Memorandum for Claimant - GENEVA - Pace Universitycisgw3.law.pace.edu/cisg/moot/claimant21-2.pdf · twenty first annual willem c. vis international commercial arbitration moot vienna,

TWENTY FIRST ANNUAL

WILLEM C. VIS INTERNATIONAL COMMERCIAL ARBITRATION MOOT

VIENNA, APRIL 11TH – 17TH 2014

MEMORANDUM FOR CLAIMANT

UNIVERSITY OF GENEVA

On behalf of:

Innovative Cancer Treatment Ltd.

CLAIMANT

46 Commerce Road

Capital City, Mediterraneo

Against:

Hope Hospital

RESPONDENT

1-3 Hospital Road

Oceanside, Equatoriana

ADILA ABDIESKI • ROXANE ALLOT • MELANIA ARGINTEANU

LEONARDO JELMINI • ASTRID KELLER • NICOLA KLEINJOHANN

Memorandum for CLAIMANT Table of Contents

II

TABLE OF CONTENTS

TABLE OF CONTENTS .......................................................................................................... II

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

INTRODUCTION .................................................................................................................. 3

ISSUE I: THE TRIBUNAL HAS JURISDICTION TO DEAL WITH THE PAYMENT CLAIMS

RAISED BY CLAIMANT ........................................................................................................ 4

I. THE TRIBUNAL HAS JURISDICTION TO HEAR THE CLAIM ARISING UNDER THE FSA ... 4

A. The Parties Agreed on Arbitration ....................................................................... 4

B. The Appeal and Review Mechanism under Art. 23(4) FSA Does Not Invalidate the Arbitration

Agreement .................................................................................................. 5

1. The AR mechanism is compatible with the Model Law ........................................... 6

a. “Obviously wrong decision in law” has to be interpreted as shorthand for “breach of

public policy” [Art. 34(b)(ii) Model Law] ...................................................... 7

b. “Obviously wrong decision in fact” has to be interpreted as shorthand for “the party was

unable to present his case”[Art. 34(2)(a)(ii) Model Law] ..................................... 7

2. Alternatively, an overly broad AR mechanism would neither invalidate the Parties’

common intent to arbitrate nor the arbitration clause itself ...................................... 8

C. The Unilateral Right of One Party to File Suit in Front of a National Court Does Not Invalidate

the Arbitration Clause ..................................................................................... 9

II. THIS TRIBUNAL HAS JURISDICTION TO HEAR THE CLAIM ARISING UNDER THE SLA .. 9

A. The Arbitration Agreement Contained in the FSA Covers the SLA Claim ........................ 9

1. The claim arising out of the SLA falls within the scope of the arbitration clause in the FSA . 9

2. The dispute resolution clause in the SLA does not replace the arbitration agreement

contained in the FSA .................................................................................. 11

B. Alternatively, the Tribunal Has Jurisdiction According to the Arbitration Agreement

Contained in the ST 2011 ................................................................................ 11

1. The arbitration clause contained in the ST 2011 has been validly included in the SLA ...... 12

2. Art. 23(2) SLA does not replace the arbitration agreement contained in the ST 2011 ...... 13


III

ISSUE II: THE TRIBUNAL SHOULD HEAR BOTH CLAIMS IN A SINGLE ARBITRATION . 14

I. THE TRIBUNAL IS ENTITLED TO JOIN THE CLAIMS GOVERNED BY THE ARBITRATION

CLAUSE CONTAINED IN THE FRAMEWORK AGREEMENT .................................... 14

A. Art. 10(1), § 1 CEPANI Rules Enables the Tribunal to Join the FSA and SLA Claims ......... 14

B. The Scope of the Parties’ Arbitration Agreement Allows a Single Proceeding ................... 15

C. Different Laws Applicable to the Contracts Do Not Fetter a Single Arbitration ................. 16

D. The Composition of the Tribunal Complies with the Will of the Parties ......................... 16

E. In Addition, the Consideration of Other Relevant Circumstances for Good Administration of

Justice Should Lead the Tribunal to Join the Claims ................................................. 17

1. A single arbitration proceeding avoids conflicting awards ....................................... 17

2. A single arbitration promotes efficiency ............................................................ 18

II. ALTERNATIVELY, THE TRIBUNAL IS ENTITLED TO JOIN THE CLAIMS PURSUANT TO

DIFFERENT ARBITRATION AGREEMENTS ........................................................... 19

A. The Arbitration Agreements Are Compatible ........................................................ 19

B. The Matters Under the FSA and SLA Are Related ................................................... 20

ISSUE III: THE CISG GOVERNS THE CLAIM ARISING UNDER THE SALES AND LICENSING

AGREEMENT ....................................................................................................................... 20

I. THE SLA CONSTITUTES AN INTERNATIONAL SALE OF GOODS CONTRACT ............. 20

A. The SLA Constitutes an International Sale Contract ................................................. 21

1. The Parties wanted and concluded a sale contract ................................................ 21

2. The right to use the software under the SLA does not preclude its qualification as a sale

contract ................................................................................................. 21

3. The substantial part of the materials necessary to produce the software was provided by

CLAIMANT [Art. 3(1) CISG] ............................................................................ 22

a. RESPONDENT’s contributions to the development of the technology are not "materials

necessary for production" ........................................................................ 22

b. In any event, the materials provided by RESPONDENT did not represent a substantial part

of the materials necessary for the production of the software .............................. 23

4. The preponderant part of CLAIMANT’s obligations consisted of the supply of goods [Art. 3(2)

CISG] ..................................................................................................... 24


IV

a. As part of the production of the software, the testing and development are not services

in the sense of Art. 3(2) CISG ................................................................... 24

b. Services consisting of training and installation only represent 20.53% of the purchase

value ................................................................................................. 24

B. The SLA Is a Contract of The Sale of Goods .......................................................... 25

1. The equipment provided is a good in the sense of the CISG .................................... 25

2. The software provided is a good in the sense of the CISG ....................................... 25

a. Software is a tangible, movable good ........................................................... 25

b. In any event, the CISG allows for an extensive interpretation of the term “goods” ..... 26

II. THE ST 2011 HAVE BEEN VALIDLY INCORPORATED IN THE SLA ............................. 26

A. The ST 2011 Constituted Part of CLAIMANT’s Offer ................................................ 27

B. RESPONDENT’s Behaviour Entailed Its Full Acceptance of the ST 2011 ........................... 27

1. RESPONDENT signed the SLA without lodging any objections ................................... 27

2. RESPONDENT should have been aware about the content of the ST 2011 ..................... 28

a. CLAIMANT offered a reasonable opportunity to take notice of the ST 2011 .............. 28

b. In addition, RESPONDENT disposed of appropriate means that it should have used to

understand the ST 2011 .......................................................................... 29

i. RESPONDENT could have consulted its Mediterranean speaking employee ............ 29

ii. RESPONDENT could have used other means of translation ............................... 30

iii. RESPONDENT could have contacted CLAIMANT for further inquiries .................... 30

3. Alternatively, RESPONDENT’s knowledge about the substance of the ST 2011 can be

reasonably presumed [Art. 8 CISG] .................................................................. 31

C. In Any Event, Art. 9 CISG Leads to the Valid Incorporation of the ST 2011 .................... 31

1. The Parties acted on the practice developed between themselves [Art. 9(1) CISG] ........... 31

2. The interpretation of international commercial usages leads to the incorporation of ST 2011

into the SLA [Art. 9(2) CISG] ......................................................................... 32

III. SEC. 22 ST 2011 CONTAINS A CHOICE OF LAW CLAUSE IN FAVOUR OF THE CISG ....................... 33

A. The SLA Is Subjected to the Law of Mediterraneo Including the CISG ........................... 33

B. Reference to the “Law of Mediterraneo” Does Not Lead to an Opting-Out of the CISG ...... 33

REQUEST FOR RELIEF ........................................................................................................ 35


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CERTIFICATE ...................................................................................................................... VI

TABLE OF AUTHORITIES ................................................................................................... VI

TABLE OF ARBITRAL AWARDS .................................................................................... XXIII

TABLE OF COURT DECISIONS ...................................................................................... XXVI

TABLE OF LEGAL SOURCES ........................................................................................ XXXVI

TABLE OF ABBREVIATIONS ...................................................................................... XXXVII

Memorandum for CLAIMANT Statement of Facts

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STATEMENT OF FACTS

CLAIMANT Innovative Cancer Treatment Ltd. [hereafter CLAIMANT], seated in

Capital City, Mediterraneo, is one of the leading manufacturers of particle

therapy equipment for cancer treatment.

RESPONDENT

Hope Hospital [hereafter RESPONDENT], seated in Oceanside, Equatoriana,

is a public university teaching hospital and the national centre for cancer

research.

11 January 2007

RESPONDENT approaches CLAIMANT to purchase a full proton therapy facility

to optimise its cancer treatment options.

4 November 2007 After intensive negotiations during several meetings, the Parties agree on a

dispute resolution clause including an arbitration clause.

13 January 2008 The Parties sign the Framework and Sales Agreement [hereafter FSA].

RESPONDENT purchases a proton therapy facility consisting of one proton

accelerator and two treatment rooms using a passive-beam scattering

technique for a purchase price of USD 50 Mio.

The negotiated arbitration clause contained in the FSA provides for a multi-

tiered proceeding and an appeal and review mechanism [hereafter AR

mechanism]. The FSA also contains an alternative jurisdiction provision and

incorporates by reference CLAIMANT’s Standard Terms and Conditions for

Sale 2000 [hereafter ST 2000].

15 April 2010 The proton therapy facility purchased under the FSA is completed.

May 2011 The Parties reopen negotiations for the purchase of a third treatment room

using a new active scanning technology. RESPONDENT was already interested

in buying it in 2008. Due to some budget constraints, RESPONDENT was

unable to buy the new technology at that time.

One of RESPONDENT’S employees, a young Mediterranean speaking doctor,

takes part in the negotiations between the Parties. He communicates in

Mediterranean with CLAIMANT’s technicians.

2 June 2011 During the last meeting of the negotiations, CLAIMANT informs RESPONDENT

about the overhaul of its ST 2000.

5 July 2011 By an official letter enclosing the draft of the negotiated contract, CLAIMANT

Memorandum for CLAIMANT Statement of Facts

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reminds RESPONDENT about the change of its ST 2000. It states that the new

Standard Terms and Conditions for Sale 2011 [hereafter ST 2011] will apply

to all contracts concluded from the beginning of July 2011.

The footer of the letter contains a website link leading to the ST 2011 and an

e-mail address in case of questions. The website provides a phone number for

the same purpose. Sec. 22 ST 2011 contains a choice of law clause in favour of

the “law of Mediterraneo”.

20 July 2011 The Parties sign the Sales and Licensing Agreement [hereafter SLA].

RESPONDENT purchases a third treatment room using an active scanning

technology for the existing proton therapy facility.

The purchase consists of the equipment of the treatment room and its

installation, the software necessary to use the technology and training of

RESPONDENT’s personnel. Despite the purchase market value of USD 9.5

Mio, CLAIMANT grants a considerable discount to RESPONDENT and fixes the

final price at USD 3.5 Mio. In exchange, RESPONDENT supplies medical data

and supports the testing of the software, which contributes to its

development.

13 January 2012 The third treatment room becomes available.

15 August 2012 RESPONDENT notifies CLAIMANT of its decision to withhold payment of USD

10 Mio under the FSA and USD 1.5 Mio under the SLA.

6 June 2013 CLAIMANT files a Request for Arbitration [hereafter R.A.] before the Belgian

Centre for Arbitration and Mediation covering the two outstanding payments

under both contracts.

5 July 2013 RESPONDENT files an Answer to Request for Arbitration [hereafter A.R.A.]

contesting the jurisdiction of the Arbitral Tribunal and arguing the lack of

merits.

Memorandum for CLAIMANT Introduction

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INTRODUCTION

People find strength in unity. Hand in hand, the Parties started their cooperation with the vision of

optimising and developing treatment options for curing cancer. In order to achieve this goal, they

concluded two contracts focusing on the latest, cutting-edge cancer treatment technology: the proton

therapy. The cooperation went perfectly well for several years until RESPONDENT withheld the outstanding

payments under both contracts. Regarding the first contract, RESPONDENT’s only reason to do so was that

the facility did not run on zero cost and was thus not profitable for RESPONDENT. Regarding the technology

purchased under the SLA, RESPONDENT alleged that the software for the new technology was working

inaccurately. This came as a surprise for CLAIMANT, since other buyers of the very same technology

supplied by CLAIMANT were highly pleased therewith.

RESPONDENT left CLAIMANT no choice but to resort to arbitration. Although the Parties agreed on

an arbitration clause in a framework agreement, governing the claims under both contracts, the

proceedings are stuck because RESPONDENT does not recognise the jurisdiction of the Tribunal and thus

slows down the proceedings (Issue I).

CLAIMANT offers to join the claims in a single proceeding to save efforts, time and money. The

Parties could invest these savings in the fight against cancer. But RESPONDENT, once again, challenges this

quicker way of arbitration (Issue II).

Finally, by signing their second contract, the Parties agreed on the application of CLAIMANT’s ST

2011, which contain a choice of law clause leading to the application of the CISG. The SLA is an

international contract of sale of goods. As a practical and well-known international instrument, the CISG

was the perfect match for the Parties at the time of the conclusion of the SLA. Nevertheless, RESPONDENT

erroneously denies the valid incorporation of the ST 2011 and tries to challenge the application of the

CISG (Issue III).

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Memorandum for CLAIMANT Arguments

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ISSUE I: THE TRIBUNAL HAS JURISDICTION TO DEAL WITH THE PAYMENT CLAIMS

RAISED BY CLAIMANT

The Tribunal is respectfully requested to find that it has jurisdiction under the arbitration clause contained

in the FSA [Cl. Ex. 2]. The lex arbitri governing the arbitration is the UNCITRAL Model Law [hereafter

Model Law], adopted by Danubia, seat of the Tribunal [R.A., § 20; PO1, § 3; cf. Born, Law and Practice,

p. 105]. According to the Kompetenz-Kompetenz principle, this Tribunal has the authority to decide on its

own jurisdiction [Born, Commercial Arbitration, p. 855-856; Redfern et al., International Arbitration, § 5.99].

Such principle is codified in Art. 16(1) Model Law as well as in Art. 12(1) CEPANI Rules, the applicable

procedural rules [Art. 23(3) FSA, Cl. Ex. 2; R.A., § 20].

It will be demonstrated that the Tribunal has jurisdiction regarding both the claim arising under the

FSA (I.) and the claim arising under the SLA (II.).

I. THE TRIBUNAL HAS JURISDICTION TO HEAR THE CLAIM ARISING UNDER THE

FSA

An arbitral tribunal bases its jurisdiction only on a valid arbitration agreement [Craig/Park/Paulsson, § 5.01;

Kaufmann-Kohler, § 189a; Redfern et al., International Arbitration, § 5.85-5.87; Redfern/Hunter, Law and

Practice, § 1-13].

In RESPONDENT’s view, it is not clear what type of dispute resolution the Parties have agreed upon.

RESPONDENT particularly maintains that the appeal and review mechanism on the one side, and the forum

selection clause, on the other, invalidate the arbitration agreement [A.R.A., § 4-9].

It will be shown that, contrary to RESPONDENT’s allegations, both Parties validly consented to

arbitrate (A.). Neither the right to challenge the award as framed by the Parties in the arbitration clause

(B.) nor the unilateral right granted to one Party to sue the other before national courts (C.) has any

impact on the validity of the arbitration agreement.

A. THE PARTIES AGREED ON ARBITRATION

It is undisputed fact that the Parties signed a contract containing an arbitration clause [Art. 23 FSA, Cl. Ex. 2]

providing that “all disputes arising out of or in connection with this Agreement (1) […] shall become

subject to arbitration. It [the arbitration] shall take place in Vindobona, Danubia (3)”. Such clause satisfies

all the requisite conditions to constitute a valid arbitration agreement. Indeed, the parties and the scope of

the arbitration are determined, the intent to arbitrate is manifestly expressed and the seat is chosen [Born,

Law and Practice, p. 35; Kaufmann-Kohler, § 166]. By signing a contract containing such a clause, the Parties

must to be considered to have reached an agreement over arbitration as their relevant dispute-settling

mechanism [Preliminary Award in ICC Case No. 2321/1974; Born, Commercial Arbitration, p. 662].

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The wording of Art. 23 FSA highlights that the Parties’ intention was to submit any dispute arising

out of their contractual relationship to arbitration. In this respect, courts have repeatedly stated that

whenever the interpretation of arbitration agreements and of the parties’ intention give rise to doubts, an

interpretation in favour of arbitration is to be preferred [Mitsubishi Motors v. Soler Chrysler-Plymouth; Moses H.

Cone Memorial Hospital v. Mercury; cf. Born, Commentary, p. 433]. In fact, arbitration is a system especially

known for its adaptability to the particularities of the business world [Kaufmann-Kohler, § 12].

Additionally, a widely accepted principle of contract law posits that guidance as to the actual

intention and expectation of one party may be inferred from its post-contractual behaviour, including

subsequent statements [Hanotiau, Consent to Arbitration, p. 546; Schwenzer/Hachem/Kee, § 26.38-26.43]. In

this respect, RESPONDENT’s subsequent conduct confirms that it intended to arbitrate. In fact,

RESPONDENT went through negotiation and mediation, the pre-steps leading to arbitration provided for in

the arbitration agreement [PO2, § 11]. RESPONDENT’s behaviour demonstrates its awareness of the

arbitration agreement’s applicability to the present dispute and emphasises its will to submit any arising

dispute to arbitration. Much to the contrary, RESPONDENT never showed any interest in a judicial litigation

mechanism.

Moreover, RESPONDENT itself now states that “one of the reasons why it agreed to arbitration […]

was the possibility of selecting its own arbitrator on the basis of the expertise required for a case” [A.R.A.,

§ 14]. This language underlines that RESPONDENT had carefully planned and deliberately selected

arbitration to enjoy the benefits it would offer. Besides, the Parties negotiated and agreed on the

arbitration clause and the AR mechanism together [Cl. Ex. 3; A.R.A., § 5; PO2, § 9]. As a consequence,

RESPONDENT cannot invoke the fact that it never consented to arbitration.

In conclusion, arbitration undoubtedly appears to have been RESPONDENT’s primary choice for the

settlement of any dispute.

