university of geneva - willem c. vis moottwenty-fifth annual willem c. vis international commercial...

TWENTY-FIFTH ANNUAL

WILLEM C. VIS INTERNATIONAL COMMERCIAL ARBITRATION MOOT

VIENNA, MARCH 24TH-29TH 2018

UNIVERSITY OF GENEVA

¬

MEMORANDUM FOR CLAIMANT DELICATESY WHOLE FOODS SP V. COMESTIBLES FINOS LTD

COUNSEL FOR CLAIMANT

LILIA BENKARA • ANNA DEVINE • ELISABETH EVERSON

SAJIKA RATNAM • KLARA VODNANSKA • VERA WALDBURGER

Delicatesy Whole Foods Sp CLAIMANT

39 Marie-Antoine Carême Avenue

Oceanside, Equatoriana

v. Comestibles Finos Ltd RESPONDENT

75 Martha Stewart Drive

Capital City, Mediterraneo

Memorandum for CLAIMANT Table of Contents

II

TABLE OF CONTENTS

TABLE OF ABBREVIATIONS AND DEFINITIONS .............................................................. VI

STATEMENT OF FACTS .......................................................................................................... 1

INTRODUCTION ................................................................................................................... 2

ISSUE 1: THE TRIBUNAL DOES NOT HAVE JURISDICTION TO DECIDE ON THE

CHALLENGE OF MR. PRASAD WITHOUT HIS PARTICIPATION .......................................... 3 I. ACCORDING TO THE PARTIES’ AGREEMENT, THE CHALLENGE OF AN ARBITRATOR CAN ONLY BE

DECIDED BY AN APPOINTING AUTHORITY ................................................................................... 3 A. The Parties incorporated the challenge procedure provided by the UNCITRAL Rules

into their arbitration agreement ..................................................................................... 3 B. The Parties agreed to exclude the involvement of an arbitral institution only with

regards to the initial appointment procedure and not the challenge procedure ............ 4 C. In any event, a reasonable third person would have understood the exclusion of

institutional support as applying solely to the initial appointment procedure ............... 5 1. According to literal interpretation, the term “constitution” in CLAIMANT’s letter of 27 March 2017

designated solely the initial appointment of arbitrators ..................................................... 6 2. The arbitration clause mentions a specific procedure exclusively for the initial appointment of

arbitrators and not for their challenge ........................................................................ 6 3. The Parties’ negotiations could only be understood as further demonstrating the restricted scope

of the exclusion of institutional support ...................................................................... 6 II. IN ANY EVENT, ONLY THE TRIBUNAL IN FULL MAY DECIDE ON THE CHALLENGE OF MR. PRASAD ....... 7

A. The lex arbitri requires Mr. Prasad to participate in the decision on his own challenge

....................................................................................................................................... 7 1. The legislative history of the Model Law indicates that a decision on a challenge of an arbitrator

must be rendered by an arbitral tribunal in its full composition ........................................... 8 2. The nature of the decision on the challenge of an arbitrator requires an arbitral tribunal to decide

in full .............................................................................................................. 8 B. The Parties must have equal influence on the composition of the Tribunal ................ 9

1. The lex arbitri includes a mandatory disposition on equal treatment of the parties ................... 9 2. Additionally, the breach of the right to equal treatment constitutes a ground for setting the final

award aside under the New York Convention ............................................................... 9


III

CONCLUSION ON ISSUE 1 ................................................................................................... 10

ISSUE 2: MR. PRASAD SHALL NOT BE REMOVED FROM THE TRIBUNAL ......................... 10 I. MR. PRASAD IS INDEPENDENT AND IMPARTIAL AS REQUIRED BY THE LEX ARBITRI [ART. 12(2) MODEL

LAW] ................................................................................................................................. 10 A. The circumstances at hand do not give rise to justifiable doubts as to Mr. Prasad’s

independence and impartiality under the IBA Guidelines ........................................ 11 1. Mr. Prasad has not been repeatedly appointed by an affiliate of one of the Parties [3.1.3 IBA

Guidelines] ........................................................................................................ 12 2. Mr. Prasad was not repeatedly appointed by Fasttrack’s law firm [3.3.8 IBA Guidelines] ........... 13 3. Mr. Prasad’s law firm does not have any significant commercial relationship with an affiliate of the

Parties [2.3.6 IBA Guidelines] ................................................................................... 13 4. The article Mr. Prasad published does not advocate a position on the present case [3.5.2 IBA

Guidelines] ........................................................................................................ 14 B. Even if the circumstances of the case fell outside the non-exhaustive list provided by

the IBA Guidelines, there would still be no justifiable doubts ...................................... 14 1. Mr. Prasad is independent and impartial from a reasonable third person’s point of view .......... 15

a. The relationships between Mr. Prasad and the entities involved in the present case do not give

rise to justifiable doubts with regards to his independence ............................................ 15 b. Mr. Prasad’s article on the conformity of goods does not give rise to justifiable doubts with

regards to his impartiality .................................................................................. 16 2. The independence and impartiality of Mr. Prasad cannot be questioned with regards to the

disclosure obligation of a party ............................................................................... 16 II. IN ANY EVENT, RESPONDENT IS PRECLUDED FROM CHALLENGING MR. PRASAD ........................... 17

A. RESPONDENT failed to challenge Mr. Prasad, on the grounds of his appointments by

Fasttrack's law firm and his article, within 15 days as provided under the UNCITRAL

Rules ............................................................................................................................ 17 B. RESPONDENT explicitly waived its right to raise the issue regarding Slowfood’s funder

..................................................................................................................................... 18 C. The evidence revealing Findfund’s funding was obtained in violation of client-

attorney privilege ......................................................................................................... 18


ISSUE 3: THE PARTIES CONCLUDED A CONTRACT GOVERNED BY CLAIMANT’S GENERAL

CONDITIONS ....................................................................................................................... 19


IV

I. CLAIMANT MADE AN INDEPENDENT OFFER INCORPORATING ITS GENERAL CONDITIONS ................. 20 A. CLAIMANT submitted an offer independent of RESPONDENT’s Invitation to Tender ..... 20

1. RESPONDENT’s Invitation to Tender was a mere invitatio ad offerendum [Art. 14(2) CISG] ........... 20 2. Alternatively, CLAIMANT made clear that its Offer was independent of the Tender Process [Art. 8

CISG] ............................................................................................................. 21 3. In any event, CLAIMANT’s submission constituted a counteroffer [Art. 19 CISG] .................... 21

B. CLAIMANT’s Offer validly incorporated its own General Conditions .......................... 21 1. CLAIMANT incorporated its General Conditions into the Contract as it was the party who last

referred to its own terms ...................................................................................... 22 2. CLAIMANT retained the freedom to shape the contract through the content of its Offer ........... 22 3. CLAIMANT made its General Conditions reasonably available ......................................... 24

II. RESPONDENT ACCEPTED CLAIMANT’S OFFER INCLUDING ITS GENERAL CONDITIONS [ART. 18 CISG]

......................................................................................................................................... 24 A. RESPONDENT explicitly accepted CLAIMANT’s Offer “notwithstanding the changes

suggested [by CLAIMANT]”................................................................................................ 25 1. The wording of RESPONDENT’s letter can only be interpreted as accepting the Offer inclusive of

CLAIMANT’s General Conditions ............................................................................. 25 2. A reasonable third person would have understood RESPONDENT’s letter of 7 April 2014 as

accepting CLAIMANT’s General Conditions [Art. 8(2) CISG] ............................................... 25 B. In any case, RESPONDENT implicitly accepted CLAIMANT’s Offer .................................. 26


ISSUE 4: EVEN IF RESPONDENT’S GENERAL CONDITIONS WERE APPLICABLE, THE

CHOCOLATE CAKES WERE CONFORMING ........................................................................ 26 I. CLAIMANT COMPLIED WITH ITS CONTRACTUAL OBLIGATION TO USE BEST EFFORTS WHEN PRODUCING

THE CHOCOLATE CAKES ......................................................................................................... 26 A. RESPONDENT’s general conditions only provide an obligation of best efforts ............. 27

1. The intent of the Parties was for CLAIMANT to be bound by an obligation of best efforts .......... 27 2. In any event, a reasonable third person would have understood that CLAIMANT was to be bound

only by best efforts ............................................................................................. 28 a. The language of RESPONDENT's general conditions could only be understood as providing an

obligation of best efforts .................................................................................... 28 b. The Parties' conduct could only be understood as a best efforts agreement ...................... 29

3. Parties are bound by usages they agreed upon [Art. 9(1) CISG] ........................................ 30


V

B. By applying international practice, CLAIMANT used its best efforts when producing

the chocolate cakes ...................................................................................................... 30 1. When the scope of best efforts is not defined contractually, these are complied with by applying

international practice ........................................................................................... 30 2. CLAIMANT complied with the practice in the international trade of sustainable goods by following

verification procedures ........................................................................................ 31 II. ADDITIONALLY, THE CHOCOLATE CAKES DELIVERED WERE CONFORMING [ART. 35(2) CISG] ........ 32

A. The chocolate cakes were fit for the purpose of resale [Art. 35(2)(b) ab initio CISG] . 32 1. CLAIMANT delivered cakes which fit RESPONDENT’s purpose to sell them in its supermarkets .... 32 2. Even if RESPONDENT had made known to CLAIMANT that the cakes had to be sustainable, the cakes

complied with that purpose ................................................................................... 33 B. Alternatively, RESPONDENT could not have expected CLAIMANT, a baker, to verify the

entire supply chain [Art. 35(2)(b) in fine CISG] .............................................................. 33 1. CLAIMANT had limited control over the production of the cocoa ..................................... 34 2. CLAIMANT is not specialized in the trade of sustainable cocoa ......................................... 34


PRAYER FOR RELIEF ........................................................................................................... 35

TABLE OF AUTHORITIES ........................................................................................... XXXVI

TABLE OF ARBITRAL AWARDS .................................................................................. LXXII

TABLE OF COURT DECISIONS ................................................................................... LXXIX

OTHER SOURCES ........................................................................................................ XCVIII

CERTIFICATE ..................................................................................................................... CV

Memorandum for CLAIMANT Table of Abbreviations and Definitions

VI

TABLE OF ABBREVIATIONS AND DEFINITIONS

§/§§ paragraph/paragraphs

%

per cent

AA Arbitration Act

ab initio from the beginning

a contrario on the contrary

a fortiori with stronger reason

ad hoc for this purpose

Art./Artt. Article/Articles

cf. confer (see)

Ch. Chapter

CISG United Nations Convention on Contracts for the International Sale of Goods

Council Regulation (EC) Council Regulation (EC) No 834/2007

CPIA Indicator Country Policy and Institutional Assessment

e.g. exempli gratia (for example)

ed. edition

Eng English

et al. et alii (and others)


VII

EU European Union

Exh. C CLAIMANT’s Exhibit

Exh. R RESPONDENT’s Exhibit

FAA Plain Language Federal Aviation Administration Plain Language Order

Fed Plain Language Federal Plain Language Guideline

Ff folio (on the (next) page)

fn. footnote

i.e. id est (that is)

IBA Guidelines

IBA Guidelines on Conflicts of Interest in International Arbitration (2014)

IBA Rules IBA Rules on the Taking of Evidence in International Arbitration (2010)

ibid. ibidem (in the same place)

ICC Rules Rules of Arbitration of the ICC (2012)

in casu in the case at hand

in fine at the end

infra below

inter alia among other things

Invitation ad offerendum invitation to treat

ISO International Organization for Standardization

https://en.wiktionary.org/wiki/folio#Latin


VIII

Letter Fasttrack Mr. Fasttrack’s letter of 7 September 2017

Letter NoC Mr. Langweiler’s letter of 14 September 2017

Letter Prasad Mr. Prasad’s letter of 21 September 2017

lex arbitri law of the seat of arbitration

LP Limited Partnership

Ltd Limited company

Model Law UNCITRAL Model Law on International Commercial Arbitration with

amendments (2006)

mutatis mutandis with the necessary changes having been made

NY Convention Convention on the Recognition and Enforcement of Foreign Arbitral Awards

(New York 1958)

No. number/numbers

NoA CLAIMANT’s Notice of Arbitration

NoC Notice of Challenge of 14 September 2017

NZ New Zealand

p./pp. page/pages

PO1 Procedural Order No. 1 of 7 October 2016

PO2 Procedural Order No. 2 of 3 November 2016

Quod non Not the case in the present issue

RNoA RESPONDENT’s Response to Notice of Arbitration of 31 July 2017

SAN Certification Rules Sustainable Agricultural Network Certification Rules


IX

supra above

Translex Principles Translex Principles on Transnational Law

Transparency Int. Transparency International, the Global Anti-Corruption Coalition

UNCITRAL United Nations Commission on International Trade Law

UNCITRAL Rules UNCITRAL Arbitration Rules (as revised in 2010)

UNIDROIT Principles UNIDROIT Principles of International Commercial Contracts (2010)

USD United States Dollars

v. versus (against)

Memorandum for CLAIMANT Statement of Facts

1

STATEMENT OF FACTS

DELICATESY WHOLE FOODS SP (“CLAIMANT”) is a medium sized manufacturer of fine bakery products in

Equatoriana. It is committed to produce sustainably and ethically and is a United Nations Global Compact

(“UN Global Compact”) member, a voluntary initiative centered on implementing universal

sustainability principles and undertaking partnerships in support of UN goals.

COMESTIBLES FINOS FOODS SP (“RESPONDENT”) is a gourmet supermarket chain in Mediterraneo and is also

a UN Global Compact member.

3-6 March 2014

RESPONDENT and CLAIMANT (“Parties”) first met at the Cucina food fair in

Danubia (“Cucina Fair”), where they extensively discussed CLAIMANT’s supply

chain management strategy, as well as the possibility of doing business together.

10 March 2014 RESPONDENT, being impressed with CLAIMANT’s way of conducting business, sent

to the latter an invitation to tender (“Invitation to Tender”) including its own

standard terms. The same tender documents were sent to four other businesses

and also published in various industry newsletters.

27 March 2014 CLAIMANT submitted an offer (“Offer”) subject to its own general conditions of

sale (“General Conditions”).

7 April 2014 RESPONDENT accepted the Offer. By doing so, the Parties concluded the Contract

1257 (“Contract”).

27 January 2017 After finding out about a sustainability certification scheme scandal in Ruritania,

through a UN Environmental Programme report, RESPONDENT informed

CLAIMANT that it would stop accepting all prospective deliveries and making any

further payments, including for the cakes already delivered, until the issue is

completely resolved. This furthermore affected the cakes already delivered for

which it refused to pay. CLAIMANT immediately replied and expressed confidence

that its supplier of cocoa from Ruritania, Ruritania Peoples Cocoa mbH (“Cocoa

Supplier”), would not be found to be a party to any fraudulent scheme but

promised to investigate the issue further.

10 February 2017 CLAIMANT sent an e-mail to RESPONDENT expressing its surprise after it had

discovered that its Cocoa Supplier had provided falsified official certificates and

therefore breached their contract. However, it had not breached the Contract as

it complied with all its contractual obligations and conveyed its readiness to

continue delivery with newly secured supplies. Despite CLAIMANT’S efforts,

Memorandum for CLAIMANT Statement of Facts

2

RESPONDENT terminated the Contract with immediate effect and without any

attempt to reach a compromise on 12 February 2017.

30 June 2017 As it became clear that no settlement could be reached, CLAIMANT submitted its

Notice of Arbitration (“NoA”) to RESPONDENT and appointed Mr. Prasad as its

arbitrator.

31 July 2017 RESPONDENT filed its Response to the NoA (“RNoA”), in which it acknowledged

CLAIMANT’s choice of arbitrator, and itself appointed Ms. Reitbauer.

7 September 2017 CLAIMANT provided the arbitral tribunal (“Tribunal”) and RESPONDENT with

information regarding its third-party funder, Funding 12 Ltd (“Funding 12”),

whose main shareholder is Findfunds LP (“Findfunds”).

11 September 2017 Mr. Prasad announced that a partner at Prasad & Slowfood (“Partner”) was

representing a client funded by Funding 8 Ltd (“Funding 8”), a subsidiary of

Findfunds. This Partner had formerly worked at Slowfood, which merged with

Mr. Prasad’s law firm on 1 September 2017.

14 September 2017 RESPONDENT submitted its Notice of Challenge of Arbitrator (“NoC”).

INTRODUCTION

1 A man cannot eat his cake and have it still. Yet, after having discovered the corruption scheme in Ruritania,

and declaring CLAIMANT’s chocolate cakes non-conforming, RESPONDENT still made use of them. Its refusal

to pay for the cakes already consumed is inadmissible.

2 Production in today’s world is particularly difficult and competitive. Due to the length of the supply chain, it

has become increasingly challenging to maintain full control over all producers. Perfectly aware of this, as

both Parties do business in the same industry, they decided that CLAIMANT would exclusively have to do its

best in supplying sustainable ingredients. In spite of this, three years later, RESPONDENT suddenly went back

on its word and decided to hold CLAIMANT to unreasonable standards.

3 With regards to the procedural issues, an appointing authority has the jurisdiction to decide on the challenge

of Mr. Prasad, as per the Parties’ arbitration agreement (ISSUE 1.I). If the Tribunal were to find itself

competent to decide on the challenge, it would only be competent with the participation of Mr. Prasad

(ISSUE 1.II). Mr. Prasad should not be removed from the Tribunal, as he is independent and impartial

(ISSUE 2). On the merits, CLAIMANT’s General Conditions are applicable to the Contract, as they were

integrated into the Offer and subsequently accepted by RESPONDENT (ISSUE 3). Finally, even if

RESPONDENT’s general conditions were applicable, the goods were conforming, as these conditions merely

required best efforts regarding the sustainability of the cocoa used in the production (ISSUE 4).

Memorandum for CLAIMANT Arguments

3

ISSUE 1: THE TRIBUNAL DOES NOT HAVE JURISDICTION TO DECIDE ON THE CHALLENGE OF MR. PRASAD WITHOUT HIS PARTICIPATION

4 The Parties to these arbitral proceedings are bound by an arbitration agreement allowing them to initiate

arbitration in accordance with the United Nations Commission on International Trade Law Arbitration Rules

(“UNCITRAL Rules”) [Exh. C2, p. 12 (Clause 20)]. This agreement additionally provides that the lex arbitri is

the law of Danubia, which is the UNCITRAL Model Law on International Commercial Arbitration with the

2006 amendments (“Model Law”) [PO1, p. 49 §4].

5 On 14 September 2017, RESPONDENT challenged the CLAIMANT-appointed arbitrator, Mr. Prasad, asserting

that this challenge must be decided by the Tribunal, and this without Mr. Prasad’s participation

[NoC, p. 39 §8]. Contrary to RESPONDENT’s ill-founded allegation, CLAIMANT will demonstrate that an

appointing authority must decide on the challenge of Mr. Prasad, pursuant to the Parties’ agreement (I). In

any event, the Tribunal cannot adjudicate on the challenge of Mr. Prasad unless sitting in full (II).

I. ACCORDING TO THE PARTIES’ AGREEMENT, THE CHALLENGE OF AN ARBITRATOR CAN ONLY BE DECIDED

BY AN APPOINTING AUTHORITY

6 RESPONDENT alleges that the involvement of an arbitral institution for the challenge of an arbitrator was

excluded in the Parties’ arbitration agreement [NoC, p. 39 §8]. However, CLAIMANT will demonstrate that the

Parties agreed that an appointing authority would decide on the challenge of an arbitrator [Artt. 6 and 13(4)

UNCITRAL Rules]. First, the Parties incorporated the challenge procedure provided by the UNCITRAL Rules

into their arbitration agreement (A). Second, the Parties excluded the involvement of an arbitral institution

only with regards to the initial appointment procedure (B). In any event, a reasonable third person would

have understood the exclusion of institutional support as limited to the initial appointment procedure (C).

A. THE PARTIES INCORPORATED THE CHALLENGE PROCEDURE PROVIDED BY THE UNCITRAL RULES INTO

THEIR ARBITRATION AGREEMENT

7 The Parties agreed to arbitrate under the UNCITRAL Rules, which provide that only an appointing authority

has jurisdiction to decide on the challenge of an arbitrator [Art. 13(4) UNCITRAL; Caron/Caplan, p. 268;

Methanex v. US]. In this regard, the Tribunal shall hold that, by agreeing to arbitrate under the UNCITRAL

Rules, the Parties opted out of the challenge procedure stipulated in the lex arbitri. Indeed, Art. 13(2) Model

Law provides that the arbitral tribunal has jurisdiction to decide on the challenge of an arbitrator.

Additionally, it shall be declared that the challenge procedure set forth in the UNCITRAL Rules applies in its

entirety, as it was validly included into the Parties’ arbitration agreement.

8 According to Art. 13(1) Model Law, parties may derogate from the challenge procedure,

i.e. Art. 13(2) Model Law, inasmuch as the mandatory right to have the challenge decision reviewed by a

court is respected, i.e. Art. 13(3) Model Law [Broches, p. 61; Digest Model Law, p. 69 §4; Weigand, §14.223].

The parties may express their agreement to depart from the Model Law by referring to a procedure set out in


4

arbitration rules, such as the UNCITRAL Rules [Digest Model Law, p. 69 §5; Weigand, §14.225;

OLG Dresden case]. In this event, any disputes shall be settled according to the selected rules, provided no

mandatory provisions of the lex arbitri are breached [Art. 1(1), (3) UNCITRAL Rules; Paulsson/Petrochilos, p. 4 §1;

Webster, §1.95; Born I, p. 2138].

9 On 7 April 2014, the Parties concluded an arbitration agreement as set forth in Clause 20 of the Contract

[Exh. C2, p. 12, C5, p. 17]. In the latter, the Parties agreed that any dispute would be “settled by arbitration in

accordance with the UNCITRAL Arbitration Rules” [Exh. C2, p. 12 (Clause 20)]. CLAIMANT therefore initiated the

arbitral proceedings under these rules [NoA, p. 4 ff]. Additionally, RESPONDENT initiated a challenge

procedure under Art. 13 UNCITRAL Rules [Letter NoC, p. 37]. It is thus undisputed that the Parties agreed to

arbitrate under the UNCITRAL Rules and depart from the challenge procedure provided in the lex arbitri

[Exh. C2, p. 12]. Art. 13(4) UNCITRAL Rules, which states that an appointing authority has jurisdiction to

decide on the challenge of an arbitrator, is contrary to Art. 13(2) Model Law. However, because Art. 13(2)

Model Law is not a mandatory provision, Art. 13(4) UNCITRAL Rules is applicable in the case at hand.

Based on the foregoing, the Parties have validly opted out of Art. 13(2) Model Law and agreed on the

challenge procedure of the UNCITRAL Rules.

10 Furthermore, Art. 13(4) of the UNCITRAL Rules provides that if the parties do not agree on the challenge

or the challenged arbitrator does not withdraw, the challenging party must seek a decision by the appointing

authority shall it decide to pursue the challenge [Born I, pp. 1828-1829; Daele, pp. 179-180;

Waincymer, p. 323]. The procedure for designating and appointing authorities is determined in Art. 6

UNCITRAL Rules [Caron/Caplan, pp. 340-341; Grimmer, pp. 502-503; Webster, pp. 101 ff, 112].

11 Given the fact that the Parties have not reached an agreement with regards to the challenge, that Mr. Prasad

has not withdrawn and that RESPONDENT has elected to pursue the challenge [NoC, p. 39 §8], the conditions

of Art. 13(4) UNICTRAL Rules are fulfilled. The appointing authority must therefore be designated pursuant

to the procedure set forth in Art. 6 UNCITRAL Rules [cf. Webster, pp. 102, 224 §13-88; Baker/Davis, p. 64].

12 In view of the above, because the Parties validly incorporated the UNCITRAL Rules in their arbitration

agreement, the appointing authority has jurisdiction to decide on the challenge of Mr. Prasad.

