Post on 05-Jun-2018
B1406-R
THE 9TH LAWASIA INTERNATIONAL MOOT
IN THE THAI ARBITRATION INSTUTE
BANGKOK, THAILAND
2014
BETWEEN
THE INTERNATIONAL COLLECTIVE IN SUPPORT OF TEXTILE WORKERS (CLAIMANT)
AND
SPEAR SHIRTS INCORPORATED
(RESPONDENT)
MEMORIAL FOR RESPONDENT
1
CONTENTS
CONTENTS................................................................................................................................... 2
INDEX OF AUTHORITIES ........................................................................................................ 3
Cases............................................................................................................................................ 3
Statutes/Conventions ................................................................................................................... 3
Reports ........................................................................................................................................ 3
Books ........................................................................................................................................... 4
Articles ........................................................................................................................................ 4
STATEMENT ON JURISDICTION .......................................................................................... 5
QUESTIONS TO BE PRESENTED ........................................................................................... 6
STATEMENT OF FACTS ........................................................................................................... 7
SUMMARY OF PLEADINGS .................................................................................................... 9
RESPONDENT’S PLEADINGS ............................................................................................... 10
I The Law of Thailand should apply to the substance of the dispute ........................................ 10
II The Claimant is not entitled to bring a class proceeding against the Respondent................. 13
III The Respondents are not liable to compensate for the Claimant’s loss ............................... 16
A. The Respondent did not negligently cause the Claimant’s loss ....................................... 16
B. The Respondent is not a joint actor................................................................................... 18
C. The Respondent is not liable under the law of California ................................................ 19
IV Limited damages for the Claimant if action is successful ................................................... 20
CONCLUSION AND PRAYER FOR RELIEF ....................................................................... 22
2
INDEX OF AUTHORITIES
Cases
1. Rodriguez v Bethlehem Steel Corp., 525 P.2d 669, 680 (Cal. 1974).
2. Sheibani v United States, Iran-US. Cl. Trib. Rep. 954, (2003).
3. Stagl v. Delta Airlines, Inc., 52 F.3d 463, 469 (2d Cir. 1995).
4. Strong v Woolworths (2012) 246 CLR 182.
Statutes/Conventions
1. Arbitration Act B.E. 2545 (2002)
2. Thailand Civil and Commercial Code
3. Thailand Penal Code
4. International Chamber of Commerce, Commission on Commercial Law & Practice, Policy
Statement, Class Action Litigation, Doc. No 460/585, 1 (2005).
5. Civil Code (Germany)
Reports
1. Lovanovich I, ‘Personal Injury and Damages for Non-Pecuniary Loss in the Law of Torts
and the Product Liability Law’ (2011) (unpublished thesis for Master of Laws prograFaculty
of Law, Thammasat University), available online at:
http://digi.library.tu.ac.th/thesis/la/1816/title-biography.pdf.
2. Atcharawongchai, W. ‘The Non-Pecuniary Damages in Wrongful Acts Causing Bodily Harm
and Death: The Comparative Study on U.S. and Thailand Laws’ (2013) Volume 16(1).
3
Books
1. Kuck, LH and Litt GA, World Class Actions: A Practitioners Guide to Group and
Representative Actions Around the Globe (Oxford University Press, 2012)
2. Tetley, W. International Conflict of Laws: Common, Civil and Maritime (International
Shipping Publications, 1994)
3. Bar, Christian von, Non-Contractual Liability Arising out of Damage Caused to Another
(Berlin, Boston, Sellier de Gruyter, 2009) 747.
4. Moser, M. and Choong, J. Asia Arbitration Handbook (Oxford University Press, 2011)
5. Ferrari, F and Kroll, S. International Arbitration (Sellier, 2011)
6. Born, GB. International Commercial Arbitration (Kluwer Law International, 2nd ed, 2014)
Symeonides, SC. Codifiying Choice of Law Around the World: an International Comparative
Analysis (Oxford University Press, 2014)
Articles
4
STATEMENT ON JURISDICTION
The International Collective in Support of Textile Workers (“Claimant”) and Spear Shirts
Incorporated (“Respondent”) jointly submit the present dispute to the Thai Arbitration Institute
for Arbitration according to the Kuala Lumpur Regional Centre for Arbitration Rules (“KLRCA
Rules”).
