Moot Court Tactics

7/23/2019 Moot Court Tactics

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IN THE COURT OF APPEAL

AT BRONTON

Charland Business Solutions Ltd --- Appellant

v

Rain Enterprises (Ostia) Ltd --- Respondent


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COURT OF APPEAL

AT BRONTON

1. Bronton, the capital of Honrovia, is one of the most important financial centers in the

orld and home to man! of the orld"s #illionaires, from Honrovia and elsehere$ %t has

an envia#le histor! and is toda! re&arded as an e'emplar of a functionin& democrac! and

fair overnment$ %n addition, its dispute resolution mechanism is hi&hl! respected for

e'pertise and incorrupti#ilit!, and the Commercial Court in Bronton has #een the forum of

choice for man! an international dispute that has had little to do ith Bronton$ A countr!

ith hich Honrovia has a close relationship is Ostia, a developed countr! ith a

traditionall! stron& industrial econom!$ Ostia"s industries, hoever, have suffered in recent

times, leadin& to the introduction of austerit! measures and cuts in pu#lic spendin&$

espite this, a fe se&ments of the econom! have flourished, and amon& these is

information technolo&!, in hich the Respondent in this appeal, Rain Enterprises (Ostia)

Ltd *+REOL is the mar.et leader$ REOL as founded in /012 as a financial services firm

and has since the late /334s diversified into information technolo&!$

2. Charland Business Solutions *+CBS is li.eise the mar.et leader in information

technolo&! in Charland, a developin& countr!$ CBS is led #! d!namic entrepreneurs hose

vision has contri#uted in no small measure to the &roth of Charland"s econom! and CBS"

international reputation$ A su#stantial component of CBS" #usiness consists of #usiness

solutions developed for multinational companies incorporated elsehere$ 5ith a

com#ination of top 6ualit! or. and comparativel! lo pricin&, CBS has .ept pace ith

forei&n competitors in this se&ment$

3. %n 7441, CBS as on the ver&e of developin& to path-#rea.in& softare pro&rammes,

.non internall! as 8R9-2$ :hese ere intended to o#viate the need for ;


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:his ould represent a si&nificant advance for its clients not onl! for reasons of cost

savin&, #ut also efficienc! of operations$ :he onl! real dra#ac. of the pro&ramme as

that it as considera#l! more comple' than an! other in the mar.et, #ut CBS intended to

offer as part of the pac.a&e a team of en&ineers to provide after-sales support for a period

of to !ears, renea#le for a further !ear at the option of the client$

4. Hoever, 8R9-2 could not #e developed entirel! in-house, for the e'pertise it re6uired

as #e!ond the capa#ilities of even some of CBS" finest en&ineers$ CBS realised that it

ould have to colla#orate ith a leadin& multi-national compan! in a developed countr!$ %t

chose Ostia, and also intended to also direct the #etter part of its mar.etin& activities to

companies in Ostia, some of hich ere alread! its customers, #ut also man! others hich

ere not$ :he o#vious choice as REOL$


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to the e'tent necessar! to deal ith softare as comple' as 8R9-2$ :o CBS" consternation,

a complaint to this effect as received from one of its #i&&est clients, althou&h there as

no further adverse conse6uence$ CBS also discovered that an REOL representative had not

visited clients ever! fortni&ht as mandated #! clause /1$ 5hen it raised these matters ith

REOL in Au&ust 74/4, ;r ramer as of the vie that the incidents had #een #lon out

of all proportion and indicated that he had in an! event terminated the services of the si'

emplo!ees in 6uestion$ ;r ramer also assured ;r ?ander that fortni&htl! visits ould #e

made to the e'tent practica#le and necessar!$ ;r ?ander made it clear that the resumption

of fortni&htl! visits as an ur&ent necessit! in vie of the adverse comments received

from some of its clients$

8. As thin&s turned out, 8R9-2 finall! fulfilled its promise in 74// and #e&an to ac6uire

immense popularit!, despite its hi&h price$ B! 24 Septem#er, it had &enerated a turnover of

@/$7 #illion in Ostia$ On receivin& a sum of @744 million from CBS, ;r ramer rote to

