TWENTY FIRST ANNUAL
WILLEM C. VIS INTERNATIONAL COMMERCIAL ARBITRATION MOOT
VIENNA, APRIL 11TH – 17TH 2014
MEMORANDUM FOR CLAIMANT
UNIVERSITY OF GENEVA
On behalf of:
Innovative Cancer Treatment Ltd.
CLAIMANT
46 Commerce Road
Capital City, Mediterraneo
Against:
Hope Hospital
RESPONDENT
1-3 Hospital Road
Oceanside, Equatoriana
ADILA ABDIESKI • ROXANE ALLOT • MELANIA ARGINTEANU
LEONARDO JELMINI • ASTRID KELLER • NICOLA KLEINJOHANN
Memorandum for CLAIMANT Table of Contents
II
TABLE OF CONTENTS
TABLE OF CONTENTS .......................................................................................................... II
STATEMENT OF FACTS ......................................................................................................... 1
INTRODUCTION .................................................................................................................. 3
ISSUE I: THE TRIBUNAL HAS JURISDICTION TO DEAL WITH THE PAYMENT CLAIMS
RAISED BY CLAIMANT ........................................................................................................ 4
I. THE TRIBUNAL HAS JURISDICTION TO HEAR THE CLAIM ARISING UNDER THE FSA ... 4
A. The Parties Agreed on Arbitration ....................................................................... 4
B. The Appeal and Review Mechanism under Art. 23(4) FSA Does Not Invalidate the Arbitration
Agreement .................................................................................................. 5
1. The AR mechanism is compatible with the Model Law ........................................... 6
a. “Obviously wrong decision in law” has to be interpreted as shorthand for “breach of
public policy” [Art. 34(b)(ii) Model Law] ...................................................... 7
b. “Obviously wrong decision in fact” has to be interpreted as shorthand for “the party was
unable to present his case”[Art. 34(2)(a)(ii) Model Law] ..................................... 7
2. Alternatively, an overly broad AR mechanism would neither invalidate the Parties’
common intent to arbitrate nor the arbitration clause itself ...................................... 8
C. The Unilateral Right of One Party to File Suit in Front of a National Court Does Not Invalidate
the Arbitration Clause ..................................................................................... 9
II. THIS TRIBUNAL HAS JURISDICTION TO HEAR THE CLAIM ARISING UNDER THE SLA .. 9
A. The Arbitration Agreement Contained in the FSA Covers the SLA Claim ........................ 9
1. The claim arising out of the SLA falls within the scope of the arbitration clause in the FSA . 9
2. The dispute resolution clause in the SLA does not replace the arbitration agreement
contained in the FSA .................................................................................. 11
B. Alternatively, the Tribunal Has Jurisdiction According to the Arbitration Agreement
Contained in the ST 2011 ................................................................................ 11
1. The arbitration clause contained in the ST 2011 has been validly included in the SLA ...... 12
2. Art. 23(2) SLA does not replace the arbitration agreement contained in the ST 2011 ...... 13
Memorandum for CLAIMANT Table of Contents
III
ISSUE II: THE TRIBUNAL SHOULD HEAR BOTH CLAIMS IN A SINGLE ARBITRATION . 14
I. THE TRIBUNAL IS ENTITLED TO JOIN THE CLAIMS GOVERNED BY THE ARBITRATION
CLAUSE CONTAINED IN THE FRAMEWORK AGREEMENT .................................... 14
A. Art. 10(1), § 1 CEPANI Rules Enables the Tribunal to Join the FSA and SLA Claims ......... 14
B. The Scope of the Parties’ Arbitration Agreement Allows a Single Proceeding ................... 15
C. Different Laws Applicable to the Contracts Do Not Fetter a Single Arbitration ................. 16
D. The Composition of the Tribunal Complies with the Will of the Parties ......................... 16
E. In Addition, the Consideration of Other Relevant Circumstances for Good Administration of
Justice Should Lead the Tribunal to Join the Claims ................................................. 17
1. A single arbitration proceeding avoids conflicting awards ....................................... 17
2. A single arbitration promotes efficiency ............................................................ 18
II. ALTERNATIVELY, THE TRIBUNAL IS ENTITLED TO JOIN THE CLAIMS PURSUANT TO
DIFFERENT ARBITRATION AGREEMENTS ........................................................... 19
A. The Arbitration Agreements Are Compatible ........................................................ 19
B. The Matters Under the FSA and SLA Are Related ................................................... 20
ISSUE III: THE CISG GOVERNS THE CLAIM ARISING UNDER THE SALES AND LICENSING
AGREEMENT ....................................................................................................................... 20
I. THE SLA CONSTITUTES AN INTERNATIONAL SALE OF GOODS CONTRACT ............. 20
A. The SLA Constitutes an International Sale Contract ................................................. 21
1. The Parties wanted and concluded a sale contract ................................................ 21
2. The right to use the software under the SLA does not preclude its qualification as a sale
contract ................................................................................................. 21
3. The substantial part of the materials necessary to produce the software was provided by
CLAIMANT [Art. 3(1) CISG] ............................................................................ 22
a. RESPONDENT’s contributions to the development of the technology are not "materials
necessary for production" ........................................................................ 22
b. In any event, the materials provided by RESPONDENT did not represent a substantial part
of the materials necessary for the production of the software .............................. 23
4. The preponderant part of CLAIMANT’s obligations consisted of the supply of goods [Art. 3(2)
CISG] ..................................................................................................... 24
Memorandum for CLAIMANT Table of Contents
IV
a. As part of the production of the software, the testing and development are not services
in the sense of Art. 3(2) CISG ................................................................... 24
b. Services consisting of training and installation only represent 20.53% of the purchase
value ................................................................................................. 24
B. The SLA Is a Contract of The Sale of Goods .......................................................... 25
1. The equipment provided is a good in the sense of the CISG .................................... 25
2. The software provided is a good in the sense of the CISG ....................................... 25
a. Software is a tangible, movable good ........................................................... 25
b. In any event, the CISG allows for an extensive interpretation of the term “goods” ..... 26
II. THE ST 2011 HAVE BEEN VALIDLY INCORPORATED IN THE SLA ............................. 26
A. The ST 2011 Constituted Part of CLAIMANT’s Offer ................................................ 27
B. RESPONDENT’s Behaviour Entailed Its Full Acceptance of the ST 2011 ........................... 27
1. RESPONDENT signed the SLA without lodging any objections ................................... 27
2. RESPONDENT should have been aware about the content of the ST 2011 ..................... 28
a. CLAIMANT offered a reasonable opportunity to take notice of the ST 2011 .............. 28
b. In addition, RESPONDENT disposed of appropriate means that it should have used to
understand the ST 2011 .......................................................................... 29
i. RESPONDENT could have consulted its Mediterranean speaking employee ............ 29
ii. RESPONDENT could have used other means of translation ............................... 30
iii. RESPONDENT could have contacted CLAIMANT for further inquiries .................... 30
3. Alternatively, RESPONDENT’s knowledge about the substance of the ST 2011 can be
reasonably presumed [Art. 8 CISG] .................................................................. 31
C. In Any Event, Art. 9 CISG Leads to the Valid Incorporation of the ST 2011 .................... 31
1. The Parties acted on the practice developed between themselves [Art. 9(1) CISG] ........... 31
2. The interpretation of international commercial usages leads to the incorporation of ST 2011
into the SLA [Art. 9(2) CISG] ......................................................................... 32
III. SEC. 22 ST 2011 CONTAINS A CHOICE OF LAW CLAUSE IN FAVOUR OF THE CISG ....................... 33
A. The SLA Is Subjected to the Law of Mediterraneo Including the CISG ........................... 33
B. Reference to the “Law of Mediterraneo” Does Not Lead to an Opting-Out of the CISG ...... 33
REQUEST FOR RELIEF ........................................................................................................ 35
Memorandum for CLAIMANT Table of Contents
V
CERTIFICATE ...................................................................................................................... VI
TABLE OF AUTHORITIES ................................................................................................... VI
TABLE OF ARBITRAL AWARDS .................................................................................... XXIII
TABLE OF COURT DECISIONS ...................................................................................... XXVI
TABLE OF LEGAL SOURCES ........................................................................................ XXXVI
TABLE OF ABBREVIATIONS ...................................................................................... XXXVII
Memorandum for CLAIMANT Statement of Facts
1
STATEMENT OF FACTS
CLAIMANT Innovative Cancer Treatment Ltd. [hereafter CLAIMANT], seated in
Capital City, Mediterraneo, is one of the leading manufacturers of particle
therapy equipment for cancer treatment.
RESPONDENT
Hope Hospital [hereafter RESPONDENT], seated in Oceanside, Equatoriana,
is a public university teaching hospital and the national centre for cancer
research.
11 January 2007
RESPONDENT approaches CLAIMANT to purchase a full proton therapy facility
to optimise its cancer treatment options.
4 November 2007 After intensive negotiations during several meetings, the Parties agree on a
dispute resolution clause including an arbitration clause.
13 January 2008 The Parties sign the Framework and Sales Agreement [hereafter FSA].
RESPONDENT purchases a proton therapy facility consisting of one proton
accelerator and two treatment rooms using a passive-beam scattering
technique for a purchase price of USD 50 Mio.
The negotiated arbitration clause contained in the FSA provides for a multi-
tiered proceeding and an appeal and review mechanism [hereafter AR
mechanism]. The FSA also contains an alternative jurisdiction provision and
incorporates by reference CLAIMANT’s Standard Terms and Conditions for
Sale 2000 [hereafter ST 2000].
15 April 2010 The proton therapy facility purchased under the FSA is completed.
May 2011 The Parties reopen negotiations for the purchase of a third treatment room
using a new active scanning technology. RESPONDENT was already interested
in buying it in 2008. Due to some budget constraints, RESPONDENT was
unable to buy the new technology at that time.
One of RESPONDENT’S employees, a young Mediterranean speaking doctor,
takes part in the negotiations between the Parties. He communicates in
Mediterranean with CLAIMANT’s technicians.
2 June 2011 During the last meeting of the negotiations, CLAIMANT informs RESPONDENT
about the overhaul of its ST 2000.
5 July 2011 By an official letter enclosing the draft of the negotiated contract, CLAIMANT
Memorandum for CLAIMANT Statement of Facts
2
reminds RESPONDENT about the change of its ST 2000. It states that the new
Standard Terms and Conditions for Sale 2011 [hereafter ST 2011] will apply
to all contracts concluded from the beginning of July 2011.
The footer of the letter contains a website link leading to the ST 2011 and an
e-mail address in case of questions. The website provides a phone number for
the same purpose. Sec. 22 ST 2011 contains a choice of law clause in favour of
the “law of Mediterraneo”.
20 July 2011 The Parties sign the Sales and Licensing Agreement [hereafter SLA].
RESPONDENT purchases a third treatment room using an active scanning
technology for the existing proton therapy facility.
The purchase consists of the equipment of the treatment room and its
installation, the software necessary to use the technology and training of
RESPONDENT’s personnel. Despite the purchase market value of USD 9.5
Mio, CLAIMANT grants a considerable discount to RESPONDENT and fixes the
final price at USD 3.5 Mio. In exchange, RESPONDENT supplies medical data
and supports the testing of the software, which contributes to its
development.
13 January 2012 The third treatment room becomes available.
15 August 2012 RESPONDENT notifies CLAIMANT of its decision to withhold payment of USD
10 Mio under the FSA and USD 1.5 Mio under the SLA.
6 June 2013 CLAIMANT files a Request for Arbitration [hereafter R.A.] before the Belgian
Centre for Arbitration and Mediation covering the two outstanding payments
under both contracts.
5 July 2013 RESPONDENT files an Answer to Request for Arbitration [hereafter A.R.A.]
contesting the jurisdiction of the Arbitral Tribunal and arguing the lack of
merits.
Memorandum for CLAIMANT Introduction
3
INTRODUCTION
People find strength in unity. Hand in hand, the Parties started their cooperation with the vision of
optimising and developing treatment options for curing cancer. In order to achieve this goal, they
concluded two contracts focusing on the latest, cutting-edge cancer treatment technology: the proton
therapy. The cooperation went perfectly well for several years until RESPONDENT withheld the outstanding
payments under both contracts. Regarding the first contract, RESPONDENT’s only reason to do so was that
the facility did not run on zero cost and was thus not profitable for RESPONDENT. Regarding the technology
purchased under the SLA, RESPONDENT alleged that the software for the new technology was working
inaccurately. This came as a surprise for CLAIMANT, since other buyers of the very same technology
supplied by CLAIMANT were highly pleased therewith.
RESPONDENT left CLAIMANT no choice but to resort to arbitration. Although the Parties agreed on
an arbitration clause in a framework agreement, governing the claims under both contracts, the
proceedings are stuck because RESPONDENT does not recognise the jurisdiction of the Tribunal and thus
slows down the proceedings (Issue I).
CLAIMANT offers to join the claims in a single proceeding to save efforts, time and money. The
Parties could invest these savings in the fight against cancer. But RESPONDENT, once again, challenges this
quicker way of arbitration (Issue II).
Finally, by signing their second contract, the Parties agreed on the application of CLAIMANT’s ST
2011, which contain a choice of law clause leading to the application of the CISG. The SLA is an
international contract of sale of goods. As a practical and well-known international instrument, the CISG
was the perfect match for the Parties at the time of the conclusion of the SLA. Nevertheless, RESPONDENT
erroneously denies the valid incorporation of the ST 2011 and tries to challenge the application of the
CISG (Issue III).
1
2
3
4
Memorandum for CLAIMANT Arguments
4
ISSUE I: THE TRIBUNAL HAS JURISDICTION TO DEAL WITH THE PAYMENT CLAIMS
RAISED BY CLAIMANT
The Tribunal is respectfully requested to find that it has jurisdiction under the arbitration clause contained
in the FSA [Cl. Ex. 2]. The lex arbitri governing the arbitration is the UNCITRAL Model Law [hereafter
Model Law], adopted by Danubia, seat of the Tribunal [R.A., § 20; PO1, § 3; cf. Born, Law and Practice,
p. 105]. According to the Kompetenz-Kompetenz principle, this Tribunal has the authority to decide on its
own jurisdiction [Born, Commercial Arbitration, p. 855-856; Redfern et al., International Arbitration, § 5.99].
Such principle is codified in Art. 16(1) Model Law as well as in Art. 12(1) CEPANI Rules, the applicable
procedural rules [Art. 23(3) FSA, Cl. Ex. 2; R.A., § 20].
It will be demonstrated that the Tribunal has jurisdiction regarding both the claim arising under the
FSA (I.) and the claim arising under the SLA (II.).
I. THE TRIBUNAL HAS JURISDICTION TO HEAR THE CLAIM ARISING UNDER THE
FSA
An arbitral tribunal bases its jurisdiction only on a valid arbitration agreement [Craig/Park/Paulsson, § 5.01;
Kaufmann-Kohler, § 189a; Redfern et al., International Arbitration, § 5.85-5.87; Redfern/Hunter, Law and
Practice, § 1-13].
In RESPONDENT’s view, it is not clear what type of dispute resolution the Parties have agreed upon.
RESPONDENT particularly maintains that the appeal and review mechanism on the one side, and the forum
selection clause, on the other, invalidate the arbitration agreement [A.R.A., § 4-9].
It will be shown that, contrary to RESPONDENT’s allegations, both Parties validly consented to
arbitrate (A.). Neither the right to challenge the award as framed by the Parties in the arbitration clause
(B.) nor the unilateral right granted to one Party to sue the other before national courts (C.) has any
impact on the validity of the arbitration agreement.
A. THE PARTIES AGREED ON ARBITRATION
It is undisputed fact that the Parties signed a contract containing an arbitration clause [Art. 23 FSA, Cl. Ex. 2]
providing that “all disputes arising out of or in connection with this Agreement (1) […] shall become
subject to arbitration. It [the arbitration] shall take place in Vindobona, Danubia (3)”. Such clause satisfies
all the requisite conditions to constitute a valid arbitration agreement. Indeed, the parties and the scope of
the arbitration are determined, the intent to arbitrate is manifestly expressed and the seat is chosen [Born,
Law and Practice, p. 35; Kaufmann-Kohler, § 166]. By signing a contract containing such a clause, the Parties
must to be considered to have reached an agreement over arbitration as their relevant dispute-settling
mechanism [Preliminary Award in ICC Case No. 2321/1974; Born, Commercial Arbitration, p. 662].
5
6
7
8
9
10
Memorandum for CLAIMANT Arguments
5
The wording of Art. 23 FSA highlights that the Parties’ intention was to submit any dispute arising
out of their contractual relationship to arbitration. In this respect, courts have repeatedly stated that
whenever the interpretation of arbitration agreements and of the parties’ intention give rise to doubts, an
interpretation in favour of arbitration is to be preferred [Mitsubishi Motors v. Soler Chrysler-Plymouth; Moses H.
Cone Memorial Hospital v. Mercury; cf. Born, Commentary, p. 433]. In fact, arbitration is a system especially
known for its adaptability to the particularities of the business world [Kaufmann-Kohler, § 12].
Additionally, a widely accepted principle of contract law posits that guidance as to the actual
intention and expectation of one party may be inferred from its post-contractual behaviour, including
subsequent statements [Hanotiau, Consent to Arbitration, p. 546; Schwenzer/Hachem/Kee, § 26.38-26.43]. In
this respect, RESPONDENT’s subsequent conduct confirms that it intended to arbitrate. In fact,
RESPONDENT went through negotiation and mediation, the pre-steps leading to arbitration provided for in
the arbitration agreement [PO2, § 11]. RESPONDENT’s behaviour demonstrates its awareness of the
arbitration agreement’s applicability to the present dispute and emphasises its will to submit any arising
dispute to arbitration. Much to the contrary, RESPONDENT never showed any interest in a judicial litigation
mechanism.
Moreover, RESPONDENT itself now states that “one of the reasons why it agreed to arbitration […]
was the possibility of selecting its own arbitrator on the basis of the expertise required for a case” [A.R.A.,
§ 14]. This language underlines that RESPONDENT had carefully planned and deliberately selected
arbitration to enjoy the benefits it would offer. Besides, the Parties negotiated and agreed on the
arbitration clause and the AR mechanism together [Cl. Ex. 3; A.R.A., § 5; PO2, § 9]. As a consequence,
RESPONDENT cannot invoke the fact that it never consented to arbitration.
In conclusion, arbitration undoubtedly appears to have been RESPONDENT’s primary choice for the
settlement of any dispute.
B. THE APPEAL AND REVIEW MECHANISM UNDER ART. 23(4) FSA DOES NOT INVALIDATE THE
ARBITRATION AGREEMENT
Art. 23(4) FSA stipulates that “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”.
RESPONDENT is of the view that, due to the breadth of the AR mechanism, such section is
incompatible with the principle of arbitration and casts doubt on the very intention of the Parties to
arbitrate. It also considers that the invalidity of the AR mechanism would render the whole arbitration
agreement invalid [A.R.A., § 7-8].
11
12
13
14
15
Memorandum for CLAIMANT Arguments
6
This Tribunal should dismiss RESPONDENT’s contention. It will be demonstrated that the AR
mechanism is of a limited scope and thus fully compatible with the Model Law (1.). In any event, should
the Tribunal consider the AR mechanism overly broad, this conclusion would neither affect the Parties’
common intent to arbitrate nor the arbitration clause itself (2.).
