QATAR UN___________ 

 

 

T

B

NIVERSITY COL_______________

wenty–Four

On Be

Wri232 Garr

OceEqua

Cla

Bashayer HasShaik

LEGE OF LAW ________________

rth Annual W

Mem

Qatar

ehalf Of:

ght Ltd rincha Streeteanside atoriana

aimant

ssan Al Ahbkha Khalid A

Dima

_______________

Willem C. Vi

morandu

Univers

t

abi Rana MAl Kubaisi

Nawar Al S

_______________

is Internation

um for C

sity Col

Counsel

Mohamed ONajlaa Ham

Sayed Noo

Doha, Qata

________________

nal Commer

Claiman

lege of L

77

M

R

:

Osman Al Bamad Al Naim

r Ibrahim z m

ar

________________

rcial Arbitra

nt

Law

Against:

SantosD KG7 Avenida O

Cafucopa Mediterrane

Responden

ashir Methmi Noora A

m Mohd

_______________

ation Moot

G Rei

eo

nt

ha Jaber Al JaAl Naimi

_______

aber

QATAR UN___________ 

 

TABLE O

STATEM

INTROD

ARGUM

ISSUE 1

PROVID

AND SA

ARBITR

 

(A) Nearbitra

(1) TTrib

(2) Aawar

(3) Asecumea

(4) Isecu

 

(B)  Insecuritburden

 

CONCLU

 

NIVERSITY COL_______________

OF CONTE

MENT OF FA

DUCTION ..

MENT ..........

: THIS TRIB

DE SECURIT

ALES AGRE

RATION LA

either the partion law giv

The arbitratiounal no auth

Article 8.1 ord security f

Article 17 E urity from a psure is reque

Internationalurity for RESP

  the alternatity for RESPO

n of proof de

USION OF T

LEGE OF LAW ________________

ENTS ...........

ACTS ........

...................

...................

BUNAL DO

TY FOR RE

EEMENT; (2

AW, AND IT

rties’ contrace this Tribun

on agreemenhority to requ

f the CAM–for the provis

of the Danuparty requestested. ..........

l arbitration pPONDENT’s c

ive, even if tONDENT’s cosemonstrating

THE FIRST

_______________

TABLE O

....................

....................

....................

....................

OES NOT HA

ESPONDENT

2) THE CAM

T SHOULD N

ct, the CAMnal the powe

nt is silent onuire either pa

–CCBC arbitsional measu

ubian arbitratting an inter....................

practice is incosts. ...........

this Tribunasts, it should

g that it is app

T ISSUE .......

_______________

ii

OF CONTE

....................

....................

....................

....................

AVE THE P

T’S COSTS

M–CCBC RU

NOT DO SO

M–CCBC arber to order se

n security foarty to provi

tration rules ures, which i

tion law giverim measure,....................

nconsistent w....................

l has the autd not do so bpropriate an

....................

________________

ENTS

....................

....................

....................

....................

POWER TO

S UNDER: (1

ULES; OR (

O IN THIS C

bitration ruleecurity for R

or costs, and ide it. ...........

gives this Tris not justifie

es this Tribu, not the part....................

with requirin....................

thority to ordbecause RESP

nd necessary

....................

________________

....................

....................

....................

....................

ORDER CL

1) THE DEV

(3) DANUBI

CASE. .........

es, nor the DaRESPONDENT

therefore gr....................

ribunal authed in this ca

unal authorityty against w....................

ng CLAIMAN

....................

der CLAIMAN

PONDENT has. ..................

....................

_______________

....................

....................

....................

....................

LAIMANT T

VELOPMEN

IAN

....................

anubian ’s costs. ......

rants this ....................

hority only tose. ...............

y only to reqwhom the inte

....................

NT to provide....................

NT to provids not met its....................

....................

_______

...... ii

...... 1

...... 2

...... 4

TO

NT

...... 5

...... 5

...... 5

o ...... 5

quire erim ...... 7

e ...... 8

de s .... 10

.... 11

QATAR UN___________ 

 

ISSUE 2

PROCEE

ARBITR

 

(A) CL

2016 o

 

(B) CL

for init

 

(C) Evinitiate

 

(D) Intthe dat

 

CONCLU

ISSUE 3

PAYMEN

THE OU

RATE A

 

(A) RE

require

(1) Tclam

(2) Cexch

 

(B) Unexchan

NIVERSITY COL_______________

: CLAIMAN

EDINGS WE

RATION AG

LAIMANT’s inor 31 May 20

LAIMANT’s Rtiating arbitr

ven if this Tred a timely R

ternational pte the reques

USION OF T

: UNDER C

NT FROM R

UTSTANDIN

AT THE TIM

ESPONDENT bed under CIS

The fixed exmps, and doe

CLAIMANT ishange rate at

nder CISG Ange rate to th

LEGE OF LAW ________________

NT’S REQU

ERE INITIA

GREEMENT

nitiation of th016, because

Request for Aration under

ribunal finds Request for A

practice suppst for arbitrat

THE SECON

CISG ART. 5

RESPONDE

NG BALAN

ME PAYMEN

breached theSG Art. 53. .

change rate s not apply t

s entitled to at the time pay

Art. 8 and UNhe price of th

_______________

UEST FOR A

ATED WITH

T. ..................

he arbitratioe the 60–day

Arbitration anArt. 4 of the

that the 60–Arbitration o

ports the contion is receiv

ND ISSUE ..

53, CLAIMA

ENT OF USD

CE DUE UN

NT WAS DU

e contract by....................

referenced ito the fan bla

an additionayment was d

NIDROIT Ahe fan blades

_______________

iii

ARBITRATI

HIN THE TIM

....................

n was timelyy time period

nd supportine CAM–CCB

–day time peon 31 May 2

nclusion that ved by the ar

....................

ANT IS ENT

D 2,285,240

NDER THE

UE). ............

failing to pa....................

in the Addenades. ...........

al payment odue. .............

rt. 4, the pars. .................

________________

ION IS ADM

MEFRAME

....................

y regardless d did not beg

ng documentBC rules. .....

eriod began o016. ............

arbitration prbitral center

....................

TITLED TO

0 FOR THE

DSA (BASE

....................

ay the full pu....................

ndum to the D....................

of USD 2,285....................

rties did not ....................

________________

MISSIBLE B

E REQUIRED

....................

of whether gin on 1 Apr

ts satisfied th....................

on 1 April 20....................

proceedings r. .................

....................

AN ADDIT

FAN BLAD

ED ON THE

....................

urchase pric....................

DSA applies....................

5,240, based....................

intend to ap....................

_______________

BECAUSE

D BY THE

....................

it was on 7 Jil 2016. .......

he requirem....................

016, CLAIMA

....................

are initiated....................

....................

TIONAL

DES, WHICH

E EXCHAN

....................

ce in the DSA....................

s only to the....................

d on the pres....................

pply a fixed ....................

_______

.... 12

June .... 12

ent .... 13

ANT .... 15

d on .... 16

.... 18

H IS

NGE

.... 19

A, as .... 19

e .... 20

sent .... 21

.... 22

QATAR UN___________ 

 

(1) Ubeenand

(2) Ucircuprice

(3) Uthey

 

CONCLU

 

ISSUE 4

ADDITIO

FOR TH

 

(A) RE

inspect ..........

 

(B) Se

 

(C) Thengine

 

(D) UnchargeDSA in

(1) Ubeenpurc

(2) Ucircuasso

NIVERSITY COL_______________

Under CISG n unaware thnot to the fa

Under CISG umstances we of the clam

Under CISG y did not inte

USION OF T

: UNDER C

ONAL PAY

E INSPECT

ESPONDENT btion fee nece...................

ction 4.3 of

he explicit lane manufactur

nder both CIes” to includento CLAIMAN

Under CISG n unaware thchase price to

Under Art. 8umstances wciated with p

LEGE OF LAW ________________

Art. 8.1 andhat CLAIMAN

an blades. ....

Art. 8.2 andwould have inmps only......

Art. 8.3 andend to apply

THE THIRD

CISG ARTS.

YMENT FRO

TION FEES

breached its essary to ena...................

the DSA cle

nguage of thrers. ............

SG Art. 8 ane all chargesNT’s bank ac

Art. 8.1 andhat CLAIMAN

o CLAIMANT

.2 of CISG awould have inpayment of t

_______________

d UNIDROITNT intended t....................

d UNIDROITntended to ap....................

d UNIDROITa fixed exch

D ISSUE......

53 AND 54

OM RESPON

DEDUCTED

obligations uable paymen....................

early require

he DSA supe....................

nd UNIDROs associated wccount. ........

d UNIDROITNT intended tT’s account. .

and UNIDROntended the lthe full purc

_______________

iv

T Art. 4.1.1,the fixed exc....................

T Art. 4.1.2,pply the fixe....................

T Art. 4.3, thhange rate fo

....................

4, CLAIMAN

NDENT IN

D BY THE C

under CISG nt of the full ....................

d RESPONDE

ersedes the p....................

OIT Art. 4, thwith deposit....................

T Art. 4.1.1,to include all....................

OIT Art. 4.1language of

chase price to

________________

, RESPONDEN

change rate t....................

, a reasonabled exchange....................

he parties’ nor the price o

....................

NT IS ENTI

THE AMOU

CENTRAL

Arts. 53 andpurchase pri....................

ENT to pay th

past practice ....................

he parties intting the full ....................

, RESPONDEN

l fees associ....................

1.2, a reasonf the DSA to o CLAIMANT

________________

NT knew or cto apply only....................

le person in e rate in the A....................

negotiations of the blades

....................

ITLED TO A

UNT OF US

BANK. .......

d 54 by failiice to be ma....................

he inspection

of CLAIMAN

....................

tended the tepurchase pri....................

NT knew or ciated with tra....................

nable person include all c

T’s account. .

_______________

could not hay to the clam....................

similar Addendum t....................

demonstrates. ..................

....................

AN

SD 102,192.

....................

ing to pay thade to CLAIM

....................

n fee. ...........

NT with othe....................

erm “bank ice under the....................

could not haansfer of the....................

in similar charges ....................

_______

ave mps, .... 22

o the .... 23

e that .... 25

.... 26

80

.... 27

he MANT..... 27

.... 29

er .... 29

e .... 30

ave e full .... 30

.... 31

QATAR UN___________ 

 

(3) Uusagprac

 

CONCLU

REQUES

CERTIFI

INDEX O

INDEX O

INDEX O

INDEX O

LEGAL

NIVERSITY COL_______________

Under CISG ges, and substices. ..........

USION OF T

ST FOR REL

ICATE .......

OF ABBREV

OF AUTHO

OF ARBITR

OF CASES.

SOURCES A

LEGE OF LAW ________________

Art. 8.3 andsequent cond...................

THE FOUR

LIEF ..........

...................

VIATIONS

ORITIES......

RAL AWAR

...................

AND MATE

_______________

d UNIDROITduct demons....................

RTH ISSUE ..

....................

....................

....................

....................

RDS ..............

....................

ERIALS ......

_______________

v

T Art. 4.3, thstrate that the....................

....................

....................

....................

....................

....................

....................

....................

....................

________________

he parties’ ney did not in....................

....................

....................

....................

....................

....................

....................

....................

....................

________________

negotiations, ntend to rely ....................

....................

....................

....................

....................

....................

....................

....................

....................

_______________

practices, on previous

....................

....................

....................

....................

....................

....................

....................

....................

....................

_______

s .... 32

.... 33

.... 34

....... I

...... II

.... IV

.... VI

. VIII

.... IX 

QATAR UN___________ 

 

CLAIMAN

RESPOND

2010

1 August

26 Octob

14 Janua

15 Janua

15 Janua

29 Janua

9 Februa

10 Febru

NIVERSITY COL_______________

NT

DENT

t 2010

ber 2010

ry 2015

ry 2015

ry 2015

ry 2015

ry 2015

uary 2015

LEGE OF LAW ________________

Wright Ltd

of fan blad

of Wright

SantosD K

of jet engin

CLAIMANT

blade, TRF

fan blade a

Parties sign

exchange r

signed US

A handwri

The price w

fixed exch

was EQD

CLAIMANT

RESPONDE

confirming

to CLAIMA

blades and

CLAIMANT

incorrect i

outstandin

USD 20,33

National B

Ms. Beinh

outstandin

RESPONDE

_______________

STATEM

d. (hereafter

des for jet en

Holding Plc

KG (hereafte

nes incorpor

T and RESPO

F 192-I. The

and RESPOND

ned the Dev

rate was fixe

SD 1 = EQT

itten addend

was to be de

hange rate of

19,586.

T delivered th

ENT’s represe

g that USD 2

ANT’s accoun

d clamps, res

T responded

nvoice had b

ng amount of

36,367.20 w

Bank.

horn notified

ng payment o

ENT denied th

_______________

1

MENT OF FA

r “CLAIMANT

ngines, incor

c.

er “RESPOND

rated in Med

NDENT nego

e agreement

DENT would

velopment an

ed. The exch

2.01.

dum for 2,00

etermined on

f USD 1 = E

he fan blade

entative ema

20,438,560 a

nt in the Equ

spectively).

that due to a

been issued,

f USD 2,387

was credited t

d Mr. Lindbe

of USD 2,38

hat any addi

________________

ACTS

T”) is a highl

rporated in E

DENT”) is a m

diterraneo.

otiated to join

was that CL

d buy 2,000 u

nd Sales Agr

hange rate at

0 clamps wa

n a cost basis

QD 2.01. Th

es and the cla

ailed CLAIMA

and USD 18

uatoriana Na

a mistake by

and request

7,430.80.

to CLAIMAN

ergh that CLA

87,432.80 by

itional purch

________________

ly specialize

Equatoriana.

medium sized

ntly develop

AIMANT wou

units.

reement (“D

t the time the

as added to t

s and paid in

he price per

amps to RES

ANT’s repres

3,343.28 ha

ational Bank

y CLAIMANT

ted payment

NT’s account

AIMANT de

y 4 March 20

hase price pa

_______________

ed manufactu

It is a subsi

d manufactu

p a new fan

uld develop

SA”). No

e DSA was

the agreemen

n USD with

fan blade wa

SPONDENT.

sentative

d been credi

(for the fan

’s accountan

of the

at Equatoria

emanded the

015.

ayment was d

_______

urer

diary

urer

the

nt.

a

as

ited

nt, an

ana

e

due.