B. THE PARTIES AGREED TO EXCLUDE THE INVOLVEMENT OF AN ARBITRAL INSTITUTION ONLY WITH

REGARDS TO THE INITIAL APPOINTMENT PROCEDURE AND NOT THE CHALLENGE PROCEDURE

13 Contrary to RESPONDENT’s allegations [NoC, p. 39 §8], the Parties reached an agreement limiting the

exclusion of institutional support to the initial appointment procedure. In this regard, CLAIMANT sent

RESPONDENT a letter on 27 March 2014, to which its Offer was attached, explicitly informing RESPONDENT

of its understanding of the exclusion of institutional support [Exh. C3, p. 15]. By its letter of 7 April 2014,

RESPONDENT accepted CLAIMANT’s Offer [Exh. C5, p. 17].


5

14 This agreement is subject to the CISG and thus to its rules on interpretation [PO1, p. 48 §1]. According to

Art. 8(1) CISG, “statements made by […] a party are to be interpreted according to [its] intent where the other party

knew or could not have been unaware what that intent was” [Schlechtriem/Schwenzer, Art. 8 §11; Honnold/Flechtner,

§105; Chatillon, p. 220; Lookofsky, pp. 42-43; TETA case]. Hence, one of the facets of this disposition is the

question of imputable awareness, which shall be analyzed in the light of the formula “could not have been

unaware” [Schlechtriem/Schwenzer, Art. 8 §17; cf. Lookofsky, pp. 42-43; Lautenschlager, p. 260; Huber/Mullis,

p. 12]. Furthermore, where both parties have expressed their intention to the other, they are deemed to have

reached a ‘meeting of minds’ [Schlechtriem/Schwenzer, Art. 8 §11; Digest CISG, p. 58 fn. 14; Franklins v. Metcash].

15 In the case at hand, the Parties agreed to apply the UNCITRAL Rules “without the involvement of any arbitral

institution” [Exh. C2, p. 12 (Clause 20)]. CLAIMANT, referring to this arbitration clause, had informed

RESPONDENT that it was “certain that [the Parties would] be able to overcome any problems relating to the constitution of

the arbitral tribunal even without institutional support” (emphasis added) [Exh. C3, p. 15]. Indeed, the Parties

restricted the scope of this exclusion of institutional support to the constitution of the Tribunal. Consequently,

because CLAIMANT referred expressly to the “constitution” of the Tribunal [ibid.], RESPONDENT knew or at the

very least could not have been unaware of CLAIMANT’s intention to restrict the scope of the exclusion of

institutional support solely to the constitution and not the composition of the Tribunal. Additionally,

RESPONDENT also demonstrated its intention to restrict the exclusion of institutional support exclusively to

the constitution of the Tribunal by accepting the Offer, as the latter was attached to CLAIMANT’s letter

[Exh. C3, p. 15]. Thus, RESPONDENT, by accepting CLAIMANT’s Offer, made CLAIMANT aware that it

understood the arbitration clause in an identical manner [Exh. C5, p. 17].

16 In view of the above, in accordance with Art. 8(1) CISG, the Parties had a reciprocal intention with regards

to the fact that the exclusion of institutional support was only applicable to the initial appointment procedure.

C. IN ANY EVENT, A REASONABLE THIRD PERSON WOULD HAVE UNDERSTOOD THE EXCLUSION OF

INSTITUTIONAL SUPPORT AS APPLYING SOLELY TO THE INITIAL APPOINTMENT PROCEDURE

17 If the Tribunal were to find that there was an absence of common intent (quod non), the question shall be

decided in light of an objective interpretation. In this regard, under the objective test of Art. 8(2) CISG, in

the absence of common intent, the hypothetical understanding of a reasonable third person of the same kind,

placed in the same circumstances, is determining [Schlechtriem/Schwenzer, Art. 8 §20; Chatillon, p. 220;

Farnsworth I, p. 98 §2.4; Huber/Mullis, pp. 12 ff; Lautenschlager, §3.1; Cowhides case; Magnesium case; Marble case].

18 CLAIMANT will demonstrate that, according to literal interpretation, the term “constitution” in CLAIMANT’s letter

of 27 March 2017 designated solely to the initial appointment of arbitrators (1), that the arbitration clause does

not mention a specific challenge procedure (2) and that the Parties’ negotiations demonstrate the restricted

scope of the exclusion of institutional support (3).


6

1. According to literal interpretation, the term “constitution” in CLAIMANT’s letter of 27 March 2017 designated solely the initial appointment of arbitrators

19 CLAIMANT’s use of the word “constitution” in its letter could only be understood as referring exclusively to the

initial appointment procedure [Exh. C3, p. 15]. The usual meaning of words must be considered when

interpreting objectively the parties’ statements [Schlechtriem/Schwenzer, Art. 8 §§41-42; Bugg, p. 49; Coke case;

Mattresses case]. The term constitution is usually understood in arbitral proceedings as referring to the initial

appointment of the arbitrators [Schwebel, p. 14; ICJ Report, p. 229; Caron/Caplan, p. 145].

20 CLAIMANT’s use of the term constitution ought to be analyzed according to the literal interpretation of the

term. Consequently, in the eyes of a reasonable third person, CLAIMANT solely referred to the initial

appointment procedure in its letter of 27 March 2017.

2. The arbitration clause mentions a specific procedure exclusively for the initial appointment of arbitrators and not for their challenge

21 A hypothetical reasonable third person could only understand the fact that the Parties did not specify a

challenge procedure in their arbitration agreement as purposeful. Indeed, the Parties specified, in this same

agreement, the procedure applicable to the initial appointment of arbitrators [Exh. C2, p. 12 (Clause 20(a))],

but did not specify the procedure to be applied to the challenge of an arbitrator. In this regard, the general

principle of contract interpretation, expressio unius est exclusio alterius, expresses the idea that to include one

thing implies the exclusion of all the others [Hobér, p. 140; BLD, p. 701; Mobil Oil Iran case; Glamis case].

Furthermore, according to leading case law, modifications to an arbitration agreement, explicit or implicit,

must be evident from the wording of the parties’ written agreement [Econet case].

22 In casu, the Parties did not, unlike for the initial appointment procedure, specifically mention a challenge

procedure in their arbitration agreement. If the Parties’ intention was to exclude the involvement of an

arbitral institution for both the initial appointment procedure and the challenge procedure, a reasonable third

person would have expected them to expressly provide for both cases in their arbitration clause. Indeed, in

the leading Econet case, the arbitral tribunal rejected the argument that the parties’ explicit modification of

Art. 7(1) UNCITRAL Rules implicitly extended to the other paragraphs of that article, as it would have

constituted a major departure from the written text of the parties’ agreement. On the basis of the above, an

unequivocal wording would have been required in case the Parties intended to extend the scope of the

exclusion of institutional support to the challenge procedure.

3. The Parties’ negotiations could only be understood as further demonstrating the restricted scope of the exclusion of institutional support

23 The Parties’ discussion at the Cucina Fair as well as the Parties’ subsequent correspondence could only be

understood as excluding institutional support solely for the initial appointment procedure [Exh. C1, p. 8,

C3, p. 15]. Due consideration must be given to the parties’ discussions during the negotiations, pursuant to


7

Art. 8(3) CISG [Schlechtriem/Schwenzer, Art. 8 §13; Farnsworth I, p. 96 §1.4; Albrecht, Art. 8 §2; Marble case;

Machinery case].

24 In the case at hand, RESPONDENT voiced its concern for confidentiality in arbitral proceedings under

institutional arbitration [Exh. R5, p. 41; PO2, p. 52 §21]. Under this pretext, it attempts to extend the scope of

the exclusion of institutional support to the challenge procedure [NoC, p. 39 §8]. However, Clause 21 of

RESPONDENT’s general conditions, although they do not apply in casu [infra §§77 ff], states that the

confidentiality obligation may be lifted in order to “protect or pursue a legal right in bona fide legal proceedings

before any court or Arbitral Tribunal [institutional or not] of competent jurisdiction” [Exh. C2, p. 13]. Therefore, in the

eyes of a reasonable third person, RESPONDENT is inconsistent in its statements as it is open to waiving a

confidentiality guarantee in the event where an issue would arise during the arbitral proceedings, including in

the initial appointment procedure. Thus, RESPONDENT did not have a legitimate reason to extend the scope

of the exclusion of institutional support to the challenge procedure.

25 Contrary to RESPONDENT, CLAIMANT had a legitimate reason to restrict the scope of the exclusion of

institutional support. Indeed, CLAIMANT informed RESPONDENT, during the Cucina Fair, about its previous

negative experience with the initial appointment of a presiding arbitrator in the context of an ad hoc

arbitration [Exh. R5, p. 41]. RESPONDENT, catering to CLAIMANT’s concerns regarding the initial appointment

procedure, immediately verified with its legal department whether its arbitration clause would give rise to

any problems and expressly reassured CLAIMANT on the subject [Exh. C1, p. 8, R5, pp. 41-42]. Admittedly,

RESPONDENT’s statement referred to the composition of the Tribunal, rather than to its constitution [ibid.].

However, it could only be understood, in light of CLAIMANT’s negative experience with the initial

appointment of an arbitrator that RESPONDENT’s letter pertained solely to this phase of the proceedings. This

is further demonstrated by CLAIMANT’s letter of 27 March 2017 [supra §§15, 20].

26 Consequently, the Parties’ negotiations could only be understood as demonstrating their intent to exclude

the involvement of an arbitral institution solely with respect to the constitution of the Tribunal.

II. IN ANY EVENT, ONLY THE TRIBUNAL IN FULL MAY DECIDE ON THE CHALLENGE OF MR. PRASAD

27 Should the Tribunal consider that the appointing authority does not have jurisdiction to decide on the

challenge of Mr. Prasad, the Tribunal would only have jurisdiction with the participation of Mr. Prasad.

28 CLAIMANT will demonstrate that the lex arbitri requires Mr. Prasad to participate in the decision on his own

challenge (A); in this regard, the Parties must have equal influence in the composition of the Tribunal with

regards to the challenge decision (B).

A. THE LEX ARBITRI REQUIRES MR. PRASAD TO PARTICIPATE IN THE DECISION ON HIS OWN CHALLENGE

29 Art. 13(2) Model Law provides that “the arbitral tribunal shall decide on the challenge”. The term “arbitral

tribunal” must be understood as the arbitral tribunal in full. CLAIMANT will demonstrate hereinafter that the


8

legislative history of the Model Law indicates that a decision on the challenge of an arbitrator must be

rendered by an arbitral tribunal in its full composition (1), and that due to the nature of such decision, the

Tribunal must decide in full (2).

1. The legislative history of the Model Law indicates that a decision on a challenge of an arbitrator must be rendered by an arbitral tribunal in its full composition

30 The travaux préparatoires of the Model Law ought to be considered by the Tribunal in the case at hand, as they

are an important guide when interpreting the Model Law [Weigand, §§14.16-14.17; UNCITRAL Report (1985),

§60]. Accordingly, the UNCITRAL Working Group intended Art. 13(2) Model Law to designate the

jurisdiction of the arbitral tribunal in its full composition. Indeed, the Working Group stated that “[it] agreed

that […] the decision was entrusted to all members of the tribunal, including the challenged arbitrator” (emphasis

added) [Working Group Report (1984), §38]. Additionally, this was further confirmed by UNCITRAL [Broches,

p. 62; Weigand, §14.232; UNCITRAL Report (1985), §§128, 130]. In light of the above, there can be no doubt

that the term “arbitral tribunal” in Art. 13(2) Model Law designates the arbitral tribunal in full.

2. The nature of the decision on the challenge of an arbitrator requires an arbitral tribunal to decide in full

31 The substantive nature of the decision on the challenge of Mr. Prasad warrants the participation of the

Tribunal in full, according to the lex arbitri. Art. 29 Model Law requires any decision of the arbitral tribunal to

be taken by a majority of all its members, unless this decision is a procedural one. In the case of a three-

member arbitral tribunal with equal voting power, the majority can only be reached if the arbitral tribunal sits

in full, as the Model Law does not provide for the presiding arbitrator to have a casting vote, unless the

parties decide otherwise [Art. 29 Model Law; Poudret/Besson I, p. 661; Broches, p. 143; Holtzmann/Neuhaus,

p. 808]. Additionally, the decision on a challenge of an arbitrator shall not be regarded as a procedural

decision, in the sense of Art. 29 Model Law [Working Group Report (1984), §38; Working Group Report (1985),

p. 32 §4; Holtzmann/Neuhaus, p. 407 fn. 3]. Indeed, a procedural decision is a decision that includes “technical

regulations” of the arbitral process, such as the language of the proceedings or the logistical aspects of a hearing

and is thus not outcome-determinative [Caron/Caplan, pp. 709-710; Sanders, No. 14 §194; Konrad/Schwarz,

p. 246 §26-035; van Hof, p. 214; Case B1 IUSCT (Dissenting Opinion Ameli)].

32 The decision on the challenge of Mr. Prasad has a direct and significant impact on the outcome of the case, as

the challenged arbitrator’s participation during the deliberations is determinant. This decision must therefore be

considered as substantive and not merely procedural. Consequently, the presiding arbitrator, Ms. Rizzo, cannot

decide on the challenge decision on her own. In order for a majority to be reached in casu, all three arbitrators

would have to participate in the decision-making, as the Parties have not provided that Ms. Rizzo has a casting

vote [cf. Art. 29 Model Law]. Mr. Prasad must thus participate in the challenge decision alongside Ms. Rizzo and

Ms. Reitbauer.


9

B. THE PARTIES MUST HAVE EQUAL INFLUENCE ON THE COMPOSITION OF THE TRIBUNAL

33 A party should not have preponderant influence on the composition of an arbitral tribunal, including in the

case of a decision on the challenge of an arbitrator [Blessing, p. 48; Kramer/Urbach, p. 155; Weigand, §§14.225,

14.362; Dutco case]. As such decision cannot be made exclusively by the presiding arbitrator [supra §32], the

Parties must have equal influence on the composition of the Tribunal in order to fulfill their right to equal

treatment according to the lex arbitri. If this right is not respected, the award should be set aside at the

enforcement stage. CLAIMANT will demonstrate that the Model Law requires that the Parties be treated in an

equal manner (1) and that the award should be set aside under the New York Convention of 1958 (“NY

Convention”) if Mr. Prasad is not permitted to participate in the decision on his challenge (2).

1. The lex arbitri includes a mandatory disposition on equal treatment of the parties

34 Art. 18 Model Law stipulates that the parties must be treated with equality. This mandatory disposition

entails that an arbitral tribunal must apply similar standards to all parties and their representatives throughout

the arbitral process [Digest Model Law, p. 97 §5; Weigand, §§14.23, 14.360].

35 In the present case, if the challenge of Mr. Prasad were decided without his participation, RESPONDENT

would exercise an overriding influence on the composition of the Tribunal [cf. Blessing, p. 48; Milutinovic case].

Indeed, Ms. Reitbauer, appointed by RESPONDENT, would decide on the challenge of Mr. Prasad, whereas

CLAIMANT would not have a party-appointed arbitrator participating in the above-mentioned decision. Such

inequality of treatment would constitute a breach of Art. 18 Model Law.

2. Additionally, the breach of the right to equal treatment constitutes a ground for setting the final award aside under the New York Convention

36 If CLAIMANT’s right to equal treatment is breached, the award should be set aside under the NY Convention.

Equatoriana and Mediterraneo being both Contracting States to the Model Law and the NY Convention, the

award must be enforceable according to both sets of rules [PO1, pp. 49 §4, 55 §47]. In this regard, the arbitral

tribunal must make every effort to render an enforceable award [Weigand, §14.158; Redfern/Hunter, §§9.14,

11.11]. The NY Convention provisions on enforcement and recognition are drafted in an almost identical

manner as the corresponding provisions of the Model Law; the latter provisions can thus be applied mutatis

mutandis [Born I, p. 3436; Broches, p. 164; Carlevaris, p. 539].

37 First, Art. V(1)(b) NY Convention establishes the parties’ right to due process. Second, pursuant to

Art. V(1)(d) NY Convention, the arbitral authority must be composed in accordance with the law of the seat,

unless the parties provided otherwise. Additionally, the award may be set aside if found to be contrary to the

public policy of the country in which the award is enforced or recognized [Art. V(2)(b) NY Convention; Guide NY

Convention, p. 254; Dutco case]. In this regard, Art. V(2)(b) NY Convention has been found to encompass rules

of international public policy [Born I, p. 3655; Schwarz/Ortner, p. 167]. Because of its widely recognized value,


10

it has been considered that the right to equal treatment, including in the context of the composition of an

arbitral tribunal, is a rule of international procedural public policy [Delvolvé, p. 200; Gaillard/Savage, p. 465

§787; Brekoulakis et al., p. 878; Poudret/Besson II §§242, 936; Lalive, p. 299; Schwebel/Lahne, pp. 205, 225;

Schwarz/Ortner, p. 180; Inversiones v. STET; Intelcam case; BGE (2003)].

38 In casu, were the Tribunal to decide that Mr. Prasad should not be given the opportunity to participate in the

decision on his challenge, Art. 18 Model Law would be breached. CLAIMANT would thus have grounds for

setting aside the award as the Tribunal would have violated its right to equal treatment and the law of the seat

would not have been respected under Art. V(1)(b) and (d) NY Convention [supra §35; cf. Bevilacqua/Ugarte,

p. 38]. Additionally, the award would be contrary to international public policy thus risks to be set aside

pursuant to Art. V(2)(b) NY Convention. On the basis of the above, Mr. Prasad must be allowed to

participate in the challenge decision, or else the award would not be enforceable as there would be grounds

for setting aside the award under the NY Convention and the Model Law.

CONCLUSION ON ISSUE 1

39 The Parties agreed to confer an appointing authority the power to decide on the challenge of Mr. Prasad.

Indeed, the Parties’ intent was not to exclude the appointing authority’s jurisdiction with regards to the

challenge procedure but solely with regards to the initial appointment procedure. Therefore, the Tribunal

does not have the jurisdiction to rule on the challenge of Mr. Prasad. In the event the Tribunal would be

found competent to adjudicate such challenge, it must sit in its full composition, or else CLAIMANT’s right to

equal treatment would be breached. Thus, if Mr. Prasad is precluded from participating in the challenge

decision, the final award shall be set aside pursuant to the NY Convention and the Model Law.

ISSUE 2: MR. PRASAD SHALL NOT BE REMOVED FROM THE TRIBUNAL

40 Contrary to RESPONDENT’s allegations [NoC, p. 38 §1], Mr. Prasad is independent and impartial and must

thus not be removed from the Tribunal. RESPONDENT asserts that Mr. Prasad has connections with

Findfunds, i.e. the main shareholder of CLAIMANT’s third-party funder, and has been appointed repeatedly by

Fasttrack’s law firm. Moreover, the article written by Mr. Prasad regarding corporate social responsibility

allegedly undermines his impartiality [NoC, pp. 38-39]. However, CLAIMANT will demonstrate that

Mr. Prasad is indeed independent and impartial (I) and that in any event, RESPONDENT is precluded from

raising any grounds for challenge (II).

I. MR. PRASAD IS INDEPENDENT AND IMPARTIAL AS REQUIRED BY THE LEX ARBITRI [ART. 12(2) MODEL LAW]

41 The decision of Mr. Prasad’s impartiality and independence shall be taken on the limited grounds for

challenge provided in the lex arbitri. Indeed, Art. 12 Model Law is a mandatory disposition and must thus be

applied even if the parties decide to arbitrate under the UNCITRAL Rules [a contrario supra §8; Art. 1(3)

UNCITRAL Rules; Weigand, p. 1011 §14.217; Working Group Report (1985), Art. 13 §1; Desbois v. Industries].


11

Art. 12(2) Model Law provides that “an arbitrator may be challenged only if circumstances exist that give rise to

justifiable doubts as to his impartiality or independence”. Independence relates to the objective relationships the

arbitrator has with the parties or affiliates of the parties [Bucher/Tschanz, p. 69; Gaillard/Savage, § 1028;

Born I, p. 1776]. Impartiality is understood as the absence of bias with regards to the subject-matter [Lew

et al., p. 261 § 11-19]. The existence of justifiable doubts as to an arbitrator’s independence and impartiality

is to be assessed through the eyes of a reasonable third person [Redfern/Hunter, p. 254 §§4.76 ff; Croft et al.,

p. 128 §11.4; von Goeler, p. 3; Cofely v. Bingham; Grid v. Argentina; Gallo v. Canada; Porter v. Magill; Grand River

v. US; Urbaser case; Ad Hoc case (1995)]. A reasonable third person would look at the 2014 IBA Guidelines on

Conflicts of Interest in International Arbitration (“IBA Guidelines”) [Webster, p. 175; Kaufmann-Kohler, p.

296; Wilske/Stock, p. 45; ICS v. Argentina; ASM v. TTMI; Ometto v. ASA; Applied Materials case; Valverde case; Sierra

Fishing case]. These guidelines, which are widely accepted in practice, establish an non-exhaustive list of

circumstances likely to give rise to justifiable doubts [ibid.]. Nonetheless, the IBA Guidelines are not binding,

unless the parties agree to opt into them [IBA Guidelines, p. 3 §6; Hodges, p. 222; von Goeler, p. 257; Born I, p.

2211; Kaufmann-Kohler/Rigozzi, p. 200 §4.130; Voser/Petti, p. 9; Estavillo-Castro, p. 389]. The Parties have not

made such an agreement in the present case. Thus, the IBA Guidelines are not binding on them but merely

act as a source of inspiration.

42 CLAIMANT will demonstrate that there are no justifiable doubts as to Mr. Prasad’s independence and

impartiality under the IBA Guidelines (A). Furthermore, even if the circumstances of the case fell outside the

non-exhaustive list provided by the IBA Guidelines, there would still be no justifiable doubts (B).

A. THE CIRCUMSTANCES AT HAND DO NOT GIVE RISE TO JUSTIFIABLE DOUBTS AS TO MR. PRASAD’S

INDEPENDENCE AND IMPARTIALITY UNDER THE IBA GUIDELINES

43 The IBA Guidelines classify circumstances pertaining to an arbitrator’s independence or impartiality into

distinct lists [IBA Guidelines, p. 2]. The Red and Orange lists provide for situations in which there are or might

be justifiable doubts as to the arbitrator’s independence and impartiality [IBA Guidelines, pp. 17-18; Born I,

pp. 1847-1848; Daele, p. 245; Luttrell, p. 201]. In contrast, the Green list provides for situations that do not

raise justifiable doubts [IBA Guidelines, p. 18].

44 CLAIMANT will demonstrate that none of RESPONDENT’s grounds for challenge [cf. NoC, pp. 38 ff] fall within

the Red or Orange lists of the IBA Guidelines. Firstly, Mr. Prasad has never been appointed by CLAIMANT’s

affiliates [3.1.3 IBA Guidelines] but by separate entities (1). Secondly, he was not appointed repeatedly by

Fasttrack’s law firm [3.3.8 IBA Guidelines] (2). Thirdly, Mr. Prasad’s law firm does not have any significant

commercial relationship with an affiliate of the Parties [2.3.6 IBA Guidelines] (3). Lastly, Mr. Prasad’s article

does not advocate a position on the present case [3.5.2 IBA Guidelines] (4).


12

1. Mr. Prasad has not been repeatedly appointed by an affiliate of one of the Parties [3.1.3

IBA Guidelines]

45 RESPONDENT asserts that Mr. Prasad has been appointed as an arbitrator by Findfunds for the third time and

that this repetition of appointments disproves his independence [NoC, p. 39 §10]. The repeated appointment

of arbitrators by parties or their affiliates falls under 3.1.3 IBA Guidelines, which provides that an arbitrator

shall not be appointed by a party to the arbitration or its affiliate more than twice within three years.

CLAIMANT will demonstrate that Mr. Prasad’s previous appointments occurred in cases funded by separate

subsidiaries and not by CLAIMANT’s affiliates, and that even if they were affiliates, only one of them was

involved in Mr. Prasad’s appointment.