1. The AR mechanism is compatible with the Model Law
The right to challenge an award on limited grounds in front of state courts is accepted worldwide [Lesotho
Highlands Development Authority v. Impregilo; Born, Commercial Arbitration, p. 2552; Liebscher, p. 7-12; Park,
p. 595; Redfern et al., International Arbitration, § 10.28-10.30]. In each case, the grounds for challenging the
award are encoded in the lex arbitri of the seat of the tribunal [cf. Kaufmann-Kohler, § 796-847; Art. 1704,
§ 2(a) BJC (BE); Art. 192 LTF (CH); Art. 1504 CCP (FR); Art. 67 EAA (UK)]. Accordingly, whether an AR
mechanism is enforceable has to be decided in the light of the applicable lex arbitri. The majority opinion
considers that the parties cannot extend the grounds for appeal and review provided by the lex arbitri, as
these grounds represent an absolute prerogative of the state [Hall Street Associates v. Mattel; LaPine Technology
v. Kyocera; Prime Therapeutics v. Omnicare; Hanotiau/Caprasse in Gaillard, p. 85].
The lex arbitri at hand, i.e. the UNCITRAL Model Law, provides for grounds to challenge the award
as failure to comply with due process [Art. 34(2)(a)(ii) Model Law] or a breach of public policy
[Art. 34(2)(b)(ii) Model Law]. These provisions are mandatory [UNCITRAL Digest of Case Law, Art. 34, p. 142].
As a consequence, the parties cannot envisage a broader review of their award, notably regarding the facts
or the merits. Art. 23(4) FSA provides the right to challenge the award in case of “obviously wrong
decisions in fact or in law”.
It is widely accepted that the arbitration clause should be interpreted in a way that gives sense to it
rather than leaving it meaningless [ICC Case No. 1434/1975; Fouchard/Gaillard/Goldman, § 478]. Therefore,
the Tribunal should go beyond the wording of Art. 23(4) FSA and foremost look for the Parties’ true
intention, which prevails over their declared intention [CEPANI Award No. 2112; ICSID Award, 25 Sept 1983;
Fouchard/Gaillard/Goldman, § 477; Steingruber, p. 120]. In point of fact, Art. 23(4) FSA was drafted by non-
lawyers [PO2, § 10], who presumably were not familiar with the wording of the Model Law. Indeed, as
CLAIMANT’s ST 2000 did not allow any appeal against an award [Sec. 21 ST 2000, Cl. Ex. 2], it is a
somewhat rash assumption that CLAIMANT had a particular experience in drafting one.
As a matter of fact, RESPONDENT insisted on being offered the possibility to appeal the award
[A.R.A., § 5; Cl. Ex. 3; PO2, § 9]. RESPONDENT’s presumable intention was to comply with a national
directive, providing that “government entities must not forego the right of review of manifestly erroneous
decision” [Re. Ex. 1]. Accordingly, CLAIMANT complied with this wish and inserted an AR mechanism in
16
17
18
19
20
Memorandum for CLAIMANT Arguments
7
case of “obviously wrong decisions” [Cl. Ex. 3]. Any reasonable third person could only understand these terms
as limiting the challenge to restrictive grounds, almost confined to the arbitrary and not as a
comprehensive review [cf. ICSID Award, 25 Sept 1983]. Due to its limited character, the reference to an
“obviously wrong decision in fact or in law” is not to be regarded as an additional standard of review but
only as referring to some of the grounds mentioned by the Model Law.
Accordingly, it should be presumed that the Parties’ intention was to establish a valid appeal
mechanism, compatible with the Model Law. It will be shown that, even if the wording used by the Parties
does not exactly correspond to the Model Law, Art. 23(4) FSA conforms to the latter.
a. “Obviously wrong decision in law” has to be interpreted as shorthand for “breach of public
policy” [Art. 34(b)(ii) Model Law]
According to Art. 34(b)(ii) Model Law, an award can be challenged in case of violation of public policy. A
manifest disregard of the mandatory law of the state of appeal could constitute a violation of public policy
[BGE, 25 July 1990; Desputeaux v. Editions Chouette; Born, Commercial Arbitration, p. 2623; Redfern et al.,
International Arbitration, § 10.82]. This ground for appeal is designed to refuse recognition of “arbitrary or
patently unreasonable decisions” [Uniprex v. Grupo Radio Blanca]. In Oil & Natural Gas v. SAW Pipes, the Indian
Supreme Court held that an arbitral award which violates any substantive law governing the parties is
“patently illegal” and contrary to “public policy”. Accordingly, “obviously wrong decision in law” should be
understood as substantially synonymous with the language used in Art. 34(b)(ii) Model Law which
provides for a ground for appeal when “the award violates public policy”.
b. “Obviously wrong decision in fact” has to be interpreted as shorthand for “the party was
unable to present his case”[Art. 34(2)(a)(ii) Model Law]
According to Art. 34(2)(a)(ii) Model Law, an award can be challenged if a party was denied the
opportunity to present its case. This ground is also commonly referred to as “violation of the right to be
heard” and encompasses the duty of the adjudicators to ensure equal treatment [Born, Commercial Arbitration,
p. 2631; Fouchard/Gaillard/Goldman, § 1654; Redfern et al., International Arbitration, § 10.47]. Courts have
stated that the right to be heard entitles the parties to express their views both in relation to facts and law
and forbids the tribunal to base its decision on materials unknown to the parties [BGE, 27 Jan 2013; OLG
München, 14 Mar 2011; Liebscher, p. 244-272]. Decisions based on arbitrary findings of evidence without
taking into account a party’s submission are held to violate the right to be heard and, as a consequence, are
subject to review [OLG München, 29 Oct 2009; OLG Bayern, 15 Dec 1999]. In the case at hand, “obviously
wrong decision in fact” could reasonably mean the wrong establishment of facts in violation of one party’s
right to be heard, which is synonym to “the party […] was […] unable to present his case” in
Art. 34(2)(a)(ii) Model Law.
21
22
23
Memorandum for CLAIMANT Arguments
8
In conclusion, following the Parties’ intention, Art. 23(4) FSA is of a limited scope and thus entirely
compatible with the Model Law. As a consequence, it does not affect the validity of the arbitration
agreement.
2. Alternatively, an overly broad AR mechanism would neither invalidate the Parties’
common intent to arbitrate nor the arbitration clause itself
In any event, the Tribunal should consider the Parties’ original intention to submit their potential disputes
to arbitration, regardless of the extent of the AR mechanism’s scope. As demonstrated above, the Parties’
intention to arbitrate was strongly expressed from the very beginning [cf. supra § 10-14]. This intention is
not invalidated by the mere fact that the scope of a hypothetical appeal would differ from the one provided
by them.
When determining whether an extensive AR mechanism results in invalidating the entire arbitration
agreement, the parties’ intention to arbitrate prevails over a potentially pathological element of the clause
[Bowen v. Amoco Pipeline; LaPine Technology v. Kyocera; UHC Management v. Computer Science].
In the Bowen v. Amoco Pipeline case, the part of the arbitration clause determining the extent of the
AR mechanism was too broad and thus was held unenforceable. However, the tribunal pointed out that the
parties’ intent to arbitrate was to be preserved under any circumstances and it proceeded to a more limited
review of the arbitration award under the lex arbitri standards. In other words, the tribunal found that,
since the parties’ will to arbitrate prevailed, the nullity of one component of the clause did not lead to the
nullity of the entire arbitration agreement.
In the UHC Management v. Computer Sciences case, the appellant sought for a review under procedural
rules agreed upon by the parties. These rules contained broader grounds for appeal than the lex arbitri of
the state of appeal. The court did not consider itself bound by contractually expanded standards of review,
insisting on the independence of the arbitration process. Therefore, the court also reviewed the arbitration
award according to the lex arbitri standards.
The Tribunal is respectfully requested to follow the reasoning of the Bowen and UHC Management
cases. Based on the principle in favorem validitatis [CGB Marine Services v. M/S Stolt Entente], should the AR
mechanism as drafted by the Parties be considered overly broad, the review of the award would be limited
to the grounds provided by Art. 34 Model Law. This would neither invalidate the whole arbitration clause
nor the undeniable and strong intention of the Parties to submit their disputes to arbitration.
In conclusion, regardless of the extent of the scope of the AR mechanism, the Parties validly agreed
on arbitration.
24
25
26
27
28
29
30
Memorandum for CLAIMANT Arguments
9
C. THE UNILATERAL RIGHT OF ONE PARTY TO FILE SUIT IN FRONT OF A NATIONAL COURT DOES
NOT INVALIDATE THE ARBITRATION CLAUSE
RESPONDENT further alleges that the invalidity of the arbitration agreement results from CLAIMANT’s
alternative option to bring payment claims before national courts whereas RESPONDENT does not benefit
from this option [A.R.A., § 9]. The fact that only one party may choose between arbitration and litigation
before national courts while the other one is obliged to resort to arbitration does not invalidate the
arbitration agreement [BGH, 18 Dec 1975; Becker Autoradio v. Becker Autoradiowerk, note 15; Law Debenture
Trust v. Elektrim Finance B.V. et al.; cf. BGH, 10 Oct 1991; Berger/Kellerhals, § 460].
The Parties negotiated and agreed on this arrangement [Cl. Ex. 3]. When CLAIMANT mentioned it
again in its letter of 15 November 2007, RESPONDENT failed to raise objections in due time [Cl. Ex. 3].
Thus, the Parties intended to confer such an option to CLAIMANT. Besides, as stated in the very same letter,
the primary reason for this choice consisted in the fact that CLAIMANT granted RESPONDENT the
convenience to pay by instalments. In return, CLAIMANT was offered the possibility to start proceedings
before national courts [Cl. Ex. 3]. Thus, RESPONDENT cannot allege that its optional right to choose is
unilateral since it is based on mutuality.
II. THIS TRIBUNAL HAS JURISDICTION TO HEAR THE CLAIM ARISING UNDER
THE SLA
The Tribunal is respectfully requested to find that it has jurisdiction to hear the payment claim arising
under the SLA. This conclusion flows from the fact that the SLA is subjected to the valid arbitration
agreement contained in the FSA (A.) or, alternatively, to the arbitration agreement contained in Sec. 21
ST 2011 (B.).
A. THE ARBITRATION AGREEMENT CONTAINED IN THE FSA COVERS THE SLA CLAIM
The arbitration agreement contained in Art. 23 FSA covers the claim arising out of the SLA. As a matter of
fact, disputes arising out of the SLA fall within the scope of the arbitration agreement contained in the FSA
(1.). Furthermore, Art. 23 SLA, i.e. the dispute resolution clause, only amends some parts of the dispute
resolution clause of the FSA but does by no means replace it (2.)
1. The claim arising out of the SLA falls within the scope of the arbitration clause in
the FSA
It is widely accepted that, in the absence of any indication to the contrary, an arbitration clause
encapsulated in a framework agreement is a sufficient indication of the parties’ will that this clause applies
to subsequent contracts [CA Paris, 31 May 2001; cf. Kia Motors v. Washington Armênio Lopes et al.; AC BCCI,
31
32
33
34
35
Memorandum for CLAIMANT Arguments
10
60/1980; Berger/Kellerhals, § 477; Born, Commercial Arbitration, p. 1110; Fouchard/Gaillard/Goldman, § 520;
Lew/Mistelis/Kröll, § 7-44, 7-45; Pryles/Waincymer, p. 489;].
As stated in the heading of the contractual document, the FSA is a framework agreement. The Parties
laid down this purpose in their recitals indicating that the FSA “is intended to cover the initial purchase [...]
as well as the further cooperation of the Parties in its use and further development” [Preamble FSA, § 5,
Cl. Ex. 2]. An extension of the facility through the use of the active scanning technology was explicitly
contemplated [Preamble FSA, § 4, Cl. Ex. 2]. The SLA itself mirrors this structure and supports this
interpretation. Its preamble refers expressly to the FSA as its framework [Preamble SLA, § 5, Cl. Ex. 6].
This wording reflects the Parties’ intention. During the negotiations for the first purchase, the
Parties had already intensively discussed the purchase of the active scanning technology, which was
purchased under the SLA later on [R.A., § 9-10; Preamble FSA, § 4, Cl. Ex. 2; Cl. Ex. 4; Re. Ex. 2]. Facing
budget constraints, RESPONDENT was unable to purchase this technology at the time of concluding the first
contract, i.e. the FSA. Though, to quote RESPONDENT’s genuine words, the first purchase represented
“just a first step”. RESPONDENT aimed for a further use of the proton therapy facility for “the treatment of
all kinds of cancer with the most up-to-date proton therapy options available” [Re. Ex. 2].
Additionally, the fact that the contracts were technically connected called for a framework
agreement. CLAIMANT designed and manufactured the proton therapy facility “in such a way that allow[ed]
for the addition of up to two more treatment rooms” [Cl. Ex. 3]. That is why the new active scanning
technology purchased under the SLA depends largely on the existing facility, i.e. the proton beam
accelerator [Art. 2 SLA, Cl. Ex. 6]. RESPONDENT itself admits that the “termination of the FSA also made the
SLA obsolete” and that “without the Proton Therapy Facility, the newly developed active scanning
technology under the SLA was completely useless” [A.R.A., § 23]. Due to the technical relatedness of the
contracts, apparent from the outset of their relationship, the Parties concluded a framework agreement to
be applicable to all of their contracts in relation to the proton therapy facility.
Moreover, it must be pointed out that the scope of the valid arbitration agreement [cf. supra § 30]
contained in the FSA covers the claims arising under the SLA. First, as stated in Art. 23(1) and (3) FSA, the
arbitration clause refers to disputes arising under “this Agreement”. This wording specifies the legal
relationship covered by the arbitration agreement [cf. Kaufmann-Kohler, § 168]. Art. 1 FSA defines the term
“Agreement” designating the whole “Framework and Sales Agreement” [Cl. Ex. 2]. In view of the FSA’s
nature as a framework agreement, its scope has to be intended as encompassing and covering the claims arising
out of the SLA.
In the light of the foregoing, the wording and the Parties’ intention appear unambiguous and
indisputable: the FSA is a framework agreement and the claim under the SLA falls within the scope of the
arbitration agreement in Art. 23 FSA.
36
37
38
39
40
Memorandum for CLAIMANT Arguments
11
2. The dispute resolution clause in the SLA does not replace the arbitration agreement
contained in the FSA
Since CLAIMANT intended to acknowledge the important contribution made by RESPONDENT in developing
and testing the active scanning technology, it agreed to amend the dispute resolution clause as formulated
in the FSA [R.A., § 21]. Yet, it did not aim to replace it. RESPONDENT incorrectly alleges that Art. 23 SLA
is contrary to Art. 23 FSA and that the former, pursuant to Art. 45 FSA, supersedes the latter [A.R.A.,
§ 11].
Art. 45 FSA takes into account the nature of the FSA as a framework agreement and states, rather
unsurprisingly, that “the provisions of this Agreement shall also govern all further and future contracts [...]
where such contracts do not contain a specific provision to the contrary”. This wording is self-explanatory.
If the Parties intended to replace the arbitration agreement of the FSA, they would have drafted a specific
provision to the contrary. Though, Art. 23 SLA does not constitute such a provision. In point of fact, Art.
23(1) and (2) SLA amend other sections of Art. 23 FSA, namely Art. 23(5) FSA on the forum selection
clause for the provisional urgent measures and Art. 23(6) FSA on the alternative jurisdictional clause.
The mere introduction of some amendments shows the Parties’ intention to modify only specific
points of their dispute resolution agreement, and not to replace it, as RESPONDENT misapprehends. Even
RESPONDENT’s subsequent conduct leads to the same conclusion: it complied with the multi-tier
arbitration clause [Art. 23(1), (2) FSA, Cl. Ex. 2; PO2, § 11]. Thus, RESPONDENT’s conduct is at odds with its
allegation to not have understood Art. 23(1) and (2) SLA as mere amendments but as a new dispute
resolution mechanism replacing the one from the framework agreement.
Hence, the arbitration clause contained in the FSA was not replaced and fully applies to the SLA.
B. ALTERNATIVELY, THE TRIBUNAL HAS JURISDICTION ACCORDING TO THE ARBITRATION
AGREEMENT CONTAINED IN THE ST 2011
Should the Tribunal find that the arbitration agreement contained in the FSA does not govern the SLA
claim it is then respectfully requested to hear and adjudicate upon it according to the arbitration agreement
contained in the ST 2011.
Sec. 21 ST 2011 contains all the essential elements necessary for a valid arbitration agreement
[cf. Kaufmann-Kohler, § 166]. The chosen seat of the arbitration is Capital City, Mediterraneo, and the lex
arbitri of Mediterraneo is a verbatim adoption of the Model Law [Sec. 21 ST 2011, Cl. Ex. 9; PO2, § 13;
cf. supra 5]. Further, the arbitration clause states that any disputes should be decided under CEPANI Rules
for Arbitration. It will be demonstrated that this arbitration clause was validly included in the SLA (1.) and
that the jurisdiction clause contained in Art. 23(2) SLA does not replace the arbitration agreement but
provides solely for an alternative possibility of dispute resolution (2.).
41
42
43
44
45
46
Memorandum for CLAIMANT Arguments
12
1. The arbitration clause contained in the ST 2011 has been validly included in the SLA
The incorporation of an arbitration clause by reference is explicitly recognised by Art. 7(6) Model Law if
“the reference is such as to make that clause part of the contract”. This is the case here, since the formal and
substantive requirements are fulfilled.
The formal requirement is complied with if the arbitration clause is made in writing [Art. 7(2)
Model Law; Art. II(2) NYC]. If the arbitration agreement is not contained in the main contract, this contract
has to contain a written reference to the document encapsulating the arbitration agreement [Binder, § 2-
073; Schramm/Geisinger/Pinsolle in Krone et al., p. 87-92; Wolff in Wolff, § 136-139]. The fact that the
reference does not explicitly mention the arbitration agreement does not affect its valid incorporation
[Born, Commentary, p. 321; Born, Commercial Arbitration, p. 702-703; Fouchard/Gaillard/Goldman, § 496]. In
the present case, Art. 46 SLA provides a written reference to CLAIMANT’s ST 2011 which contain a
written arbitration clause in their Sec. 21 [Cl. Ex. 9]. The formal requirement is therefore complied with.
The substantive requirement is fulfilled if the parties were or should have been aware of the
existence of an arbitration clause and if they consented thereto [Berger/Kellerhals, § 436-442; Born,
Commercial Arbitration, p. 697-703; Poudret/Besson, § 213-214; The same approach is taken under Art. II(2) NYC:
Hamburg Commedity Exchange, 14 Mar 1994; Schramm/Geisinger/Pinsolle in Krone et al., p. 90-93].