The dispute includes issues on the Tribunal’s jurisdiction. Pursuant to Article 6 of the
KLRCA Rules, the Tribunal may elect to rule on its jurisdiction as a preliminary question or
in an award on its merits.
Both parties shall accept the judgment of the Tribunal as final and binding and execute it in
good faith in its entirety.
5
QUESTIONS TO BE PRESENTED
1. Which State’s law should apply to the substance of the dispute?
2. Can the Claimant bring a representative proceeding against the Respondent?
3. Is the Respondent liable for the Claimant’s harm?
a. whether the Respondent is liable in negligence under the Thailand Civil and
Commercial Code
b. whether the Respondent can be characterised as a joint actor
c. whether the Respondent can be held liable under the law of California
4. What remedies are available to the Claimant?
6
STATEMENT OF FACTS
1. The Respondent is a wholesaler with it its principal place of business in Los Angeles,
California. The Respondent sells its clothing throughout the United States as well as
internationally. The Respondent has insurance which covers the injuries or deaths of its
employees, but this insurance does not extend to employees of its suppliers.
2. The Claimant is an NGO based in India who is bringing the action against the
Respondent on behalf of the victims and families of factory workers who suffered loss
from the Mae Sot factory fire. The Claimant investigates and reports on working
conditions in factories throughout Asia.
3. Mae Sot Clothing Ltd. (“Mae Sot”) is the largest of more than 100 clothing factories
located in or near the town of Mae Sot, Thailand. Mae Sot produces clothing for some of
the worlds most famous brands, including the Respondent’s brand, Spear Shirts TM.
Collectively, Mae Sot employs almost 38,000 Thai workers and more than 60,000
workers from Myanmar.
4. Early in 2013, Theodore Snowden (“Snowden”) assistant to the Vice President in charge
of purchasing at the Respondent company, Joe Baydon (“Baydon”), went on vacation to
the famous Aquamarine Resort in Phuket, Thailand. While on vacation, Snowden met up
with the General Manager of Mae Sot, Paul Castro (“Castro”).
5. Snowden sent a text message to Baydon which expressed how he was having a really
enjoyable time on vacation, admiring the beauty of Thai women and soaking up the sun.
Snowden casually mentioned that he met up with Castro who showed him around the
company and took him to lunch. Snowden reiterated the value of the shirts that Mae Sot
7
was able to produce for the Respondent company and that just like back in the office, he
was constantly tripping over something.
6. Snowden told his boss that Castro had assured him that all the factory workers were
above the legal age while looking younger than they are. Snowden concluded the
message with his plan to go back to the beach for the day.
7. On 15 October, 2013 a fire erupted at Mae Sot factory (“factory”) which led to the total
destruction of the uninsured building. The fire started from an overheated textile machine
and quickly spread through the factory as a result of the negligent, or possibly grossly
negligent manner, that Mae Sot had been operating the factory in, such as non-
functioning fire extinguishers and blocked stair ways.
8. Fifty female employees lost their lives in the fire and more than 100 more were seriously
injured. The victims were all from Myanmar and many of them were under the age of 15.
9. The Claimant has accepted a report from an independent auditor that Mae Sot has no
assets and that it would be futile to pursue a legal action against it. The Claimant is
seeking compensation from the Respondent alleging that the Respondent company is
responsible in whole or in part for the injuries and fatalities which resulted from the fire.
10. In attempt to avoid the delay and costs associated with formal litigation, the Claimant and
the Respondent (together “the Parties”) have agreed to submit the dispute to binding
arbitration in Bangkok in accordance with the KLRCA Rules.
8
SUMMARY OF PLEADINGS
1. The Law of Thailand applies to the substance of the dispute. Thailand is the most closely
connected State to the dispute. Therefore its laws are most appropriate under the
procedural rules agreed on by the Claimant and Respondent.
2. The Claimant is not entitled to bring a class proceeding against the Respondent because
the Respondent did not enter into any agreement for such an arbitration to occur. The
Claimant has an insufficient interest in the dispute. The agreed procedural rules of this
dispute are inadequate to govern a representative proceeding. In any case, in the event of
a representative proceeding, the represented class comprises the 13 members who signed
the agreement with ICSTW.