;r ?ander pointin& out that since the turnover &enerated had e'ceeded @/ #illion, REOL

as entitled to #e paid F4 G or @144 million$ ;r ?ander, ho as ta.en a#ac., sent a terse

repl! to the effect that ;r ramer had #een #adl! advised, for ?B? under the SSA

applied onl! to the difference #eteen the turnover and @/ #illion, and not to the entire

sum$ He also too. the opportunit! to raise ith REOL his dissatisfaction at havin& received

a further complaint on /1 Septem#er 6uestionin& the technical proficienc! of REOL

en&ineers, and at the fact that fortni&htl! visits had not #een made ithout the odd default

here and there$ ;r ramer reiterated his demand of @144 million, and as to technical

proficienc! and fortni&htl! visits, accepted that default had occurred #ut maintained that no

harm had #een caused to CBS" reputation for the default as not serious$ ;r ?ander had in

the meanhile instructed his associates to themselves full! investi&ate the /1 Septem#er

incident, in order to ascertain hether ;r ramer"s assessment as correct$ :he complaint

had come from Hu&hton !namics, a mid-sie compan! in Ostia that had first #ecome

CBS" client in 7447$ On investi&ation, it emer&ed that ;r ramer had chosen a relativel!

ine'perienced emplo!ee as team leader for the proDectI that this team had made a mista.e

durin& softare installation that resulted in a temporar! loss of data and productivit! for

Hu&hton"s s!stemsI and that hile the mista.e as #! no means elementar!, it is li.el! that

a more s.illed team ould not have so erred$ On 7 Octo#er, Hu&hton terminated its


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relationship ith CBS and REOL not onl! in relation to 8R9-2 #ut also for other proDects$

:he loss of Hu&hton"s small account caused #arel! a ripple in CBS for its portfolio had

&ron si&nificantl!$


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(Charland) Ltd, as it as a stran&er to the contract and had nothin& to do ith the dispute

#eteen the parties$ >nfortunatel!, ;r Hart ne&li&entl! assumed that he as to enter

appearance for both REOL and REOL (Charland) Ltd and did so$ On #ehalf of REOL, he

challen&ed the Durisdiction of the Hi&h Court on the #asis that the Honrovian courts had

e'clusive Durisdiction$ >nder Charland Civil ?rocedure, a defendant o#Dectin& to the

Durisdiction of the Charland court is re6uired to su#mit his defence on the merits

simultaneousl!, for the court decides #oth issues in a sin&le Dud&ment$ As a result, ;r Hart

su#mitted a defence statement on the merits, pleadin& that REOL as entitled to receive

@144 million and that the purported termination of the SSA #! CBS as holl! ille&al$

5hen REOL discovered ;r Hart"s serious error, it promptl! terminated the services of his

firm and instructed another firm of solicitors$ %t as advised #! its ne solicitor that it as

not open to it under Charland rules of civil procedure to ithdra its appearance, and that

it could raise the point of ;r Hart"s lac. of authorit! in a revie application onl! after the

Hi&h Court &ave Dud&ment$

12. :he Hi&h Court, after hearin& the parties, dismissed the challen&e to its Durisdiction on the

&rounds that under the Charland la of contract, hich the Hi&h Court as re6uired under

Charland rules of private international la to appl!, notithstandin& the desi&nation of

Honrovian la in the SSAJ !" an e'clusive Durisdiction clause ma! not #e invo.ed hen

there is aprima facie case that the defendant has +willfully committed a #reach of contract

and !!" in an! event, the conferral of e'clusive Durisdiction on a forei&n court in a case

involvin& a Charland part! is opposed to pu#lic polic! and void$ :he Hi&h Court also

found for CBS on the merits of the case, and &ranted the relief sou&ht in para&raph /4

a#ove$ %n addition, the Hi&h Court ordered REOL to pa! a sum of @732 million as

+exemplary dama&es, under section 1 of the Charland omestic Business ?rotection Act,

744, hich provides that a court ma! order a forei&n corporation a&ainst hich Dud&ment

has #een entered to pa! a +such multiple as the Court deems fit of the avera&e annual sum

it had received under the contract hich it #reached$ :he Hi&h Court, hoever, refused to