46 Mr. Prasad has never been appointed by a Party, be it RESPONDENT and CLAIMANT, in the past

[Declaration Prasad, p. 36]. RESPONDENT suggests that the funders of the parties that previously appointed

Mr. Prasad are affiliated to CLAIMANT [NoC, p. 39 §10]. However, this view cannot be followed. Indeed,

CLAIMANT is funded by Findfunds’ subsidiary, Funding 12, while the parties that previously appointed

Mr. Prasad were funded by other subsidiaries of Findfunds [ibid.].

47 An affiliate of a party is an entity closely connected to one of the parties [von Goeler, pp. 265, 274]. Third-party

funders are not affiliates of the parties [Bogart, p. 54; Lévy/Bonnan, p. 85]. In casu, Funding 12 is a third party

funding CLAIMANT [Letter Fasttrack, p. 35]. It is not closely connected to CLAIMANT, as it is the first time they

are involved in the same arbitral proceedings and as CLAIMANT manages the proceedings without the

involvement of its funder [PO2, p. 50 §§3-4]. Additionally, CLAIMANT does not fundamentally rely on the

funding provided by Funding 12 [PO2, p. 50 §1]. Thus, Funding 12 is not an affiliate of CLAIMANT. A fortiori,

the other subsidiaries of Findfunds are not affiliates of CLAIMANT either.

48 Moreover, the subsidiaries are not connected to each other. Indeed, each company in a group of companies is

a separate legal entity [Rubbellin-Devichi, p. 515; Adams v. Cape; ICC case No. 4402]. While the ‘group of

companies’ doctrine allows disregarding the independence of separate companies, it is admitted very

restrictively, when at all [Müller/Keilmann, p. 118; Peterson Farms case; Sarhank case; CCIG case No. 137; BGE

(1996)]. Indeed, this doctrine is only applied when one company has an active role in the negotiations,

performance or termination of the contracts of another [Born II, p. 101; Dow chemical case; KIS France case; ICC

case No. 5103; ICC case No. 6519]. Nonetheless, it is not sufficient for a company to detain 100% of the shares

of its subsidiaries [US v. Bestfoods; InterGen v. Grina; Hester v. Nigeria]. In the present case, Funding 12,

Findfunds and its two other subsidiaries are legally four different entities [PO2, p. 50 §3]. Findfunds only

participated in the initial discussions and negotiations with the parties it funded [PO2, p. 50 §4]. It then left the

conduct of the arbitration largely to the parties involved and exercised only little influence on the proceedings

[PO2, p. 50 §5]. Furthermore, Findfunds holds only 60% of the shares of Funding 12 and holds 100% of the

shares of the two other subsidiaries [Letter Prasad, p. 43; PO2, p. 50 §6]. Consequently, the presumption that


13

the four companies are separate legal entities cannot be rebutted. Mr. Prasad has, thus, never been appointed

by an affiliate of CLAIMANT as Findfunds’ subsidiaries are separate legal entities.

49 Even if the Tribunal were to take into consideration Mr. Prasad’s previous appointments in cases funded by

Findfunds’ subsidiaries, the limit of two cases would still not be exceeded as Mr. Prasad has only been

appointed once after a subsidiary was involved [Letter Prasad, p. 43]. In the other case however, Mr. Prasad was

appointed before the involvement of Findfunds or its subsidiary [ibid.]. This appointment can in no way be

attributed to Findfunds and indirectly to CLAIMANT. Therefore, Mr. Prasad has been previously appointed

once at most by a subsidiary of Findfunds and the limit of two appointments is not reached.

50 In light of the above, as the conditions of 3.1.3 IBA Guidelines are not fulfilled, the involvement of

CLAIMANT’s third-party funder does not give rise to justifiable doubts as to Mr. Prasad’s independence.

2. Mr. Prasad was not repeatedly appointed by Fasttrack’s law firm [3.3.8 IBA Guidelines]

51 RESPONDENT alleges that the repeated appointment of Mr. Prasad by the law firm of CLAIMANT’s counsel

affects Mr. Prasad’s independence [NoC, p. 39 §10]. 3.3.8 IBA Guidelines provides that an arbitrator should

not be appointed more than three times within the past three years by the same counsel or law firm [Gomez-

Acebo, p. 123; Koh; Generis v. Novartis].

52 In casu, Mr. Prasad was appointed by Mr. Fasttrack’s law firm only twice within the past three years

[Exh. C11, p. 23; PO2, p. 51 §10]. Thus, Mr. Prasad’s independence cannot be questioned on the basis of his

previous appointments by Fasttrack’s law firm, as the limit of three appointments, provided by the IBA

Guidelines, was not exceeded.

3. Mr. Prasad’s law firm does not have any significant commercial relationship with an affiliate of the Parties [2.3.6 IBA Guidelines]

53 RESPONDENT, quoting 2.3.6 IBA Guidelines, erroneously alleges that Mr. Prasad’s Partner has a significant

commercial relationship with an affiliate of CLAIMANT [cf. NoC, p. 39 §11]. Such relationship is significant only

when the law firm derives a substantial part of its revenue from it [BGE (2016)]. It is suggested that the fact

that a law firm derives 20% of its annual income from its funder is not a sufficient indicator to determine the

existence of a significant commercial relationship with the latter [von Goeler, p. 267-268]. A long-lasting

relationship is an indicator of its commercial significance [Lew et al., p. 262; Craig et al., §13-03; SGS

v. Pakistan; OLG Hamm case].

54 Firstly, Funding 8, which funds the client of Mr. Prasad’s Partner is not an affiliate of the Parties, as

subsidiaries cannot be considered as such [supra §48]. Secondly, Mr. Prasad’s law firm currently has no

significant commercial relationship with Findfunds or its subsidiaries. Slowfood had represented a party

funded by Funding 8 for only two years [Declaration Prasad, p. 36; PO2, p. 50 §6]. This two-year relationship is

now over and represented only 5% of Slowfood’s annual turnover [PO2, p. 50 §6]. After the merger, this


14

represented less than 5% of the annual turnover of the new entity. Given the low amount of revenue, as well

as the short length of the relationship, Mr. Prasad’s law firm does not have a significant commercial

relationship with an affiliate of the Parties. Thus, no justifiable doubts can be upheld on the basis of this

relationship.

4. The article Mr. Prasad published does not advocate a position on the present case [3.5.2

IBA Guidelines]

55 In 2016, Mr. Prasad published an article entitled “[t]he notion of conformity in Art. 35 in the age of Corporate Social

Responsibility Codes and ‘Ethical Contracting’” in the Vindobona Journal [Exh. R4, p. 40]. Based on this article,

RESPONDENT challenged Mr. Prasad [NoC, p. 38], arguing that he advocates a position on the present case

[3.5.2 IBA Guidelines]. However, this allegation is ill-founded as Mr. Prasad’s article is general and abstract.

56 The publishing of an article by an arbitrator can potentially fall either under the Orange or Green lists

[supra §43; 3.5.2, 4.1.1 IBA Guidelines]. Pursuant to 3.5.2 IBA Guidelines, the situation where “an arbitrator has

publicly advocated a position on the case [at hand]” falls under the Orange list and might therefore raise justifiable

doubts on the arbitrator’s impartiality [supra §43]. This disposition only concerns publicly advocated positions

relating directly to the case at hand and involving the same parties, or to cases treating similar facts

[Bühler/Feit, p. 106; Ghana v. Telekom; Grid v. Argentina; Swiss Airlines case]. In contrast, when an article

expresses a legal opinion related to the issue, which arises in the case but without focusing on the case itself, it

is considered to be general and abstract, and therefore does not allow for the disqualification of the arbitrator

[4.1.1 IBA Guidelines; Part II §7 IBA Guidelines; Born III, p. 141].

57 Mr. Prasad’s article did not address the issue of cocoa sustainability and did not refer to the Parties involved in

the present arbitration proceedings either. The threshold to consider an arbitrator partial is very high,

according to the leading case law. Indeed, in Grid v. Argentina, despite the arbitrator’s comment in favor of

one of the parties during the hearing, he was found to be impartial. Pursuant to the adage qui potest majus potest

et minus [Eng: he who can do more can do less], Mr. Prasad is impartial because he merely addressed a general

issue, which admittedly arises in the present arbitration, but which is neither based on the facts nor on the

identity of the Parties at hand. For these reasons, Mr. Prasad’s article falls under 4.1.1 IBA Guidelines, i.e.

the Green list, and therefore does not give rise to justifiable doubts regarding Mr. Prasad’s impartiality.

B. EVEN IF THE CIRCUMSTANCES OF THE CASE FELL OUTSIDE THE NON-EXHAUSTIVE LIST PROVIDED BY THE

IBA GUIDELINES, THERE WOULD STILL BE NO JUSTIFIABLE DOUBTS

58 If the circumstances did not fall within the scope of the non-exhaustive lists of the IBA Guidelines, they have

to be analyzed on a case-by-case basis [IBA Guidelines, p. 19; Luttrell, p. 108; BGE (1998); BGE (2007)]. Even

under these circumstances, a reasonable third person would not find any justifiable doubts as to Mr. Prasad’s

independence and impartiality (1). Moreover, CLAIMANT did not violate its obligation to disclose, but even if

it had, it would not raise justifiable doubts as to Mr. Prasad’s independence and impartiality (2).


15

1. Mr. Prasad is independent and impartial from a reasonable third person’s point of view

59 No justifiable doubts as to Mr. Prasad’s independence and impartiality can be upheld. Such justifiable doubts

should be “direct, definite, and capable of demonstration rather than remote, uncertain and speculative” [Al-Harbi v.

Citibank; Alston v. UBS; Peoples Life Ins. case; Health Management case; Nationwide case]. The Tribunal is

respectfully requested to hold that the relationships between Mr. Prasad and the entities involved in the

present case do no give rise to justifiable doubts with regards to his independence (a) and that Mr. Prasad’s

article on the conformity of goods does not give rise to justifiable doubts with regards to his impartiality (b).

a. The relationships between Mr. Prasad and the entities involved in the present case do not give rise to justifiable doubts with regards to his independence

60 Mr. Prasad’s remote business relationships with third-party funders and with CLAIMANT’s counsel do not

constitute justifiable doubts with regards to his independence. Business relationships between an arbitrator

and a company related to a party are possible grounds for justifiable doubts as to the arbitrator’s

independence, depending on the circumstances of the case [Waincymer, pp. 298, 301; Barcon v. Tri-County].

Tribunals have found arbitrators not to be independent in cases implicating parties which the arbitrators were

previously excessively involved with [W v. M SDN BHD; Vivendi v. Argentina]. In contrast, arbitrators were

found to be independent in cases involving parties that were represented by their arbitrator’s partner in an

unrelated case [ibid.]. Deciding circumstances were that the arbitrators were only minimally involved in their

partner’s case, that the case was almost over, and that the arbitrator’s law firm was of large size [ibid.]. In casu,

Mr. Prasad’s Partner was involved in a case unrelated to the subject matter of the present arbitral

proceedings. In addition to the fact that Mr. Prasad’s law firm only recently merged with Slowfood

Mr. Prasad is only one out of 80 partners and associates and there is no indication that he was involved in his

Partner’s case [PO2, p. 50 §8; Declaration Prasad, p. 36].

61 Additionally, arbitrators have been found to not be independent in cases where excessive appointments

demonstrated the arbitrator’s financial dependence on a party. Such would be the case when an arbitrator had

an important number of appointments (e.g. 34 or 51) by companies of the same group [Somoclest v. DV; Époux

X v. Prodim/Logidis; Cofely v. Bingham]. In contrast, a small number of prior appointments has been found to be

inconsequential to the arbitrator’s independence [OPIC v. Venezuela; Fileturn case]. Moreover, the absence of

knowledge by the arbitrator as to the links between him and the parties shall be considered as a significant

clue as to his independence [Locabail case; Gough case]. In the present case, Mr. Prasad had only been appointed

on two occasions by parties funded by subsidiaries of Findfunds and twice by Fasttrack’s law firm [Exh. C11,

p. 23; Declaration Prasad, p. 36]. Furthermore, only around 7% of Mr. Prasad’s annual revenue in these past

three years originated from Findfunds’ subsidiaries [PO2, p. 51 §10]. These numbers are much too small to

conclude that Mr. Prasad would be financially dependent on either Findfunds or Fasttrack’s law firm.


16

Moreover, Mr. Prasad had no prior knowledge of the involvement of Findfunds in the arbitral proceedings

[Letter Prasad, p. 43].

62 The links between Mr. Prasad and the entities involved in the present case are thus too remote for them to

raise doubts as to his independence. As a result, it must be held that a reasonable third person would not have

any justifiable doubts as to Mr. Prasad’s independence.

b. Mr. Prasad’s article on the conformity of goods does not give rise to justifiable doubts with regards to his impartiality

63 Mr. Prasad’s article on the conformity of goods does not give rise to justifiable doubts as to his impartiality.

The expression by the arbitrator of thoughts that demonstrate that he has prejudged the case or has a

preconception in favor of or against one of the parties, is a ground for having justifiable doubts as to the

arbitrator’s impartiality [Díaz-Candia, p. 291; Reymond, p. 14; Greenberg et al., p. 276 §6.111; Vakauta v. Kelly;

Urbaser case; STMicroelectronics case; Suez case; Swiss Airlines case].

64 In the case at hand, Mr. Prasad solely presented a legal issue in an article. Nothing indicates that he prejudged

the case or that he would treat the Parties unequally as he merely analyzed the subject of the conformity of

goods in a general manner and explained both sides of the legal issue. As a consequence, no circumstance in

the present case would lead a reasonable third person to have justifiable doubts as to Mr. Prasad impartiality.

2. The independence and impartiality of Mr. Prasad cannot be questioned with regards to the disclosure obligation of a party

65 RESPONDENT wrongfully argues that CLAIMANT failed to disclose that it was being funded by Funding 12

[NoC, p. 39 §9]. Art. 12(1) Model Law stipulates that an arbitrator “shall disclose any circumstances likely to give

rise to justifiable doubts as to his impartiality or independence”. However, under the Model Law, no such obligation

is attributed to the parties. Therefore, CLAIMANT had no obligation to disclose the source of its funding.

66 RESPONDENT argues that CLAIMANT had an obligation to disclose under the IBA Guidelines. However, these

serve as a mere source of inspiration for tribunals [supra §41] and do not impose any obligation to disclose on

the parties. Even if we were to consider that the IBA Guidelines were applicable, there is no obligation for

the parties to disclose their funder [Osmanoglu, p. 337; Lévy/Bonnan, p. 80]. The General Principle 7(a) IBA

Guidelines, which RESPONDENT invokes, provides that the parties must disclose relationships between the

arbitrator and any entity with a direct economic interest in the award to be rendered in the arbitration, such

as a third-party funder. In casu, Funding 12, CLAIMANT’s funder deals exclusively with CLAIMANT, and has no

relationship with Mr. Prasad whatsoever. This is further illustrated by the fact that Mr. Prasad had not even

known about the existence of Funding 12 until CLAIMANT disclosed it [Letter Prasad, p. 43; PO2, p. 51 §13].

Thus, CLAIMANT did not have any duty to disclose the existence of Funding 12.


17

67 Even if CLAIMANT had violated its duty to disclose the funder, it would not be a ground for removal of

Mr. Prasad. There is no legal basis permitting the attribution of a party’s behavior to its appointed arbitrator.

Moreover, it would be absurd to blame the arbitrator for a party’s behavior he was not even aware of [Le Club

des Juristes, p. 40; Gomez-Acebo, p. 127]. Mr. Prasad, who was unaware of Funding 12’s involvement, thus

cannot be challenged with regards to his independence and impartiality.

II. IN ANY EVENT, RESPONDENT IS PRECLUDED FROM CHALLENGING MR. PRASAD

68 Even if the Tribunal were to consider that Mr. Prasad is not independent and impartial, RESPONDENT is

precluded, for multiple reasons, from challenging Mr. Prasad. Indeed, RESPONDENT failed to challenge

Mr. Prasad with regards to the article and Fasttrack’s law firm’s appointments within the 15 days deadline as

provided under the UNCITRAL Rules (A) and it explicitly waived its right to raise the issue regarding

Slowfood’s funder (B). Moreover, RESPONDENT is precluded from raising the issue regarding Findfund’s

appointments as such challenge is founded on evidence obtained in violation of client-attorney privilege (C).

A. RESPONDENT FAILED TO CHALLENGE MR. PRASAD, ON THE GROUNDS OF HIS APPOINTMENTS BY

FASTTRACK'S LAW FIRM AND HIS ARTICLE, WITHIN 15 DAYS AS PROVIDED UNDER THE UNCITRAL RULES

69 RESPONDENT did not raise its challenge in a timely manner. Pursuant to Art. 13(1) UNCITRAL Rules, a

party may only challenge an arbitrator within 15 days after having been notified of the challenged arbitrator’s

appointment, or within 15 days after becoming aware of the circumstances giving rise to a challenge.

Furthermore, a party has the duty to perform reasonable inquiries on the opposite party’s appointed-

arbitrator [Daele, p. 152; Dietmar/Jenkin, §80; Tupman, §51; Alpha v. Ukraine; S.L.U. case]. Should the party fail

to challenge the said arbitrator within this time limit, it is deemed to have waived its right to do so [Moses,

p. 141; Tweeddale/Tweeddale, §5.14; Tao, §541; Suez case].

70 In the present case, RESPONDENT became aware of the identity of CLAIMANT’s arbitrator by receiving

CLAIMANT’s NoA [NoA, p. 4]. Furthermore, Mr. Prasad explicitly disclosed, in his Declaration of

Independence and Impartiality and Availability, that he had previously been appointed twice by Fasttrack’s

law firm [Exh. C11, p. 23]. Firstly, following Mr. Prasad’s disclosure, RESPONDENT consulted his website

[PO2, p. 51 §14]. The Vindobona article was at that time available under the publications section of

Mr. Prasad’s website [PO2, p. 51 §14]. RESPONDENT, despite its duty to inquire, did not peruse this section

[PO2, p. 51 §14]. Reasonable inquiries would have, however, easily lead RESPONDENT to Mr. Prasad’s article.

Secondly, if RESPONDENT had any doubts as to Mr. Prasad’s independence relating to his previous

appointments by Fasttrack’s law firm, it should have challenged him long before it did, i.e. 14 September

2017 [NoC, p. 38]. However, on 31 July 2017, RESPONDENT had expressly stated that “[it] had no objection to

the appointment of Mr. Rodrigo Prasad” [RNoA, p. 26 §22]. Furthermore, it did not send any other comments

about Mr. Prasad’s appointment or his article until 14 September 2017 [NoC, p. 38], which was at least one


18

month after the legal deadline had elapsed. RESPONDENT had thus forfeited its right to challenge Mr. Prasad’s

impartiality and independence on these grounds.

B. RESPONDENT EXPLICITLY WAIVED ITS RIGHT TO RAISE THE ISSUE REGARDING SLOWFOOD’S FUNDER

71 RESPONDENT cannot raise the issue of the Partner’s involvement with an alleged affiliate of the Parties as it

waived that right on 31 July 2017 [RNoA, p. 26 §22]. Art. 11 UNCITRAL Rules contemplates a form of

advance waiver, as an arbitrator does not have the duty to disclose if “parties have already been informed about the

circumstances” [Report of the NY Bar Committee]. Advance waivers enable arbitrators to submit a declaration of

potential conflicts of interest that may arise in the future arbitration, which the parties can accept, thus

waiving their right to challenge the arbitrator on the grounds exposed in the declaration [General Standard 3(b)

IBA Guidelines; Carlevaris, p. 36]. For instance, an arbitrator’s declaration can consist in requesting permission

that other lawyers from the same law firm as the arbitrator get engaged in cases involving the parties

[Voser/Petti, p. 17]. More specifically, advance waivers must be assessed in view of the specific text, the

circumstances and the applicable law [Pihlblad/Tufte-Kristensen, p. 587].

72 In its letter of 26 June 2017, Mr. Prasad explicitly declared that his partners might get involved with the

“Parties as well as related companies” [Exh. C11, p. 23]. Indeed, according to RESPONDENT’s claims, Funding 8 is a

company related to CLAIMANT. Furthermore, while Mr. Prasad referred to his “colleagues at Prasad & Prasad”,

the declaration is to be understood as including also the partners of the newly formed Prasad & Slowfood.

Indeed, employees at law firms change often [cf. Deloitte Report 2016, p. 13], and RESPONDENT should have

thus understood that Mr. Prasad referred to his co-workers in a broad way. Consequently, the issue at hand

falls within the scope of Mr. Prasad’s declaration, which RESPONDENT acknowledged having been aware of

and expressly agreed to [RNoA, p. 26 §22]. RESPONDENT therefore waived its right to challenge Mr. Prasad on

the basis of the relationship between the Partner and Funding 8, and cannot raise it now.

C. THE EVIDENCE REVEALING FINDFUND’S FUNDING WAS OBTAINED IN VIOLATION OF CLIENT-ATTORNEY

PRIVILEGE

73 RESPONDENT revealed the source of its knowledge of CLAIMANT’s third-party funding on 14 September

2017. It alleged that the information was discovered by its IT-Security officer in the metadata of CLAIMANT’s

documents, through a virus check [NoC, p. 38 §3]. CLAIMANT will, however, demonstrate that this

information was protected by client-attorney privilege [Art. 9(2)(b) IBA Rules on the Taking of Evidence].

Furthermore, due to the ‘fruit of the poisonous tree’ doctrine, its disclosure of 7 September 2017 is also

inadmissible as evidence [Letter Fasttrack, p. 35].

74 Firstly, the UNCITRAL Rules do not provide for specific rules with regards to taking of evidence

[Paulsson/Petrochilos, p. 235; Kuitkowski, p. 65; Meyer, p. 368]. The IBA Rules on the Taking of Evidence (“IBA

Rules”) were drafted to be used in ad hoc proceedings and reflect the current practice in this subject matter


19

[IBA Rules, p. 3; Ireton, p. 235; Meyer, p. 365; Gardiner, §248; Tidewater v. Venezuela]. These rules provide

multiple reasons, such as legal impediment or privilege, for which evidence shall be excluded [Art. 9(2)(b) IBA

Rules; Marghitola, p. 70; Morse, p. 95; Swidler & Berlin v. US]. Client-attorney privilege is “the right to withhold

certain […] documentary evidence from a legal proceeding, including the right to prevent another [person] from disclosing

such information” [Marghitola, p. 74; cf. Morse, p. 96]. Indeed, assembling information, expressing opinions or

personal beliefs, are protected from unnecessary intrusion by opposing parties [ibid.]. Art. 9(3)(a) and (c) IBA

Rules complement Art. 9(2) by providing aspects to be taken into consideration when analyzing a privilege

such as the need to protect confidentiality or the expectations of the parties and their advisors. Furthermore,

information sent inadvertently by a counsel is not to be considered as a waiver of client-attorney privilege

[Bouchenaki/El-Ahdab, p. 111; Gallo v. Canada]. Secondly, the ‘fruit of the poisonous tree’ doctrine provides that

information acquired through illegal sources is inadmissible by association [Boykin/Havalic, p. 35;

Reisman/Freedman, p. 747; Nardone v. US].

75 In the present dispute, the retrieved metadata revealed Fasttrack’s personal beliefs and impressions, which are

part of his legal work. They are, thus, covered by the client-attorney privilege. Indeed, Mr. Fasttrack could have

reasonably assumed that his comments would not be used due to their confidential nature. No waiver of this

privilege may be upheld in casu. Furthermore, CLAIMANT’s disclosure is excluded as per the ‘fruit of the poisonous

tree’ doctrine. The Tribunal should, thus, exclude these pieces of evidence from the present proceedings.

RESPONDENt is thus precluded from invoking all of the grounds it raised regarding Mr. Prasad.


76 Mr. Prasad should not be removed from the Tribunal. Indeed, there are no doubts that he will act in an

independent and impartial manner. In any event, RESPONDENT is precluded from challenging Mr. Prasad.

