L 1030 - R
KUALA LUMPUR REGIONAL CENTRE FOR ARBITRATION
2013
JACK SMALL LTD
CLAIMANT
V.
TON SEN IMPORTS
RESPONDENT
MEMORIAL FOR RESPONDENT
TABLE OF CONTENTS
STATEMENT OF JURISDICTION ........................................................................... 7
QUESTIONS PRESENTED...................................................................................... 8
STATEMENT OF FACTS ......................................................................................... 9
SUMMARY OF PLEADINGS ................................................................................ 10
RESPONDENT’S PLEADINGS ............................................................................. 12
I. SINGAPOREAN LAW SHOULD BE THE PROPER LAW TO APPLY IN
RESOLVING THIS DISPUTE. ....................................................................... 12
A. TWO PARTIES AGREED TO APPLY THE SINGAPOREAN LAW IN
RESOLVING THE DISPUTE. ................................................................. 12
B. THE TRIBUNAL SHOULD UPHOLD THE PARTIES’ CHOICE OF
LAW CLAUSE AS THE KLRCA RULES RECOGNIZES PARTY
AUTONOMY. ......................................................................................... 12
C. THE TRIBUNAL SHOULD RESPECT THE PARTIES’ CHOICE DUE
TO THE PRINCIPLE OF FREEDOM OF CONTRACT. ......................... 13
D. TERRITORIALITY PRINCIPLE AND NATIONALITY PRINCIPLE
REQUIRES TO APPLY SINGAPOREAN LAW. ..................................... 13
E. THE APPLICATION OF SINGAPORE LAW DOES NOT VIOLATE
ANY PUBLIC POLICY. .......................................................................... 13
II. THE CLAIMANT HAS NO PRIVATE RIGHT OF ACTION IN
ACCORDANCE WITH CITES AND SINGAPORE’S ENDANGERED
SPECIES (IMPORT AND EXPORT) ACT. ..................................................... 14
A. CITES DOES NOT PROVIDE OR CREATE A PRIVATE RIGHT OF
ACTION. ................................................................................................. 14
B. ESA DOES NOT PROVIDE OR CREATE A PRIVATE RIGHT OF
ACTION. ................................................................................................. 14
C. AS A BUSINESS ENTITY, THE CLAIMANT HAS NO PRIVATE
RIGHT OF ACTION IN ACCORDANCE WITH CITES AND
SINGAPORE’S ENDANGERED SPECIES (IMPORT AND EXPORT)
ACT. ........................................................................................................ 15
III. USING FUR OF “ENDANGERED ANIMALS” CANNOT LEAD TO THE
CLAIMANT’S LOSS. ..................................................................................... 15
A. THERE IS NO BREACH OF LAW .................................................... 15
B. THERE IS NO CAUSATION BETWEEN THE RESPONDENT’S USE
OF FUR AND THE DAMAGES THE CLAIMANT SUFFERS ............... 18
C. THE CLAIMANT DOES NOT HAVE THE RIGHT TO SUE UNDER
PRIVATE ACTION. ................................................................................. 20
IV. PUTTING REAL FUR INTO FAUX FUR MARKET AND
MISLABELING CANNOT RESULT IN LOSS SUFFERED BY THE
CLAIMANT. ................................................................................................... 20
A. PUTTING REAL FUR INTO FAUX FUR MARKET CANNOT
CONSTITUTE UNFAIR BUSINESS PRACTICE ................................... 21