B. THE APPEAL AND REVIEW MECHANISM UNDER ART. 23(4) FSA DOES NOT INVALIDATE THE

ARBITRATION AGREEMENT

Art. 23(4) FSA stipulates that “each Party has the right within three months after it has received the award

to refer the case to the applicable state courts if it considers the award to be obviously wrong in fact or in law”.

RESPONDENT is of the view that, due to the breadth of the AR mechanism, such section is

incompatible with the principle of arbitration and casts doubt on the very intention of the Parties to

arbitrate. It also considers that the invalidity of the AR mechanism would render the whole arbitration

agreement invalid [A.R.A., § 7-8].

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This Tribunal should dismiss RESPONDENT’s contention. It will be demonstrated that the AR

mechanism is of a limited scope and thus fully compatible with the Model Law (1.). In any event, should

the Tribunal consider the AR mechanism overly broad, this conclusion would neither affect the Parties’

common intent to arbitrate nor the arbitration clause itself (2.).

1. The AR mechanism is compatible with the Model Law

The right to challenge an award on limited grounds in front of state courts is accepted worldwide [Lesotho

Highlands Development Authority v. Impregilo; Born, Commercial Arbitration, p. 2552; Liebscher, p. 7-12; Park,

p. 595; Redfern et al., International Arbitration, § 10.28-10.30]. In each case, the grounds for challenging the

award are encoded in the lex arbitri of the seat of the tribunal [cf. Kaufmann-Kohler, § 796-847; Art. 1704,

§ 2(a) BJC (BE); Art. 192 LTF (CH); Art. 1504 CCP (FR); Art. 67 EAA (UK)]. Accordingly, whether an AR

mechanism is enforceable has to be decided in the light of the applicable lex arbitri. The majority opinion

considers that the parties cannot extend the grounds for appeal and review provided by the lex arbitri, as

these grounds represent an absolute prerogative of the state [Hall Street Associates v. Mattel; LaPine Technology

v. Kyocera; Prime Therapeutics v. Omnicare; Hanotiau/Caprasse in Gaillard, p. 85].

The lex arbitri at hand, i.e. the UNCITRAL Model Law, provides for grounds to challenge the award

as failure to comply with due process [Art. 34(2)(a)(ii) Model Law] or a breach of public policy

[Art. 34(2)(b)(ii) Model Law]. These provisions are mandatory [UNCITRAL Digest of Case Law, Art. 34, p. 142].

As a consequence, the parties cannot envisage a broader review of their award, notably regarding the facts

or the merits. Art. 23(4) FSA provides the right to challenge the award in case of “obviously wrong

decisions in fact or in law”.

It is widely accepted that the arbitration clause should be interpreted in a way that gives sense to it

rather than leaving it meaningless [ICC Case No. 1434/1975; Fouchard/Gaillard/Goldman, § 478]. Therefore,

the Tribunal should go beyond the wording of Art. 23(4) FSA and foremost look for the Parties’ true

intention, which prevails over their declared intention [CEPANI Award No. 2112; ICSID Award, 25 Sept 1983;

Fouchard/Gaillard/Goldman, § 477; Steingruber, p. 120]. In point of fact, Art. 23(4) FSA was drafted by non-

lawyers [PO2, § 10], who presumably were not familiar with the wording of the Model Law. Indeed, as

CLAIMANT’s ST 2000 did not allow any appeal against an award [Sec. 21 ST 2000, Cl. Ex. 2], it is a

somewhat rash assumption that CLAIMANT had a particular experience in drafting one.

As a matter of fact, RESPONDENT insisted on being offered the possibility to appeal the award

[A.R.A., § 5; Cl. Ex. 3; PO2, § 9]. RESPONDENT’s presumable intention was to comply with a national

directive, providing that “government entities must not forego the right of review of manifestly erroneous

decision” [Re. Ex. 1]. Accordingly, CLAIMANT complied with this wish and inserted an AR mechanism in

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case of “obviously wrong decisions” [Cl. Ex. 3]. Any reasonable third person could only understand these terms

as limiting the challenge to restrictive grounds, almost confined to the arbitrary and not as a

comprehensive review [cf. ICSID Award, 25 Sept 1983]. Due to its limited character, the reference to an

“obviously wrong decision in fact or in law” is not to be regarded as an additional standard of review but

only as referring to some of the grounds mentioned by the Model Law.

Accordingly, it should be presumed that the Parties’ intention was to establish a valid appeal

mechanism, compatible with the Model Law. It will be shown that, even if the wording used by the Parties

does not exactly correspond to the Model Law, Art. 23(4) FSA conforms to the latter.

a. “Obviously wrong decision in law” has to be interpreted as shorthand for “breach of public

policy” [Art. 34(b)(ii) Model Law]

According to Art. 34(b)(ii) Model Law, an award can be challenged in case of violation of public policy. A

manifest disregard of the mandatory law of the state of appeal could constitute a violation of public policy

[BGE, 25 July 1990; Desputeaux v. Editions Chouette; Born, Commercial Arbitration, p. 2623; Redfern et al.,

International Arbitration, § 10.82]. This ground for appeal is designed to refuse recognition of “arbitrary or

patently unreasonable decisions” [Uniprex v. Grupo Radio Blanca]. In Oil & Natural Gas v. SAW Pipes, the Indian

Supreme Court held that an arbitral award which violates any substantive law governing the parties is

“patently illegal” and contrary to “public policy”. Accordingly, “obviously wrong decision in law” should be

understood as substantially synonymous with the language used in Art. 34(b)(ii) Model Law which

provides for a ground for appeal when “the award violates public policy”.

b. “Obviously wrong decision in fact” has to be interpreted as shorthand for “the party was

unable to present his case”[Art. 34(2)(a)(ii) Model Law]

According to Art. 34(2)(a)(ii) Model Law, an award can be challenged if a party was denied the

opportunity to present its case. This ground is also commonly referred to as “violation of the right to be

heard” and encompasses the duty of the adjudicators to ensure equal treatment [Born, Commercial Arbitration,

p. 2631; Fouchard/Gaillard/Goldman, § 1654; Redfern et al., International Arbitration, § 10.47]. Courts have

stated that the right to be heard entitles the parties to express their views both in relation to facts and law

and forbids the tribunal to base its decision on materials unknown to the parties [BGE, 27 Jan 2013; OLG

München, 14 Mar 2011; Liebscher, p. 244-272]. Decisions based on arbitrary findings of evidence without

taking into account a party’s submission are held to violate the right to be heard and, as a consequence, are

subject to review [OLG München, 29 Oct 2009; OLG Bayern, 15 Dec 1999]. In the case at hand, “obviously

wrong decision in fact” could reasonably mean the wrong establishment of facts in violation of one party’s

right to be heard, which is synonym to “the party […] was […] unable to present his case” in

Art. 34(2)(a)(ii) Model Law.

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In conclusion, following the Parties’ intention, Art. 23(4) FSA is of a limited scope and thus entirely

compatible with the Model Law. As a consequence, it does not affect the validity of the arbitration

agreement.

2. Alternatively, an overly broad AR mechanism would neither invalidate the Parties’

common intent to arbitrate nor the arbitration clause itself

In any event, the Tribunal should consider the Parties’ original intention to submit their potential disputes

to arbitration, regardless of the extent of the AR mechanism’s scope. As demonstrated above, the Parties’

intention to arbitrate was strongly expressed from the very beginning [cf. supra § 10-14]. This intention is

not invalidated by the mere fact that the scope of a hypothetical appeal would differ from the one provided

by them.

When determining whether an extensive AR mechanism results in invalidating the entire arbitration

agreement, the parties’ intention to arbitrate prevails over a potentially pathological element of the clause

[Bowen v. Amoco Pipeline; LaPine Technology v. Kyocera; UHC Management v. Computer Science].

In the Bowen v. Amoco Pipeline case, the part of the arbitration clause determining the extent of the

AR mechanism was too broad and thus was held unenforceable. However, the tribunal pointed out that the

parties’ intent to arbitrate was to be preserved under any circumstances and it proceeded to a more limited

review of the arbitration award under the lex arbitri standards. In other words, the tribunal found that,

since the parties’ will to arbitrate prevailed, the nullity of one component of the clause did not lead to the

nullity of the entire arbitration agreement.

In the UHC Management v. Computer Sciences case, the appellant sought for a review under procedural

rules agreed upon by the parties. These rules contained broader grounds for appeal than the lex arbitri of

the state of appeal. The court did not consider itself bound by contractually expanded standards of review,

insisting on the independence of the arbitration process. Therefore, the court also reviewed the arbitration

award according to the lex arbitri standards.

The Tribunal is respectfully requested to follow the reasoning of the Bowen and UHC Management

cases. Based on the principle in favorem validitatis [CGB Marine Services v. M/S Stolt Entente], should the AR

mechanism as drafted by the Parties be considered overly broad, the review of the award would be limited

to the grounds provided by Art. 34 Model Law. This would neither invalidate the whole arbitration clause

nor the undeniable and strong intention of the Parties to submit their disputes to arbitration.

In conclusion, regardless of the extent of the scope of the AR mechanism, the Parties validly agreed

on arbitration.

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C. THE UNILATERAL RIGHT OF ONE PARTY TO FILE SUIT IN FRONT OF A NATIONAL COURT DOES

NOT INVALIDATE THE ARBITRATION CLAUSE

RESPONDENT further alleges that the invalidity of the arbitration agreement results from CLAIMANT’s

alternative option to bring payment claims before national courts whereas RESPONDENT does not benefit

from this option [A.R.A., § 9]. The fact that only one party may choose between arbitration and litigation

before national courts while the other one is obliged to resort to arbitration does not invalidate the

arbitration agreement [BGH, 18 Dec 1975; Becker Autoradio v. Becker Autoradiowerk, note 15; Law Debenture

Trust v. Elektrim Finance B.V. et al.; cf. BGH, 10 Oct 1991; Berger/Kellerhals, § 460].

The Parties negotiated and agreed on this arrangement [Cl. Ex. 3]. When CLAIMANT mentioned it

again in its letter of 15 November 2007, RESPONDENT failed to raise objections in due time [Cl. Ex. 3].

Thus, the Parties intended to confer such an option to CLAIMANT. Besides, as stated in the very same letter,

the primary reason for this choice consisted in the fact that CLAIMANT granted RESPONDENT the

convenience to pay by instalments. In return, CLAIMANT was offered the possibility to start proceedings

before national courts [Cl. Ex. 3]. Thus, RESPONDENT cannot allege that its optional right to choose is

unilateral since it is based on mutuality.

II. THIS TRIBUNAL HAS JURISDICTION TO HEAR THE CLAIM ARISING UNDER

THE SLA

The Tribunal is respectfully requested to find that it has jurisdiction to hear the payment claim arising

under the SLA. This conclusion flows from the fact that the SLA is subjected to the valid arbitration

agreement contained in the FSA (A.) or, alternatively, to the arbitration agreement contained in Sec. 21

ST 2011 (B.).

A. THE ARBITRATION AGREEMENT CONTAINED IN THE FSA COVERS THE SLA CLAIM

The arbitration agreement contained in Art. 23 FSA covers the claim arising out of the SLA. As a matter of

fact, disputes arising out of the SLA fall within the scope of the arbitration agreement contained in the FSA

(1.). Furthermore, Art. 23 SLA, i.e. the dispute resolution clause, only amends some parts of the dispute

resolution clause of the FSA but does by no means replace it (2.)

1. The claim arising out of the SLA falls within the scope of the arbitration clause in

the FSA

It is widely accepted that, in the absence of any indication to the contrary, an arbitration clause

encapsulated in a framework agreement is a sufficient indication of the parties’ will that this clause applies

to subsequent contracts [CA Paris, 31 May 2001; cf. Kia Motors v. Washington Armênio Lopes et al.; AC BCCI,

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60/1980; Berger/Kellerhals, § 477; Born, Commercial Arbitration, p. 1110; Fouchard/Gaillard/Goldman, § 520;

Lew/Mistelis/Kröll, § 7-44, 7-45; Pryles/Waincymer, p. 489;].

As stated in the heading of the contractual document, the FSA is a framework agreement. The Parties

laid down this purpose in their recitals indicating that the FSA “is intended to cover the initial purchase [...]

as well as the further cooperation of the Parties in its use and further development” [Preamble FSA, § 5,

Cl. Ex. 2]. An extension of the facility through the use of the active scanning technology was explicitly

contemplated [Preamble FSA, § 4, Cl. Ex. 2]. The SLA itself mirrors this structure and supports this

interpretation. Its preamble refers expressly to the FSA as its framework [Preamble SLA, § 5, Cl. Ex. 6].

This wording reflects the Parties’ intention. During the negotiations for the first purchase, the

Parties had already intensively discussed the purchase of the active scanning technology, which was

purchased under the SLA later on [R.A., § 9-10; Preamble FSA, § 4, Cl. Ex. 2; Cl. Ex. 4; Re. Ex. 2]. Facing

budget constraints, RESPONDENT was unable to purchase this technology at the time of concluding the first

contract, i.e. the FSA. Though, to quote RESPONDENT’s genuine words, the first purchase represented

“just a first step”. RESPONDENT aimed for a further use of the proton therapy facility for “the treatment of

all kinds of cancer with the most up-to-date proton therapy options available” [Re. Ex. 2].

Additionally, the fact that the contracts were technically connected called for a framework

agreement. CLAIMANT designed and manufactured the proton therapy facility “in such a way that allow[ed]

for the addition of up to two more treatment rooms” [Cl. Ex. 3]. That is why the new active scanning

technology purchased under the SLA depends largely on the existing facility, i.e. the proton beam

accelerator [Art. 2 SLA, Cl. Ex. 6]. RESPONDENT itself admits that the “termination of the FSA also made the

SLA obsolete” and that “without the Proton Therapy Facility, the newly developed active scanning

technology under the SLA was completely useless” [A.R.A., § 23]. Due to the technical relatedness of the

contracts, apparent from the outset of their relationship, the Parties concluded a framework agreement to

be applicable to all of their contracts in relation to the proton therapy facility.

Moreover, it must be pointed out that the scope of the valid arbitration agreement [cf. supra § 30]

contained in the FSA covers the claims arising under the SLA. First, as stated in Art. 23(1) and (3) FSA, the

arbitration clause refers to disputes arising under “this Agreement”. This wording specifies the legal

relationship covered by the arbitration agreement [cf. Kaufmann-Kohler, § 168]. Art. 1 FSA defines the term

“Agreement” designating the whole “Framework and Sales Agreement” [Cl. Ex. 2]. In view of the FSA’s

nature as a framework agreement, its scope has to be intended as encompassing and covering the claims arising

out of the SLA.

In the light of the foregoing, the wording and the Parties’ intention appear unambiguous and

indisputable: the FSA is a framework agreement and the claim under the SLA falls within the scope of the

arbitration agreement in Art. 23 FSA.

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2. The dispute resolution clause in the SLA does not replace the arbitration agreement

contained in the FSA

Since CLAIMANT intended to acknowledge the important contribution made by RESPONDENT in developing

and testing the active scanning technology, it agreed to amend the dispute resolution clause as formulated

in the FSA [R.A., § 21]. Yet, it did not aim to replace it. RESPONDENT incorrectly alleges that Art. 23 SLA

is contrary to Art. 23 FSA and that the former, pursuant to Art. 45 FSA, supersedes the latter [A.R.A.,

§ 11].

Art. 45 FSA takes into account the nature of the FSA as a framework agreement and states, rather

unsurprisingly, that “the provisions of this Agreement shall also govern all further and future contracts [...]

where such contracts do not contain a specific provision to the contrary”. This wording is self-explanatory.

If the Parties intended to replace the arbitration agreement of the FSA, they would have drafted a specific

provision to the contrary. Though, Art. 23 SLA does not constitute such a provision. In point of fact, Art.

23(1) and (2) SLA amend other sections of Art. 23 FSA, namely Art. 23(5) FSA on the forum selection

clause for the provisional urgent measures and Art. 23(6) FSA on the alternative jurisdictional clause.

The mere introduction of some amendments shows the Parties’ intention to modify only specific

points of their dispute resolution agreement, and not to replace it, as RESPONDENT misapprehends. Even

RESPONDENT’s subsequent conduct leads to the same conclusion: it complied with the multi-tier

arbitration clause [Art. 23(1), (2) FSA, Cl. Ex. 2; PO2, § 11]. Thus, RESPONDENT’s conduct is at odds with its

allegation to not have understood Art. 23(1) and (2) SLA as mere amendments but as a new dispute

resolution mechanism replacing the one from the framework agreement.

Hence, the arbitration clause contained in the FSA was not replaced and fully applies to the SLA.

B. ALTERNATIVELY, THE TRIBUNAL HAS JURISDICTION ACCORDING TO THE ARBITRATION

AGREEMENT CONTAINED IN THE ST 2011

Should the Tribunal find that the arbitration agreement contained in the FSA does not govern the SLA

claim it is then respectfully requested to hear and adjudicate upon it according to the arbitration agreement

contained in the ST 2011.

Sec. 21 ST 2011 contains all the essential elements necessary for a valid arbitration agreement

[cf. Kaufmann-Kohler, § 166]. The chosen seat of the arbitration is Capital City, Mediterraneo, and the lex

arbitri of Mediterraneo is a verbatim adoption of the Model Law [Sec. 21 ST 2011, Cl. Ex. 9; PO2, § 13;

cf. supra 5]. Further, the arbitration clause states that any disputes should be decided under CEPANI Rules

for Arbitration. It will be demonstrated that this arbitration clause was validly included in the SLA (1.) and

that the jurisdiction clause contained in Art. 23(2) SLA does not replace the arbitration agreement but

provides solely for an alternative possibility of dispute resolution (2.).

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1. The arbitration clause contained in the ST 2011 has been validly included in the SLA

The incorporation of an arbitration clause by reference is explicitly recognised by Art. 7(6) Model Law if

“the reference is such as to make that clause part of the contract”. This is the case here, since the formal and

substantive requirements are fulfilled.

The formal requirement is complied with if the arbitration clause is made in writing [Art. 7(2)

Model Law; Art. II(2) NYC]. If the arbitration agreement is not contained in the main contract, this contract

has to contain a written reference to the document encapsulating the arbitration agreement [Binder, § 2-

073; Schramm/Geisinger/Pinsolle in Krone et al., p. 87-92; Wolff in Wolff, § 136-139]. The fact that the

reference does not explicitly mention the arbitration agreement does not affect its valid incorporation

[Born, Commentary, p. 321; Born, Commercial Arbitration, p. 702-703; Fouchard/Gaillard/Goldman, § 496]. In

the present case, Art. 46 SLA provides a written reference to CLAIMANT’s ST 2011 which contain a

written arbitration clause in their Sec. 21 [Cl. Ex. 9]. The formal requirement is therefore complied with.