QATAR UN___________ 

 

January 2

1 April 2

31 May 2

1 June 20

7 June 20

8 June 20

24 June 2

22 Augus

6 Septem

16 Septem

NIVERSITY COL_______________

2016

2016

2016

016

016

016

2016

st 2016

mber 2016

mber 2016

LEGE OF LAW ________________

CLAIMANT

pay to one

CLAIMANT

meaningfu

arbitration

CLAIMANT

to Section

The CAM

CLAIMANT

CCBC.

CAM–CC

Proceeding

RESPONDE

CAM–CC

RESPONDE

CLAIMANT

on the grou

Tribunal h

_______________

T was ordere

e of its suppl

T notified RE

ul negotiation

n.

T submitted a

21 of the De

-CCBC sent

T submitted t

BC issued th

g to RESPON

ENT submitte

BC issued th

ENT submitte

T submitted i

unds that the

had already a

_______________

2

ed by a tribun

iers related t

ESPONDENT t

ns, it would

a Request fo

evelopment

t a Request f

the requested

he Notice fo

NDENT.

ed its Answe

he Terms of

ed a Request

its Answer t

e request had

agreed on the

________________

nal acting un

to the DSA t

that, while it

take the nec

or Arbitration

and Sales A

for Completi

d documents

or Commenc

er to Request

f Reference.

t for Security

to Request fo

d been made

e Terms of R

________________

nder CAM–C

the sum of U

t was open f

cessary steps

n to CAM–C

Agreement.

ion notice to

s and payme

ement of Ar

t for Arbitrat

y Costs to th

or Security C

e after the Pa

Reference.

_______________

CCBC Rules

USD 2,500,0

for further

s to initiate

CCBC, pursu

o CLAIMANT

ent to CAM–

rbitration

tion.

he CAM–CC

Costs, object

arties and the

_______

s to

000.

uant

.

–

CBC.

ting

e

1

2

3

4

5

QATAR UN___________ 

 

CLAIMAN

subsidiar

has jeopa

RESPOND

also cont

payment

RESPOND

this Tribu

costs, nor

the harm

require C

these arb

RESPOND

CLAIMAN

was not d

even if th

Request f

The initia

the remai

the initia

conclusio

respected

As such,

USD 2,2

on the ex

NIVERSITY COL_______________

NT and RESPO

ries of the sa

ardized that r

DENT has use

tested its resp

to CLAIMAN

DENT has req

unal does no

r should it d

that would b

CLAIMANT to

bitration proc

DENT has also

NT submitted

declared on

he 60–day tim

for Arbitrati

al Request fo

inder of the

tion of arbitr

ons are supp

d internation

CLAIMANT i

85,240 for th

xchange rate

LEGE OF LAW ________________

ONDENT hav

ame company

relationship

ed the wrong

ponsibility t

NT’s account

quested CLAI

ot have the p

do so. RESPON

be caused to

o provide suc

ceedings (Iss

o alleged tha

d a timely Re

1 April 2016

me period di

ion within th

or Arbitratio

application f

ration dates

orted by inte

nal arbitration

is entitled to

he fan blade

at the time p

_______________

INTR

ve enjoyed a

y, and now a

by failing to

g exchange r

o pay for all

t.

IMANT provi

ower to orde

NDENT failed

o CLAIMANT

ch security, a

sue 1).

at CLAIMANT

equest for A

6 because CL

id begin on A

he required ti

on was suppl

fee within th

back to the d

ernational pr

n centers (Is

o an addition

s, which is t

payment wa

_______________

3

RODUCTIO

long and pro

as equals in t

o pay CLAIM

ate to calcul

l bank charg

de security f

er CLAIMANT

d to demons

. Moreover,

and would ad

T’s request f

Arbitration. N

LAIMANT rem

April 1, 201

ime.

lemented wit

he new time

date of the in

ractice and e

ssue 2).

nal payment

the outstandi

s due). The f

________________

ON

ofitable busi

the marketp

MANT what it

late the bulk

es associated

for its costs i

T to provide

strated irrepa

it would be

dversely aff

for arbitratio

Not only was

mained open

6, CLAIMAN

th an additio

limit set by

nitial Reque

evidenced in

from RESPO

ing balance d

fixed exchan

________________

iness relation

lace. Howev

is owed und

k of the paym

d with transf

in the arbitra

e security for

arable harm t

fundamenta

fect its ability

on is time bar

s the failure

n for further n

NT submitted

onal power o

the CAM–C

est for Arbitr

n the rules of

ONDENT in th

due under th

nge rate refe

_______________

nship, first a

ver, RESPOND

der their con

ment due, and

ferring full

ation. Howe

r RESPONDEN

that outweig

ally unfair to

y to be heard

rred. Howev

of negotiati

negotiations

d a timely

of attorney a

CCBC. As su

ration. These

f several

he amount of

he DSA (as b

erenced in th

_______

as

DENT

ntract.

d has

ver,

NT’s

ghs

o

d in

ver,

ons

s, but

and

uch,

e

f

based

he

6

QATAR UN___________ 

 

Addendu

intended

could not

the clamp

pay the fu

Finally, C

102,192.

under the

excuse it

past prac

obligatio

payment

NIVERSITY COL_______________

um to the DS

to apply a fi

t have been u

ps, and not t

full purchase

CLAIMANT is

80 for the in

e DSA. RESP

from its obl

ctice of CLAI

ns under CIS

of the full p

LEGE OF LAW ________________

SA applied o

fixed exchang

unaware tha

to the fan bla

e price in the

s entitled to

nspection fee

PONDENT’s k

ligation to pa

IMANT with o

SG Arts. 53

purchase pric

_______________

only to the cl

ge rate to the

at CLAIMANT

ades. As such

e DSA, as req

an additiona

es deducted b

knowledge o

ay. Moreove

other engine

and 54 by fa

ce to be mad

_______________

4

lamps, not to

e price of th

T intended th

h, RESPONDE

quired under

al payment fr

by the Centr

of the investi

er, the explic

e manufactur

failing to pay

de to CLAIMA

________________

o the fan blad

e fan blades

he fixed exch

ENT breache

r CISG Art.

from RESPON

ral Bank bec

igation fee (o

cit language

rers. As such

y the inspecti

ANT (Issue 4

________________

des. The par

. RESPONDEN

hange rate to

ed the contra

53 (Issue 3)

NDENT in the

cause it is a “

or lack there

of the DSA

h, RESPONDE

ion fee nece

4).

_______________

rties never

NT knew or

o apply only

act by failing

).

e amount of U

“bank charge

eof) does not

supersedes

ENT breached

essary to ena

_______

to

g to

USD

e”

t

the

d its

able

7

8

9

QATAR UN___________ 

 

ISSUE 1

TO PRO

DEVELO

DANUB

(A) Neith

arbitrati

(1) The a

Tribuna

The arbit

parties st

settled am

has the ri

negotiati

the Rules

Canada (

The arbit

Tribunal

agreemen

(2) Artic

award se

CAM–CC

Tribunal

NIVERSITY COL_______________

1: THIS TRI

OVIDE SEC

OPMENT A

IAN ARBIT

her the part

ion law give

arbitration

al no author

tration claus

tates that “[a

micably and

ight to initiat

on to have th

s of the Cent

(CAM–CCB

tration claus

does not hav

nt.

cle 8.1 of the

ecurity for t

CBC Art. 8.

can grant pr

LEGE OF LAW ________________

IBUNAL D

CURITY FO

AND SALE

TRATION L

ties’ contrac

e this Tribun

agreement

ity to requir

e in the Dev

a]ll disputes a

in good fait

te arbitration

he dispute de

ter for Arbitr

C) and in lin

e is silent wi

ve the powe

e CAM–CC

the provisio

  1 states that

rovisional m

_______________

AR

OES NOT H

OR RESPON

S AGREEM

LAW, AND

ct, the CAM

nal the pow

is silent on s

re either pa

velopment an

arising out o

th between th

n proceeding

ecided by an

ration and M

ne with inter

ith regard to

r to order th

BC arbitrat

onal measur

“[u]nless th

measures, bot

_______________

5

RGUMENT

HAVE THE

NDENT’S C

MENT; (2) T

D IT SHOUL

M–CCBC ar

wer to order

security for

arty to provi

nd Sales Agr

of or in conn

he parties. If

gs within six

n arbitrator. T

Mediation of

rnational arb

o the issue of

e security fo

tion rules gi

res, which is

e parties hav

th injunctive

________________

E POWER

COSTS UND

THE CAM–

LD NOT DO

rbitration ru

security for

r costs, and

ide it.

reement (her

nection with

f no agreeme

xty days after

The arbitrati

the Chambe

bitration prac

f security for

or legal costs

ives this Tr

s not justifie

ve otherwise

e and anticipa

________________

TO ORDER

DER: (1) TH

–CCBC RU

O SO IN TH

ules, nor the

r RESPONDE

therefore g

reafter “DSA

this Agreem

ent can be re

r the failure

ion shall be

er of Comme

ctice.” [Ex. C

r legal costs.

s under the a

ribunal auth

ed in this ca

e agreed, the

atory, that ca

_______________

R CLAIMA

HE

ULES; OR (3

HIS CASE.

e Danubian

ENT’s costs.

rants this

A”) between

ment shall be

eached each

of the

conducted u

erce Brazil–

C 2, p. 11, §

. As such, th

arbitration

hority only t

ase.

Arbitral

an, at the

_______

ANT

3)

n

the

party

under

21].

his

to

10

11

12

13

14

QATAR UN___________ 

 

discretion

party.”

“Provisio

[Born, p.

rights of

of parties

95].

As such,

protect th

“dissipat

joint ven

intellectu

circumsta

In order t

party wil

substanti

granted;

merits of

Security

authority

for costs

party lack

Addition

for the ot

requestin

NIVERSITY COL_______________

n of the Arb

onal measure

2426]. A pr

parties to a d

s from dama

provisional

he rights of t

ion of assets

ture’s operat

ual property,

ances exist i

to justify a p

ll suffer harm

ially outweig

and (3) that

f the claim. [

for legal cos

y of arbitral t

may interfer

ks the financ

nally, as in th

ther party’s f

ng party agai

LEGE OF LAW ________________

itral Tribuna

es” are inten

rovisional m

dispute pend

age during th

measures ar

the parties. [B

s, destruction

tions, destru

and interfer

in the presen

provisional m

m that canno

ghs the harm

there is a rea

[UNCITRAL

sts is not wid

tribunals. [Bo

re with the p

cial liquidity

his case, the p

financial con

inst a conditi

_______________

al, be subjec

nded to preve

measure is “a

ding its final

he duration o

re intended t

Born, p. 242

n of evidenc

uction of an o

rence with cu

nt case.

measure, the

ot be repaired

m likely to res

asonable pos

, Art. 17].

dely conside

orn, p. 2494

party’s “righ

y to post the

party reques

ndition. [Bor

ion that it cr

_______________

6

t to the prov

ent irreparab

remedy or a

l resolution.

of an adjudic

to preserve fa

26]. Example

e, loss of ma

ongoing bus

ustomer rela

party must d

d by an awar

sult to the pa

ssibility the

ered to be a “

4]. The burde

ht to be heard

security. [Bo

sting security

rn, p. 2494].

reated. [Born

________________

vision of gua

ble harm to th

a relief that i

Its main pur

cation.” [Reic

factual or leg

es of provisi

arket value o

iness, disclo

ations.” [Bor

demonstrate

rd of damage

arty against

requesting p

“provisional

en of being r

d” in the arbi

orn, p. 2494

y is often res

. It would be

n, p. 2494]. A

________________

arantees by th

he parties of

is aimed at s

rpose is to pr

chert v. Dred

gal circumsta

ional measur

of property,

osure or misu

rn, p. 2425].

e that: (1) the

es; (2) that th

whom the m

party will su

measure” w

required to p

itration, espe

4].

sponsible (at

e unfair to pr

As such, the

_______________

he requestin

f the arbitrat

safeguarding

rotect the rig

dner 1992, p

ances in orde

res include

disruption o

use of

None of the

e requesting

he likely har

measure is

cceed on the

within the

provide secur

ecially wher

t least partia

rotect the

financial sta

_______

ng

tion.

g the

ghts

p.

er to

f a

ese

rm

e

rity

re the

ally)

ate of

15

16

17

18

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the non-r

supported

In this ca

CAM–CC

harm. Th

in the eve

RESPOND

Addition

2]. CLAIM

[P.O. No

[P.O. No

29]. How

funding g

receive a

Second, C

RESPOND

financial

operation

costs wou

“right to

Finally, R

will be sh

provided

having to

NIVERSITY COL_______________

requesting pa

d by third–p

ase, this Trib

CBC Art. 8.

here is no evi

ent of an aw

DENT’s costs

nally, there is

MANT did rec

o. 2, p. 59, §

o. 2, p. 59, §

wever, both f

guidelines.”

attorneys’ fee

CLAIMANT w

DENT’s costs

situation req

ns. [P.O. No.

uld adversel

be heard” in

RESPONDENT

how below i

d it is allowed

o reserve the

LEGE OF LAW ________________

arty is releva

arty funding

bunal should

1. First, RES

idence that C

ward in favor

should it be

s no third-pa

ceive a USD

29]. Howev

29]. CLAIMA

funders rejec

[P.O. No. 2,

es if it is ent

would experi

. While CLA

quires it to d

. 2, p. 58, § 2

ly affect CLA

n the proceed

T has not dem

in Issue 3 an

d to direct ap

em as securit

_______________

ant, as is the

g. [Born, p. 2

not award s

SPONDENT ha

CLAIMANT w

of RESPOND

e required to

arty funding

D 3,000,000 l

er, those fun

ANT did appr

cted the requ

, p. 59, § 29]

itled to them

ience greater

AIMANT has s

devote its cas

28]. Having

AIMANT’s ab

dings.

monstrated t

nd Issue 4, it

ppropriate re

ty for RESPO

_______________

7

e extent to wh

2494].

security for c

as not demon

will be unabl

DENT. CLAIM

pay them. [P

source prese

loan from its

nds were use

roach two th

uest on the gr

]. As such, R

m.

r harm for h

sufficient liq

sh flow to th

to unnecess

ility to partic

that it will su

is far more l

esources to t

ONDENT’s cos

________________

hich the non

costs as a pro

nstrated that

le to pay RES

MANT has suf

P.O. No. 2, p

ent in the arb

s parent com

ed to produce

hird party fun

rounds that i

RESPONDENT

aving to pro

quidity to pay

he present ar

sarily divert

cipate in the

ucceed on th

likely that C

the arbitratio

sts.