ISSUE 3: THE PARTIES CONCLUDED A CONTRACT GOVERNED BY CLAIMANT’S GENERAL CONDITIONS

77 RESPONDENT erroneously argues that its general conditions are applicable to the relationship between the

Parties as they were contained in RESPONDENT’s Invitation to Tender [RNoA, p. 25 §8]. In RESPONDENT’s

opinion, CLAIMANT accepted these general conditions because it returned to RESPONDENT the Letter of

Acknowledgement [RNoA, p. 25 §§8-9] and because “in a publicized tender[,] the terms of the contract are always

determined by the party initiating the tender” [RNoA, p. 27 §25].

78 CLAIMANT respectfully requests the Tribunal to hold that its submission, representing the offer in this

contractual relationship, was independent of the Invitation to Tender and contained its own General

Conditions (I). RESPONDENT subsequently accepted CLAIMANT’s Offer (II).


20

I. CLAIMANT MADE AN INDEPENDENT OFFER INCORPORATING ITS GENERAL CONDITIONS

79 CLAIMANT made a valid offer subject to its own General Conditions [Exh. C4, p. 16; PO2, p. 53 §28].

CLAIMANT will demonstrate that its Offer was independent of RESPONDENT’s Invitation to Tender (A) and

that it validly incorporated its own General Conditions (B).

A. CLAIMANT SUBMITTED AN OFFER INDEPENDENT OF RESPONDENT’S INVITATION TO TENDER

80 CLAIMANT made a valid offer. Pursuant to Art. 14(1) CISG, an offer is a proposal “addressed to one or more

specific persons” [Lookofsky, p. 48; cf. Chatillon, pp. 116, 216; Bernstein/Lookofsky, pp. 48-49; TNO case]. Such a

proposal must be “sufficiently definite and [indicate] the intention of the offeror to be bound” [Art. 14(1) CISG; cf. Art.

2.1.2 UNIDROIT Principles; Bugg, p. 22; Schwenzer et al., p. 136; Schlechtriem/Schwenzer, Art. 14 §§1-2].

CLAIMANT’s submission fulfilled all these criteria as it is addressed solely to RESPONDENT, indicated the goods

being the object of the contract as well as their quantity and price, and showed CLAIMANT’s intention to be

bound [Exh. C3, p. 15, C4, p. 16]. The Tribunal shall hold that this offer was independent of RESPONDENT’s

Invitation to Tender, as this latter was a mere invitation to treat (1). Alternatively, CLAIMANT made known

its intention to submit an offer independent of RESPONDENT’s tender process (“Tender Process”) (2). In

any event, if the Tribunal were to find RESPONDENT’s Invitation to Tender to be an offer, CLAIMANT rejected

it by making a counteroffer (3).

1. RESPONDENT’s Invitation to Tender was a mere invitatio ad offerendum [Art. 14(2) CISG]

81 CLAIMANT received RESPONDENT’s Invitation to Tender following their discussion during the Cucina Fair

[Exh. C1, p. 8, C2, pp. 9 ff]. This Invitation to Tender constituted a mere invitation to treat and had no binding

effect whatsoever. Indeed, Art. 14(2) CISG contains a legal presumption that a proposal not addressed to one

or more specific persons is not an offer [Chatillon, p. 216; Schlechtriem/Schwenzer, Art. 14 §32; Owen, p. 231;

Butler, Ch. 3 pp. 3-4; Schulze, p. 178; Poole; Spencer case; Shivas case]. This presumption can be rebutted by a

clear indication – such as a statement in the text – that the offeror wishes to be bound [Lookofsky, p. 52; Butler,

Ch. 3 p. 4; Leete]. The same solution is further confirmed expressly in relation with tendering [Burgess, §1;

Sidwell et al., p. 108; Pratt v. Transit]. Indeed, “a simple […] request for bids will generally be no more than an

invitation to treat, not giving rise to contractual obligations” [Wood/Fitzalan, pp. 4, 18].

82 In casu, RESPONDENT’s Invitation to Tender was not only sent to CLAIMANT, but also to four other businesses,

and published in various industry newsletters [RNoA, p. 25 §7]. This illustrates that the proposal was

addressed to an undefined number of people, a factual circumstance sufficient for the abovementioned

presumption to come in effect. RESPONDENT must not have intended to be bound by all offers received, as its

documents did not express its readiness to be bound towards all of the addressees [cf. Schwenzer et al.,

pp. 136 ff]. Therefore, the Invitation to Tender was a mere invitation to bargain. A habitual response is thus

for the addressee to submit an offer, as CLAIMANT did [cf. Giannini].


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2. Alternatively, CLAIMANT made clear that its Offer was independent of the Tender Process [Art. 8 CISG]

83 If we were to consider that the Invitation to Tender bound CLAIMANT with regards to the content of its

Offer, it must be held that it submitted an independent offer, disrupting the Tender Process initiated by

RESPONDENT. Indeed, CLAIMANT’s Offer was accompanied by a letter underlining that it was “a proper offer”

[Exh. C3, p. 15, C4, p. 16]. The analysis of RESPONDENT’s understanding of said letter is to be carried out

pursuant to Art. 8 CISG using the subjective and objective tests [supra §§14,17].

84 The term proper is to be understood as “denoting something that is truly what it is said or regarded to be; genuine”

[OD, p. 1210; cf. BLD, p. 1410], ergo in our case a genuine or true offer. In the same letter, CLAIMANT justified

the choice to submit an independent offer by the changes it wished to implement, namely the payment terms,

the product attributes, and the general conditions governing the Contract [Exh. C3, p. 15]. It would be

unfounded for RESPONDENT to allege that it was not aware of CLAIMANT’s intent, given the wording of the

accompanying letter. Moreover, RESPONDENT is a professional who engages in transactions of this kind on a

regular basis [cf. Lautenschlager, p. 262; Berger, p. 4]. Thus, it has expansive knowledge and experience in the

field of contract formation and tendering and could have only understood the Offer as independent. Based on

the foregoing, it must be held that CLAIMANT’s Offer was independent of the Tender Process.

3. In any event, CLAIMANT’s submission constituted a counteroffer [Art. 19 CISG]

85 Should the Tribunal consider RESPONDENT’s Invitation to Tender to be an offer, under no circumstances shall

it be found that CLAIMANT accepted it. At most, it made a counteroffer. Indeed, pursuant to Art. 19(1)

CISG, the precondition of an acceptance is that it matches the offer it purports to accept, which equates to

the common intent of the parties [Lookofsky, p. 57; Bernstein/Lookofsky, p. 58; Chatillon, p. 217;

Schlechtriem/Butler, pp. 79-80; Bugg, p. 22; Butler, Ch. 3 p. 14; Kadner Graziano, p. 75]. Art. 19(2) CISG nuances

this statement by making a difference between immaterial and material alterations [Schlechtriem/Schwenzer,

Art. 19 §3; Schlechtriem/Butler, p. 80]. Only the existence of the latter results in a counteroffer, which

“effectively ‘kills’ the offer originally made” [Lookofsky, p. 57; cf. Chatillon, p. 217; Magnus II, p. 189]. Material

alterations, further defined by Art. 19(3) CISG, comprise amongst others the payment terms [ibid.].

86 In the case at hand, there was no ‘meeting of minds’ as CLAIMANT’s submission did not mirror the content of

RESPONDENT’s Invitation to Tender. Indeed, by introducing new payment terms, CLAIMANT made material

alterations [Exh. C3, p. 15]. For these reasons, even if RESPONDENT had made an offer, CLAIMANT submitted a

counteroffer and therefore ‘killed’ the offer originally made.

B. CLAIMANT’S OFFER VALIDLY INCORPORATED ITS OWN GENERAL CONDITIONS

87 CLAIMANT’s Offer “is subject to [CLAIMANT’s] General Conditions of Sale” [Exh. C4, p. 16]. The Tribunal is

respectfully requested to hold that as CLAIMANT was the last party to refer to its standard terms without


22

objection, these were the ones incorporated into the Contract (1). Furthermore, CLAIMANT was indeed free

to subject its Offer to these terms (2). Finally, the manner in which it incorporated them was valid (3).

1. CLAIMANT incorporated its General Conditions into the Contract as it was the party who last referred to its own terms

88 In its Invitation to Tender, RESPONDENT referred to its standard terms [Exh. C2, pp. 8 ff]. However,

CLAIMANT subsequently made its Offer subject to its own General Conditions [Exh. C4, p. 16]. It is the latter

document that prevails, and CLAIMANT’s General Conditions therefore apply.

89 Where it is ambiguous which set of standard terms is applicable as each party referred to its respective terms

prior to the conclusion of the contract, the issue of ‘battle of forms’ arises [Schlechtriem/Schwenzer, Art. 19

§§31 ff; Vytopil, p. 86; Furmston/Tolhurst, p. 131]. As the CISG does not expressly address this question,

general principles on contract formation are to be used in order to fill the gap [CISG-AC 13, §2.7; Piltz, Art. 5

No. 75; Magnus I, p. 310; Butler, Ch. 3 pp. 15-16; Schlechtriem/Butler, p. 81; Gillette, pp. 44-45; Spagnolo, p. 265;

Digest CISG, p. 80 §11; Propane case]. According to the ‘last shot rule’ doctrine, a solution confirmed by several

national codes, e.g. the American UCC and the Dutch civil code [Kadner Graziano, pp. 76-77], the standard

terms of the contracting party which referred to its terms and conditions last become part of the contract

unless objected to [Schlechtriem/Schwenzer, Art. 19 §35; Lautenschlager, §3.4.2.1; CISG-AC 13, §§10.5-10.6;

Bianca/Bonell, Art. 19 §2.5; Furmston/Tolhurst, p. 131; Magnus II, pp. 192-193; Butler Machine case (Lords Justice

Lawton and Bridge); Powdered Milk case]. Admittedly, some prefer to apply the ‘knock-out rule’ [CISG-AC 13, §10.6;

Kadner Graziano, pp. 77 ff; Magnus II, pp. 193-194]. It must nevertheless be specified that it will not apply if “a

party has explicitly excluded the operation of the rule by explicitly indicating in advance that it will not be bound by other

standard terms than its own” [CISG-AC 13, §10.8].

90 In the case at hand, by its Offer, CLAIMANT was the party who last referred to its standard terms without

these being objected to [Exh. C4, p. 16]. Furthermore, during the Cucina Fair, CLAIMANT made it clear that,

were it to enter into a business relationship with RESPONDENT, the application of its own General Conditions

to this relationship was the only option [Exh. R5, p. 41]. Indeed, these terms were discussed in great detail as

confirmed by RESPONDENT [ibid.]. CLAIMANT thus expressed that it was willing to only be bound by its own

standard terms. Therefore, it must be held that CLAIMANT’s General Conditions are the only standard terms

applicable in casu.

2. CLAIMANT retained the freedom to shape the contract through the content of its Offer

91 RESPONDENT alleges that CLAIMANT could not have submitted an offer containing its own standard terms as

the Invitation to Tender bound CLAIMANT [RNoA, p. 27 §25] as a result of the Letter of Acknowledgement

that CLAIMANT returned to RESPONDENT, dated 17 March 2017 [Exh. R1, p. 28]. However, this allegation


23

cannot be followed as CLAIMANT retained the freedom to shape the content of the contract and this both if its

Offer is to be considered as independent of the Tender Process and if it falls under this latter.

92 Conforming to the principle of party autonomy, which is amongst the core principles governing international

law, the parties to a contract have the ability to shape it [Art. 1.1 UNIDROIT Principles; Nygh, p. 1; Elcin, p. 1;

Schulze, pp. 6-7; TransLex-Principles, No. IV.1.1; Ortega/Zambrana, p. 68 §65; Magnus II, p. 191]. It is not only

relevant when it comes to the parties’ decision to enter into contract, but is also applicable to shaping its

content [Coester-Waltjen, pp. 41-42; Chatillon, pp. 81-82; Printing v. Sampson]. Furthermore, this principle is not

only applicable if it is admitted that the tender process was disrupted or never existed [supra §§83-84], but

also if one concedes that it was followed through. While its application is rather obvious in the first

hypothesis, as pursuant to Art. 1.1 UNIDROIT Principles, parties are free to determine the content of the

contract, the second hypothesis calls for a more thorough analysis. First of all, one needs to make a difference

between a State-initiated tender process and a business-to-business one [BP Guide, p. 26; Newman, p. 10;

Forshaw]. As a matter of fact, this latter is by definition more flexible as it falls under the private sector, which

leaves the person making a submission following an invitation to tender with a greater freedom and

consequently more space for the parties to negotiate the final contract [Tadelis, pp. 299-300; Newman, p. 10].

Second, it is important to examine whether a ‘pre-award contract’ exists [Burgess, §1; Sidwell et al., p. 109].

Indeed, letters of acknowledgement only express the will of one of the parties, meaning they are unilateral

[Kuyven, p. 83]. While this does not exclude the possibility of existence of a pre-award contract completely,

the use of strong and unequivocal language demonstrating a common intent of the parties is indispensable if

such contract is to be deemed concluded [Kuyven, p. 85; Bugg, p. 36; Wood/Fitzalan, pp. 26-27; Burgess, §1;

Sidwell et al., p. 109; Craig, p. 93; Levin, p. 325; Pratt v. Transit; Cubic Transportations case; Cour de cass. (1987)].

Last but not least, the obligations such contract would impose differ substantially from one case to another

[Wood/Fitzalan, pp. 20, 24; Pratt v. Transit; Cubic Transportation case; Prime Commercial case]. Generally, pre-

award contracts tend to only impose obligations on the party inviting tenders with regards to how this party

shall choose amongst the tenderers [Sidwell et al., p. 109; Burgess, §2].

93 In casu, the RESPONDENT-initiated Tender Process arose in a business-to-business environment, and

CLAIMANT thus maintained significant freedom due to the nature of the process. Furthermore, the freedom

the Parties wished to uphold was evident namely from the way the Letter of Acknowledgement was worded

[RNoA, p. 25 §8; Exh. R1, p. 28]. Indeed, no language indicating duties such as ‘must’ or ‘obliged to’ was used,

as a result of which it was not binding and no pre-award contract was formed [cf. Bugg, p. 36]. In any event,

stating that somebody “will tender in accordance with the specified requirements” [Exh. R1, p. 28 §3] does not

constitute a specific enough obligation for CLAIMANT to only submit an offer subject to RESPONDENT’s

general conditions. In light of the above, it must be held that there was no obligation for CLAIMANT’s


24

submission to be governed by RESPONDENT’s general conditions and CLAIMANT was thus free to shape the

Contract as it deemed appropriate.

3. CLAIMANT made its General Conditions reasonably available

94 In its offer, CLAIMANT included a reference to its website, where its General Conditions can be found on the

landing page [Exh. C4, p. 16; PO2, p. 53 §28]. This was sufficient to fulfill its obligation to make these

reasonably available. When it comes to the inclusion of standard terms into an offer, it is decisive whether

these were “available to the offeree in order that the offeree has a reasonable opportunity to become aware of them”

[CISG-AC 13, §2.2; cf. Kucera, p. 221; Machinery case]. Where the terms are included as a website reference in

the offer, the reasonable opportunity for the other party to take notice of the terms is defined as general

accessibility of these terms over the Internet at the time of contracting [CISG-AC 13, §3.5]. There is no

obligation to actually send the terms, as long as the possibility to obtain them exists [Lautenschlager, p. 278;

Gantry v. Research; Machinery case]. On this topic, one must note that “the offeree can be expected to look up the

standard terms on the Internet” [Lautenschlager, p. 281; cf. Stiegele/Halter, p. 169]. The terms should, however, be

downloadable and storable for future reference [CISG-AC 13, §3.4; Schlechtriem/Schwenzer, Art. 14 §49; Hachem

et al., §5; Stella v. Cork]. Additionally, the reference to the inclusion of the terms must be clear to a reasonable

third person under Art. 8(2) CISG [supra §17; CISG-AC 13, §5.2; Schlechtriem/Schwenzer, Art. 14 §§56-57; Kröll

et al., Art. 14 §39; Digest CISG, p. 80 §12; Cooling System case]. Pursuant to Art. 8(3) CISG, one must take into

account all relevant circumstances, for instance the negotiations between the parties [supra §23].

95 In the case at hand, RESPONDENT itself expressly confirmed the availability of CLAIMANT’s General Conditions

in its letter of 7 April 2014 by stating it “downloaded them” [Exh. C5, p. 17]. Furthermore, the Parties also

discussed CLAIMANT’s General Conditions in great detail during the Cucina Fair [NoA, p. 4 §3; Exh. R5, p. 41].

Consequently, CLAIMANT’s General Conditions were validly incorporated as they were reasonably available

and would be understood as such by a reasonable third person.

96 In conclusion, CLAIMANT made an independent offer incorporating its General Conditions.

II. RESPONDENT ACCEPTED CLAIMANT’S OFFER INCLUDING ITS GENERAL CONDITIONS [ART. 18 CISG]

97 A contract is in principle formed through the expression of mutual agreement of the parties [Lookofsky, p. 48;

Chatillon, p. 216; Bugg, pp. 19 ff, 27; d’Auzon, p. 55; Butler, Ch. 3 p. 1; Schlechtriem/Schwenzer, Art. 18 §2]. As a

contract binds the parties, it is inconceivable for RESPONDENT to be released from its commitment almost

three years later, under the pretext that it did not know what it had signed [Licensor case]. RESPONDENT

accepted CLAIMANT’s Offer and this by statement (A) and, in any event, by conduct (B).


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A. RESPONDENT EXPLICITLY ACCEPTED CLAIMANT’S OFFER “NOTWITHSTANDING THE CHANGES

SUGGESTED [BY CLAIMANT]”

98 Where in the offer, the offeror communicates to the offeree that the agreement would be governed by its

own standard terms, then these apply if the offeree accepts, unless it clearly indicates its refusal [CISG-AC 13,

§1.6; Schlechtriem/Schwenzer, Art. 18 §§2-3; Albán, §2; Schlechtriem/Butler, pp. 75 ff; Lautenschlager, p. 283;

Masarova, p. 61; Kucera, p. 221]. On 7 April 2014, CLAIMANT received a letter accepting its Offer

“notwithstanding the changes” [Exh. C5, p. 17]. RESPONDENT’s acceptance statement used clear wording (1) and

furthermore, it was reasonable of CLAIMANT to assume that its Offer had been indeed accepted (2).

1. The wording of RESPONDENT’s letter can only be interpreted as accepting the Offer inclusive of CLAIMANT’s General Conditions

99 RESPONDENT accepted CLAIMANT’s Offer as including the latter’s standard terms. Indeed, an incorporation

where the offeree creates “a reasonable impression in the mind of the offeror that the offer has been accepted without

any modification” is in principle valid [CISG-AC 13, §1.7; cf. Tantalum Powder case]. It is pertinent to make

reference to the ‘usual meaning’ doctrine concerning this question [supra §19].

100 In point of fact, “notwithstanding the changes suggested by [CLAIMANT]” is, under the usual meaning of the words,

to be understood as referring to all of the changes, including, in casu, the modification made regarding the

applicable terms. Consequently, based on its wording, RESPONDENT’s letter can only be interpreted as

accepting CLAIMANT’s Offer including the modification of standard terms.

2. A reasonable third person would have understood RESPONDENT’s letter of 7 April 2014 as accepting CLAIMANT’s General Conditions [Art. 8(2) CISG]

101 RESPONDENT’s letter could only be understood as accepting CLAIMANT’s Offer, including its General

Conditions. Indeed, a reasonable third person would have only declared to the other party that it accepted an

offer in its entirety, by using words akin to the ones used by RESPONDENT [supra §100], if it unambiguously

understood the content. When a reasonable third person has any doubts, it shall seek clarification, i.e. there is a

duty to inquire or object [Schlechtriem/Schwenzer, Art. 8 §§37 ff; Schlechtriem/Butler, p. 57 §57; Veyron v. Ambrosio;

Household goods case; Footware case; OLG Köln case]. Moreover, there is no reason to overprotect one party when

both parties are of equal stature [Mittmann, pp. 103 ff; a contrario Masarova, pp. 61-62; Rozehnalova, p. 12].

102 In casu, RESPONDENT did not abide by its duty to inquire. CLAIMANT not only included its phone number, but

also its e-mail address, means for RESPONDENT to obtain more information had it not understood the Offer

[cf. Kindler, p. 229; CIETAC (2005)]. On this topic, one must note that as RESPONDENT is a professional, and

not a consumer, there is no reason to overprotect it. Based on the foregoing, a reasonable third person would

have assumed that RESPONDENT accepted CLAIMANT’s General Conditions, as it raised no objections.


26

B. IN ANY CASE, RESPONDENT IMPLICITLY ACCEPTED CLAIMANT’S OFFER

103 RESPONDENT demonstrated by its conduct that it accepted the Offer. Indeed, an acceptance by “other conduct”

is also permitted pursuant to the first sentence of Art. 18(1) CISG [Schlechtriem/Schwenzer, Art. 18 §12;

Schlechtriem/Butler, pp. 76-77; Ad Hoc case (1998)]. Is determinative in this hypothesis whether “[t]he conduct of

the offeree creates the objective impression that the offer was accepted” [CISG-AC 13, §1.8; cf. Kröll et al., Art. 14 §39].

In that respect, it was held that a “buyer who fails to contest the invoice issued […], which expressly refer[s] to the fact

the buyer ha[s] to pay the sales tax[,] is obligated to pay the tax” [OLG Köln case; cf. Ad Hoc case (1998)].

104 In casu, RESPONDENT had been accepting CLAIMANT’s deliveries with the latter’s standard terms incorporated

in every invoice between 1 May 2014 and 27 January 2017, that is with no reaction for 1002 days [PO2, p. 52

§24; cf. Schlechtriem/Schwenzer, Art. 19 §44]. Therefore, RESPONDENT’s behavior showed its unequivocal

consent to the incorporation of CLAIMANT’s General Conditions by accepting the Offer.


105 CLAIMANT made a valid offer, independent of the RESPONDENT-initiated Tender Process, which was validly

accepted by RESPONDENT. The said offer was subject to CLAIMANT’s General Conditions, which as a result

are applicable to the relationship between the Parties.

ISSUE 4: EVEN IF RESPONDENT’S GENERAL CONDITIONS WERE APPLICABLE, THE CHOCOLATE CAKES WERE CONFORMING

106 It is not disputed that under CLAIMANT’s General Conditions, the chocolate cakes were conforming [NoA,

pp. 4 ff; RNoA, pp. 24 ff]. However, should the Tribunal consider that RESPONDENT's general conditions were

applicable, it must be held that the goods would still be conforming. CLAIMANT had been delivering chocolate

cakes between 1 May 2014 and 27 January 2017 [Exh. C5, p. 17, C6, p. 18]. On 10 February 2017, CLAIMANT

found out that the cocoa was produced on land that had been deforested [Exh. C7, p. 19]. As soon as

CLAIMANT became aware of this, it secured new supplies and expressed its willingness to continue deliveries

[Exh. C8, p. 20, C9, p. 21]. Furthermore, it insisted on payment for cakes already delivered [ibid.], which

RESPONDENT refused to do, alleging that the cocoa was not produced in compliance with contractual

standards of sustainability [Exh. C10, p. 22]. CLAIMANT will demonstrate that it fulfilled its contractual

obligation, which was to use its best efforts when producing the chocolate cakes (I). Moreover, these cakes

were fit for their particular purpose, as required by Art. 35(2) CISG (II).

I. CLAIMANT COMPLIED WITH ITS CONTRACTUAL OBLIGATION TO USE BEST EFFORTS WHEN PRODUCING

THE CHOCOLATE CAKES

107 RESPONDENT argues that CLAIMANT did not deliver conforming goods, i.e. goods that it alleges should have

been in line with “high ethical and environmental standards” [RNoA, p. 24 §1]. This claim is inferred from

Principles C and E of RESPONDENT’s standard terms, which stipulate that CLAIMANT shall ensure that its own


27

suppliers conduct their business in an environmentally sustainable way [Exh. C2, pp. 13-14]. The Tribunal is

respectfully requested to hold that the cakes were conforming, as RESPONDENT's general conditions only

provide for an obligation of best efforts (A) and that CLAIMANT indeed complied with this obligation by

applying international practice (B).

