a small part of the software was pre-installed on the hardware delivered to RE-
SPONDENT [ProcOrd 2, N23]. Thus, the major part of the software had to be installed and down-
loaded by CLAIMANT’s engineers, partly from CLAIMANT’s server and partly from the engineers’
computers before the active scanning technology became operable [Idem].
111 As a consequence, the downloaded software is not a good in the sense of the CISG, which does
therefore not apply to the software delivered by CLAIMANT.
UNIVERSITY OF FRIBOURG MEMORANDUM FOR RESPONDENT
22
2. In any case, the software was not sold to RESPONDENT
112 Should the Tribunal find that the software developed by CLAIMANT qualifies as a good in the
sense of the CISG, the application of the CISG is nonetheless excluded given that the transaction
regarding the software is not a sale for several reasons.
113 First, the offset of the price for the software with RESPONDENT’s contribution precludes the
application of the CISG (i). Second, RESPONDENT provided a substantial part of the materials
necessary for the development of the software (ii) and third, given that the software was custom-
ised, the CISG does not apply (iii). Fourth and last, the particular license granted to RESPOND-
ENT excludes the application of the Convention (iv).
(i) The offset of the price for the software precludes the application of the CISG
114 RESPONDENT submits that the Parties’ agreement regarding the payment of the price for the
development of the software precludes the application of the CISG.
115 A sales contract in the sense of the CISG implies the monetary payment of the purchase price, as re-
sults from Art. 53 CISG [Barter case; Ferrari/Schlechtriem, Art. 1 N30; Mistelis, Art. 1 N25; Wester-
mann, Art. 1 N6]. Thus, the delivery of goods against a non-monetary counter-performance is not
a sales agreement encompassed by the CISG. Therefore, the Convention does not apply to a
contract in which the seller accepts that the value of the goods delivered is to be offset, wholly or
partially, in return for a counter-delivery by the buyer, i.e. a compensation agreement [Ferra-
ri/Schlechtriem, Art. 1 N30; Magnus/Staudinger, Art. 1 N30; Maskow, Art. 53 N2.5; Saenger, Art. 1
N4]. Similarly, the CISG does also not apply to barter agreements and gifts [Magnus/Staudinger,
Art. 1 N29–32; Saenger, Art. 1 N4; Schlechtriem/Butler, N24; Westermann, Art. 1 N6].
116 It is common ground between the Parties that the market value of the goods and services provid-
ed by CLAIMANT under the SLA amounted to USD 9.5 million [ResEx 3]. The Parties agreed
that, since RESPONDENT’s provision of data was crucial for the development of the software,
CLAIMANT would charge RESPONDENT only for the materials [ResEx 3; ProcOrd 2, N27]. The
latter’s contribution to the development of the software was therefore attributed a value of USD
6 million and offset against a part of the original purchase price of USD 9.5 million, thus result-
ing in a final purchase price of USD 3.5 million to be paid by RESPONDENT [Idem]. The main
obligation under the SLA, i.e. the development and provision of the active scanning software, has
not been countered with monetary payment.
117 Therefore, the Parties’ agreement regarding RESPONDENT’s obligation in return for the delivery
of the software entails that the SLA is a compensation agreement. Since the development of the
software was paid by the offset of RESPONDENT’s contribution of data, the CISG does not apply.
UNIVERSITY OF FRIBOURG MEMORANDUM FOR RESPONDENT
23
(ii) RESPONDENT provided a substantial part of the data for the development of the
software by CLAIMANT
118 RESPONDENT submits that, since it provided CLAIMANT with data that was crucial to the devel-
opment of the software, the CISG does not apply in the case at hand.
119 Pursuant to Art. 3(1) CISG, “[c]ontracts for the supply of goods to be manufactured or produced
are to be considered sales unless the party who orders the goods undertakes to supply a substan-
tial part of the materials necessary for such manufacture or production.” Whether the buyer’s
contribution qualifies as substantial has to be examined on a case-by-case analysis: the economic
value as well as the importance of the buyer’s contribution for the end product must be taken
into account [Production equipment case; Ferrari/Schlechtriem, Art. 3 N8; Huber/Mullis, p. 44 et seq.;
Schwenzer/Hachem, Art. 3 N7].
120 When comparing the economic value of the buyer’s contribution to the price of the end product,
authors acknowledge that, if the contribution amounts to 40% and even 15% of the economic
value of the product, it has to be regarded as substantial [Honnold, N59; Lorenz, Art. 3 N3; Wester-
mann, Art. 3 N4]. Further, the “essentiality” of the buyer’s contribution for the final product must
also be taken into account, as is reflected in the French text of Art. 3(1) CISG, that refers to a
“part essentielle” [Ferrari/Schlechtriem, Art. 3 N8]. For example, in the ICC Case No. 11256, the buy-
er’s contribution, namely the provision of motors for the production of vehicles, was considered
essential, i.e. substantial, given that the vehicle is useless without the motor. Equally, immaterial
contributions, such as design specifications, can be regarded as “materials” used for the produc-
tion of the goods according to Art. 3(1) CISG [Connectors case; Diedrich, software, p. 65].
