Sixteenth Annual Willem C.

Vis East International Commercial Arbitration Moot

ALBERT LUDWIG
UNIVERSITY OF FREIBURG

Memorandum for
RESPONDENT

On Behalf Of Against
Black Beauty Equestrian 2 Seabiscuit Drive Phar Lap Allevamento Rue Frankel 1
Oceanside, Equatoriana – RESPONDENT – Capital City, Mediterraneo – CLAIMANT –

MARC BOVERMANN • JULIEN FEURER • LUKAS GOTTSCHLING • JULIA SCHMIDT

HAUKE SCHNEIDER • DAVID WILLFORT • ANNA MARIA YANG-JACOBI

Freiburg, Germany

ALBERT LUDWIG UNIVERSITY OF FREIBURG

TABLE OF CONTENTS

TABLE OF CONTENTS......................................................................................................... I

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

INTRODUCTION....................................................................................................................3
FIRST ISSUE: THE ARBITRAL TRIBUNAL DOES NOT HAVE THE POWER TO
ADAPT THE CONTRACT.....................................................................................................4

A. The Adaptation of the Contract Is Not Arbitrable in Danubia ......................................4

I. Contract Adaptation Is a Question of Arbitrability............................................................5

II. Danubian Law as the Lex Arbitri Precludes an Adaptation of the Contract.....................5

B. In Any Case, the Arbitration Agreement Does Not Allow for an Adaptation...............6

I. The Arbitration Agreement Is Governed by Danubian Contract Law...............................7 1.

There Is No Express Choice of Law for the Arbitration Agreement............................7 a) The

Arbitration Agreement Is Separate from the Rest of the Contract ...................7

b) The Separability Is Not Contradicted by the Omission of a Choice of Law in the

Arbitration Agreement ............................................................................................9

2. The Parties Impliedly Chose Danubian Law to Govern the Arbitration Agreement..10

3. Danubian Contract Law Has the Closest Connection to the Arbitration

Agreement .12

II. An Interpretation Under Danubian Contract Law Demonstrates that the Arbitration
Agreement Does Not Allow for an Adaptation of the Contract .....................................12

III. Even Interpreted Under Mediterranean Contract Law, the Arbitration Agreement Does
Not Allow for an Adaptation of the Contract .................................................................13

ALBERT LUDWIG UNIVERSITY OF FREIBURG

SECOND ISSUE: CLAIMANT IS NOT ENTITLED TO AN ADDITIONAL
PAYMENT OF US$ 1,250,000 OR ANY OTHER AMOUNT...........................................15

A. CLAIMANT Is Not Entitled to an Additional Payment Under Clause 12.......................15

I. The Agreement on DDP Allocates Delivery Risks to C LAIMANT ...................................15

II. The Requirements of Clause 12 Are Not Met ................................................................16

1. The Tariffs Do Not Qualify as Comparable Events in the Sense of Clause 12..........16 2.
 The Tariffs Do Not Constitute Hardship ....................................................................17 III. In

Any Case, Clause 12 Does Not Provide for the Remedy of Contract Adaptation....18 B.

CLAIMANT Is Not Entitled to an Adaptation of the Price Under the CISG..................19 I.

Clause 12 Supersedes the Application of Art. 79 CISG ..................................................19 1.

The Tariffs Do Not Meet the Requirements of Art. 79 CISG ....................................20 a)

There Is No Failure to Perform..............................................................................20 b) The

Tariffs Are No Impediment in the Sense of Art. 79 CISG.............................20 c) CLAIMANT

Could Have Taken the Tariffs into Account........................................21 II. In Any Case, the

CISG Does Not Provide for an Adaptation of the Contract................22

1. The Remedy of Contract Adaptation May Not Be Established Under Art. 7 (2)
CISG ..............................................................................................................................
......22

a) There Is No Internal Gap in Art. 79 CISG Concerning Its Remedies ...................22

b) The PICC May Not Be Used for Gap-Filling Under Art. 7 (2) CISG...................23

c) The General Principles of the CISG Provide for an Adequate Remedy for
Hardship ................................................................................................................24

2. The PICC Are Not Applicable by Virtue of Art. 9(2) CISG......................................25

3. The General Principle of Good Faith Does Not Allow for an Adaptation .................25

a) Art. 7(1) CISG May Not Be Used to Procure Additional Legal Remedies ..........25 b)

RESPONDENT Did Not Act in Bad Faith.................................................................26

II

ALBERT LUDWIG UNIVERSITY OF FREIBURG

THIRD ISSUE: THE ARBITRAL TRIBUNAL SHOULD NOT ADMIT THE
PARTIAL INTERIM AWARD FROM THE OTHER PROCEEDINGS INTO
EVIDENCE.............................................................................................................................27

A. The Interim Award Should Be Excluded Due to Its Illegitimate Origins....................27

I. Admitting the Interim Award Violates the Principle of Fair Conduct.............................28

II. Admitting the Interim Award Violates Confidentiality Obligations ..............................29

 1. Confidentiality Provisions Bar the Admission of the Interim Award ........................29 2.

RESPONDENT Has Not Waived the Confidentiality of the Interim Award..................30 III.