A. RESPONDENT’S GENERAL CONDITIONS ONLY PROVIDE AN OBLIGATION OF BEST EFFORTS

108 RESPONDENT asserts that CLAIMANT had an obligation of result to produce sustainable chocolate cakes.

However, this view cannot be followed, as CLAIMANT was only bound by an obligation of best efforts.

Pursuant to Art. 8 CISG, the scope of a contractual obligation is to be analyzed through the subjective and

objective interpretation of the intent of the parties [supra §§14, 17; PO1, p. 49 §4; Ferrari, §§10-11; Kröll et al.,

Art. 35 §39; Honnold, Art. 35 p. 333; Chemical fertilizer case]. The Tribunal is respectfully requested to hold that

the Parties’ intent was for CLAIMANT to be bound by an obligation of best efforts (1). A reasonable third

person would undoubtedly come to the same conclusion (2). Furthermore, the Tribunal must hold that the

usages agreed upon by the Parties only provide for best efforts (3).

1. The intent of the Parties was for CLAIMANT to be bound by an obligation of best efforts

109 Pursuant to Art. 8(1) in fine CISG, a contract shall first be interpreted according to the parties’ subjective

intent, where the other party could not have been unaware of what this intent was [supra §14]. Due regard

must be given not only to the text of the contract, but also to surrounding circumstances [Art. 8(3) CISG].

Firstly, during the negotiations of the Contract, the Parties manifested their common will for CLAIMANT to

be bound by an obligation of best efforts. Secondly, CLAIMANT’s obligation of best efforts was confirmed by

the Parties’ subsequent conduct.

110 The negotiations of the Contract show that the Parties’ common intent was for CLAIMANT to be bound by an

obligation of best efforts when producing the chocolate cakes. Indeed, negotiations must be taken into

consideration when determining the parties’ intent [Art. 8(1), (3) CISG; supra §23]. In this regard, if the

Parties’ hold negotiations, the scope of the contractual obligations must be determined therein [Peterkova

Mitkidis, pp. 153-154; Ramberg, pp. 14 ff; Schwenzer et al., p. 276 §24.08].

111 In casu, on 10 March 2014, RESPONDENT sent a letter to CLAIMANT stating that it was “impressed” by its

“management supply chain, including regular audits and reporting obligation” [Exh. C1, p. 8], so much so that

RESPONDENT subsequently “decided to make no further audits or site visits” [PO2, p. 54 §34]. Nevertheless,

RESPONDENT did not mention at any time that the sustainability of the cocoa used when producing the cakes

should be guaranteed. Moreover, on 27 March 2014, CLAIMANT used clear wording in the letter

accompanying its Offer when stating that it would “do everything possible to guarantee […] to comply with [the

Parties’] joint commitments to Global Compact Principles” (emphasis added) [Exh. C3, p. 15]. However, since the

UN Global Compact does not provide for an obligation of result [infra §123], CLAIMANT could not have been


28

aware of RESPONDENT’s intention to provide otherwise. The Parties therefore did not agree on a duty to

achieve a specific result, but rather on the application of best efforts with regards to the sustainability of the

cocoa used in the production of the chocolate cakes.

112 Furthermore, following the conclusion of the Contract, the Parties’ intent to bind CLAIMANT by best efforts

can be drawn from their conduct. Indeed, the original intent of parties can be analyzed in light of their

subsequent conduct [Art. 8(1), (3) CISG; Honnold, p. 167 §111; Schlechtriem/Schroeter, p. 111 §219;

Staudinger/Magnus, Art. 8 §25; Fruit and vegetables case]. In addition, parties have a duty to object if they do not

agree with a statement [supra §101]. In its letter of 27 January 2017, CLAIMANT confirmed that “[it] ha[d] […]

complied with [its] obligations under the contract” as it “used [its] best efforts to ensure” the delivery of sustainable

chocolate cakes [Exh. C8, p. 20]. CLAIMANT thus made RESPONDENT aware that its understanding of its

obligation was limited to best efforts. Additionally, RESPONDENT did not object to CLAIMANT’s statement that

it was solely bound by a best efforts obligation, as it should have done, had it disagreed with CLAIMANT’s

understanding of the nature of its obligation. Consequently, the Parties’ subsequent conduct reflects their

understanding of the Contract, which is only to impose on CLAIMANT an obligation of best efforts.

113 In light of the above, the Parties’ intent was thus for Claimant to be bound by an obligation of best efforts as

demonstrated in their negotiations and subsequent conduct.

2. In any event, a reasonable third person would have understood that CLAIMANT was to be bound only by best efforts

114 In cases where the parties’ statement is not clear, the subjective intention of the parties is not determinable

[Digest CISG, p. 56 §10; Building materials case]. This is often the case, when parties include standard conditions

to the contract [Marble case]. In such case, the tribunal should resort to the objective interpretation of Art.

8(2) CISG [supra §17]. The language of RESPONDENT's general conditions could only be understood as

providing an obligation of best efforts (a), which was further demonstrated by the Parties' conduct (b).

a. The language of RESPONDENT's general conditions could only be understood as providing an obligation of best efforts

115 The wording of RESPONDENT’s general conditions demonstrates the Parties’ intent to bind CLAIMANT by an

obligation of best efforts. Through the application of Art. 8(3) CISG and the reasonable third person standard

of Art. 8(2) CISG, special consideration must be given to the usual meaning of words used by the parties

[supra §19].

116 Firstly, the choice of the formulation “it is expected that”, in RESPONDENT’s general conditions, over stronger

language such as “suppliers are required”, further reinforces the view that Principle C of the Code of Conduct

for Suppliers (“Code of Conduct”) did not create any binding obligation. Using a different word, such as

require, would clearly communicate that the standards were “obligatory” [OED-online, “required”]. Moreover,


29

Principle C provides that its suppliers “shall conduct [their] business in a sustainable way”. The use of the word

shall [OED-online, “promise”], which is less strong than for instance “must”, does not produce a binding effect

[Federal Reg. Doc; Federal Plain Language Guideline, p. 25; FAA Plain Language Order, p. 4; Unilever]. Had

RESPONDENT wanted a stronger obligation, it would have had to use stronger terms, such as guarantee,

warrant, or assure. Therefore, Principle C of RESPONDENT’s general conditions does not use a strong enough

language to impose an obligation of result.

117 Furthermore, corporate social responsibility clauses must be precise and clear in their wording in order to

bind the parties [Peterkova Mitkidis, pp. 175 ff; Schwenzer/Leisinger, p. 264]. Companies impose legal obligations

by using forceful and explicit language [Art. 9(2) CISG]. For instance, in the chocolate industry, Mars Inc. uses

a specific clause on deforestation, which forbids “deforestation of primary forest” and “burning to clear land for new

developments” [Mars Def. Policy]. Equally, Ferrero uses the verb request when it imposes the obligation of

sustainable production on its suppliers [Ferrero, p. 4]. Moreover, in order to intensify suppliers’ commitments,

chocolate producers generally require them to sign a declaration of conduct [Nestlé, p. 5; Lindt & Sprüngli II,

p. 6; Mars Inc., p. 16; Peterkova Mitkidis, p. 245]. RESPONDENT’s sustainability clause fails to establish an

obligation of result, since it lacks the well-established clarity and precision used in the industry.

118 In view of the above, it could only be understood that CLAIMANT was bound by best efforts according to the

wording of RESPONDENT’s Code of Conduct.

b. The Parties' conduct could only be understood as a best efforts agreement

119 The Parties’ conduct can only lead to the conclusion that RESPONDENT's general conditions impose an

obligation of best efforts. Pursuant to Art. 8(3) CISG, subsequent conduct of parties should be taken into

account, when interpreting their original intent. In principle, when an obligation of result is agreed upon, a

penalty clause accompanies it. Indeed, a penalty clause underlines the importance of the result for the parties

and constrains them to perform [Dysted, p. 14; Nalin, p. 333]. Furthermore, if the parties wished to impose a

specific obligation as to the quality of the good [Art. 35(1) CISG], they must use an explicit warranty

[Barley case; Soyprotein case].

120 In the case at hand, Parties omitted to make use of an express warranty or declaration. Moreover, the Code

of Conduct establishes a penalty for the breach of confidentiality [Exh. C2, p. 13]. In contrast, no such clause

exists with regards to the sustainability of the goods. Therefore, according to the Contract, CLAIMANT did not

have an obligation of result to deliver sustainable goods.

121 In light of the above, a reasonable third person could only understand that the Parties agreed upon a best

efforts obligation.


30

3. Parties are bound by usages they agreed upon [Art. 9(1) CISG]

122 By virtue of Art. 9(1) CISG, parties are bound by usages to which they have agreed by express terms [Melis,

Art. 9 §2; Staudinger/Magnus, Art. 9 §7; Witz, Art. 9 §16]. If both parties to a contract are members of the same

initiative, it must be presumed that the parties have, at least implicitly, made it a part of their contract

[Schwenzer/Leisinger, p. 264]. All ten principles of the UN Global Compact start with “businesses should”, and

not by must, will or are required to. This wording shows that all these principles are merely suggestive [Peterkova

Mitkidis, p. 132; Dysted, p. 14; Schwenzer/Leisinger, p. 265].

123 In the present case, both Parties are members of the UN Global Compact [NoA, p. 4; RNoA, p. 24]. This is

further demonstrated by the fact that RESPONDENT expressly addressed its commitment to UN Global

Compact Principles in the Contract as well as in its subsequent correspondence with CLAIMANT [Exh. C1, p. 8,

C2, p. 13, etc.]. The Parties thus explicitly chose to apply mutatis mutandis the UN Global Compact Principles,

without resorting to more stringent language indicating an obligation of result. Consequently, a reasonable

third person could only infer, from the suggestive nature of the UN Global Compact, that CLAIMANT had an

obligation of best efforts under the Contract.

B. BY APPLYING INTERNATIONAL PRACTICE, CLAIMANT USED ITS BEST EFFORTS WHEN PRODUCING THE

CHOCOLATE CAKES

124 RESPONDENT's Code of Conduct does not specify how the best efforts obligation should be fulfilled.

Consequently, using best efforts is to be understood as applying international practice (1), which CLAIMANT

did by following verification procedures (2).

1. When the scope of best efforts is not defined contractually, these are complied with by applying international practice

125 When a party is bound to use its best efforts, it must act as a reasonable third person would under the same

circumstances, without guaranteeing the achievement of a specific result [Art. 5.1.4 UNIDROIT Principles;

Lando, p. 507; Farnsworth II, p. 11; TransLex-Principle, No. IV.6.5; Perma Research case; Pips case]. The party is

obliged to do all it can within reason, but no more [Young, p. 97; Terrell v. Mabie; Sheffield District Railway case;

Hospital Products case; Triple-A Baseball Club case; Bloor case; LTV case]. Especially, it does not have to incur

unreasonable costs or go against its own interests [ibid.]. The question of whether a party used its best efforts

is a subjective factual issue, and due regard must be given to the party’s abilities, but also to its expertise. A

professional has to live up to the standard of the trade industry it is part of [TransLex-Principle, No. IV.6.5;

Triple-A Baseball Club case; Carlson Brewing case; Perma Research case].

126 In the case at hand, CLAIMANT was bound to use its best efforts, and thus had to act as a reasonable third

person would have in its place. It had to act within reason of its abilities, and behave as another sustainable

chocolate cake producer would have.


31

127 There are no trade usages in the bakery industry pertaining to the sustainable production of goods, which

would bind the Parties under 9(2) CISG [PO2, p. 54 §35]. However, in recent decades, sustainability has

come into the spotlight, with the proliferation of private and public instruments [Grunert et al., p. 177; Koos,

p. 128; Boiral et al., pp. 1, 18; Vecchio/Annunziata, p. 335]. Notably, ISO 14001, a set of rules which guides

companies seeking to be environmental friendly, has led to over 340’000 companies worldwide being ISO

14001-certified [ISO Survey]. Moreover, private initiatives such as UTZ, Rainforest Alliance and Fairtrade

provide for cocoa ecolabels [Fairtrade Cocoa; Rainforest Cocoa; UTZ Cocoa]. Many chocolate industry giants have

declared their will to comply with such instruments [Mars Inc., p. 14; Lindt & Sprüngli I; Nestlé, p. 3; Hershey

CSR, p. 41]. Given the widespread application of the ISO 14001 rules and the importance of ecolabels on the

market for sustainable goods, any reasonable business in the place of CLAIMANT would, firstly, have made

sure that it manages its business in a sustainable way in accordance with ISO 14001. Secondly, to make sure

that its supplier also acts in accordance with those rules, a reasonable third person would have followed

verification procedures, in line with the practices applied by ecolabel organizations. In contrast, given that

even big players on the market run their business focusing on those ecolabels and ISO rules, it would be

unreasonable to expect a middle-sized company such as CLAIMANT to do more, for example by creating its

own, more extensive control mechanism.

128 In conclusion, using its best efforts means to follow international practice relating to business management

and the ecolabeling of sustainable goods, which CLAIMANT complied with.

2. CLAIMANT complied with the practice in the international trade of sustainable goods by following verification procedures

129 CLAIMANT fulfilled its obligation of best efforts by complying with international practice. Firstly, it is not

disputed that CLAIMANT leads its business in a sustainable way. Secondly, CLAIMANT will demonstrate that it

took the appropriate steps to ascertain that its supplier also led its business in a sustainable way. Business

standards such as the ISO 14000 series and ISO 26000, as well as ecolabels such as Rainforest, Fairtrade and

UTZ, provide for steps to be taken in order to verify that the traded goods are sustainable, and, in particular,

are not grown on land that was deforested. The producer must be able to show that it did not destroy a

protected area to grow his crops. The plantation should only be on agricultural land [Fairtrade Standards, p. 50],

or on land that was not deforested in the five years preceding the application for an ecolabel [SAN, p. 38].

130 CLAIMANT made sure that the cocoa was grown on land managed sustainably. The farmers had certificates

issued by the government, which proved that the land was agricultural [Exh. C7, p. 19]. Moreover, Theobroma

cacao, the tree on which cocoa beans grow, takes about five years to bear pods and ten years to reach its prime

production stage [cf. Belitz et al., p. 960; Lewis/Berry, p. 150; Fernandez, p. 243]. Consequently, by the time the

Cocoa Supplier started its deliveries to CLAIMANT, as the trees were already producing cocoa, at least five

years must have elapsed since they were planted. CLAIMANT thus knew that the land could not have been


32

deforested for the past five years. Therefore, CLAIMANT took all the appropriate steps to make sure that the

land was sustainably managed.

131 Moreover, ecolabels provide that audits must be performed. Those must be carried out once every year [UTZ

Certification Protocol, p. 15; SAN Certification Rules, p. 12] or twice every three years [Fairtrade Website]. In

addition to audits, companies place a high importance on self-assessments, which statistically are performed

more often that audits [Peterkova Mitkidis, p. 211].

132 CLAIMANT organized one thorough audit of its Cocoa Supplier in 2014 and required its supplier to submit

self-assessment questionnaires on a regular basis [PO2, p. 53 §32]. Further, the Cocoa Supplier had a good

reputation on the market, which demonstrates other buyers’ trust in the Cocoa Supplier’s practice [ibid.].

133 In conclusion, CLAIMANT acted as a reasonable third person in the same circumstances would have, as it

complied with the international practice usual in its industry. CLAIMANT had taken the steps which could

reasonably be expected from it, and thus complied with its obligation of best efforts.

II. ADDITIONALLY, THE CHOCOLATE CAKES DELIVERED WERE CONFORMING [ART. 35(2) CISG]

134 Pursuant to Art. 35 CISG, goods must not only comply with the contractual requirements the parties agreed

on, but they must also be fit for the purpose made known by the buyer, unless it was unreasonable for him to

rely on the seller’s skill to meet those expectations. In casu, the cakes were in conformity with the contractual

requirements [supra §106]. Additionally, they fit the purpose made known by RESPONDENT (A).

Alternatively, RESPONDENT could not have expected CLAIMANT, a baker, to verify the entire supply chain (B).

A. THE CHOCOLATE CAKES WERE FIT FOR THE PURPOSE OF RESALE [ART. 35(2)(b) AB INITIO CISG]

135 Goods are conforming if they are fit for the purpose made known by the buyer at the time of conclusion of

the contract [Art. 35(2)(b) ab initio CISG; Schlechtriem/Schwenzer, p. 606; Enderlein/Maskow, p. 145;

DiMatteo et al., p. 396; Coin machine case; Rijn Blend case]. Despite RESPONDENT’s recent allegations that its

purpose was to acquire sustainable cakes [RNoA, p. 24 §1], CLAIMANT will demonstrate that RESPONDENT

only ever specified that it wanted for the cakes to be sellable in its supermarkets, a purpose that the chocolate

cakes indeed fit (1). Even if RESPONDENT’s purpose was to sell sustainable cakes, CLAIMANT fulfilled the

requirement (2).

1. CLAIMANT delivered cakes which fit RESPONDENT’s purpose to sell them in its supermarkets

136 When RESPONDENT met CLAIMANT, it presented itself as a gourmet supermarket chain [NoA, p. 4 §2].

RESPONDENT never specified, be it explicitly or implicitly, that its purpose was to sell sustainable chocolate

cakes. It merely stated that it wanted to sell CLAIMANT’s cakes in its supermarkets, a purpose that CLAIMANT

complied with. For a buyer to make a particular purpose known to the seller, he must do so in a clear enough

manner [Saidov, p. 80; Cloth case; ICC case No. 16561; CIETAC (1996)]. In the case at hand, RESPONDENT never

asserted to be specialized in the sale of sustainably produced goods. If it needed sustainable cakes to be able to


33

sell them in its supermarkets, it should have clearly said so. Moreover, RESPONDENT alleges that the

advertising campaign on a “healthy, natural world” should have made CLAIMANT aware that it was required to

only provide RESPONDENT with sustainable cakes [RNoA, p. 25 §6]. Advertising campaigns are centered on a

segment of the advertiser’s supply. Typically, supermarkets advertise locally produced or organic products,

while also selling non-organic, imported goods [Migros commercial; Carrefour commercial; Lidl commercial]. Thus,

not all goods ultimately fit into the advertised concept. When it comes to chocolate cakes, these are high in

fat and sugar [Reedy/Krebs-Smith, p. 1480; Drewnowski, p. 348]. They surely are not the emblems of healthiness,

and this is why they often appear in anti-obesity campaigns [Safefood commercial; Strong4Life commercial]. It is

clear that chocolate cakes were not targeted by the healthy and sustainable advertising campaign. Therefore,

CLAIMANT could not have known that its cakes had to be sustainable to fit RESPONDENT’s requirements.

137 As RESPONDENT’s aim was to sell the cakes in its supermarkets, the goods had to be tradable and fit for

consumption, which in the food industry signifies that the goods must be edible [NZ mussels case; Shoes case]. In

casu, even after RESPONDENT learned about the true origin of the cocoa, it decided to use them to advertise its

newly opened supermarkets [PO2, p. 54 §38]. This shows that the cakes perfectly fit RESPONDENT’s product

line [cf. Doors case]. Moreover, RESPONDENT had sold 100’000 cakes each week during nearly three years [Exh.

C4, p. 16; NoA, p. 5]. In view of the above, RESPONDENT itself considered the cakes to be fit for sale in its

supermarkets.

138 Consequently, CLAIMANT delivered cakes, which fit the purpose made known by RESPONDENT.

2. Even if RESPONDENT had made known to CLAIMANT that the cakes had to be sustainable, the cakes complied with that purpose

139 CLAIMANT delivered cakes, which could be sold in supermarkets selling sustainable goods.

140 Ecolabels typically award their label even when not all ingredients are sustainable, when only some

ingredients are, or when only part of an ingredient is [Fairtrade USA Website; Council Regulation (EC), §25].

141 In the case at hand, the chocolate cakes contained at least 50% of sustainable cocoa [PO2, p. 54 §41].

Moreover, cakes contain predominantly flour and sugar, the sustainability of which is not disputed.

Consequently, the cake would be eligible to receive an ecolabel as it was for the most part sustainable. Under

the present circumstances, CLAIMANT’s cakes thus match the purpose of sustainability.

B. ALTERNATIVELY, RESPONDENT COULD NOT HAVE EXPECTED CLAIMANT, A BAKER, TO VERIFY THE

ENTIRE SUPPLY CHAIN [ART. 35(2)(b) IN FINE CISG]

142 If the Tribunal were to consider that the cakes do not fulfill the purpose of resale in RESPONDENT’s

supermarket, it would have to hold that RESPONDENT could not have reasonably relied on a baker to verify

the entire supply chain. Indeed, CLAIMANT had only limited control over the production process of the cocoa

(1) and its domain of expertise is not sustainable farming (2).


34

1. CLAIMANT had limited control over the production of the cocoa

143 Not only did CLAIMANT have very limited control over the production of the cocoa, as it did not acquire the

cocoa directly from the source of production, but its supplier was from a developing country. It is

unreasonable to rely on special knowledge of the seller when he is not the producer of the goods

[Enderlein/Maskow, p. 146; Kruisinga, pp. 32-33; Saidov, p. 99]. Furthermore, developing countries statistically

have a stronger inclination to corruption [Worldwide Governance Indicators; CPIA Indicator; Transparency Int.].

144 CLAIMANT did not have a reasonable possibility to check if the goods were sustainable, since this is an ethical

feature of the goods as opposed to a material one. Indeed, it could not monitor its supplier at all times

[cf. Schwenzer, p. 126]. This is why CLAIMANT used certificates to make sure that the goods fulfilled the

sustainability requirements [Exh. C9, p. 21]. Those certificates appear to have been falsified with the help of

Ruritania’s government [Exh. C7, p. 19]. RESPONDENT could not expect CLAIMANT, as it did not have special

knowledge on certification, to discover the corruption or to audit Ruritania’s government. The risk of

receiving a delivery of non-sustainable cocoa was therefore already very high at the time of the conclusion of

the contract, as RESPONDENT knew that the Cocoa Supplier harvested the cocoa in a developing country [Exh.

C3, p. 19]. Consequently, CLAIMANT could not have been expected to have control over its Ruritanian

supplier.

2. CLAIMANT is not specialized in the trade of sustainable cocoa

145 A buyer cannot depend upon the seller’s skills if the latter did not claim to have special expertise in relation

with the goods [Commentary CISG draft; Müller-Chen/Pair, p. 662; Skin care products case]. Moreover, a buyer

cannot rely on the seller’s skills if both have the same sets of skills [Staudinger/Magnus, Art. 35 CISG §32;

Saidov, p. 97; Plants case; Metallic covers case; Sealing glue case]. The same is true if the seller shows it has no

special skills, by referring the buyer to experts [RJ & AM Smallmon v. Transport Sales (2010); confirmed on appeal

in RJ & AM Smallmon v. Transport Sales (2011)].

146 CLAIMANT is a baker [NoA, p. 4 §1]. This means it must be able to determine which ingredients are required,

in what quantity, how they should be mixed and for how long they should be baked [Onisep; Fiche Rome]. It

can only rely on its suppliers or external audit companies regarding the non-physical characteristics of the

ingredients. Indeed, checking the growing process of each ingredient requires a totally different set of skills,

which falls outside that of a simple baker. RESPONDENT was fully aware of these circumstances, especially

since CLAIMANT had informed it prior to the conclusion of the contract that it would mandate another

company for the auditing of the cocoa production [Exh. R5, p. 41; PO2, p. 53 §32]. In any event, CLAIMANT

does not have a larger set of skills than RESPONDENT with regards to the verification of a supply chain, as the

latter is a supermarket chain and deals with different suppliers and customers, just like CLAIMANT. In


35

conclusion, CLAIMANT is not specialized in the trade of sustainable cocoa and it was thus unreasonable of

RESPONDENT to expect a baker to verify the entire supply chain.

147 Consequently, the cakes delivered by CLAIMANT are conforming pursuant to Art. 35(2) CISG.


148 RESPONDENT’s general conditions only provide for an obligation of best efforts, and CLAIMANT entirely

fulfilled that obligation when it selected and controlled its Cocoa Supplier. Moreover, CLAIMANT took all the

steps, which were required to deliver chocolate cakes fitting RESPONDENT’s demands. Therefore, CLAIMANT

delivered conforming goods.