121 If the Tribunal were to hold that software is a good, its development has to be regarded as the
production of said good in the sense of Art. 3(1) CISG [Cephalo pro case; Diedrich, p. 336 et seq.;
Green/Saidov, p. 171 et seq.]. In order to develop software, data and intellectual work of a designer
are required [Mistelis/Raymond, Art. 3 N23; Schwenzer/Hachem, Art. 1 N18]. If the buyer supplies
the seller with data in order to produce software, it must be examined whether this contribution
is substantial in order to establish the applicability of the CISG [Diedrich, software, p. 65].
122 In the case at hand, RESPONDENT provided CLAIMANT with medical data for a total value of
USD 6 million, despite its market value of USD 1.5 million [ProcOrd 2, N27]. The relevant value
is the actual price paid by CLAIMANT, which best reflects the “economic value” of the contribu-
tion to the Parties. The overall economic value of the development of the software amounted to
USD 3.5 million [ProcOrd 2, N29(a)]. Hence, when considering RESPONDENT’s contribution in
terms of mere economic value, the data provided was worth almost twice the value of the develop-
UNIVERSITY OF FRIBOURG MEMORANDUM FOR RESPONDENT
24
ment of the software, i.e. 171%, and thus excludes the application of the CISG pursuant to Art.
3(1) CISG. Even considering the market value of RESPONDENT’s contribution of USD 1.5 mil-
lion, it still amounted to 43% of the development costs, thus meeting the threshold of 40%.
123 Furthermore, without the data provided by RESPONDENT, CLAIMANT would not have been able
to develop functioning software [ProcOrd 2, N28]. RESPONDENT’s contribution was thus essen-
tial, i.e. substantial, for the development of the software by CLAIMANT. RESPONDENT’s contribu-
tion is all the more important for the development of the software, given that already during the
negotiations of the FSA CLAIMANT considered obtaining RESPONDENT’s expertise and data for
the development of the active scanning technology [ReqArb N9; ClaEx 4]. Before concluding the
SLA, CLAIMANT did apparently not find a different hospital that could provide it with the neces-
sary data in order to complete its software.
124 Consequently, RESPONDENT’s contribution to the development of the software has to be consid-
ered substantial, both considering its economic value and its essentiality for the end product.
Therefore, Art. 3(1) CISG precludes the application of the Convention to the development of
the software by CLAIMANT.
(iii) The customisation of the software precludes the application of the CISG
125 CLAIMANT alleges that it created standard software, thus providing for the application of the
CISG [ClaM §§64–65]. Furthermore, although not submitted by CLAIMANT, it could have argued
that no distinction between standard and customised software is to be made. RESPONDENT sub-
mits that the software was customised, which precludes the applicability of the CISG.
126 Custom-made software, as opposed to standard software, is generally defined as software devel-
oped for the particular needs of a specific buyer [Green/Saidov, p. 171; Mowbray, p. 127]. In case of
custom-made software, the main obligation of the party providing the software is the supply of
services, given that it has to provide intellectual work in order to develop software adapted to the
very needs of his client, contrary to the mere delivery of a good in case of standard software [Fer-
rari, Applicabilité, p. 95 et seq.; Ferrari/Schlechtriem, Art. 1 N38; Lorenz, Art. 1 N6; Mag-
nus/Staudinger, Art. 1 N44; Saenger, Art. 1 N7; Westermann, Art. 1 N6]. Accordingly, the contract is
a contract of service rather than a sales contract. This corresponds to the position taken by the
UNCITRAL Working Group on Electronic Commerce, according to which the CISG does not
apply to the sale of custom-made software [UNCITRAL Working Group, N25]. Substantive case
law calls for the application of the CISG to standard software only and excludes its application to
customised software [Chip case; Computer case; Evolution case; Graphiplus case; Module T case].
UNIVERSITY OF FRIBOURG MEMORANDUM FOR RESPONDENT
25
127 In the case at hand, the software delivered to RESPONDENT must be distinguished from the one
sold to the two other hospitals [ReqArb N17]. The software sold to RESPONDENT was the first
developed by CLAIMANT for the use of the active scanning technology [ProcOrd 2, N24]. The
main objective of this prototype software was to obtain the approval of the Medical Certification
Authority through the “joint efforts” of the Parties [ClaEx 5; cf. ClaEx 4; Art. 10(2) SLA, ClaEx
6]. The modelling software developed by CLAIMANT was therefore “developed particularly for
[RESPONDENT’s] needs,” as admitted by CLAIMANT itself [ClaEx 5; ProcOrd 2, N24]. This is all
the more the case, given that the software was developed with data provided by RESPONDENT
and specifically developed to interact with the software controlling RESPONDENT’s proton accel-
erator [ProcOrd 2, N22, 24].