3. The Respondents are not liable to compensate for the Claimant’s loss because the
Claimant has not established any of the following causes of action:
a. The Respondent did not negligently cause the Claimant’s loss because the
Respondent owed no duty of care to the Claimant, nor was the Respondent’s
conduct the cause of the Claimant’s loss.
b. The Respondent is not a joint actor because it did not instigate or assist any
negligent actions by Mae Sot.
c. Nor would the Respondent be liable under the law of California, if it were to
apply instead of the law of Thailand, because the Respondent owes no duty of
care to the Claimant. Additionally and in the alternative, the Respondent’s actions
did not cause the Claimant’s harm.
4. If the Tribunal finds against for the Claimant, the Respondent should only be held liable
to pay compensatory damages to reflect its proportionate liability.
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RESPONDENT’S PLEADINGS
I The Law of Thailand should apply to the substance of the dispute
1. The parties have agreed, and it remains their common intention, for the present
proceedings to be governed by the KLRCA rules.1 The parties have agreed that Thailand
shall be the seat of the present arbitration.2
2. The law of the seat (lex arbitri), as contained in the Arbitration Act B.E. 2545 (2002)
shall apply. As the Act gives primacy to the parties’ choices, the designation by the
parties for the KLRCA rules to govern the procedural aspect of the arbitration is
effective. The lex arbitri shall apply, in respect of its mandatory laws, and also in respect
of procedural matters on which the KLRCA rules are silent.3
3. The parties have not designated a law to govern the substance of the present dispute, nor
have they designated a conflict of laws system to determine which substantive law should
apply. In such circumstances, article 35(1) of the KLRCA rules enable the tribunal to
determine the appropriate law to govern the substance of the dispute. The tribunal has a
wide discretion to make a direct choice under article 35(1), and is not confined by the
application of conflict of law rules.4 However, conflict of law rules, and international
principles on resolving conflicts can provide useful guidance in determining the
appropriate law.5
1 Moot Problem 2014, p. 3. 2 Further Clarifications, C1. 3 Henderson, A. and Srangsomwong S. ‘Thailand’ in Michael Moser and John Choong Asia Arbitration Handbook (Oxford University Press, 2011) 581, 586. 4 Silberman L and Ferrari F, ‘Getting to the law applicable to the merits in international arbitration and the consequences of getting it wrong’ in Conflict of Laws in Franco Ferrari and Stefan Kroll (eds) International Arbitration (Sellier, 2011) 257, 294. 5 Ibid 299.
10
4. One widely internationally accepted principle is to apply the substantive law of the
jurisdiction with the most significant relationship, or the one that is most closely
connected to the dispute.6 This is the appropriate test to apply in this case.
5. Thailand is the most closely connected jurisdiction to the dispute because it is 1) the
place of the Complainant’s employment;7 2) the place of the incident that gave rise to the
present dispute;8 3) the place where the Claimant suffered its loss and 4) the seat of the
arbitration. Therefore, the laws of Thailand should govern the substance of the dispute.
6. The law of Myanmar is not appropriate to govern the substance of this dispute. Although
the Claimant comprises members whose domicile is in Myanmar, all of the losses
claimed by the Claimant are the result of the incident which occurred in Thailand, whilst
in the course of their employment in Thailand, with their Thai employer - Mae Sot. The
Respondents concede that the rule of domicile is also a well accepted international
principle.9 However, the fact that Thailand is more closely connected to the present
dispute than Myanmar, should operate as an exception to the rule of domicile. Further,
the rule of domicile is inappropriate in this dispute given the parties are domiciled in
different States.
7. The law of India is not appropriate to govern the substance of this dispute. India’s
connection with this dispute is limited to the involvement of the ICSTW.
6 Born, GB, Chapter 19: Choice of Substantive Law in International Arbitration in Gary B. Born , International Commercial Arbitration (Kluwer Law International, 2nd ed, 2014) 2614, 2644; Tetley, W. ‘Chapter 1: Four Classic Approaches to Solving Conflict of Laws’ in International Conflict of Laws: Common, Civil and Maritime (International Shipping Publications, 1994) 3. 7 Moot problem, p 2. 8 Ibid. 9 Symeonides, SC ‘Chapter 2: Law Governing Tort Conflicts’ in Codifiying Choice of Law Around the World: an International Comparative Analysis (Oxford University Press, 2014) 40, 60.