B. MISLABELING CANNOT CONSTITUTE UNFAIR BUSINESS
PRACTICE. ............................................................................................. 22
C. THE ACTS OF USING REAL FUR IN FAUX FUR MARKET AND
MISLABELING CANNOT LEAD TO THE LOSS OF THE CLAIMANT
23
V. THE ADVERTISEMENT CANNOT LEAD TO THE LOSS OF THE
CLAIMANT .................................................................................................... 23
A. THE ADVERTISEMENT IS NOT FALSE OR MISLEADING........... 23
B. THE ADVERTISEMENT CANNOT RESULT IN THE LOSS OF THE
CLAIMANT ............................................................................................ 26
CONCLUSION AND PRAYER OF RELIEF .......................................................... 27
INDEX OF AUTHORITIES
Statutes, Rules, International Treaties and Covenants
ARBITRATION ACT 2005 (ACT 646)
AUSTRALIAN TRADE PRACTICES ACT
ENDANGERED SPECIES (IMPORT AND EXPORT) ACT
INTERNATIONAL ARBITRATION (AMENDMENT) ACT 2002 (CAP 143A)
KUALA LUMPUR REGIONAL CENTRE FOR ARBITRATION FAST TRACK
RULES 2ND EDITION 2012
THE CLAYTON ACT (US)
UN CONVENTION ON INTERNATIONAL TRADE IN ENDANGERED SPECIES
(CITES)
UNITED NATIONS COMMISSION ON INTERNATIONAL TRADE LAW
ARBITRATION RULES 2010
Cases
Associated General Contractors of California, Inc. v. California State Council of
Carpenters et al, 459 U.S. 519
Deere & Co. v. MTD Prods., 860 F. Supp. 113
Haskell v. Time, Inc., 857 F. Supp. 1392
In Public Prosecutor v Kuah Kok Choon ([2000] SGHC 244)
Sunny Metal & Engineering Pte Ltd v Ng Khim Ming Eric [2007] 3 SLR 782
Yeo Yoke Mui v Ng Liang Poh [1999] 2 SLR(R) 701, F v Chan Tanny [2003] 4 SLR(R)
231
Yorkshire Dale Steamship Co v Minister of War Transport [1942] AC 691 (HL), March
v Stramare (1991) 171 CLR 506
STATEMENT OF JURISDICTION
Jack Small Ltd (“Claimant”) and Ton Sen Imports (“Respondent”) jointly submit the
present dispute to the Kuala Lumpur Regional Centre for Arbitration (“KLRCA”) in
conformity with the KLRCA arbitration rules. All hearings and other proceedings
should be held in Singapore. In accordance with Article 1(2) of the Kuala Lumpur
Regional Centre for Arbitration Fast Track Rules (“the Rules”), each party shall accept
the award by the Arbitral Tribunal as final and binding and shall execute it in good faith
in its entirety. The Respondent has not challenged the authority of the
Arbitral Tribunal.
QUESTIONS PRESENTED
I. WHAT IS THE GOVERNING LAW TO APPLY IN RESOLVING THE DISPUTE?
II. WHETHER THE CLAIMANT HAS A PRIVATE RIGHT OF ACTION IN
ACCORDANCE WITH CITES AND SINGAPORE’S ENDANGERED SPECIES
(IMPORT AND EXPORT) ACT?
III. CAN THE USING FUR OF “ENDANGERED ANIMALS” LEAD TO THE
CLAIMANT’S LOSS? SPECIFICALLY, DOSE THE USING FUR OF
“ENDANGERED ANIMALS” SATISFY THE THREE REQUIREMENTS:
BREACH OF LAW, DAMAGES AND THE CAUSATION BETWEEN THE TWO?
IV. CAN PUTTING REAL FUR INTO FAUX FUR MARKET AND MISLABELING
RESULT IN LOSS SUFFERED BY THE CLAIMANT?
A. CAN PUTTING REAL FUR INTO FAUX FUR MARKET CONSTITUTE
UNFAIR BUSINESS PRACTICE IN THIS PARTICULAR CIRCUMSTANCE?
B. CAN MISLABELING CONSTITUTE UNFAIR BUSINESS PRACTICE?
C. CAN THE CAUSATION BE ESTABLISHED BETWEEN THE ACTS AND THE
LOSS OF CLAIMANT?