Firstly, RESPONDENT knew or should have known that the ST 2011 contained an arbitration
agreement. Even though Art. 46 SLA does not explicitly mention the arbitration clause contained in the ST
2011, RESPONDENT was fully aware of its existence. The fact that RESPONDENT did not possess the
document itself is irrelevant [cf. Schramm/Geisinger/Pinsolle in Krone et al., p. 92]. As a matter of fact, the
Parties concerted on the principle of arbitration from the very beginning of their relationship [cf. supra
§ 14; cf. Born, Commercial Arbitration, p. 700-703]. For the FSA, RESPONDENT agreed on the incorporation of
CLAIMANT’s ST 2000 in general but disagreed with the arbitration clause therein because of the lack of an
appeal mechanism [cf. supra § 20]. The Parties agreed on a new arbitration clause providing for such AR
mechanism [Art. 23 FSA, Cl. Ex. 2]. For the SLA, RESPONDENT knew that the changes in the ST 2011 were
related solely to the liability regime [Re. Ex. 2] and did not affect procedural issues. Therefore,
RESPONDENT should have known that an arbitration clause still remained in the ST 2011.
Secondly, RESPONDENT consented to the arbitration agreement in the ST 2011. This becomes
apparent when comparing its conduct during the negotiations for both contracts. When the Parties
negotiated the FSA in 2008, RESPONDENT’s only reason to object to the incorporation of the arbitration
clause contained in the ST 2000 was that it did not provide for an AR mechanism [Cl. Ex. 3]. Nevertheless,
the Parties had a strong will to arbitrate. They replaced Sec. 21 ST 2000 by the arbitration clause contained
in Art. 23 FSA and inserted the AR mechanism. Regarding the SLA, the incorporated ST 2011 contained
an arbitration clause mentioning the possibility to appeal. Any reasonable third person would assume that
47
48
49
50
51
Memorandum for CLAIMANT Arguments
13
RESPONDENT agreed thereto since it did not raise any objections. Therefore, RESPONDENT’s conduct shows
its consent.
Thus, the arbitration clause is validly included in the SLA.
2. Art. 23(2) SLA does not replace the arbitration agreement contained in the ST 2011
Even though the SLA contains a jurisdiction clause giving authority to the national courts of Mediterraneo
it does not replace the arbitration clause of the ST 2011. In point of fact, parties have the possibility to
envisage different tracks of dispute resolution in a contract, which includes a combination of arbitration
and litigation [BGE, 17 Jan 2013; OLG Hamburg, 14 May 1999; BGH, 18 Dec 1975; Berger/Kellerhals, § 460;
Fentiman, § 2.66; Poudret/Besson, § 159]. Neither the Model Law nor the NYC contains any provision to the
contrary [Brekoulakis, p. 358]. The choice between arbitration and litigation requires the parties’ intention
[BGE, 17 Jan 2013; Friedland, p. 48] and the clauses in question have to be drafted in a way that excludes
parallel proceedings [AC BCCI 79/1993; cf. also Wais in Schütze/Tscherning/Wais, p. 53-54].
Firstly, it was the Parties’ intention to include both options in their contract. This is expressed in
the wording of Art. 23(2) SLA: “In addition, the Parties shall have the right [...]”. Since the courts of
Mediterraneo and Equatoriana were already the fora by default, the only reason for the inclusion of such a
clause into the SLA was to institute a choice between arbitration and litigation. Moreover, the Parties just
renewed their practice, already established under the FSA, to have a multi-track dispute resolution clause
[cf. supra § 31-32].
Secondly, Sec. 21 ST 2011 and Art. 23(2) SLA exclude parallel proceedings since the choice of
one party to have recourse to arbitration or jurisdiction is binding upon the other. Sec. 21 ST 2011 adopts
the “shall be” language. This wording is mandatory because it provides conclusive evidence of the Parties’
intention to submit their disputes to arbitration [cf. Lobb Partnership v. Aintree Racecourse Company; Born,
Forum Selection, p. 39]. Art. 23(2) SLA stipulates that if one party files a suit before the national courts, the
other party has to submit to its jurisdiction. Thus, the interplay between Sec. 21 ST 2011 and Art. 23(2)
SLA is designed to prevent potential conflicts regarding lis pendens.
Consequently, the jurisdiction clause in the SLA does not replace the arbitration agreement of the
ST 2011, but solely provides for an alternative to it. Hence, the Tribunal has jurisdiction according to
arbitration agreement contained in the ST 2011.
CONCLUSION: CLAIMANT respectfully requests the Tribunal to find that it has jurisdiction to hear the
claim under the FSA based on the arbitration agreement contained in Art. 23 FSA. With regards to the
claim arising under the SLA, the Tribunal has jurisdiction according to the same arbitration agreement, i.e.
Art. 23 FSA, or, alternatively, according to Sec. 21 ST 2011.
52
53
54
55
56
57
Memorandum for CLAIMANT Arguments
14
ISSUE II: THE TRIBUNAL SHOULD HEAR BOTH CLAIMS IN A SINGLE ARBITRATION
The Tribunal is respectfully requested to join the claims arising out of the FSA and the SLA and address
them together in the present proceeding. According to Art. 12(1) CEPANI Rules read in conjunction with
Art. 10 CEPANI Rules, which refers to multi-contract arbitration, this Tribunal is empowered to rule on
both claims into a single arbitration.
RESPONDENT argues that the claims are legally and factually separate and are governed by different
laws, which excludes their being combined and adjudicated upon in a single arbitration [A.R.A., § 12]. It
also considers itself frustrated from its right to nominate two different arbitrators with regard to the
expertise required to properly determine each claim [A.R.A., § 13-14].
First and foremost, this Tribunal is entitled to join the claims pursuant to the arbitration clause
contained in the FSA (I.). Alternatively, the Tribunal is entitled to join the claims subject to two
arbitration agreements (II.).
I. THE TRIBUNAL IS ENTITLED TO JOIN THE CLAIMS GOVERNED BY THE
ARBITRATION CLAUSE CONTAINED IN THE FRAMEWORK AGREEMENT
The CEPANI Rules allow the Tribunal to join the claims arising out of the FSA and the SLA covered by the
arbitration agreement contained in the FSA (A.). A single arbitration is envisaged by the scope of the
Parties’ arbitration agreement (B.). Different substantive laws applicable to the contracts do not in any
way prevent such single proceeding (C.). The composition of the Tribunal complies with the will of the
Parties (D.). In addition, the interests of the good administration of justice indeed militate for the joinder
of claims (E.).
A. ART. 10(1), § 1 CEPANI RULES ENABLES THE TRIBUNAL TO JOIN THE FSA AND SLA CLAIMS
Art. 10(1), § 1 CEPANI Rules allows arbitrators to join multi-contract claims [Matray, § 112;
de Meulemeester/Verbist, § 222] without expressly mentioning that this is permissible when the claims are
covered by a single arbitration agreement, which is the case at hand. Yet, only the possibility to join the
claims governed by “various arbitration agreements” is expressly mentioned in Art. 10(1), § 2. The general
principle a maiore ad minus appears thus appropriate to interpret the ratio legis of Art. 10(1), § 1. If a single
arbitration is possible when multiple claims are brought under two arbitration agreements, a single
arbitration must necessarily be possible when the multiple claims are brought under a single arbitration
agreement. This interpretation is consistent with the CEPANI Rules’ aim to facilitate the conduct of
arbitral proceedings and settle multiple claims within a single arbitration [Calmo; de Meulemeester, The New
Arbitration Rules]. Even the new ICC Rules 2012 that both triggered and inspired the CEPANI Rules 2013
[Chochitaichvili; Kileste/Godin; Verbist, New Belgian Arbitration Law, p. 609; Verbist, New CEPANI Rules, p. 51]
58
59
60
61
62
Memorandum for CLAIMANT Arguments
15
allow a single proceeding “irrespective of whether such claims are made under one or more than one
arbitration agreement” [Art. 9 ICC Rules]. This is notably the case when a framework agreement governs all
disputes arising out of multiple contracts [Voser, p. 795]. Accordingly, Art. 10(1), § 1 CEPANI Rules
should be read in the same spirit.
In the present case, the claims arise out of the FSA and the SLA. Both contracts are subject to the
arbitration agreement encapsulated in the framework agreement, i.e. Art. 23 FSA [supra § 35-40]. It
ensues that the Tribunal has the power to join the claims and adjudicate upon them in a single proceeding.
B. THE SCOPE OF THE PARTIES’ ARBITRATION AGREEMENT ALLOWS A SINGLE PROCEEDING
Since disputes are decided according to the procedure chosen by the parties, the Tribunal should
determine whether the arbitration agreement as framed by the parties actually allows a multi-contract
arbitration [Bond, p. 39; Born, Law and Practice, p. 231; Hanotiau, Complex Arbitrations, § 229; Mantilla-Serrano,
p. 25; Platte, p. 488]. As a matter of fact, if an award “contains decisions on matters beyond the scope of the
submission to arbitration”, its enforcement could be denied [Art. V.1.c NYC]. There is no such a risk in the
present case, as the existence of an arbitration clause in a framework agreement is considered to express
the parties’ will to join claims from multiple contracts [Fouchard/Gaillard/Goldman, § 520; Leboulanger,
p. 80; Matray, § 113].
In the current case, the Parties’ agreement does not expressly exclude a single proceeding. Equally, it
does not implicitly provide a limitation on the joinder of claims. On the contrary, it appears to encourage
it. The arbitration agreement’s scope embodied in the FSA refers to any “future cooperation” of the Parties
regarding the use and development of the proton therapy facility [Preamble FSA, § 5, Cl. Ex. 2]. The SLA is
designed in the same vein [Preamble SLA, § 5, Cl. Ex. 6]. Thus, by entering the framework agreement the
Parties envisaged to set up a procedural framework for their cooperation. The common intention to have their
controversies brought before, and decided together by the same tribunal was apparent from the outset of
their contractual relationship. If the Parties intended to have their disputes treated separately, the
conclusion of a framework agreement containing an arbitration agreement applicable to both contracts
would have lacked sense.
Furthermore, FSA and SLA are related [supra § 38]. This link between the contracts should be
reflected as well in the constitution of the Tribunal [cf. Leboulanger, p. 94].
Thus, a multi-contract arbitration falls within the scope of the Parties’ arbitration agreement
contained in the FSA and an award rendered in this respect would undoubtedly be enforceable under the
NYC. These considerations should encourage this Tribunal to join the claims.
63
64
65
66
67
Memorandum for CLAIMANT Arguments
16
C. DIFFERENT LAWS APPLICABLE TO THE CONTRACTS DO NOT FETTER A SINGLE ARBITRATION
Due to different applicable laws to the contracts, RESPONDENT contests the joinder of claims in a single
arbitration [A.R.A., § 12].
RESPONDENT’s contention misconceives the widely acknowledged principle that different applicable
laws do not hinder a single multi-contract proceeding [ICC Case No. 5989/1989; Fry/Greenberg/Mazza, § 3-
245; Voser, p. 791; Whitesell/Romero, p. 16]. Such principle has been expounded in the well-known ICC
Case No. 5989/1989, § 4 where the tribunal held that the contended issue was not a question of
procedure but a question of merits. In this award, the tribunal refuted the lack of jurisdiction argument,
holding that the substantive laws governing the contract entered by the parties had no direct impact on
procedural issues and thereby no real significance in terms of whether or not a joinder should be allowed.
In the current case, the national law of Mediterraneo incorporating the UNIDROIT Principles
governs the FSA claim [PO2, § 4, 20], whereas the CISG governs the SLA claim [infra § 167]. This situation
does not reveal any obstacle to prevent the Tribunal from conducting a single arbitration. On the contrary,
both applicable laws reflect the international consensus in commercial trade [Bonell, p. 100] and are
generally known by arbitrators. In consequence, different applicable laws should not refrain this Tribunal
from joining the claims.
D. THE COMPOSITION OF THE TRIBUNAL COMPLIES WITH THE WILL OF THE PARTIES
“The composition of the arbitral authority [shall be] in accordance with the agreement of the parties”
[Art. V.1.d NYC]. The fact that the arbitrators fail to meet the qualifications provided for in the arbitration
agreement constitutes a ground to challenge an award [Born, Commercial Arbitration, p. 1556; Waincymer,
p. 309; Borris/Hennecke in Wolff, § 280, § 291; cf. also Art. 12(2) Model Law]. RESPONDENT asserts that “one
of the reasons why it agreed to arbitration […] was the possibility of selecting its own arbitrator on the
basis of the expertise required for a case. That would be frustrated if both cases were heard in a single
arbitration before the same Arbitral Tribunal” [A.R.A., § 14]. Should RESPONDENT try to prevent the
joinder of claims considering that it infringes the NYC, the Tribunal is requested to reach the opposite
conclusion since the case at hand does not generate a comparable risk.
At no point in time did the Parties agree on the arbitrators’ qualifications. The arbitration
agreement makes no reference to such qualifications. RESPONDENT should have foreseen that it might need
arbitrators knowledgeable of technical expertise in certain matters and ought to have insisted on having it
inserted in the contractual document.
Further, even if the claims are joined, RESPONDENT is not frustrated from exercising its right to
appoint an arbitrator possessing appropriate qualifications. With respect to the FSA claim, it has already
nominated Prof. Bianca Tintin, who is a lawyer and an accountant. RESPONDENT considers that the issue
68
69
70
71
72
73
Memorandum for CLAIMANT Arguments
17
surrounding the SLA claim concerns the software’s performance and thus purports to nominate an
engineer, i.e. Ms Christina Arrango [A.R.A., § 3-4; PO2, § 19].
Nevertheless, instead of having two panels of arbitrators, it appears more appropriate to assign Prof.
Bianca Tintin for both claims and to refer the technical matters to an expert in the software engineering
field. The Parties deal in a peculiar commercial trade, due to the novelty of the software purchased via the
SLA. It is therefore hardly credible that a simple engineer possesses sufficient qualifications to assess the
suitability of the calibration software for the active scanning technology [A.R.A., § 13], as RESPONDENT
misbelieves. Further, RESPONDENT aims to terminate the FSA [A.R.A., § 20, 23]. Therefore, a lawyer
appears more appropriate to determine whether RESPONDENT is entitled to do so. Apart from technical
matters, the claim under the SLA turns around the question of applicable law to the merits and the valid
incorporation of the ST 2011 into the SLA. These questions are complex and require the understanding of
an arbitrator acquainted with legal concepts. Indeed, as a lawyer, Prof. Bianca Tintin could easily deal with
them. By contrast, it appears improbable that an engineer has the capacity to apprehend these issues.
It follows that the composition of this Tribunal when hearing the claims together complies with the
Parties’ will and respects the spirit of Art. V.1.d NYC.
E. IN ADDITION, THE CONSIDERATION OF OTHER RELEVANT CIRCUMSTANCES FOR GOOD
ADMINISTRATION OF JUSTICE SHOULD LEAD THE TRIBUNAL TO JOIN THE CLAIMS
By virtue of Art. 10(1), § 1 CEPANI Rules, the tribunal “may” hear the claims “in a single arbitration”. This
provides the tribunal with a wide discretion to consider “all relevant circumstances” when deciding
whether or not to join the claims [de Meulemeester, Multicontract Arbitration; cf. also Grierson/van Hooft, p. 122;
Mantilla-Serrano, p. 26; Voser, p. 797]. The fact of having same submissions and evidence to determine the
issues in dispute will reduce the risks of parallel, competing proceedings generating higher costs and
leading to conflicting awards [KBC v. Pentamina, § 21; Gilbert, § 22-38]. The Tribunal should conduct this
proceeding in a way that best satisfies the legitimate demands for “good administration of justice”, which is
the fundamental principle when ruling on joinder [Leboulanger, p. 54]. Allowing the joinder will prevent
conflicting awards (1.) and preserve procedural efficiency (2.).
1. A single arbitration proceeding avoids conflicting awards
The principle of good administration of justice requires the joinder of claims when this is necessary to
avoid conflicting decisions with respect to related matters [Leboulanger, p. 54-55]. On the contrary, the
outcome of parallel proceedings may result in inconsistency [Bishop, p. 140-141; Debourg, p. 226-231;
Pryles/Waincymer, p. 438; Rivkin, p. 271; Whitesell/Romero, p. 17].
The case at hand presents a high risk of conflicting awards should two different arbitral tribunals
decide the claims. RESPONDENT itself seeks termination of the FSA and admits that, should it succeed in
74
75
76
77
78
Memorandum for CLAIMANT Arguments
18
doing so, the SLA will then become obsolete [A.R.A., § 23]. The inconsistency would then arise if one of
the tribunals allows RESPONDENT to terminate the FSA and to return the proton beam accelerator to
CLAIMANT, whereas the other tribunal orders RESPONDENT to pay the sum claimed by CLAIMANT for the
software purchased under the SLA. Since the software has no utility without the proton beam accelerator
purchased under the FSA [cf. A.R.A., § 23; PO2, § 22], it would not make sense to order RESPONDENT to
pay the remainder. The awards would be obviously conflicting and, as a result, they would defeat the
coherence of justice and worsen the Parties’ situation instead of offering a reasonable solution to their
disputes. Further, a single arbitration is desirable for a better understanding of the facts of the case [ICC
Case No. 5989/1989, § 5].
Consequently, a single arbitration is desirable in that it would effectively avert the threat of
inconsistency of the decisions. It will also meet the legitimate expectations of the Parties as reasonable
businessmen whose aim is to solve their controversies rather than aggravating them.
2. A single arbitration promotes efficiency
Another reason to admit a single proceeding includes efficiency, which refers to time and costs savings
[Born, Law and Practice, p. 221; Pryles/Waincymer, p. 485; Waincymer, p. 546].
The costs generated by a proceeding consist in the arbitration and parties’ costs. Arbitration costs
include fees and expenses of the arbitrators as well as administrative expenses of the secretariat [Art. 27(1)
CEPANI Rules]. Due to the regressive nature of the CEPANI Scale of the arbitration costs, a single
proceeding will allow important savings [Schedule I, § 1, CEPANI Rules, hereafter SCA/CEPANI]. Pursuant to
Sec. 1.1 and 1.2 SCA/CEPANI, on the basis of the amount claimed, i.e. USD 11.5 Mio, and considering a
single panel of three arbitrators [Sec. 5 SCA/CEPANI], the overall costs are of 185’007.98 Euros
[1 USD=0.755545 Euros, CEPANI’s letter to the Parties, 10 June 2013]. If two tribunals decide the claims, the
calculation leads to cumulated costs of minimum 215’916.55 Euros. Hence, a calculation on these bases
shows an increase of 16.70% of the arbitration costs if the claims were to be determined by two separate
tribunals.
The Parties’ costs include expenses incurred for their defence and the expenses relating to the
presentation of evidence [Art. 27(2) CEPANI Rules], as well as “internal costs including travelling, hotel costs
of counsel and witnesses” [Schedule II.1) CEPANI Rules]. These costs will double if the claims are not joined
and so will the fees for the submission of memorandums in hardcopy. Moreover, the Parties will have to
face duplication of transportation costs for each set of hearings. It is therefore reasonable to appraise a
considerable increase of Parties’ costs in case of separate arbitrations. Since RESPONDENT is a public
hospital, its interest to spend less money for the arbitration appears evident.
79
80
81
82
Memorandum for CLAIMANT Arguments
19
As to timesaving, a single proceeding requires hearings of the parties and witnesses only once. As
demonstrated above, the fate of the SLA depends on the decision regarding the FSA. Hence, to set an
accurate factual frame, in case of two separate proceedings, the Tribunal would have to hear the same
witnesses twice.