________________

n-requesting

ovisional me

t that it will s

SPONDENT’s

fficient fund

p. 58, § 28].

bitration. [Se

mpany, Wrigh

e the final st

nders. [P.O.

it was “too s

T is not at ris

ovide security

y any necess

rbitration and

funds to pro

e arbitration,

he merits of t

CLAIMANT w

on proceedin

_______________

party is bein

easure under

suffer irrepa

attorneys’ f

ds to cover

ecurity, p. 46

ht Holding P

tages of the f

No. 2, p. 59

small for the

sk of failing

y for

sary fees, its

d to its daily

ovide security

and therefo

the claim. A

ill prevail,

ngs instead o

_______

ng

r

arable

fees

6, §

Plc.

fans.

9, §

eir

to

y

y for

ore its

As

of

19

20

21

22

QATAR UN___________ 

 

(3) Artic

require s

the inter

Article 1

party req

measure.

provide s

inapprop

requestin

In this ca

Article 1

be requir

problema

of the Da

alternativ

costs.

(4) Inter

security

There is n

costs. [Bo

jurisdicti

jurisdicti

jurisdicti

As stated

demonstr

the likely

NIVERSITY COL_______________

cle 17 E of th

security fro

rim measure

7 E of the D

questing an in

(2) The arb

security in co

riate or unne

ng an interim

ase, RESPOND

7 E of the D

red to post se

atic. As such

anubian arbit

ve, this Tribu

rnational ar

for RESPON

no internatio

orn, p. 2494

ions, this aris

ions. [Born, p

ions. [Born, p

d above in Su

rate that: (1)

y harm subst

LEGE OF LAW ________________

he Danubia

m a party r

e is requeste

Danubian arb

nterim meas

itral Tribuna

onnection w

ecessary to d

m measure to

DENT is actu

Danubian arb

ecurity for co

h, this Tribun

tration law t

unal should r

bitration pr

NDENT’s cost

onal consens

]. While sec

ses out of th

p. 2494]. Al

p. 2494].

ubsection (A

it will suffe

tantially outw

_______________

an arbitratio

requesting a

ed.

itration law

ure to provid

al shall requi

with the order

do so.” In oth

o provide the

ually the part

itration law

osts. Granted

nal should fi

to require CL

require RESP

ractice is inc

ts.

sus regarding

curity for cos

e existence o

llowing secu

A), to justify

er harm that

weighs the h

_______________

8

on law gives

an interim m

states that ”(

de appropria

ire the party

r unless the a

her words, th

e security tha

ty requesting

it is RESPON

d, in the con

ind that it do

LAIMANT to p

PONDENT to

consistent w

g an arbitral

sts is allowed

of similar fo

urity for cost

a provisiona

cannot be re

harm likely to

________________

s this Tribun

measure, no

(1) [t]he arb

ate security i

y applying fo

arbitral tribu

he tribunal s

at relates to t

g the interim

NDENT, and n

ntext of secur

oes not have

provide secu

also post sec

with requiri

tribunal’s ri

d in England

orms of relief

ts is less com

al measure, t

epaired by an

o result to th

________________

nal authorit

ot the party

bitral tribuna

in connectio

or a prelimin

unal consider

shall ask the

their request

m measure. A

not CLAIMAN

rity for costs

authority un

urity for cost

curity for CL

ing CLAIMA

ight to award

d or Commo

f in the cour

mmon for arb

the requestin

n award of d

he party agai

_______________

ty only to

against who

l may requir

n with the

nary order to

rs it

party which

t. 

As such, unde

NT, who shou

s this idea is

nder Article

ts. In the

LAIMANT’s l

ANT to provi

d security fo

onwealth

rts of those

bitrations in

ng party mus

damages; (2)

inst whom th

_______

om

re the

h is

er

uld

s

17 E

egal

de

or

civil

st

that

he

23

24

25

26

27

QATAR UN___________ 

 

measure

on the m

Security

of arbitra

may inter

lacks the

Addition

for the ot

requestin

p. 2494].

which the

In this ca

RESPOND

that CLAI

favor of R

arbitratio

Second, C

While CL

requires i

[P.O. No

merits of

No other

this Tribu

NIVERSITY COL_______________

is granted; a

erits of the c

for legal cos

al tribunals.

rfere with th

financial liq

nally, as in th

ther party’s f

ng party agai

As such, th

e non-reques

ase, this Trib

DENT has not

IMANT will b

RESPONDENT

on. As such,

CLAIMANT w

LAIMANT has

it to devote i

o. 2, p. 58, §

f the claim.

r exceptional

unal should

LEGE OF LAW ________________

and (3) that t

claim. [UNC

sts is not wid

[Born, p. 24

he party’s “ri

quidity to po

his case, the p

financial con

inst a conditi

e financial s

sting party is

bunal should

t demonstrat

be unable to

T. Additiona

there are no

would experi

s sufficient c

its cash flow

28]. Finally,

l circumstanc

decline to aw

_______________

there is a rea

CITRAL, Art.

dely conside

94]. The bur

ight to be he

ost the securi

party reques

ndition. [Bor

ion that it cr

state of the n

s being supp

not award s

ted that that i

pay RESPON

ally, there is

privity issu

ience greater

cash flow to

w to the prese

, RESPONDEN

ces exist tha

ward them.

_______________

9

asonable pos

17].

ered to be a p

rden of being

eard” in the a

ity. [Born, p

sting security

rn, p. 2494].

reated throug

non-requestin

ported by thi

security costs

it will suffer

NDENT’s atto

no third-par

es.

r harm for h

pay any nec

ent arbitratio

NT has not d

at would just

________________

ssibility the r

provisional m

g required to

arbitration, e

. 2494].

y is often res

. It would be

gh nonpayme

ng party is re

ird–party fun

s as a provis

r irreparable

orneys’ fees i

rty funding s

aving to pro

cessary fees,

on and to its

demonstrated

tify requiring

________________

requesting p

measure with

o provide sec

especially wh

sponsible (at

e unfair to pr

ent of its obl

elevant, as is

nding. [Born

sional measu

harm. There

in the event

source presen

ovide security

, its financial

day–to–day

d that it will

g security fo

_______________

arty will suc

hin the autho

curity for co

here the part

t least partia

rotect the

ligations. [B

s the extent t

n, p. 2494].

ure. First,

e is no evide

of an award

nt in the

y for the cos

l situation

y operations.

succeed on t

or costs. As s

_______

cceed

ority

osts

ty

ally)

Born,

to

ence

d in

sts.

the

such,

28

29

30

31

32

QATAR UN___________ 

 

(B)  In th

provide

met its b

Even if th

RESPOND

Tribunal

of demon

CLAIMAN

harm tha

The Char

associatio

published

Costs.” [

Article 1

security f

claimant

for enfor

require o

However

is absolu

whether a

4.2, p. 10

In this ca

RESPOND

There is n

has demo

NIVERSITY COL_______________

  he alternativ

security for

burden of pr

his Tribunal

DENT still has

order CLAIM

nstrating irre

NT. On the co

n good.

rtered Institu

on. It has mo

d an internat

CIARB, p. i]

of the CIAR

for costs is a

’s ability to

cement of an

one party to p

r, RESPONDE

utely necessa

awarding se

0].

ase, this Trib

DENT has not

no evidence

onstrated suf

LEGE OF LAW ________________

ve, even if t

r RESPONDE

roof demons

had the auth

s the burden

MANT to prov

eparable harm

ontrary, requ

ute of Arbitr

ore than 14,0

tional arbitra

].

RB Guidelin

appropriate:

satisfy an ad

n adverse co

provide secu

ENT is require

ary. [CIARB

curity would

bunal should

t demonstrat

that CLAIMA

fficient cash

_______________

his Tribuna

ENT’s costs, i

strating tha

hority to ord

n to demonstr

vide them. H

m that outwe

uiring securi

ators (“CIAR

000 member

ation practice

ne provides a

(1) the prosp

dverse costs

osts award; a

urity for the o

ed to provid

Commentary

d “unjustly s

not award s

ted that it wi

ANT will be

to cover RE

_______________

10

al has the au

it should no

at it is appro

der CLAIMAN

rate that it is

However, RE

eighs the lik

ity for RESPO

RB”) is a we

rs from 100 c

e guideline e

a helpful test

pects of succ

award and th

and (3) wheth

other party’s

e the burden

y, p. 7].  Add

stifle a legitim

security for c

ll succeed on

unable to sa

ESPONDENT’s

________________

uthority to o

ot do so beca

opriate and

NT to provide

s appropriate

ESPONDENT h

kely harm tha

ONDENT’s co

ell-respected

countries. [C

entitled “Ap

t for determi

cess of the c

he availabili

her it is fair

s costs. [CIA

n of proof to

  ditionally, ar

mate and ma

costs under t

n the claims

atisfy an adv

s costs. [P.O

________________

order CLAIM

ause RESPO

necessary.

e for security

e and necess

has failed to

at will be exp

osts will like

d internation

CIARB, p. ii]

plications fo

ining when a

laims and de

ity of the cla

in all of the

ARB, Art. 1, p

show that p

rbitrators sh

aterial claim

the CIARB g

s and defense

erse costs aw

O. No. 2, p. 5

_______________

MANT to

ONDENT has

y for costs,

ary for this

meet its bur

perienced b

ely cause mo

nal arbitration

]. It has

or Security f

an award for

efenses; (2)

aimant’s asse

circumstanc

p. 3].

providing sec

ould conside

m.” [CIARB, A

guidelines. F

es. Second,

ward. CLAIM

8, § 28].

_______

not

rden

by

ore

n

for

r

ets

ces to

curity

er

Art.

First,

MANT

33

34

35

36

QATAR UN___________ 

 

Addition

RESPOND

Finally, i

RESPOND

while CL

While CL

requires i

[P.O. No

would ad

to be hea

As such,

This Trib

costs, nor

of securit

measure.

Finally, R

be caused

NIVERSITY COL_______________

nally, there is

DENT’s favor

it would be f

DENT’s costs

LAIMANT wou

LAIMANT has

it to devote i

o. 2, p. 58, §

dversely affe

ard in the pro

this Tribuna

bunal does n

r should it d

ty for legal c

Third, inter

RESPONDENT

d to CLAIMA

LEGE OF LAW ________________

s no third-pa

r at risk. [Sec

fundamental

. RESPONDEN

uld experien

s sufficient c

its available

28]. Having

ect CLAIMAN

oceedings.

al should den

CON

ot have the p

do so. First, th

costs. Secon

rnational arb

T has not dem

ANT.

_______________

arty funding

curity, p. 46,

ly unfair to r

NT has not d

nce greater h

cash flow to

funds to the

g to unnecess

NT’s ability to

ny RESPOND

NCLUSION

power to ord

he arbitratio

d, security fo

bitration prac

monstrated i

_______________

11

source prese

, § 2].

require CLAI

demonstrated

harm for havi

pay any nec

e present arb

sarily divert

o participate

DENT’s reque

OF THE FI

der CLAIMAN

on clause in t

for legal is no

ctice does no

irreparable h

________________

ent in the arb

IMANT to pro

d that that it

ing to provid

cessary fees,

bitration and

funds to pro

e in the arbitr

est for securi

IRST ISSU

NT to provide

the DSA is s

ot considere

ot support an

harm that out

________________

bitration to p

ovide securi

will suffer ir

de security f

, its financial

to its busine

ovide securit

ration, and t

ity for costs.

UE

e security fo

silent with re

d to be a pro

n award of se

tweighs the

_______________

place an awa

ity for

rreparable ha

for the costs.

l situation

ess operation

ty for costs

therefore its

or RESPONDE

egard to the

ovisional

ecurity for co

harm that w

_______

ard in

arm,

.

ns.

right

ENT’s

issue

osts.

would

37

38

39

40

QATAR UN___________ 

 

ISSUE 2

PROCEE

THE AR

(A) CLAI

June 201

Section 2

Agreeme

be reache

failure of

which is

between

RESPOND

under the

Accordin

31 May 2

However

actively a

sales pric

RESPOND

RESPOND

In the ho

Beinhorn

3, p. 29].

remain o

NIVERSITY COL_______________

2: CLAIMA

EDINGS W

RBITRATIO

IMANT’s init

16 or 31 Ma

21 of the DS

ent shall be s

ed each party

f the negotia

reasonably i

them.