V. CAN THE ADVERTISEMENT LEAD TO THE LOSS OF THE CLAIMANT?
A. IS THE ADVERTISEMENT FALSE OR MISLEADING?
B. CAN THE ADVERTISEMENT RESULT IN THE LOSS OF THE CLAIMANT?
STATEMENT OF FACTS
A. Jack Small (“The claimant”) and Ton Sen (“The Respondent”) are Singapore stores,
which sell both real fur and faux fur clothing. China Fur is the Respondent’s supplier in
China.
B. The Respondent imports fur from China Fur and purchases fur clothing, which is
made from fur of the Asian Golden Cat - an endangered animal listed on CITES and by
the IUCN as “Near Threaten.” However, this action cannot lead to claimant’ loss for
no breach of law and no causation between using endangered animal fur and damages.
And fatally, the Claimant has no right to sue under private action. Furthermore, the
Respondent mix these real fur products into faux fur ones and mislabel them. But
putting real fur into faux fur market cannot constitute unfair business practice in this
particular circumstance. Mislabeling is the natural consequence of using real fur in faux
fur market. The causation cannot be established between the acts and the loss of
claimant. The advertisement “having the touch, feel and smell of real fur” is not false or
misleading. It cannot mislead consumers to purchase the products of the respondent.
The respondent is not responsible for the claimant’s loss.
C. The conducts alleged by the claimant made by the respondent cannot lead to a loss
by the claimant. The respondent will refutes the allegations by analyzing each act
made by the claimant. The claimant’s allegations shall be dismissed. The
respondent is not responsible for the loss of the claimant when they use fur of
endangered animals, mislabel and make advertisement.
SUMMARY OF PLEADINGS
I. SINGAPOREAN LAW SHOULD BE THE PROPER LAW TO APPLY IN
RESOLVING THIS DISPUTE.
A. TWO PARTIES AGREED TO APPLY THE SINGAPOREAN LAW IN
RESOLVING THE DISPUTE.
B. THE TRIBUNAL SHOULD UPHOLD THE PARTIES’ CHOICE OF LAW
CLAUSE AS THE KLRCA RULES RECOGNIZES PARTY AUTONOMY.
C. THE TRIBUNAL SHOULD RESPECT THE PARTIES’ CHOICE DUE TO THE
PRINCIPLE OF FREEDOM OF CONTRACT.
D. TERRITORIALITY PRINCIPLE AND NATIONALITY PRINCIPLE REQUIRES
TO APPLY SINGAPOREAN LAW.
E. THE APPLICATION OF SINGAPORE LAW DOES NOT VIOLATE ANY
PUBLIC POLICY.
II. THE CLAIMANT HAS NO PRIVATE RIGHT OF ACTION IN ACCORDANCE
WITH CITES AND SINGAPORE’S ENDANGERED SPECIES (IMPORT AND
EXPORT) ACT.
A. CITES DOES NOT PROVIDE OR CREATE A PRIVATE RIGHT OF ACTION.
B. ESA DOES NOT PROVIDE OR CREATE A PRIVATE RIGHT OF ACTION.
C. AS A BUSINESS ENTITY, THE CLAIMANT HAS NO PRIVATE RIGHT OF
ACTION IN ACCORDANCE WITH CITES AND SINGAPORE’S ENDANGERED
SPECIES (IMPORT AND EXPORT) ACT.
III. USING FUR OF “ENDANGERED ANIMALS” CANNOT LEAD TO THE
CLAIMANT’S LOSS.
A. THERE IS NO BREACH OF LAW
B. THERE IS NO CAUSATION BETWEEN THE RESPONDENT’S USE OF FUR
AND THE DAMAGES THE CLAIMANT SUFFERS
C. THE CLAIMANT DOES NOT HAVE THE RIGHT TO SUE UNDER PRIVATE
ACTION.
IV. PUTTING REAL FUR INTO FAUX FUR MARKET AND MISLABELING
CANNOT RESULT LOSS SUFFERED BY THE CLAIMANT.