PRAYER FOR RELIEF

In light of the above, CLAIMANT respectfully requests the Tribunal to find that:

1) The Tribunal does not have jurisdiction to decide on the challenge of Mr. Prasad:

a. Principally, an appointing authority, determined in accordance with Art. 6 UNCITRAL

Rules, shall decide on the challenge of Mr. Prasad;

b. Alternatively, if the Tribunal is found to have jurisdiction on the challenge of Mr. Prasad, it

shall decide in full;

2) Mr. Prasad should not be removed from the Tribunal;

3) CLAIMANT’s General Conditions govern the Contract between the Parties;

4) If RESPONDENT’s general conditions are applicable, CLAIMANT nonetheless delivered conforming

goods.

CLAIMANT reserves the right to amend its prayer for relief as may be required.

Memorandum for CLAIMANT Table of Authorities

XXXVI

TABLE OF AUTHORITIES

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Kaufrechtsübereinkommen (CISG), Neuwied: Luchterhand (2000)

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Belitz et al. BELITZ H.-D, GROSCH Werner, SCHIEBERLE Peter, Food

Chemistry, Springer (2014)

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Kaufverträge

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Europäischen und Globalen Kontext: Festschrift für Norbert Horn zum

70. Geburtstag, De Gruyter Recht (2006), p. 3-20

Cited in: §84


XXXVII

Bernstein/Lookofsky BERNSTEIN Herbert, LOOKOFSKY Joseph, Understanding the CISG

in Europe, Kluwer Law International (2003)

Cited in: §§80, 85

Bevilacqua/Ugarte BEVILACQUA Thomas, UGARTE Ricardo, Ensuring Party Equality

in the Process of Designating Arbitrators in Multiparty Arbitration: An

Update on the Governing Provisions

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the International Sales Law: The 1980 Vienna Sales Convention

Giuffrè (1987)

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BLD GARNER A. Bryan, Black’s Law Dictionary, Tenth Edition,

Thomson Reuters (2009)

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Switzerland: A Significant Step Towards Liberalism

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Cited in: §§33, 35

Bogart BOGART P. Christopher, Chapter 4. Overview of Arbitration Finance

in: CREMADES SANZ-PASTOR M. Bernardo and DIMOLITSA

Antonias (eds), Third-Party Funding in International arbitration, 10

Dossiers of the ICC Institute of World Business Law,

International Chamber of Commerce (2013), pp. 50-56.

Cited in: §47


XXXVIII

Boiral et al. BOIRAL Olivier, GUILLAUMIE Laurence, HERAS-SAIZARBITORIA

Inaki, TAYO TENE Christian Valery, Adoption and Outcomes of ISO

14001: A Systematic review

in: 0 International Journal of Management Reviews (2017), pp.

1-22

Cited in: §127

Born I BORN B. Gary, International Commercial Arbitration, Second

Edition, Kluwer Law International (2014)

Cited in: §§8, 10, 36, 37, 41, 43

Born II Born B. Gary, International Arbitration: Cases and Materials,

Kluwer Law International (2015)

Cited in: §48

Born III Born B. Gary, International Arbitration: Law and Practice, Kluwer

Law Intern (2016)

Cited in: §56

Bouchenaki/El-Ahdab BOUCHENAKI Amal, EL-AHDAB Jalal, Discovery in International

Arbitration: A Foreign Creature for Civil Lawyers?

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Kluwer Law International (2011), pp. 65-113

Cited in: § 74

Boykin/Havalic BOYKIN H. James, HAVALIC Malik, Fruits of the Poisonous Tree: The

Admissibility of Unlawfully Obtained Evidence in International

Arbitration

in: 5 Transnational Dispute Management (2015)

Cited in: §74


XXXIX

BP Guide Victorian Civil Construction Industry, Best Practice Guide for

Tendering and Contract Management, Victorian Civil Construction

Industry, Institute of Public Works Engineering Australia (2008)

Cited in: §92

Brekoulakis et al. BREKOULAKIS Stavros L., RIBEIRO John, et al., UNCITRAL Model

Law, Chapter V, Article 18 [Equal treatment of parties]

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Second Edition, Kluwer Law International (2015), pp. 878-879

Cited in: §37

Broches BROCHES Aron, Commentary on the UNCITRAL Model Law

in: PAULSSON Jan, BOSMAN Lise (eds), ICCA International

Handbook on Commercial Arbitration, Kluwer Law International

(1990), pp. 1-202

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Bucher/Tschanz BUCHER Andreas, TSCHANZ Pierre-Yves, International Arbitration

in Switzerland, Helbing & Lichtenhahn (1989)

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Bugg BUGG G. Stuart, Contracts in English: an introductory guide to

understanding, using and developing “Anglo-American” style contracts,

C.H. Beck oHG (2010)

Cited in: §§19, 80, 85, 92, 93, 97


XL

Bühler/Feit BÜHLER Micha, FEIT Michael, Article 8: Appointments of Arbitrators

in Bi-Party or Multi-Party Proceedings,

in: ZUBERBÜHLER Tobias, MÜLLER Christoph, HABEGGER

Philipp (eds) Swiss Rules of International Arbitration,

Commentary, Second Edition, Schulthess Verlag (2013), pp.

102-121

Cited in: §56

Burgess BURGESS Guy, Law of Tendering, Clendons (2016).

Cited in: §§81, 92

Butler BUTLER Allison E., A Practical Guide to the CISG: Negotiations

through litigation, Aspen Publishers (2007)

Available at:

http://www.cisg.law.pace.edu/cisg/biblio/butler6.html

(consulted on 10 November 2017)

Cited in: §§81, 85, 89, 97

Carlevaris CARLEVARIS Andrea, The Recognition of Enforcement of Interim

Measures Ordered by International Arbitrators

in: VOLKEN Paul, BONOMI Andrea (eds), 9 Yearbook of Private

International Law (2007), pp. 503-540

Cited in: §§36, 71

Caron/Caplan CARON David D., CAPLAN Lee M., The UNCITRAL Arbitration

Rules: a commentary, Second Edition, Oxford Commentaries on

International Law, 2013

Cited in: §§7, 10, 19, 31

http://www.cisg.law.pace.edu/cisg/biblio/butler6.html


XLI

Chatillon CHATILLON Stéphane, Le contrat international, Magnard-Vuibert

(2011)

Cited in: §§14, 17, 80, 81, 85, 92, 97

CISG-AC 13 EISELEN Sieg, CISG-AC Opinion No. 13, Inclusion of Standard Terms

under the CISG, CISG Advisory Council (2013)

Available at: http://www.cisg.law.pace.edu/cisg/CISG-AC-

op13.html (consulted on 1 November 2017)

Cited in: §§89, 94, 98, 99, 103

Coester-Waltjen COESTER-WALTJEN Dagmar, Constitutional Aspects of Party

Autonomy and Its Limits, Walter de Gruyter (2001),

in: GRUNDMANN Stefan, KERBER Wolfgang, WEATHERILL

Stephen (editors), Party Autonomy and the Role of Information in

the Internal Market, Walter de Gruyter (2001)

Cited in: §92

Commentary CISG draft Legislative history of CISG article 35: Secretariat Commentary,

UN DOC.A/CONF.97/5

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m/secomm-35.html (consulted on 22 November 2017)

Cited in: §145

Craig

CRAIG W. Ronald, Re-engineering the tender code for construction

works

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91-100

Cited in: §92

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http://www.cisg.law.pace.edu/cisg/CISG-AC-op13.html


XLII

Craig et al. CRAIG W. Laurence, PARK W. William, PAULSSON Jan, Craig,

Park and Paulsson on International Chamber of Commerce Arbitration,

Third Edition, Oceana Publications Inc. (2000)

Cited in: §53

Croft et al. CROFT Clyde, KEE Christopher, WAINCYMER Jeff, A Guide To

The Uncitral Arbitration Rules, Cambridge University Press

(2013)

Cited in: §41

Daele DAELE Karel, Challenge and Disqualification of Arbitrators in

International Arbitration, 24 International Arbitration Law

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d’Auzon D’AUZON Olivier, Modèles de contrats commerciaux, Second

Edition, Eyrolles (2007)

Cited in: §97

Deloitte Report 2016 Deloitte, Developing legal talent Stepping into the future law firm,

Deloitte LLP (2016).

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(consulted on 4 December 2017)

Cited in: §72

https://www2.deloitte.com/content/dam/Deloitte/uk/Documents/audit/deloitte-uk-developing-legal-talent-2016.pdf

https://www2.deloitte.com/content/dam/Deloitte/uk/Documents/audit/deloitte-uk-developing-legal-talent-2016.pdf


XLIII

Delvolvé DELVOLVÉ Jean-Louis, Multipartism: The Dutco Decision of the

French Cour de cassation

in: 9 (2) Arbitration International (1993), pp. 197-202

Cited in: §37

Díaz-Candia, Díaz-Candia Hernando, Issue Conflict” in Arbitration as Apparently

[un]seen in 2011 by a US Court in STMicroelectronics v. Credit Suisse

Securities

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5(1) Centro Internacional de Arbitraje, Mediación y

Negociación (CIAMEN), IproLex (2012), pp. 287-297

Cited in: §63

Dietmar/Jenkin DIETMAR W. Prager, JENKIN Rebecca, Alpha Projektholding

GmbH v. Ukraine, Decision on Respondent's Proposal to Disqualify

Arbitrator Dr. Yoram Turbowicz, ICSID Case No. ARB/07/16, 19

March 2010

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Cited in: §69

Digest CISG UNCITRAL Digest of Case Law on the United Nations Convention on

Contracts for the International Sale of Goods, United Nations

(2012)

Cited in: §§14, 89, 94, 114

Digest Model Law UNCITRAL Digest of Case law on the Model Law on International

Commercial Arbitration, United Nations (2012)

Cited in: §§8, 34


XLIV

DiMatteo et al. DIMATTEO A. Larry, DHOOGE Lucien, GREENE Stephanie,

MAURER Virginal, PAGNATTARO Marisa, The Interpretive Turn in

International Sales Law: An Analysis of Fifteen Years of CISG

Jurisprudence

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(2009), pp. 299-440

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Drewnowski DREWNOWSKI Adam, Energy, Density, Palatability, and Satiety:

Implications for Weight Control

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Cited in: §136

Dysted DYSTED Christian, Ethical Defects in Contracts under United Nations

Convention on Contracts for the International Sale of Goods, Research

paper, University of Copenhagen (2015)

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Elcin ELCIN Mert, The Applicable Law to International Commercial

Contracts and the Status of Lex Mercatoria – With a Special Emphasis

on Choice of Law Rules in the European Community, Boca Raton

(2010)

Cited in: §92

Enderlein/Maskow ENDERLEIN Fritz, MASKOW Dietrich, International Sales Law:

United Nations Convention on Contracts for the International Sale of

Goods; Convention on the Limitation Period in the International Sale of

Goods, Oceana Publications (1992)

Cited in: §§135, 143


XLV

Estavillo-Castro ESTAVILLO-CASTRO Fernando, Ethics in Arbitration

in: FERNANDEZ-BALLESTEROS Miguel Angel , ARIAS David

(eds), Liber Amicorum Bercando Cremades, Wolters Kluwer

Espana; La Ley (2010), pp. 387-411

Cited in: §41

FAA Plain Language Order FAA Writing Standards, Order No. 1000.36, Department of

Transportation, Federal Aviation Administration (2003)

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Farnsworth I FARNSWORTH E. Allan, Article 8

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International Sales Law, Giuffrè: Milan (1987), pp. 95-102

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Farnsworth II FARNSWORTH E. Allan, On Trying to Keep One's Promises: The

Duty Of Best Efforts In Contract Law

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1-20

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XLVI

Federal Reg. Doc Federal Register, Drafting Legal Documents, Principles of

Clear Writing, National Archives (2016)

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register/write/legal-docs/clear-writing.html (consulted on 5

December 2017)

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Fernandez FERNANDEZ Rita, Earthtrek Geography-6 with Map Practice Book

in: Madhbun Educational Books, Vikas Publishing House (2013)

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Ferrari FERRARI Franco, International Sale of Goods: Applicability

and Applications of the United Nations Convention on Contracts for

the International Sale of Goods, Helbing & Lichtenhahn Bruylant

(1999)

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Fiche Rome Pôle emploi, Fiche Rome D1102 – Boulangerie – Viennoiserie, Pôle

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travail/fichemetierrome.blocficherome.telechargerpdf?codeRo

me=D1102 (consulted on 6 December 2017)

Cited in: §146


XLVII

Forshaw FORSHAW Amy, Public Sector Bids vs Private Sector Bids, Executive

Compass (2017)

Available at: https://www.executivecompass.co.uk/blog/bid-

management/public-sector-bids-vs-private-sector-bids/


Cited in: §92

Furmston/Tolhurst FURMSTON Michael, TOLHURST Gregory, Contract Formation:

Law and Practice, First Edition, Oxford (2010)

Cited in: §89

Gaillard/Savage GAILLARD Emmanuel, SAVAGE John F, Fouchard Gaillard

Goldman on International Commercial Arbitration, Kluwer Law

International (1999)

Cited in: §§37, 41

Gardiner GARDINER James, HABER KUCK Lea, BÉDARD Julie, Discovery

in: CARTER James, FELLAS John (eds), International Commercial

Arbitration in New York, Oxford University Press (2010), pp.

269-294

Cited in: §74

Giannini GIANNINI Giulio, The Formation of the Contract in the UN

Convention on the International Sale of Goods: A Comparative Analysis

in: 1 Nordic Journal of Commercial Law (2006)

Available at:

https://www.cisg.law.pace.edu/cisg/biblio/giannini.html


Cited in: §82


XLVIII

Gillette GILLETTE P. Clayton, Advanced Introduction to the International

Sales Law, Edward Elgar Publishing (2016)

Cited in: §89

Gomez-Acebo GOMEZ-ACEBO Alfonso, Party-Appointed Arbitrators in

International Commercial Arbitration, Kluwer Law International

(2016)

Cited in: §§51, 67

Greenberg et al. GREENBERG Simon, KEE Christopher, WEERAMANTRY J.

Romesh, International commercial arbitration: an Asia-Pacific

perspective, Cambridge University Press (2011)

Cited in: §63

Grimmer GRIMMER Sarah, The Expanded Role of the Appointing Authorities

under the UNCITRAL Arbitration Rules 2010

in: 28(5) Journal of International Arbitration (2011), pp. 501-

517

Cited in: §10

Grunert et al.

GRUNERT Klaus, HIEKE Sophie, WILLS Josephine, Sustainability

labels on food products: Consumer motivation, understanding and use

in: 44 Food Policy (2014), pp. 177-189

Available at: https://ssrn.com/abstract=2619019 (consulted

on 4 December 2017)

Cited in: §127

Guide NY Convention UNCITRAL Secretariat Guide on the Convention on the Recognition

and Enforcement of Foreign Arbitral Awards, New York (1958)

Cited in: §37


XLIX

Hachem et al. HACHEM Pascal, GARBARSKI M. Andrew, JAGMETTI Luca,

BADER Daniel, International trade and commercial transactions in

Switzerland: overview, Thomson Reuters Practical Law (2015)

Cited in: §94

Hobér HOBÉR Kaj, Chapter 14: Latin and International Arbitration

in: SHAUGHNESSY Patricia, TUNG Sherlin (eds), The Powers and

Duties of an Arbitrator: Liber Amicorum Pierre A. Karrer, Kluwer

Law International (2017), p. 137-142

Cited in: §21

Hodges HODGES Paula, Chapter II: The Arbitrator and the Arbitration

Procedure, The Proliferation of “Soft Laws” in International

Arbitration: Time to Draw the Line?

in: KLAUSEGGER Christian, KLEIN Peter, et al. (eds), Austrian

Yearbook on International Arbitration (2015), pp. 205-229

Cited in: §41

Holtzmann/Neuhaus

HOLTZMANN Howard M., NEUHAUS Joseph E., A Guide to the

UNCITRAL Model Law on International Commercial Arbitration:

Legislative History and Commentary, Kluwer Law and Taxation

Publishers (1989)

Cited in: §31


L

Honnold HONNOLD John O., U, Uniform Law for International Sales under

the 1980 United Nations Convention, Third Edition, Kluwer Law


Available at:

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Cited in: §§108, 112

Honnold/Flechtner HONNOLD John, Flechtner Harry, Uniform law for international

sales under the 1980 United Nations Convention, Fourth Edition,

Kluwer Law International (2009)

Cited in: §14

Huber/Mullis HUBER Peter, MULLIS Alastair, The CISG: A new textbook for

students and practitioners, Sellier, European Law Publishers

(2007)

Cited in: §§14, 17

ICJ Report International Court of Justice, Interpretation of Peace Treaties with

Bulgaria, Hungary and Romania (Second Phase)

in: International Court of Justice (ICJ) Reports, No. 950, pp

221-229

Cited in: §19

Ireton IRETON O. Jessica, The Admissibility of Evidence in ICSID

Arbitration: Considering the Validity of WikiLeaks Cables as Evidence

in: 30(1) ICSID Review (2015), pp. 231-242

Cited in: §74


LI

Kadner Graziano KADNER GRAZIANO Thomas, Solving the Riddle of Conflicting

Choice of Law Clauses in Battle of Forms Situations: The Hague

Solution

in: 14 Yearbook of Private International Law (2012-2013), p.

71-101

Cited in: §§85, 89

Kaufmann-Kohler KAUFMANN-KOHLER Gabrielle, Soft law in International

Arbitration: Codification and Normativity

in: 1(2) Journal of International Dispute Settlement (2010), pp.

283-299

Cited in: §41

Kaufmann-Kohler/Rigozzi KAUFMANN-KOHLER Gabrielle, RIGOZZI Antonio, International

Arbitration: law and practice, Oxford University Press (2015)

Cited in: §41

Kindler KINDLER Peter, Ob W alzfräsmaschine oder Schreibtisch- sessel: Keine

Obliegenheit zur AGB-Übersendung beim Vertragsschluss nach CISG!

in: LORENZ Stephan et al. (eds), Festschrift für Andreas Heldrich

zum 70. Geburtstag, München, C.H. Beck (2005)

Cited in: §102

Koh KOH Will Sheng Wilson, Think Quality Not Quantity: Repeat

Appointments and Arbitrator Challenges

in: SCHERER Maxi (ed), 34(4) Journal of International

Arbitration, Kluwer Law International (2017), pp. 711-740

Cited in: §51


LII

Konrad/Schwarz KONRAD Christian, SCHWARZ Franz, Article 26: Decision Making

of the Arbitral Tribunal

in: SCHWARZ T. Franz, KONRAD Christian W, The Vienna

Rules: A Commentary on International Arbitration in Austria, Kluwer

Law International (2009)

Cited in: §31

Koos KOOS Sebastian, Varieties of Environmental Labelling, Market

Structures, and Sustainable Consumption Across Europe: A Comparative

Analysis of Organizational and Market Supply Determinants of

Environmental-Labelled Goods

in: 34(1) Journal of Consumer Policy (2011), pp. 127-160

Cited in: §127

Kramer/Urbach KRAMER Michael, URBACH Guido E. et al., Chapter II: The

Arbitrator and the Arbitration Procedure - Equal Treatment in Multi-

Party Arbitration and the Specific Issue of the Appointment of

Arbitrators

in: ZEILER Gerold, WELSER Irene et al. (eds), Austrian

Yearbook on International Arbitration (2009), pp. 149-162

Cited in: §33

Kröll et al. KRÖLL Stefan, MISTELIS Loukas, VISCASILLAS Perales, UN

Convention on Contracts for the International Sales of Goods (CISG),

C.H.Beck, Hart, Nomos (2011)

Cited in: §§94, 103, 108


LIII

Kruisinga KRUISINGA Sonja, (Non-)conformity in the 1980 UN Convention on

Contracts for the International Sale of Goods: a uniform concept?, Thesis,

Utrecht (2004)

Cited in: §143

Kucera KUCERA Zdenek, Mezinarodni pravo soukrome, Doplnek (2004)

Cited in: §§94, 98

Kuitkowski KUITKOWSKI Diana, The Law Applicable to Privilege Claims in

International Arbitration

in: 32 Journal of international Arbitration (2015), pp. 65-105

Cited in: §74

Kuyven KUYVEN Luiz Fernando, La Responsabilité précontractuelle dans le

commerce international: fondements et règles applicables dans une

perspective d’harmonisation, Editions Universitaires européennes

(2010)

Cited in: §92

Lalive LALIVE Pierre, Transnational (or Truly International) Public Policy

and International Arbitration,

in: SANDERS Pieter (ed), Comparative Arbitration Practice and

Public Policy in Arbitration, 3 ICCA Congress Series, Kluwer Law

International (1987), pp. 258 -318

Cited in: §37

Lando LANDO Ole, Non-Performance (Breach) of Contracts

in: Hartkamp et al. (eds), Towards a European Civil Code,

Nijmegen (2004), pp. 505-516

Cited in: §125


LIV

Lautenschlager LAUTENSCHLAGER Felix, Current Problems Regarding the

Interpretation of Statements and Party Conduct under the CISG - The

Reasonable Third Person, Language Problems and Standard Terms and

Conditions

in: 11(2) Vindobona Journal of International Commercial Law &

Arbitration (2007), pp. 259-290

Available at:

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Cited in: §§14, 17, 84, 89, 94, 98

Le Club des Juristes Le Club des Juristes, Financement du procès par les tiers, Rapport

du Club des Juristes, Commission financement de procès par

les tiers (2014)

Available at: www.leclubdesjuristes.com (consulted on 12

November 2017)

Cited in: §67

Leete LEETE Burt A., Formation under the United Nations Convention on

Contracts for the International Sale of Goods and the Uniform

Commercial Code: Pitfalls for the Unwary

in: 6 Temple International and Comparative Law Journal

(1992), pp. 193-215

Cited in: §81

Levin LEVIN David, The Unsuccessful Tenderer – Legal Rights and

Remedies, Thomson Reuters (2010)

Cited in: §92


LV

Lévy/Bonnan LÉVY Laurent, BONNAN Regis, Chapter 7. Third-Party Funding

Disclosure, Joinder and Impact on Arbitral Proceedings

in: CREMADES SANZ-PASTOR M. Bernardo, DIMOLITSA Antonias

(eds), Third-Party Funding in International arbitration, Dossiers of

the ICC Institute of World Business Law, 10 International

Chamber of Commerce (2013), pp. 78-94

Cited in: §§47, 66

Lew et al. LEW D. M. Julian, MISTELIS A. Loukas, KRÖLL Stefan Michael,

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(2003)

Cited in: §41, 53

Lewis/Berry LEWIS A. Laurence, BERRY L., African Environnments et Resources,

Routledge (2012)

Cited in: §130

Lookofsky LOOKOFSKY Joseph, Understanding the CISG, Wolters Kluwer

Law & Business (2008)

Cited in: §§14, 80, 81, 85, 97

Luttrell LUTTRELL Sam, Bias Challenges in International Commercial

Arbitration; The Need for a “Real Danger” Test

in: 20 International Arbitration Law Library, Kluwer Law


Cited in: §§43, 58


LVI

Magnus I MAGNUS Ulrich, Incorporation of Standard Terms under the CISG

in: ANDERSEN B. Camilla & ANDERSEN G. Ulrich (eds), Sharing

International Commercial Law across National Boundaries: Festschrift

for Albert H. Kritzer on the Occasion of his Eightieth Birthday,

Wildy, Simmonds & Hill Publishing (2008), pp 303-325

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Cited in: §89

Magnus II

Magnus Ulrich, Last Shot vs. Knock Out -- Still Battle over the Battle

of Forms Under the CISG

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Marghitola MARGHITOLA Reto, Document Production in International

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Cited in: §74



LVII

Masarova MASAROVA Barbora, Kupni smlouva v mezinarodnim obchodnim

styku, Univerzita Karlova (2012)

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Melis MELIS Werner, Article 9 CISG

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Meyer MEYER Olaf, Time to Take a Closer Look: Privilege in International

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Cited in: §74

Mittmann MITTMANN Alexander, Zur Einbeziehung von Allgemeinen

Geschäftsbedingungen in einen dem CISG unterliegenden Vertrag

in: 3 International Commercial Law (2006), pp. 103-106

Cited in: §101

https://webcache.googleusercontent.com/search?q=cache:_cZUBeRFTRQJ:https://is.cuni.cz/webapps/zzp/download/120092625+&cd=1&hl=en&ct=clnk&gl=ch




LVIII

Morse MORSE A. Edward, Technological Entanglements: Evidentiary and

Ethical Considerations of Metadata in Interjurisdictional Litigation

in: 2(2) Journal of International Commercial Law and

Technology (2007), pp. 94-104

Cited in: §74

Moses MOSES L. Margaret, The principals and practices of ICA, Appendix

G: IBA Guidelines on Conflict of Interests in International Arbitration,

Cambridge University Press (2008)

Cited in: §69

Müller/Keilmann MÜLLER Werner, KEILMANN Annette, Beteiligung am

Schiedsverfahren wider Willen?

in: German Arbitration Journal (2007), p. 113-121

Cited in: §48

Müller-Chen/Pair MÜLLER-CHEN Markus, PAIR Lara M., Avoidance For Non-

Conformity Of Goods Under Art. 49(1)(a) CISG,

in: AMICORUM Liber, BERGSTEN Eric, International Arbitration

and International Commercial Law: Synergy, Convergence and

Evolution (2011), pp. 655-676

Cited in: §145

Nalin NALIN Paolo, International Fair Trade (Fair Trade in International

Contracts and Ethical Standard)

in: SCHWENZER Ingeborg (ed), 35 years CISG and beyond, 19

International commerce and arbitration, Eleven International

Publishing (2016)

Cited in: §119


LIX

Newman NEWMAN David, Comparing public- and private-sector procurement,

Canada’s Magazine on Public Sector Purchasing (2003)

Available at:

http://www.summitconnects.com/Articles_Columns/PDF_

Documents/060205.pdf (consulted on 23 November 2017)

Cited in: §92

Nygh NYGH Peter, Autonomy in International Contracts, Oxford

University Press (1999)

Cited in: §92

OD WEHMEIER Sally, Oxford Advanced Learner’s Dictionary, edition,

Oxford University Press (2005).