DENT claims

e DSA due to

ng to RESPON

2016 becaus

r, the failure

attempted to

ces for the 2,

DENT for furt

DENT has refu

pe of finding

n, sent an em

Ms. Beinho

pen for any

LEGE OF LAW ________________

ANT’S REQ

WERE INIT

ON AGREE

tiation of th

ay 2016, bec

A states that

settled amica

y has the rig

ation.” The 6

interpreted a

that the arbi

o CLAIMANT

NDENT, the R

e the failure

of negotiati

o find creativ

,000 fan blad

ther orders w

fused every s

g a construct

mail to RESPO

orn stated in

meaningful

_______________

UEST FOR

IATED WI

EMENT.

he arbitratio

cause the 60

t “[a]ll dispu

ably and in g

ght to initiate

60–day time

as the day tha

itration was

T’s delay in s

Request for A

of negotiati

ons did not o

ve compromi

des covered

within the ne

solution offe

tive solution

ONDENT’s rep

her email th

negotiations

_______________

12

R ARBITRA

THIN THE

on was time

–day time p

utes arising o

good faith be

e arbitration p

limit begins

at both parti

not initiated

submitting th

Arbitration s

ions occurred

occur on 1 A

ises to settle

by the DSA

ext five years

red by CLAI

n to the dispu

presentative

hat CLAIMAN

s.” [Ex. R 3,

________________

ATION IS A

E TIMEFRA

ely regardles

period did n

out of or in c

etween the p

proceedings

s upon the fa

ies stop tryin

d within the 6

he arbitratio

should have

d on 1 April

April 2016. I

e the dispute,

A in exchange

s. [Request, p

IMANT. [Req

ute, CLAIMA

e, Mr. Lindbe

NT was “alwa

p. 29].

________________

ADMISSIBL

AME REQU

ss of whethe

not begin on

connection w

parties. If no

s within 60 d

ailure of the n

ng to resolve

60–day perio

on request on

been submit

l 2016.

In this case,

, including a

e for a comm

p. 6, § 17]. H

uest, p. 6, §

ANT’s represe

ergh, on 1 A

ays at your d

_______________

LE BECAU

UIRED BY

er it was on

n 1 April 20

with this

agreement c

days after the

negotiation,

e the issue

od required

n 7 June 201

tted no later

CLAIMANT h

a decrease in

mitment from

However,

17].

entative, Ms

April 2016. [E

disposal and

_______

USE

n 7

16.

can

e

6.

than

has

n the

m

.

Ex. R

we

41

42

43

44

QATAR UN___________ 

 

The emai

working

April 201

arbitratio

the reque

In conclu

negotiati

to RESPO

not a dec

RESPOND

was RESP

arbitratio

such, the

(B) CLAI

requirem

Article 4

arbitratio

CAM–CC

for adequ

arbitratio

involved

applicabl

In this ca

[Request

Request f

more det

NIVERSITY COL_______________

il was not a

towards a m

16. Likewise

on request, n

est.

usion, CLAIM

ons. This is

ONDENT. CLA

claration of th

DENT time to

PONDENT’s r

on on 31 May

60–day tim

IMANT’s Re

ment for init

.1 of the CA

on: “(a) A do

CBC to adm

uate represen

on; (d) The e

in the arbitr

le to the arbi

ase, CLAIMAN

for Comple

for Arbitrati

ail below, th

LEGE OF LAW ________________

declaration o

mutually bene

e, the time li

or did it end

MANT remain

amply demo

AIMANT’s 1 A

he failure of

reconsider t

responsibility

y 2016 when

me limit did n

quest for A

tiating arbit

AM–CCBC r

ocument that

minister the p

ntation; (c) A

estimated am

ration; and (f

itration unde

NT satisfied

tion, p. 19].

ion satisfied

he Power of

_______________

of the failure

eficial soluti

mit did not e

d on 7 June 2

ned continua

onstrated by

April 2016 e

f negotiation

the situation

y to move th

n it was appa

not start on 1

rbitration a

tration und

rules lists the

t contains the

proceedings;

A summary s

mount in disp

f) A stateme

er the contrac

all the neces

First, the DS

subpoints (c

Attorney for

_______________

13

e of the nego

ion. As such

end on 31 M

2016 when C

ally open to r

CLAIMANT’

email was sim

ns. On the co

n and come f

hose negotiat

arent RESPON

April 2016

and support

der Art. 4 of

e requiremen

e arbitration

(b) A power

statement of

pute; (e) The

ent of the sea

ct.”

ssary require

SA satisfied

c), (d), (e), an

r Wright Ho

________________

otiation, but

h, the 60–day

May 2016 wh

CLAIMANT su

resolving the

s efforts to o

mply anothe

ontrary, CLAI

forward for m

tions forwar

NDENT had n

, nor did it e

ting docume

f the CAM–

nts for initiat

n agreement,

r of attorney

f the matter t

full name a

at, language,

ements of CA

subpoints (a

nd (f). Final

lding Plc sat

________________

rather an of

y duration di

hen CLAIMAN

ubmitted the

e present dis

offer constru

er gesture of

IMANT was s

meaningful n

rd. CLAIMAN

no intentions

end on 31 Ma

ents satisfie

–CCBC rule

ting a valid r

providing fo

y for any law

that will be t

and details of

, law or rules

AM–CCBC

a) and (f). Se

lly, as will be

tisfied subpo

_______________

ffer to contin

id not start o

NT submitted

e amendment

spute through

uctive solutio

good faith, a

simply allow

negotiations

NT filed for

s of doing so

ay 2016.

d the

es.

request for

for choice of

wyers provid

the subject o

f the parties

s of law

Art. 4.1.

econd, the

e discussed

oint (b).

_______

nue

on 1

d the

ts to

h

ons

and

wing

. It

o. As

f the

ding

of the

in

45

46

47

48

49

QATAR UN___________ 

 

On 1 Jun

CLAIMAN

in the am

CLAIMAN

[Request

400 inste

19]. The

days and

[Request

CLAIMAN

Ltd. [Fas

of attorne

Wright H

second, b

CAM–CC

More spe

decisions

No. 2, p.

business.

arbitratio

Under CA

along wit

registrati

specifica

requests.

In this ca

issued pa

NIVERSITY COL_______________

ne 2016, the

NT’s applicat

mount of BRL

NT’s power o

for Comple

ead of BRL 4

President re

d provide evi

for Comple

NT immediat

sttrack to CA

ey had been

Holding Plc h

because “all

CBC, p. 20].

ecifically, W

s which go b

54, § 2]. Ar

.” As such, t

on proceedin

AM–CCBC

th the initial

ion fee is to e

ally, the purp

” [CAM–CC

ase, CLAIMAN

ayment for B

LEGE OF LAW ________________

President of

tion: (1) a po

L 3600. [Req

of attorney re

tion, p. 19].

4000 as requ

equested that

dence that a

tion, p. 19 (e

tely submitte

AM–CCBC, p

legally suffi

had originall

important de

Wright Holdin

beyond day–t

bitration for

the original p

ngs under CA

Art. 4.2, the

arbitration a

ensure that t

pose of this r

CBC Comme

NT’s attorne

BRL 400, ins

_______________

f the CAM–C

ower of attor

quest for Co

eferred to W

Additionally

uired under C

t CLAIMANT

all the require

emphasis ad

ed a new pow

p. 20]. That

icient to initi

ly approache

ecisions are

ng Plc owns

to–day busin

r a dispute of

power of atto

AM–CCBC A

e party comm

application.

the party init

requirement

ntary, Art. 1

y’s secretary

stead of the B

_______________

14

CCBC sent a

rney for Wri

mpletion, p.

Wright Ltd’s p

y, the Presid

CAM–CCBC

“amend the

ements of A

ded)].

wer of attorn

being said, C

iate the arbit

ed him to pre

taken at the

88% of CLA

ness are disc

f the present

orney was su

Art. 4.1.

mencing arbi

The purpose

tiating arbitr

is to “discou

12, p. 67].

y (not CLAIM

BRL 4000 sp

________________

a request for

ight Ltd; and

19]. The Pr

parent comp

dent noted th

C Art. 12. [R

Request for

Article 4.1 ha

ney that was

CLAIMANT n

tration for tw

epare the cla

level of the

AIMANT’s co

cussed with t

t magnitude

ufficient auth

itration shou

e behind the

ration is sinc

urage[e] man

MANT) had m

pecified und

________________

r two supplem

d (2) an addi

resident obse

pany, Wright

hat CLAIMAN

Request for C

r Arbitration

ave been com

signed on b

noted that th

wo reasons:

aim in the ar

Holding.” [

ompany, and

the parent co

goes beyond

horization to

uld pay the re

obligation t

cere and com

nifestly inap

made a cleric

der CAM–CC

_______________

ments to

itional paym

erved that

t Holding Pl

NT had paid B

Completion,

n within 10 (t

mplied with.”

behalf of Wri

he original po

first, becaus

rbitration; an

[Fasttrack to

d all importan

ompany. [P.

d “day–to–da

o initiate the

egistration f

to pay the

mmitted. Mor

ppropriate

cal error and

CBC Art. 12

_______

ment

lc.

BRL

p.

ten)

”

ight

ower

se

nd

o

nt

O.

ay

fee

re

2.

50

51

52

53

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[Fasttrac

issue was

remedy t

dispute a

CAM–CC

In conclu

the requi

company

CLAIMAN

CLAIMAN

resolution

initial req

(C) Even

CLAIMAN

Even if th

CLAIMAN

60–day li

The 1 Jun

was recei

request w

CCBC or

Completi

for Arbit

(ten) day

The initia

that the in

NIVERSITY COL_______________

ck to CAM–C

s brought to

he problem

and that it wa

CBC Art. 12

usion, CLAIM

rements of C

y and its pare

NT. Addition

NT’s attorney

n of the disp

quest on 31 M

n if this Trib

NT initiated

his Tribunal

NT still initia

imitation spe

ne 2016 lette

ived from C

was not rejec

rder used the

ion, p. 19]. F

ration, statin

ys.” [Request

al Request fo

nitial reques

LEGE OF LAW ________________

CCBC, p. 20

its attention

is evidence t

as not a “ma

2. As such, th

MANT’s initia

CAM–CCBC

ent company

nally, the pay

y, which doe

pute. As such

May 2016.

bunal finds

d a timely Re

finds that th

ated a valid R

ecified in the

er from the C

LAIMANT on

cted. On the

e phrase “am

Further, the o

ng that “CLA

t for Comple

or Arbitratio

st had been r

_______________

0]. CLAIMAN

n. [Fasttrack

that CLAIMA

nifestly inap

his should n

al request for

C Art. 4. The

y give the pa

yment mistak

es not elimin

h, the arbitra

that the 60–

equest for A

he failure of

Request for A

e arbitration

CAM–CCBC

n 31 May 20

contrary, a r

mend” in refe

order provid

AIMANT must

etion, p. 19 (

on was dated

rejected and

_______________

15

T immediate

k to CAM–CC

ANT is sincer

ppropriate re

ot be consid

r arbitration

e nature of th

arent compan

ke was an ho

nate CLAIMAN

ation was suc

–day time p

Arbitration

the negotiat

Arbitration o

n clause.

C President s

16. [Request

request for a

erence to the

ded CLAIMAN

t first amend

emphasis ad

d 31 May 20

that a new r

________________

ely corrected

CBC, p. 20].

re and comm

equest,” as re

dered a termi

and the supp

he relations

ny the right m

onest clerica

ANT’s good fa

ccessfully in

period began

on 31 May

tions was de

on 31 May 2

stated that th

t for Comple

amendment w

e arbitration

NT 10 days to

d the Reques

dded)].

16. The orde

equest woul

________________

d this oversig

CLAIMANT’

mitted to reso

equired in th

inal error.

porting docu

between CL

make decisio

al error from

aith and com

nitiated from

n on 1 April

2016.

clared on 1 A

2016, which

he Request f

etion, p. 19].

was issued. T

request. [Re

o amend the

st for Arbitra

er contained

ld be require

_______________

ght once the

’s quick acti

olving this

he spirit of

uments fulfil

AIMANT’s

ons on behal

an employe

mmitment tow

m the date of

l 2016,

April 2016,

was within t

for Arbitratio

. Importantly

The CAM–

equest for

e initial Requ

ation within

d no indicatio

ed. As such,

_______

on to

lled

lf of

ee of

ward

the

the

on

y, the

uest

10

on

the

54

55

56

57

QATAR UN___________ 

 

order con

an amend

and there

Further, t

June 201

comply w

notice did

rejected.