Thus, a single arbitration will promote considerable economy of efforts, money and time.
II. ALTERNATIVELY, THE TRIBUNAL IS ENTITLED TO JOIN THE CLAIMS PURSUANT
TO DIFFERENT ARBITRATION AGREEMENTS
If the Tribunal considers that the claims are covered by two arbitration agreements, it should then join
them under Art. 10(2) CEPANI Rules. In this respect, as requested by Art. 10(1), § 2, a), the Parties “have
agreed to have recourse to arbitration under the CEPANI Rules”, which is undisputed [Art. 23 FSA, Cl. Ex.
2; Sec. 21 ST 2011, Cl. Ex. 9]. As requested by Art. 10(1), § 2, b), it will be demonstrated that the Parties
“agreed to have their claims decided within a single set of proceedings”. When analysing the Parties’
agreement on a single arbitration, the Tribunal should consider the presumptions [Hollander, p. 232;
de Meulemeester, Multicontract Arbitration] referring to the compatibility of the arbitration agreements
[Art. 10(2)] (A.) and the relatedness of the matters [Art. 10(3)] (B.). Further, the correct composition of the
Tribunal [supra § 71-75] and the principle of good administration of justice [supra § 76-84] should lead the
Tribunal to join the claims.
A. THE ARBITRATION AGREEMENTS ARE COMPATIBLE
Art. 10(2) CEPANI Rules posits that “differences concerning the applicable rules of law […] do not give
rise to any presumption as to the incompatibility of the arbitration agreements”. This provision deprives of
meaning RESPONDENT’s contention that different “rules of law” govern the FSA and the SLA.
In addition, the Tribunal should decide to adjudicate the claims into a single proceeding even if the
arbitration agreements provide for different seats of arbitration. Even though the Paris Court of Appeal
held in 2006 that different seats of arbitration render the arbitration agreements incompatible [CA Paris, 16
Nov 2006], there is no reason to apply this principle to the current case. In fact, although the seat of
arbitration for the FSA claim is in Danubia and the one for the SLA claim is in Mediterraneo, the content of
the lex arbitri is the same for each claim since the arbitration laws of Mediterraneo and Danubia are both a
verbatim adoption of the Model Law [PO2, § 13]. It could thus be inferred that the place of the seat of
arbitration is irrelevant for the Parties. For this reason, the different seats provided for by the arbitration
agreements do not entail their incompatibility.
83
84
85
86
87
Memorandum for CLAIMANT Arguments
20
B. THE MATTERS UNDER THE FSA AND SLA ARE RELATED
Due to the relatedness of the matters, the Tribunal should also find that the Parties agreed on the joinder of
their claims. Interpreting Art. 10(3) CEPANI Rules a contrario, it could actually be inferred that related
matters presume the parties’ intention to have “their claims decided in a single set of proceedings”
[cf. Hollander, p. 233]. As demonstrated above, the contracts are related [supra § 38]. This relatedness
implicitly supports the agreement of the Parties to a single arbitration.
CONCLUSION: The Tribunal should join the FSA and SLA claims in a single arbitration. It is admissible
under the CEPANI Rules, respects the Parties’ will and promotes good administration of justice avoiding
inconsistent awards and serving procedural efficiency.
ISSUE III: THE CISG GOVERNS THE CLAIM ARISING UNDER THE SALES AND LICENSING
AGREEMENT
CLAIMANT respectfully requests the Tribunal to find that the CISG applies to the claim arising out of the
SLA. Firstly, the SLA constitutes an international sale of goods contract in the sense of the CISG (I.).
Secondly, the ST 2011, containing a choice of law clause, have been validly incorporated into the SLA
(II.). Thirdly, the choice of law clause contained in Sec. 22 ST 2011 leads to the application of the CISG to
the SLA (III.).
I. THE SLA CONSTITUTES AN INTERNATIONAL SALE OF GOODS CONTRACT
The Tribunal is respectfully requested to hold that the SLA is an international contract of sale of goods
falling within the scope of the CISG.
Under the SLA, the obligations of the Parties were as follows. CLAIMANT provided RESPONDENT
with a treatment room using active scanning technology for the existing proton treatment facility
purchased under the FSA [Art. 2 SLA, Cl. Ex. 6]. The delivery consisted of the software developed by
CLAIMANT’s means, necessary for said technology, and of the treatment room’s equipment including its
building, magnets, steering devices and monitors [Re. Ex. 3; PO2, § 23]. CLAIMANT also undertook the
installation of the facility as well as the training of RESPONDENT’s operating personnel [Re. Ex. 3; PO2,
§ 29]. Although the market value of the purchase was of USD 9.5 Mio, CLAIMANT granted a discount to
RESPONDENT and fixed the purchase price, i.e. the contract price, at USD 3.5 Mio [Re. Ex. 3; Art. 3(1) SLA,
Cl. Ex. 6]. To arrive at this final discounted amount, CLAIMANT took into consideration the financial
difficulties of RESPONDENT [R.A., § 12; Cl. Ex. 4; Re. Ex. 3; PO2, § 27] and its contribution to the
development and testing of the software under the contract [Re. Ex. 3; Art. 3(1), 10 SLA, Cl. Ex. 6].
88
89
90
91
92
Memorandum for CLAIMANT Arguments
21
In the following, it will be demonstrated that the SLA constitutes both an international sale contract
(A.) and a contract of sale of goods in the sense of the CISG (B.).
A. THE SLA CONSTITUTES AN INTERNATIONAL SALE CONTRACT
The SLA is an international contract as provided for in Art. 1(1)(a) CISG: the two contracting Parties have
their places of business in different contracting states to the CISG, namely in Mediterraneo and
Equatoriana [PO2, § 12].
The Tribunal is requested to find that the SLA is also a sale contract for the following reasons: the
Parties purported to conclude a sale contract (1.) and the right to use the purchased software granted to
RESPONDENT does not preclude this qualification (2.). Moreover, CLAIMANT provided the substantial part
of the materials necessary for the production of the software [Art. 3(1) CISG] (3.) and the preponderant part
of its obligations lied in the supply of goods [Art. 3(2) CISG] (4.).
1. The Parties wanted and concluded a sale contract
It appears from the SLA that the Parties intended to conclude a sale contract: they titled their contract
“Sales […] Agreement” [as to the “Licensing Agreement” infra § 98] and referred to themselves as “Buyer” and
“Seller” [Preamble, Art. 1, 2, 3(1), 10, 46 SLA, Cl. Ex. 6]. Also, the contract is subject to CLAIMANT’s
“Standard Terms and Conditions for Sale”, whereupon the Parties agreed in Art. 46 SLA.
The analysis of the Parties’ obligations under the SLA supports its qualification as a sale contract.
CLAIMANT provided RESPONDENT with equipment for the treatment room as well as the necessary
software against a purchase price of USD 3.5 Mio [Art. 2 SLA, Cl. Ex. 6]. Thus, the Parties exchanged
purchase and property transfer against the payment of a price [Trib Rimini, 26 Nov 2002; TCa Vaud, 11 Mar
1996; Mistelis in Kröll et al., Art. 1, § 25; Neumayer/Ming, Art. 1, § 1; Schlechtriem/Schwenzer, Art. 1, § 8].
2. The right to use the software under the SLA does not preclude its qualification as a
sale contract
When it comes to software, the CISG applies only if the parties intended to transfer ownership to the
buyer, and not if they merely intended to grant a temporary right of use against payment of royalties [OGH,
21 June 2005; LG München, 8 Feb 1995; Huber/Mullis, p. 43; Johannsen, p. 59-60; Primak, p. 221; Schmitt,
p. 44; Schwenzer/Hachem/Kee, § 7.30-7.32]. This is the case here: under the SLA, RESPONDENT obtains the
permanent right to use the software and not a temporary one since “[n]o royalties are payable […] in
regard to the use of the software for the life cycle of the Proton Therapy Facility” [Art. 2 SLA, Cl. Ex. 6].
Accordingly, the choice of the heading “Sales and Licensing Agreement” does not affect the qualification of
the SLA [Johannsen, p. 59; Lookofsky, p. 277].
93
94
95
96
97
98
Memorandum for CLAIMANT Arguments
22
The fact that CLAIMANT does not transfer all the rights vested in the software to RESPONDENT, i.e.
intellectual property rights [Art. 11(1) SLA, Cl. Ex. 6], should not hinder the application of the CISG. In this
respect, the situation is similar to the sale of a machine, a book or a photo. These products have intellectual
property rights associated with them, yet the application of the CISG to their sale is undisputed [Brunner,
Art. 2, § 3; Diedrich, Software Revisited, p. 56; Johannsen, p. 53-54; Mistelis/Raymond in Kröll et al., Art. 3, § 23;
Schlechtriem/Schwenzer, Art. 1, § 18].
Hence, the right to use the software does not affect the qualification of the SLA as a sale contract.
3. The substantial part of the materials necessary to produce the software was
provided by CLAIMANT [Art. 3(1) CISG]
Although the software is a good [cf. infra § 115-121] to be produced, Art. 3(1) CISG provides for the SLA
to be considered a sale contract, because CLAIMANT supplies the substantial part of the materials necessary
for the production of the purchase.
At the time of conclusion of the SLA, no working software for the active scanning technology was
available [PO2, § 24]. CLAIMANT needed to develop the software, including its fine-tuning and testing,
using medical data and support supplied by RESPONDENT [Re. Ex. 3; Art. 3, 10 SLA, Cl. Ex. 6; PO2, § 25].
The software is thus to be produced. However, RESPONDENT did not provide “materials necessary for
production” in the sense of Art. 3(1) CISG (a.). Alternatively, should the Tribunal consider the contrary,
RESPONDENT’s contributions do not represent the substantial part of the materials necessary for the
production of the software (b.).
a. RESPONDENT’s contributions to the development of the technology are not "materials
necessary for production"
The Tribunal should hold that RESPONDENT does not supply materials for the production of the software.
RESPONDENT provides CLAIMANT with medical data and conducts clinical trials [Cl. Ex. 4; Art. 10(1), (2)
SLA, Cl. Ex. 6; PO2, § 27]. These elements do not represent materials in the sense of Art. 3(1) CISG. As
widely acknowledged, immaterial contributions of the buyer should not be considered [BGE, 17 Oct 2000;
HG Zürich, 10 Feb 1999; ICC Case No. 8855/1997; OLG Frankfurt, 17 Sept 1991; CISG-AC 4, § 2.14;
Bonell/Liguori, p. 151; Brunner, Art. 3, § 4; Mistelis/Raymond in Kröll et al., Art. 3, § 14;
Schlechtriem/Schwenzer, Art. 3, § 8; Sono, p. 522]. In the current case, the supply of medical data and the
support in testing the technology are purely immaterial contributions. Considering RESPONDENT’s
contributions as materials would lead to an interpretation contra legem of Art. 3(1) CISG.
99
100
101
102
103
Memorandum for CLAIMANT Arguments
23
b. In any event, the materials provided by RESPONDENT did not represent a substantial part
of the materials necessary for the production of the software
Scholars and courts have identified two manners of assessing whether or not the buyer substantially
contributed to the production of the purchased good. Both methods should lead this Tribunal to the
conclusion that RESPONDENT did not supply the substantial part of the materials necessary for the
production of the software.
On the one hand, some suggest to compare the economic value of the materials provided by the buyer
with those provided by the seller [HG Zürich, 8 Apr 1999; Brunner, Art. 3, § 3; Neumayer/Ming, Art. 3, § 3;
Siehr in Honsell, Art. 3, § 3]. In this respect, the Tribunal should consider the market value of the components
of the purchase although it differs from the contract value attributed in the SLA [cf. Re. Ex. 3]. The purchase
price under the SLA was of USD 3.5 Mio. Art. 3(1) SLA states that this price took into account
RESPONDENT’s contribution “in developing and testing the active scanning technology including the
necessary software with a value of USD 6 Mio” [Cl. Ex. 6]. However, the real value of RESPONDENT’s
contribution amounts solely to USD 1.5 Mio. At the time of conclusion of the SLA, RESPONDENT was
facing financial difficulties and could not pay more than USD 3.5 Mio for the technology [Re. Ex. 3; PO2,
§ 27]. CLAIMANT accepted to sell the machine at this price. Yet, it wanted to avoid being taxed on the
market value of the purchase. According to the arm’s length principle, a general principle in international tax
law, taxation authorities take into account the price that would have been paid by a third party, i.e. the
market price [Maktouf, p. 39; Oberson, p. 235-251; OCDE, p. 27-54; Raschle/Borriello/Hämmerle, p. 107-133].
To avoid being taxed on the market price of the transaction, CLAIMANT decided to overvalue
RESPONDENT’s contribution and to attribute a value of USD 6 Mio instead of USD 1.5 Mio to it.
RESPONDENT was completely aware of this fact. Indeed, the offer for the conclusion of the SLA pointed out
that this price arrangement was made “primarily for tax purposes” [Re. Ex. 3].
Therefore, the Tribunal should base its examination on the market value of RESPONDENT’s input,
which is of USD 1.5 Mio [Re. Ex. 3; PO2, § 27]. This is considerably lower than the value of CLAIMANT’s
contribution to the production of the software, i.e. development, testing and fine-tuning, which is of USD
3.75 Mio [PO2, § 29]. This does by no means amount to 50% of the materials necessary for production of
the software, which is the quota generally applied by courts and scholars [HG Zürich, 8 Apr 1999; Magnus in
Staudinger, Art. 3, § 1; Saenger in Bamberger/Roth, Art. 3, § 4; CISG-AC 4, § 2.8-2.10; Siehr in Honsell, Art. 3,
§ 3]. Thus, RESPONDENT did not provide the substantial part of the materials necessary for the production
of the software.
On the other hand, other scholars and courts follow the French version of the CISG, that uses the
expression part essentielle, and consider that the standard of interpretation should be based on the essentiality
of the materials [CIETAC, 13 June 2005; OLG München, 3 Dec 1999; CA Grenoble, 21 Oct 1999; Ferrari,
104
105
106
107
Memorandum for CLAIMANT Arguments
24
Applicability and Applications, p. 113-114]. In the case at hand, the clinical data and the support provided by
RESPONDENT were by far not as crucial to the production of the software as CLAIMANT’s contributions.
CLAIMANT provided the basic software completely on its own [PO2, § 25]. Indeed, the development,
testing and fine-tuning provided by CLAIMANT were core elements for the production of the software,
whereas RESPONDENT’s contribution solely to the improvement of the software [Art. 10 SLA, Cl. Ex. 6;
Cl. Ex. 4; PO2, § 25] was of little significance.
In summary, both the economic value of RESPONDENT’s contributions and the essential criterion
support the conclusion that CLAIMANT provided the substantial part of the materials necessary for the
production of the software.
4. The preponderant part of CLAIMANT’s obligations consisted of the supply of goods
[Art. 3(2) CISG]
CLAIMANT’s obligations under the SLA consisted of the development, the testing and the delivery of the
software, the physical equipment and the installation of the treatment room and the training of
RESPONDENT’s operating personnel [Art. 2, 10(1) SLA, Cl. Ex. 6; Re. Ex. 3; PO2, § 29]. The development and
the testing form part of the production of the software and do not have to be considered services in the
sense of Art. 3(2) CISG (a.). The delivery of software and the equipment constitute a supply of goods
[infra § 115-121] whereas the installation and the training are regarded as services in the sense of Art. 3(2)
CISG. Nevertheless, they do not represent the preponderant part of CLAIMANT’s obligations (b.).
a. As part of the production of the software, the testing and development are not services in
the sense of Art. 3(2) CISG
If the contributions to the production of the software had to be considered services in the sense of
Art. 3(2) CISG, this would undermine the spirit of Art. 3(1) CISG [cf. CISG-AC 4, § 4.1-4.3; Honnold,
Art. 3, § 60.6; Johannsen, p. 76; Schäfer p. 120-121; Schlechtriem/Schwenzer, Art. 3, § 2-3; Sono, p. 523;
Magnus in Staudinger, Art. 3, § 3]. Since the development and testing of the software constitute a part of its
production [supra § 102], there is no room left to reconsider them under Art. 3(2) CISG. They form part
of the sale element under the SLA [cf. supra § 101-108] and are exhaustively governed by Art. 3(1) CISG
[Schäfer, p. 120]. By contrast, Art. 3(2) CISG only refers to service elements additional to the sale, which is
not the case for the development and testing of the software.
b. Services consisting of training and installation only represent 20.53% of the purchase value
The only services rendered by CLAIMANT under the SLA that are to be considered within the application of
Art. 3(2) CISG are the installation of the equipment for the treatment room at its place of delivery and the
training of RESPONDENT’s operating personnel for the use of the new technology. The installation values
108
109
110
111
Memorandum for CLAIMANT Arguments
25
USD 1 Mio [PO2, § 29], which represents 10.53 % of CLAIMANT’s contributions. The training represents
10% of CLAIMANT’s contributions [Re. Ex. 3], i. e. USD 950.000. Thus, the services rendered by
CLAIMANT have a total value of USD 1.95 Mio and amount to no more than 20.53% of the purchase value.
Consequently, the preponderant part of CLAIMANT’s obligations lies in the supply of goods, representing
more than 79% of its total contribution.
In conclusion, in view of the Parties’ intention to conclude a sale contract, the CLAIMANT’s
substantial contribution to the production of the software and the preponderant part of its obligations lying
in the supply of goods, the SLA is an international sale contract.
B. THE SLA IS A CONTRACT OF THE SALE OF GOODS
The SLA constitutes a contract of sale of goods, since both the physical equipment provided under the SLA
(1.) and the software for the active scanning technology (2.) fall within the notion of goods under the
CISG.
1. The equipment provided is a good in the sense of the CISG
The materials necessary for the equipment of the third treatment room, i.e. the magnets, computers,
steering devices and monitors [Re. Ex. 3; PO2, § 23], are goods, since they are movable, tangible objects
[Trib Rimini, 26 Nov 2002; Mistelis in Kröll et al., Art. 1, § 37; Schlechtriem/Schwenzer, Art. 1, § 16].
2. The software provided is a good in the sense of the CISG
RESPONDENT asserts that the CISG addresses only the sale of tangible goods, reason why the present
contract falls outside of the Convention’s scope [A.R.A., § 19]. Despite RESPONDENT’s allegation, software
is a tangible good. This flows from the notion of tangibility itself (a.) as well as from the general principles
observed by the CISG (b.).
a. Software is a tangible, movable good
The mere fact that software cannot be perceived by the unaided senses does not alter that it is tangible
[Green/Saidov, p. 165]. Indeed, the software at hand was at all times physically recorded: it was in parts
installed in the equipment delivered to RESPONDENT and embodied in CLAIMANT’s server and in its
engineers’ computers [PO2, § 23]. There, it assumed the shape of massive strings of “bits” [ibid., p. 166].
Even while being downloaded to the facility, it existed as a series of electrical pulses. Due to its physical
existence, the software does not represent mere knowledge or information, because it “takes up space,
makes physical things happen, and can be perceived by the senses” [South Central Bell Telephone v. Sidney J.