11
8. The law of California is not appropriate to govern the substance of this dispute. It was at
all material times, and continues to be the intention of the Respondent that the law of
California govern all elements of the Respondent’s Purchase Order (‘Purchase Order’)
agreement with Mae Sot. However, the Respondent’s intention in respect of the Purchase
Order does not extend to this dispute for these reasons:
a. The Purchase Order was a valid and enforceable contract between the
Respondent and Mae Sot. The Claimant brings their representative action in their
capacity as natural persons who were injured in the course of their employment.
The Claimant’s action is not brought by, nor on behalf of, Mae Sot; and
b. in addition, and in the alternative, it was the intention of the parties to the
Purchase Order that disputes arising from that agreement be governed by the law
of California.10 It was not the parties’ intentions that all disputes be so governed.
The Purchase Order was an agreement for the sale of goods by Mae Sot to the
Respondent only. The present dispute concerns injuries to the Claimant’s arising
from their employment with Mae Sot. This dispute cannot be said to arise from,
nor is it sufficiently connected with, the substance of the Purchase Order.
Therefore, the Respondent did not intend for the present dispute to be governed by the
law of California. There being no manifest intention from neither the Respondent nor the
Claimant, the appropriate law is Siamese law for the reasons in paragraph 5 above.
9. In the alternative, if the Arbitration Act B.E. 2545 (2002) were to apply, section 34 of
that Act provides that, where there is a conflict of laws, the tribunal is to apply conflict of
law rules to determine the appropriate law that is to govern the substance of the dispute.11
10 Clarifications to Moot Problem, attachment 1. 11 Arbitration Act B.E. 2545 (2002), s 34.
12
10. The jurisdictions with most contact to this dispute are Thailand and California. Thailand
is the place of the tort, and of the Claimant’s alleged loss. California is the place where
the goods manufactured by Mae Sot are delivered, and it is also the domicile of the
Respondent. The law of Thailand, which is a civil law system, is significantly different to
the Law of California, which is a quasi-common law system. Therefore there is a conflict
of laws in this dispute.
11. The conflict of law rules of Thailand are applicable, given the absence of a designation
by either party. Section 15 of Act on Conflict of Laws B.E. 2481 (1938) provides that the
law of the place where the tort occurred is to apply to the substance of the dispute.
Therefore, the law of Thailand would govern this dispute even if the lex arbitri was to
apply instead of the KLRCA rules.
12. In the alternative, if the Tribunal finds, contrary to paragraph 11, that the conflict of law
rules of the United States are applicable, the result is the same. The current prevailing
approach in the United States is to select the jurisdiction that has the most significant
relationship with the dispute.12 This is in line with the international principle discussed in
paragraph 4 above. As stated in paragraph 5 above, Thailand has the most significant
relationship with this dispute.
II The Claimant is not entitled to bring a class proceeding against the Respondent
13. The nature of class arbitration is different to that of a bilateral arbitration.13 Therefore, the
tribunal must not infer the Respondent’s agreement to arbitrate, as an agreement to
submit to class arbitration.14 A class arbitration can only be permitted in the present
12 Tetley, W. ‘Chapter 13: Torts & Delicts in General’ in International Conflict of Laws: Common, Civil and Maritime (International Shipping Publications, 1994) 427, 442. 13 Stolt-Nielsen S.A. v Animal Feeds International Corp, 130 S. Ct. 1758 (2010). 14 Ibid.
13
dispute if there is an intention to do so from both the Claimant and the Respondent. The
Respondent has not expressed such an intention. By putting the question into issue before
the tribunal reflects the Respondent’s very intention against a class arbitration.
14. The Claimant has no personal claim in this dispute. While representative class
arbitrations have occurred, the representative party in those cases have been an affected
party themselves. Public interest class actions have been brought before Courts in many
jurisdictions. However, litigation is different to arbitration. Confidentiality is a
cornerstone of arbitration,15 introducing public interest organisations such as the
Claimant as parties to arbitrations in which they have no personal claim jeopardises the
confidentiality of the proceedings and the resulting award. Such arbitrations have been
refuted.16
15. A representative action in this dispute jeopardises the finality of the award. A select
committee comprising 15 affected individuals are representing all the affected individuals
in their dealings with the Claimant.17 Of those, only 13 signed the agreement with the
Claimant.18 The risk that an award made by the tribunal will be subjected to sequential
and ongoing challenges by members of the group is high.