Moreove

Proceedin

of Claim

“supplem

Claim, p.

proceedin

limitation

In conclu

arbitratio

basis of t

Commen

CLAIMAN

requested

suppleme

(D) Inter

initiated

In additio

with inte

NIVERSITY COL_______________

ntained an in

dment. CLAI

eby prevente

the Notice fo

6 stated “[t]

with the requ

d not contain

er, the CAM–

ng that the r

, p. 22 (emph

mented” in de

. 22 (emphas

ngs on 31 M

n of 10 days

usion, CLAIM

on should be

the language

ncement of A

NT’s Request

d, CLAIMANT

ented reques

rnational pr

d on the date

on to the CA

rnational arb

LEGE OF LAW ________________

nvitation (wi

IMANT amen

ed any issues

or Commenc

he original R

uirements of

n any langua

–CCBC decl

request of ini

hasis added)

escribing the

sis added)]. A

May 2016. Th

. CLAIMANT

MANT submit

deemed to h

e used in the

Arbitration P

t for Arbitra

T amended th

st made by C

ractice supp

e the reques

AM–CCBC R

bitration prac

_______________

ith a new tim

nded the requ

s that could h

cement of A

Request for A

f Article 4.”

age indicatin

lared in the N

itiating arbit

)]. Important

e compliance

As such, CL

he initial requ

T did what w

tted a timely

have begun f

“Request fo

Proceeding.”

tion. Instead

he Request f

CLAIMANT da

ports the con

st for arbitr

Rules, the pr

ctice. Sectio

_______________

16

me limitation

uest on 7 Jun

have led to th

rbitration Pr

Arbitration w

[Service of C

ng the origin

Notice for C

tration had b

tly, the CAM

e of the initi

LAIMANT suc

uest required

as required t

y Request for

from the day

or Completio

In no event

d, it asked fo

for Arbitratio

ates back to

nclusion tha

ration is rece

resent arbitra

on 21 of the D

________________

n) to supplem

ne 2016, wel

the invalidity

roceeding re

was supplem

Claim, p. 22

nal request fo

Commencem

been received

M–CCBC us

ial Request f

ccessfully ini

d an amendm

to remedy th

r Arbitration

y the initial r

on” as well a

did the CAM

or an amendm

on within th

the initial ap

at arbitratio

eived by the

ation is to be

DSA states t

________________

ment the orig

ll within the

y of the initia

eceived by R

mented on 07

(emphasis a

or arbitration

ment of Arbitr

d on 31 May

ed the phras

for Arbitratio

itiated these

ment, with a

hat request.

n. The comm

request was

as the “Notic

M–CCBC de

ment within

he required ti

pplication on

on proceedi

e arbitral ce

e governed in

that “[t]he ar

_______________

ginal request

new time lim

al request.

RESPONDENT

7 June 2016 t

added)]. The

n had been

ration

y 2016. [Serv

se

on. [Service

arbitration

a new time

mencement o

submitted on

ce for

eny or invali

10 days. As

ime. As such

n 31 May 20

ings are

enter.

n accordance

rbitration sh

_______

t with

mit,

on 8

to

e

vice

of

of

n the

idate

h, the

016.

e

all

58

59

60

QATAR UN___________ 

 

be condu

Commer

[Ex. C 2,

As discu

CAM–CC

request w

supports

submitted

centers, s

of Comm

Accordin

the reque

statemen

[VIAC Ru

Article [7

to remed

VIAC Ar

a claiman

Similarly

be the da

the Secre

arbitratio

requirem

“In the ev

may fix a

the amen

applicatio

NIVERSITY COL_______________

ucted under t

ce Brazil–Ca

p. 11, § 21

ssed above i

CBC Preside

was submitte

the conclusi

d. This inter

such as the V

merce (ICC),

ng to VIAC A

est is receive

nt of claim is

ules, Art. 7.1

7.4] or if cop

y the defect

rt. 7.4, wher

nt to amend

y, under ICC

ate of the com

etariat shall,

on.” [ICC Ru

ments, the sec

vent that the

a time limit w

ndment proce

on for arbitr

LEGE OF LAW ________________

the Rules of

anada (‘CAM

(emphasis a

in Subsection

ent support t

ed. Similarly

ion that an a

rnational pra

Vienna Intern

and the Inte

Art. 7.1, an a

ed. “The arbi

received by

1]. If “[t]he S

pies or exhib

or suppleme

e a request f

the request o

C Art. 4.2 the

mmencemen

for all purpo

ules, Art. 4.2

cretariat may

e claimant fa

within which

ess is not con

ation.

_______________

the Center f

M–CCBC’)

dded)].

n (B), the CA

the conclusio

y, it is import

arbitration is

ctice is supp

national Arb

ernational Ce

arbitration sh

itration shall

y the secretar

Statement of

bits are missi

ent the State

fails to meet

or suppleme

e date of the

nt of arbitrati

oses, be deem

2]. Under ICC

y fix a time l

ails to comply

h the claiman

nsidered to b

_______________

17

for Arbitratio

and in line w

AM–CCBC

on that initia

tant to note t

commenced

ported by the

bitration Cen

entre for Dis

hall be deem

l be deemed

riat. Hereby,

f Claim does

ing, the Secr

ment of Clai

the requirem

nt with addi

receipt of th

ion. “The da

med to be th

C Art. 4.4, w

limit to amen

y with either

nt must com

be a new req

________________

on and Medi

with internat

rules and th

ation of arbit

that internati

d on the day

e rules of oth

nter (VIAC),

spute Resolu

med to comm

to commenc

, the proceed

s not comply

retary Gener

im.” [VIAC

ments, the se

itional docum

he request fo

ate on which

he date of the

where a claim

nd or supply

r of these req

mply.” [ICC R

quest that inv

________________

iation of the

tional arbitr

he subsequen

tration occur

ional arbitra

the initial re

her well-rega

, the Internat

ution (ICDR)

mence on the

ce on the dat

dings becom

y with paragr

ral may requ

Rules, Art. 7

ecretary gene

mentation.

or arbitration

the Request

e commence

mant has fail

y the rest of t

quirements,

Rules, Art. 4

validates the

_______________

Chamber of

ration practi

nt conduct of

rred when th

ation practice

equest is

arded arbitra

tional Cham

).

e date on whi

te on which

me pending.”

raph 3 of thi

uest the claim

7.4]. Under

eral may req

n is considere

t is received

ement of the

led to meet t

the requirem

the Secretar

4.4]. Regardl

e initial

_______

f

ice.”

f the

he

e

ation

mber

ich

the

is

mant

quest

ed to

by

the

ments.

riat

less,

61

62

63

QATAR UN___________ 

 

Finally, I

receipt of

Administ

supports

arbitratio

In conclu

practice.

ICC, and

initiation

subseque

In conclu

negotiati

negotiati

the time

on April

day limit

attorney

CCBC or

Arbitratio

of severa

NIVERSITY COL_______________

ICDR Art. 2

f the request

trator receiv

the same co

on, even whe

usion, the DS

The rules of

d the ICDR s

n of an arbitr

ent suppleme

usion, CLAIM

ons was not

ons. It was R

limit did not

1, 2016, CLA

t. The initial

and the rema

rder. As such

on. These co

al respected i

LEGE OF LAW ________________

.2 states that

t. “The arbitr

es the Notic

onclusion: th

en the initial

SA explicitly

f several resp

support the s

ration from th

ents or amen

CONC

MANT submit

declared on

RESPONDENT

t expire on 3

AIMANT sub

Request for

ainder of the

h, the initiati

onclusions ar

international

_______________

t an arbitrati

ration shall b

e of Arbitrat

at the initiat

request is su

y states that

pected intern

ame conclus

he date the i

ndments.

CLUSION O

tted a timely

n 1 April 201

T’s responsib

31 May 2016

mitted a tim

r Arbitration

e application

ion of arbitr

re supported

l arbitration

_______________

18

ion is consid

be deemed to

tion.” [ICDR

ion of arbitr

upplemented

dispute reso

national arbi

sion: that it i

initial reques

OF THE SE

y Request for

16 because C

bility to mov

6. Second, ev

mely Request

was supplem

n fee, within

ation dates b

d by internati

centers.

________________

dered to be co

o commence

R Rules, Art.

ration dates b

d or amende

olution shall

itration cente

is “internatio

st was submi

COND ISSU

r Arbitration

CLAIMANT re

ve those nego

ven if the 60

t for Arbitrat

mented with

the new tim

back to the d

ional practic

________________

ommenced o

e on the date

. 2.2]. As suc

back to the in

d.

be governed

ers, such as t

onal practice

itted, regard

UE

n. First, the

emained open

otiations for

0–day time p

tion within th

h an addition

me limit set b

date of the in

ce and eviden

_______________

on the date o

e on which th

ch, the ICDR

nitial reques

d by internat

the VIAC, th

e” to date the

dless of

failure of

n for further

rward. As su

period did be

he required

nal power of

by the CAM–

nitial Reques

nced in the r

_______

of

he

R

st for

tional

he

e

r

uch,

egin

60–

–

st for

rules

64

65

66

67

QATAR UN___________ 

 

ISSUE 3

PAYME

WHICH

EXCHA

CISG Ar

required

obey the

Specifica

[Schlecht

monetary

strengthe

(A) RESP

as requir

The DSA

account a

CLAIMAN

agreed un

Under th

applied th

20,438,5

and is sti

NIVERSITY COL_______________

3: UNDER C

ENT FROM

H IS THE OU

ANGE RATE

rt. 53 states “

by the contr

provisions o

ally, the buye

triem/Butler

y performanc

ened by certa

PONDENT br

red under C

A states that

at the Equato

NT is entitled

nder the con

e DSA, RES

he wrong ex

60.00. As su

ill liable for t

LEGE OF LAW ________________

CISG ART.

M RESPOND

UTSTANDI

E AT THE

“the buyer m

ract and this

of the contra

er is obligate

r, p. 157, § 4

ce is require

ain provision

reached the

CISG Art. 5

“[t]he BUYE

orianian Nat

d to receive f

ntract.

PONDENT sh

xchange rate

uch, RESPON

the remainin

_______________

53, CLAIM

DENT OF U

ING BALA

TIME PAY

must pay the

Convention

act it made w

ed to provid

.1.1]. “The o

d. The impre

ns concernin

contract by

53.

ER will depo

tional Bank.”

full payment

hould have p

to the cost f

NDENT is in b

ng USD 2,28

_______________

19

MANT IS EN

USD 2,285,24

ANCE DUE

YMENT WA

price for the

.” Article 53

with the selle

e the full pay

obligation of

ession that th

ng payment.”

y failing to p

osit the purc

” [Ex. C 2, p

t under the D

aid USD 22,

for the fan bl

breach of con

85,240.00.

________________

NTITLED T

40 FOR TH

UNDER TH

AS DUE).

e goods and

3 reflects the

er. [Gabriel,

yment requi

f the buyer t

he price invo

” [Maskow, p

pay the full

chase price in

p. 9, § 4]. Un

DSA. RESPON

,723,800.00

lades, and th

ntract and in

________________

TO AN AD

HE FAN BL

HE DSA (B

take delivery

e obligation o

pp. 273–83]

ired under th

to pay the pr

olves payme

p. 385].

purchase p

n full into th

nder CISG A

NDENT paid

. RESPONDEN

herefore paid

n violation of

_______________

DITIONAL

LADES,

ASED ON T

y of them as

of the buyer

].

he contract.

rice implies t

ent in money

rice in the D

he SELLER’

Art. 53,

less than wa

NT incorrect

d only USD

f CISG Art.

_______

L

THE

s

r to

that a

y is

DSA,

s

as

tly

53,

68

69

70

71

72

QATAR UN___________ 

 

(1) The f

clamps,

An Adde

to attach

modify a

The Add

clamps to

coverage

the agree

It is impo

word “ag

in the “m

§ 21]. Th

the clamp

p. 9, § 21

RESPOND

contract a

result, RE

to the pay

However

[Ex. C 1,

that the p

other term

that eithe

NIVERSITY COL_______________

fixed exchan

and does no

endum was a

the fan blad

any terms un

endum state

o attach the f

e base and be

ement is fixe

ortant to note

greement” (lo

main Agreem

his was an in

ps (“agreem

1].

DENT mistake

as well, rath

ESPONDENT i

yment for th

r, the “main

p. 8; Ex. C

price for the

ms related to

er party inten

LEGE OF LAW ________________

nge rate ref

ot apply to t

added to the

des. While th

der the origi

s that “[t]he

fan blades to

e paid in USD

ed to USD 1

e that in the

ower-case).

ment,” and th

ntentional ch

ent”) and tho

enly claims t

her than apply

incorrectly a

he fan blades

Agreement”

2, p. 9, § 4].

clamps were

o the clamps

nded the han

_______________

ferenced in t

the fan blad

DSA on 26

he Addendum

inal agreeme

Buyer may

o the fan sha

D. Other ter

= EQD 2.01

Addendum,

All other ter

erefore used

hoice, and cle

ose included

that the fixe

ying only to

applied the f

s. [Ex. C 3, p

” in the DSA

The handw

e to be paid

were includ

ndwritten Ad

_______________

20

the Addend

des.

Oct. 2010, r

m did fix the

ent in the DS

request the

aft. The Price

rms as per m

1.” [Ex. C 2,

contract ter

rms in the A

d the word “A

early disting

d in the origi

d exchange r

o the addendu

fixed exchan

p. 12].

A was silent o

written adden

in USD, fixe

ded in the “m

ddendum to m

________________

dum to the D

regarding an

e exchange ra

SA.

Seller to pro

e for the clam

main Agreem

p. 9, § 21].

rms relating

Addendum w

Agreement”

guishes betw

inal DSA (“m

rate was inte

um for the c

nge rate not o

on determini

ndum added i

ed an exchan

main Agreem

modify the o

________________

DSA applies

additional o

ate for the cl

oduce and de

mps shall be

ment. The exc

only to the c

ere to be the

(capitalized

ween terms re

main Agreem

ended to mo

clamps. [Ex.

only to the c

ing a fixed e

in 26 Octobe

nge rate, and

ment.” There

original cont

_______________

s only to the

order for clam

lamps, it did

eliver 2,000

e on a cost

change rate f

clamps used

e same as tho

d). [Ex. C 2,

elating only t

ment”). [Ex.

odify the orig

C 3, p. 12].

lamps, but a

exchange rat

er 2010 state

d specified th

e is no eviden

tract.