Barthelemy, et al.]. RESPONDENT obtained the software, physically recorded, that makes the active scanning
technology perform the desired functions [ibid.; Green/Saidov, p. 165-166; Johannsen, p. 55; Lookofsky,
p. 276].
112
113
114
115
116
Memorandum for CLAIMANT Arguments
26
In addition, it is widely accepted that the software’s mode of delivery is irrelevant [Rb Arnhem, 28
June 2006; HG Zürich, 17 Feb 2000; Brunner, Art. 2, § 4; Huber/Mullis, p. 43; Saenger in Bamberger/Roth, Art.
1, § 7; Schlechtriem/Schwenzer, Art. 1, § 18; Siehr in Honsell, Art. 2, § 4]. No economic or legal distinctions
should be associated to this question. Furthermore, the question whether the software at hand is a standard
or a customized software is irrelevant to know whether or not software is a good [BGH, 4 Dec 1996,
§ 2.a).; Diedrich, Software Revisited, p. 60; Green/Saidov, p. 171; Huber/Mullis, p. 43; Johannsen, p. 73-74;
Lookofsky, p. 278; Schlechtriem/Schwenzer, Art. 1, § 18; Schmitt, p. 61-63].
Hence, software is a tangible, movable good.
b. In any event, the CISG allows for an extensive interpretation of the term “goods”
Even in case of doubts concerning the tangibility of the software, CLAIMANT respectfully requests the
Tribunal to bear in mind that the term “goods” should be interpreted extensively [OLG Koblenz, 17 Sept
1993; Huber/Mullis, p. 41; Piltz, UN-Kaufrecht, § 48]. This interpretation is consistent with the spirit of
Art. 2 CISG that provides for only few exceptions to the application of the Convention [Piltz, UN-
Kaufrecht, § 48].
In addition, the application of the CISG to the SLA cannot be excluded because of the mere fact that
the “international legislators” did not consider the application of the CISG to software transactions
[Diedrich, Maintaining Uniformity, p. 321]. Since then, software has entered the agenda of every day
international commercial transactions, reason why the legal concepts inhering in the CISG need to be
adjusted to the digital age [cf. Green/Saidov, p. 165]. An extensive interpretation of the term “goods” is thus
desirable for the sake of fostering international commerce [cf. Preamble, Art. 7(1) CISG; Johannsen, p. 54;
Scott, p. 231; Sono, p. 525] and legal certainty [Diedrich, Software Revisited, p. 61-62].
There is no convincing reason why the sale of software should be excluded from the statutory
protection afforded to other goods. Therefore, the SLA is a sale of goods contract in the sense of the CISG.
CONCLUSION: Considering that the substantial part of the materials necessary for the production of the
software rests with CLAIMANT and that the preponderant part of CLAIMANT’s obligations lies in the supply
of goods, the SLA is an international contract for the sale of goods in the sense of the CISG.
II. THE ST 2011 HAVE BEEN VALIDLY INCORPORATED IN THE SLA
RESPONDENT erroneously contends that the ST 2000, which are incorporated in the FSA, apply to the
SLA. By doing so, it wilfully ignores that the ST 2011 have been validly integrated into the SLA.
Therefore, the Tribunal is respectfully requested to consider the reasons leading to this conclusion. First,
the ST 2011 constituted fully part of the offer made by CLAIMANT when negotiating the SLA (A.). Second,
117
118
119
120
121
122
123
Memorandum for CLAIMANT Arguments
27
RESPONDENT’s acceptance of the ST 2011 can be presumed from its conduct (B.). In any event, Art. 9
CISG supports the valid incorporation of the ST 2011 in the SLA (C.).
A. THE ST 2011 CONSTITUTED PART OF CLAIMANT’S OFFER
Art. 14(1) CISG states that “a proposal for concluding a contract […] constitutes an offer if it is sufficiently
definite and indicates the intention of the offeror to be bound in case of acceptance”. This provision
requires clear reference by the offeror to the standard terms so as to form part of the offer [OLG Linz, 8 Aug
2005; CISG-AC 13, § 1.6; Eiselen, p. 7; Piltz, AGB, p. 134; Schlechtriem/Schwenzer, Art. 14, § 37; cf. LG Coburg,
12 Dec 2006].
Indeed, CLAIMANT expressed its intention to apply its new ST 2011 from the outset. On 5 July
2011, during the negotiations, CLAIMANT informed RESPONDENT about the overhaul of its ST 2000 and
enclosed a draft of the contract [Cl. Ex. 5]. CLAIMANT specified that the new version, i.e. ST 2011, would
apply to all contracts concluded from the beginning of July [Cl. Ex. 5]. Its offer to conclude the SLA
reached RESPONDENT on 18 July 2011 reminding in its footer the overhaul of the ST 2000 [Re. Ex. 3]. This
information was echoed in the SLA itself: Art. 46 SLA expressly referred to the ST 2011, stating that “this
Agreement is subject to the Seller’s Standard Terms and Conditions for Sale” [Cl. Ex. 6]. Besides, since the
draft of the SLA was already in RESPONDENT’s possession on 5 July 2011, it must have seen and read Art.
46 at this time [Cl. Ex. 5]. Consequently, CLAIMANT’s offer to include the ST 2011 in the SLA was
sufficiently definite and indicated a real intention to apply them.
B. RESPONDENT’S BEHAVIOUR ENTAILED ITS FULL ACCEPTANCE OF THE ST 2011
RESPONDENT’s behaviour should be understood as a full acceptance of CLAIMANT’s offer. Firstly,
RESPONDENT signed the offer without lodging any objections thereto (1.). Secondly, it should have known
about the content of the ST 2011 (2.). Alternatively, RESPONDENT’s knowledge about the substance of the
ST 2011 can be reasonably presumed (3.).
1. RESPONDENT signed the SLA without lodging any objections
It is common ground that the acceptance of an offer containing a clause which incorporates standard terms
into a contract is effective unless the offeree makes clear indication to the contrary [OGH, 17 Dec 2003;
CISG-AC 13, § 1.6; Eiselen, p. 7; Lautenschlager, p. 283].
In the case at hand, RESPONDENT accepted the offer without lodging any objections to the inclusion
of the ST 2011 [Re. Ex. 3; Cl. Ex. 6], even though it was aware of the existence of the incorporation clause,
i.e. Art. 46 SLA. Indeed, Art. 46 SLA is the very last provision of the SLA and is situated right above the
space reserved for the signing of the contract [Cl. Ex. 6]. RESPONDENT’s representative, Mr. Peter
Account, could thus easily have seen it. Therefore, it can only be assumed that he was aware of the
124
125
126
127
128
Memorandum for CLAIMANT Arguments
28
existence of the ST 2011 [cf. Stella Maris v. Cork Supply]. Nevertheless, he did not raise any formal
objections to it, which leads unequivocally to their application.
2. RESPONDENT should have been aware about the content of the ST 2011
Although RESPONDENT asserts that it did not comprehend the content of the ST 2011 [A.R.A., § 17], the
Tribunal should bear in mind that within international business relations, there is a strong presumption of
professional competence [ICC Case No. 5346/1988; ICC Case No. 1900/1972; Berger, p. 4]. For this very
reason there is no need to overprotect one party [Mittmann, p. 103-106].
The Parties are not consumers. RESPONDENT is a hospital known worldwide for its cancer
treatments [R.A., § 2]. It can be then presumed that RESPONDENT operates within international trade to
purchase the facilities necessary for its services. Thus, RESPONDENT is not a consumer.
CLAIMANT offered RESPONDENT a reasonable opportunity to take notice of the ST 2011, through a
website link contained in a letter (a.). Moreover, RESPONDENT was under the duty to take measures to
understand the content of the ST 2011 (b.).
a. CLAIMANT offered a reasonable opportunity to take notice of the ST 2011
The existence of a reasonable opportunity to take notice of standard terms allows their valid incorporation
into a contract [CISG-AC 13, § 2.5; Schlechtriem/Schwenzer, Art. 14, § 40]. More to the point, “the offeree
can be expected to look up the standard terms on the Internet” [Lautenschlager, p. 281; cf. Stiegele/Halter,
p. 169].
The Tribunal is respectfully requested to follow a Belgian court judgment from 1995 stating that
as long as the possibility to obtain the standard terms’ content exists, it is not necessary to send them
[Lautenschlager, p. 278, commenting TCo Nivelles, 19 Sept 1995]. In that Belgian case, the seller referred in its
offer to the standard terms in bold letters. The court decided that they had been validly incorporated into
the contract [TCo Nivelles, 19 Sept 1995].
While this decision may be opposed by a newer but contradictory case rendered by the German
Supreme Court [Machinery Case, BGH, 31 Oct 2001], the latter judgment should be disregarded by the
Tribunal. Many leading authors indeed consider it as incompatible with Art. 8 CISG since the ruling tried
to impose exceedingly requirements for the party that aims to incorporate its standard terms [CISG-AC 13,
§ 2.5; Eiselen, p. 12; Lautenschlager, p. 278; Kindler, p. 226-234; Schlechtriem/Schwenzer, Art. 8, § 53; Schmidt-
Kessel/Meyer, p. 177-180; cf. Huber, p. 127]. The categorical position held in the Machinery Case contradicts
the spirit of Art. 8 CISG, since it does not examine all the relevant circumstances surrounding the case.
Furthermore, the German Tribunal in that case ignored the previous Belgian decision: this, in itself, is a
breach of Art. 7 CISG, which promotes a uniform interpretation of the Convention by considering the
relevant decisions of other States [Ferrari, Tribunale di Vegevano, p. 205; Trib Vigevano, 12 July 2000].
129
130
131
132
133
134
Memorandum for CLAIMANT Arguments
29
For these reasons, the Belgian decision should serve as reference for the present case. CLAIMANT
offered RESPONDENT a reasonable opportunity to take notice of its ST 2011. The footer of the offer from
5 July 2011 contained a website link leading to the ST 2011 themselves. Moreover, CLAIMANT underlined
the word “new” in the footer [Cl. Ex. 5].
Other, more practical reasons, support this conclusion. The use of a website link as reference to
standard terms saves time and avoids delays of contract conclusion [Lautenschlager, p. 281]. They can thus
be “perused and printed immediately, a process much faster than mail” [ibid., p. 281]. This mode of
reference also offers convenience to the reader who “can search for key words in the full text and thereby
find decisive parts quickly” [ibid., p. 282] such as the choice of law clause in the present case. This is
relevant in the case at hand, as the faster the SLA was concluded, the faster the Parties could begin their
cooperation in order to cure patients with the new proton therapy facility and save lives.
Thus, RESPONDENT was provided with a reasonable opportunity to take notice of the ST 2011.
b. In addition, RESPONDENT disposed of appropriate means that it should have used to
understand the ST 2011
RESPONDENT argues that CLAIMANT supplied an insufficient English translation of the ST 2011 on its
website from 1 July to 4 July 2011 and therefore it could not understand them.
Nevertheless, RESPONDENT was under a duty to take measures in obtaining sufficient knowledge of
the substance of the ST 2011. When business relations become particularly intense and economically
important to a party, that party should take appropriate steps to know the content of standard terms
written in a foreign language [OGH, 17 Dec 2003]. The addressee of such terms should accordingly request
for a translation to be furnished by the offeror or attend to such a translation itself. In case of doubts
concerning the content of those terms, the addressee is held to “make objections to get sufficient certainty,
to make further inquiries or use a professional translation” [LG Kassel, 15 Feb 1996].
The purchase price under the SLA amounts to USD 3.5 Mio [Art. 3(2) SLA]. To reach this price,
CLAIMANT granted RESPONDENT a considerable discount as a gesture of goodwill. With this in mind,
RESPONDENT should have taken measures to access the ST 2011. Such measures were reasonably available
for RESPONDENT. It could have asked its Mediterranean speaking employee to translate the ST 2011 (i.), or
could have used an electronic translator (ii.). Finally, it could have contacted CLAIMANT to clear up any
confusion regarding the ST 2011’s content (iii.).
i. RESPONDENT could have consulted its Mediterranean speaking employee
RESPONDENT could have asked one of its employees, a young doctor assistant who speaks Mediterranean,
to translate the ST 2011 to Equatorianean or English. In this respect, a German State Court judged that
135
136
137
138
139
140
141
Memorandum for CLAIMANT Arguments
30
standard terms are included if the employee dealing with the contract is able to speak the language in
which the standard terms were written [OLG Düsseldorf, 21 Apr 2004].
RESPONDENT’s employee took part in the first meeting for negotiating the SLA [PO2, § 35; Re. Ex.
2]. At this meeting, this doctor assistant spoke with CLAIMANT’s technicians in Mediterranean [PO2, § 35].
A whole month passed between the final negotiation meeting, i.e. 2 June 2011, and the day he left on
holiday, i.e. 5 July 2011. During that period, RESPONDENT could have asked him to consult and translate
the ST 2011. Moreover, nowadays it is common to stay in touch and be reachable on holidays. This applies
especially to medical staff, which must be reachable at all times in case of emergency [Council of Europe,
Doc. 8751]. The young doctor was thus reachable on its holidays and RESPONDENT could have called him to
dispel its doubts related to the ST 2011.
In any event, the young doctor returned to work on 20 July 2011, the day of the conclusion of the
SLA. If RESPONDENT had had doubts regarding the ST 2011 content, it could have asked its employee to
provide a quick translation at that moment.
ii. RESPONDENT could have used other means of translation
Nowadays, electronic translators are common tools for quick translations of any language. In this context,
a duty to translate the content of the ST 2011 could have been imposed upon RESPONDENT, especially in
view of the few articles that the ST 2011 contained [cf. Lautenschlager, p. 274]. RESPONDENT could have
copied and pasted the ST 2011 in an electronic translator in order to understand their content.
iii. RESPONDENT could have contacted CLAIMANT for further inquiries
Within business relations, the mere possibility of obtaining reasonable information about the content of
standard terms by request is sufficient to include them [Kindler, p. 229]. However, RESPONDENT did not
contact CLAIMANT to obtain a hard copy of the ST 2011 although CLAIMANT did provide the means.
Indeed, CLAIMANT mentioned an e-mail address, a phone and a fax number in the footer of its offer [Cl. Ex.
5]. The e-mail address was explicit: [email protected]. A reasonable person of the same kind would have
understood that this address was given to obtain information. CLAIMANT’s website also provided for a phone
number in case of inquiries [PO2, § 32]. RESPONDENT has never used neither the e-mail address nor the
phone or fax number [cf. CIETAC, 16 Sept 2005].
Moreover, RESPONDENT cannot rely on the promise made by CLAIMANT’s representative, Dr Vis,
who was in charge with the negotiations, to provide an English translation [Re. Ex. 2]. Unfortunately, Dr
Vis had a stroke [Re. Ex. 2; PO2, § 34] and was unable to inform his substitute Lisa Maier about his promise.
RESPONDENT was aware of Dr Vis’ medical condition [Re. Ex. 2]. Nevertheless, it did not remind Lisa
Maier, “who knew nothing about Dr Vis’ promise”, of the missing translation [PO2, § 33]. It is clear that
RESPONDENT showed no interest in obtaining the content of the ST 2011.
142
143
144
145
146
Memorandum for CLAIMANT Arguments
31
To sum up, RESPONDENT could have asked its employee to translate the ST 2011 or it could have
used an electronic translator. Had RESPONDENT really been concerned about the ST 2011 content, it could
have called or emailed CLAIMANT. None of these actions had been undertaken. Was the ST 2011 language
a real issue for RESPONDENT? Or was RESPONDENT too focused on the considerable discount on the
purchase price, to the point that the language in which ST 2011 were couched became wholly immaterial
[Eiselen, p. 17]? These are the real questions CLAIMANT respectfully requests the Tribunal to bear in mind.
3. Alternatively, RESPONDENT’s knowledge about the substance of the ST 2011 can be
reasonably presumed [Art. 8 CISG]
De non vigilantibus non curat praetor [Eng.: The judge will not protect those who do not worry about their interests].
The parties involved in international business must immediately object to the application of standard terms
if they are not able to understand them [OGH, 17 Dec 2003]. An American Court ruled in the same spirit
[Marble Ceramic v. Ceramica Nuova]. It would be astonishing that a party with broad experience in
commercial matters signs a contract in a foreign language and expects not to be bound solely because it
cannot understand the content.
RESPONDENT adopted a reckless behaviour by signing the SLA without any further inquiry about
the ST 2011. Due to its international reputation [R.A., § 2; Cl. Ex. 1], RESPONDENT is deemed to have
broad experience in commercial matters. Accordingly, it should have declared its lack of understanding
regarding the ST 2011 before signing the SLA.
Consequently, RESPONDENT was bound by the ST 2011 because it signed the SLA. RESPONDENT
cannot be released from this commitment two years later, on the pretext that it was unaware of what it
signed [ICC No. 1900/1972]. RESPONDENT’s knowledge can be thus reasonably presumed [OGH, 17 Dec
2003].
C. IN ANY EVENT, ART. 9 CISG LEADS TO THE VALID INCORPORATION OF THE ST 2011
Should the Tribunal find that the incorporation of the ST 2011 into the SLA by means of offer and
acceptance does not suffice, it is then respectfully requested to consider that Art. 9 CISG entails the
incorporation of ST 2011. Firstly, the Parties have established practices regarding the integration of the ST
2000, which are acted on in the case at hand (1.). Secondly, application of international commercial usages
leads to the same result (2.).
1. The Parties acted on the practice developed between themselves [Art. 9(1) CISG]
Within the incorporation of the ST 2000 in the FSA, the Parties established a practice on the means by
which they incorporate the CLAIMANT’s standard terms into their contracts. They are consequently bound
147
148
149
150
151
152
Memorandum for CLAIMANT Arguments
32
by their practice and must act in accordance to it [Art. 9(1) CISG; OGH, 17 Dec 2003; OGH, 6 Feb 1996;
Lautenschlager, p. 280].
Regarding the FSA, CLAIMANT sent its offer within a letter mentioning in its footer a website link
leading to the ST 2000 [Cl. Ex. 3]. Art. 46 FSA provided for the application of the ST 2000 [Cl. Ex. 2]. It
must be pointed out that RESPONDENT did not object to the incorporation of the ST 2000. The course of
conduct adopted by RESPONDENT created an expectation that the Parties would proceed in the same way
for future contracts [Schlechtriem/Schwenzer, Art. 9, § 8].
The Parties observed the same behaviour regarding the incorporation of the ST 2011 in the SLA.
CLAIMANT sent its offer again by letter, containing the same link leading to the new ST 2011 [Cl. Ex. 5].
Furthermore, the SLA contained an incorporation clause, i.e. Art. 46 SLA, referring to the ST 2011
[Cl. Ex. 6]. Once again, RESPONDENT did not object. By adopting the very same conduct in both cases,
RESPONDENT comforted CLAIMANT in the expectation that the ST 2011 would apply.
2. The interpretation of international commercial usages leads to the incorporation of
ST 2011 into the SLA [Art. 9(2) CISG]
Parties involved in business transactions should anticipate the application of standard terms [BGH, 3 Feb
1982; Kindler, p. 229]. In this case, the Parties entered into a business relationship regarding a sale contract
[cf. infra § 94]. In this particular field, the use of standard terms is widespread [Hof’s-Hertogenbosch, 16 Oct
2002]. Accordingly, it will be shown that RESPONDENT should have expected that CLAIMANT would apply
its latest set of standard terms.