The substantive requirement is fulfilled if the parties were or should have been aware of the

existence of an arbitration clause and if they consented thereto [Berger/Kellerhals, § 436-442; Born,

Commercial Arbitration, p. 697-703; Poudret/Besson, § 213-214; The same approach is taken under Art. II(2) NYC:

Hamburg Commedity Exchange, 14 Mar 1994; Schramm/Geisinger/Pinsolle in Krone et al., p. 90-93].

Firstly, RESPONDENT knew or should have known that the ST 2011 contained an arbitration

agreement. Even though Art. 46 SLA does not explicitly mention the arbitration clause contained in the ST

2011, RESPONDENT was fully aware of its existence. The fact that RESPONDENT did not possess the

document itself is irrelevant [cf. Schramm/Geisinger/Pinsolle in Krone et al., p. 92]. As a matter of fact, the

Parties concerted on the principle of arbitration from the very beginning of their relationship [cf. supra

§ 14; cf. Born, Commercial Arbitration, p. 700-703]. For the FSA, RESPONDENT agreed on the incorporation of

CLAIMANT’s ST 2000 in general but disagreed with the arbitration clause therein because of the lack of an

appeal mechanism [cf. supra § 20]. The Parties agreed on a new arbitration clause providing for such AR

mechanism [Art. 23 FSA, Cl. Ex. 2]. For the SLA, RESPONDENT knew that the changes in the ST 2011 were

related solely to the liability regime [Re. Ex. 2] and did not affect procedural issues. Therefore,

RESPONDENT should have known that an arbitration clause still remained in the ST 2011.

Secondly, RESPONDENT consented to the arbitration agreement in the ST 2011. This becomes

apparent when comparing its conduct during the negotiations for both contracts. When the Parties

negotiated the FSA in 2008, RESPONDENT’s only reason to object to the incorporation of the arbitration

clause contained in the ST 2000 was that it did not provide for an AR mechanism [Cl. Ex. 3]. Nevertheless,

the Parties had a strong will to arbitrate. They replaced Sec. 21 ST 2000 by the arbitration clause contained

in Art. 23 FSA and inserted the AR mechanism. Regarding the SLA, the incorporated ST 2011 contained

an arbitration clause mentioning the possibility to appeal. Any reasonable third person would assume that

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RESPONDENT agreed thereto since it did not raise any objections. Therefore, RESPONDENT’s conduct shows

its consent.

Thus, the arbitration clause is validly included in the SLA.

2. Art. 23(2) SLA does not replace the arbitration agreement contained in the ST 2011

Even though the SLA contains a jurisdiction clause giving authority to the national courts of Mediterraneo

it does not replace the arbitration clause of the ST 2011. In point of fact, parties have the possibility to

envisage different tracks of dispute resolution in a contract, which includes a combination of arbitration

and litigation [BGE, 17 Jan 2013; OLG Hamburg, 14 May 1999; BGH, 18 Dec 1975; Berger/Kellerhals, § 460;

Fentiman, § 2.66; Poudret/Besson, § 159]. Neither the Model Law nor the NYC contains any provision to the

contrary [Brekoulakis, p. 358]. The choice between arbitration and litigation requires the parties’ intention

[BGE, 17 Jan 2013; Friedland, p. 48] and the clauses in question have to be drafted in a way that excludes

parallel proceedings [AC BCCI 79/1993; cf. also Wais in Schütze/Tscherning/Wais, p. 53-54].

Firstly, it was the Parties’ intention to include both options in their contract. This is expressed in

the wording of Art. 23(2) SLA: “In addition, the Parties shall have the right [...]”. Since the courts of

Mediterraneo and Equatoriana were already the fora by default, the only reason for the inclusion of such a

clause into the SLA was to institute a choice between arbitration and litigation. Moreover, the Parties just

renewed their practice, already established under the FSA, to have a multi-track dispute resolution clause

[cf. supra § 31-32].

Secondly, Sec. 21 ST 2011 and Art. 23(2) SLA exclude parallel proceedings since the choice of

one party to have recourse to arbitration or jurisdiction is binding upon the other. Sec. 21 ST 2011 adopts

the “shall be” language. This wording is mandatory because it provides conclusive evidence of the Parties’

intention to submit their disputes to arbitration [cf. Lobb Partnership v. Aintree Racecourse Company; Born,

Forum Selection, p. 39]. Art. 23(2) SLA stipulates that if one party files a suit before the national courts, the

other party has to submit to its jurisdiction. Thus, the interplay between Sec. 21 ST 2011 and Art. 23(2)

SLA is designed to prevent potential conflicts regarding lis pendens.

Consequently, the jurisdiction clause in the SLA does not replace the arbitration agreement of the

ST 2011, but solely provides for an alternative to it. Hence, the Tribunal has jurisdiction according to

arbitration agreement contained in the ST 2011.

CONCLUSION: CLAIMANT respectfully requests the Tribunal to find that it has jurisdiction to hear the

claim under the FSA based on the arbitration agreement contained in Art. 23 FSA. With regards to the

claim arising under the SLA, the Tribunal has jurisdiction according to the same arbitration agreement, i.e.

Art. 23 FSA, or, alternatively, according to Sec. 21 ST 2011.

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ISSUE II: THE TRIBUNAL SHOULD HEAR BOTH CLAIMS IN A SINGLE ARBITRATION

The Tribunal is respectfully requested to join the claims arising out of the FSA and the SLA and address

them together in the present proceeding. According to Art. 12(1) CEPANI Rules read in conjunction with

Art. 10 CEPANI Rules, which refers to multi-contract arbitration, this Tribunal is empowered to rule on

both claims into a single arbitration.

RESPONDENT argues that the claims are legally and factually separate and are governed by different

laws, which excludes their being combined and adjudicated upon in a single arbitration [A.R.A., § 12]. It

also considers itself frustrated from its right to nominate two different arbitrators with regard to the

expertise required to properly determine each claim [A.R.A., § 13-14].

First and foremost, this Tribunal is entitled to join the claims pursuant to the arbitration clause

contained in the FSA (I.). Alternatively, the Tribunal is entitled to join the claims subject to two

arbitration agreements (II.).

I. THE TRIBUNAL IS ENTITLED TO JOIN THE CLAIMS GOVERNED BY THE

ARBITRATION CLAUSE CONTAINED IN THE FRAMEWORK AGREEMENT

The CEPANI Rules allow the Tribunal to join the claims arising out of the FSA and the SLA covered by the

arbitration agreement contained in the FSA (A.). A single arbitration is envisaged by the scope of the

Parties’ arbitration agreement (B.). Different substantive laws applicable to the contracts do not in any

way prevent such single proceeding (C.). The composition of the Tribunal complies with the will of the

Parties (D.). In addition, the interests of the good administration of justice indeed militate for the joinder

of claims (E.).

A. ART. 10(1), § 1 CEPANI RULES ENABLES THE TRIBUNAL TO JOIN THE FSA AND SLA CLAIMS

Art. 10(1), § 1 CEPANI Rules allows arbitrators to join multi-contract claims [Matray, § 112;

de Meulemeester/Verbist, § 222] without expressly mentioning that this is permissible when the claims are

covered by a single arbitration agreement, which is the case at hand. Yet, only the possibility to join the

claims governed by “various arbitration agreements” is expressly mentioned in Art. 10(1), § 2. The general

principle a maiore ad minus appears thus appropriate to interpret the ratio legis of Art. 10(1), § 1. If a single

arbitration is possible when multiple claims are brought under two arbitration agreements, a single

arbitration must necessarily be possible when the multiple claims are brought under a single arbitration

agreement. This interpretation is consistent with the CEPANI Rules’ aim to facilitate the conduct of

arbitral proceedings and settle multiple claims within a single arbitration [Calmo; de Meulemeester, The New

Arbitration Rules]. Even the new ICC Rules 2012 that both triggered and inspired the CEPANI Rules 2013

[Chochitaichvili; Kileste/Godin; Verbist, New Belgian Arbitration Law, p. 609; Verbist, New CEPANI Rules, p. 51]

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allow a single proceeding “irrespective of whether such claims are made under one or more than one

arbitration agreement” [Art. 9 ICC Rules]. This is notably the case when a framework agreement governs all

disputes arising out of multiple contracts [Voser, p. 795]. Accordingly, Art. 10(1), § 1 CEPANI Rules

should be read in the same spirit.

In the present case, the claims arise out of the FSA and the SLA. Both contracts are subject to the

arbitration agreement encapsulated in the framework agreement, i.e. Art. 23 FSA [supra § 35-40]. It

ensues that the Tribunal has the power to join the claims and adjudicate upon them in a single proceeding.

B. THE SCOPE OF THE PARTIES’ ARBITRATION AGREEMENT ALLOWS A SINGLE PROCEEDING

Since disputes are decided according to the procedure chosen by the parties, the Tribunal should

determine whether the arbitration agreement as framed by the parties actually allows a multi-contract

arbitration [Bond, p. 39; Born, Law and Practice, p. 231; Hanotiau, Complex Arbitrations, § 229; Mantilla-Serrano,

p. 25; Platte, p. 488]. As a matter of fact, if an award “contains decisions on matters beyond the scope of the

submission to arbitration”, its enforcement could be denied [Art. V.1.c NYC]. There is no such a risk in the

present case, as the existence of an arbitration clause in a framework agreement is considered to express

the parties’ will to join claims from multiple contracts [Fouchard/Gaillard/Goldman, § 520; Leboulanger,

p. 80; Matray, § 113].

In the current case, the Parties’ agreement does not expressly exclude a single proceeding. Equally, it

does not implicitly provide a limitation on the joinder of claims. On the contrary, it appears to encourage

it. The arbitration agreement’s scope embodied in the FSA refers to any “future cooperation” of the Parties

regarding the use and development of the proton therapy facility [Preamble FSA, § 5, Cl. Ex. 2]. The SLA is

designed in the same vein [Preamble SLA, § 5, Cl. Ex. 6]. Thus, by entering the framework agreement the

Parties envisaged to set up a procedural framework for their cooperation. The common intention to have their

controversies brought before, and decided together by the same tribunal was apparent from the outset of

their contractual relationship. If the Parties intended to have their disputes treated separately, the

conclusion of a framework agreement containing an arbitration agreement applicable to both contracts

would have lacked sense.

Furthermore, FSA and SLA are related [supra § 38]. This link between the contracts should be

reflected as well in the constitution of the Tribunal [cf. Leboulanger, p. 94].

Thus, a multi-contract arbitration falls within the scope of the Parties’ arbitration agreement

contained in the FSA and an award rendered in this respect would undoubtedly be enforceable under the

NYC. These considerations should encourage this Tribunal to join the claims.

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C. DIFFERENT LAWS APPLICABLE TO THE CONTRACTS DO NOT FETTER A SINGLE ARBITRATION

Due to different applicable laws to the contracts, RESPONDENT contests the joinder of claims in a single

arbitration [A.R.A., § 12].

RESPONDENT’s contention misconceives the widely acknowledged principle that different applicable

laws do not hinder a single multi-contract proceeding [ICC Case No. 5989/1989; Fry/Greenberg/Mazza, § 3-

245; Voser, p. 791; Whitesell/Romero, p. 16]. Such principle has been expounded in the well-known ICC

Case No. 5989/1989, § 4 where the tribunal held that the contended issue was not a question of

procedure but a question of merits. In this award, the tribunal refuted the lack of jurisdiction argument,

holding that the substantive laws governing the contract entered by the parties had no direct impact on

procedural issues and thereby no real significance in terms of whether or not a joinder should be allowed.

In the current case, the national law of Mediterraneo incorporating the UNIDROIT Principles

governs the FSA claim [PO2, § 4, 20], whereas the CISG governs the SLA claim [infra § 167]. This situation

does not reveal any obstacle to prevent the Tribunal from conducting a single arbitration. On the contrary,

both applicable laws reflect the international consensus in commercial trade [Bonell, p. 100] and are

generally known by arbitrators. In consequence, different applicable laws should not refrain this Tribunal

from joining the claims.

D. THE COMPOSITION OF THE TRIBUNAL COMPLIES WITH THE WILL OF THE PARTIES

“The composition of the arbitral authority [shall be] in accordance with the agreement of the parties”

[Art. V.1.d NYC]. The fact that the arbitrators fail to meet the qualifications provided for in the arbitration

agreement constitutes a ground to challenge an award [Born, Commercial Arbitration, p. 1556; Waincymer,

p. 309; Borris/Hennecke in Wolff, § 280, § 291; cf. also Art. 12(2) Model Law]. RESPONDENT asserts that “one

of the reasons why it agreed to arbitration […] was the possibility of selecting its own arbitrator on the

basis of the expertise required for a case. That would be frustrated if both cases were heard in a single

arbitration before the same Arbitral Tribunal” [A.R.A., § 14]. Should RESPONDENT try to prevent the

joinder of claims considering that it infringes the NYC, the Tribunal is requested to reach the opposite

conclusion since the case at hand does not generate a comparable risk.

At no point in time did the Parties agree on the arbitrators’ qualifications. The arbitration

agreement makes no reference to such qualifications. RESPONDENT should have foreseen that it might need

arbitrators knowledgeable of technical expertise in certain matters and ought to have insisted on having it

inserted in the contractual document.

Further, even if the claims are joined, RESPONDENT is not frustrated from exercising its right to

appoint an arbitrator possessing appropriate qualifications. With respect to the FSA claim, it has already

nominated Prof. Bianca Tintin, who is a lawyer and an accountant. RESPONDENT considers that the issue

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surrounding the SLA claim concerns the software’s performance and thus purports to nominate an

engineer, i.e. Ms Christina Arrango [A.R.A., § 3-4; PO2, § 19].

Nevertheless, instead of having two panels of arbitrators, it appears more appropriate to assign Prof.

Bianca Tintin for both claims and to refer the technical matters to an expert in the software engineering

field. The Parties deal in a peculiar commercial trade, due to the novelty of the software purchased via the

SLA. It is therefore hardly credible that a simple engineer possesses sufficient qualifications to assess the

suitability of the calibration software for the active scanning technology [A.R.A., § 13], as RESPONDENT

misbelieves. Further, RESPONDENT aims to terminate the FSA [A.R.A., § 20, 23]. Therefore, a lawyer

appears more appropriate to determine whether RESPONDENT is entitled to do so. Apart from technical

matters, the claim under the SLA turns around the question of applicable law to the merits and the valid

incorporation of the ST 2011 into the SLA. These questions are complex and require the understanding of

an arbitrator acquainted with legal concepts. Indeed, as a lawyer, Prof. Bianca Tintin could easily deal with

them. By contrast, it appears improbable that an engineer has the capacity to apprehend these issues.

It follows that the composition of this Tribunal when hearing the claims together complies with the

Parties’ will and respects the spirit of Art. V.1.d NYC.

E. IN ADDITION, THE CONSIDERATION OF OTHER RELEVANT CIRCUMSTANCES FOR GOOD

ADMINISTRATION OF JUSTICE SHOULD LEAD THE TRIBUNAL TO JOIN THE CLAIMS

By virtue of Art. 10(1), § 1 CEPANI Rules, the tribunal “may” hear the claims “in a single arbitration”. This

provides the tribunal with a wide discretion to consider “all relevant circumstances” when deciding

whether or not to join the claims [de Meulemeester, Multicontract Arbitration; cf. also Grierson/van Hooft, p. 122;

Mantilla-Serrano, p. 26; Voser, p. 797]. The fact of having same submissions and evidence to determine the

issues in dispute will reduce the risks of parallel, competing proceedings generating higher costs and

leading to conflicting awards [KBC v. Pentamina, § 21; Gilbert, § 22-38]. The Tribunal should conduct this

proceeding in a way that best satisfies the legitimate demands for “good administration of justice”, which is

the fundamental principle when ruling on joinder [Leboulanger, p. 54]. Allowing the joinder will prevent

conflicting awards (1.) and preserve procedural efficiency (2.).

1. A single arbitration proceeding avoids conflicting awards

The principle of good administration of justice requires the joinder of claims when this is necessary to

avoid conflicting decisions with respect to related matters [Leboulanger, p. 54-55]. On the contrary, the

outcome of parallel proceedings may result in inconsistency [Bishop, p. 140-141; Debourg, p. 226-231;

Pryles/Waincymer, p. 438; Rivkin, p. 271; Whitesell/Romero, p. 17].

The case at hand presents a high risk of conflicting awards should two different arbitral tribunals

decide the claims. RESPONDENT itself seeks termination of the FSA and admits that, should it succeed in

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doing so, the SLA will then become obsolete [A.R.A., § 23]. The inconsistency would then arise if one of

the tribunals allows RESPONDENT to terminate the FSA and to return the proton beam accelerator to

CLAIMANT, whereas the other tribunal orders RESPONDENT to pay the sum claimed by CLAIMANT for the

software purchased under the SLA. Since the software has no utility without the proton beam accelerator

purchased under the FSA [cf. A.R.A., § 23; PO2, § 22], it would not make sense to order RESPONDENT to

pay the remainder. The awards would be obviously conflicting and, as a result, they would defeat the

coherence of justice and worsen the Parties’ situation instead of offering a reasonable solution to their

disputes. Further, a single arbitration is desirable for a better understanding of the facts of the case [ICC

Case No. 5989/1989, § 5].

Consequently, a single arbitration is desirable in that it would effectively avert the threat of

inconsistency of the decisions. It will also meet the legitimate expectations of the Parties as reasonable

businessmen whose aim is to solve their controversies rather than aggravating them.

2. A single arbitration promotes efficiency

Another reason to admit a single proceeding includes efficiency, which refers to time and costs savings

[Born, Law and Practice, p. 221; Pryles/Waincymer, p. 485; Waincymer, p. 546].

The costs generated by a proceeding consist in the arbitration and parties’ costs. Arbitration costs

include fees and expenses of the arbitrators as well as administrative expenses of the secretariat [Art. 27(1)

CEPANI Rules]. Due to the regressive nature of the CEPANI Scale of the arbitration costs, a single

proceeding will allow important savings [Schedule I, § 1, CEPANI Rules, hereafter SCA/CEPANI]. Pursuant to

Sec. 1.1 and 1.2 SCA/CEPANI, on the basis of the amount claimed, i.e. USD 11.5 Mio, and considering a

single panel of three arbitrators [Sec. 5 SCA/CEPANI], the overall costs are of 185’007.98 Euros

[1 USD=0.755545 Euros, CEPANI’s letter to the Parties, 10 June 2013]. If two tribunals decide the claims, the

calculation leads to cumulated costs of minimum 215’916.55 Euros. Hence, a calculation on these bases

shows an increase of 16.70% of the arbitration costs if the claims were to be determined by two separate

tribunals.