_______

e

mps

d not

for

the

ose

p. 9,

to

C 2,

ginal

As a

also

te.

ed

hat

nce

73

74

75

76

QATAR UN___________ 

 

CLAIMAN

fixed exc

CLAIMAN

attaching

exchange

(2) CLAI

exchang

No intern

is signed

the excha

“[p]ayme

rate of ex

German E

currencie

[ATGED

expressed

prevailin

Dreyfus &

In this ca

such, the

Subsectio

exchange

did inten

DSA or d

As such,

money is

exchange

NIVERSITY COL_______________

NT concedes

change rate t

NT’s mistake

g a corrected

e rate. [Ex. C

MANT is ent

e rate at the

national or in

d. On the con

ange rate on

ent in the cur

xchange prev

External Deb

es at the rate

D 1980]. In th

d in a foreig

ng at the date

& Co. 1927]

ase, the DSA

exchange ra

on (B), this w

e rate for the

d to fix the e

during the ne

RESPONDEN

s the result o

e rate to the

LEGE OF LAW ________________

that it sent a

to both the fa

e was immed

d invoice that

C 5, p. 14].

titled to an a

e time paym

ndustry stand

ntrary, there

the date pay

rrency of the

vailing there

bts has state

of exchange

he UK, the K

n currency i

e when it bec

].

A was silent a

ate should be

was always C

e fan blades.

exchange rat

egotiation of

NT remains li

f breaching

cost of the fa

_______________

an incorrectl

an blades an

diately addre

t calculated t

additional p

ment was du

dard presum

is substantia

yment is due

e place for p

e when paym

ed that paym

e current on

King’s Bench

s converted

comes due an

about the ex

e fixed on th

CLAIMANT’s

Moreover, R

te for the fan

f the Addend

iable for the

the contract

fan blades.

_______________

21

ly calculated

nd the clamps

essed, and CL

the price of

payment of

ue.

mptively fixes

al evidence th

e. For examp

ayment is to

ment is due.”

ents “will…

the date wh

h Division o

into English

nd payable.”

change rate

he day of pay

s intention. C

RESPONDENT

n blades, dur

dum.

additional U

when RESPO

________________

d invoice to R

s. [Ex. C 4, p

LAIMANT sen

the fan blad

USD 2,285,

s the exchan

that the more

ple, UNIDRO

o be made ac

Additionall

…be reconver

hen each paym

f the High C

h currency at

” [Lloyd Roy

for the fan b

yment. As w

CLAIMANT n

T provides n

ring either th

USD 2,284,2

ONDENT mis

________________

RESPONDENT

p. 13]. Howe

nt an email t

des using the

,240, based

nge rate on th

e common pr

OIT Art. 6.1

ccording to t

ly, the Arbitr

rted into the

ment becom

Court has sta

t the rate of e

yal Belge S.A

blades. [Ex. C

will be discus

never intende

no evidence t

he initial neg

240.00. This

stakenly app

_______________

T that applie

ever,

to RESPONDE

correct

on the prese

he day a con

ractice is to

.9(3) states t

the applicabl

ral Tribunal

respective

mes due.”

ated that “[a]

exchange

A. v. Louis

C 2, p. 9]. A

ssed below i

ed to fix the

that CLAIMA

gotiations for

amount of

lied the fixe

_______

ed the

ENT

ent

ntract

fix

that

le

for

debt

As

n

ANT

r the

d

77

78

79

QATAR UN___________ 

 

(B) Unde

exchang

(1) Unde

been una

and not t

CISG Ar

interprete

what that

interprete

instrumen

with the p

[Bonell,

If a party

intent wi

negotiati

3.2]. Alth

the intent

99].

In this ca

to apply t

contrary,

the concl

the price

The exch

language

fixed exc

could not

NIVERSITY COL_______________

er CISG Ar

e rate to the

er CISG Art

aware that C

to the fan b

rt. 8.1 provid

ed according

t intent was.

ed according

nts govern th

provisions o

§ 2(a), para.

y shows that

ll not prevai

ons, are con

hough not di

t of the parti

ase, CLAIMAN

the fixed exc

, the languag

lusion that th

of the clamp

hange rate fo

e does not su

change rate t

t, have been

LEGE OF LAW ________________

rt. 8 and UN

e price of th

t. 8.1 and U

CLAIMANT i

blades.

des that “[s]t

g to his inten

” Similarly,

g to the comm

he same issu

of the CISG,

2].

they did not

il. [Farnswor

sidered durin

ispositive, th

ies, particula

NT did not k

change rate

ge used in th

he parties sh

ps only. The

or the agreem

upport RESPO

to the entire

aware of tha

_______________

NIDROIT A

he fan blade

UNIDROIT A

intended th

tatements ma

nt where the

UNIDROIT

mon intentio

ues, the rules

and comme

t know or co

rth, p. 99]. A

ng the cours

he wording o

arly the draft

know and cou

in the Adden

e Addendum

hared the com

e Addendum

ment is fixed

ONDENT’s cla

contract sho

at intent.

_______________

22

Art. 4, the pa

es.

Art. 4.1.1, R

e fixed exch

ade by and o

other party k

T Art. 4.1.2 s

on of the par

s found in th

entary on the

ould not have

All facts and

se of contrac

of the contra

ting party. [C

uld not have

ndum to both

m (incidental

mmon intent

m states that “

d to USD 1 =

aim. RESPON

ould be rejec

________________

arties did no

RESPONDEN

hange rate t

other conduc

knew or cou

states that “[

rties.” To the

he UNIDROI

e former has

e known of t

d circumstanc

ct interpretati

ct is an impo

CISG–AC, O

e been aware

h the fan bla

lly, drafted b

of applying

“...other term

= EQD 2.01.”

NDENT’s stat

cted because

________________

ot intend to

T knew or c

to apply onl

ct of a party a

uld not have

a] contract s

e extent that

IT Principle

strong persu

the other par

ces of the ca

ion. [CISG–A

ortant factor

Op. No. 13; F

e that RESPON

ades and clam

by RESPONDE

g the fixed ex

ms as per ma

” [Ex. C 2, p

ted intention

CLAIMANT

_______________

apply a fix

could not ha

ly to the clam

are to be

been unawa

shall be

the two

s are consist

uasive value

rty’s intent, t

ase, includin

–AC, Op. No.

r in determin

Farnsworth,

NDENT inten

mps. On the

ENT) suppor

xchange rate

ain Agreeme

p. 11]. This

n of applying

was not, and

_______

ed

ave

mps,

are

tent

.

that

ng

. 3, §

ning

p.

nded

rts

e to

nt.

g the

d

80

81

82

83

QATAR UN___________ 

 

Importan

undertak

p. 10 (em

[Stark, p.

the partie

blades.

Converse

“agreeme

intended

reference

Importan

matter of

Similarly

clamps, t

“agreeme

aware tha

(2) Unde

circumst

the price

CISG Ar

other con

person of

UNIDRO

shall be i

parties w

NIVERSITY COL_______________

ntly, the capi

es to purcha

mphasis adde

. 101]. In thi

es originally

ely, it is reas

ent” intentio

the term “ag

ed in the Add

ntly, interpre

f the DSA w

y, if the parti

the parties w

ent” (lower-c

at RESPONDE

er CISG Art

tances woul

e of the clam

rt. 8.2 states

nduct of a pa

f the same k

OIT Art. 4.1.

interpreted a

would give to

LEGE OF LAW ________________

italized word

ase a minimu

ed)]. In contr

is case, the p

intended “A

sonable to as

onally, and th

greement” to

dendum.

ting the term

would render

ies intended

would have u

case). As su

ENT intended

t. 8.2 and U

ld have inten

mps only.

“[i]f the pre

arty are to be

ind as the ot

.2 states “[i]f

according to

o it in the sam

_______________

d “Agreemen

um of at leas

ract agreeme

parties used t

Agreement” (

ssume that th

hat it does no

o refer only t

m “agreemen

the precedin

to apply the

used the word

ch, CLAIMAN

d to apply th

UNIDROIT A

nded to app

ceding parag

e interpreted

ther party wo

f such an int

the meaning

me circumsta

_______________

23

nt” first appe

t 2,000 fan b

ents, capitali

the term “Ag

(capitalized)

he parties als

ot refer to th

to the supple

nt” (lower-ca

ng sentence i

e fixed excha

d “Agreemen

NT did not an

he fixed exch

Art. 4.1.2, a

ply the fixed

graph is not

according to

ould have ha

tention (com

g that reason

ances.” As s

________________

eared in DSA

blades under

ization is use

greement” to

) to refer to t

so used the l

he original D

ementary agr

ase) to also r

in the Adden

ange rate to b

nt” (capitaliz

nd could not

hange rate to

a reasonable

d exchange r

applicable, s

o the unders

ad in the sam

mmon) canno

nable persons

such, regard

________________

A § 2.3: “[t]h

r this Agreem

ed to signify

o refer to the

the terms go

lower-cased

DSA. Rather,

reement for

reference the

ndum meani

both the fan

zed), and no

t have been

o the entire D

e person in

rate in the A

statements m

standing that

me circumsta

ot be establis

s of the same

shall be give

_______________

he BUYER

ment.” [Ex. C

y a defined te

e DSA. As su

overning the

term

the parties

the clamps

e original sub

ingless.

blades and t

ot the word

reasonably

DSA.

similar

Addendum

made by and

t a reasonabl

ances.” Simi

shed, the con

e kind as the

en to all

_______

C 2,

erm.

uch,

fan

bject

the

to

d

le

larly,

ntract

e

84

85

86

87

QATAR UN___________ 

 

surround

8.3; see a

It is also

No. 13, §

unclear, a

CIETAC

party’s in

Here, RE

original D

RESPOND

position t

the langu

evidence

Also, it i

previous

the partie

circumsta

had recei

When bo

fixing an

appealing

directed t

wanted to

5]. Howe

CLAIMAN

expectati

NIVERSITY COL_______________

ding circumst

also Schlech

accepted tha

§ 9.1]. Contr

an interpreta

7 January 2

ntent.

ESPONDENT p

DSA instead

DENT drafted

to say exactl

uage should b

of RESPOND

s important t

agreements

es are owned

ances would

ived when th

oth parties w

n exchange ra

g for potenti

the compani

o take advan

ever, these ci

NT have been

ions no long

LEGE OF LAW ________________

tances to ide

triem/Butler

at the contra

ra proferente

ation against

000]. At the

proposed inc

d of concludi

d the text of t

ly what it wi

be interprete

DENT’s inten

to note that t

. In the past,

d by differen

d believe that

he parties we

ere owned b

ate in its con

ial buyers. [E

ies to adopt e

ntage of the m

ircumstance

n sold to diff

er apply.

_______________

entify the int

r, p. 57].

a proferentem

em provides

t that party sh

e very least, t

cluding the a

ing a new co

the Addendu

ished, since

ed against RE

nt under CISG

the nature of

, the parties w

nt companies

t RESPONDEN

ere subsidiar

by Engineerin

ntracts with o

Ex. R 1, p. 27

exchange rat

more favorab

s have drasti

ferent compa

_______________

24

terpretation o

m principle a

that “[i]f con

hall be adop

the contract

greement fo

ontract. [P.O

um. [Ex. R 2

it was the pa

ESPONDENT,

G Art. 8.

f the parties’

were subsidi

s. As such, n

NT would sti

ries of the sa

ng Internatio

other subsidi

7]. Addition

tes more fav

ble tax laws

ically chang

anies. [Requ

________________

of a reasonab

applies unde

ntract terms

pted.” [UNID

language is

or the clamps

O. No. 2, p. 5

, p. 28]. RES

arty that draf

, or at the ve

’ relationship

iaries of the

no reasonable

ill get the sa

ame parent c

onal, RESPON

diaries in ord

nally, Engine

vorable to RE

in Mediterr

ged now that

uest, p. 3, § 2

________________

ble person. [

er CISG Art.

supplied by

DROIT Princ

evidence of

s as an adden

7, § 16]. Ad

SPONDENT w

fted the lang

ery least prov

p has change

same parent

e person in s

ame preferen

ompany.

NDENT was “

der to make R

eering Intern

ESPONDENT b

raneo. [P.O.

t both RESPO

2]. As such, t

_______________

[See CISG A

8(2). [CISG

y one party a

ciples, Art 4

f the drafting

ndum to the

dditionally,

was in the bes

guage. As su

vides compe

ed since thei

t company. N

similar

ntial treatmen

“de-risked”

RESPONDENT

national had

because it ha

No. 2, p. 54–

ONDENT and

the old

_______

Art.