128 The fact that the software was subsequently delivered to two other customers does not imply that
it is standard software. Although the two software packages were “largely comparable to that sold
to RESPONDENT” [ReqArb N17], the difference lies in the fact that the software provided to RE-
SPONDENT was the very first software of its type developed by CLAIMANT and would serve as
precursor for the one it would subsequently put on the market, for which then no designing was
needed anymore [ReqArb N9; ClaEx 4; ClaEx 5].
129 Consequently, CLAIMANT developed customised software for the use of the active scanning
technology for RESPONDENT’s specific needs. Thus, the development of the software consisted
in the provision of services rather than in the delivery of a good. Since the CISG does not apply
to contracts in which the main obligation consists in the provision of services, the development
of customised software by CLAIMANT precludes the application of the CISG.
(iv) The licensing of CLAIMANT’s software does not amount to a sale
130 Although not raised by CLAIMANT, it could have argued that the licensing of the software
amounts to a sale. RESPONDENT submits that, in the present case, the software was merely li-
censed and not sold.
131 It is established that a licensing agreement constitutes a sale under certain conditions: First, the
right to use the software must be permanently transferred, and second, the licensee must make a
single payment, i.e. pay a one-off fee [Larson, p. 466 et seq.; Newhouse/Tanaka, p. 12; Primak, p.
221; Schlechtriem/Butler, N32b; Schwenzer/Hachem, Art. 1 N18]. With regards to the purchase price,
the ECJ ruled in the Oracle case that a licensing agreement only amounts to a sale if the price paid
by the acquirer of the copy of computer software consists in “a remuneration corresponding to
the economic value of the copy of the work of which [the licensor] is the proprietor” [Oracle case].
It follows that the licensing agreement concluded by the parties cannot be regarded as a sale
UNIVERSITY OF FRIBOURG MEMORANDUM FOR RESPONDENT
26
when the purchase price does not correspond to the economic value of the copy of the software,
even if the two above-mentioned conditions are met [Idem].
132 In the present case, as explicitly stated in Art. 2 SLA, RESPONDENT acquired the right to use the
software developed by CLAIMANT, whereas the latter retained all intellectual property rights over
the software and could sell it under its own name, pursuant to Art. 11 SLA [ClaEx 6].
133 In order to reach an affordable price for RESPONDENT, the Parties agreed to reduce the purchase
price of the SLA from its actual economic value of USD 9.5 million to USD 3.5 million [ResEx
3]. The economic value for the development of the software, its installation, fine-tuning and test-
ing amounted to a total market value, i.e. economic value, of USD 4.75 million [ProcOrd 2, N29].
Accordingly, the purchase price of USD 3.5 million paid by RESPONDENT does not only cover
the purchase of the software, whose value alone is higher than this purchase price, but also the
hardware, the staff training and the construction work [ResEx 3]. Consequently, the purchase
price of USD 3.5 million under the SLA does not reflect the actual economic value of the copy
of the software acquired by RESPONDENT. Pursuant to the Oracle decision, such a licensing
agreement does not amount to a sale, thus precluding the application of the CISG.
B. THE SERVICE ELEMENT IS PREPONDERANT UNDER THE SLA
134 According to Art. 3(2) CISG, the Convention does not apply to mixed contracts in which the
seller’s obligation consists predominantly in the provision of labour or other services [Schlechtri-
em/Butler, N27a; Siehr, Art. 3 N7]. A contract is predominantly concerned with the provision of
services when the economic value of said services amounts to more than 50% of the contract’s
entire economic value [CISG-AC Op. 4, N3.3 et seq.; Ferrari/Schlechtriem, Art. 3 N13, 15; Schroeter,
Applicability, p. 77; Schwenzer/Hachem, Art. 3 N20].
135 CLAIMANT alleges that the CISG applies to the SLA, since it is predominantly concerned with the
sale of goods [ClaM §51]. In its view, the only service element is the training of RESPONDENT’s
staff for the use of active scanning technology, which only amounts to 10% of the contract’s
whole economic value [Idem]. In the following, RESPONDENT will establish that, contrary to
CLAIMANT’s submission, the SLA is predominantly concerned with the provision of services,
thus precluding the application of the CISG.
136 The delivery of construction materials can only be considered a sale of goods if the materials are
movable at the time of delivery [Ferrari/Schlechtriem, Art. 1 N35]. The construction of fixtures, e.g.
buildings, therefore represents a service and is not encompassed by the CISG [Herber, Art. 1 N23;
Mistelis, Art. 1 N39; Schwenzer/Hachem, Art. 1 N17]. As previously demonstrated, the development
and licensing of customised software with data provided by the ordering party does not consti-
UNIVERSITY OF FRIBOURG MEMORANDUM FOR RESPONDENT
27
tute a sale of goods [supra IV.A.]. Furthermore, it is admitted that, if the delivering party addition-
ally provides installation support, staff training and undertakes to fine-tune the software, these
elements represent services [Software case; Mistelis/Raymond, Art. 3 N24].