The Parties’ costs include expenses incurred for their defence and the expenses relating to the

presentation of evidence [Art. 27(2) CEPANI Rules], as well as “internal costs including travelling, hotel costs

of counsel and witnesses” [Schedule II.1) CEPANI Rules]. These costs will double if the claims are not joined

and so will the fees for the submission of memorandums in hardcopy. Moreover, the Parties will have to

face duplication of transportation costs for each set of hearings. It is therefore reasonable to appraise a

considerable increase of Parties’ costs in case of separate arbitrations. Since RESPONDENT is a public

hospital, its interest to spend less money for the arbitration appears evident.

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As to timesaving, a single proceeding requires hearings of the parties and witnesses only once. As

demonstrated above, the fate of the SLA depends on the decision regarding the FSA. Hence, to set an

accurate factual frame, in case of two separate proceedings, the Tribunal would have to hear the same

witnesses twice.

Thus, a single arbitration will promote considerable economy of efforts, money and time.

II. ALTERNATIVELY, THE TRIBUNAL IS ENTITLED TO JOIN THE CLAIMS PURSUANT

TO DIFFERENT ARBITRATION AGREEMENTS

If the Tribunal considers that the claims are covered by two arbitration agreements, it should then join

them under Art. 10(2) CEPANI Rules. In this respect, as requested by Art. 10(1), § 2, a), the Parties “have

agreed to have recourse to arbitration under the CEPANI Rules”, which is undisputed [Art. 23 FSA, Cl. Ex.

2; Sec. 21 ST 2011, Cl. Ex. 9]. As requested by Art. 10(1), § 2, b), it will be demonstrated that the Parties

“agreed to have their claims decided within a single set of proceedings”. When analysing the Parties’

agreement on a single arbitration, the Tribunal should consider the presumptions [Hollander, p. 232;

de Meulemeester, Multicontract Arbitration] referring to the compatibility of the arbitration agreements

[Art. 10(2)] (A.) and the relatedness of the matters [Art. 10(3)] (B.). Further, the correct composition of the

Tribunal [supra § 71-75] and the principle of good administration of justice [supra § 76-84] should lead the

Tribunal to join the claims.

A. THE ARBITRATION AGREEMENTS ARE COMPATIBLE

Art. 10(2) CEPANI Rules posits that “differences concerning the applicable rules of law […] do not give

rise to any presumption as to the incompatibility of the arbitration agreements”. This provision deprives of

meaning RESPONDENT’s contention that different “rules of law” govern the FSA and the SLA.

In addition, the Tribunal should decide to adjudicate the claims into a single proceeding even if the

arbitration agreements provide for different seats of arbitration. Even though the Paris Court of Appeal

held in 2006 that different seats of arbitration render the arbitration agreements incompatible [CA Paris, 16

Nov 2006], there is no reason to apply this principle to the current case. In fact, although the seat of

arbitration for the FSA claim is in Danubia and the one for the SLA claim is in Mediterraneo, the content of

the lex arbitri is the same for each claim since the arbitration laws of Mediterraneo and Danubia are both a

verbatim adoption of the Model Law [PO2, § 13]. It could thus be inferred that the place of the seat of

arbitration is irrelevant for the Parties. For this reason, the different seats provided for by the arbitration

agreements do not entail their incompatibility.

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B. THE MATTERS UNDER THE FSA AND SLA ARE RELATED

Due to the relatedness of the matters, the Tribunal should also find that the Parties agreed on the joinder of

their claims. Interpreting Art. 10(3) CEPANI Rules a contrario, it could actually be inferred that related

matters presume the parties’ intention to have “their claims decided in a single set of proceedings”

[cf. Hollander, p. 233]. As demonstrated above, the contracts are related [supra § 38]. This relatedness

implicitly supports the agreement of the Parties to a single arbitration.

CONCLUSION: The Tribunal should join the FSA and SLA claims in a single arbitration. It is admissible

under the CEPANI Rules, respects the Parties’ will and promotes good administration of justice avoiding

inconsistent awards and serving procedural efficiency.

ISSUE III: THE CISG GOVERNS THE CLAIM ARISING UNDER THE SALES AND LICENSING

AGREEMENT

CLAIMANT respectfully requests the Tribunal to find that the CISG applies to the claim arising out of the

SLA. Firstly, the SLA constitutes an international sale of goods contract in the sense of the CISG (I.).

Secondly, the ST 2011, containing a choice of law clause, have been validly incorporated into the SLA

(II.). Thirdly, the choice of law clause contained in Sec. 22 ST 2011 leads to the application of the CISG to

the SLA (III.).

I. THE SLA CONSTITUTES AN INTERNATIONAL SALE OF GOODS CONTRACT

The Tribunal is respectfully requested to hold that the SLA is an international contract of sale of goods

falling within the scope of the CISG.

Under the SLA, the obligations of the Parties were as follows. CLAIMANT provided RESPONDENT

with a treatment room using active scanning technology for the existing proton treatment facility

purchased under the FSA [Art. 2 SLA, Cl. Ex. 6]. The delivery consisted of the software developed by

CLAIMANT’s means, necessary for said technology, and of the treatment room’s equipment including its

building, magnets, steering devices and monitors [Re. Ex. 3; PO2, § 23]. CLAIMANT also undertook the

installation of the facility as well as the training of RESPONDENT’s operating personnel [Re. Ex. 3; PO2,

§ 29]. Although the market value of the purchase was of USD 9.5 Mio, CLAIMANT granted a discount to

RESPONDENT and fixed the purchase price, i.e. the contract price, at USD 3.5 Mio [Re. Ex. 3; Art. 3(1) SLA,

Cl. Ex. 6]. To arrive at this final discounted amount, CLAIMANT took into consideration the financial

difficulties of RESPONDENT [R.A., § 12; Cl. Ex. 4; Re. Ex. 3; PO2, § 27] and its contribution to the

development and testing of the software under the contract [Re. Ex. 3; Art. 3(1), 10 SLA, Cl. Ex. 6].

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In the following, it will be demonstrated that the SLA constitutes both an international sale contract

(A.) and a contract of sale of goods in the sense of the CISG (B.).

A. THE SLA CONSTITUTES AN INTERNATIONAL SALE CONTRACT

The SLA is an international contract as provided for in Art. 1(1)(a) CISG: the two contracting Parties have

their places of business in different contracting states to the CISG, namely in Mediterraneo and

Equatoriana [PO2, § 12].

The Tribunal is requested to find that the SLA is also a sale contract for the following reasons: the

Parties purported to conclude a sale contract (1.) and the right to use the purchased software granted to

RESPONDENT does not preclude this qualification (2.). Moreover, CLAIMANT provided the substantial part

of the materials necessary for the production of the software [Art. 3(1) CISG] (3.) and the preponderant part

of its obligations lied in the supply of goods [Art. 3(2) CISG] (4.).

1. The Parties wanted and concluded a sale contract

It appears from the SLA that the Parties intended to conclude a sale contract: they titled their contract

“Sales […] Agreement” [as to the “Licensing Agreement” infra § 98] and referred to themselves as “Buyer” and

“Seller” [Preamble, Art. 1, 2, 3(1), 10, 46 SLA, Cl. Ex. 6]. Also, the contract is subject to CLAIMANT’s

“Standard Terms and Conditions for Sale”, whereupon the Parties agreed in Art. 46 SLA.

The analysis of the Parties’ obligations under the SLA supports its qualification as a sale contract.

CLAIMANT provided RESPONDENT with equipment for the treatment room as well as the necessary

software against a purchase price of USD 3.5 Mio [Art. 2 SLA, Cl. Ex. 6]. Thus, the Parties exchanged

purchase and property transfer against the payment of a price [Trib Rimini, 26 Nov 2002; TCa Vaud, 11 Mar

1996; Mistelis in Kröll et al., Art. 1, § 25; Neumayer/Ming, Art. 1, § 1; Schlechtriem/Schwenzer, Art. 1, § 8].

2. The right to use the software under the SLA does not preclude its qualification as a

sale contract

When it comes to software, the CISG applies only if the parties intended to transfer ownership to the

buyer, and not if they merely intended to grant a temporary right of use against payment of royalties [OGH,

21 June 2005; LG München, 8 Feb 1995; Huber/Mullis, p. 43; Johannsen, p. 59-60; Primak, p. 221; Schmitt,

p. 44; Schwenzer/Hachem/Kee, § 7.30-7.32]. This is the case here: under the SLA, RESPONDENT obtains the

permanent right to use the software and not a temporary one since “[n]o royalties are payable […] in

regard to the use of the software for the life cycle of the Proton Therapy Facility” [Art. 2 SLA, Cl. Ex. 6].

Accordingly, the choice of the heading “Sales and Licensing Agreement” does not affect the qualification of

the SLA [Johannsen, p. 59; Lookofsky, p. 277].

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The fact that CLAIMANT does not transfer all the rights vested in the software to RESPONDENT, i.e.

intellectual property rights [Art. 11(1) SLA, Cl. Ex. 6], should not hinder the application of the CISG. In this

respect, the situation is similar to the sale of a machine, a book or a photo. These products have intellectual

property rights associated with them, yet the application of the CISG to their sale is undisputed [Brunner,

Art. 2, § 3; Diedrich, Software Revisited, p. 56; Johannsen, p. 53-54; Mistelis/Raymond in Kröll et al., Art. 3, § 23;

Schlechtriem/Schwenzer, Art. 1, § 18].

Hence, the right to use the software does not affect the qualification of the SLA as a sale contract.

3. The substantial part of the materials necessary to produce the software was

provided by CLAIMANT [Art. 3(1) CISG]

Although the software is a good [cf. infra § 115-121] to be produced, Art. 3(1) CISG provides for the SLA

to be considered a sale contract, because CLAIMANT supplies the substantial part of the materials necessary

for the production of the purchase.

At the time of conclusion of the SLA, no working software for the active scanning technology was

available [PO2, § 24]. CLAIMANT needed to develop the software, including its fine-tuning and testing,

using medical data and support supplied by RESPONDENT [Re. Ex. 3; Art. 3, 10 SLA, Cl. Ex. 6; PO2, § 25].

The software is thus to be produced. However, RESPONDENT did not provide “materials necessary for

production” in the sense of Art. 3(1) CISG (a.). Alternatively, should the Tribunal consider the contrary,

RESPONDENT’s contributions do not represent the substantial part of the materials necessary for the

production of the software (b.).

a. RESPONDENT’s contributions to the development of the technology are not "materials

necessary for production"

The Tribunal should hold that RESPONDENT does not supply materials for the production of the software.

RESPONDENT provides CLAIMANT with medical data and conducts clinical trials [Cl. Ex. 4; Art. 10(1), (2)

SLA, Cl. Ex. 6; PO2, § 27]. These elements do not represent materials in the sense of Art. 3(1) CISG. As

widely acknowledged, immaterial contributions of the buyer should not be considered [BGE, 17 Oct 2000;

HG Zürich, 10 Feb 1999; ICC Case No. 8855/1997; OLG Frankfurt, 17 Sept 1991; CISG-AC 4, § 2.14;

Bonell/Liguori, p. 151; Brunner, Art. 3, § 4; Mistelis/Raymond in Kröll et al., Art. 3, § 14;

Schlechtriem/Schwenzer, Art. 3, § 8; Sono, p. 522]. In the current case, the supply of medical data and the

support in testing the technology are purely immaterial contributions. Considering RESPONDENT’s

contributions as materials would lead to an interpretation contra legem of Art. 3(1) CISG.

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b. In any event, the materials provided by RESPONDENT did not represent a substantial part

of the materials necessary for the production of the software

Scholars and courts have identified two manners of assessing whether or not the buyer substantially

contributed to the production of the purchased good. Both methods should lead this Tribunal to the

conclusion that RESPONDENT did not supply the substantial part of the materials necessary for the

production of the software.

On the one hand, some suggest to compare the economic value of the materials provided by the buyer

with those provided by the seller [HG Zürich, 8 Apr 1999; Brunner, Art. 3, § 3; Neumayer/Ming, Art. 3, § 3;

Siehr in Honsell, Art. 3, § 3]. In this respect, the Tribunal should consider the market value of the components

of the purchase although it differs from the contract value attributed in the SLA [cf. Re. Ex. 3]. The purchase

price under the SLA was of USD 3.5 Mio. Art. 3(1) SLA states that this price took into account

RESPONDENT’s contribution “in developing and testing the active scanning technology including the

necessary software with a value of USD 6 Mio” [Cl. Ex. 6]. However, the real value of RESPONDENT’s

contribution amounts solely to USD 1.5 Mio. At the time of conclusion of the SLA, RESPONDENT was

facing financial difficulties and could not pay more than USD 3.5 Mio for the technology [Re. Ex. 3; PO2,

§ 27]. CLAIMANT accepted to sell the machine at this price. Yet, it wanted to avoid being taxed on the

market value of the purchase. According to the arm’s length principle, a general principle in international tax

law, taxation authorities take into account the price that would have been paid by a third party, i.e. the

market price [Maktouf, p. 39; Oberson, p. 235-251; OCDE, p. 27-54; Raschle/Borriello/Hämmerle, p. 107-133].

To avoid being taxed on the market price of the transaction, CLAIMANT decided to overvalue

RESPONDENT’s contribution and to attribute a value of USD 6 Mio instead of USD 1.5 Mio to it.

RESPONDENT was completely aware of this fact. Indeed, the offer for the conclusion of the SLA pointed out

that this price arrangement was made “primarily for tax purposes” [Re. Ex. 3].

Therefore, the Tribunal should base its examination on the market value of RESPONDENT’s input,

which is of USD 1.5 Mio [Re. Ex. 3; PO2, § 27]. This is considerably lower than the value of CLAIMANT’s

contribution to the production of the software, i.e. development, testing and fine-tuning, which is of USD

3.75 Mio [PO2, § 29]. This does by no means amount to 50% of the materials necessary for production of

the software, which is the quota generally applied by courts and scholars [HG Zürich, 8 Apr 1999; Magnus in

Staudinger, Art. 3, § 1; Saenger in Bamberger/Roth, Art. 3, § 4; CISG-AC 4, § 2.8-2.10; Siehr in Honsell, Art. 3,

§ 3]. Thus, RESPONDENT did not provide the substantial part of the materials necessary for the production

of the software.

On the other hand, other scholars and courts follow the French version of the CISG, that uses the

expression part essentielle, and consider that the standard of interpretation should be based on the essentiality

of the materials [CIETAC, 13 June 2005; OLG München, 3 Dec 1999; CA Grenoble, 21 Oct 1999; Ferrari,

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Applicability and Applications, p. 113-114]. In the case at hand, the clinical data and the support provided by

RESPONDENT were by far not as crucial to the production of the software as CLAIMANT’s contributions.

CLAIMANT provided the basic software completely on its own [PO2, § 25]. Indeed, the development,

testing and fine-tuning provided by CLAIMANT were core elements for the production of the software,

whereas RESPONDENT’s contribution solely to the improvement of the software [Art. 10 SLA, Cl. Ex. 6;

Cl. Ex. 4; PO2, § 25] was of little significance.

In summary, both the economic value of RESPONDENT’s contributions and the essential criterion

support the conclusion that CLAIMANT provided the substantial part of the materials necessary for the

production of the software.

4. The preponderant part of CLAIMANT’s obligations consisted of the supply of goods

[Art. 3(2) CISG]

CLAIMANT’s obligations under the SLA consisted of the development, the testing and the delivery of the

software, the physical equipment and the installation of the treatment room and the training of

RESPONDENT’s operating personnel [Art. 2, 10(1) SLA, Cl. Ex. 6; Re. Ex. 3; PO2, § 29]. The development and

the testing form part of the production of the software and do not have to be considered services in the

sense of Art. 3(2) CISG (a.). The delivery of software and the equipment constitute a supply of goods

[infra § 115-121] whereas the installation and the training are regarded as services in the sense of Art. 3(2)

CISG. Nevertheless, they do not represent the preponderant part of CLAIMANT’s obligations (b.).

a. As part of the production of the software, the testing and development are not services in

the sense of Art. 3(2) CISG

If the contributions to the production of the software had to be considered services in the sense of

Art. 3(2) CISG, this would undermine the spirit of Art. 3(1) CISG [cf. CISG-AC 4, § 4.1-4.3; Honnold,

Art. 3, § 60.6; Johannsen, p. 76; Schäfer p. 120-121; Schlechtriem/Schwenzer, Art. 3, § 2-3; Sono, p. 523;

Magnus in Staudinger, Art. 3, § 3]. Since the development and testing of the software constitute a part of its

production [supra § 102], there is no room left to reconsider them under Art. 3(2) CISG. They form part

of the sale element under the SLA [cf. supra § 101-108] and are exhaustively governed by Art. 3(1) CISG

[Schäfer, p. 120]. By contrast, Art. 3(2) CISG only refers to service elements additional to the sale, which is

not the case for the development and testing of the software.

b. Services consisting of training and installation only represent 20.53% of the purchase value

The only services rendered by CLAIMANT under the SLA that are to be considered within the application of

Art. 3(2) CISG are the installation of the equipment for the treatment room at its place of delivery and the

training of RESPONDENT’s operating personnel for the use of the new technology. The installation values

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USD 1 Mio [PO2, § 29], which represents 10.53 % of CLAIMANT’s contributions. The training represents

10% of CLAIMANT’s contributions [Re. Ex. 3], i. e. USD 950.000. Thus, the services rendered by

CLAIMANT have a total value of USD 1.95 Mio and amount to no more than 20.53% of the purchase value.

Consequently, the preponderant part of CLAIMANT’s obligations lies in the supply of goods, representing

more than 79% of its total contribution.

In conclusion, in view of the Parties’ intention to conclude a sale contract, the CLAIMANT’s

substantial contribution to the production of the software and the preponderant part of its obligations lying

in the supply of goods, the SLA is an international sale contract.

B. THE SLA IS A CONTRACT OF THE SALE OF GOODS

The SLA constitutes a contract of sale of goods, since both the physical equipment provided under the SLA

(1.) and the software for the active scanning technology (2.) fall within the notion of goods under the

CISG.