It should here be pointed out that major changes occurred in the area of proton therapy during the
last decade [Flanz/Bortfeld, p. 142]. In particular, it is the start of the third generation of proton therapy,
with “technologies that bring us closer to the physical potential of proton therapy, and at the same time
make the machines more cost-efficient” [ibid., p. 142]. In that light, it should come as no surprise that
CLAIMANT regularly overhauled its standard terms in the past [R.A., § 14]. As the previous version of its
terms was eleven years old at the time of the negotiations, it was foreseeable that they would need an
update to better suit the latest technological developments. Indeed, since the SLA signed by the Parties
concerned a completely new technology, i.e. the active scanning technology, RESPONDENT should have
expected such an overhaul. Additionally, since the drafting of ST 2000, there have been over 15 new
Member States to the CISG and the Convention has become very important in recent times
[www.uncitral.org]. As a result, the legal setting is very different than it was in 2000, which is another
foreseeable reason why the ST needed updating.
CONCLUSION: In view of the above, CLAIMANT respectfully asks the Tribunal to hold that the ST 2011
have been validly incorporated in the SLA.
153
154
155
156
157
Memorandum for CLAIMANT Arguments
33
III. SEC. 22 ST 2011 CONTAINS A CHOICE OF LAW CLAUSE IN FAVOUR OF THE CISG
The Tribunal is respectfully requested to find that the CISG governs the claim arising under the SLA. This
results from the fact that, by virtue of Sec. 22 ST 2011, the SLA is subjected to the law of Mediterraneo,
which includes the CISG (A.). Furthermore, the reference made to “the law of Mediterraneo” does not
lead to an opting-out of the CISG (B.).
A. THE SLA IS SUBJECTED TO THE LAW OF MEDITERRANEO INCLUDING THE CISG
Pursuant to Art. 28(1) Model Law “the arbitral tribunal shall decide the dispute in accordance with such
rules of law as are chosen by the parties as applicable to the substance of the dispute”. The Parties’
contracts at hand are governed by the provisions of the FSA, which is a framework agreement [supra § 38],
“where such contracts do not contain a specific provision to the contrary” [Art. 45 FSA, Cl. Ex. 2]. The ST
2011 have been validly included in the SLA [supra § 157]. The choice of law clause in the SLA makes
reference to the “law of Mediterraneo [Sec. 22 ST 2011, Cl. Ex. 9] while the Sec. 22 ST 2000 refers to “the
national law of Mediterraneo as set out in the statutes of Mediterraneo and developed by its courts” [Sec. 22
ST 2000, Cl. Ex. 2]. Sec. 22 ST 2011 thus constitutes a provision contrary to the previous clause.
Consequently, it does replace Sec. 22 ST 2000 and applies to the SLA.
Sec. 22 ST 2011 states that "the contract is governed by the law of Mediterraneo". Mediterraneo is
a member state of the CISG [PO2, § 12] and therefore consolidates the Convention with its national
substantive law. This allows the Convention to become an integral part of its legislation [Asante Technologies
v. PMC-Sierra; BP Oil International v. Empresa Estatal Petroleos de Ecuador; Forestal Guarani v. Daros International;
Anyamele; Bonell in Bianca/Bonell, Art. 6; Felemegas, p. 8].
B. REFERENCE TO THE “LAW OF MEDITERRANEO” DOES NOT LEAD TO AN OPTING-OUT OF THE
CISG
Under Art. 6 CISG, an opting-out of the Convention must be agreed upon by the Parties [Drago/Zoccolillo,
p. 9; Lookofsky, p. 270; Schlechtriem, Uniform Sales Law, p. 35]. In particular, a reference to the law of a
contracting state made without specific indication to the substantive law is insufficient to opt-out of the
CISG [American Mint et al. v. GOSoftware; Asante Technologies v. PMC-Sierra; BP Oil International v. Empresa
Estatal Petroleos de Ecuador; Easom Automation Systems v. Thyssenkrupp Fabco; The Travelers Property Casualty and
Hellmuth Obata & Kassabaum, v. Saint-Gobain Technical Fabrics; BGH 25 Nov 1998; ICC Case No. 8324/1995;
Butler, p. 8; Drago/Zoccolillo, p. 9; Leete, Ch. V; Saf, Ch. 5; Schlechtriem, Requirements of Application, p. 784;
Schlechtriem/Schwenzer, Art. 6, § 13-15]. In support of this idea, leading cases underline that the provision
making reference to the law of a certain country or region does obviously not exclude the application of
the CISG, since, after the signatory’s assent, the Convention becomes integral part of the law of that State
[Ajax Tool Works v. Can-Eng Manufacturing; Forestal Guarani v. Daros International; BGH 25 Nov 1998]. More
158
159
160
161
Memorandum for CLAIMANT Arguments
34
generally, there is no need for the Parties to agree on the application of the CISG since it applies by default
[Lookofsky, p. 272]. It must thus follow that choosing “the law of Mediterraneo” without any other mention,
as in the case at hand, cannot lead to the exclusion of the CISG.
Furthermore, during the negotiations, RESPONDENT did not act in a way that would lead to an
implicit rejection of the CISG. To that effect, it must be reminded that the notion of implicit opting-out is
to be strictly considered under the Convention [Honnold, Art. 6, § 76; Schlechtriem, Uniform Sales Law, p. 35].
The CISG is deemed to be applicable even if the parties did not settle on a choice of law clause or if they
remained silent about this issue [AC BCCI No. 41/2000; Butler, p. 9]. In the current case, RESPONDENT had
several opportunities to object to the choice of law, but did not react. In point of fact, during the
negotiations conducted on 2 June 2011, Dr Vis, CLAIMANT’s representative, informed RESPONDENT that
the ST 2011 contained some changes. He underlined that he was not a lawyer and that, “according to what
he had understood”, the only changes affected the limitation of liability [PO2, § 31]. RESPONDENT refrained
from asking CLAIMANT for further information and from verifying whether Dr Vis’ statement was accurate.
Moreover, RESPONDENT could have sought legal advice, as it did for the conclusion of the FSA [PO2, § 10].
Although RESPONDENT checked the ST 2011 on CLAIMANT’s website on 14 July 2011, it did not react to
the choice of law clause [PO2, § 33]. This demonstrates that RESPONDENT did not show any interest in the
choice of law under the SLA and remained completely silent about this issue.
Furthermore, on 30 July 2011, one of RESPONDENT’s negotiators had a look at the English version
of the ST 2011 on CLAIMANT’s website [PO2, § 33] without reacting to the choice of law clause. If the
CISG was against RESPONDENT’s choice, it could have proposed to make a subsequent choice of law in
order to exclude it. However, RESPONDENT remained silent until the dispute arose. Contesting the choice
of law only now shows an attitude against good faith in this regard [Schlechtriem/Schwenzer, Art. 6, § 21].
Considered from the standard of good faith in business and taking into account the CISG’s strict
requirement for implicit exclusion, RESPONDENT’s lack of willingness to proceed to an exclusion of the
Convention is undeniable.
Assuming that RESPONDENT wanted to exclude the application of the CISG, this was certainly not
the case for CLAIMANT. In fact, CLAIMANT was convinced that the CISG was the best choice for both
Parties. Veritably, if there was an exclusion of the CISG, the law of Mediterraneo would be applicable.
Beyond every doubt, the CISG was militating for Parties’ best interests since it is a neutral law, known
worldwide. Its content is remarkably well-documented and the text is available in numerous languages,
including English. As a result, translation costs decrease, the law that is easily accessible and less uncertain.
All the factors listed above ensure more efficient and reliable contracts [Fountoulakis, p. 303, 311, 313-
314]. That is why CLAIMANT did not want to opt-out of the CISG.
162
163
164
165
Memorandum for CLAIMANT Arguments
35
Accordingly, the Parties did not agree to opt-out of the CISG and as a consequence the
Convention applies to the SLA.
CONCLUSION: Sec. 21 ST 2011 leads to the application of the CISG.
In light of the qualification of the SLA as an international contract of sale of goods, the valid incorporation
of ST 2011 and their choice of law clause designating the CISG, the CLAIMANT respectfully requests the
Tribunal to hold that the CISG governs the claim arising under the SLA.
REQUEST FOR RELIEF
In the light of the above submissions, CLAIMANT respectfully requests the Tribunal to find that:
1) It has jurisdiction to deal with the payment claims arising out of the FSA and of the SLA;
2) Both claims should be heard in a single arbitration;
3) The CISG governs the claim arising under the SLA.
CLAIMANT reserves the right to amend its request for relief as may be required.
166
167
Memorandum for CLAIMANT Certificate
VI
CERTIFICATE
Geneva, 12 December 2013
We hereby confirm that this memorandum was written only by the persons whose names are listed
below and who signed this certificate.
Adila Abdieski
Adila Abdieski
Roxane Allot
Melania Arginteanu
Leonardo Jelmini
Astrid Keller
Nicola Kleinjohann
Memorandum for CLAIMANT Table of Authorities
VI
TABLE OF AUTHORITIES
Cited as Reference Cited in
Anyamele Uche Anyamele, The United Nations Convention on
Contracts for the International Sale of Goods: A Proposal for
Nigeria
(Durham, University of Durham, 2011)
§ 160
Author in
Bamberger/Roth
Heinz Georg Bamberger, Herbert Roth (eds),
Kommentar zum Bürgerlichen Gesetzbuch, Band 3:
§§ 1297-2385, EGBGB, CISG
(München, C.H. Beck, 2003)
§ 106, 117
Berger Klaus P. Berger, Die Einbeziehung von AGB in
internationale Kaufverträge in Klaus Peter Berger et al.
(eds), Zivil- und Wirtschaftsrecht im Europäischen und
Globalen Kontext: Festschrift für Norbert Horn zum 70.
Geburtstag
(Berlin, De Gruyter Recht, 2006, p. 3-20)
§ 129
Berger/Kellerhals Bernhard Berger, Franz Kellerhals, International and
Domestic Arbitration in Switzerland
(2nd edn, Bern, Stämpfli Verlag, 2010)
§ 35, 49, 53
Author in Bianca/Bonell Cesare Massimo Bianca, Michael Joachim Bonell
(eds), Bianca-Bonell Commentary on the International Sales
Law
(Milan, Guiffrè Editore, 1987)
§ 160
Binder Peter Binder, International Commercial Arbitration and
Conciliation in UNCITRAL Model Law Jurisdiction
(3rd edn, London, Sweet & Maxwell, 2009)
§ 66
Bishop R. Doak Bishop (ed.), The Art of Advocacy in International Arbitration (Bern, Staemplfli, Juris Publishing, 2004)
§ 77
Memorandum for CLAIMANT Table of Authorities
VII
Cited as Reference Cited in
Bond Stephen R. Bond, Dépeçage of Consolidation of the
Disputes Resulting from Connected Agreements: The Role of
the Arbitrator in Bernard Hanotiau, Eric A. Schwartz
(eds), Multiparty Arbitration
(Paris, ICC Publication No. 701, Dossier VII of the
ICC Institute of World Business Law, 2010, p. 35-43)
§ 64
Bonell Michael Joachim Bonell, ‘The CISG and the Unidroit
Principles of International Commercial Contracts:
Two Complementary Instruments’
(International Law Review of Wuhan University, Issue
10, 2008-2009, p. 100-117)
§ 70
Bonell/Liguori Michael Joachim Bonell, Fabio Liguori, ‘U.N.
Convention on the International Sale of Goods: A
Critical Analysis of Current International Case Law
(Part I)’
(Uniform Law Review, 1996, p. 147-163)
§ 103
Born,
Commentary
Gary B. Born, International Commercial Arbitration:
Commentary and Materials
(2nd edn, New York, Ardsley, 2001)
§ 11, 66
Born,
Commercial Arbitration
Gary B. Born, International Commercial Arbitration
(Alphen aan den Rijn, Wolters Kluwer, vol. I, 2009)
§ 5, 10, 17,
22, 23, 35,
48, 49, 50, 71
Born,
Forum Selection
Gary B. Born, International Arbitration and Forum
Selection Agreements: Drafting and Enforcing
(4th edn, Alphen aan den Rijn, Kluwer Law
International, 2013)
§ 55
Born,
Law and Practice
Gary B. Born, International Arbitration: Law and Practice
(Alphen aan den Rijn, Wolters Kluwer, 2012)
§ 5, 10, 64,
80
Memorandum for CLAIMANT Table of Authorities
VIII
Cited as Reference Cited in
Brekoulakis Stavros Brekoulakis, ‘The Notion of the Superiority of
Arbitration Agreements over Jurisdiction
Agreements: Time to Abandon It?’
(ASA Bulletin, Kluwer Law International, vol. 24,
Issue 4, 2007, p. 341-364)
§ 53
Brunner Christoph Brunner, UN-Kaufrecht – CISG: Kommentar
zum Übereinkommen der Vereinten Nationen über den
internationalen Warenkauf von 1980
(Bern, Stämpfli Verlag, 2004)
§ 99, 103,
105, 117
Butler Allision E. Butler, ‘A Practical Guide to the CISG:
Negotiations through Litigation, Chapter 2:
Application of the CISG’
(Aspen Publishers, Supplement 2, 2007, p. 1-21,
available at
http://www.cisg.law.pace.edu/cisg/biblio/butler6-
ch2.pdf, last seen 11.12.2013)
§ 161, 162
Calmo Vera Calmo, ‘Report on the CEPANI40 lunch debate
of 14 March 2013 with Prof. Guy Keutgen on the
subject of CEPANI’s new arbitration rules’
(CEPANI Newsletter 74, April 2013, available at
http://www.cepani.be/sites/default/files/generated
/files/newsletter/newsletter74.pdf, last seen
11.12.2013)
§ 62
Chochitaichvili Dodo Chochitaichvili, ‘Belgium’s arbitration
institution adopts new Arbitration Rules and new
Mediation Rules from 1 January 2013’
(International Arbitration Newsletter of DLA Piper,
27 March 2013, available at
http://www.dlapiper.com/global/publications/Deta
il.aspx?pub=7919&RSS=true, last seen 11.12.2013)
§ 62
Memorandum for CLAIMANT Table of Authorities
IX
Cited as Reference Cited in
CISG-AC 4
Contracts for the Sale of Goods to Be Manufactured or
Produced and Mixed Contracts (Article 3 CISG), 24
October 2004
Rapporteur: Professor Pilar Perales Viscasillas,
Universidad Carlos III de Madrid
Adopted by the CISG-AC on the 7th meeting held in
Madrid with no dissent
§ 103, 106,
110
CISG-AC 13 Inclusion of Standard Terms under the CISG
Rapporteur: Professor Sieg Eiselen, College of Law,
University of South Africa, Pretoria, South Africa
Adopted by the CISG Advisory Council following its
17th meeting, in Villanova, Pennsylvania, USA, on 20
January 2013
§ 124, 127,
132, 134
Council of Europe,
Doc. 8751
Impact des nouvelles technologies sur la législation du travail
Rapporteur: M. Claude Birraux, France, Groupe du
parti populaire européen
Rapport, Commission des questions sociales, de la
santé et de la famille
Pour débat à la Commission permanente – Voir article
15 du Règlement
Doc. 8751, 6 juin 2000
§ 142
Craig/Park/Paulsson Laurence Craig, William Park, Jan Paulsson,
International Chamber of Commerce Arbitration
(3rd edn, New York, Oceana Publications, 2000)
§ 7
Debourg Claire Debourg, Les contrariétés de décisions dans
l’arbitrage international
(Paris, LGDJ, 2012)
§ 77
Memorandum for CLAIMANT Table of Authorities
X
Cited as Reference Cited in
Diedrich,
Maintaining Uniformity
Frank Diedrich, ‘Maintaining Uniformity in
International Uniform Law Via Autonomous
Interpretation: Software Contracts and the CISG’
(Pace International Law Review, Issue 8, 1996,
p. 303-338)
§ 120
Diedrich,
Software Revisited
Frank Diedrich, ‘The CISG and Computer Software
Revisited’
(Vindobona Journal of International Commercial Law
and Arbitration, Supplement, Issue 6, 2002, p. 55-75)
§ 99, 117,
120
Drago/Zoccolillo Thomas J. Drago, Alan F. Zoccolillo, ‘Be Explicit:
Drafting Choice of Law Clauses in International Sale
of Goods Contracts’
(The Metropolitan Corporate Counsel, 2002, p. 9,
available at
http://www.cisg.law.pace.edu/cisg/biblio/zoccolill
o1.html, last seen 11.12.2013)
§ 161
Eiselen Sieg Eiselen, ‘The Requirements for the Inclusion of
Standard Terms in International Sales’
(Potchefstroom Electronic Law Journal, vol. 14,
2011, p. 1-31)
§ 124, 127,
134, 147
Felemegas John Felemegas (ed.), An International Approach to the
Interpretation of the United Nations Convention on
Contracts for the International Sale of Goods (1980) as
Uniform Sales Law
(Cambridge, Cambridge University Press, 2007, p. 8)
§ 160
Fentiman Richard Fentiman, International Commercial Litigation
(Oxford, OUP, 2010)
§ 53
Memorandum for CLAIMANT Table of Authorities
XI
Cited as Reference Cited in
Ferrari,
Applicability
and Applications
Franco Ferrari, Contracts for the International Sale of
Goods: Applicability and Applications of the 1980 United
Nations Sales Convention
(Leiden, Boston, Martinus Nijhoff, 2012)
§ 107
Ferrari,
Tribunale di Vigevano
Franco Ferrari, ‘Applying the CISG in a Truly
Uniform Manner: Tribunale di Vigevano (Italy), 12
July 2000’
(Uniform Law Review, 2001, p. 203-215, available at
http://www.cisg.law.pace.edu/cisg/biblio/ferrari4.
html, last seen 11.12.2013)
§ 134
Flanz/Bortfeld Jacob Flanz, Thomas Bortfeld, ‘Evolution in
Technology to Optimize the Delivery of Proton
Therapy: The Third Generation’
(Seminars in Radiation Oncology, vol. 23, Issue 2,
2013, p. 142-148)
§ 156
Fouchard/Gaillard/
Goldman
Emmanuel Gaillard, John Savage (eds), Fouchard
Gaillard Goldman on International Commercial Arbitration
(The Hague, Kluwer Law International, 1999)
§ 19, 23, 35,
48, 64
Fountoulakis Christiana Fountoulakis, ‘The Parties’ Choice of
‘Neutral Law’ in International Sales Contracts’
(European Journal of Law Reform, Vol. VII, No. 3/4,
2005, p. 303-329)
§ 165
Friedland Paul D. Friedland, Arbitration Clauses for International
Contracts
(Yonkers, New York, Juris Publishing, 2000)
§ 53
Memorandum for CLAIMANT Table of Authorities
XII
Cited as Reference Cited in
Fry/Greenberg/Mazza Jason Fry, Simon Greenberg, Francesca Mazza, The
Secretariat’s Guide to ICC Arbitration: A Practical
Commentary on the 2012 ICC Rules of Arbitration from the
Secretariat of the ICC International Court of Arbitration
(Paris, ICC Publication No. 729, 2012)
§ 69
Author in Gaillard Emmanuel Gaillard (ed.), The Review of International
Arbitral Awards
(Dijon, JURIS, 2008)
§ 17
Gilbert John Gilbert, Multi-Party and Multi-Contract Arbitration
in Julian D. M. Lew et al. (eds), Arbitration in England,
with chapters on Scotland and Ireland
(Alphen aan den Rijn, Kluwer Law International,
2013)
§ 76
Green/Saidov Sarah Green, Djakhongir Saidov, ‘Software as Goods’
(Journal of Business Law, March 2007, p. 161-181)
§ 116, 117,
120
Grierson/van Hooft Jacob Grierson, Annet van Hooft, Arbitrating under the
2012 ICC Rules: An Introductory User’s Guide
(Alphen aan den Rijn, Wolters Kluwer, 2012)
§ 76
Hanotiau,
Complex Arbitrations
Bernard Hanotiau, Complex Arbitrations: Multiple Parties
and Multiple Contracts in International Arbitration in
Permanent Court of Arbitration (ed.), Multiple Party
Actions in International Arbitration
(Oxford, OUP, 2009)
§ 64
Hanotiau,
Consent to Arbitration
Bernard Hanotiau, ‘Consent to Arbitration: Do We
Share a Common Vision?’