137 In the case at hand, it is common ground between the Parties that the SLA’s overall economic
value was of USD 9.5 million [Art. 3 SLA, ClaEx 6; ResEx 3]. Contrary to CLAIMANT’s submis-
sion [ClaM §§46–48], its scope of delivery did not only include the magnets, but also the develop-
ment, installation, testing and fine-tuning of the software, the training of RESPONDENT’s staff as
well as construction materials and work [Art. 2 SLA, ClaEx 6]. The only eventual sales element
under the SLA is the provision of the tangible goods by CLAIMANT, i.e. the magnets [Art. 2 SLA,
ClaEx 6; ResEx 3]. Said magnets only represented 20% of the overall economic value of the SLA
[Ans N19; ResEx 3].
138 On the other hand, the service elements under the SLA include the development, installation,
testing and fine-tuning of the software by CLAIMANT, the construction of the additional treat-
ment room and the training of RESPONDENT’s staff [ResEx 3]. These elements combined repre-
sent 80% of the SLA’s overall economic value, i.e. USD 7.6 million.
139 Consequently, the service element under the SLA largely exceeds 50% of the contract’s entire
economic value, meaning that the service elements are predominant under the SLA. As a conse-
quence, the CISG does not apply to the latter.
CONCLUSION: Given that the development, licensing and download of customised software by
CLAIMANT do not represent a sale of a good in the sense of the CISG, the SLA is predominantly
concerned with the provision of services, thus precluding the application of the CISG.
V. THE CHOICE OF LAW CONTAINED IN THE 2011 STANDARD TERMS WAS NOT
INCLUDED IN THE SLA
140 It will be established that, contrary to CLAIMANT’s submission [ClaM §67], Section 22 of CLAIM-
ANT’s 2011 standard terms was never included in the SLA. RESPONDENT submits that the 2011
standard terms never became part of the SLA (A). In the alternative, it contends that the choice
of law clause contained therein is a surprising clause, and thus not binding for RESPONDENT (B).
A. THE 2011 STANDARD TERMS WERE NOT INCLUDED IN THE SLA
141 CLAIMANT acknowledges that standard terms are incorporated under the CISG if the following
conditions are met [ClaM §66]: First, the offeror must clearly express his intent to incorporate the
standard terms into the contract and, second, he must transmit them or make them available in
another way to the offeree during the negotiations [Car phone case; Machinery case; Mirrors case; Seeds
UNIVERSITY OF FRIBOURG MEMORANDUM FOR RESPONDENT
28
case; Ferrari, Art. 14 N40; Kruisinga, p. 350 et seq.; Magnus/Staudinger, Art. 14 N41a; Schroeter, Art.
14 N40 et seq.]. In the Machinery case, the German BGH ruled that, due to the differences be-
tween the many legal systems worldwide, standard terms vary considerably from one country to
another. These legal differences justify that stricter requirements are to be met in international
trade than in domestic law in order for standard terms to become part of a contract [Gruber, Art.
14 N29; Huber/Mullis, p. 30 et seq.; Lookofsky, p. 156].
142 Furthermore, it is much easier for the offeror to transmit his standard terms, which generally
favour him, to the other party than it is for the latter to inquire about them [Machinery case; Schroe-
ter, Art. 14 N41]. It would be contrary to the principle of good faith in international trade as well
as to the general obligations of cooperation and information of the parties, if the addressee were
to be bound by standard terms whose content he could not be aware of when concluding the
contract [Machinery case; Plants case]. For this reason, the offeror has to make his standard terms
available before the conclusion of the contract [Schroeter, Art. 14 N59]. Contrary to CLAIMANT’s
submission [ClaM §89], the offeree has no duty to actively inquire about the offeror’s standard
terms [Bricks case; Machinery case; Plants case; Rubber case; Sour cherries case; Trade usage case; Magnus, p.
319 et seq.; Mankowski, Pre Art. 14 N30; Piltz, standard terms, p. 235].
143 In the present case, RESPONDENT does not dispute that it knew that CLAIMANT intended to
include its 2011 standard terms in the SLA, since the issue was mentioned at the Parties’ final
meeting of 2 June 2011 [ClaEx 5; ProcOrd 2, N31]. However, the 2011 standard terms were
shortly online on CLAIMANT’s website in poor English from 1 to 4 July 2011 [ResEx 2; Proc-
Ord 2, N32]. After their removal by CLAIMANT, only a Mediterranean version of the 2011 stand-
ard terms was published on its website [Idem]. A good English translation was only uploaded
after the conclusion of the SLA on 20 July 2011, namely on 21 July 2011 [Idem].
144 In the following, RESPONDENT will establish that CLAIMANT failed to make the 2011 standard
terms available to it (1). Additionally, RESPONDENT contends that the standard terms were not
subsequently incorporated into the SLA (2).
1. CLAIMANT failed to make the 2011 standard terms available to RESPONDENT
145 According to CLAIMANT, the fact that RESPONDENT had the opportunity to access a poor
English translation of the 2011 standard terms on CLAIMANT’s website from 1 to 4 July 2011
leads to their incorporation into the SLA [ClaM §70].