1. The equipment provided is a good in the sense of the CISG

The materials necessary for the equipment of the third treatment room, i.e. the magnets, computers,

steering devices and monitors [Re. Ex. 3; PO2, § 23], are goods, since they are movable, tangible objects

[Trib Rimini, 26 Nov 2002; Mistelis in Kröll et al., Art. 1, § 37; Schlechtriem/Schwenzer, Art. 1, § 16].

2. The software provided is a good in the sense of the CISG

RESPONDENT asserts that the CISG addresses only the sale of tangible goods, reason why the present

contract falls outside of the Convention’s scope [A.R.A., § 19]. Despite RESPONDENT’s allegation, software

is a tangible good. This flows from the notion of tangibility itself (a.) as well as from the general principles

observed by the CISG (b.).

a. Software is a tangible, movable good

The mere fact that software cannot be perceived by the unaided senses does not alter that it is tangible

[Green/Saidov, p. 165]. Indeed, the software at hand was at all times physically recorded: it was in parts

installed in the equipment delivered to RESPONDENT and embodied in CLAIMANT’s server and in its

engineers’ computers [PO2, § 23]. There, it assumed the shape of massive strings of “bits” [ibid., p. 166].

Even while being downloaded to the facility, it existed as a series of electrical pulses. Due to its physical

existence, the software does not represent mere knowledge or information, because it “takes up space,

makes physical things happen, and can be perceived by the senses” [South Central Bell Telephone v. Sidney J.

Barthelemy, et al.]. RESPONDENT obtained the software, physically recorded, that makes the active scanning

technology perform the desired functions [ibid.; Green/Saidov, p. 165-166; Johannsen, p. 55; Lookofsky,

p. 276].

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In addition, it is widely accepted that the software’s mode of delivery is irrelevant [Rb Arnhem, 28

June 2006; HG Zürich, 17 Feb 2000; Brunner, Art. 2, § 4; Huber/Mullis, p. 43; Saenger in Bamberger/Roth, Art.

1, § 7; Schlechtriem/Schwenzer, Art. 1, § 18; Siehr in Honsell, Art. 2, § 4]. No economic or legal distinctions

should be associated to this question. Furthermore, the question whether the software at hand is a standard

or a customized software is irrelevant to know whether or not software is a good [BGH, 4 Dec 1996,

§ 2.a).; Diedrich, Software Revisited, p. 60; Green/Saidov, p. 171; Huber/Mullis, p. 43; Johannsen, p. 73-74;

Lookofsky, p. 278; Schlechtriem/Schwenzer, Art. 1, § 18; Schmitt, p. 61-63].

Hence, software is a tangible, movable good.

b. In any event, the CISG allows for an extensive interpretation of the term “goods”

Even in case of doubts concerning the tangibility of the software, CLAIMANT respectfully requests the

Tribunal to bear in mind that the term “goods” should be interpreted extensively [OLG Koblenz, 17 Sept

1993; Huber/Mullis, p. 41; Piltz, UN-Kaufrecht, § 48]. This interpretation is consistent with the spirit of

Art. 2 CISG that provides for only few exceptions to the application of the Convention [Piltz, UN-

Kaufrecht, § 48].

In addition, the application of the CISG to the SLA cannot be excluded because of the mere fact that

the “international legislators” did not consider the application of the CISG to software transactions

[Diedrich, Maintaining Uniformity, p. 321]. Since then, software has entered the agenda of every day

international commercial transactions, reason why the legal concepts inhering in the CISG need to be

adjusted to the digital age [cf. Green/Saidov, p. 165]. An extensive interpretation of the term “goods” is thus

desirable for the sake of fostering international commerce [cf. Preamble, Art. 7(1) CISG; Johannsen, p. 54;

Scott, p. 231; Sono, p. 525] and legal certainty [Diedrich, Software Revisited, p. 61-62].

There is no convincing reason why the sale of software should be excluded from the statutory

protection afforded to other goods. Therefore, the SLA is a sale of goods contract in the sense of the CISG.

CONCLUSION: Considering that the substantial part of the materials necessary for the production of the

software rests with CLAIMANT and that the preponderant part of CLAIMANT’s obligations lies in the supply

of goods, the SLA is an international contract for the sale of goods in the sense of the CISG.

II. THE ST 2011 HAVE BEEN VALIDLY INCORPORATED IN THE SLA

RESPONDENT erroneously contends that the ST 2000, which are incorporated in the FSA, apply to the

SLA. By doing so, it wilfully ignores that the ST 2011 have been validly integrated into the SLA.

Therefore, the Tribunal is respectfully requested to consider the reasons leading to this conclusion. First,

the ST 2011 constituted fully part of the offer made by CLAIMANT when negotiating the SLA (A.). Second,

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RESPONDENT’s acceptance of the ST 2011 can be presumed from its conduct (B.). In any event, Art. 9

CISG supports the valid incorporation of the ST 2011 in the SLA (C.).

A. THE ST 2011 CONSTITUTED PART OF CLAIMANT’S OFFER

Art. 14(1) CISG states that “a proposal for concluding a contract […] constitutes an offer if it is sufficiently

definite and indicates the intention of the offeror to be bound in case of acceptance”. This provision

requires clear reference by the offeror to the standard terms so as to form part of the offer [OLG Linz, 8 Aug

2005; CISG-AC 13, § 1.6; Eiselen, p. 7; Piltz, AGB, p. 134; Schlechtriem/Schwenzer, Art. 14, § 37; cf. LG Coburg,

12 Dec 2006].

Indeed, CLAIMANT expressed its intention to apply its new ST 2011 from the outset. On 5 July

2011, during the negotiations, CLAIMANT informed RESPONDENT about the overhaul of its ST 2000 and

enclosed a draft of the contract [Cl. Ex. 5]. CLAIMANT specified that the new version, i.e. ST 2011, would

apply to all contracts concluded from the beginning of July [Cl. Ex. 5]. Its offer to conclude the SLA

reached RESPONDENT on 18 July 2011 reminding in its footer the overhaul of the ST 2000 [Re. Ex. 3]. This

information was echoed in the SLA itself: Art. 46 SLA expressly referred to the ST 2011, stating that “this

Agreement is subject to the Seller’s Standard Terms and Conditions for Sale” [Cl. Ex. 6]. Besides, since the

draft of the SLA was already in RESPONDENT’s possession on 5 July 2011, it must have seen and read Art.

46 at this time [Cl. Ex. 5]. Consequently, CLAIMANT’s offer to include the ST 2011 in the SLA was

sufficiently definite and indicated a real intention to apply them.

B. RESPONDENT’S BEHAVIOUR ENTAILED ITS FULL ACCEPTANCE OF THE ST 2011

RESPONDENT’s behaviour should be understood as a full acceptance of CLAIMANT’s offer. Firstly,

RESPONDENT signed the offer without lodging any objections thereto (1.). Secondly, it should have known

about the content of the ST 2011 (2.). Alternatively, RESPONDENT’s knowledge about the substance of the

ST 2011 can be reasonably presumed (3.).

1. RESPONDENT signed the SLA without lodging any objections

It is common ground that the acceptance of an offer containing a clause which incorporates standard terms

into a contract is effective unless the offeree makes clear indication to the contrary [OGH, 17 Dec 2003;

CISG-AC 13, § 1.6; Eiselen, p. 7; Lautenschlager, p. 283].

In the case at hand, RESPONDENT accepted the offer without lodging any objections to the inclusion

of the ST 2011 [Re. Ex. 3; Cl. Ex. 6], even though it was aware of the existence of the incorporation clause,

i.e. Art. 46 SLA. Indeed, Art. 46 SLA is the very last provision of the SLA and is situated right above the

space reserved for the signing of the contract [Cl. Ex. 6]. RESPONDENT’s representative, Mr. Peter

Account, could thus easily have seen it. Therefore, it can only be assumed that he was aware of the

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existence of the ST 2011 [cf. Stella Maris v. Cork Supply]. Nevertheless, he did not raise any formal

objections to it, which leads unequivocally to their application.

2. RESPONDENT should have been aware about the content of the ST 2011

Although RESPONDENT asserts that it did not comprehend the content of the ST 2011 [A.R.A., § 17], the

Tribunal should bear in mind that within international business relations, there is a strong presumption of

professional competence [ICC Case No. 5346/1988; ICC Case No. 1900/1972; Berger, p. 4]. For this very

reason there is no need to overprotect one party [Mittmann, p. 103-106].

The Parties are not consumers. RESPONDENT is a hospital known worldwide for its cancer

treatments [R.A., § 2]. It can be then presumed that RESPONDENT operates within international trade to

purchase the facilities necessary for its services. Thus, RESPONDENT is not a consumer.

CLAIMANT offered RESPONDENT a reasonable opportunity to take notice of the ST 2011, through a

website link contained in a letter (a.). Moreover, RESPONDENT was under the duty to take measures to

understand the content of the ST 2011 (b.).

a. CLAIMANT offered a reasonable opportunity to take notice of the ST 2011

The existence of a reasonable opportunity to take notice of standard terms allows their valid incorporation

into a contract [CISG-AC 13, § 2.5; Schlechtriem/Schwenzer, Art. 14, § 40]. More to the point, “the offeree

can be expected to look up the standard terms on the Internet” [Lautenschlager, p. 281; cf. Stiegele/Halter,

p. 169].

The Tribunal is respectfully requested to follow a Belgian court judgment from 1995 stating that

as long as the possibility to obtain the standard terms’ content exists, it is not necessary to send them

[Lautenschlager, p. 278, commenting TCo Nivelles, 19 Sept 1995]. In that Belgian case, the seller referred in its

offer to the standard terms in bold letters. The court decided that they had been validly incorporated into

the contract [TCo Nivelles, 19 Sept 1995].

While this decision may be opposed by a newer but contradictory case rendered by the German

Supreme Court [Machinery Case, BGH, 31 Oct 2001], the latter judgment should be disregarded by the

Tribunal. Many leading authors indeed consider it as incompatible with Art. 8 CISG since the ruling tried

to impose exceedingly requirements for the party that aims to incorporate its standard terms [CISG-AC 13,

§ 2.5; Eiselen, p. 12; Lautenschlager, p. 278; Kindler, p. 226-234; Schlechtriem/Schwenzer, Art. 8, § 53; Schmidt-

Kessel/Meyer, p. 177-180; cf. Huber, p. 127]. The categorical position held in the Machinery Case contradicts

the spirit of Art. 8 CISG, since it does not examine all the relevant circumstances surrounding the case.

Furthermore, the German Tribunal in that case ignored the previous Belgian decision: this, in itself, is a

breach of Art. 7 CISG, which promotes a uniform interpretation of the Convention by considering the

relevant decisions of other States [Ferrari, Tribunale di Vegevano, p. 205; Trib Vigevano, 12 July 2000].

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For these reasons, the Belgian decision should serve as reference for the present case. CLAIMANT

offered RESPONDENT a reasonable opportunity to take notice of its ST 2011. The footer of the offer from

5 July 2011 contained a website link leading to the ST 2011 themselves. Moreover, CLAIMANT underlined

the word “new” in the footer [Cl. Ex. 5].

Other, more practical reasons, support this conclusion. The use of a website link as reference to

standard terms saves time and avoids delays of contract conclusion [Lautenschlager, p. 281]. They can thus

be “perused and printed immediately, a process much faster than mail” [ibid., p. 281]. This mode of

reference also offers convenience to the reader who “can search for key words in the full text and thereby

find decisive parts quickly” [ibid., p. 282] such as the choice of law clause in the present case. This is

relevant in the case at hand, as the faster the SLA was concluded, the faster the Parties could begin their

cooperation in order to cure patients with the new proton therapy facility and save lives.

Thus, RESPONDENT was provided with a reasonable opportunity to take notice of the ST 2011.

b. In addition, RESPONDENT disposed of appropriate means that it should have used to

understand the ST 2011

RESPONDENT argues that CLAIMANT supplied an insufficient English translation of the ST 2011 on its

website from 1 July to 4 July 2011 and therefore it could not understand them.

Nevertheless, RESPONDENT was under a duty to take measures in obtaining sufficient knowledge of

the substance of the ST 2011. When business relations become particularly intense and economically

important to a party, that party should take appropriate steps to know the content of standard terms

written in a foreign language [OGH, 17 Dec 2003]. The addressee of such terms should accordingly request

for a translation to be furnished by the offeror or attend to such a translation itself. In case of doubts

concerning the content of those terms, the addressee is held to “make objections to get sufficient certainty,

to make further inquiries or use a professional translation” [LG Kassel, 15 Feb 1996].

The purchase price under the SLA amounts to USD 3.5 Mio [Art. 3(2) SLA]. To reach this price,

CLAIMANT granted RESPONDENT a considerable discount as a gesture of goodwill. With this in mind,

RESPONDENT should have taken measures to access the ST 2011. Such measures were reasonably available

for RESPONDENT. It could have asked its Mediterranean speaking employee to translate the ST 2011 (i.), or

could have used an electronic translator (ii.). Finally, it could have contacted CLAIMANT to clear up any

confusion regarding the ST 2011’s content (iii.).

i. RESPONDENT could have consulted its Mediterranean speaking employee

RESPONDENT could have asked one of its employees, a young doctor assistant who speaks Mediterranean,

to translate the ST 2011 to Equatorianean or English. In this respect, a German State Court judged that

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standard terms are included if the employee dealing with the contract is able to speak the language in

which the standard terms were written [OLG Düsseldorf, 21 Apr 2004].

RESPONDENT’s employee took part in the first meeting for negotiating the SLA [PO2, § 35; Re. Ex.

2]. At this meeting, this doctor assistant spoke with CLAIMANT’s technicians in Mediterranean [PO2, § 35].

A whole month passed between the final negotiation meeting, i.e. 2 June 2011, and the day he left on

holiday, i.e. 5 July 2011. During that period, RESPONDENT could have asked him to consult and translate

the ST 2011. Moreover, nowadays it is common to stay in touch and be reachable on holidays. This applies

especially to medical staff, which must be reachable at all times in case of emergency [Council of Europe,

Doc. 8751]. The young doctor was thus reachable on its holidays and RESPONDENT could have called him to

dispel its doubts related to the ST 2011.

In any event, the young doctor returned to work on 20 July 2011, the day of the conclusion of the

SLA. If RESPONDENT had had doubts regarding the ST 2011 content, it could have asked its employee to

provide a quick translation at that moment.

ii. RESPONDENT could have used other means of translation

Nowadays, electronic translators are common tools for quick translations of any language. In this context,

a duty to translate the content of the ST 2011 could have been imposed upon RESPONDENT, especially in

view of the few articles that the ST 2011 contained [cf. Lautenschlager, p. 274]. RESPONDENT could have

copied and pasted the ST 2011 in an electronic translator in order to understand their content.

iii. RESPONDENT could have contacted CLAIMANT for further inquiries

Within business relations, the mere possibility of obtaining reasonable information about the content of

standard terms by request is sufficient to include them [Kindler, p. 229]. However, RESPONDENT did not

contact CLAIMANT to obtain a hard copy of the ST 2011 although CLAIMANT did provide the means.

Indeed, CLAIMANT mentioned an e-mail address, a phone and a fax number in the footer of its offer [Cl. Ex.

5]. The e-mail address was explicit: [email protected]. A reasonable person of the same kind would have

understood that this address was given to obtain information. CLAIMANT’s website also provided for a phone

number in case of inquiries [PO2, § 32]. RESPONDENT has never used neither the e-mail address nor the

phone or fax number [cf. CIETAC, 16 Sept 2005].

Moreover, RESPONDENT cannot rely on the promise made by CLAIMANT’s representative, Dr Vis,

who was in charge with the negotiations, to provide an English translation [Re. Ex. 2]. Unfortunately, Dr

Vis had a stroke [Re. Ex. 2; PO2, § 34] and was unable to inform his substitute Lisa Maier about his promise.

RESPONDENT was aware of Dr Vis’ medical condition [Re. Ex. 2]. Nevertheless, it did not remind Lisa

Maier, “who knew nothing about Dr Vis’ promise”, of the missing translation [PO2, § 33]. It is clear that

RESPONDENT showed no interest in obtaining the content of the ST 2011.

142

143

144

145

146


31

To sum up, RESPONDENT could have asked its employee to translate the ST 2011 or it could have

used an electronic translator. Had RESPONDENT really been concerned about the ST 2011 content, it could

have called or emailed CLAIMANT. None of these actions had been undertaken. Was the ST 2011 language

a real issue for RESPONDENT? Or was RESPONDENT too focused on the considerable discount on the

purchase price, to the point that the language in which ST 2011 were couched became wholly immaterial

[Eiselen, p. 17]? These are the real questions CLAIMANT respectfully requests the Tribunal to bear in mind.

3. Alternatively, RESPONDENT’s knowledge about the substance of the ST 2011 can be

reasonably presumed [Art. 8 CISG]

De non vigilantibus non curat praetor [Eng.: The judge will not protect those who do not worry about their interests].

The parties involved in international business must immediately object to the application of standard terms

if they are not able to understand them [OGH, 17 Dec 2003]. An American Court ruled in the same spirit

[Marble Ceramic v. Ceramica Nuova]. It would be astonishing that a party with broad experience in

commercial matters signs a contract in a foreign language and expects not to be bound solely because it

cannot understand the content.

RESPONDENT adopted a reckless behaviour by signing the SLA without any further inquiry about

the ST 2011. Due to its international reputation [R.A., § 2; Cl. Ex. 1], RESPONDENT is deemed to have

broad experience in commercial matters. Accordingly, it should have declared its lack of understanding

regarding the ST 2011 before signing the SLA.

Consequently, RESPONDENT was bound by the ST 2011 because it signed the SLA. RESPONDENT

cannot be released from this commitment two years later, on the pretext that it was unaware of what it

signed [ICC No. 1900/1972]. RESPONDENT’s knowledge can be thus reasonably presumed [OGH, 17 Dec

2003].

C. IN ANY EVENT, ART. 9 CISG LEADS TO THE VALID INCORPORATION OF THE ST 2011

Should the Tribunal find that the incorporation of the ST 2011 into the SLA by means of offer and

acceptance does not suffice, it is then respectfully requested to consider that Art. 9 CISG entails the

incorporation of ST 2011. Firstly, the Parties have established practices regarding the integration of the ST

2000, which are acted on in the case at hand (1.). Secondly, application of international commercial usages

leads to the same result (2.).

1. The Parties acted on the practice developed between themselves [Art. 9(1) CISG]

Within the incorporation of the ST 2000 in the FSA, the Parties established a practice on the means by

which they incorporate the CLAIMANT’s standard terms into their contracts. They are consequently bound

147

148

149

150

151

152


32

by their practice and must act in accordance to it [Art. 9(1) CISG; OGH, 17 Dec 2003; OGH, 6 Feb 1996;

Lautenschlager, p. 280].