A. PUTTING REAL FUR INTO FAUX FUR MARKET CANNOT CONSTITUTE
UNFAIR BUSINESS PRACTICE
B. MISLABELING CANNOT CONSTITUTE UNFAIR BUSINESS PRACTICE.
C. THE ACTS OF USING REAL FUR IN FAUX FUR MARKET AND
MISLABELING CANNOT LEAD TO THE LOSS OF THE CLAIMANT
V. THE ADVERTISEMENT CANNOT LEAD TO THE LOSS OF THE
CLAIMANT
A. THE ADVERTISEMENT IS NOT FALSE OR MISLEADING.
B. THE ADVERTISEMENT CANNOT RESULT IN THE LOSS OF THE
CLAIMANT
RESPONDENT’S PLEADINGS
I. SINGAPOREAN LAW SHOULD BE THE PROPER LAW TO APPLY IN
RESOLVING THIS DISPUTE.
A. Two parties agreed to apply the Singaporean Law in resolving the dispute.
Though the Clarification E shows the parties have not come to an agreement to the
applicable law, it is just true in form to say so. The claimant’s requests and the
respondent’s contentions are both using Singaporean law to argue for their own benefits,
showing that in fact the parties have agreed to choose Singaporean law applicable and
binding.
B. The Tribunal should uphold the parties’ choice of law clause as the KLRCA Rules
recognizes party autonomy.
According to Article 35 of UNCITRAL rules,” The arbitral tribunal shall apply the
rules of law designated by the parties as applicable to the substance of the dispute.” The
article embodies the principle of “party autonomy”, giving the parties the freedom to
select the applicable law in the contract, for which most arbitral tribunals display
considerable respect. No law in this article is strictly forbidden used in KLRCA
arbitration tribunal, so as long as two parties choose Singaporean law as the applicable
law, the tribunal has no reason to reject.
C. The tribunal should respect the parties’ choice due to the principle of freedom of
contract.
Existing law system and international principles stress on the principle of freedom of
contract. One thing of this principle is that the principals have their own right to decide
the content of contract, unless the content is contrary to mandatory law. There is no
compulsory law to say that Singaporean law cannot be used in this case, so it is
completely legal to have this agreement and it should be respected.
D. Territoriality principle and nationality principle requires to apply Singaporean law.
Both the CLAIMANT and RESPONDENT registered in Singapore and the trading
dispute occurs in Singapore. So based on the principles, it is reasonable to use
Singaporean law as binding because the two parties are more used to Singaporean law
and are usually regulated by it.
E. The application of Singapore law does not violate any public policy.
There is no universal definition and application of public policy. It can be understood as
fundamental principles of law that restricts agreement, which has the tendency to be
injurious against the public. The public policy of the forum state must also be
substantially violated by the contract in order to deny its application. As a general
yardstick, when the choice of law purposefully evades the application of laws of the
forum or related countries, it constitutes a violation against public policy.
II. THE CLAIMANT HAS NO PRIVATE RIGHT OF ACTION IN ACCORDANCE
WITH CITES AND SINGAPORE’S ENDANGERED SPECIES (IMPORT AND
EXPORT) ACT.
A. CITES does not provide or create a private right of action.
a) CITES is an international agreement between governments, which is legally
binding on the signatories. Specifically, States have to implement the Convention –
it does not take the place of national laws. Rather it provides a framework to be
respected by each Party, which has to adopt its own domestic legislation to ensure
that CITES is implemented at the national level. And Singapore’s ESA is an Act to
give effect to the CITES.
b) In article I definitions of CITES, it defines explicitly that “Party” means a State for
which the present Convention has entered into force. Therefore, a person or a
private entity has no right of action based on CITES.