146 In the following, RESPONDENT will establish that the 2011 standard terms were never made
available to it, since CLAIMANT only provided a link to its website (i). In any case, should the
Tribunal find that the link directing to the poorly translated English version of the 2011 standard
UNIVERSITY OF FRIBOURG MEMORANDUM FOR RESPONDENT
29
terms was sufficient, a publication of four days on the internet cannot be considered a reasonable
opportunity to gain knowledge of the standard terms (ii). Furthermore, the terms were, prior to
the conclusion of the SLA, never published in a language RESPONDENT could understand (iii).
(i) The mere reference to CLAIMANT’s website is not sufficient to make the 2011 stand-
ard terms available to RESPONDENT
147 It is admitted that in case a contract is not concluded electronically, i.e. via email or on a website,
a mere reference to the offeror’s website on which the standard terms are published is not suffi-
cient in order to make them available to the addressee [Recorders case; Ferrari, Art. 14 N40; Kruis-
inga, Incorporation, p. 76; Magnus, p. 320; Mankowski, Pre Arts. 14 N32 et seq.]. Even the indication
of an exact internet address does not suffice in that case: otherwise, the offeree would have the
duty to actively search the website for the standard terms that the other party seeks to include
into the contract [Dornis, Art. 14 N12; Ferrari, Art. 14 N40; Schroeter, Art. 14 N50].
148 In the case at hand, the only possibility to access the 2011 standard terms RESPONDENT had was
a reference to CLAIMANT’s website in the footer of CLAIMANT’s letters [ClaEx 5; ResEx 3]. As
demonstrated above, such a reference to an internet website cannot be considered sufficient to
make the 2011 standard terms available to RESPONDENT.
(ii) In any case, RESPONDENT did not have a reasonable opportunity to take knowledge
of the 2011 standard terms
149 Even if the Tribunal should find that the link to CLAIMANT’s website was sufficient to make the
2011 standard terms available to RESPONDENT, it did not have a reasonable opportunity to gain
knowledge of them due to their short period of publication.
150 When standard terms are published on the internet, they must be accessible in a way that makes it
“easy for a reasonable person of the same kind as the other party in the same circumstances (Ar-
ticle 8(2) CISG) to find and download them” [Schroeter, Art. 14 N49]. The risk that the website
becomes temporarily inaccessible has to be borne by the offeror [Kruisinga, Incorporation, p. 77]. In
order to determine whether the addressee had a reasonable opportunity to gain knowledge of the
standard terms, the hypothetical understanding of a reasonable person in the same conditions as
the addressee is decisive [Magnus/Staudinger, Art. 8 N17; Schmidt-Kessel, Art. 8 N20].
151 In the case at hand, CLAIMANT assumes that RESPONDENT accessed the poor English translation
on CLAIMANT’s website during its publication. However, this statement is not supported by any
evidence: Dr. Excell merely mentioned in his witness statement that “it seems that the English
version of the standard terms had been online on CLAIMANT’s website for a short period from 1
July to 4 July 2011” [ResEx 2]. His knowledge of the publication of the standard terms on
UNIVERSITY OF FRIBOURG MEMORANDUM FOR RESPONDENT
30
CLAIMANT’s website can be explained by Dr. Vis’ letter of 5 July 2011, which stated that “[a]t the
moment, the standard terms are available […] only in Mediterranean” and that there had been a
first English translation which had been retrieved because of its bad quality [ClaEx 5; ResEx 2].
152 On the contrary, RESPONDENT did not know when the 2011 standard terms were to be pub-
lished on CLAIMANT’s website: CLAIMANT only mentioned at the Parties’ meeting of 2 June 2011
that it had revised its standard terms and “was in the process of having them translated into Eng-
lish” [ResEx 2]. CLAIMANT merely mentioned in its letter of 5 July 2011, i.e. after the 2011 stand-
ard terms were removed from its website, that currently only the Mediterranean version was
available online [ClaEx 5]. Prior to 5 July 2011, RESPONDENT could not and did not know when
and whether the English version of the 2011 standard terms was online.
153 Since the 2011 standard terms were available on CLAIMANT’s website for onlyi four days, RE-
SPONDENT did not have a reasonable opportunity to gain knowledge of them. It cannot be rea-
sonably expected of RESPONDENT to visit CLAIMANT’s website on a daily basis without any in-
formation as to the exact date of their publication. CLAIMANT has to bear the consequences of
the unavailability of its 2011 standard terms after 4 July 2011. Accordingly, the poorly translated
English version of the 2011 standard terms was not included into the SLA.
(iii) RESPONDENT never had access to a version of the 2011 standard terms drafted in a
language it could understand
154 Should the Tribunal find that the link to CLAIMANT’s website was sufficient in order for RE-
SPONDENT to gain knowledge of the 2011 standard terms, RESPONDENT submits that CLAIM-
ANT, before concluding the SLA, did not make them available to RESPONDENT in a language it
could understand.
155 It is established that both the reference to the standard terms and the terms themselves have to
be written in a language the addressee can understand [Motor yacht case; Achilles, Art. 24 N8; Dornis,
Pre Arts. 14–24 N14; Schroeter, Art. 14 N61]. Such a language can be the language of the contract,
respectively of the negotiations or the native language of the addressee [Knitwear case; Used motor
case; Piltz, §3 N79; Schlechtriem/Schroeter, N257; Witz, Pre Art. 14–24 N13].