16. Both the Arbitration Act and the KLRCA rules are silent on procedural aspects of a
representative proceedings, nor have the parties agreed on an appropriate certification
procedure. In light of the foregoing, the class arbitration requested by the Claimant
should be denied, as it was not the intention of the Respondent, in agreeing to arbitrate
15 Born, GB, Chapter 1: Overview of International Commercial Arbitration in Gary B. Born , International Commercial Arbitration (Kluwer Law International, 2nd ed, 2014) 6, 88. 16 Sheibani v United States, Iran-US. Cl. Trib. Rep. 954, (2003). 17 Further Clarifications, D1(A). 18 Ibid.
14
under the KLRCA rules, that the tribunal invent rules on aspects that are not
contemplated by the governing procedural rules.
17. Each affected individual has a right to put forward their claims fully. Class arbitrations
erode this principle.19 To ensure this principle of arbitration is maintained, it is more
appropriate for the tribunal to join all consenting affected parties separately, and exclude
the Claimant - who has no personal claim - as a party.
18. In the alternative, if the Tribunal finds that, contrary to the submissions made in
paragraphs 13 to 16 above, a class arbitration is appropriate and permissible in the
circumstances, the Claimant has adopted an opt-out model in selecting participants to its
representative proceeding. This is an inappropriate model for arbitration, which gives
primacy to the intentions of each party.20 Under the Claimant’s present model, a member
of the class is automatically involved in the proceedings. Each individual should consent
to participating before being added to the proceeding, therefore an opt-in model for
selecting participants is more appropriate. Assuming an opt-in model. The Claimant is
representing the 13 affected individuals who signed the agreement giving the Claimant
full authority.
19. If a class proceeding is held, contrary to the Respondent’s submissions, then the
following is the relevant class:
a. members who were employees of Mae Sot, that were injured in the incident
(‘injured members’); or
19 International Chamber of Commerce, Commission on Commercial Law & Practice, Policy Statement, Class Action Litigation, Doc. No 460/585, 1 (2005). 20 Kuck, LH and Litt GA, Chapter 30: International Class Arbitration in World Class Actions: A Practitioners Guide to Group and Representative Actions Around the Globe (Oxford University Press, 2012) 700, 730. 20
15
b. familial members of those who died (‘inheritors’); and
c. signed the agreement conferring full authority to the ICSTW.
III The Respondents are not liable to compensate for the Claimant’s loss
A. The Respondent did not negligently cause the Claimant’s loss
20. The Respondents cannot be held liable under section 420 of the Thailand Code as they
did not ‘negligently, unlawfully [injure] the life, body, health...of another person’. As the
Thailand Code does not discern the particular constituent elements that are required to
establish negligence, the interpretation of the term under section 59 of the Thailand Penal
Code should be considered persuasive in determining the standard of negligence which is
required. Pursuant to section 59 of the Thailand Penal Code, the commission of ‘an act by
negligence’ denotes the commission of an offence that while unintentional, was ‘without
exercising such care as might be expected from a person under such condition and
circumstances’ and while the perpetrator was able to exercise such care, failed to do so
sufficiently. In the present case, a ‘person under such condition and circumstances’ as the
Respondent, being a global retailer with no ownership or control over the unrelated
supplier company, would not be expected to exercise care over the factory workers of
Mae Sot. The Respondent owed no legal duty to the employees of Mae Sot and was not
in a position to exercise care over the employees, as the company is headquartered in Los
Angeles, California and had no direct control over the operational aspects of its supplier.
21. The Respondent’s negligence cannot appropriately be characterised as an omission as
they did not create a situation of danger and were not responsible for ensuring that Mae
Sot complies with the law.
16
22. Even if the Respondents was held to have conducted themselves ‘negligently’, in order
for tortious liability to arise under section 420 of the Thailand Code, a causal link must be
established between the tortfeasor’s conduct and the resulting loss. Although not explicit
in the statute, causation is a requirement which underpins the attribution of liability in all
European tort systems as well as the common law system.21 The onus is on the Claimant
to prove that the Respondents caused the fire and subsequent loss suffered by the
victims.22
23. It is appropriate to consider the principles used to establish a causal link in the civil law
jurisdiction of Germany as:
a. the Thailand Code does not define the requisite elements of causation; and
b. Thailand law has its roots in German law and the equivalent provision under
section 823(1) of the Civil Code (Germany) is worded very similarly to the
relevant Thailand Code provision.