Admitting the Interim Award Endangers the Enforceability of the Award ..................31 B. In

Any Case, the Interim Award Is Not Relevant and Material ...................................31 I.

The Two Proceedings Are Not Comparable ....................................................................32 II.

The Interim Award Has No Impact on the Outcome of the Present Arbitration ............32

C. The Joinder or Consolidation Requested by CLAIMANT Is Not Possible Under the

HKIAC Rules
2018 ............................................................................................................33

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

INDEX OF ABBREVIATIONS...................................................................................XXXVI

INDEX OF AUTHORITIES .....................................................................................XXXVIII

INDEX OF CASES............................................................................................................

LVII INDEX OF

AWARDS........................................................................................................LXV

CERTIFICATE.............................................................................................................. LXVII

III

ALBERT LUDWIG UNIVERSITY OF FREIBURG

STATEMENT OF FACTS

The parties to this arbitration are Phar Lap Allevamento (hereafter “CLAIMANT”) and Black
Beauty Equestrian (hereafter “RESPONDENT”).

CLAIMANT operates Mediterraneo’s oldest stud farm which provides breeders with frozen
semen for artificial insemination and stallions for natural coverage.
 RESPONDENT is a fast-growing breeder from Equatoriana which has recently started to add a
new racehorse breeding programme to its business.

21 March 2017 delivery according to the incoterm DDP [EXHIBIT

C 3, p. 11].

24 March 2017 CLAIMANT agrees to a DDP delivery under the

condition of a price increase, which is granted by
28 March 2017 RESPONDENT. CLAIMANT suggests arbitration as
dispute resolution mechanism [EXHIBIT C 4, p.
12].
31 March 2017
RESPONDENT submits a first draft for the
arbitration agreement, which is based on the
10 April 2017 HKIAC Model clause, but significantly narrower
in its scope. The draft provides for arbitration in
Equatoriana and contains an express choice of
law for the arbitration agreement in favour of
Equatorianian law [EXHIBIT R 1, p. 33].
11 April 2017
RESPONDENT contacts CLAIMANT about the option CLAIMANT requests to change the seat of
to purchase 100 doses of frozen semen of arbitration to Danubia and proposes to include a
CLAIMANT’s star stallion Nijinsky III [EXHIBIT C hardship clause based on the ICC Hardship
1, p. 9]. Clause in the sales agreement. RESPONDENT
voices its concern that the scope of the ICC
CLAIMANT offers to sell RESPONDENT 100 doses
Hardship Clause is too broad. It is common
of frozen semen for the price of US$ 99,500 per
ground that the hardship clause in the sales
dose [EXHIBIT C 2, p. 10].
agreement should thus be interpreted more
narrowly than the ICC Hardship Clause [EXHIBIT
RESPONDENT agrees with most of CLAIMANT’s
R 2, p. 34; Procedural Order No 2, p. 56, para.
suggested terms; however, RESPONDENT requests
12].

ALBERT LUDWIG UNIVERSITY OF FREIBURG

6 May 15 November 2017

2017

19 December 2017
20/21 January 2018 2, p. 58, para. 25].

CLAIMANT informs RESPONDENT that the last

shipment is affected by the punitive tariffs.
RESPONDENT communicates that to its
understanding, CLAIMANT bears the risks of such
31 July tariffs according to the agreement on DDP
2018 delivery. CLAIMANT pays the tariffs and
authorises the shipment [EXHIBIT C 7, p. 16;
EXHIBIT C 8, pp. 17 et seq.; EXHIBIT R 4, p. 36].
September 2018
CLAIMANT initiates arbitral proceedings against
2 October RESPONDENT demanding an adaptation of the
2018 Contract by the arbitral tribunal of these
CLAIMANT and RESPONDENT (hereafter “the proceedings (hereafter “Arbitral Tribunal”)
Parties”) sign the Frozen Semen Sales [Email of Mr. Langweiler, pp. 3 et seq.].
Agreement (hereafter “the Contract”). The
Contract is expressly governed by Mediterranean RESPONDENT’s computer system is hacked,
Law. The arbitration agreement provides for resulting in the loss of a considerable amount of
Danubia to be the seat of arbitration [EXHIBIT C 5, confidential data [RESPONDENT’s Email, p. 51].
pp. 13 et seq.].
CLAIMANT informs the Arbitral Tribunal of the
After the first two shipments, the government of existence of a partial interim award of another
Mediterraneo imposes a 25 per cent tariff on arbitration (hereafter “Interim Award) involving
agricultural products from Equatoriana RESPONDENT. CLAIMANT intends to buy a copy of
[Procedural Order No 2, p. 58, para. 23]. the Interim Award from a source with a doubtful
reputation in order to submit it into evidence
The government of Equatoriana retaliates by [CLAIMANT’s Email, p. 50; Procedural Order No
imposing a 30 per cent tariff on agricultural 2,
goods from Mediterraneo [Procedural Order No pp. 60 et seq., para. 41].