B. ESA does not provide or create a private right of action.
a) In accordance with the interpretation of ESA,“Director” means the Director of
Primary Production and includes a Deputy Director of Primary Production and an
Assistant Director of Primary Production;
b) In accordance with ESA, only the Director and authorized officers appointed by the
Director have the power to require scheduled species to be marked, require
information and investigate. Therefore, a person or a private entity has no right of
action based on ESA.
C. As a business entity, the Claimant has no private right of action in accordance
with CITES and Singapore’s Endangered Species (Import and Export) Act.
III. USING FUR OF “ENDANGERED ANIMALS” CANNOT LEAD TO THE
CLAIMANT’S LOSS.
It must satisfy three requirements before the allegation that “using fur of endangered
animals can result in the claimant suffering a loss” can be established. The three
requirements are breach of law, damages and the causation between the two (Yeo Yoke
Mui v Ng Liang Poh [1999] 2 SLR(R) 701, F v Chan Tanny [2003] 4 SLR(R) 231). The
respondent asserts that there is no misconduct and the using of fur of endangered
animals cannot lead to the claimant’s loss.
A. There is no breach of law
It is admitted that Asian Golden Cat is an endangered animal that is recognized in UN
Convention on International Trade in Endangered Species (CITES). It is wrongful to
import Asian Golden Cat without a permit or certificate. However, the respondent is not
aware of importing endangered animals. The fur products were purchased from China
Fur Import & Export Company (hereinafter referred to a China Fur). China Fur’s sales
manager met with the respondent’s Chief Buyer in Singapore where she displayed
samples of its products. The respondent subsequently placed an order by mail for a
large shipment of goods, including the products involved in this Problem. The sample
was not taken from endangered animals. Presenting sample to the buyer is a
commercial custom exercised by all transactions that involve large quantity. It is not
possible for the buyer to exam all the products before importing to Singapore.
Additionally, products that are found using Asian Golden Cat are only a portion of their
products. Others are still using faux fur.
If the price of fur products is lower than before, the respondent is still not aware of
importing endangered animals. Firstly, the price of fur may undergo turbulence time to
time because of various factors. Small decline in price is acceptable to fur buyers.
Secondly, the price of real fur of endangered animals and the price of real fur of other
animals changes at the same time. The respondent cannot distinguish between real fur
of endangered animals and real fur of other animals depending solely on price. Thirdly,
fur of endangered animals should be much more expensive than fur of other animals
because they are rarer. If the respondent is aware of endangered animals, they shall
raise the price of their products in Singapore in order to gain more profit. However,
there is no indication that they distinguish endangered animals in the market and try to
sell at the higher price. Raising the cost while keeping the price of their endangered
animal fur products is not reasonable for a seller, who would always pursue higher
profit. Therefore, the respondent is not aware of importing endangered animals.
In Public Prosecutor v Kuah Kok Choon ([2000] SGHC 244), the court decided that the
accused breaches Section 4 of Endangered Species (Import and Export) Act not only
because he had an extensive knowledge of birds, but also because that he had set up his
own breeding farm and that he had attempted to smuggle various animals through
various countries. More importantly, the endangered species the person possessed was
two live birds. Contrarily, the respondent here does not import Asian Golden Cats for
more profits as analyzed above. Additionally, what the respondent imported was fur
products instead of real animals. The respondent did not contravene CITES on the
ground that CITES’s goal is preserve and protect endangered animals. However, these
animals were dead before they were imported to Singapore. The remaining fur of dead
Asian Golden Cats also indicates that the respondent would not recognized endangered
animals from merely looking at the fur.
In conclusion, there is no breach of CITES as the respondent does not threaten the
preservation and protection of endangered animals because the animals were dead
before import and the respondent does not have knowledge of importing endangered
animals. There is no breach of Section 4 of Endangered Species (Import and Export)
Act because the respondent is not aware of importing endangered animals. There is no
breach of law by the respondent.
B. There is no causation between the respondent’s use of fur and the damages the
claimant suffers.