&rant a permanent inDunction restrainin& REOL from institutin& proceedin&s in Honrovia$

13. REOL considered the option of not challen&in& this Dud&ment, for it had no propert! in

Charland a&ainst hich it could #e e'ecuted, #ut feared that it ould #e e'ecuted should it


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ever #e&in #usiness operations directl! in Charland$ Accordin&l!, REOL filed an

application for revie #efore the Hi&h Court on the &rounds that the solicitor ho entered

appearance on its #ehalf had not #een authorised to do so and that the Hi&h Court in an!

event manifestl! lac.ed Durisdiction$ REOL also filed an additional ritten su#mission on

the merits +without prejudice to these contentions$ :he revie application as referred to

a three-Dud&e panel of the Court hich, after hearin& the parties, dismissed the application

and found that REOL"s su#mission as effective under Charland"s la of a&enc!$


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!!!. %n the further alternative, CBS is entitled to rectification of clause 0$7I

4. CBS as entitled to terminate the SSA for #reach of clause /1I

5. CBS as entitled to terminate the SSA for #reach of clause 72$

15. REOL resisted this application and the CBS suit on the folloin& &roundsJ

1. CBS" separate suit must #e dismissed #ecause Honrovian courts cannot enforce

penal decreesI

2. On REOL"s suit, the Dud&ment of the Hi&h Court cannot raise an! estoppel #ecause

it cannot #e reco&nised or enforced in Honrovia in the first placeJ

!. Section 7(/)(a) of the Honrovia Civil urisdiction Act, /33 for#ids

reco&nitionI section 7(/)(#) does not appl! in vie of section 7FI even if it

does, the court is not o#li&ed to reco&nise and should not do so in this caseI

!!. %n an! event the Dud&ment cannot #e reco&nised or enforced under the

common la rules for the reco&nition and enforcement of forei&n Dud&mentsI

3. :he email of /3 Au&ust 744 is inadmissi#leI even if it is admissi#le, the correct

interpretation is that @144 million is pa!a#leI CBS is not entitled to rectification$

4. CBS as not entitled to terminate - the proper remed! for the #reach of clauses /1

and 72 is dama&es$

16.%n the action #efore the Commercial Court, ;r ramer testified that he #elieved hen he

received the email of /3 Au&ust 744 that the a&reement as that CBS ould pa! F4 G of

the entire sum, and not merel! F4 G of the difference$


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17.:he Commercial Court heard #oth actions to&ether and held thatJ !" it as not, in vie of

the HCA, o#li&ed to reco&nise the Dud&ment of the Hi&h Court and declines to do soI no

6uestion of issue estoppel arises !!" in an! event, the aard for @732 million cannot #e

enforcedI !!!" the email of /3 Au&ust 744 is inadmissi#le and REOL is correct as a matter

of interpretation of clause 0$2I hoever, CBS is entitled to rectification and ;r ramer"s

su#Dective #elief descri#ed in para&raph /1, thou&h honestl! held, is irrelevant for this

purposeI !$" REOL"s #reach of clause /1 and clause 72 each entitled CBS to terminate the

SSA$ :he Dud&e &ave REOL leave to appeal and cross-appeal to the Court of Appeal on

all issues$ :he case is no posted for ar&uments$

18. %t is stipulated that Honrovia is a common la Durisdiction, and that the decisions of the

En&lish courts are hi&hl! persuasive$ :he las of Ostia and Charland are not relevant

e'cept to the e'tent stated a#ove$ nion and nothin& in European la is relevant to these proceedin&s$


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ANNE%URE I

H&nr&$!' C!$!( )ur!*+!,-!&n A,- 1979 ex-r',-*"

24 F&re!n /u+0en-* !$en !n r&,ee+!n* !n*-!-u-e+ !n re', & ' +!*u-e *e--(e0en-

'ree0en-

1" Su#Dect to the provisions of this section, a forei&n Dud&ment shall not #e reco&nised or

enforced in Honrovia ifK

(a) the #rin&in& of those proceedin&s in that court as contrar! to an a&reement under hich the

dispute in 6uestion as to #e settled otherise than #! proceedin&s in that courtI and