ALBERT LUDWIG UNIVERSITY OF FREIBURG

INTRODUCTION

- “It is legal because I wish it” …

… spoke Louis XIV of France and proceeded to bend the law to his will. As an absolute ruler,
he considered himself above the law and was thus free to dedicate his spare time to his
 expensive hobbies. It is said that over 700 horses populated the stables at his court in
Versailles. Unfortunately, a fondness of horses is not the only thing C LAIMANT has in
common with the infamous monarch: CLAIMANT also seems to share his attitude towards the
law. The Parties agreed that CLAIMANT would be responsible for the delivery of three
shipments of frozen semen. Nonetheless, CLAIMANT sought to renegotiate the purchase price
as soon as it realised that agricultural tariffs would result in more costs than planned. Only
upon RESPONDENT’s reminder of the contractual obligations did CLAIMANT deliver. The
contentment was short-lived however: a few weeks later, CLAIMANT decided it did not want to
adhere to the Contract after all and initiated arbitral proceedings against R ESPONDENT.
Luckily, the era of absolutism is long gone, and the rule of law prevails.

True to the maxim ‘It is legal because I wish it’, C LAIMANT submits that the Arbitral Tribunal
has the power to adapt the Contract and increase the purchase price upon its discretion. Since
the Parties did not expressly authorise the Arbitral Tribunal to adapt the Contract as would be
required in Danubia, an adaptation of the Contract is excluded by law. In any case, an
interpretation of the arbitration agreement reveals that the Parties never intended the Arbitral
Tribunal to be able to adapt their Contract [First Issue].

With creative ingenuity that would make Louis XIV proud, CLAIMANT has taken to construing
legal remedies that allow for an adaptation of the Contract. However, the remedy of
adaptation is neither provided by the contractual hardship clause nor by the CISG. Far from it,
as not even the requirements for hardship are met [Second Issue].

Knowing it cannot rely on its legal arguments, CLAIMANT now attempts to distract the Arbitral
Tribunal by submitting a confidential Interim Award from another arbitration that
RESPONDENT is party to. The Interim Award, however, has been obtained by illegitimate
means and should not be admitted as evidence. Once again: It is not legal simply because you
wish it [Third Issue].

ALBERT LUDWIG UNIVERSITY OF FREIBURG

FIRST ISSUE: THE ARBITRAL TRIBUNAL DOES NOT HAVE THE POWER TO
ADAPT THE CONTRACT

1 The Parties concluded a contract obliging CLAIMANT to deliver 100 doses of frozen semen in
three instalments [EXHIBIT C 5, pp. 13, 14]. Shortly before the third shipment, CLAIMANT
suddenly informed RESPONDENT that it would not deliver because of newly imposed tariffs
that made the shipment more expensive [EXHIBIT C 7, p. 16]. RESPONDENT reminded
 CLAIMANT of its contractual obligations and encouraged it to deliver, as CLAIMANT was
generally responsible for customs clearance for import [EXHIBIT R 4, p. 36]. CLAIMANT in turn
authorised the delivery [EXHIBIT C 8, p. 18].

2 The goods were shipped, and the price was paid – a successful business transaction. Yet,
CLAIMANT now demands a subsequent adaptation of the Contract to secure its profit. To this
end, CLAIMANT has initiated arbitral proceedings against RESPONDENT (hereafter “the
Arbitration”). The proceedings were started in accordance with the contractual arbitration
agreement (hereafter “the Arbitration Agreement”) [EXHIBIT C 5, p. 14, Clause 15]. In
general, RESPONDENT has no objections to the jurisdiction of the Arbitral Tribunal. However,
an adaptation of the Contract is excluded because it is a non-arbitrable matter in Danubia,
where the Arbitration takes place A].[ In any case, the Arbitration Agreement is to be
interpreted under Danubian Contract Law and reveals that the Parties did not intend to
empower the Arbitral Tribunal to adapt the Contract [B].