There is no causation between the two because the consumer cannot simply prefer
buying fur of endangered animals without even distinguishing them among other real
fur products. Namely, consumers cannot tell the difference between fur of endangered
animals and fur of other animals.
Left: Asian Golden Cat. Right: Asian Cat.
Both the claimant and the respondent sell real fur. There are real fur and faux fur market
in Singapore. There is no statute that prevents importing and selling it. Importing and
selling ordinary real fur is legitimate under Singapore law.
Fur buyers have the knowledge and experience in distinguish between real fur and faux
fur. However, it is hard for them to tell what kind of real fur it is in certain products.
Usual animal sources for fur clothing and fur trimmed accessories include fox, rabbit,
mink, beavers, ermine, otters, sable, seals, coyotes, chinchilla, raccoon, and possum.
Animals that have extensive body hair coverage may become the target of real fur
products. A reasonable fur buyer can hardly identify specific animal when examining
the sample.
China fur claims that the clothing was made from Asian Cats, an animal that is not
endangered species under CITES. Asian Golden Cats and Asian Cats are all cats, whose
difference can hardly tell by looking at the fur. Both of them are cats. They both have
wide range of color while they overlap in certain color. Both of them have thick fur.
If a reasonable fur purchaser, who has vast experience in fur, cannot distinguish
between fur of endangered animals and fur of other animals, a reasonable consumer
cannot tell the difference between fur of endangered animals and fur of other animals.
This leaves no difference to the consumers when they purchase real fur products at
store.
If this is the case, consumers would not prefer buying products of endangered animal
fur because the quality is no different from other animal fur and consumers would not
recognize them among other fur products. Thus the respondent could not gain
advantage by selling endangered animal fur and not responsible for the claimant’s loss.
Though the claimant suffers a loss in their profit, the respondent is not responsible for
the loss. There is no breach of law and the causation cannot be established. Therefore,
this assertion that the use of endangered animal fur results in the loss of the claimant
shall be dismissed.
C. The claimant does not have the right to sue under private action.
It is common ground that the judicial remedy cannot encompass every conceivable
harm that can be traced to alleged wrongdoing. The question requires evaluating the
plaintiff's harm, the alleged wrongdoing by the defendants, and the relationship
between them (Associated General Contractors of California, Inc. v. California State
Council of Carpenters et al, 459 U.S. 519). This implies that the claimant may sue if it is
tort and causation is established.
In the present case, there is no breach of law made by the respondent. The respondent
may be negligent in not examining all the importing goods, the main body who
threatens preservation and protection of endangered species is China Fur. There is no
alleged wrongdoing by the respondent and the causation cannot be established.
Therefore, the claimant does not have the right to sue under private action.
IV. PUTTING REAL FUR INTO FAUX FUR MARKET AND MISLABELING
CANNOT RESULT IN LOSS SUFFERED BY THE CLAIMANT.
Putting real fur into faux fur market cannot constitute unfair business practice in this
particular circumstance. Mislabeling is the natural consequence of using real fur in faux
fur market. The causation cannot be established between the acts and the loss of
claimant.
A. Putting real fur into faux fur market cannot constitute unfair business practice
a) The respondent has no knowledge of using real fur.
The respondent has no knowledge that the fur is genuine. Though China Fur claims that
the sample fur products were made from fur of Asian Cats, the respondent is fur
supplier who sells both real fur products and faux fur products. The fact that they use
Asian Cats fur in their real fur products does not imply they also use Asian Cats fur in
their faux fur products.
Furthermore, the respondent may have long relationship with their importer – China
Fur, who may well know their business as a fur importer. The respondent advertises its
products in several other Asian countries (including Japan) and the United States. Its
international sales account for approximately 25% of its profits. So it is not a newly
opened fur supplier in Singapore. As a trade costume, it is usual that they have quite
stable and long-time partnership with importers from other countries. China Fur is one
of them. There shall be reasonable trust between China Fur and the respondent.
b) It is a mistake that the examined products were made from real fur.