(#) those proceedin&s ere not #rou&ht in that court #!, or ith the a&reement of, the person

a&ainst hom the Dud&ment as &ivenI and

(c) that person did not su#mit to the Durisdiction of that court$

2" Su#section (/) does not appl! here the a&reement referred to in para&raph (a) of that

su#section is ille&al, void or unenforcea#le or incapa#le of #ein& performed for reasons not

attri#uta#le to the fault of the part! #rin&in& the proceedin&s in hich the Dud&ment as &iven

3" %n determinin& hether a forei&n Dud&ment should #e reco&nised or enforced in Honrovia, the

court shall not #e #ound #! an! decision or findin& of the forei&n court relatin& to an! of the

matters mentioned in su#section (/) or (7)$

25 Cer-'!n ',-* n&- -& '0&un- -& *u0!**!&n -& /ur!*+!,-!&n & &re!n ,&ur-

1" or the purposes of determinin& hether a forei&n Dud&ment should #e reco&nised or

enforced in Honrovia, the person a&ainst hom the Dud&ment as &iven shall not #e re&arded as

havin& su#mitted to the Durisdiction of that court #! reason onl! of the fact that he appeared

(conditionall! or otherise) in the proceedin&s for all or an! one or more of the folloin&

purposes, namel!K

(a) to contest the Durisdiction of the courtI

(#) to as. the court to dismiss or sta! the proceedin&s on the &round that the dispute in

6uestion should #e su#mitted to ar#itration or to the determination of the courts of another

countr!$


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ANNE%URE II

Su#DectJ 8R9-2

ateJ Sun, /3 Au& 744 /1J42J44

romJ a#elMc#s$com

:oJ l.Mreol$co$os

ear Larr!

;! compan! is prepared to offer the 8R9-2 contract to !ou on terms that % hope !ou ill a&ree

are considera#l! more &enerous than the industr! avera&e$ 5e are illin& to ma.e an annual

pa!ment to !ou of /4 G of the revenue &enerated #! the sale of 8R9-2 in Ostia, and, should the

copies !ou mana&e to sell &enerate revenue in e'cess of our present estimates, F4 G of the

difference$ %t &oes ithout sa!in& that e ill retain complete onership ri&hts over 8R9-2,

includin& an! part of the softare hich !ou develop$

% loo. forard to hearin& from !ou$

Nours

A#el


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ANNE%URE III

&-'re 'r!n 'n+ e$e(&0en- Aree0en- ex-r',-*"

8 C&n*!+er'-!&nJ %n consideration of REOL"s o#li&ations under this A&reement, CBS a&rees to

pa! REOL +Guaranteed Minimum Payment *+;? and +Performance Bonus Payment

*+?B?$

8.1 ;? means an amount e6uivalent to /4 G (ten percent) of the total turnover of

8R9-2 in Ostia

8.2 ?B?, here such turnover e'ceeds @/ #illion, means an amount e6uivalent to F4 G

(fift! percent) of such sum$

16 're-!n 'n+ Pr&0&-!&n : REOLJ %t shall #e a condition of this a&reement that REOL

shall send a representative of a desi&nation not loer than Chief En&ineer (:echnical) atleast

once ever! fortni&ht to visit and interact ith the ei&hteen companies listed in Anne'ure and

such other companies as CBS ma! from time to time desi&nate, for the purpose of solicitin&

future orders, providin& after-sales support here applica#le, impartin& trainin& to the client"s

emplo!ees and such other purposes as CBS ma! specif!$

23 Per&r0'n,e O(!'-!&n* & REOLJ %n addition and ithout preDudice to an! specific dut!

on REOL that ma! arise #! virtue of other provisions of this A&reement, REOL underta.es to

dischar&e its o#li&ations satisfactoril!$

41 !*u-e Re*&(u-!&nJ An! dispute arisin& out of, in connection ith, or in relation to this

A&reement shall #e su#Dect to the e'clusive Durisdiction of the Honrovian courts$ Both parties

here#! aive an! o#Dection that the Honrovian court isforum non coneniens$

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