(Arbitration International, vol. 27, Issue 4, 2011,
p. 539-554)
§ 12
Memorandum for CLAIMANT Table of Authorities
XIII
Cited as Reference Cited in
Hollander Pascal Hollander, ‘The CEPANI 2013 Arbitration
Rules’
(Les Cahiers de l’arbitrage, No. 1, 2013, p. 231)
§ 85, 88
Honnold John O. Honnold, Harry M. Flechtner (ed.), Uniform
Law for International Sales under the 1980 United Nations
Convention
(4th edn, Alphen aan den Rijn, Kluwer Law
International, 2009)
§ 110, 162
Author in Honsell Heinrich Honsell, Kommentar zum UN-Kaufrecht:
Übereinkommen der Vereinten Nationen über Verträge über
den Internationalen Warenkauf (CISG)
(2nd edn, Berlin, Heidelberg, Springer-Verlag, 2010)
§ 105, 106,
117
Huber Peter Huber, ‘Standard Terms under the CISG’
(Vindobona Journal of International Commercial Law
and Arbitration, Issue 13, 2009, p. 123-134)
§ 134
Huber/Mullis Peter Huber, Alastair Mullis, The CISG: A new textbook
for students and practitioners
(München, sellier. european law publishers, 2007)
§ 98, 117,
119
Johannsen Olaf Johannsen, Die Haftung für Softwarefehler aus
internationalen Kaufverträgen
(Göttingen, Georg-August-Universität zu Göttingen,
2007)
§ 98, 98, 110,
116, 117, 120
Kaufmann-Kohler Gabrielle Kaufmann-Kohler, Arbitrage international:
Droit et pratique à la lumière de la LDIP
(2nd edn, Bern, Weblaw, 2010)
§ 7, 10, 11,
17, 39, 46
Memorandum for CLAIMANT Table of Authorities
XIV
Cited as Reference Cited in
Kileste/Godin Patrick Kileste, Nicolas Godin, ‘The New Edition of
the CEPANI Rules’
(available at
http://www.buylelegal.eu/doc_publications/58.pdf
last seen 11.12.2013)
§ 62
Kindler Peter Kindler, Ob Walzfräsmaschine oder Schreibtisch-
sessel: Keine Obliegenheit zur AGB-Übersendung beim
Vertragsschluss nach CISG! in Stephan Lorenz et al.
(eds), Festschrift für Andreas Heldrich zum 70. Geburtstag
(München, C.H. Beck, 2005)
§ 134, 145,
155
Author in Kröll et al. Stefan Kröll, Loukas Mistelis, Pilar Viscasillas (eds),
UN Convention for the International Sale of Goods (CISG)
(München, Hart, Nomos, CH. Beck, 2011)
§ 97, 99, 103,
114
Author in Krone et al. Herbert Krone, Patricia Nacimiento, Dirk Otto,
Nicola Christine Port (eds), Recognition and Enforcement
of Foreign Arbitral Awards: A Global Commentary On The
New York Convention
(Alphen aan den Rijn, Kluwer Law International,
2010)
§ 48, 49, 50
Lautenschlager Félix Lautenschlager, ‘Current Problems Regarding
the Interpretation of Statements and Party Conduct
under the CISG – The Reasonable Third Person,
Language Problems and Standard Terms and
Conditions’
(Vindobona Journal of International Commercial Law
and Arbitration, Issue 11, 2007, p. 259-290)
§ 127, 132,
133, 134,
136, 144, 152
Leboulanger Philippe Leboulanger, ‘Multi-Contract Arbitration’
(Journal of International Arbitration, vol. 13, Issue 4,
1996, p. 43-97)
§ 64, 66, 76,
77
Memorandum for CLAIMANT Table of Authorities
XV
Cited as Reference Cited in
Leete Burt A. Leete, ‘Contract Formation under the United
Nations Convention on Contracts for the International
Sale of Goods and the Uniform Commercial Code:
Pitfalls for the Unwary’
(Temple International and Comparative Law Journal,
1992, Ch. V, available at
http://www.cisg.law.pace.edu/cisg/biblio/leete2.ht
ml#bl, last seen 11.12.2013)
§ 161
Author in
Lew/Mistelis/Kröll
Julian D. M. Lew, Loukas A. Mistelis, Stefan Michael
Kröll (eds), Comparative International Commercial
Arbitration
(The Hague, Kluwer Law International, 2003)
§ 35
Liebscher Christoph Liebscher, The Healthy Award - Challenge in
International Commercial Arbitration
(The Hague, Kluwer Law International, 2003)
§ 17, 23
Lookofsky Joseph Lookofsky, ‘In Dubio Pro Conventione? Some
Thoughts About Opt-Outs, Computer Programs and
Preëmption Under the 1980 Vienna Sales Convention
(CISG)’
(Duke Journal of Comparative & International Law,
2003, p. 263-289, available at
http://scholarship.law.duke.edu/cgi/viewcontent.cg
i?article=1145&context=djcil,
last seen 11.12.2013)
§ 98, 116,
117, 161
Maktouf Lotfi Maktouf, ‘Resolving International Tax Disputes
through Arbitration’
(Arbitration International, vol. 4, Issue 1, 1988,
p. 32-51)
§ 105
Memorandum for CLAIMANT Table of Authorities
XVI
Cited as Reference Cited in
Mantilla-Serrano Fernando Mantilla-Serrano, Multiple Parties and
Multiple Contracts: Divergent or Comparable Issues? in
Bernard Hanotiau, Eric A. Schwartz (eds), Multiparty
Arbitration
(Paris, ICC Publication No. 701, Dossier VII of the
ICC Institute of World Business Law, 2010, p. 35-43)
§ 76
Matray Didier Matray, Gautier Matray, ‘Le nouveau
règlement d’arbitrage du centre belge d’arbitrage et
de médiation (CEPANI)’
(b-arbitra, Belgian Review of Arbitration, Bruylant,
n° 1, 2013, p. 45-100, available at
http://issuu.com/deboeck/docs/b-arbitra_batimp/
45?e=1754202/3953279, last seen 11.12.2013)
§ 62, 64
de Meulemeester,
Multicontract Arbitration
Dirk de Meulemeester, ‘Multicontract Arbitration
Under The CEPANI Arbitration Rules (Article 10)’
(Kluwer Arbitration Blog, Wolter Kluwers, 20
October 2013, available at
http://kluwerarbitrationblog.com/blog/2013/10/2
3/multicontract-arbitration-under-the-cepani-
arbitration-rules-article-10/, last seen 11.12.2013)
§ 85
de Meulemeester,
The New Arbitration
Rules
Dirk de Meulemeester, ‘The New Arbitration Rules
of CEPANI’
(Kluwer Arbitration Blog, Wolter Kluwers, 5 August
2013, available at
http://kluwerarbitrationblog.com/blog/2013/08/0
5/the-new-arbitration-rules-of-cepani/, last seen
11.12.2013)
§ 62
Memorandum for CLAIMANT Table of Authorities
XVII
Cited as Reference Cited in
de Meulemeester/Verbist Dirk de Meulemeester, Herman Verbist, Arbitrage in
de praktijk - Op basis van het CEPANI-Arbitragereglement
van 1 januari 2013 en met verwijzingen naar deel VI van
het Gerechtelijk Wetboek
(Bruxelles, Bruylant, 2013)
§ 62
Mittmann Alexander Mittmann, ‘Zur Einbeziehung von
Allgemeinen Geschäftsbedingungen in einen dem
CISG unterliegenden Vertrag’
(International Commercial Law, Issue 3, 2006,
p. 103-106)
§ 129
Neumayer/Ming Karl H. Neumayer, Catherine Ming, François
Dessemontet (ed.), Convention de Vienne sur les contrats
de vente internationale de marchandises: Commentaire
(Lausanne, CEDIDAC, 1993)
§ 97, 105
OCDE OCDE, Principes de l'OCDE applicables en matière de prix
de transfert à l'intention des entreprises multinationales et des
administrations fiscales
(OCDE, 2009)
§ 105
Park William W. Park, Why Courts Review Arbitral Awards in
Robert Briner et al. (eds), Recht der Internationalen
Wirtschaft und Streiterledigung im 21. Jahrhundert: Liber
Amicorum Karl-Heinz Böckstiegel
(Köln, Carl Heymanns, 2001, p. 595-606)
§ 17
Piltz, AGB Burghard Piltz, ‘AGB in UN-Kaufverträgen’
(International Commercial Law, Issue 1, 2004,
p. 133-138)
§ 124
Piltz, UN-Kaufrecht Burghard Piltz, UN-Kaufrecht: Gestaltung von Export-
und Importverträgen: Wegweiser für die Praxis
(2nd edn, Bonn, Economica Verlag, 1996)
§ 119
Memorandum for CLAIMANT Table of Authorities
XVIII
Cited as Reference Cited in
Platte Martin Platte, Multi-party Arbitration: Legal Issues Arising
out of Joinder and Consolidation in Emmanuel Gaillard,
Domenico Di Pietro (eds), Enforcement of Arbitration
Agreements and International Arbitral Awards
(London, Cameron May, 2008, p. 481-499)
§ 64
Poudret/Besson Jean-François Poudret, Sébastien Besson, Comparative
Law of International Arbitration
(2nd edn, London, Sweet & Maxwell, 2007)
§ 49, 53
Primak L. Scott Primak, ‘Computer Software: Should the
U.N. Convention on Contracts for the International
Sale of Goods Apply? A Contextual Approach to the
Question’
(Computer Law Journal, vol. 11, Issue 2, 1991,
p. 197-231)
§ 98
Pryles/Waincymer Michael Pryles and Jeff Waincymer, Multiple Claims in
Arbitration Between the Same Parties in Albert Jan van den
Berg (ed.), 50 Years of the New York Convention: ICCA
International Arbitration Conference
(Dublin, Kluwer International, vol. 14, p. 437-499)
§ 35, 77, 80
Raschle/Borriello/
Hämmerle
Norbert A. Raschle, Maurizio Borriello, Stefan
Hämmerle, Transfer Pricing in der Unternehmenspraxis -
Steuerplanung und Verteidigung in Peter V. Kunz, Oliver
Arter, Florian S. Jörg (eds), Entwicklungen im
Gesellschaftsrecht VIII
(Bern, Stämpfli, 2013, p. 107-134)
§ 105
Redfern et al.,
International Arbitration
Alan Redfern, Martin Hunter, Nigel Blackaby,
Constantine Partasides, Redfern and Hunter on
International Arbitration
(5th edn, London, Oxford, 2009)
§ 5, 7, 17, 22,
23
Memorandum for CLAIMANT Table of Authorities
XIX
Cited as Reference Cited in
Redfern/Hunter,
Law and Practice
Alan Redfern, Martin Hunter, Law and Practice of
International Commercial Arbitration
(4th edn, London, Sweet & Maxwell, 2004)
§ 7
Rivkin David W. Rivkin, The Impact of Parallel and Successive
Proceedings on the Enforcement of Arbitral Awards in
Parallel State and Arbitral Procedures in International
Arbitration in France Chairman (ed.), Parallel State and
Arbitral Procedures in International Arbitration
(Paris, ICC Publication No. 692, Dossier III of the
ICC Institute of World Business Law, 2005, p. 269-
297)
§ 77
Saf Carolina Saf, ‘A Study of the Interplay between the
Conventions Governing International Contracts of
Sale: Analysis of the 1955 Hague Convention on the
Law Applicable to Contracts of International Sales of
Movable Goods; the 1980 Rome Convention on the
Law Applicable to Contractual Obligations; and the
1980 United Nations Convention on Contracts for the
International Sale of Goods’
(Queen Mary and Westfield College, 1999, Ch. 5,
available at
http://www.cisg.law.pace.edu/cisg/text/saf96.html
, last seen 11.12.2013)
§ 161
Schäfer Friederike Schäfer, ‘Zur Anwendbarkeit des UN-
Kaufrechts auf Werklieferungsverträge’
(Internationales Handelsrecht, vol. 3, 2003, p. 118-
121)
§ 110
Memorandum for CLAIMANT Table of Authorities
XX
Cited as Reference Cited in
Schlechtriem,
Requirements
of Application
Peter Schlechtriem, ‘Requirements of Application and
Sphere of Applicability of the CISG‘
(Victoria University of Wellington Law Review, Issue
4, 2005, p. 781-794)
§ 161
Schlechtriem,
Uniform Sales Law
Peter Schlechtriem, Uniform Sales Law - The UN-
Convention on Contracts for the International Sale of Goods
(Wien, Manz, 1986)
§ 161, 162
Schlechtriem/Schwenzer Peter Schlechtriem, Ingeborg Schwenzer (eds),
Commentary on the UN Convention on the International
Sale of Goods (CISG)
(3rd edn, Oxford, OUP, 2010)
§ 97, 99, 103,
110, 114,
117, 124,
132, 134,
153, 161, 163
Schmidt-Kessel/Meyer Martin Schmidt-Kessel, Linus Meyer, ‘Allgemeine
Geschäftsbedingungen und UN-Kaufrecht’
(International Commercial Law, Issue 5, 2008,
p. 177-180)
§ 134
Schmitt Hansjörg F. Schmitt, Intangible Goods als Leistungs-
gegenstand internationaler Online-Kaufverträge: Im UN-
Kaufrecht und Internationalen Privatrecht sowie in deutschen
Verbraucherschutzgesetzen
(Frankfurt am Main, Peter Lang, 2003)
§ 98, 117
Author in Schütze/
Tscherning/Wais
Rolf A. Schütze, Dieter Tscherning, Walter Wais
(eds), Handbuch des Schiedsverfahrens: Praxis der deutschen
und internationalen Schiedsgerichtsbarkeit
(2nd edn, Berlin, New York, de Gruyter, 1990)
§ 53
Schwenzer/Hachem/Kee Ingeborg Schwenzer, Pascal Hachem, Christopher
Kee, Global Sales and Contract Law
(New York, OUP, 2012)
§ 12, 98
Memorandum for CLAIMANT Table of Authorities
XXI
Cited as Reference Cited in
Sono Hiroo Sono, The Applicability and Non-Applicability of
the CISG to Software Transactions in Camilla B. Andersen
and Ulrich G. Schroeter (eds), Sharing International
Commercial Law across National Boundaries: Festschrift for
Albert H. Kritzer on the Occasion of his Eightieth Birthday
(Wildly, Simmonds and Hill Publishing, 2008, p. 512-
526)
§ 103, 110,
120
Author in Staudinger Michael Martinek (ed.), J. von Staudingers Kommentar
zum Bürgerlichen Gesetzbuch mit Einführungsgesetz und
Nebengesetzen: Wiener UN-Kaufrecht (CISG)
(revised edn, Berlin, Sellier – de Gruyter, 2013)
§ 106, 110
Steingruber Andrea Marco Steingruber, Consent in International
Arbitration
(Oxford, OUP, 2012)
§ 19
Stiegele/Halter Andreas Stiegele, Rudolf Halter, ‘Einbeziehung von
Allgemeinen Geschäftsbedingungen im Rahmen des
UN-Kaufrechts – Zugänglichmachung im Internet’
(International Commercial Law, Issue 4, 2003,
p. 169-170)
§ 132
Oberson Xavier Oberson, Précis de droit fiscal international
(3re edn, Bern, Stämpfli, 2009)
§ 105
UNCITRAL,
Digest of Case Law
UNCITRAL 2012 Digest of Case Law on the Model
Law on International Commercial Arbitration
(New York, United Nations Publication, 2012)
§ 18
Verbist,
New Belgian Arbitration
Law
Herman Verbist, ‘New Belgian Arbitration Law of 24
June 2013 and New Cepani Arbitration Rules of 1
January 2013’
(Journal of International Arbitration 30, No. 5, 2013,
p. 597-618)
§ 62
Memorandum for CLAIMANT Table of Authorities
XXII
Cited as Reference Cited in
Verbist,
New CEPANI Rules
Herman Verbist, ‘New CEPANI Rules of Arbitration
in Force as from 1 January 2013’
([email protected] (Gent), No. 4, 2012, p. 51-60,
available at http://hdl.handle.net/1854/LU-
3111611, last seen 11.12.2013)
§ 62
Voser Nathalie Voser, ‘Overview of the Most Important
Changes in Revised ICC Arbitration Rules’
(ASA Bulletin, Kluwer Law International, vol. 29,
Issue 4, 2011, p. 783)
§ 62, 69, 76
Waincymer Jeff Waincymer, Procedure and Evidence in International
Arbitration
(Alphen aan den Rijn, Wolters Kluwer, 2012)
§ 71, 80
Whitesell/Romero Anne Marie Whitesell, Eduardo Silva Romero,
Multiparty and Multicontract Arbitration: Recent ICC
Experience in Robert Briner (ed.), Complex Arbitrations:
Perspectives on their Procedural Implications
(Paris, ICC Publication, Special Supplement 2003,
p. 7-19)
§ 69, 77
Author in Wolff Reinmar Wolff (ed.), New York Convention on the
Recognition and Enforcement of Foreign Arbitral Awards –
Commentary –
(Baden-Baden, C.H. Beck, Hart, Nomos, 2012)
§ 48, § 71
Memorandum for CLAIMANT Table of Arbitral Awards
XXIII
TABLE OF ARBITRAL AWARDS
Cited as Reference Cited in
Belgian Centre for Arbitration and Mediation
CEPANI Award
No. 2112
CEPANI Award No. 2112
Join-stock company A v. Madame B
28 May 1999
Collection of CEPANI Arbitral Awards 1996-2001,
p. 275-315
§ 19
Bulgarian Chamber of Commerce and Industry
AC BCCI, 60/1980 AC BCCI No. 60 of 1980
Seller (Bulgarian creditor) v. Buyer (FRG debtor)
1 October 1980
Yearbook of Commercial Arbitration, vol. XII (1987),
p. 84, 85
§ 35
AC BCCI, 79/1993 AC BCCI No. 79 of 1993
Claimant (Republic of China) v. Defendant (Bulgaria)
Journal du droit international 1998, p. 767-769
§ 53
AC BCCI, 41/2000 AC BCCI No. 41 of 2000
Seller (Germany) v. Buyer (Bulgaria)
12 June 2011
available at
http://cisgw3.law.pace.edu/cases/010612bu.html,
last seen 11.12.2013
§ 162
China International Economic & Trade Arbitration Commission
Memorandum for CLAIMANT Table of Arbitral Awards
XXIV
Cited as Reference Cited in
CIETAC, 13 June 2005 Industrial general equipment case
Buyer (People’s Republic of China) v. Seller
(Singapore)
13 June 2005
available at
http://cisgw3.law.pace.edu/cases/050613c1.html,
last seen 11.12.2013
§ 107
CIETAC, 16 Sept 2005 Wool and Wooltop case
Buyer (People’s Republic of China) v. Seller
(Australia)
16 September 2005
available at
http://cisgw3.law.pace.edu/cases/050916c1.html,
last seen 11.12.2013
§ 145
Hamburg Commedity Exchange (Grain Merchants’ Association)
Hamburg Commedity
Exchange, 14 Mar 1994
Hamburg Commedity Exchange (Grain Merchants’
Association)
18 March 1994
Year Book of Commercial Arbitration, vol. XXII
(1997), p. 53
§ 49
International Chamber of Commerce
ICC Case No.