Cited in: §84

OED-online Oxford English Dictionary, The definitive record of the English

language (2017)

Available at: http://www.oed.com/ (consulted on 14

November 2017)

Cited in: §116

Onisep Onisep, Boulanger Boulangère, Reportage Collège Gandhi

(2015)

Available at:

http://www.onisep.fr/content/download/791674/14940181

/file/Fiche_boulanger.pdf (consulted on 6 December 2017)

Cited in: §146


LX

Ortega/Zambrana ORTEGA Domingo, ZAMBRANA Rodriguez-Antolin, Principios de

Derecho Global, Navarra (2006)

Available at: https://www.trans-

lex.org/101550/mark_918000/domingo-ortega-rodriguez-

antolin-zambrana-principios-de-derecho-global-navarra-2006/


Cited in: §92

Osmanoglu OSMANOGLU Burcu, Third-Party Funding in International

Commercial Arbitration and Arbitrator Conflict of Interest


350

Cited in: §66

Owen OWEN Marc, Contract - Implied Terms

in: 43(2) The Cambridge Law Journal (1984), pp. 230-233

Cited in: §81

Paulsson/Petrochilos PAULSSON Jan, PETROCHILOS Georgios, Uncitral Arbitration,

Kluwer Law International (2010).

Cited in: §§8, 74

Peterkova Mitkidis PETERKOVA MITKIDIS Katerina, Sustainability clauses in

international business contracts, The Hague: Eleven International

Publishing (2015)

Cited in: §§110, 117, 122, 131

https://www.trans-lex.org/101550/mark_918000/domingo-ortega-rodriguez-antolin-zambrana-principios-de-derecho-global-navarra-2006/




LXI

Pihlblad/Tufte-Kristensen PIHLBLAD Teffen, TUFTE-KRISTENSEN Johan, Challenge Decisions

at the Danish Institute of Arbitration

in: 33(6) Journal of International, Kluwer Law International

(2016), pp. 577-652

Cited in: §71

Piltz PILTZ Burghard, Internationales Kaufrecht: Das UN-Kaufrecht in

praxisorientierter Darstellung, Verlag C.H. Beck (2008)

Cited in: §89

Poole POOLE Andrew, Walking the tender processing tightrope (1998)

Cited in: §81

Poudret/Besson I POUDRET Jean-François, BESSON Sébastien, Comparative law of

international arbitration, Sweet & Maxwell (2007)

Cited in: §31

Poudret/Besson II POUDRET Jean-François, BESSON Sébastien, Droit compare de

l’arbitrage international, Schulthess Verlag (2002)

Cited in: §37

Ramberg RAMBERG Christina, Emotional Non-Conformity in the International

Sale of Goods, Particularly in Relation to CSR-Policies and Codes of

Conduct, Stockholm University – Research Paper (2014)

Cited in: §110


LXII

Reisman/Freedman REISMAN W. Michael, FREEDMAN E. Eric, The Plaintiff’s

Dilemma: Illegally Obtained Evidence and Admissibility in

International Adjudication

in: 76(4) American Journal of International Law (1982), pp.

737-753

Cited in: §74

Redfern/Hunter BLACKABY Nigel, PARTASIDES QC Constantine, REDFERN Alan,

HUNTER Martin, Redfern and Hunter on International Arbitration,

6th Edition, Oxford University Press (2015)

Cited in: §§36, 41

Reedy/Krebs-Smith REEDY Jill, KREBS-SMITH Susan, Dietary Sources of Energy, Solid

Fats, and Added Sugars among Children and Adolescents in the United

States

in: 110(10) Journal of the American Dietetic Association

(2010), pp. 1477-1484

Cited in: §136

Report of the NY Bar Committee Report of the International Commercial Disputes Committee

Of the New York City Bar Association, Advance waivers of

Arbitrator conflicts of interest in International Commercial Arbitrations

seated in New York, New York City Bar (2013)

Available at: https://nyiac.org/nyiac-core/wp-

content/uploads/2013/01/NYC_Bar_AdvanceWaiversReport

.pdf (consulted on 15 November 2017)

Cited in: §71


LXIII

Reymond REYMOND Claude, Des connaissances personnelles de l'arbitre à son

information privilégiée - Réflexions sur quelques arrêts récents

in: 1 Revue de l’Arbitrage (1991), p. 3-18.

Cited in: §63

Rozehnalova ROZEHNALOVA Nadezda, Standardizovane formy uzavirani smluv v

mezinarodnim obchode, Masarykova Univerzita (1991)

Cited in: §101

Rubbelin-Devichi RUBBELIN-DEVICHI Jacqueline, L’arbitrage et les tiers: III. – Le

droit de l’arbitrage

in: Comité Français de l’Arbitrage, 3 Revue de l’Arbitrage

(1988), pp. 501-556

Cited in: §48

Saidov SAIDOV Djakhongir, Conformity of Goods and Documents: The

Vienna Sales Convention, Oxford and Portland (2015)

Cited in: §§136, 143, 145

Sanders SANDERS Pieter, Procedures and Practices under the UNCITRAL Rules

in: 27 American Journal of Comparative Law (1979), pp. 453-

468

Cited in: §31

Schlechtriem/Butler SCHLECHTRIEM Peter, BUTLER Petra, UN Law on International

Sales: The UN Convention on the International Sales of Goods,

Springer Science & Business Media (2008)

Cited in: §85, 89, 98, 101, 103


LXIV

Schlechtriem/Schwenzer SCHLECHTRIEM Peter, SCHWENZER Ingeborg, Commentary on the

UN Convention on the International Sale of Goods (CISG), Oxford

University Press (2016)

Cited in: §§14, 17, 19, 23, 80, 81, 85, 89, 94, 97, 98, 101,

103, 104, 135

Schlechtriem/Schroeter SCHLECHTRIEM Peter, SCHROETER G. Ulrich, Internationales UN-

Kaufrecht, Mohr Lehrbuch (2013)

Cited in: §112

Schulze SCHULZE Reiner, New Features in Contract Law, Walter de

Gruyter (2007)

Cited in: §§81, 92

Schwarz/Ortner SCHWARZ T. Franz, ORTNER Helmut, Chapter III: The Arbitration

Procedure - Procedural Ordre Public and the Internationalization of

Public Policy in Arbitration

in: ZEILER Gerold, WELSER Irene, et al. (eds), Austrian

Yearbook on International Arbitration (2008), Manz’sche

Verlags- und Universitätsbuchhandlung (2008), pp. 133-220

Cited in: §37

Schwebel SCHWEBEL M. Stephen, The Validity of an Arbitral Award Rendered

by a Truncated Tribunal

in: 4(1) Asia Pacific Law Review (1995), pp. 1-20

Cited in: §19


LXV

Schwebel/Lahne SCHWEBEL M. Stephen, LAHNE G. Susan, Public Policy and

Arbitral Procedure

in: SANDERS Pieter (ed), Comparative Arbitration Practice and

Public Policy in Arbitration, 3 ICCA Congress Series, Kluwer Law

International (1987), pp. 205-226

Cited in: §37

Schwenzer SCHWENZER Ingeborg, Ethical Standards in CISG contracts

in: 22 (1) Uniform Law Review (2017), pp. 122-131

Cited in: §144

Schwenzer et al. SCHWENZER Ingeborg, HACHEM Pascal, KEE Christopher, Global

sales and contract law, Oxford Publisher (2012)

Cited in: §80, 82, 110

Schwenzer/Leisinger SCHWENZER Ingeborg, LEISINGER Benjamin, Ethical Values and

International Sales Contracts

in: CRANSTON Ross, RAMBERG Jan, ZIEGEL Jacob (eds),

Commercial Law Challenges in the 21st Century; Jan Hellner in

memorium, Stockholm Centre for Commercial Law Juridiska

institutionen (2007), pp. 249-275

Cited in: §§117, 122

Sidwell et al. SIDWELL A. C., BUDIAWAN D., MA T., The significance of the

tendering contract on the opportunities for clients to encourage

contractor led innovation

in: 1(2) Construction Innovation (2001), pp. 107-116

Cited in: §§81, 92


LXVI

Spagnolo SPAGNOLO Lisa, Opening Pandora’s Box: Good Faith and

Precontractual Liability in the CISG

in: 21 Temple International and Comparative Law Journal (2008),

pp. 161-310

Available at: http://iicl.law.pace.edu/cisg/scholarly-

writings/opening-pandoras-box-good-faith-and-precontractual-

liability-cisg#i (consulted on 26 November 2017)

Cited in: §89

Staudinger/Magnus MAGNUS Ulrich, Article 8, 9, 35 CISG

in: VON STAUDINGER Julius (ed), Julius von Staudingers

Kommentar zum Bürgerlichen Gesetzbuch mit Einführungsgesetz und

Nebengesetzen, Wiener UN-Kaufrecht, Berlin-De Gruyter

(2013)

Cited in: §§112, 122, 145

Stiegele/Halter STIEGELE Andreas, HALTER Rudolf, Einbeziehung von Allgemeinen

Geschäftsbedingungen im Rahmen des UN-Kaufrechts –

Zugänglichmachung im Internet

in: 4 International Commercial Law (2003), p. 169-170

Cited in: §94

http://iicl.law.pace.edu/cisg/scholarly-writings/opening-pandoras-box-good-faith-and-precontractual-liability-cisg#i




LXVII

Tadelis TADELIS Steven, Public procurement design: Lessons from the private

sector (2012)

in: 30 International Journal of Industrial Organization (2012),

pp. 297-302

Available at:

http://faculty.haas.berkeley.edu/stadelis/Pub_Proc_Des.pdf


Cited in: §92

Tao TAO Jingzhou, CIETAC Rules 2005

in: Mistelis Loukas A. (ed), Concise International Arbitration,

Kluwer Law International, Austin (2010)

Cited in: §69

TransLex-Principles, No. IV.1.1 Principle No. IV.1.1, Freedom of Contract

in: Commentary to Trans-Lex Principles [online]

Available at: https://www.trans-lex.org/918000/_/freedom-

of-contract/(consulted on 22 November 2017)

Cited in: §92

TransLex-Principles, No. IV.6.5 Principle No. IV.6.5, Best efforts undertakings

in: Commentary to Trans-Lex Principles [online]

Available at: https://www.trans-lex.org/932000/_/best-

efforts-undertakings/ (consulted on 28 November 2017)

Cited in: §125


LXVIII

Tupman TUPMAN Michael, Challenge and Disqualification of Arbitrators

in: 38(1) The International and Comparative Law Quarterly

(1989), pp. 26-52

Cited in: §69

Tweeddale/Tweeddale TWEEDDALE Andrew, TWEEDDALE Keren, Arbitration of

Commercial Disputes, International and English Law and Practice,

Oxford University Press (2005)

Cited in: §69

UNCITRAL Report (1985)

United Nation Commission on International Trade Law,

Report of the United Nations Commission on International

Trade Law on the work of its eighteenth session, 3-21 June

1985, Doc. A/40/17

Available at: http://www.uncitral.org/uncitral/en/commission/sessions/1

8th.html (consulted on 29 October 2017)

Cited in: §30

van Hof VAN HOF Jacomijn, Commentary on the UNCITRAL Arbitration

Rules - The Application by the Iran-US Claims Tribunal, Kluwer

Law and Taxation Publication (1991)

Cited in: §31

Vecchio/Annunziata

VECCHIO Riccardo, ANNUNZIATA Azzurra, Willingness-to-pay for

sustainability-labelled chocolate: an experimental auction approach

in: 86 Journal of Cleaner Production (2015), pp. 335-342

Cited in: §127


LXIX

von Goeler VON GOELER Jonas, Third-Party Funding in International

Arbitration and its impact on Procedure



Cited in: §§41, 47, 53

Voser/Petti PETTI M. Angelin, VOSER Nathalie, The Revised IBA Guidelines on

Conflicts of Interest in International Arbitration

in: 33(1) ASA Bulletin (2015), pp. 6-36

Cited in: §§41, 71

Vytopil VYTOPIL Louise, Contractual Control and Labour-Related CSR

Norms in the Supply Chain: Dutch Best Practices

in: 8(1) Utrecht Law Review (2012), pp. 155-169

Cited in: §89

Waincymer WAINCYMER Jeffrey, Procedure and Evidence in International

Arbitration, Kluwer Law International (2012)

Cited in: §§10, 60

Webster WEBSTER H. Thomas, Handbook of Uncitral Arbitration, Sweet &

Maxwell (2010)

Cited in: §§8, 10, 11, 41

Weigand WEIGAND Frank-Bernd, Practitioner’s Handbook on International

Commercial Arbitration, Second Edition, Oxford University Press

(2009)

Cited in: §§8, 30, 33, 34, 36, 41


LXX

Wilske/Stock WILSKE Stephan, STOCK Michael, Rule 3.3.7 of the IBA Guidelines

on Conflicts of Interest in International Arbitration – The Enlargement

of the Usual Shortlist?

in: 23 (1) ASA Bulletin (2005), pp.45-52

Cited in: §41

Witz WITZ Wolfgang, Article 9 CISG

in: WITZ Wolfgang, SALGER Hanns-Christian, LORENZ Manuel

(eds), International Einheitliches Kaufrecht, Heidelberg (2000)

Cited in: §122

Wood/Fitzalan WOOD Geoff, FITZALAN Jennifer, Everything you wanted to know

about tendering but were afraid to ask, Baker & McKenzie (2015)

Available at: http://www.bakermckenzie.com/-

/media/files/insight/publications/2015/03/everything-you-

wanted-to-know-about-tendering-bu__/files/read-

publication/fileattachment/bk_australia_tendering_mar15.pdf


Cited in: §§81, 92

Working Group Report (1984) United Nation Commission on International Trade Law,

Report of the Working Group on International Contract

Practice on the work of its seventh session25 June -13 July

1984, Doc. A /CN.9/246

Available at:

http://www.uncitral.org/uncitral/en/commission/sessions/1

7th.html (consulted on 2 November 2017)

Cited in: §30, 31


LXXI

Working Group Report (1985) United Nation Commission on International Trade Law,

Analytical Commentary on draft text of a model law on

international commercial arbitration, Report of the Secretary-

General on the work of its eighteenth session, 3-21 June 1985,

Doc. A/CN.9/264

Available at:

http://www.uncitral.org/uncitral/en/commission/sessions/1

8th.html (consulted on 2 November 2017)

Cited in: §31, 41

Young YOUNG Jessica, An Endeavour to Understand Endeavours

Undertakings

in: 44(1) Hong Kong Law Journal (2014), pp. 95-114

Cited in: §125

Memorandum for CLAIMANT Table of Arbitral Awards

LXXII

TABLE OF ARBITRAL AWARDS

Cited as Reference

AD HOC ARBITRATION

Ad Hoc case (1995) Country X v. Company Q

Challenge Decision of 11 January 1995

in: Albert Jan van den Berg (ed), XXII Yearbook Commercial

Arbitration (1997), pp. 227-242

Cited in: §41

Ad Hoc case (1998) Ad hoc Arbitration of Rome

4 December 1998

Available at: http://www.unilex.info/case.cfm?id=631 (consulted on

23 November 2017)

Cited in: §103

Econet case High Court of Nigeria

Econet Wireless Ltd v. First Bank of Nigeria

2 June 2005

in: Revista Brasileira de Arbitragem, IV(16) Comitê Brasileiro de

Arbitragem CBAr & IOB (2007), pp. 153-168

Cited in: §21

Glamis case Glamis Gold Ltd v. United States

8 June 2009

Available at: https://www.italaw.com/cases/487 (consulted on 3

November 2017)

cited in: §21

http://www.unilex.info/case.cfm?id=631


LXXIII

Methanex v. US Methanex Corporation v. United States of America

3 August 2005

in: WEILER Todd, International investment law and arbitration: Leading

cases from the ICSID, NAFTA, bilateral treaties, and customary international

law, Cameron May (2005)

Cited in: §7

CHINA INTERNATIONAL ECONOMIC AND TRADE ARBITRATION COMMISSION

CIETAC (1996) CIETAC Case No. CISG/1996/48

23 October 1996

Cited in: §136

CIETAC (2005)

CIETAC Case No. CISG/2005/15

Wool and Wooltop case

16 September 2005

Cited in: §102

CHAMBRE DE COMMERCE DE L’INDUSTRIE DE GENÈVE (CCIG)

CCIG case No. 137 CCIG case No. 137 of 2000

24 March 2000

in: 21(4) ASA Bullutin (2003), pp. 781 – 801

cited in: §48

INTERNATIONAL CHAMBER OF COMMERCE

Chemical fertilizer case ICC Case No. 8128 of 1995

1 January 1995

Available at: http://cisgw3.law.pace.edu/cases/958128i1.html


Cited in: §108

http://cisgw3.law.pace.edu/cases/958128i1.html


LXXIV

Coke case ICC Case No. 9187 of 1999

1 June 1999

in: CISG-online 705

Cited in: §19

Cowhides case ICC Case No. 7331 of 1994

Available at: https://cisgw3.law.pace.edu/cases/947331i1.html


Cited in: §17

Dow chemical case ICC case No. 4131 of 1982

in: 9 Yearbook on Commercial Arbitration (1984), pp. 131-138

Cited in: §48

ICC case No. 4402 ICC case No. 4402 of 1983

in: JARVINS/DERAINS, pp. 153-157

Cited in: §48


in: 115 Journal du droit international (1988), pp. 1206-1215

Cited in: §48


in: 2(2) ICC Bulletin (1991), pp. 34-36

Cited in: §48

ICC case No. 16561 ICC Case No. 16561 of 2010

Germany v. Denmark

Available at:

http://www.kluwerarbitration.com/document/download/?ids=kli-

ka-icca-yb-xl-15011-n&searchTerm= (consulted on 17 November

2017)

Cited in: §136

https://cisgw3.law.pace.edu/cases/947331i1.html

http://www.kluwerarbitration.com/document/download/?ids=kli-ka-icca-yb-xl-15011-n&searchTerm

http://www.kluwerarbitration.com/document/download/?ids=kli-ka-icca-yb-xl-15011-n&searchTerm


LXXV

Licensor case ICC Case No. 1900 of 1972

Licensor (Italy) v. Distributor (Spain)

in: Journal de droit international (1974), p. 897-902

Cited in: §97

Magnesium case ICC Case No. 8324 (1995)

in: CISG-online 569

Available at: http://cisgw3.law.pace.edu/cases/958324i1.html

Cited in: §17

Milutinovic case ICC Case No. 5017 of 1987

Ivan Milutinovic PIM v. Deutsche Babcock AG

in: SCHWEBEL Stephen M., The Validity of an Arbitral Award rendered by a

Truncated Tribunal, 6(2) ICC International Court of Arbitration (1995)

Cited in: §35

INTERNATIONAL CENTER FOR SETTLEMENT OF INVESTMENT DISPUTES

Vivendi v. Argentina ICSID Case No ARB/97/3

Compañía de Aguas del Aconquija SA and Vivendi Universal SA v.

Argentine Republic

3 October 2001

Cited in: §60

Grand River v. US ICSID Case

Grand River Enterprises Six Nations Ltd., et al. v. United States of

America

28 November 2007

Available at: https://www.italaw.com/cases/510

Cited in: §41

http://cisgw3.law.pace.edu/cases/958324i1.html


LXXVI

OPIC v. Venezuela ICSID Case No. ARB/10/14

Opic Karimum Corporation v. The Bolivarian Republic of Venezuela

5 May 2011

Cited in: §61

SGS v. Pakistan ICSID Case No. ARB/02/6

SGS v. Pakistan

6 August 2003

Cited in: §53

Suez case ICSID Case No. ARB/03/17

Suez, Sociedad General de Aguas de Barcelona S.A., and InterAguas

Servicios Integrales del Agua S.A. v. The Argentine Republic and Suez

22 October 2007


December 2017)

Cited in: §§63, 69

Tidewater v. Venezuela ICSID Case No. ARB/10/5

Tidewater Inc. et al. v. The Bolivarian Republic of Venezuela

23 December 2010


November 2017)

Cited in: §74

Urbaser case ICSID Case No. ARB/07/26

Urbaser S.A. and Consorcio de Aguas Bilbao Bizkaia, Bilbao Biskaia Ur

Partzuergoa v. The Argentine Republic

12 August 2010


November 2017)

Cited in: §§41, 63

https://www.italaw.com/cases/1048




LXXVII

Alpha v. Ukraine

ICSID Case No. ARB/07/16

Alpha Projektholding GmbH v. Ukraine

19 March 2010

Cited in: §69

S.L.U. case

ICSID Case No. ARB/10/9

Universal Compression International Holdings, S.L.U. v. The

Bolivarian Republic of Venezuela

20 May 2011

Cited in: §69

IRAN – UNITED STATES CLAIMS TRIBUNAL (IUSCT)

Case B1 IUSCT (Dissenting

Opinion Ameli)

Case No. B1 IUSCT

Ameli, Dissenting Opinion to the Order of 2 July 1987

Cited in: §31

Mobil Oil Iran case Case Nos. 74. 76, 81 and 150

Mobil Sales and Supply Corporation and others v. Government of The

Islamic Republic of Iran, National Iranian Oil Company

14 July 1987

Cited in: §21

LONDON COURT OF INTERNATIONAL ARBITRATION

Grid v. Argentina LCIA Case No. UN 7949

National Grid PLC v. The Republic of Argentina

3 December 2007


November 2017)

Cited in: §§41, 56, 57



LXXVIII

NETHERLANDS ARBITRATION INSTITUTE

Rijn Blend case Netherlands Arbitration Institute, Case No. 2319

15 October 2002

in: CISG-online 740

Cited in: §135

PERMANENT COURT OF ARBITRATION

Gallo v. Canada UNCITRAL Case No. 55798

Vito G. Gallo v. The Government of Canada

14 October 2009

Cited in: §§41, 74

ICS v. Argentina UNCITRAL Case No. 2010-9

ICS Inspection and Control Services Limited (United Kingdom) v. The

Republic of Argentina

17 December 2009

Cited in: §41

Memorandum for CLAIMANT Table of Court Decisions

LXXIX

TABLE OF COURT DECISIONS

Cited as Reference

AUSTRALIA

Applied Materials case District Court of Sydney

Applied Industrial Materials Corp. v. Ovalar Makine Ticaret Ve

Sanayi A.S. and others

28 June 2006

Case No. 05 CV 10540 (RPP)

Cited in: §41

Cubic Transportations case Supreme Court of New South Wales, Common Law Division

Cubic Transportations Systems Inc & Anor v. State of New South

Wales

26 July 2002

Case No.: NSWSC 656

Cited in: §92

Hospital Products case High Court of Australia

Hospital Products Ltd v. United States Surgical Corporation

25 October 1984

Case No. [1984] 156 CLR 41

Cited in: §125

Franklins v. Metcash Court of Appeal, New South Wales, Australia

Franklins Pty v. Metcash Trading

16 December 2009

CLOUT case No. 1136

Cited in: §14


LXXX

Vakauta v. Kelly

High Court of Australia

Vakauta v. Kelly

5 October 1989

Case No. [1989] 167 CLR 568

Cited in: §63

AUSTRIA

Cooling System case Oberster Gerichtshof (OGH)

14 January 2002

Case No.: 7 Ob 301/01t

Available at: http://cisgw3.law.pace.edu/cases/020114a3.html

(consulted on 1 December 2017)

Cited in: §94

Propane case Oberster Gerichtshof (OGH)

6 February 1996

Case No. 10 Ob 518/95

Available at:

http://cisgw3.law.pace.edu/cases/960206a3.html (consulted

on 6 December 2017)

Cited in: §89

Tantalum Powder case Oberster Gerichtshof (OGH)

17 December 2003

Case No. 7Ob275/03x

in: CISG-online 828

Cited in: §99

BELGIUM

Doors case Rechtbank van Koophandel, Hasselt

19 April 2006

Case No. A.R. 05/4177

in: CISG-online 1389

Cited in: §137


LXXXI

Gantry v Research District Court Nivelles Gantry v. Research Consulting Marketing

19 September 1995

Case No. R.G. 1707/93

Cited in: §94

CANADA

Desbois v. Industries Cour d’appel du Québec

Desbois v. Industries A.C. Davie Inc.