24. In order to establish that the damage can be imputed to the defendant under German tort
law, the conditio-sine-qua-non principle applies. This is similar in principle to the ‘but
for’ test adopted in common law jurisdictions.23 In the present case, there is no causal
link between the Respondent’s conduct and the resulting loss because if the Respondent’s
conduct in its dealings with Mae Sot through the Product Order were “assumed away”,
the damage would still have occurred. Furthermore, Snowden’s visit to the factory on a
vacation several months prior to the fire had no bearing on the fire as the Respondent’s
purchasing department had no operational control over the maintenance or running of the
21 Strong v Woolworths (2012) 246 CLR 182, 190 [18] 22 Bar, Christian von, Chapter 4: Causation in Non-Contractual Liability Arising out of Damage Caused to Another (Berlin, Boston, Sellier de Gruyter, 2009) 747, 755 23 Strong v Woolworths (2012) 246 CLR 182, 190 [18]
17
factory. Conversely, it is accepted that the fire started from an overhead textile machine
and that factors such as non-functioning fire extinguishers and blocked stair ways caused
the fire to spread so quickly.24
25. Moreover, the ‘adequacy theory’ operates to reduce the scope of liability in German tort
law and should be applied. The Respondent’s conduct is not an adequate cause of damage
under this approach as could only bring about the relevant damage under ‘particularly
unique, improbable circumstances’.25 The Respondent’s conduct in contracting with Mae
Sot for the manufacture of shirts using a Purchase Order is not an adequate cause of
damage as it is not suitable to cause the damage which arose.
26. Moreover, even if there was a causal link, the independent and voluntary actions of Mae
Sot in negligently operating the factory constituted an intervening act which broke the
causal link between the Respondent’s actions and the loss of the factory workers.
B. The Respondent is not a joint actor
27. Pursuant to section 432 of the Civil and Commercial Code, ‘[i]f several persons by a joint
wrongful act cause damage to another person, they are jointly bound to make
compensation for the damage...Persons who instigate or assist in a wrongful act are
deemed to be joint actors.’ The characterisation of ‘joint actor’ under German tort law
should be persuasively applied as the term is not defined in the Thailand Code.
28. Under section 830 of the Civil Code (Germany), joint enterprise connotes a deliberate and
willed collaboration of the participants to achieve a certain result.26 The Respondent is
not a joint actor of the negligence because there was no deliberate and willed
24 Moot Problem 2014, pp. 2 & 4 25 Bar, above n 21, 755. 26 Bar, above n 21, 778.
18
collaboration of the Respondents and Mae Sot in the present case other than for the
contractual supply and purchase of clothing.
29. The Respondents did not deliberately instigate or assist in the commission of a negligent
act by Mae Sot. The Respondents did not have any role in the maintenance or condition
of the factory.
C. The Respondent is not liable under the law of California
30. Even if the Tribunal were to apply the law of California, the Respondent owed no duty of
care to the Claimant.27 The Respondent cannot be held liable to the Claimants, those
injured and the representatives of those deceased in the factory fire, as their link is too
removed from each other. A duty of care would be found if the Claimant was a
reasonably foreseeable victim to the Respondent. Here, the Respondent is a mere
purchaser from Mae Sot, and it cannot be expected that the Respondents should have
further investigated into Mae Sot’s practices when they were not requested to and were
not in a place to. The ‘general rule’ of negligence is so well established that it is rarely
modified, to such extent that case law has articulated that modification ‘is reserved for
very limited situations’.28 The fact that the assistant to the Vice President, Snowden took
a vacation in Thailand cannot form the basis for the imposition of a duty of care. There is
no suggestion that it was reasonably foreseeable to the Respondent that the Claimant
would suffer loss as a result of their independent retail business.
31. If, contrary to the submissions made at paragraph 29, the Tribunal was to find that The
Respondents owed the employees of Mae Sot a duty of care and this was breached, the
27 Rodriguez v Bethlehem Steel Corp., 525 P.2d 669, 680 (Cal. 1974). 27 28 Stagl v. Delta Airlines, Inc., 52 F.3d 463, 469 (2d Cir. 1995).