1900/1972
ICC Case No. 1900 of 1972
Licensor (Italy) v. Distributor (Spain)
Journal de droit international 1974, p. 897-902
§ 129, 150
Preliminary Award in ICC
Case No. 2321/1974
Preliminary Award in ICC Case No. 2321 of 1974
Year Book of Commercial Arbitration, vol. I (1976),
p. 133-135
§ 10
Memorandum for CLAIMANT Table of Arbitral Awards
XXV
Cited as Reference Cited in
ICC Case No.
1434/1975
ICC Case No. 1434 of 1975
Company A. v. Company B.
Journal du droit international 1976, p. 978-989
§ 19
ICC Case No.
5346/1988
ICC Case No. 5346 of 1988
Consorsium Partner X (Egypt) v. Consorsium Partner
Y (France)
Journal du droit international 1991, p. 1059-1065
§ 129
ICC Case No.
5989/1989
ICC Case No. 5989 of 1989
Contractor v. Employers A and B
Collection of ICC Arbitral Awards, 1986-1990,
p. 227-235
§ 69, 78
International Centre for Settlement of Investment Disputes
ICSID Award,
25 Sept 1983
Amco Asia Corp. v. Republic of Indonesia
ICSID Case No. ARB/81/1
25 September 1983
available at
https://icsid.worldbank.org/ICSID/FrontServlet?req
uestType=CasesRH&actionVal=showDoc&docId=D
C663_En&caseId=C126, last seen 11.12.2013
§ 19, 20
Memorandum for CLAIMANT Table of Court Decisions
XXVI
TABLE OF COURT DECISIONS
Cited as Reference Cited in
Austria
OGH, 6 Feb 1996 Oberster Gerichtshof
6 February 1996
Case No.: 10 Ob 518/95
§ 152
OGH, 17 Dec 2003 Oberster Gerichtshof
17 December 2003
Case No.: 7 Ob 275/03x
§ 127, 139,
148, 150, 152
OGH, 21 June 2005 Oberster Gerichtshof
21 June 2005
Case No.: 5 Ob 45/05m
§ 98
OLG Linz, 8 Aug 2005 Oberlandesgericht Linz
8 August 2005
Case No.: 3 R 57/05f
§ 124
Belgium
TCo Nivelles,
19 Sept 1995
Tribunal Commercial de Nivelles
19 September 1995
Case No.: R.G. 1707/93
§ 133
Brazil
Kia Motors v.
Washington Armênio
Lopes et al.
Kia Motors Corp. v. Washington Armênio Lopes et
al.
Superior Court of Justice
19 October 2011
Case No.: SEC No. 1-EX (2007/0156979-5)
§ 35
Memorandum for CLAIMANT Table of Court Decisions
XXVII
Cited as Reference Cited in
Canada
Desputeaux v.
Editions Chouette
Desputeaux v. Editions Chouette Inc.
Supreme Court
21 March 2003
Case No.: 2003 SCC 17
§ 22
France
CA Grenoble,
21 Oct 1999
Cour d’Appel de Grenoble
21 October 1999
Case No.: 97-03974
§ 107
CA Paris, 31 May 2001 Cour d’Appel de Paris
31 May 2001
Case-No.: E5
§ 35
CA Paris, 16 Nov 2006 Cour d’Appel de Paris
16 November 2006
Case No.: 04-24238
§ 87
Germany
BGH, 18 Dec 1975
Bundesgerichtshof
18 December 1975
Case No.: III ZR 103/73
§ 31, 53
BGH, 3 Feb 1982 Bundesgerichtshof
3 February 1982
Case No.: VIII ZR 316/80
§ 155
BGH, 10 Oct 1991 Bundesgerichtshof
10 October 1991
Case No.: III ZR 141/90
§ 31
Memorandum for CLAIMANT Table of Court Decisions
XXVIII
Cited as Reference Cited in
BGH, 4 Dec 1996 Bundesgerichtshof
4 December 1996
Case No.: VIII ZR 306/95
§ 117
BGH, 25 Nov 1998 Bundesgerichtshof
25 November 1998
Case No.: VIII ZR 259/97
§ 161
BGH, 31 Oct 2001 Bundesgerichtshof
31 October 2001
Case No.: VIII ZR 60/01
§ 134
OLG Bayern,
15 Dec 1999
Oberlandesgericht Bayern
15 December 1999
Case No.: 4 Z Sch 23/99
§ 23
OLG Düsseldorf,
21 Apr 2004
Oberlandesgericht Düsseldorf
21 April 2004
Case No.: 15 U 88/03
§ 141
OLG Frankfurt,
17 Sept 1991
Oberlandesgericht Frankfurt
17 September 1991
Case No.: 5 U 164/90
§ 103
OLG Hamburg,
14 May 1999
Oberlandesgericht Hamburg
14 May 1999
Case No.: 1 Sch. 2/99
§ 53
OLG Koblenz,
17 Sept 1993
Oberlandesgericht Koblenz
17 September 1993
Case No.: 2 U 1230/91
§ 119
OLG München,
3 Dec 1999
Oberlandesgericht München
3 December 1999
Case No.: 23 U 4446/99
§ 107
Memorandum for CLAIMANT Table of Court Decisions
XXIX
Cited as Reference Cited in
OLG München,
29 Oct 2009
Oberlandesgericht München
29 October 2009
Case No.: 34 Sch. 15/09
§ 23
OLG München,
14 Mar 2011
Oberlandesgericht München
14 March 2011
Case No.: 34 Sch. 08/10
§ 23
LG Coburg, 12 Dec 2006 Landgericht Coburg
12 December 2006
Case No.: 22 O 38/06
§ 124
LG Kassel, 15 Feb 1996 Landgericht Kassel
15 February 1996
Case No.: 11 O 4187/95
§ 139
LG München,
8 Feb 1995
Landgericht München
8 February 1995
Case No.: 8 HKO 24667/93
§ 98
India
Oil & Natural Gas v.
SAW Pipes
Oil & Natural Gas Corp. v. SAW Pipes
17 April 2003
Case No.: 7419 2001
§ 22
Italy
Trib Rimini,
26 Nov 2002
Tribunale di Rimini
26 November 2002
Case No.: 3095
§ 97, 114
Trib Vigevano,
12 July 2000
Tribunale di Vigevano
12 July 2000
Case No.: 405
§ 134
Netherlands
Memorandum for CLAIMANT Table of Court Decisions
XXX
Cited as Reference Cited in
Hof’s-Hertogenbosch,
16 Oct 2002
Gerechtshof Hertogenbosch
16 October 2002
Case No.: 20089/HA ZA 98-1077
§ 155
Rb Arnhem,
28 June 2006
Arrondissementsrechtbank Arnhem
28 June 2006
Case No.: 82879/HA ZA 02-105
§ 117
Spain
Uniprex v. Grupo Radio
Blanca
Uniprex S.A. v. Grupo Radio Blanca
Madrid Court of Appeal
22 March 2006
Case No.: 178/2006-4/2004
§ 22
Switzerland
BGE, 25 July 1990 Bundesgericht
25 July 1990
Case No.: SJ 1991 p. 12
§ 22
BGE, 17 Oct 2000 Bundesgericht
17 October 2000
Case No.: 4C.422/1999/rnd
§ 103
BGE, 17 Jan 2013
Bundesgericht
17 January 2013
Case No.: 4A.244/2012
§ 53
BGE, 27 Jan 2013 Bundesgericht
27 January 2013
Case No.: 4A_95/2013
§ 23
TCa Vaud, 11 Mar 1996 Tribunal Cantonal Vaud
11 March 1996
Case No.: 01 93 1061
§ 97
Memorandum for CLAIMANT Table of Court Decisions
XXXI
Cited as Reference Cited in
HG Zürich, 10 Feb 1999 Handelsgericht Zürich
10 February 1999
Case No.: HG 970238.1
§ 103
HG Zürich, 8 Apr 1999 Handelsgericht Zürich
8 April 1999
Case No.: HG 980280.1
§ 105, 106
HG Zürich, 17 Feb 2000 Handelsgericht Zürich
17 February 2000
Case No.: HG 980472
§ 117
United Kingdom
Law Debenture Trust v.
Elektrim Finance B.V. et
al.
Law Debenture Trust Corp. PLC v. Elektrim Finance
B.V. et al.
Royal Courts of Justice
1 July 2005
Case No.: [2005] 1 All ER 476
§ 31
Lesotho Highlands
Development Authority v.
Impregilo
Lesotho Highlands Development Authority v.
Impregilo SpA
House of Lords
30 June 2005
Case No.: [2005] UKHL 43
§ 17
Lobb Partnership v.
Aintree Racecourse
Company
Lobb Partnership Ltd. v. Aintree Racecourse
Company Ltd.
High Court of Justice, Queen's Bench Division
(Commercial Court)
22 November 1999
Case No.: BLR 65
§ 55
United States of America
Memorandum for CLAIMANT Table of Court Decisions
XXXII
Cited as Reference Cited in
Ajax Tool Works v. Can-
Eng Manufacturing
Ajax Tool Works, Inc. v. Can-Eng Manufacturing Ltd
United States District Court, Northern District of
Illinois
29 January 2003
Case No.: 01 C 5938
§ 161
American Mint et al. v.
GOSoftware
American Mint LLC, Goede Beteiligungsgesellschaft,
and Michael Goede v. GOSoftware, Inc.
United States District Court, M.D. Pennsylvania
16 August 2005
Case No.: Civ.A. 1:05-CV-650
§ 161
Asante Technologies v.
PMC-Sierra
Asante Technologies, Inc. v. PMC-Sierra, Inc.
United States District Court, Northern District of
California
27 July 2001
Case No.: C 01-20230 JW
§ 160, 161
Becker Autoradio v.
Becker Autoradiowerk
Becker Autoradio U.S.A. Inc. v. Becker
Autoradiowerk GmbH
United States Court of Appeals, 3rd Circuit,
17 July 1978
Case No.: 585 F.2d.39
§ 31
BP Oil International v.
Empresa Estatal Petroleos
de Ecuador
BP International, Ltd. and BP Exploration & Oil, Inc.,
Plaintiffs-Appellants v. Empressa Estatal Petroleos de
Ecuador, et al., Defendants, Empresa Estatal
Petroleos de Ecuador and Saybolt, Inc., Defendants-
Appellees
United States Court of Appeals, 5th Circuit
11 June 2003
Case No.: 02-20166
§ 160, 161
Memorandum for CLAIMANT Table of Court Decisions
XXXIII
Cited as Reference Cited in
Bowen v. Amoco Pipeline Bowen v. Amoco Pipeline Co.
Unites States Court of Appeals, 10th Circuit
20 June 2001
Case No.: 254 F.3d 925
§ 26, 27, 29
CGB Marine Services v.
M/S Stolt Entente
CGB Marine Services Co. v. M/S Stolt Entente
United States Marine District Court, Louisiana
22 November 1988
Case No.: 86-3877
§ 29
Easom Automation
Systems v. Thyssenkrupp
Fabco
Easom Automation Systems, Inc. v. Thyssenkrupp
Fabco, Corp.
United States District Court, Eastern District Court,
Michigan
28 September 2007
Case No.: 06-14553
§ 161
Forestal Guarani v. Daros
International,
Forestal Guarani, S.A. v. Daros International, Inc.
United States District Court, New Jersey
7 October 2008
Case No.: 03-4821 JAG
§ 160, 161
Hall Street Associates v.
Mattel
Hall Street Associates, L.L.C. v. Mattel, Inc.
United States Supreme Court, 9th Circuit
25 March 2008
Case No.: 552 U.S. 576
§ 17
KBC v. Pentamina Karaha Boda Co., L.L.C. (Cayman Islands) v.
Perusahaan Pertambangan Minyak Dan Gas Bumi
Negara (Indonesia), et al.
United States Court of Appeals, 5th Circuit
23 March 2004
Case No: 02-20042; 03-20602
§ 76
Memorandum for CLAIMANT Table of Court Decisions
XXXIV
Cited as Reference Cited in
LaPine Technology v.
Kyocera
LaPine Technology Corp. v. Kyocera Corp.
United States District Court, North District California
11 December 1995
Case No.: 909 F. Supp. 697
§ 17, 26
Marble Ceramic v.
Ceramica Nuova
MCC – Marble Ceramic Center Inc. v. Ceramica
Nuova d’Agostina
United States Court of Appeals, 11th Circuit
29 June 1998
Case No.: 97- 4250
§ 148
Mitsubishi Motors v.
Soler Chrysler-Plymouth
Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth
Inc.
United States Supreme Court, 1st Circuit
2 July 1985
Case No.: 83-1569
§ 11
Moses H. Cone Memorial
Hospital v. Mercury
Constr.
Moses H. Cone Memorial Hospital v. Mercury
Constr. Corp.
United States Supreme Court, 4th Circuit
23 February 1983
Case No.: 103 F. Supp. 927
§ 11
Prime Therapeutics v.
Omnicare
Prime Therapeutics LLC v. Omnicare, Inc.
Supreme Court of Minnesota
21 May 2008
Case No: 555 F. Supp. 2d 993
§ 17
South Central Bell
Telephone v. Sidney J.
Barthelemy, et al.
South Central Bell Telephone Co. v. Sidney J.
Barthelemy, et al.
Supreme Court of Louisiana
17 October 1994
Case No.: 94-C-0499
§ 116
Memorandum for CLAIMANT Table of Court Decisions
XXXV
Cited as Reference Cited in
Stella Maris v. Cork
Supply
Stella Maris Inc. v. Cork Supply SA
United States District Court, Oregon
26 April 2012
Case No.: 2012 WL 1468488
§ 128
The Travelers Property
Casualty and Hellmuth
Obata & Kassabaum v.
Saint-Gobain Technical
Fabrics
The Travelers Property Casualty Company of America
and Hellmuth Obata & Kassabaum, v. Saint-Gobain
Technical Fabrics Canada
United States District Court, Minnesota
31 January 2007
Case No.: Civ. 04-4386 ADM/AJB
§ 161
UHC Management v.
Computer Sciences
UHC Management Co. v. Computer Sciences Corp.
United States Court of Appeals, 8th Circuit
7 July 1998
Case No.: 148 F.3d 992
§ 26, 28, 29
Memorandum for CLAIMANT Table of Legal Sources
XXXVI
TABLE OF LEGAL SOURCES
CEPANI Rules Arbitration Rules of the Belgian Centre for Mediation and Arbitration
CISG United Nations Convention on the International Sale of Goods, 1980
ICC Rules Arbitration Rules of the International Chamber of Commerce
NYC Convention on the Recognition and Enforcement of Foreign Arbitral
Awards, New York (10 June 1958)
UNIDROIT Principles UNIDROIT Principles of International Commercial Contracts
UNCITRAL Model Law UNCITRAL Model Law on International Commercial Arbitration, 1985
with 2006 Amendments
Memorandum for CLAIMANT Table of Abbreviations
XXXVII
TABLE OF ABBREVIATIONS
% per cent
§ paragraph(s)
& and
A.R.A. Answer to Request for Arbitration
Art. Article(s)
ASA Association suisse de l’arbitrage (Swiss Arbitration Association)
BCCI Bulgarian Chamber of Commerce and Industry
BE Belgium
BGE Bundesgericht (Supreme Court Switzerland)
BGH Bundesgerichtshof (Supreme Court Germany)
BJC Belgian Judicial Code
CA Cour d’Appel (Appellate Court)
CC Chambre Commerciale (Commercial Court)
CCP Code of Civil Procedure
CEPANI Rules Arbitration Rules of the Belgian Centre for Arbitration and Mediation
cf. confer (see)
CH Switzerland
CIETAC China International Economic & Trade Arbitration Commission
CISG United Nations Convention on the International Sale of Goods, Vienna, 11 April
1980
Cl. Ex. CLAIMANT’s Exhibit Number
Co. Company
Corp. Corporation
Memorandum for CLAIMANT Table of Abbreviations
XXXVIII
Dr. Doctor
EAA English Arbitration Act
ed. editor
edn edition
eds editors
Eng. English
et al. et alii (and others)
FR France
FSA Framework and Sales Agreement
HG Handelsgericht (Commercial Court)
i.e. id est (that means)
ibid. ibidem (the same)
ICC International Chamber of Commerce and Industry
ICSID International Centre for Settlement of Investment Disputes
Inc. Incorporated
infra see below
lex arbitri Law of the place where arbitration is to take place
LG Landgericht (District Court)
Ltd. Limited
LTF Loi sur le Tribunal fédéral (law of the supreme Court of Switzerland)
Mio million
Mr. Mister
Model Law UNCITRAL Model Law
No. Number
Memorandum for CLAIMANT Table of Abbreviations
XXXIX
NYC New York Convention on the Recognition and Enforcement of Foreign Arbitral
Awards
OGH Oberster Gerichtshof (Supreme Court Austria)
OLG Oberlandesgericht (Appellate Court)
p. page(s)
PO Procedural Order No.
R.A. Request for Arbitration
Rb Arrondissementsrechtbank (District Court)
Re. Ex. RESPONDENT’s Exhibit Number
SCA/CEPANI CEPANI Scale of the costs for arbitration
Sec. Section(s)
SLA Sales and Licensing Agreement
ST 2000 November 2000 version of Innovative Cancer Treatment Ltd Standard Terms and
Conditions for Sale
ST 2011 July 2011 version of Innovative Cancer Treatment Ltd Standard Terms and
Conditions for Sale
supra see above
TCa Tribunal Cantonal (Canton Appellate Court)
TCo Tribunal Commercial (District Court)
Trib Tribunale (District Court)
UK United Kingdom
UNCITRAL United Nations Commission on International Trade Law
UNIDROIT
Principles
Principles of International Commercial Contracts of the International Institute for the
Unification of Private Law
USD United States of America Dollars
Memorandum for CLAIMANT Table of Abbreviations
XL
v. versus
vol. volume
XLI
Top Related