Regarding the FSA, CLAIMANT sent its offer within a letter mentioning in its footer a website link

leading to the ST 2000 [Cl. Ex. 3]. Art. 46 FSA provided for the application of the ST 2000 [Cl. Ex. 2]. It

must be pointed out that RESPONDENT did not object to the incorporation of the ST 2000. The course of

conduct adopted by RESPONDENT created an expectation that the Parties would proceed in the same way

for future contracts [Schlechtriem/Schwenzer, Art. 9, § 8].

The Parties observed the same behaviour regarding the incorporation of the ST 2011 in the SLA.

CLAIMANT sent its offer again by letter, containing the same link leading to the new ST 2011 [Cl. Ex. 5].

Furthermore, the SLA contained an incorporation clause, i.e. Art. 46 SLA, referring to the ST 2011

[Cl. Ex. 6]. Once again, RESPONDENT did not object. By adopting the very same conduct in both cases,

RESPONDENT comforted CLAIMANT in the expectation that the ST 2011 would apply.

2. The interpretation of international commercial usages leads to the incorporation of

ST 2011 into the SLA [Art. 9(2) CISG]

Parties involved in business transactions should anticipate the application of standard terms [BGH, 3 Feb

1982; Kindler, p. 229]. In this case, the Parties entered into a business relationship regarding a sale contract

[cf. infra § 94]. In this particular field, the use of standard terms is widespread [Hof’s-Hertogenbosch, 16 Oct

2002]. Accordingly, it will be shown that RESPONDENT should have expected that CLAIMANT would apply

its latest set of standard terms.

It should here be pointed out that major changes occurred in the area of proton therapy during the

last decade [Flanz/Bortfeld, p. 142]. In particular, it is the start of the third generation of proton therapy,

with “technologies that bring us closer to the physical potential of proton therapy, and at the same time

make the machines more cost-efficient” [ibid., p. 142]. In that light, it should come as no surprise that

CLAIMANT regularly overhauled its standard terms in the past [R.A., § 14]. As the previous version of its

terms was eleven years old at the time of the negotiations, it was foreseeable that they would need an

update to better suit the latest technological developments. Indeed, since the SLA signed by the Parties

concerned a completely new technology, i.e. the active scanning technology, RESPONDENT should have

expected such an overhaul. Additionally, since the drafting of ST 2000, there have been over 15 new

Member States to the CISG and the Convention has become very important in recent times

[www.uncitral.org]. As a result, the legal setting is very different than it was in 2000, which is another

foreseeable reason why the ST needed updating.

CONCLUSION: In view of the above, CLAIMANT respectfully asks the Tribunal to hold that the ST 2011

have been validly incorporated in the SLA.

153

154

155

156

157


33

III. SEC. 22 ST 2011 CONTAINS A CHOICE OF LAW CLAUSE IN FAVOUR OF THE CISG

The Tribunal is respectfully requested to find that the CISG governs the claim arising under the SLA. This

results from the fact that, by virtue of Sec. 22 ST 2011, the SLA is subjected to the law of Mediterraneo,

which includes the CISG (A.). Furthermore, the reference made to “the law of Mediterraneo” does not

lead to an opting-out of the CISG (B.).

A. THE SLA IS SUBJECTED TO THE LAW OF MEDITERRANEO INCLUDING THE CISG

Pursuant to Art. 28(1) Model Law “the arbitral tribunal shall decide the dispute in accordance with such

rules of law as are chosen by the parties as applicable to the substance of the dispute”. The Parties’

contracts at hand are governed by the provisions of the FSA, which is a framework agreement [supra § 38],

“where such contracts do not contain a specific provision to the contrary” [Art. 45 FSA, Cl. Ex. 2]. The ST

2011 have been validly included in the SLA [supra § 157]. The choice of law clause in the SLA makes

reference to the “law of Mediterraneo [Sec. 22 ST 2011, Cl. Ex. 9] while the Sec. 22 ST 2000 refers to “the

national law of Mediterraneo as set out in the statutes of Mediterraneo and developed by its courts” [Sec. 22

ST 2000, Cl. Ex. 2]. Sec. 22 ST 2011 thus constitutes a provision contrary to the previous clause.

Consequently, it does replace Sec. 22 ST 2000 and applies to the SLA.

Sec. 22 ST 2011 states that "the contract is governed by the law of Mediterraneo". Mediterraneo is

a member state of the CISG [PO2, § 12] and therefore consolidates the Convention with its national

substantive law. This allows the Convention to become an integral part of its legislation [Asante Technologies

v. PMC-Sierra; BP Oil International v. Empresa Estatal Petroleos de Ecuador; Forestal Guarani v. Daros International;

Anyamele; Bonell in Bianca/Bonell, Art. 6; Felemegas, p. 8].

B. REFERENCE TO THE “LAW OF MEDITERRANEO” DOES NOT LEAD TO AN OPTING-OUT OF THE

CISG

Under Art. 6 CISG, an opting-out of the Convention must be agreed upon by the Parties [Drago/Zoccolillo,

p. 9; Lookofsky, p. 270; Schlechtriem, Uniform Sales Law, p. 35]. In particular, a reference to the law of a

contracting state made without specific indication to the substantive law is insufficient to opt-out of the

CISG [American Mint et al. v. GOSoftware; Asante Technologies v. PMC-Sierra; BP Oil International v. Empresa

Estatal Petroleos de Ecuador; Easom Automation Systems v. Thyssenkrupp Fabco; The Travelers Property Casualty and

Hellmuth Obata & Kassabaum, v. Saint-Gobain Technical Fabrics; BGH 25 Nov 1998; ICC Case No. 8324/1995;

Butler, p. 8; Drago/Zoccolillo, p. 9; Leete, Ch. V; Saf, Ch. 5; Schlechtriem, Requirements of Application, p. 784;

Schlechtriem/Schwenzer, Art. 6, § 13-15]. In support of this idea, leading cases underline that the provision

making reference to the law of a certain country or region does obviously not exclude the application of

the CISG, since, after the signatory’s assent, the Convention becomes integral part of the law of that State

[Ajax Tool Works v. Can-Eng Manufacturing; Forestal Guarani v. Daros International; BGH 25 Nov 1998]. More

158

159

160

161


34

generally, there is no need for the Parties to agree on the application of the CISG since it applies by default

[Lookofsky, p. 272]. It must thus follow that choosing “the law of Mediterraneo” without any other mention,

as in the case at hand, cannot lead to the exclusion of the CISG.

Furthermore, during the negotiations, RESPONDENT did not act in a way that would lead to an

implicit rejection of the CISG. To that effect, it must be reminded that the notion of implicit opting-out is

to be strictly considered under the Convention [Honnold, Art. 6, § 76; Schlechtriem, Uniform Sales Law, p. 35].

The CISG is deemed to be applicable even if the parties did not settle on a choice of law clause or if they

remained silent about this issue [AC BCCI No. 41/2000; Butler, p. 9]. In the current case, RESPONDENT had

several opportunities to object to the choice of law, but did not react. In point of fact, during the

negotiations conducted on 2 June 2011, Dr Vis, CLAIMANT’s representative, informed RESPONDENT that

the ST 2011 contained some changes. He underlined that he was not a lawyer and that, “according to what

he had understood”, the only changes affected the limitation of liability [PO2, § 31]. RESPONDENT refrained

from asking CLAIMANT for further information and from verifying whether Dr Vis’ statement was accurate.

Moreover, RESPONDENT could have sought legal advice, as it did for the conclusion of the FSA [PO2, § 10].

Although RESPONDENT checked the ST 2011 on CLAIMANT’s website on 14 July 2011, it did not react to

the choice of law clause [PO2, § 33]. This demonstrates that RESPONDENT did not show any interest in the

choice of law under the SLA and remained completely silent about this issue.

Furthermore, on 30 July 2011, one of RESPONDENT’s negotiators had a look at the English version

of the ST 2011 on CLAIMANT’s website [PO2, § 33] without reacting to the choice of law clause. If the

CISG was against RESPONDENT’s choice, it could have proposed to make a subsequent choice of law in

order to exclude it. However, RESPONDENT remained silent until the dispute arose. Contesting the choice

of law only now shows an attitude against good faith in this regard [Schlechtriem/Schwenzer, Art. 6, § 21].

Considered from the standard of good faith in business and taking into account the CISG’s strict

requirement for implicit exclusion, RESPONDENT’s lack of willingness to proceed to an exclusion of the

Convention is undeniable.

Assuming that RESPONDENT wanted to exclude the application of the CISG, this was certainly not

the case for CLAIMANT. In fact, CLAIMANT was convinced that the CISG was the best choice for both

Parties. Veritably, if there was an exclusion of the CISG, the law of Mediterraneo would be applicable.

Beyond every doubt, the CISG was militating for Parties’ best interests since it is a neutral law, known

worldwide. Its content is remarkably well-documented and the text is available in numerous languages,

including English. As a result, translation costs decrease, the law that is easily accessible and less uncertain.

All the factors listed above ensure more efficient and reliable contracts [Fountoulakis, p. 303, 311, 313-

314]. That is why CLAIMANT did not want to opt-out of the CISG.

162

163

164

165


35

Accordingly, the Parties did not agree to opt-out of the CISG and as a consequence the

Convention applies to the SLA.

CONCLUSION: Sec. 21 ST 2011 leads to the application of the CISG.

In light of the qualification of the SLA as an international contract of sale of goods, the valid incorporation

of ST 2011 and their choice of law clause designating the CISG, the CLAIMANT respectfully requests the

Tribunal to hold that the CISG governs the claim arising under the SLA.

REQUEST FOR RELIEF

In the light of the above submissions, CLAIMANT respectfully requests the Tribunal to find that:

1) It has jurisdiction to deal with the payment claims arising out of the FSA and of the SLA;

2) Both claims should be heard in a single arbitration;

3) The CISG governs the claim arising under the SLA.

CLAIMANT reserves the right to amend its request for relief as may be required.

166

167

Memorandum for CLAIMANT Certificate

VI

CERTIFICATE

Geneva, 12 December 2013

We hereby confirm that this memorandum was written only by the persons whose names are listed

below and who signed this certificate.

Adila Abdieski

Adila Abdieski

Roxane Allot

Melania Arginteanu

Leonardo Jelmini

Astrid Keller

Nicola Kleinjohann

Memorandum for CLAIMANT Table of Authorities

VI

TABLE OF AUTHORITIES

Cited as Reference Cited in

Anyamele Uche Anyamele, The United Nations Convention on

Contracts for the International Sale of Goods: A Proposal for

Nigeria

(Durham, University of Durham, 2011)

§ 160

Author in

Bamberger/Roth

Heinz Georg Bamberger, Herbert Roth (eds),

Kommentar zum Bürgerlichen Gesetzbuch, Band 3:

§§ 1297-2385, EGBGB, CISG

(München, C.H. Beck, 2003)

§ 106, 117

Berger Klaus P. Berger, Die Einbeziehung von AGB in

internationale Kaufverträge in Klaus Peter Berger et al.

(eds), Zivil- und Wirtschaftsrecht im Europäischen und

Globalen Kontext: Festschrift für Norbert Horn zum 70.

Geburtstag

(Berlin, De Gruyter Recht, 2006, p. 3-20)

§ 129

Berger/Kellerhals Bernhard Berger, Franz Kellerhals, International and

Domestic Arbitration in Switzerland

(2nd edn, Bern, Stämpfli Verlag, 2010)

§ 35, 49, 53

Author in Bianca/Bonell Cesare Massimo Bianca, Michael Joachim Bonell

(eds), Bianca-Bonell Commentary on the International Sales

Law

(Milan, Guiffrè Editore, 1987)

§ 160

Binder Peter Binder, International Commercial Arbitration and

Conciliation in UNCITRAL Model Law Jurisdiction

(3rd edn, London, Sweet & Maxwell, 2009)

§ 66

Bishop R. Doak Bishop (ed.), The Art of Advocacy in International Arbitration (Bern, Staemplfli, Juris Publishing, 2004)

§ 77


VII


Bond Stephen R. Bond, Dépeçage of Consolidation of the

Disputes Resulting from Connected Agreements: The Role of

the Arbitrator in Bernard Hanotiau, Eric A. Schwartz

(eds), Multiparty Arbitration

(Paris, ICC Publication No. 701, Dossier VII of the

ICC Institute of World Business Law, 2010, p. 35-43)

§ 64

Bonell Michael Joachim Bonell, ‘The CISG and the Unidroit

Principles of International Commercial Contracts:

Two Complementary Instruments’

(International Law Review of Wuhan University, Issue

10, 2008-2009, p. 100-117)

§ 70

Bonell/Liguori Michael Joachim Bonell, Fabio Liguori, ‘U.N.

Convention on the International Sale of Goods: A

Critical Analysis of Current International Case Law

(Part I)’

(Uniform Law Review, 1996, p. 147-163)

§ 103

Born,

Commentary

Gary B. Born, International Commercial Arbitration:

Commentary and Materials

(2nd edn, New York, Ardsley, 2001)

§ 11, 66

Born,

Commercial Arbitration

Gary B. Born, International Commercial Arbitration

(Alphen aan den Rijn, Wolters Kluwer, vol. I, 2009)

§ 5, 10, 17,

22, 23, 35,

48, 49, 50, 71

Born,

Forum Selection

Gary B. Born, International Arbitration and Forum

Selection Agreements: Drafting and Enforcing

(4th edn, Alphen aan den Rijn, Kluwer Law

International, 2013)

§ 55

Born,

Law and Practice

Gary B. Born, International Arbitration: Law and Practice

(Alphen aan den Rijn, Wolters Kluwer, 2012)

§ 5, 10, 64,

80


VIII


Brekoulakis Stavros Brekoulakis, ‘The Notion of the Superiority of

Arbitration Agreements over Jurisdiction

Agreements: Time to Abandon It?’

(ASA Bulletin, Kluwer Law International, vol. 24,

Issue 4, 2007, p. 341-364)

§ 53

Brunner Christoph Brunner, UN-Kaufrecht – CISG: Kommentar

zum Übereinkommen der Vereinten Nationen über den

internationalen Warenkauf von 1980

(Bern, Stämpfli Verlag, 2004)

§ 99, 103,

105, 117

Butler Allision E. Butler, ‘A Practical Guide to the CISG:

Negotiations through Litigation, Chapter 2:

Application of the CISG’

(Aspen Publishers, Supplement 2, 2007, p. 1-21,

available at

http://www.cisg.law.pace.edu/cisg/biblio/butler6-

ch2.pdf, last seen 11.12.2013)

§ 161, 162

Calmo Vera Calmo, ‘Report on the CEPANI40 lunch debate

of 14 March 2013 with Prof. Guy Keutgen on the

subject of CEPANI’s new arbitration rules’

(CEPANI Newsletter 74, April 2013, available at

http://www.cepani.be/sites/default/files/generated

/files/newsletter/newsletter74.pdf, last seen

11.12.2013)

§ 62

Chochitaichvili Dodo Chochitaichvili, ‘Belgium’s arbitration

institution adopts new Arbitration Rules and new

Mediation Rules from 1 January 2013’

(International Arbitration Newsletter of DLA Piper,

27 March 2013, available at

http://www.dlapiper.com/global/publications/Deta

il.aspx?pub=7919&RSS=true, last seen 11.12.2013)

§ 62


IX


CISG-AC 4

Contracts for the Sale of Goods to Be Manufactured or

Produced and Mixed Contracts (Article 3 CISG), 24

October 2004

Rapporteur: Professor Pilar Perales Viscasillas,

Universidad Carlos III de Madrid

Adopted by the CISG-AC on the 7th meeting held in

Madrid with no dissent

§ 103, 106,

110

CISG-AC 13 Inclusion of Standard Terms under the CISG

Rapporteur: Professor Sieg Eiselen, College of Law,

University of South Africa, Pretoria, South Africa

Adopted by the CISG Advisory Council following its

17th meeting, in Villanova, Pennsylvania, USA, on 20

January 2013

§ 124, 127,

132, 134

Council of Europe,

Doc. 8751

Impact des nouvelles technologies sur la législation du travail

Rapporteur: M. Claude Birraux, France, Groupe du

parti populaire européen

Rapport, Commission des questions sociales, de la

santé et de la famille

Pour débat à la Commission permanente – Voir article

15 du Règlement

Doc. 8751, 6 juin 2000

§ 142

Craig/Park/Paulsson Laurence Craig, William Park, Jan Paulsson,

International Chamber of Commerce Arbitration

(3rd edn, New York, Oceana Publications, 2000)

§ 7

Debourg Claire Debourg, Les contrariétés de décisions dans

l’arbitrage international

(Paris, LGDJ, 2012)

§ 77


X


Diedrich,

Maintaining Uniformity

Frank Diedrich, ‘Maintaining Uniformity in

International Uniform Law Via Autonomous

Interpretation: Software Contracts and the CISG’

(Pace International Law Review, Issue 8, 1996,

p. 303-338)

§ 120

Diedrich,

Software Revisited

Frank Diedrich, ‘The CISG and Computer Software

Revisited’

(Vindobona Journal of International Commercial Law

and Arbitration, Supplement, Issue 6, 2002, p. 55-75)

§ 99, 117,

120

Drago/Zoccolillo Thomas J. Drago, Alan F. Zoccolillo, ‘Be Explicit:

Drafting Choice of Law Clauses in International Sale

of Goods Contracts’

(The Metropolitan Corporate Counsel, 2002, p. 9,

available at

http://www.cisg.law.pace.edu/cisg/biblio/zoccolill

o1.html, last seen 11.12.2013)

§ 161

Eiselen Sieg Eiselen, ‘The Requirements for the Inclusion of

Standard Terms in International Sales’

(Potchefstroom Electronic Law Journal, vol. 14,

2011, p. 1-31)

§ 124, 127,

134, 147

Felemegas John Felemegas (ed.), An International Approach to the

Interpretation of the United Nations Convention on

Contracts for the International Sale of Goods (1980) as

Uniform Sales Law

(Cambridge, Cambridge University Press, 2007, p. 8)

§ 160

Fentiman Richard Fentiman, International Commercial Litigation

(Oxford, OUP, 2010)

§ 53


XI


Ferrari,

Applicability

and Applications

Franco Ferrari, Contracts for the International Sale of

Goods: Applicability and Applications of the 1980 United

Nations Sales Convention

(Leiden, Boston, Martinus Nijhoff, 2012)