26 April 2009

Available at:

https://www.mcgill.ca/arbitration/files/arbitration/Desbois.pd

f (consulted on 27 October 2017)

Cited in: §41

Inversiones v. STET Ontario Superior Court of Justice

Corporacion Transnacional de Inversiones S.A. de C.V. v. STET

International, S.P.A. and others

22 September 1999

Cited in: §37

ENGLAND

Adams v. Cape Court of Appeal (Civil Division)

Adams v. Cape Industries Plc

27 July 1989

Case No. Ch 433

Cited in: §48

ASM v. TTMI English Court of Appeal

ASM Shipping Ltd of India v. TTMI Ltd of England

16 October 2006

Case No. EWCA Civ 1341

Cited in: §41


LXXXII

Butler Machine case (Lords

Justice Lawton and Bridge)

Court of Appeal

Butler Machine Tool Co. Ltd v. Ex-Cell-O Corporation

(England) Ltd

25 April 1977

Case No. [1979] 1 WLR 401

Available at: http://www.diprist.unimi.it/fonti/851.pdf


Cited in: §89

Cofely v. Bingham The High Court of Justice Queen’s Bench Division (Commercial

Court)

Cofely Limited v. Anthony Bingham et al.

17 February 2016

Cited in: §§41, 61

Fileturn case The High Court of Justice Queen’s Bench Division (Technology

and Construction Court)

Fileturn Ltd v. Royal Garden Hotel Ltd

13 July 2010

Case No. [2010] EWHC 1736 (TCC)

Cited in: §61

Gough case House of Lords

Regina v. Gough

20 May 1993

Case No. [1993] A.C. 646

Cited in: §61

Locabail case Court of Appeal (Civil Division)

Locabail (UK) Ltd v. Bayfield Properties Ltd

17 November 1999

Case No. [2000] QB 451

Cited in: §61

http://www.diprist.unimi.it/fonti/851.pdf


LXXXIII

Peterson Farms case Commercial Court

Peterson Farms Inc. v. C&M Farming Ltd

4 February 2004

Case No. EWHC 121

Cited in: §48

Porter v. Magill House of Lords

Magill v. Porter

13 December 2001

Case No. [2001] UKHL 67

Cited in: §41

Sierra Fishing case The High Court of Justice Queen’s Bench Division (Commercial

Court)

Sierra Fishing Co v. Farran

30 January 2015

Case No. EWHC 140

Cited in: §41

W v. M SDN BHD The High Court of Justice Queen’s Bench Division (Commercial

Court)

W Limited v. M SDN BHD

16 December 2015

Case No. EWHC 422

Cited in: §60

FINLAND

Skin care products case Helsinki Court of Appeal

30 June 1998

Case No. S 96/1215


Cited in: §145


LXXXIV

FRANCE

Coin machine case Cour d'appel de Lyon

Société P. Service et Société L. de transport en commun v.

Société F. en automatique et Société G. et Société N.

18 December 2003

Case No. 01/02620

in: CISG-online 871

Cited in: §135

Cour de cass. (1987) Cour de cassation, Chambre Commerciale

21 December 1987

Case No. 85-13.173

Cited in: §92

Dutco case BKMI and Siemens v. Dutco, Cour de Cassation [(Supreme Court])

BKMI and Siemens v. Dutco

7 January 1992

Cited in: §§33, 37, 38

Époux X v. Prodim/Logidis Cour de Cassation, Première Chambre Civile

Epoux X v. Société Prodim and Société Logidis

20 October 2010

Epoux X v. Société Prodim and Société Logidis

Case No.: C 09-68-997

Cited in: §61

Intelcam case Cours d’Appel de Paris

Société des telecommunications internaitonales du Cameroun

(Intelcam) v. SA France Télécom

16 January 2003

in: Rev. arb. 2003, p. 247

Cited in: §37


LXXXV

KIS France case Court of Appeal, Paris

KIS France et al. v. Société Générale et al.

31 October 1989

Case No. KIS France et al. v. Société Générale et al.

1992 Rev. Arb. 90

Cited in: §48

Somoclest v. DV Cour de Cassation, Première Chambre Civile

Société Somoclest Bâtiment v. Société DV Construction

20 October 2010

Société Somoclest Bâtiment v. Société DV Construction

Case No.: 2010 Rev. 671-672

Cited in: §61

Veyron v. Ambrosio Cour d'appel de Grenoble, Chambre Ccommerciale

Veyron v Ambrosio

26 April 1995

Veyron v Ambrosio

Case No. 93/1613

in: CISG-online 153

Cited in: §101

GERMANY

Barley case Oberslandesgerich München

13 November 2002

Case No. 27 U 346/02

in: CISG-online 786

Cited in: §119

Cloth case Landgericht Regensburg

24-Sep-1998

Case No. 6 O 107/98


Cited in: §136


LXXXVI

Household goods case Landesgericht Augsburg, 2. Kammer für Handelssachen

12 July 1994

Case No. 2 HKO 5024/93

in: CISG-online 390

Cited in: §101

Machinery case Bundesgerichtshof

31 October 2001

Case No. VIII ZR 60/01

in: CISG-online 617

Cited in: §§23, 94

NZ mussels case Bundesgerichtshof

8 March 1995


Cited in: §137

OLG Dresden case Oberlandesgericht Dresden

28 February 2001

Case No. 11 Sch 01/01

Cited in: §8

OLG Hamm case Oberlandesgericht Hamm

22 July 2002

Case No.17 SchH 13/01

Cited in: §53

OLG Köln case Oberlandesgericht Köln

3 April 2006

Case No. 16 U 65/05

Cited in: §§101, 103


LXXXVII

Plants case Landgericht Coburg

12 December 2006

Case No. 22 O 38/06


Cited in: §145

Powdered Milk case Bundesgerichtshof [Eng. Federal Supreme Court]

9 January 2002


in: CISG-online 651

Cited in: §89

Shoes case Landgericht Berlin

15 September 1994

Case No. 52 S 247/94

in: CISG-online 399

Cited in: §137

NETHERLANDS

Ghana v. Telekom District Court of The Hague

Telekom Malaysia Berhad v. The Republic of Ghana

18 October 2004

Case No. 13/2004

Available at: https://www.italaw.com/cases/1091 (consulted on

4 November 2017)

Cited in: §56

TNO case Rechtbank Den Haag

TNO v. ZygoLOT GmbH

10 June 2015

Case No. C / 09/471 317; HA ZA 14-934

Cited in: §80


LXXXVIII

NEW ZEALAND

Pratt v. Transit Privy Council from the Court of Appeal of New Zealand

Pratt Contractors Ltd v Transit New Zealand

1 December 2003

Case No. [2005] 2 NZLR 433

Cited in: §§81, 92

Prime Commercial case Court of Appeal of New Zealand

Prime Commercial Limited v. Wool Board Disestablishment

Company Limited

18 October 2006

Case No. CA110/05

Cited in: §92

RJ & AM Smallmon v. Transport

Sales (2010)

High Court of New Zealand

RJ & AM Smallmon v. Transport Sales Limited and Grant Alan

Miller

30 July 2010

Case No. CIV-2009-409-000363


Cited in: §145

RJ & AM Smallmon v. Transport

Sales (2011)

Court of Appeal New Zealand

RJ & AM Smallmon v. Transport Sales Limited and Grant Alan

Miller

22 July 2011

Case No. CIV-2009-409-000363


Cited in: §145


LXXXIX

Shivas case Shivas & Westmark Investments Ltd v. BTR Nylex Holdings NZ

Limited & Ors

1997

Case No. 1 NZLR 318 (HC)

Cited in: §81

PORTUGAL

Generis v. Novartis Court of Appeal of Lisbon

Generis Farmacêutica S.A. v. Novartis AG, LTS Lohmann

Therapie-System AG e Novartis Farma - Produtos Farmarcéuticos

S.A.

24 March 2015

Case No.1361/14.0YRLSB.L1

in: XII(48) Comitê Brasileiro de Arbitragem CBAr & IOB (2015),

pp. 214-219 (consulted on 2 December 2017)

Cited in: §51

SPAIN

Metallic covers case Audiencia Provincial de Barcelona

28 April 2004

Case No. 862/2003

in: CISG-online 931

Cited in: §145

Sealing glue case Audiencia Provincial de Barcelona

28 January 2004

Case No. 30/2004

in: CISG-online 932

Cited in: §145


XC

SWITZERLAND

BGE (1996) Swiss Federal Court

29 January 1996

in: 14(3) ASA Bull. (1996), p. 496-507

Cited in: §48


9 February 1998

in: 16(3) ASA Bull (1998), pp. 634-652

Cited in: §58


16 October 2003

Case No. 4P_115/2003

Available at:

http://www.polyreg.ch/bgeunpub/Jahr_2003/Entscheide_4P_

2003/4P.115__2003.html (consulted on 14 November 2017)

Cited in: §37


26 September 2007

Case No. 4P_4/2007

Cited in: §58


7 September 2016

Case No. 4A_386/2015; ATF 142 III 521

Cited in : §53


XCI

Building material case Obergericht des Kantons Thurgau

12 December 2006

Case No. ZBR.2006.26


Cited in: §114

Fruit and vegetables case Handelsgericht des Kantons Aargau

5 February 2008

Case No. HOR.2005.82/ds


Cited in: §112

Mattresses case Handelsgericht des Kantons Zürich

24 October 2013

Case No. HG010395/U/zs

in: CISG-online 857

Cited in: §19

Soyprotein case Zivilgericht Basel-Stadt

22 August 2003

Case No. 33/2002/SAS/so

in: CISG-online 943

Cited in: §119


XCII

Swiss Airlines case Swiss Federal Court

Swiss Pilots Association v. Swiss International Air Lines AG

7 November 2006

Case No. ATF 133 I 89, 4P.247/2006

in: JdT 2007 I 219

Cited in: §§56, 63

TETA case Bundesgericht [Swiss Federal Court]

5 April 2005

Case No. 4C.474/2004


Cited in: §14

Valverde case Swiss Federal Court

Alejandro Valverde Belmonte v. Comitato Olimpico Naziona le

Italiano (CONII), Agence Mondiale Antidopage (AMA) and

Union Cycliste International (UCI)

29 October 2010

Case No. ATF 4A_234/2010

Available at: www.bger.ch (consulted on 16 November 2017)

Cited in: §41

UNITED KINGDOM

Pips case Pips (Leisure Productions) Ltd. v Walton

23 May 1980

Case No. [1982] 43 P. & C.R. 415

Cited in: §125

Printing v. Sampson Printing and Numerical Registering Co v Sampson

1875

Case No. 19 Eq 462

Cited in: §92

http://www.bger.ch/


XCIII

Sheffield District Railway case Sheffield District Railway Co. v. Great Central Railway Co.

1911

Case No. [1911] 27 T.L.R. 451

Cited in: §125

Spencer case Spencer v. Harding

29 June 1869

Case No. [1870] LR 5 CP 561

Cited in: §81

Swidler & Berlin v. US The United States Court of Appeals for the District of Columbia

Circuit

Swidler & Berlin et al. v. United States

25 June 1998

Case No. [1998] 524.U.S.399

Cited in: §74

Terrell v. Mabie Terrell v Mabie Todd & Coy. Ld.

01 January 1952

Case No. [1952] 2 T.L.R. 574

Cited in: §125

UNITED STATES

Al-Harbi v. Citibank US Court of Appeals for the District of Columbia Circuit

Al-Harbi v. Citibank, N.A.

11 June 1996

Case No. 85 F.3d 680

Cited in: §59

Alston v. UBS US District Court for the District of Columbia

Alston v. UBS Financial Services, Inc.

2 January 2006

Case No. 2006 WL 20516

Cited in: §59


XCIV

Barcon v. Tri-County The Supreme Court of New Jersey

Barcon associates Inc. v. Tri-County Asphalt Corporation

28 May 1981

Case No. 86 N.J. 179; 430 A.2d 214

Cited in: §60

Bloor case US Court of Appeals (2nd Cir.)

Bloor v. Falstaff Brewing Corp.

15 May 1979

Case No. 601 F.2d 609

Cited in: §125

Carlson Brewing case Court of Appeals of Utah

Carlson Brewing Co. v. Salt Lake Brewing Co.

1 July 2004

Case No. 20030017-CA

Cited in: §125

Footware case US District Court for the Southern District of New York

Filanto S.p.A. v. Chilewich Int'l Corp.

14 April 1992

Case No. 91 CIV 3253 (CLB)

in: CISG-online 45

Cited in: §101

Health Management case US Court of Appeals (7th Cir.)

Health Services Management Corp. v. Hughes

17 September 1992

Case No. 975 F.2d 1253

Cited in: §59


XCV

Hester v. Nigeria The United States Court of Appeals for The Fifth Circuit

Hester International Corporation v. Federal Republic of Nigeria

9 August 1989

Case No. 88-4178, 88-4219; 879 F.2d 170

Cited in: §48

InterGen v. Grina The United States Court of Appeals for The First Circuit

InterGen N.V. v. Eric F. Grina, Alstom (Switzerland) Limited,

and Alstom Power NV

22 September 2003

Case No. 03-1056; 344 F. 3d 134

Cited in: §48

LTV case US District Court for the Southern District of New York

LTV Aerospace and Defense Co. v. Thomson

30 July 1996

Case No. 198 B.R. 848

Cited in: §125

Marble case US Federal Appellate Court (11th Circuit)

MCC-Marble Ceramic Center v. Ceramica Nuova D'Agostino

29 June 1998

Case No. 97-4250

in: CISG-online 342

Cited in: §§17, 23, 114


XCVI

Nardone v. US US Supreme Court

Nardone v. United States

11 December 1939

Case No. 308 U.S. 338 (1939)

Cited in: §74

Nationwide case US Court of Appeals (6th Cir.)

Nationwide Mutual Insurance Co. v. The Home Insurance Co.

28 January 2002

Case No. 278 F.3d 621

Cited in: §59

Ometto v. ASA US Supreme Court

Adriano Giannetti Dedini Ometto, et al., petitioners, v. ASA

Bioenergy Holding A.G., et al.

30 June 2014

Case No. 13-1194; 134 S.Ct 2877

Cited in: §41

Peoples Life Ins. case US Court of Appeals (4th Cir.)

Peoples Sec. Life Ins. Co. v. Monumental Life Ins. Co.

20 April 1993

Case No. 991 F.2d 141

Cited in: §59

Perma Research case US District Court for the Southern District of New York

Perma Research & Development Company v. Singer Company

27 January 1970

Case No. 66 Civ. 665

Cited in: §125


XCVII

Sarhank case The United States Court of Appeals for The Second Circuit

Sarhank Group v. Oracle Corporation

14 April 2005

Case No. 02-9383; 404 F.3d 657

Cited in: §48

Stella v. Cork Oregon District Court Stella Maris v. Cork Supply

9 August 2011

Case No. 3:2011cv00954

Cited in: §94

STMicroelectronics case The United States Court of Appeals for The Second Circuit

StMicroelectronics N.V. v. Credit Suisse Securities (USA) LLC

2 June 2011

Docket No. 10-3847-cv

Cited in: §63

Triple-A Baseball Club case US District Court for the District of Maine

Triple-A Baseball Club Associates v. Northeastern Baseball Inc.

20 February 1987

Case No. 655 F.Supp.513

Cited in: §125

US v. Bestfood The United States Court of Appeals for The Sixth Circuit

United States v. Bestfoods et al.

8 June 1998

Case No. 97-545

Cited in: §48

Memorandum for CLAIMANT Other sources

XCVIII

OTHER SOURCES

Cited as Reference

Carrefour commercial Carrefour commercial

Available at:

https://www.youtube.com/watch?v=BHiCqf3rfpQ

(consulted on 6 November)

Cited in: §136

CPIA Indicator CPIA Indicator

Available at:

https://data.worldbank.org/indicator/IQ.CPA.TRAN.XQ


Cited in: §143

Fairtrade Cocoa Fairtrade International: products – cocoa

Available at: https://www.fairtrade.net/products/cocoa.html


Cited in: §127

Fairtrade Standards Fairtrade standard for Hired Labour

Available at:

https://www.fairtrade.net/fileadmin/user_upload/content/2

009/standards/documents/HL_EN.pdf (consulted on 3

November 2017)

Cited in: §129


XCIX

Fairtrade USA website Fair Trade Certified USA

Available at:

https://www.fairtradecertified.org/business/multiple-

ingredient-product-policy (consulted on 2 November 2017)

Cited in: §140

Fairtrade Website Fairtrade Certifying

Available at:

https://www.fairtrade.net/pl/producers/certifying-

producers.html (consulted on 4 November 2017)

Cited in: §131

Ferrero Ferrero Code of Business Conduct

Available at: https://s3-eu-west-1.amazonaws.com/ferrero-

static/globalcms/documenti/571.pdf (consulted on 17

November 2017)

Cited in: §117

Hershey CSR Hershey CSR Report, Shared goodness – corporate social

responsibility report (2016)

Available at:

https://www.thehersheycompany.com/content/dam/corpora

te-us/documents/csr-reports/2016-hershey-csr-report-

detail.pdf (consulted on 22 October 2017)

Cited in: §127


C

ISO Survey International Organization for Standardization, The ISO Survey of

Management System Standard Certification 2016 [online]

Available at: http://isotc.iso.org/livelink/livelink/fetch/-

8853493/8853511/8853520/18808772/00._Executive_sum

mary_2016_Survey.pdf?nodeid=19208898&vernum=-2


Cited in: §127

Lidl commercial Lidl commercial

Available at:

https://www.youtube.com/watch?v=JaoVLC29eDk


Cited in: §136

Lindt & Sprüngli I Lindt & Sprüngli Farming Program, Verification Guidance

Document, August (2016)

Available at: http://www.lindt-

spruengli.com/fileadmin/Global_content_all_access/Sustainab

ility_Corporate/L_S_Verification_Guidance_Document_FINA

L.PDF (consulted on 23 October 2017)

Cited in: §127


CI

Lindt & Sprüngli II Lindt & Sprüngli Supplier Code of Conduct

Available at:

http://www.rspo.org/acop/2014b/lindt-and-sprungli-ag/M-

Policies-to-PNC-laborrights.pdf (consulted on 7 November

2016)

Cited in: §117

Mars Def. Policy Mars Deforestation Policy (March 2014)

Available at: http://www.mars.com/docs/default-

source/default-document-library/deforestation-prevention-

policy.pdf?sfvrsn=0 (consulted on 19 October 2017)

Cited in: §117

Mars Inc. Mars Supplier Code of Conduct (March 2014)

Available at: http://www.mars.com/global/about-us/policies-

and-practices/pulp-and-paper-policy (consulted on 19 October

2017)

Cited in: §§117, 127

Migros commercial Migros commercial

Available at:

https://www.youtube.com/watch?v=e4fLlruoMzg&feature=y

outu.be (consulted on 6 November)

Cited in: §136

https://www.youtube.com/watch?v=e4fLlruoMzg&feature=youtu.be

https://www.youtube.com/watch?v=e4fLlruoMzg&feature=youtu.be


CII

Nestlé Nestlé Supplier Code of Conduct, December (2013)

Available at: https://www.nestle.com/asset-

library/documents/library/documents/suppliers/supplier-

code-english.pdf (consulted on 22 October 2017)

Cited in: §§117, 127

Rainforest Cocoa Rainforest Alliance Certified Cocoa of 14 September (2014)

Available at: https://www.rainforest-

alliance.org/articles/rainforest-alliance-certified-cocoa (consulted on

3 November 2017)

Cited in: §127

Safefood commercial Safefood commercial

Available at: https://www.youtube.com/watch?v=-

pNqV7gq61M (consulted on 6 November 2017)

Cited in: §136

SAN Sustainable Agriculture Network Standard (2017)

Available at:

https://www.dropbox.com/s/hxwm1udqyha20c8/SAN-

Standard-2017.pdf?dl=0 (consulted on 2 November 2017)

Cited in: §129


CIII

SAN Certification Rules Sustainable Agriculture Network Certification Rules (2017)

Available at:

https://www.dropbox.com/s/dq4ah48itjjzfsn/SAN%20Certif

ication%20Rules.pdf?dl=0 (consulted on 3 November 2017)

Cited in: §131

Strong4Life commercial

Strong4Life Commercial

Available at:

https://www.youtube.com/watch?v=xUmp67YDlHY


Cited in: §136

Transparency Int. Transparency International, The global coalition against corruption,

Corruption Perception index (2016)

Available at:

https://www.transparency.org/news/feature/corruption_per

ceptions_index_2016 (consulted on 24 November 2017)

Cited in: §143

Unilever Unilever Sustainable Agriculture Code (2016)

Available at: https://www.unilever.com/Images/ul-sac-v1-

march-2010-spread_tcm244-464943_en.pdf (consulted on 17

November 2017)

Cited in: §116


CIV

UTZ Certification Protocol UTZ Certification Protocole, Version 4.1(2016)

Available at: https://utz.org/wp-

content/uploads/2015/12/EN_UTZ_Certification-

Protocol_v4.1_2015.pdf (consulted on 5 November 2017)

Cited in: §131

UTZ Cocoa UTZ Website Cocoa

Available at: https://utz.org/what-we-

offer/certification/products-we-certify/cocoa/ (consulted on 6

November 2017)

Cited in: §127

Worldwide Governance

Indicators

Worldwide Governance Indicators

Available at:

http://info.worldbank.org/governance/wgi/#home


Cited in: §143

Memorandum for CLAIMANT Certificate

CV

CERTIFICATE

We hereby certify that this Memorandum was written only by the persons whose names are listed below

and who signed this certificate:

Geneva, 7 December 2017,

Lilia BENKARA Anna DEVINE Elisabeth EVERSON

Sajika RATNAM Klara VODNANSKA Vera WALDBURGER