156 It has also been acknowledged that when “the [addressee’s] staff members responsible for the very
sales contract concerned have sufficient knowledge of the language the standard terms are written
in” [Schroeter, Art. 14 N64, emphasis added], the addressee is expected to understand that lan-
guage [Car phone case]. In particular, the addressee does not have a general duty to translate if the
standard terms are written in a language unknown to him [Socks case; Dornis, Pre Arts. 14–24 N14;
Gruber, Art. 24 N20].
UNIVERSITY OF FRIBOURG MEMORANDUM FOR RESPONDENT
31
157 In the case at hand, the English translation available from 1 to 4 July on CLAIMANT’s website was
erroneous and difficult to understand [ProcOrd 2, N32]. In fact, the translation was of such poor
quality that CLAIMANT promptly removed it from its website [ClaEx 5]. CLAIMANT thus errs
when asserting that it made the 2011 standard terms available to RESPONDENT by uploading an
English translation that contained mistakes and was objectively unintelligible.
158 Furthermore, RESPONDENT could not be expected to understand the Mediterranean version of
the 2011 standard terms. The only member of its staff who spoke this language was a young as-
sistant doctor [ResEx 2]. He merely took part in two meetings, where he spoke with some of
CLAIMANT’s technicians [ProcOrd 2, N35]. It resorts that this young doctor did not have any
responsibilities regarding the negotiation and conclusion of the SLA. CLAIMANT was thus neither
entitled to assume that RESPONDENT could understand the 2011 standard terms redacted in
Mediterranean nor that RESPONDENT would translate them itself. Furthermore, CLAIMANT
promised RESPONDENT to provide it with a correct English translation [ClaEx 5].
159 Consequently, given the poor quality of the English translation that was only online temporarily
and the fact that RESPONDENT did not have to understand the Mediterranean version, CLAIM-
ANT did not make the 2011 standard terms available to RESPONDENT by uploading a Mediterra-
nean version on its website.
2. The 2011 standard terms were not subsequently included into the SLA
160 CLAIMANT submits that RESPONDENT expressed its acceptance to the incorporation of the 2011
standard terms by its subsequent conduct, namely its silence and the payment of the purchase
price [ClaM §77].
161 The subsequent incorporation of standard terms consists in a modification of the contract, for
which an offer and an acceptance are required [Wine corks case; Magnus, p. 324]. In this case, the
fact that the offeree performs his obligations under the contract does not lead to the inclusion of
the standard terms by modification of the contract [Centrifuge case; Granulate case; Printed materials
case; Magnus/Staudinger, Art. 14 N42; Mankowski, Pre Art. 14 N27; Schroeter, Art. 14 N60]. Like-
wise, the silence of the offeree does not constitute an acceptance to a modification of the con-
tract, pursuant to Art. 18 CISG [CISG-AC Op. 13, N4.3; Magnus/Staudinger, Art. 14 N42; Schroeter,
Art. 14 N60]. On the contrary, if the parties subsequently fulfil their obligations under the con-
tract, this reflects their intent to uphold the contract as it was concluded, i.e. without the standard
terms [Lautenschlager, p. 279 et seq.].
162 In the case at hand, CLAIMANT only published an understandable English version of the 2011
standard terms on its website on 21 July 2011, i.e. one day after the conclusion of the SLA [Proc-
UNIVERSITY OF FRIBOURG MEMORANDUM FOR RESPONDENT
32
Ord 2, N33]. CLAIMANT finished building the additional treatment room on 13 January 2012 and
RESPONDENT made the initial payment of USD 2 million on 2 February 2012 [TermRef N10].
163 RESPONDENT’s silence and performance of its obligation under the SLA cannot be regarded as
an acceptance to include the 2011 standard terms subsequent to the conclusion of the SLA. The
fact that RESPONDENT signed the contract and that the Parties performed their respective obliga-
tions, despite CLAIMANT not providing the 2011 standard terms, means that the Parties conclud-
ed a contract that is not governed by CLAIMANT’s 2011 standard terms.
B. IN ANY EVENT, THE CHOICE OF LAW CLAUSE CONTAINED IN THE 2011 STANDARD
TERMS DID NOT BECOME PART OF THE SLA
164 CLAIMANT erroneously submits that the choice of law clause contained in Section 22 of its 2011
standard terms does not represent a surprising clause under Art. 2.1.20 PICC [ClaM §87]. Should
the Tribunal find that the 2011 standard terms were included into the SLA and that the choice of
law clause contained therein provided for the application of the CISG, RESPONDENT submits
that it is not bound by the choice of law clause contained in Section 22 of the 2011 standard
terms. Whilst disputing the applicability of the CISG [infra IV.–VI.], RESPONDENT will base its
argument on the assumption that the CISG is applicable to the SLA [ProcOrd 2, N2].