§ 107

Ferrari,

Tribunale di Vigevano

Franco Ferrari, ‘Applying the CISG in a Truly

Uniform Manner: Tribunale di Vigevano (Italy), 12

July 2000’

(Uniform Law Review, 2001, p. 203-215, available at

http://www.cisg.law.pace.edu/cisg/biblio/ferrari4.

html, last seen 11.12.2013)

§ 134

Flanz/Bortfeld Jacob Flanz, Thomas Bortfeld, ‘Evolution in

Technology to Optimize the Delivery of Proton

Therapy: The Third Generation’

(Seminars in Radiation Oncology, vol. 23, Issue 2,

2013, p. 142-148)

§ 156

Fouchard/Gaillard/

Goldman

Emmanuel Gaillard, John Savage (eds), Fouchard

Gaillard Goldman on International Commercial Arbitration

(The Hague, Kluwer Law International, 1999)

§ 19, 23, 35,

48, 64

Fountoulakis Christiana Fountoulakis, ‘The Parties’ Choice of

‘Neutral Law’ in International Sales Contracts’

(European Journal of Law Reform, Vol. VII, No. 3/4,

2005, p. 303-329)

§ 165

Friedland Paul D. Friedland, Arbitration Clauses for International

Contracts

(Yonkers, New York, Juris Publishing, 2000)

§ 53


XII


Fry/Greenberg/Mazza Jason Fry, Simon Greenberg, Francesca Mazza, The

Secretariat’s Guide to ICC Arbitration: A Practical

Commentary on the 2012 ICC Rules of Arbitration from the

Secretariat of the ICC International Court of Arbitration

(Paris, ICC Publication No. 729, 2012)

§ 69

Author in Gaillard Emmanuel Gaillard (ed.), The Review of International

Arbitral Awards

(Dijon, JURIS, 2008)

§ 17

Gilbert John Gilbert, Multi-Party and Multi-Contract Arbitration

in Julian D. M. Lew et al. (eds), Arbitration in England,

with chapters on Scotland and Ireland

(Alphen aan den Rijn, Kluwer Law International,

2013)

§ 76

Green/Saidov Sarah Green, Djakhongir Saidov, ‘Software as Goods’

(Journal of Business Law, March 2007, p. 161-181)

§ 116, 117,

120

Grierson/van Hooft Jacob Grierson, Annet van Hooft, Arbitrating under the

2012 ICC Rules: An Introductory User’s Guide


§ 76

Hanotiau,

Complex Arbitrations

Bernard Hanotiau, Complex Arbitrations: Multiple Parties

and Multiple Contracts in International Arbitration in

Permanent Court of Arbitration (ed.), Multiple Party

Actions in International Arbitration

(Oxford, OUP, 2009)

§ 64

Hanotiau,

Consent to Arbitration

Bernard Hanotiau, ‘Consent to Arbitration: Do We

Share a Common Vision?’

(Arbitration International, vol. 27, Issue 4, 2011,

p. 539-554)

§ 12


XIII


Hollander Pascal Hollander, ‘The CEPANI 2013 Arbitration

Rules’

(Les Cahiers de l’arbitrage, No. 1, 2013, p. 231)

§ 85, 88

Honnold John O. Honnold, Harry M. Flechtner (ed.), Uniform

Law for International Sales under the 1980 United Nations

Convention

(4th edn, Alphen aan den Rijn, Kluwer Law

International, 2009)

§ 110, 162

Author in Honsell Heinrich Honsell, Kommentar zum UN-Kaufrecht:

Übereinkommen der Vereinten Nationen über Verträge über

den Internationalen Warenkauf (CISG)

(2nd edn, Berlin, Heidelberg, Springer-Verlag, 2010)

§ 105, 106,

117

Huber Peter Huber, ‘Standard Terms under the CISG’


and Arbitration, Issue 13, 2009, p. 123-134)

§ 134

Huber/Mullis Peter Huber, Alastair Mullis, The CISG: A new textbook

for students and practitioners

(München, sellier. european law publishers, 2007)

§ 98, 117,

119

Johannsen Olaf Johannsen, Die Haftung für Softwarefehler aus

internationalen Kaufverträgen

(Göttingen, Georg-August-Universität zu Göttingen,

2007)

§ 98, 98, 110,

116, 117, 120

Kaufmann-Kohler Gabrielle Kaufmann-Kohler, Arbitrage international:

Droit et pratique à la lumière de la LDIP

(2nd edn, Bern, Weblaw, 2010)

§ 7, 10, 11,

17, 39, 46


XIV


Kileste/Godin Patrick Kileste, Nicolas Godin, ‘The New Edition of

the CEPANI Rules’

(available at

http://www.buylelegal.eu/doc_publications/58.pdf

last seen 11.12.2013)

§ 62

Kindler Peter Kindler, Ob Walzfräsmaschine oder Schreibtisch-

sessel: Keine Obliegenheit zur AGB-Übersendung beim

Vertragsschluss nach CISG! in Stephan Lorenz et al.

(eds), Festschrift für Andreas Heldrich zum 70. Geburtstag

(München, C.H. Beck, 2005)

§ 134, 145,

155

Author in Kröll et al. Stefan Kröll, Loukas Mistelis, Pilar Viscasillas (eds),

UN Convention for the International Sale of Goods (CISG)

(München, Hart, Nomos, CH. Beck, 2011)

§ 97, 99, 103,

114

Author in Krone et al. Herbert Krone, Patricia Nacimiento, Dirk Otto,

Nicola Christine Port (eds), Recognition and Enforcement

of Foreign Arbitral Awards: A Global Commentary On The

New York Convention

(Alphen aan den Rijn, Kluwer Law International,

2010)

§ 48, 49, 50

Lautenschlager Félix Lautenschlager, ‘Current Problems Regarding

the Interpretation of Statements and Party Conduct

under the CISG – The Reasonable Third Person,

Language Problems and Standard Terms and

Conditions’


and Arbitration, Issue 11, 2007, p. 259-290)

§ 127, 132,

133, 134,

136, 144, 152

Leboulanger Philippe Leboulanger, ‘Multi-Contract Arbitration’

(Journal of International Arbitration, vol. 13, Issue 4,

1996, p. 43-97)

§ 64, 66, 76,

77


XV


Leete Burt A. Leete, ‘Contract Formation under the United

Nations Convention on Contracts for the International

Sale of Goods and the Uniform Commercial Code:

Pitfalls for the Unwary’

(Temple International and Comparative Law Journal,

1992, Ch. V, available at

http://www.cisg.law.pace.edu/cisg/biblio/leete2.ht

ml#bl, last seen 11.12.2013)

§ 161

Author in

Lew/Mistelis/Kröll

Julian D. M. Lew, Loukas A. Mistelis, Stefan Michael

Kröll (eds), Comparative International Commercial

Arbitration


§ 35

Liebscher Christoph Liebscher, The Healthy Award - Challenge in

International Commercial Arbitration


§ 17, 23

Lookofsky Joseph Lookofsky, ‘In Dubio Pro Conventione? Some

Thoughts About Opt-Outs, Computer Programs and

Preëmption Under the 1980 Vienna Sales Convention

(CISG)’

(Duke Journal of Comparative & International Law,

2003, p. 263-289, available at

http://scholarship.law.duke.edu/cgi/viewcontent.cg

i?article=1145&context=djcil,

last seen 11.12.2013)

§ 98, 116,

117, 161

Maktouf Lotfi Maktouf, ‘Resolving International Tax Disputes

through Arbitration’

(Arbitration International, vol. 4, Issue 1, 1988,

p. 32-51)

§ 105


XVI


Mantilla-Serrano Fernando Mantilla-Serrano, Multiple Parties and

Multiple Contracts: Divergent or Comparable Issues? in

Bernard Hanotiau, Eric A. Schwartz (eds), Multiparty

Arbitration

(Paris, ICC Publication No. 701, Dossier VII of the

ICC Institute of World Business Law, 2010, p. 35-43)

§ 76

Matray Didier Matray, Gautier Matray, ‘Le nouveau

règlement d’arbitrage du centre belge d’arbitrage et

de médiation (CEPANI)’

(b-arbitra, Belgian Review of Arbitration, Bruylant,

n° 1, 2013, p. 45-100, available at

http://issuu.com/deboeck/docs/b-arbitra_batimp/

45?e=1754202/3953279, last seen 11.12.2013)

§ 62, 64

de Meulemeester,

Multicontract Arbitration

Dirk de Meulemeester, ‘Multicontract Arbitration

Under The CEPANI Arbitration Rules (Article 10)’

(Kluwer Arbitration Blog, Wolter Kluwers, 20

October 2013, available at

http://kluwerarbitrationblog.com/blog/2013/10/2

3/multicontract-arbitration-under-the-cepani-

arbitration-rules-article-10/, last seen 11.12.2013)

§ 85

de Meulemeester,

The New Arbitration

Rules

Dirk de Meulemeester, ‘The New Arbitration Rules

of CEPANI’

(Kluwer Arbitration Blog, Wolter Kluwers, 5 August

2013, available at

http://kluwerarbitrationblog.com/blog/2013/08/0

5/the-new-arbitration-rules-of-cepani/, last seen

11.12.2013)

§ 62


XVII


de Meulemeester/Verbist Dirk de Meulemeester, Herman Verbist, Arbitrage in

de praktijk - Op basis van het CEPANI-Arbitragereglement

van 1 januari 2013 en met verwijzingen naar deel VI van

het Gerechtelijk Wetboek

(Bruxelles, Bruylant, 2013)

§ 62

Mittmann Alexander Mittmann, ‘Zur Einbeziehung von

Allgemeinen Geschäftsbedingungen in einen dem

CISG unterliegenden Vertrag’

(International Commercial Law, Issue 3, 2006,

p. 103-106)

§ 129

Neumayer/Ming Karl H. Neumayer, Catherine Ming, François

Dessemontet (ed.), Convention de Vienne sur les contrats

de vente internationale de marchandises: Commentaire

(Lausanne, CEDIDAC, 1993)

§ 97, 105

OCDE OCDE, Principes de l'OCDE applicables en matière de prix

de transfert à l'intention des entreprises multinationales et des

administrations fiscales

(OCDE, 2009)

§ 105

Park William W. Park, Why Courts Review Arbitral Awards in

Robert Briner et al. (eds), Recht der Internationalen

Wirtschaft und Streiterledigung im 21. Jahrhundert: Liber

Amicorum Karl-Heinz Böckstiegel

(Köln, Carl Heymanns, 2001, p. 595-606)

§ 17

Piltz, AGB Burghard Piltz, ‘AGB in UN-Kaufverträgen’


p. 133-138)

§ 124

Piltz, UN-Kaufrecht Burghard Piltz, UN-Kaufrecht: Gestaltung von Export-

und Importverträgen: Wegweiser für die Praxis

(2nd edn, Bonn, Economica Verlag, 1996)

§ 119


XVIII


Platte Martin Platte, Multi-party Arbitration: Legal Issues Arising

out of Joinder and Consolidation in Emmanuel Gaillard,

Domenico Di Pietro (eds), Enforcement of Arbitration

Agreements and International Arbitral Awards

(London, Cameron May, 2008, p. 481-499)

§ 64

Poudret/Besson Jean-François Poudret, Sébastien Besson, Comparative

Law of International Arbitration

(2nd edn, London, Sweet & Maxwell, 2007)

§ 49, 53

Primak L. Scott Primak, ‘Computer Software: Should the

U.N. Convention on Contracts for the International

Sale of Goods Apply? A Contextual Approach to the

Question’

(Computer Law Journal, vol. 11, Issue 2, 1991,

p. 197-231)

§ 98

Pryles/Waincymer Michael Pryles and Jeff Waincymer, Multiple Claims in

Arbitration Between the Same Parties in Albert Jan van den

Berg (ed.), 50 Years of the New York Convention: ICCA

International Arbitration Conference

(Dublin, Kluwer International, vol. 14, p. 437-499)

§ 35, 77, 80

Raschle/Borriello/

Hämmerle

Norbert A. Raschle, Maurizio Borriello, Stefan

Hämmerle, Transfer Pricing in der Unternehmenspraxis -

Steuerplanung und Verteidigung in Peter V. Kunz, Oliver

Arter, Florian S. Jörg (eds), Entwicklungen im

Gesellschaftsrecht VIII

(Bern, Stämpfli, 2013, p. 107-134)

§ 105

Redfern et al.,

International Arbitration

Alan Redfern, Martin Hunter, Nigel Blackaby,

Constantine Partasides, Redfern and Hunter on

International Arbitration

(5th edn, London, Oxford, 2009)

§ 5, 7, 17, 22,

23


XIX


Redfern/Hunter,

Law and Practice

Alan Redfern, Martin Hunter, Law and Practice of

International Commercial Arbitration

(4th edn, London, Sweet & Maxwell, 2004)

§ 7

Rivkin David W. Rivkin, The Impact of Parallel and Successive

Proceedings on the Enforcement of Arbitral Awards in

Parallel State and Arbitral Procedures in International

Arbitration in France Chairman (ed.), Parallel State and

Arbitral Procedures in International Arbitration

(Paris, ICC Publication No. 692, Dossier III of the

ICC Institute of World Business Law, 2005, p. 269-

297)

§ 77

Saf Carolina Saf, ‘A Study of the Interplay between the

Conventions Governing International Contracts of

Sale: Analysis of the 1955 Hague Convention on the

Law Applicable to Contracts of International Sales of

Movable Goods; the 1980 Rome Convention on the

Law Applicable to Contractual Obligations; and the

1980 United Nations Convention on Contracts for the

International Sale of Goods’

(Queen Mary and Westfield College, 1999, Ch. 5,

available at

http://www.cisg.law.pace.edu/cisg/text/saf96.html

, last seen 11.12.2013)

§ 161

Schäfer Friederike Schäfer, ‘Zur Anwendbarkeit des UN-

Kaufrechts auf Werklieferungsverträge’

(Internationales Handelsrecht, vol. 3, 2003, p. 118-

121)

§ 110


XX


Schlechtriem,

Requirements

of Application

Peter Schlechtriem, ‘Requirements of Application and

Sphere of Applicability of the CISG‘

(Victoria University of Wellington Law Review, Issue

4, 2005, p. 781-794)

§ 161

Schlechtriem,

Uniform Sales Law

Peter Schlechtriem, Uniform Sales Law - The UN-

Convention on Contracts for the International Sale of Goods

(Wien, Manz, 1986)

§ 161, 162

Schlechtriem/Schwenzer Peter Schlechtriem, Ingeborg Schwenzer (eds),

Commentary on the UN Convention on the International

Sale of Goods (CISG)

(3rd edn, Oxford, OUP, 2010)

§ 97, 99, 103,

110, 114,

117, 124,

132, 134,

153, 161, 163

Schmidt-Kessel/Meyer Martin Schmidt-Kessel, Linus Meyer, ‘Allgemeine

Geschäftsbedingungen und UN-Kaufrecht’


p. 177-180)

§ 134

Schmitt Hansjörg F. Schmitt, Intangible Goods als Leistungs-

gegenstand internationaler Online-Kaufverträge: Im UN-

Kaufrecht und Internationalen Privatrecht sowie in deutschen

Verbraucherschutzgesetzen

(Frankfurt am Main, Peter Lang, 2003)

§ 98, 117

Author in Schütze/

Tscherning/Wais

Rolf A. Schütze, Dieter Tscherning, Walter Wais

(eds), Handbuch des Schiedsverfahrens: Praxis der deutschen

und internationalen Schiedsgerichtsbarkeit

(2nd edn, Berlin, New York, de Gruyter, 1990)

§ 53

Schwenzer/Hachem/Kee Ingeborg Schwenzer, Pascal Hachem, Christopher

Kee, Global Sales and Contract Law

(New York, OUP, 2012)

§ 12, 98


XXI


Sono Hiroo Sono, The Applicability and Non-Applicability of

the CISG to Software Transactions in Camilla B. Andersen

and Ulrich G. Schroeter (eds), Sharing International

Commercial Law across National Boundaries: Festschrift for

Albert H. Kritzer on the Occasion of his Eightieth Birthday

(Wildly, Simmonds and Hill Publishing, 2008, p. 512-

526)

§ 103, 110,

120

Author in Staudinger Michael Martinek (ed.), J. von Staudingers Kommentar

zum Bürgerlichen Gesetzbuch mit Einführungsgesetz und

Nebengesetzen: Wiener UN-Kaufrecht (CISG)

(revised edn, Berlin, Sellier – de Gruyter, 2013)

§ 106, 110

Steingruber Andrea Marco Steingruber, Consent in International

Arbitration

(Oxford, OUP, 2012)

§ 19

Stiegele/Halter Andreas Stiegele, Rudolf Halter, ‘Einbeziehung von

Allgemeinen Geschäftsbedingungen im Rahmen des

UN-Kaufrechts – Zugänglichmachung im Internet’


p. 169-170)

§ 132

Oberson Xavier Oberson, Précis de droit fiscal international

(3re edn, Bern, Stämpfli, 2009)

§ 105

UNCITRAL,

Digest of Case Law

UNCITRAL 2012 Digest of Case Law on the Model

Law on International Commercial Arbitration

(New York, United Nations Publication, 2012)

§ 18

Verbist,

New Belgian Arbitration

Law

Herman Verbist, ‘New Belgian Arbitration Law of 24

June 2013 and New Cepani Arbitration Rules of 1

January 2013’

(Journal of International Arbitration 30, No. 5, 2013,

p. 597-618)

§ 62


XXII


Verbist,

New CEPANI Rules

Herman Verbist, ‘New CEPANI Rules of Arbitration

in Force as from 1 January 2013’

([email protected] (Gent), No. 4, 2012, p. 51-60,

available at http://hdl.handle.net/1854/LU-

3111611, last seen 11.12.2013)

§ 62

Voser Nathalie Voser, ‘Overview of the Most Important

Changes in Revised ICC Arbitration Rules’

(ASA Bulletin, Kluwer Law International, vol. 29,

Issue 4, 2011, p. 783)

§ 62, 69, 76

Waincymer Jeff Waincymer, Procedure and Evidence in International

Arbitration


§ 71, 80

Whitesell/Romero Anne Marie Whitesell, Eduardo Silva Romero,

Multiparty and Multicontract Arbitration: Recent ICC

Experience in Robert Briner (ed.), Complex Arbitrations:

Perspectives on their Procedural Implications

(Paris, ICC Publication, Special Supplement 2003,

p. 7-19)

§ 69, 77

Author in Wolff Reinmar Wolff (ed.), New York Convention on the

Recognition and Enforcement of Foreign Arbitral Awards –

Commentary –

(Baden-Baden, C.H. Beck, Hart, Nomos, 2012)

§ 48, § 71

Memorandum for CLAIMANT Table of Arbitral Awards

XXIII

TABLE OF ARBITRAL AWARDS


Belgian Centre for Arbitration and Mediation

CEPANI Award

No. 2112

CEPANI Award No. 2112

Join-stock company A v. Madame B

28 May 1999

Collection of CEPANI Arbitral Awards 1996-2001,

p. 275-315

§ 19

Bulgarian Chamber of Commerce and Industry

AC BCCI, 60/1980 AC BCCI No. 60 of 1980

Seller (Bulgarian creditor) v. Buyer (FRG debtor)

1 October 1980

Yearbook of Commercial Arbitration, vol. XII (1987),

p. 84, 85

§ 35


Claimant (Republic of China) v. Defendant (Bulgaria)

Journal du droit international 1998, p. 767-769

§ 53


Seller (Germany) v. Buyer (Bulgaria)

12 June 2011

available at

http://cisgw3.law.pace.edu/cases/010612bu.html,

last seen 11.12.2013

§ 162

China International Economic & Trade Arbitration Commission


XXIV


CIETAC, 13 June 2005 Industrial general equipment case

Buyer (People’s Republic of China) v. Seller

(Singapore)

13 June 2005

available at

http://cisgw3.law.pace.edu/cases/050613c1.html,


§ 107

CIETAC, 16 Sept 2005 Wool and Wooltop case

Buyer (People’s Republic of China) v. Seller

(Australia)

16 September 2005

available at

http://cisgw3.law.pace.edu/cases/050916c1.html,


§ 145

Hamburg Commedity Exchange (Grain Merchants’ Association)

Hamburg Commedity

Exchange, 14 Mar 1994

Hamburg Commedity Exchange (Grain Merchants’

Association)

18 March 1994

Year Book of Commercial Arbitration, vol. XXII

(1997), p. 53

§ 49

International Chamber of Commerce

ICC Case No.