G–AC

are

.6;

g

st

uch,

elling

ir

Now,

nt it

by

T

ad

–4, §

88

89

90

91

92

QATAR UN___________ 

 

(3) Unde

that they

CISG Ar

person w

including

usages an

“[i]n app

prelimina

relevant t

In this ca

establish

parties ne

Second, n

that RESP

in the DS

that time

Third, M

around 2

interprete

term. It p

price of f

Fourth, th

supports

price of t

Ms. Bein

easiest w

NIVERSITY COL_______________

er CISG Art

y did not int

rt. 8.3 states

would have h

g the negotia

nd any subse

plying Article

ary negotiati

to determini

ase, discussio

ing the inten

ever discuss

notes taken o

PONDENT ins

SA, RESPOND

. However, n

Ms. Filmas als

–1 and has b

ed as a predi

provides evid

fan blades.

he email exc

the conclusi

the clamps. I

nhorn, COO

way to regula

LEGE OF LAW ________________

t. 8.3 and U

tend to appl

that “[i]n de

ad, due cons

ations, any p

equent condu

es 4.1 and 4.

ions between

ing the intent

ons surround

nt of the part

ed the excha

on 1 July 20

sisted on pric

DENT would

neither party

so wrote in h

been very sta

iction of wha

dence that th

change betw

ion that the p

In the 22 Oc

of Wright L

ate the purch

_______________

UNIDROIT A

ly a fixed ex

etermining th

sideration is

ractices whi

uct of the pa

.2, regard sh

n the parties

t of the parti

ding the orig

ties. First, in

ange rate. [A

010 by Ms. F

cing in USD

have presum

y raised the i

her notes tha

able over the

at the exchan

he parties nev

een CLAIMA

parties inten

ctober 2010 e

Ltd, RESPOND

hase of the cl

_______________

25

Art. 4.3, the

xchange rat

he intent of a

to be given

ich the partie

arties.” Simil

hall be had to

….” As such

ies.

ginal DSA an

n their meetin

Answer, p. 24

Filmas, produ

D. Had there

mably propo

issue. [Ex. C

at “[n]o majo

e last years.”

nge rate wou

ver intended

ANT and RESP

ded to apply

email from M

DENT stated t

lamps is to si

________________

e parties’ ne

te for the pr

a party or the

to all releva

es have estab

larly, UNIDR

o all the circu

h, surroundin

nd the Adden

ngs negotiati

4, §§ 8–10].

uction engin

been an inte

osed the inclu

C 1, p. 8].

or risk involv

” [Ex. C 1, p

uld likely be

d to apply a f

PONDENT pr

y the fixed ex

Mr. Romario

that “[a]s alr

ign an Adde

________________

egotiations

rice of the bl

e understand

ant circumsta

blished betw

ROIT Art. 4

umstances, i

ng circumsta

ndum are re

ing the origi

neer for CLAI

ention to fix

usion of such

ved, exchang

. 8]. This sta

e, not a propo

fixed exchan

rior to the Ad

xchange rate

o, CEO of Sa

ready discus

endum to our

_______________

demonstrat

lades.

ding a reason

ances of the

ween themsel

4.3 states tha

including…

ances are

levant to

inal DSA, th

IMANT, prov

an exchange

h a provision

ge rate shou

atement is be

osed contrac

nge rate to th

ddendum

e only to the

antosD KG,

ssed we think

r Developme

_______

te

nable

case

lves,

at

he

vide

e rate

n at

uld be

est

ct

he

to

k the

ent

93

94

95

QATAR UN___________ 

 

and Sales

their corr

re-negoti

In this em

reference

intent to

not ment

Addendu

certainly

re-openin

entire agr

In light o

assumed

reference

assumed

agreemen

In conclu

of USD 2

based on

the Adde

and UNID

the fan b

fixed exc

person in

breached

CISG Ar

NIVERSITY COL_______________

s Agreement

respondence

iation or alte

mail, RESPON

e to the fan b

sign an adde

ion the fans

um to cover t

did not com

ng negotiatio

reement.

of the aforem

that RESPON

ed in the Add

RESPONDEN

nt in the DSA

usion, CLAIM

2,285,240 fo

the exchang

endum to the

DROIT Art.

lades. RESPO

change rate t

n similar circ

d the contract

rt. 53.

LEGE OF LAW ________________

t and not to e

e, there is no

eration of any

NDENT refers

blades. Acco

endum regul

as well is ev

the clamps o

mmunicate th

ons under the

mentioned rea

NDENT had in

dendum. No

NT had intend

A.

CONC

MANT is entit

or the fan bla

ge rate at the

e DSA applie

4, the partie

ONDENT knew

to apply only

cumstances w

t by failing t

_______________

enter into a s

evidence th

y terms cont

s to previous

ording to RES

lating the pu

vidence that

only. And ev

hat intention

e DSA rathe

asons, a reas

ntended to a

o reasonable

ded the fixed

CLUSION

tled to an ad

ades, which i

e time payme

ed only to th

es did not int

w or could n

y to the clam

would have c

to pay the fu

_______________

26

separate con

hat even remo

tained in the

s discussions

SPONDENT, t

urchase of the

RESPONDEN

ven if RESPON

to CLAIMAN

er than accep

sonable pers

pply the fixe

person in sim

d exchange r

OF THE TH

ditional paym

is the outstan

ent was due)

he clamps, no

tend to apply

not have bee

mps, and not

come to the

ull purchase p

________________

ntract for the

otely indicat

original DS

s related to t

the parties ha

e clamps. Th

NT intended a

NDENT had i

NT, who sure

pt such a cas

son in such c

ed exchange

milar circum

rate to also a

HIRD ISSU

ment from R

nding balanc

). The fixed

ot to the fan

y a fixed exc

en unaware th

to the fan bl

same conclu

price in the D

________________

e clamps.” [E

tes the partie

SA.

the clamps, w

ad explicitly

he fact that R

any new term

intended oth

ely would ha

sual modifica

circumstance

e rate only to

mstances wou

apply to the o

UE

RESPONDENT

ce due under

exchange ra

blades. Und

change rate t

hat CLAIMAN

lades, and a

usion. As su

DSA, as req

_______________

Ex. R 2, p. 28

es were open

without any

y expressed t

RESPONDENT

ms in the

herwise, it

ave insisted o

ation of the

es would hav

o the clamps

uld have

original

T in the amou

r the DSA (a

ate reference

der CISG Ar

to the price

NT intended

reasonable

ch, RESPOND

quired under

_______

8]. In

n to

their

T did

on

ve

unt

as

d in

rt. 8

of

the

DENT

96

97

98

99

QATAR UN___________ 

 

ISSUE 4

ADDITI

102,192.

(A) RESP

inspectio

CLAIMAN

Under CI

“The buy

and this C

contract w

CISG Ar

complyin

regulatio

pay the c

includes

made.” [G

In this ca

the Centr

for the fa

of the inv

under the

avoid bre

Under CI

that affec

and comp

borne by

NIVERSITY COL_______________

4: UNDER C

IONAL PAY

80 FOR TH

PONDENT br

on fee neces

NT.

ISG Art. 53,

yer must pay

Convention.

with other o

rt. 54 states t

ng with such

ns to enable

contract price

whatever ste

Gabriel, p. 2

ase, RESPOND

ral Bank. Un

an blades and

vestigation f

e Section 4.3

each.

ISG Art. 54,

ct full payme

plying with a

the buyer. T

LEGE OF LAW ________________

CISG ARTS

YMENT FR

HE INSPEC

reached its o

sary to enab

, the buyer is

y the price fo

” As such, “

bligations th

that “the buy

h formalities

payment to

e extends be

eps and cost

274].

DENT breach

nder the DSA

d the clamps

fee. [Request

3 of the DSA

, RESPONDEN

ent of the co

any formalit

The seller ma

_______________

S. 53 AND 5

ROM RESP

CTION FEE

obligations u

ble paymen

s responsible

or the goods

“the primary

hat arise from

yer’s obligati

as may be re

be made.” C

eyond the ab

s that are ne

hed its obliga

A, RESPONDE

s. [Ex. C 5, p

t, p. 6, § 15;

A, which mus

NT bears the

ntract price,

ties to that en

ay consider

_______________

27

54, CLAIMA

PONDENT I

S DEDUCT

under CISG

nt of the full

e for paying

and take del

obligations

m the underl

ion to pay th

equired unde

CISG Art. 54

straction of o

cessary to en

ation by faili

ENT was obl

p. 14]. The b

P.O. No. 2,

st be paid in

risk under th

and is respo

nd. “Any co

the buyer’s

________________

ANT IS EN

IN THE AM

TED BY TH

G Arts. 53 a

l purchase p

the full amo

livery of the

of the buyer

lying substan

he price inclu

er the contra

4 specifies th

owing the m

nsure that th

ing to pay th

ligated to pay

bank deducte

p. 56, § 11].

n addition to

he contract f

onsible for ta

sts associate

failure to fol

________________

NTITLED T

MOUNT OF

HE CENTRA

and 54 by fa

price to be m

ount specifie

m as require

r are those ra

ntive law.” [

udes taking

act or any law

hat the “buy

money. The o

he payment i

he inspection

y a total of U

ed USD 102,

. These are “

the contract

for any laws

aking the ne

ed to effect p

llow ‘such f

_______________

TO AN

F USD

AL BANK.

ailing to pay

made to

ed in the con

ed by the con

aised from th

Gabriel, p. 2

such steps a

ws and

yer’s obligati

obligation al

is actually

n fees levied

USD 22,723

,192.80 beca

“bank charge

t price in ord

s or regulatio

ecessary step

payment are

formalities’ a

_______

y the

ntract.

ntract

he

273].

and

ion to

so

by

,800

ause

es”

der to

ons

ps

fully

as

100

101

102

103

104

QATAR UN___________ 

 

either an

As such,

purchase

ML/2010

launderin

CLAIMAN

concedes

responsib

country.

However

buyers of

home cou

While it m

responsib

the contr

aware of

investiga

There ha

governm

Money L

2, p. 55,

auspices

55, § 7].

above US

been diff

NIVERSITY COL_______________

anticipatory

RESPONDEN

price. This

0C. Therefor

ng investigat

NT had no re

s that, under

bility to be a

[Bundesgeri

r, there is no

f regulations

untry. As su

may have le

bility to info

rary, under S

f the money l

ation, it woul

d been consi

ment was imp

Laundering, T

§ 7]. It was r

of the Equat

Furthermore

SD 2 million

ficult for RES

LEGE OF LAW ________________

y breach or a

NT is required

includes any

re, RESPOND

tion. [Reques

sponsibility

CISG Art. 3

aware of law

ichtshof 8 M

correspondi

s or laws affe

ch, RESPOND

d to a more

rm RESPOND

Section 4.3 o

laundering le

ld have easil

iderable cov

plementing e

Terrorist Fin

reported that

toriana Cent

e, it was repo

n was subjec

SPONDENT to

_______________

as a breach o

d to pay any

y costs assoc

DENT is respo

st, p. 7, § 23

to inform R

35, there is s

s or regulati

March 1995].

ing obligatio

ecting the bu

DENT’s argum

expensive o

DENT of ML/

f the DSA, R

egislation. A

ly been able

verage in the

xtensive leg

nancing, Prev

t a Financial

tral Bank wit

orted that reg

ct to investig

o discover th

_______________

28

of contract.”

y transaction

ciated with a

onsible for pa

3].

RESPONDENT

ome authori

ons affecting

on present in

uyer’s paym

ment by ana

utcome for R

/2010C, und

RESPONDENT

And if RESPO

to discover

Equatoriani

gislation base

ventive Mea

l Intelligence

th considera

gulation ML

gation. [Ex. C

he existence

________________

[Gabriel, p.

costs associ

administrativ

aying the lev

about the in

ity indicating

g its purchas

n the CISG r

ment of contra

alogy is unsu

RESPONDENT

der either the

T was the pa

ONDENT had

its existence

ian press in D

ed on the UN

asures and Pr

e Unit would

able investig

L/2010C stat

C 8, p. 17]. A

of this oblig

________________

274].

iated with pa

ve regulation

vy charged f

nvestigation

g a buyer ha

se in the buy

requiring sell

act obligatio

upported by t

T, it was nev

e DSA or CI

arty responsi

conducted e

e.

December 2

N–Model Pro

roceeds of C

d be establis

ation power

ted that any a

As such, it w

gation.

_______________

ayment of th

ns or laws su

for the mone

fee. CLAIMA

as the

yer’s home

lers to notify

ons in the sel

the law.

ver CLAIMAN

ISG Art. 54.

ible for bein

even a cursor

009 that the

ovisions on

Crime. [P.O.

shed under th

s. [P.O. No.

amount that

would not hav

_______

he

uch as

ey

ANT

y

ller’s

NT’s

On

ng

ry

No.

he

2, p.

is

ve

105

106

107

108

109

QATAR UN___________ 

 

(B) Secti

Section 4

borne by

formulati

supplied

party’s in

In this ca

the best p

language

bank that

includes

RESPOND

because C

discussed

bank regu

[Ex. C 8,

As such,

the contr

of the pu

by CLAIM

paying it

(C) The

engine m

The DSA

CISG and

NIVERSITY COL_______________

ion 4.3 of th

4.3 of the DS

the buyer.”

ion of a part

it. [UNIDRO

ntent.

ase, RESPOND

position to sa

e of the contr

t are associa

the launderi

DENT refused

CLAIMANT h

d above in S

ulation ML/

p. 17].

RESPONDEN

ract states tha

urchase price

MANT’s bank

in addition

explicit lang

manufacture

A governs the

d UNIDROI

LEGE OF LAW ________________

he DSA clear

SA states tha

[Ex. C 2, p.

icular contra

OIT Principl

DENT drafted

ay exactly w

ract to includ

ted with gett

ing investiga

d to pay, stat

had not infor

ubsection (A

2010C and a

NT’s knowled

at RESPONDE

e to CLAIMAN

k, and is ther

to the full pu

guage of the

ers.

e relationshi

IT Principles

_______________

rly required

at “the bank

10, § 4.3]. A

act term, eith

les, Art. 4.6]

d the relevan

what it wante

de all “bank

ting the full

ation fees.

ting that the

rmed RESPON

A), this is irr

any other law

dge (or lack

ENT is respon

NT’s bank ac

refore a “ban

urchase pric

e DSA supe

ip between th

s apply. [Ex.