165 The question of whether surprising or unusual clauses contained in standard terms form part of a
contract is a matter of incorporation rather than validity, and is thus governed by the CISG [Car
phone case; Metal slabs case; CISG-AC Op. 13, N7.2; Eiselen, p. 8]. In the Metal slabs case, the court
ruled: “[a]ccording to Art. 8 CISG in conjunction with the principle of good faith, it has to be
considered in this respect, whether the clause differs from the expectation of the contractual
partner to such an extent that the latter cannot reasonably be expected to have anticipated that
such a clause might be included” [Metal slabs case; cf. Schmidt-Kessel, Art. 8 N63]. Good faith in
international trade requires a party to inform the other party of the surprising content of his
standard terms [Eiselen, p. 8]. Accordingly, terms that are inconsistent with the negotiations are
considered surprising and are therefore not binding for the other party – an approach that is also
followed by the PICC, which reflect the Mediterranean domestic law [ProcOrd 2, N4; cf. Car
phone case; CISG-AC Op. 13, N7.2; Vogenauer, Art. 2.1.20 N7]. Furthermore, considering the on-
ward trend in international trade to exclude the CISG, a choice of law clause providing for its
application must be considered surprising [Lohmann, p. 226 et seq.; Spagnolo, p. 418 et seq.].
166 In the present case, CLAIMANT’s Dr. Vis repeatedly promised RESPONDENT during the negotia-
tions that there would be no major change in the revised standard terms apart from the liability
regime [ClaEx 5; ResEx 2; ProcOrd 2, N31]. Ever since CLAIMANT had revised its standard
UNIVERSITY OF FRIBOURG MEMORANDUM FOR RESPONDENT
33
terms, it never mentioned the choice of law clause, in particular the fact that it planned to apply a
different set of rules to the SLA as to the FSA. CLAIMANT’s choice of law, if providing for the
application of the CISG, is inconsistent with what the Parties agreed upon during the negotia-
tions and could therefore not be reasonably expected by RESPONDENT. Furthermore, given that
the CISG is generally excluded in international commercial contracts, its application to the SLA
would be all the more surprising for RESPONDENT.
167 Should Section 22 of CLAIMANT’s 2011 standard terms provide for the application of the CISG,
it has not been incorporated into the SLA since RESPONDENT could not reasonably expect such
a choice of law.
CONCLUSION: The 2011 standard terms did not become part of the SLA, since CLAIMANT did
not make them available to RESPONDENT and the Parties did not subsequently included them
into the SLA. In any case, Section 22 of said standard terms was surprising and thus not included.
VI. THE PARTIES’ CHOICE OF LAW EXCLUDES THE CISG
168 As previously established, the choice of law clause contained in the 2011 standard terms does not
form part of the SLA. Therefore, as results from the framework structure chosen by the Parties,
the 2000 standard terms govern the SLA and provide for the exclusion of the CISG (A). In case
the Tribunal were to find that the 2011 standard terms were included into the SLA, RESPOND-
ENT contends that the choice of law clause contained in their Section 22 excluded the CISG, as
agreed upon by the Parties (B).
A. THE 2000 STANDARD TERMS APPLY TO THE SLA AND EXCLUDE THE CISG
169 RESPONDENT submits that the SLA is subject to the 2000 standard terms contained in the FSA,
thus providing for the exclusion of the CISG. As RESPONDENT previously demonstrated, the
choice of law clause contained in the 2011 standard terms did not become part of the SLA [su-
pra V.]. According to Art. 45 FSA, “[t]he provisions of [the FSA] shall also govern all further and
future contracts concluded by the Parties in relation to the Proton Therapy Facility purchased
where such contracts do not contain a specific provision to the contrary” [ClaEx 2]. The SLA is
concerned with the delivery of an additional treatment room for the proton therapy facility and
therefore represents a contract that falls under the scope of Art. 45 FSA [ReqArb N11].
170 Since the SLA does not contain a “specific provision to the contrary,” in the sense of Art. 45
FSA, the standard terms contained in the FSA, namely the 2000 standard terms, apply to the SLA
as results from the framework structure established by the Parties [ClaEx 2].
UNIVERSITY OF FRIBOURG MEMORANDUM FOR RESPONDENT
34
171 Furthermore, if the parties did not specify otherwise, the choice of law contained in the frame-
work contract extends to the contracts subsequently concluded [Lohmann, p. 300]. An exclusion
of the CISG can be assumed when the parties refer to the specific domestic law of a contracting
state to the CISG [Asante case; Automobile case; Printing machine case; Schwenzer/Fountoulakis/Dimsey,
p. 40 et seq.]. In addition, if the parties base their claims on domestic sales law during the court
proceedings, although they are both aware of the potential application of the Convention, the
CISG is impliedly excluded [Leather products case; Weed killer case; Siehr, Art. 6 N6].