1900/1972

ICC Case No. 1900 of 1972

Licensor (Italy) v. Distributor (Spain)

Journal de droit international 1974, p. 897-902

§ 129, 150

Preliminary Award in ICC

Case No. 2321/1974

Preliminary Award in ICC Case No. 2321 of 1974

Year Book of Commercial Arbitration, vol. I (1976),

p. 133-135

§ 10


XXV


ICC Case No.

1434/1975


Company A. v. Company B.


§ 19

ICC Case No.

5346/1988


Consorsium Partner X (Egypt) v. Consorsium Partner

Y (France)


§ 129

ICC Case No.

5989/1989


Contractor v. Employers A and B

Collection of ICC Arbitral Awards, 1986-1990,

p. 227-235

§ 69, 78

International Centre for Settlement of Investment Disputes

ICSID Award,

25 Sept 1983

Amco Asia Corp. v. Republic of Indonesia

ICSID Case No. ARB/81/1

25 September 1983

available at

https://icsid.worldbank.org/ICSID/FrontServlet?req

uestType=CasesRH&actionVal=showDoc&docId=D

C663_En&caseId=C126, last seen 11.12.2013

§ 19, 20

Memorandum for CLAIMANT Table of Court Decisions

XXVI

TABLE OF COURT DECISIONS


Austria

OGH, 6 Feb 1996 Oberster Gerichtshof

6 February 1996

Case No.: 10 Ob 518/95

§ 152

OGH, 17 Dec 2003 Oberster Gerichtshof

17 December 2003

Case No.: 7 Ob 275/03x

§ 127, 139,

148, 150, 152

OGH, 21 June 2005 Oberster Gerichtshof

21 June 2005

Case No.: 5 Ob 45/05m

§ 98

OLG Linz, 8 Aug 2005 Oberlandesgericht Linz

8 August 2005

Case No.: 3 R 57/05f

§ 124

Belgium

TCo Nivelles,

19 Sept 1995

Tribunal Commercial de Nivelles

19 September 1995

Case No.: R.G. 1707/93

§ 133

Brazil

Kia Motors v.

Washington Armênio

Lopes et al.

Kia Motors Corp. v. Washington Armênio Lopes et

al.

Superior Court of Justice

19 October 2011

Case No.: SEC No. 1-EX (2007/0156979-5)

§ 35


XXVII


Canada

Desputeaux v.

Editions Chouette

Desputeaux v. Editions Chouette Inc.

Supreme Court

21 March 2003

Case No.: 2003 SCC 17

§ 22

France

CA Grenoble,

21 Oct 1999

Cour d’Appel de Grenoble

21 October 1999

Case No.: 97-03974

§ 107

CA Paris, 31 May 2001 Cour d’Appel de Paris

31 May 2001

Case-No.: E5

§ 35

CA Paris, 16 Nov 2006 Cour d’Appel de Paris

16 November 2006

Case No.: 04-24238

§ 87

Germany

BGH, 18 Dec 1975

Bundesgerichtshof

18 December 1975

Case No.: III ZR 103/73

§ 31, 53

BGH, 3 Feb 1982 Bundesgerichtshof

3 February 1982

Case No.: VIII ZR 316/80

§ 155

BGH, 10 Oct 1991 Bundesgerichtshof

10 October 1991

Case No.: III ZR 141/90

§ 31


XXVIII


BGH, 4 Dec 1996 Bundesgerichtshof

4 December 1996


§ 117

BGH, 25 Nov 1998 Bundesgerichtshof

25 November 1998


§ 161

BGH, 31 Oct 2001 Bundesgerichtshof

31 October 2001


§ 134

OLG Bayern,

15 Dec 1999

Oberlandesgericht Bayern

15 December 1999

Case No.: 4 Z Sch 23/99

§ 23

OLG Düsseldorf,

21 Apr 2004

Oberlandesgericht Düsseldorf

21 April 2004

Case No.: 15 U 88/03

§ 141

OLG Frankfurt,

17 Sept 1991

Oberlandesgericht Frankfurt

17 September 1991

Case No.: 5 U 164/90

§ 103

OLG Hamburg,

14 May 1999

Oberlandesgericht Hamburg

14 May 1999

Case No.: 1 Sch. 2/99

§ 53

OLG Koblenz,

17 Sept 1993

Oberlandesgericht Koblenz

17 September 1993

Case No.: 2 U 1230/91

§ 119

OLG München,

3 Dec 1999

Oberlandesgericht München

3 December 1999

Case No.: 23 U 4446/99

§ 107


XXIX


OLG München,

29 Oct 2009


29 October 2009

Case No.: 34 Sch. 15/09

§ 23

OLG München,

14 Mar 2011


14 March 2011

Case No.: 34 Sch. 08/10

§ 23

LG Coburg, 12 Dec 2006 Landgericht Coburg

12 December 2006

Case No.: 22 O 38/06

§ 124

LG Kassel, 15 Feb 1996 Landgericht Kassel

15 February 1996

Case No.: 11 O 4187/95

§ 139

LG München,

8 Feb 1995

Landgericht München

8 February 1995

Case No.: 8 HKO 24667/93

§ 98

India

Oil & Natural Gas v.

SAW Pipes

Oil & Natural Gas Corp. v. SAW Pipes

17 April 2003

Case No.: 7419 2001

§ 22

Italy

Trib Rimini,

26 Nov 2002

Tribunale di Rimini

26 November 2002

Case No.: 3095

§ 97, 114

Trib Vigevano,

12 July 2000

Tribunale di Vigevano

12 July 2000

Case No.: 405

§ 134

Netherlands


XXX


Hof’s-Hertogenbosch,

16 Oct 2002

Gerechtshof Hertogenbosch

16 October 2002

Case No.: 20089/HA ZA 98-1077

§ 155

Rb Arnhem,

28 June 2006

Arrondissementsrechtbank Arnhem

28 June 2006

Case No.: 82879/HA ZA 02-105

§ 117

Spain

Uniprex v. Grupo Radio

Blanca

Uniprex S.A. v. Grupo Radio Blanca

Madrid Court of Appeal

22 March 2006

Case No.: 178/2006-4/2004

§ 22

Switzerland

BGE, 25 July 1990 Bundesgericht

25 July 1990

Case No.: SJ 1991 p. 12

§ 22

BGE, 17 Oct 2000 Bundesgericht

17 October 2000

Case No.: 4C.422/1999/rnd

§ 103

BGE, 17 Jan 2013

Bundesgericht

17 January 2013

Case No.: 4A.244/2012

§ 53

BGE, 27 Jan 2013 Bundesgericht

27 January 2013

Case No.: 4A_95/2013

§ 23

TCa Vaud, 11 Mar 1996 Tribunal Cantonal Vaud

11 March 1996

Case No.: 01 93 1061

§ 97


XXXI


HG Zürich, 10 Feb 1999 Handelsgericht Zürich

10 February 1999

Case No.: HG 970238.1

§ 103

HG Zürich, 8 Apr 1999 Handelsgericht Zürich

8 April 1999

Case No.: HG 980280.1

§ 105, 106

HG Zürich, 17 Feb 2000 Handelsgericht Zürich

17 February 2000

Case No.: HG 980472

§ 117

United Kingdom

Law Debenture Trust v.

Elektrim Finance B.V. et

al.

Law Debenture Trust Corp. PLC v. Elektrim Finance

B.V. et al.

Royal Courts of Justice

1 July 2005

Case No.: [2005] 1 All ER 476

§ 31

Lesotho Highlands

Development Authority v.

Impregilo

Lesotho Highlands Development Authority v.

Impregilo SpA

House of Lords

30 June 2005

Case No.: [2005] UKHL 43

§ 17

Lobb Partnership v.

Aintree Racecourse

Company

Lobb Partnership Ltd. v. Aintree Racecourse

Company Ltd.

High Court of Justice, Queen's Bench Division

(Commercial Court)

22 November 1999

Case No.: BLR 65

§ 55

United States of America


XXXII


Ajax Tool Works v. Can-

Eng Manufacturing

Ajax Tool Works, Inc. v. Can-Eng Manufacturing Ltd

United States District Court, Northern District of

Illinois

29 January 2003

Case No.: 01 C 5938

§ 161

American Mint et al. v.

GOSoftware

American Mint LLC, Goede Beteiligungsgesellschaft,

and Michael Goede v. GOSoftware, Inc.

United States District Court, M.D. Pennsylvania

16 August 2005

Case No.: Civ.A. 1:05-CV-650

§ 161

Asante Technologies v.

PMC-Sierra

Asante Technologies, Inc. v. PMC-Sierra, Inc.

United States District Court, Northern District of

California

27 July 2001

Case No.: C 01-20230 JW

§ 160, 161

Becker Autoradio v.

Becker Autoradiowerk

Becker Autoradio U.S.A. Inc. v. Becker

Autoradiowerk GmbH

United States Court of Appeals, 3rd Circuit,

17 July 1978

Case No.: 585 F.2d.39

§ 31

BP Oil International v.

Empresa Estatal Petroleos

de Ecuador

BP International, Ltd. and BP Exploration & Oil, Inc.,

Plaintiffs-Appellants v. Empressa Estatal Petroleos de

Ecuador, et al., Defendants, Empresa Estatal

Petroleos de Ecuador and Saybolt, Inc., Defendants-

Appellees

United States Court of Appeals, 5th Circuit

11 June 2003

Case No.: 02-20166

§ 160, 161


XXXIII


Bowen v. Amoco Pipeline Bowen v. Amoco Pipeline Co.

Unites States Court of Appeals, 10th Circuit

20 June 2001

Case No.: 254 F.3d 925

§ 26, 27, 29

CGB Marine Services v.

M/S Stolt Entente

CGB Marine Services Co. v. M/S Stolt Entente

United States Marine District Court, Louisiana

22 November 1988

Case No.: 86-3877

§ 29

Easom Automation

Systems v. Thyssenkrupp

Fabco

Easom Automation Systems, Inc. v. Thyssenkrupp

Fabco, Corp.

United States District Court, Eastern District Court,

Michigan

28 September 2007

Case No.: 06-14553

§ 161

Forestal Guarani v. Daros

International,

Forestal Guarani, S.A. v. Daros International, Inc.

United States District Court, New Jersey

7 October 2008

Case No.: 03-4821 JAG

§ 160, 161

Hall Street Associates v.

Mattel

Hall Street Associates, L.L.C. v. Mattel, Inc.

United States Supreme Court, 9th Circuit

25 March 2008

Case No.: 552 U.S. 576

§ 17

KBC v. Pentamina Karaha Boda Co., L.L.C. (Cayman Islands) v.

Perusahaan Pertambangan Minyak Dan Gas Bumi

Negara (Indonesia), et al.


23 March 2004

Case No: 02-20042; 03-20602

§ 76


XXXIV


LaPine Technology v.

Kyocera

LaPine Technology Corp. v. Kyocera Corp.

United States District Court, North District California

11 December 1995

Case No.: 909 F. Supp. 697

§ 17, 26

Marble Ceramic v.

Ceramica Nuova

MCC – Marble Ceramic Center Inc. v. Ceramica

Nuova d’Agostina


29 June 1998

Case No.: 97- 4250

§ 148

Mitsubishi Motors v.

Soler Chrysler-Plymouth

Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth

Inc.

United States Supreme Court, 1st Circuit

2 July 1985

Case No.: 83-1569

§ 11

Moses H. Cone Memorial

Hospital v. Mercury

Constr.

Moses H. Cone Memorial Hospital v. Mercury

Constr. Corp.

United States Supreme Court, 4th Circuit

23 February 1983

Case No.: 103 F. Supp. 927

§ 11

Prime Therapeutics v.

Omnicare

Prime Therapeutics LLC v. Omnicare, Inc.

Supreme Court of Minnesota

21 May 2008

Case No: 555 F. Supp. 2d 993

§ 17

South Central Bell

Telephone v. Sidney J.

Barthelemy, et al.

South Central Bell Telephone Co. v. Sidney J.

Barthelemy, et al.

Supreme Court of Louisiana

17 October 1994

Case No.: 94-C-0499

§ 116


XXXV


Stella Maris v. Cork

Supply

Stella Maris Inc. v. Cork Supply SA

United States District Court, Oregon

26 April 2012

Case No.: 2012 WL 1468488

§ 128

The Travelers Property

Casualty and Hellmuth

Obata & Kassabaum v.

Saint-Gobain Technical

Fabrics

The Travelers Property Casualty Company of America

and Hellmuth Obata & Kassabaum, v. Saint-Gobain

Technical Fabrics Canada

United States District Court, Minnesota

31 January 2007

Case No.: Civ. 04-4386 ADM/AJB

§ 161

UHC Management v.

Computer Sciences

UHC Management Co. v. Computer Sciences Corp.


7 July 1998

Case No.: 148 F.3d 992

§ 26, 28, 29

Memorandum for CLAIMANT Table of Legal Sources

XXXVI

TABLE OF LEGAL SOURCES

CEPANI Rules Arbitration Rules of the Belgian Centre for Mediation and Arbitration

CISG United Nations Convention on the International Sale of Goods, 1980

ICC Rules Arbitration Rules of the International Chamber of Commerce

NYC Convention on the Recognition and Enforcement of Foreign Arbitral

Awards, New York (10 June 1958)

UNIDROIT Principles UNIDROIT Principles of International Commercial Contracts

UNCITRAL Model Law UNCITRAL Model Law on International Commercial Arbitration, 1985

with 2006 Amendments

Memorandum for CLAIMANT Table of Abbreviations

XXXVII

TABLE OF ABBREVIATIONS

% per cent

§ paragraph(s)

& and

A.R.A. Answer to Request for Arbitration

Art. Article(s)

ASA Association suisse de l’arbitrage (Swiss Arbitration Association)

BCCI Bulgarian Chamber of Commerce and Industry

BE Belgium

BGE Bundesgericht (Supreme Court Switzerland)

BGH Bundesgerichtshof (Supreme Court Germany)

BJC Belgian Judicial Code

CA Cour d’Appel (Appellate Court)

CC Chambre Commerciale (Commercial Court)

CCP Code of Civil Procedure

CEPANI Rules Arbitration Rules of the Belgian Centre for Arbitration and Mediation

cf. confer (see)

CH Switzerland

CIETAC China International Economic & Trade Arbitration Commission

CISG United Nations Convention on the International Sale of Goods, Vienna, 11 April

1980

Cl. Ex. CLAIMANT’s Exhibit Number

Co. Company

Corp. Corporation


XXXVIII

Dr. Doctor

EAA English Arbitration Act

ed. editor

edn edition

eds editors

Eng. English

et al. et alii (and others)

FR France

FSA Framework and Sales Agreement

HG Handelsgericht (Commercial Court)

i.e. id est (that means)

ibid. ibidem (the same)

ICC International Chamber of Commerce and Industry

ICSID International Centre for Settlement of Investment Disputes

Inc. Incorporated

infra see below

lex arbitri Law of the place where arbitration is to take place

LG Landgericht (District Court)

Ltd. Limited

LTF Loi sur le Tribunal fédéral (law of the supreme Court of Switzerland)

Mio million

Mr. Mister

Model Law UNCITRAL Model Law

No. Number


XXXIX

NYC New York Convention on the Recognition and Enforcement of Foreign Arbitral

Awards

OGH Oberster Gerichtshof (Supreme Court Austria)

OLG Oberlandesgericht (Appellate Court)

p. page(s)

PO Procedural Order No.

R.A. Request for Arbitration

Rb Arrondissementsrechtbank (District Court)

Re. Ex. RESPONDENT’s Exhibit Number

SCA/CEPANI CEPANI Scale of the costs for arbitration

Sec. Section(s)

SLA Sales and Licensing Agreement

ST 2000 November 2000 version of Innovative Cancer Treatment Ltd Standard Terms and

Conditions for Sale

ST 2011 July 2011 version of Innovative Cancer Treatment Ltd Standard Terms and

Conditions for Sale

supra see above

TCa Tribunal Cantonal (Canton Appellate Court)

TCo Tribunal Commercial (District Court)

Trib Tribunale (District Court)

UK United Kingdom

UNCITRAL United Nations Commission on International Trade Law

UNIDROIT

Principles

Principles of International Commercial Contracts of the International Institute for the

Unification of Private Law

USD United States of America Dollars


XL

v. versus

vol. volume

XLI

Documents

Memorandum for Claimant - GENEVA - Pace Universitycisgw3.law.pace.edu/cisg/moot/claimant21-2.pdf · twenty first annual willem c. vis international commercial arbitration moot vienna,