19
Respondent did not directly cause the damage. The appropriate interpretation is that the
fire in the factory was a direct cause of Mae Sot’s negligence in failing to maintain the
factory, and operating the factory in substandard conditions with ‘blocked and/or
cluttered aisles and stairways’.29
IV Limited damages for the Claimant if action is successful
32. If contrary to the submissions made at paragraph 19 to 30 above, the Tribunal finds that
the Respondent is liable for the Claimant’s loss, then it is conceded that the Respondent
must compensate for the loss it caused. However, the Respondent cannot be held to be
solely nor completely liable for the full scale of the Claimant’s loss.
33. Mae Sot ran the factory in a negligent manner and is liable to compensate the victims of
loss. Although Mae Sot does not have any assets, it would be inappropriate for the
Tribunal to extend sole liability to the Respondent when they had no direct control over
the operation of the factory and were an unrelated company.
34. Additionally and in the alternative, the Respondent is not the only customer of Mae Sot.
The factory involved in the incident was manufacturing goods for at least five other
companies. The Respondent can be liable, at most, for one sixth of the Complainant’s
loss.
35. It is conceded that under section 432 of the Thailand Code, all persons responsible for the
Claimant’s loss are jointly bound to make compensation, unless otherwise decided by the
tribunal. Under the circumstances, contrary to these submissions the Respondent is found
liable, a reasonable effort to ascertain the other wrongful parties should be undertaken
before a strict exercise of section 432 of the Thailand Code.
29 Moot Problem, p. 4.
20
36. As submitted in paragraph 5 above, the law of Thailand is the appropriate law to govern
the substance of the dispute. An award of damages for the Claimant must therefore be
decided according to Book 2, Title V, Chapter II of the Thailand Code.
37. The Claimant is representing a class of persons comprising two sub-classes of members.
a. Members who were employees of Mae Sot, that were injured in the incident
(‘injured members’), a reference to ‘injured members’ is a reference to the class
and not to individuals of that class;
b. and familial members of those who died (‘inheritors’), a reference to ‘inheritors’
is a reference to the class and not to individuals of that class.
38. The inheritors are not entitled to claim compensatory damages for non-pecuniary
damages under section 446 of the Thailand Code.
39. The inheritors are not entitled to claim compensatory damages for loss of company or
bereavement. Section 445 of the Thailand Code only permits the inheritors to claim
compensatory damages where the deceased owed a legally enforceable duty of service to
the inheritor.30
40. The injured members are not entitled to claim compensatory damages for each of the
different types of non-pecuniary loss as separate and additional claims. The injured
members are limited, in respect of non-pecuniary loss, to a single claim for compensatory
relief.31
30 Lovanovich I, ‘Personal Injury and Damages for Non-Pecuniary Loss in the Law of Torts and the Product Liability Law’ (2011) (unpublished thesis for Master of Laws prograFaculty of Law, Thammasat University), available online at: http://digi.library.tu.ac.th/thesis/la/1816/title-biography.pdf. 30 Ibid. 31 Atcharawongchai, W. ‘The Non-Pecuniary Damages in Wrongful Acts Causing Bodily Harm and Death: The Comparative Study on U.S. and Thailand Laws’ (2013) Volume 16(1). 31 Ibid.
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CONCLUSION AND PRAYER FOR RELIEF
Based on the submissions above, the Respondent respectfully requests that the tribunal declares
the following:
1. That the law of Thailand apply to the substance of the present dispute.
2. That under both the law of Thailand and the law of California:
a. the Claimant is entitled to bring a representative proceeding against the
Respondent.
b. the Respondent is not liable, in negligence, for the loss suffered by the Claimant
by any means, including, but not limited to:
i. Direct liability;
ii. Vicarious liability; and
iii. Joint employer liability
c. the Respondent is not liable to compensate the Claimant for any aspect of its loss
including, but not limited to:
i. pecuniary loss; and
ii. non-pecuniary loss
d. the Respondent is not liable to pay punitive and/or exemplary damages.
e. if the Respondent is found to be liable, contrary to these submissions, it is only
liable for a one sixth proportion of the Claimant’s loss.
22