172 In the present case, as results from the framework structure chosen by the Parties, Section 22 of
CLAIMANT’s 2000 standard terms also governs the SLA, since the 2011 standard terms have not
become part of the agreement. This provision states: “The contract shall be governed by the na-
tional law of Mediterraneo as set out in the statutes of Mediterraneo and developed by its courts”
[ClaEx 2]. This clause clearly refers to Mediterranean domestic law, as it refers to this country’s
case law and specific statutes. This is all the more the case since neither CLAIMANT nor RE-
SPONDENT dispute that Section 22 of CLAIMANT’s 2000 standard terms provides for the exclu-
sion of the CISG, as both Parties base their claims arising out of the FSA on Mediterranean sales
law, although they are aware that the CISG could potentially apply [ProcOrd 2, N20].
173 In conclusion, the 2000 standard terms, providing for the exclusion of the CISG, govern the
SLA.
B. IN ANY CASE, THE PARTIES EXCLUDED THE CISG IN THE 2011 STANDARD TERMS
174 Should the Tribunal find that the 2011 standard terms, including its choice of law clause, were
included into the SLA, RESPONDENT submits that, contrary to CLAIMANT’s allegation [ClaM §90],
this choice of law clause implicitly excludes the applicability of the CISG.
175 It is generally accepted that a reference to the law of a contracting state to the CISG without
further specifications does per se not suffice to establish the parties’ clear intent to exclude the
CISG [Oil case; Mistelis, Art. 6 N18; Schwenzer/Hachem, Art. 6 N14]. If, however, the clear intent of
the parties to exclude the CISG can be determined, the designation of the law of a contracting
state excludes the applicability of the CISG [Foil case; Leather wear case; Ferrari/Schlechtriem, Art. 6
N22; Honnold, N77.1]. When establishing this intent, pursuant to Art. 8(3) CISG, all relevant cir-
cumstances of the case are to be taken into consideration, namely the statements and conduct of
the parties during the negotiations [Cables case; Cobalt case; Dishes case; Ferrochrome case; Mint case;
Lindbach, p. 216, 256; Lohmann, p. 258].
176 In the present case, at the Parties’ final meeting of 2 June 2011, CLAIMANT’s Dr. Vis promised
RESPONDENT that the 2011 standard terms would not contain any major change, apart from the
UNIVERSITY OF FRIBOURG MEMORANDUM FOR RESPONDENT
35
liability regime [ProcOrd 2, N31]. In his letter of 5 July 2011, he repeated his promise that “the
changes are [...] of a minor nature and will hardly affect [the Parties’] relationship” [ClaEx 5].
177 It is true that Dr. Vis, who represented CLAIMANT during most of the Parties’ contractual
relationship, mentioned, at the meeting of 2 June 2011, that he was not a lawyer [ProcOrd 2,
N31]. It is, however, equally true that CLAIMANT is an experienced business partner supported by
a legal team involved in the conclusion of both the FSA and the SLA [ProcOrd 2, N10]. There-
fore, RESPONDENT could reasonably rely on CLAIMANT’s promise that the revised standard terms
would not bring any major change. Furhtermore, Dr. Vis not only repeated this promise one
month later on 5 July 2011, but did so in a formal letter accompanied by a draft of the SLA
[ClaEx 5 et seq.], thereby creating the impression that he was fully aware of the content and con-
sequences of the changes in the standard terms. Due to the previous exclusion of the CISG un-
der the FSA [ProcOrd 2, N20], RESPONDENT could reasonably trust that the new choice of law
clause still provided for the application of Mediterranean domestic law.
178 In addition, under the circumstance that the parties established a framework structure, their
choice of law in the framework contract best reflects their intent as to the law applicable to the
implementation contract [Electronic parts case; Leather goods case; Lohmann, p. 300].
179 In the present case, the choice of law contained in the framework contract, namely the FSA,
provided for Mediterranean sales law [supra §172], thus indicating the Parties’ intent to have Med-
iterranean domestic law applicable to their implementation contract, i.e. the SLA [ClaEx 6].
180 In conclusion, contrary to CLAIMANT’s submission, the Parties implicitly excluded the CISG in
the 2011 standard terms, considering CLAIMANT’s statements and conduct during the negotia-
tions as well as the choice of law contained in the FSA.
CONCLUSION: Since the 2011 standard terms did not become part of the SLA, the choice of law
from the FSA governs the SLA, thus providing for the application of Mediterranean sales law. In
the alternative, the Parties implicitly excluded the CISG in Section 22 of the 2011 standard terms.
REQUEST FOR RELIEF
In light of the above submissions, RESPONDENT respectfully requests this Tribunal to find that:
– it does not have jurisdiction over the claims arising out of both the FSA and the SLA;
– in any case, it is inadmissible to hear the claims arising out of the FSA and the SLA in a
single set of proceedings;
– both contracts are governed by the Mediterraneo Sale of Goods Act, excluding the CISG.
UNIVERSITY OF FRIBOURG MEMORANDUM FOR RESPONDENT
XLI
We hereby confirm that this Memorandum was written only by the persons whose names are
listed below and who signed this certificate.
Fribourg, 23 January 2014,
/s/ /s/ /s/
Simon Demaurex Cheryl De-Souza Benjamin Trachsel
/s/ /s/
Konrad Staeger Noémie Zürcher