The respondent has never sold clothing containing the fur of endangered species in the
past. There is no evidence that it has. Some of the products examined are said to have
real fur. However, it does not imply that all the faux fur products contain real fur.
The respondent sells both real fur and faux fur products. China Fur manufactures
products made from both animal pelts and faux fur. There may be mistake made by
China Fur when delivering the products to the respondent. There may also be mistake
made in the transit of goods. If the claimant alleges that the respondent’s faux fur
products contain real fur, then only the examined products may satisfy this allegation.
Other products are deemed to be faux fur before there is any further evidence. However,
since there is no knowledge by the respondent, putting real fur into faux fur market
cannot be unfair business practice.
B. Mislabeling cannot constitute unfair business practice.
Because the respondent has no knowledge of putting real fur into faux fur market,
mislabeling real fur products as faux fur products is a natural consequence of a
reasonable person. Usually, real fur products, as a kind of luxury, are much more
expensive than faux fur products. A reasonable seller, if he knows that the existence of
real fur, would label the price as high as possible. Only when the seller is not aware of
real fur, may the seller label his products far below its market price. With no knowledge
in his behavior, mislabeling cannot constitute misconduct that tries to disturb the
market and interfere with fair competition.
C. The acts of using real fur in faux fur market and mislabeling cannot lead to the
loss of the claimant
Fur products are luxury. Most people may not know much about quality of fur and the
difference between real fur and faux fur. Ordinary consumers with decent income and
little knowledge about fur products may not distinguish real fur among faux fur
products. A large number of Internet pages on “how to identify real fur and faux fur”
indicate that telling the difference is not a common sense acquired by most of the
consumers. The consumers would not incline to purchase the respondent’s fur products
because all fur products may sound the same to them. Therefore, the claimant cannot
attribute their loss to use of real fur by the respondent.
V. THE ADVERTISEMENT CANNOT LEAD TO THE LOSS OF THE
CLAIMANT
The advertisement “having the touch, feel and smell of real fur” is not false or
misleading. It cannot mislead consumers to purchase the products of the respondent.
The respondent is not responsible for the claimant’s loss.
A. The advertisement is not false or misleading.
For those faux fur products that contain real fur, the advertisement is true because real
fur would definitely have the touch, feel and smell of real fur. For those faux fur
products that do not contain real fur, the advertisement is not false as well. In a case in
which plaintiff's theory of recovery is premised upon a claim of implied falsehood,
plaintiff must demonstrate, by extrinsic evidence, that the challenged commercial tends
to mislead or confuse consumers (Deere & Co. v. MTD Prods., 860 F. Supp. 113).
The advertisement is not misleading either. Factors that a court may have to consider in
connection with an implied falsehood claim are: (1) the general "commercial context"
or sea of information in which consumers are immersed; (2) defendant's intent to
harness public misperception; (3) defendant's prior advertising history; and (4) the
sophistication of the advertising audience. The first, third, and fourth factors should
only be considered after plaintiff has established that a not insubstantial number of
consumers hold the false belief allegedly communicated in the advertisement (Deere &
Co. v. MTD Prods., 860 F. Supp. 113).
Firstly, there is no evidence that a substantial number of consumers hold the false belief.
“Having the touch, feel and smell of real fur” is advertisement designed for faux fur
products whose seller only wants to show that the quality of faux fur is so high that it
can compete with real fur. In the eye of an ordinary consumer, a real fur product would
not label itself as “real fur” in its advertisement. Rather, real fur would advertise
something else, such as reputation and history. Only faux fur products may advertise
this way because the quality of real fur is overall better than faux fur.
Secondly, real fur products do not advertise this way in the fur market. They concern on
better quality, history and high-class. For example, fur supplier “For Henig” advertises
their products like: “Maintain Your Fur Value.” This indicates high quality and
everlasting. “Omagna Furs”: Historic brand of the fashion house offers a search system
designed for everyday life and straightforward sale. “Gimas” points to a new
expression of "luxury" and particularity. So it is very rare that a real fur product
advertise itself as “real fur”.