_______________

29

d RESPONDE

charges for

As such, a pa

her because t

]. At the very

nt contract la

ed to say. CL

charges,” w

purchase pri

amount paid

NDENT of the

elevant. RES

ws associate

thereof) is u

nsible for pa

ccount. The l

nk charge.” A

e.

rsedes the p

he parties. In

C 2, p. 11,

________________

ENT to pay t

the transfer

arty may be

that party ha

y least, it is e

anguage. As

LAIMANT rea

which include

rice into CLA

d to the bank

e inspection

SPONDENT sh

d with paym

ultimately irr

aying “bank

laundering i

As such, RES

past practic

n issues not

§ 21]. As sta

________________

the inspectio

of the amou

held respon

as drafted it

evidence of

such, RESPO

asonably inte

es any fees l

AIMANT’s ban

k satisfied its

fee. [Ex. C

hould have b

ment of the p

relevant. Wh

charges” rel

nvestigation

SPONDENT is

ce of CLAIMA

discussed in

ated above, t

_______________

on fee.

unt are to be

nsible for the

or otherwise

the drafting

ONDENT was

erpreted the

evied by the

nk account.

s obligations

6, p. 15]. As

been aware o

urchase pric

hat matters is

lated to trans

n fee was lev

s responsible

ANT with ot

n the DSA, th

the DSA req

_______

e

e

s in

e

This

s

s

of

ce.

s that

sfer

vied

e for

ther

he

quires

110

111

112

113

QATAR UN___________ 

 

“bank ch

As such,

irrelevan

In a prev

56, § 9].

bear the b

In this ca

pay bank

such, RE

full purch

(D) Unde

charges”

DSA into

(1) Unde

been una

full purc

CISG Ar

conduct o

could not

“[a] cont

As discu

accordan

legally bo

reasonab

drafting p

NIVERSITY COL_______________

harges for the

any past dea

nt because th

vious agreem

However, th

bank charge

ase, the DSA

k charges ass

SPONDENT is

hase price, r

er both CIS

” to include

o CLAIMANT

er CISG Art

aware that C

chase price t

rt. 8.1 states

of a party ar

t have been u

ract shall be

ssed above i

nce with the g

ound by con

ly understoo

party provid

LEGE OF LAW ________________

e transfer of

alings CLAIM

ey occurred

ment, CLAIMA

hat agreemen

s. [P.O. No.

A does contai

sociated with

s obligated t

egardless of

SG Art. 8 an

all charges

T’s bank ac

t. 8.1 and U

CLAIMANT i

to CLAIMAN

that “[f]or th

e to be interp

unaware wh

e interpreted

in Issue 3, Su

general prin

ntract is to be

od by the oth

des strong ev

_______________

the amount…

MANT had w

in the conte

ANT paid the

nt did not co

2, p. 56, § 9

in an explici

h the transfer

o pay the inv

f what happe

nd UNIDRO

associated

count.

UNIDROIT A

intended to

NT’s accoun

he purposes

preted accor

hat that inten

according to

ubsection (B

ciples that g

e determined

her party.” [P

vidence of th

_______________

30

…to be born

ith other par

ext of differe

e money laun

ontain a prov

9].

it provision t

r of the purc

vestigation f

ened in CLAI

OIT Art. 4, t

with deposi

Art. 4.1.1, R

include all

t.

of this Conv

rding to his i

nt was.” Simi

o the commo

B), contract l

govern the CI

d from the pa

PECL/CISG

eir intent.

________________

ne by the buy

rties involvin

ent contractu

ndering inve

vision as to w

that addresse

chase price. [

fee levied by

IMANT’s prev

the parties i

iting the ful

RESPONDEN

fees associa

vention state

intent where

ilarly, UNID

on intention

language mu

ISG. The “in

arty’s statem

Art. 8]. Con

________________

yer.” [Ex. C

ng the invest

ual agreemen

estigation fee

which party w

es which par

[Ex. C 2, p.

y the bank in

vious transac

intended th

ll purchase

T knew or c

ated with tr

ements made

e the other pa

DROIT Art. 4

of the partie

ust be constru

ntention of a

ments or cond

ntract langua

_______________

2, p. 10, § 4

tigation fee a

nts.

e. [P.O. No.

was expecte

rty is require

10, § 4.3]. A

n addition to

ctions.

e term “ban

price under

could not ha

ansfer of th

e by and othe

arty knew or

4.1.1 states t

es.”

ued in

a party to be

duct as they

age chosen b

_______

4.3].

are

2, p.

d to

ed to

As

the

nk

r the

ave

he

er

r

that

were

by the

114

115

116

117

118

QATAR UN___________ 

 

In this ca

and was

that all b

RESPOND

[P.O. No

RESPOND

considera

business

Regardle

was to be

account w

RESPOND

under Se

(2) Unde

circumst

associate

CISG Ar

according

would ha

and other

same kin

The exten

the contr

greater th

[PECL/C

NIVERSITY COL_______________

ase, RESPOND

in the best p

ank charges

DENT should

o. 2, p. 55, §

DENT needed

able criticism

associations

ess of RESPO

e responsible

was clear. Th

DENT’s oblig

ction 4.3 of

er Art. 8.2 o

tances woul

ed with pay

rt. 8.2 states

g to the unde

ave had in th

r conduct sh

nd as the othe

nt to which C

ract term in q

he justificati

CISG Art. 8].

LEGE OF LAW ________________

DENT drafted

position to sa

would be pa

have been r

6]. As stated

d only to con

m concerning

s. [Ex. R 6, p

NDENT’s kno

e for all char

here were no

ation. As su

the DSA exc

of CISG and

ld have inten

ment of the

that “statem

erstanding th

he same circu

all be interp

er party wou

CISG Art. 8

question was

on for interp

. “Such a par

_______________

d the languag

ay exactly wh

aid by RESPO

easonably aw

d above in S

nduct the mo

g the cost all

p. 47].

owledge (or

rges associat

o discussion

ch, RESPOND

cluded any t

d UNIDROI

nded the lan

e full purcha

ments made b

hat a reasona

umstances.”

reted accord

uld give to it

.2 applies d

s the subject

preting it aga

rty should be

_______________

31

ge in Section

hat it wanted

ONDENT.

ware of the r

ubsection (A

st basic rese

location for

lack thereof

ted with gett

s or negotiat

DENT had no

type of charg

IT Art. 4.1.2

nguage of th

ase price to

by and other

able person o

Similarly, U

ding to the m

in the same

depends on th

of further n

ainst the part

ear the risk o

________________

n 4.3 of the D

d to say with

regulations a

A), the inform

earch. Newsp

such examin

f), CLAIMAN

ting the full p

tions that na

o reason to b

ges levied by

2, a reasona

he DSA to i

CLAIMANT’

conduct of a

of the same

UNIDROIT A

meaning that

circumstanc

he circumsta

negotiations b

ty who inclu

of possible l

________________

DSA. It cho

h them. As s

affecting the

mation was o

papers had r

nations by th

NT’s intent th

purchase pri

arrowed the s

believe that th

y CLAIMANT

able person

nclude all c

’s account.

a party are to

kind as the o

Art. 4.1.2 sta

a reasonable

ces.”

ances of the

between the

uded it in the

ack of clarit

_______________

se the words

uch, it agree

e transaction

out there.

eported abou

he leading

hat RESPOND

ice into its b

scope of

he agreemen

T’s bank.

in similar

charges

o be interpre

other party

ates, “statem

e person of t

case. “The l

parties, the

e contract.”

ty of the

_______

s,

ed

n.

ut

DENT

bank

nt

eted

ments

the

less

119

120

121

122

QATAR UN___________ 

 

formulati

supplied

party.” [U

Under bo

with the t

be consid

of CLAIM

In conclu

RESPOND

which ch

terms in

[Ex. C 2,

(3) Unde

usages, a

practices

CISG Ar

person w

including

usages an

Similarly

to all the

surround

had no re

the positi

NIVERSITY COL_______________

ion chosen.”

by one party

UNIDROIT P

oth CISG Ar

terms of the

dered eviden

MANT.

usion, this Tr

DENT drafted

harges it mea

Section 4.3 o

p. 10, § 4.3

er CISG Art

and subsequ

s.

rt. 8.3 states

would have h

g the negotia

nd any subse

y, UNIDROI

circumstanc

ding circumst

eason to kno

ion of the oth

LEGE OF LAW ________________

” [UNIDROI

y are unclear

Principles, A

rt. 8.3 and UN

contract lan

nce of its inte

ribunal shou

d the applicab

ant to pay an

of the DSA

].

t. 8.3 and U

uent conduc

that “[i]n de

ad, due cons

ations, any p

equent condu

IT Art. 4.3 st

ces, includin

tances are re

w the first p

her party.

_______________

IT Principle

r, “there is a

Art. 4.1].

NIDROIT A

nguage it dra

ent. As such

uld interpret

ble contract

nd which cha

are clear: all

UNIDROIT A

ct demonstr

etermining th

sideration is

ractices whi

uct of the pa

tates that “[i

ng… prelimin

elevant to de

party’s intent

_______________

32

es, Art. 4.1].

a preference

Art. 4.1.2, RE

afted. At the

, the terms o

the language

language. It

arges it wish

l bank charg

Art. 4.3, the

rate that the

he intent of a

to be given

ich the partie

arties.”

i]n applying

nary negotia

etermining th

t, then the sta

________________

To the exten

for their inte

ESPONDENT i

very least, R

of the DSA s

e of the cont

t was in the b

hed to avoid.

ges that will b

e parties’ ne

ey did not in

a party or the

to all releva

es have estab

Articles 4.1

ations betwe

he intent of t

andard is tha

________________

nt that the co

erpretation a

is responsibl

RESPONDENT

should be int

tract in favor

best position

The languag

be borne by

egotiations,

ntend to rely

e understand

ant circumsta

blished betw

and 4.2, reg

een the partie

the parties. I

at of the reas

_______________

ontract terms

against that

le for compl

T’s words sh

terpreted in f

r of CLAIMA

n to say exac

ge of the

RESPONDEN

practices,

y on previou

ding a reason

ances of the

ween themsel

gard shall be

es….” As su

f the other p

sonable pers

_______

s

lying

hould

favor

ANT.

ctly

NT.

us

nable

case

lves,

e had

uch,

party

son in

123

124

125

126

QATAR UN___________ 

 

In this ca

where it h

agreemen

2, p. 55,

Negotiati

The parti

p. 10, § 4

any previ

If it was

not have

person in

RESPOND

CLAIMAN

102,192.

drafted th

Second, R

from its o

knew or

transfer o

DSA sup

RESPOND

inspectio

NIVERSITY COL_______________

ase, RESPOND

had paid the

nts “did not

§ 9].

ions between

ies to the DS

4.3]. As such

ious practice

RESPONDEN

been aware,

n CLAIMANT

DENT was res

NT is entitled

80 for the in

he contract l

RESPONDENT

obligation to

could not ha

of the full pu

persedes the

DENT breache

on fee necess

LEGE OF LAW ________________

DENT argues

e investigatio

contain any

n parties sup

SA had agree

h, since the c

es CLAIMANT

NT’s intent to

, because the

’s position w

sponsible for

CONC

d to an additi

nspection fee

anguage, it w

T’s knowled

o pay, becaus

ave been una

urchase price

past practice

ed its obliga

sary to enabl

_______________

s that CLAIMA

on fees. [Ex.

rule as to w

persede prev

ed that all ba

contract cont

T may have

limit the sco

e language o

would have i

r paying all b

CLUSION O

ional payme

es deducted b

was in the be

dge of the inv

se it is a “ba

aware that C

e to CLAIMAN

e of CLAIMA

ations under

le payment o

_______________

33

ANT had pre

R 6, p. 47].

hich party h

ious practice

ank charges w

tains terms g

observed un

ope of the ba

of the DSA is

interpreted S

bank charge

OF THE FO

nt from RES

by the Centr

est position t

vestigation f

ank charge” u

LAIMANT int

NT’s accoun

ANT with othe

CISG Arts. 5

of the full pu

________________

evious practi

However, in

had to bear th

es with other

would be bo

governing th

nder differen

ank charges

s not limited

Section 4.3 o

es, including

OURTH ISS

SPONDENT in

ral Bank. Fir

to include ex

fee (or lack t

under the DS

tended to inc

nt. Finally, th

er engine ma

53 and 54 by

urchase price

________________

ices with oth

n the past CL

he bank char

r companies

orne by the b

hat aspect of

nt agreement

provision, C

d or qualified

of the DSA to

the investig

UE

n the amount

rst, since RES

xactly the te

thereof) does

SA. Third, R

clude all fee

he explicit la

anufacturers

y failing to p

e to be made

_______________

her businesse

LAIMANT’s

rges.” [P.O. N

s or customer

buyer. [Ex. C

the transacti

ts are irrelev

CLAIMANT co

d. A reasona

o mean that

gation fee.

t of USD

SPONDENT

erms it desire

s not excuse

RESPONDENT

es associated

anguage of th

s. As such,

pay the

e to CLAIMAN

_______

es

No.

rs.

C 2,

ion,

ant.

ould

able

ed.

it

T

d with

he

NT.

QATAR UN___________ 

 

In the lig

Tribunal

1. RESPO

2. CLAIM

3. CLAIM

4. RESPO

5. RESPO

NIVERSITY COL_______________

ght of the ab

to find that:

ONDENT’s req

MANT’s Requ

MANT is entitl

NDENT is req

ONDENT shall

LEGE OF LAW ________________

bove submis

quest for sec

uest for Arbit

led to the ou

quired to pay

l bear the co

_______________

REQUES

ssions, couns

urity for cos

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