Thirdly, the respondent does not have intent to mislead consumers. It is rare that a real
fur product advertise itself as “real fur”. The fact that the product is made from real fur
can be easily written on its label of the product. If, as the claimant asserts, the
advertisement is designed for real fur products, then spending thousands of millions of
dollars on simply telling the consumers that “the real fur products are made from real
fur” is not something reasonably understandable for a seller. Namely, there is no need
for the respondent to repeat products’ content in the advertisement. If the respondent
does have intent to mislead, it would follow other advertisement of real fur products.
Lastly, there is no prior advertising history. The sophistication of the advertising
audience should allow the consumers to identify that the advertisement is made for faux
fur products instead of real fur products.
It is true that faux fur products may not have the exact feel, touch and smell of real fur.
However, advertising that amounts to "mere" puffery is not actionable because no
reasonable consumer relies on puffery (Haskell v. Time, Inc., 857 F. Supp. 1392). The
advertisement does not go beyond puffery, therefore it should not be misleading or false
advertisement provided in competition law.
B. The advertisement cannot result in the loss of the claimant
In Sunny Metal & Engineering Pte Ltd v Ng Khim Ming Eric [2007] 3 SLR 782, the
court contented that causation has to satisfy both causation in fact and causation in law.
The test for causation in fact is the “but for” test. “But for” the existence of X, would Y
have occurred? It shall be understood “as the man in the street” would (Yorkshire Dale
Steamship Co v Minister of War Transport [1942] AC 691 (HL), March v Stramare
(1991) 171 CLR 506).
In the present case, the advertisement is a neutral one that does not provide false or
misleading advertisement. The consumer would not be misled in this circumstance.
Therefore, the advertisement is irrelevant to the selling of products of the respondent. It
is irrelevant to the claimant’s loss in profit. The “But for” test fails and the causation in
fact cannot be established.
The advertisement cannot result in the loss of the claimant.
In conclusion, the respondent is not responsible for the loss of the claimant when they
use fur of endangered animals, mislabel and make advertisement.
CONCLUSION AND PRAYER OF RELIEF
Based on the above submissions, Claimant respectfully requests this Tribunal to
arbitrate and declare as follows on the Questions Presented :
I. Singaporean Law should be the proper law to apply in resolving this dispute.
A. Two parties agreed to apply the Singaporean Law in resolving the dispute.
B. The Tribunal should uphold the parties’ choice of law clause as the KLRCA Rules
recognizes party autonomy.
C. The tribunal should respect the parties’ choice due to the principle of freedom of
contract.
D. Territoriality principle and nationality principle requires to apply Singaporean law.
E. The application of Singapore law does not violate any public policy.
II. The Claimant has no private right of action in accordance with CITES and
Singapore’s Endangered Species (Import and Export) Act.
A. CITES does not provide or create a private right of action.
B. ESA does not provide or create a private right of action.
C. As a business entity, the Claimant has no private right of action in accordance with
CITES and Singapore’s Endangered Species (Import and Export) Act.
III. Using fur of “endangered animals” cannot lead to the claimant’s loss.
A. There is no breach of law
B. There is no causation between the respondent’s use of fur and the damages the
claimant suffers
C. The claimant does not have the right to sue under private action.
IV. Putting real fur into faux fur market and mislabeling cannot result loss suffered by
the claimant.
A. Putting real fur into faux fur market cannot constitute unfair business practice
B. Mislabeling cannot constitute unfair business practice.
C. The acts of using real fur in faux fur market and mislabeling cannot lead to the loss
of the claimant
V. The advertisement cannot lead to the loss of the claimant
A. The advertisement is not false or misleading.
B. The advertisement cannot result in the loss of the claimant