A. The Adaptation of the Contract Is Not Arbitrable in Danubia

3 The issue of contract adaptation is not arbitrable in the present case. C LAIMANT argues that
Mediterranean Law governs the Arbitration Agreement [MEMORANDUM CLAIMANT, p. 18,
para. 78]. The question of which law governs the Arbitration Agreement, however, is not
decisive because the adaptation of the Contract is an issue not capable of settlement by
arbitration (“non-arbitrable”) in Danubia. The parties’ freedom to submit any dispute they
wish to the jurisdiction of an arbitral tribunal is limited by arbitrability [Wolff – Quinke, p.
380, para. 418; Lew/Mistelis/Kröll, para. 9-4; Born, para. 6.02 (f)]. All countries are free to
determine which disputes are arbitrable and which are not [Redfern/Hunter, para. 2.30; Wolff
– Quinke, p. 384, para. 430; Lew/Mistelis/Kröll, para. 9-35; Born, para. 6.01]. This principle
is also enshrined in Art. 1(5) UNCITRAL Model Law on International Commercial
Arbitration (hereafter “Model Law”), which was implemented in many national jurisdictions
and has also been adopted in Danubia as the Danubian Arbitration Law [PO NO 1, p. 53, para.
III, point 4]. Contract adaptation is a question of arbitrability [I]. Danubian Law as the lex
arbitri precludes an adaptation of the Contract in the present case [II].

ALBERT LUDWIG UNIVERSITY OF FREIBURG

I. Contract Adaptation Is a Question of Arbitrability

4 Contract adaptation is a question of arbitrability. When asked to adapt a contract, an arbitral

tribunal must first determine the arbitrability of the issue [Kröll, p. 139; Frick, p. 197; Berger,
RIW, 2000, pp. 8 et seq.; Peter, p. 279; Ferrario, p. 75; Sanders, p. 167 et seq.; Peter, in:
Nicklisch, Long-Term Contract, p. 146; Bernardini, JWELB, 2008, p. 107; Briner, p. 370;
Kapwadi, p. 53]. Contract adaptation gives the arbitrator extensive powers to redefine the
contractual obligations without the parties’ agreement [Berger, Arb Int’l, 2001, p. 2]. Some
 countries do not recognise such power or want to reserve it for a state court. Under Belgian
law, for example, the power to modify a contract cannot be conferred on an Arbitral Tribunal
[Matray, Yearbook Commercial Arbitration, 1980, para. 3(b); Dal/Keutgen, National Report
Belgium 2018, ICCA, para. II(3)]. In Hong Kong, Mexico and India, an adaptation is only
arbitrable with an express empowerment by the parties [Kaplan/Morgan, National Report
Hong Kong 2018, ICCA, para. II(3)(b); De Cossío, National Report Mexico 2018, ICCA,
para. II(3)(b); Nariman, National Report India 2015, ICCA, para. II(3)(b)]. Other countries
explicitly state in their arbitration law that contract adaptation is arbitrable [cf. Portuguese
Voluntary Arbitration Law, Art. 1(4); Dutch Arbitration Act, Art. 1020(4)(c); Bulgarian Law
on the International Commercial Arbitration, Art. 1(2)]. Whether an arbitral tribunal may
adapt a contract is thus a question of arbitrability and varies from country to country.

II. Danubian Law as the Lex Arbitri Precludes an Adaptation of the Contract

5 The arbitrability of an adaptation of the Contract has to be determined according to Danubian

Law. The question of whether certain powers can be conferred on the arbitral tribunal depends
on the lex arbitri [ICC No 4604, 1985; Kröll, pp. 19 et seq.; Redfern/Hunter, para. 3.44;
Poudret/Besson, para. 332; Frick, pp. 193 et seq.; Lew/Mistelis/Kröll, para. 9-31; Berger,
Int’l Arb. 2006, p. 333; Zweigert/Hoffmann, Luther lib. am., p. 211]. In other words, if a
matter is non-arbitrable under the lex arbitri, any power to address the issue under the
applicable substantive law is without effect [Brunner, Hardship, p. 493; Kröll, p. 19; Frick, p.
193; Peter, p. 257; Redfern/Hunter, paras. 5.12 et seq.]. The lex arbitri is the entirety of the
national law provisions that apply to the arbitration at the seat of the arbitration
[Redfern/Hunter, paras. 3.37 et seq.; Henderson, SAcLJ, 2014, p. 887]. The seat of the
Arbitration is Danubia [EXHIBIT C 5, p. 14]. The lex arbitri thus is Danubian Law. The
arbitrability of contract adaptation therefore depends on Danubian Law.

6 Contrary to CLAIMANT’s allegations, the substantive law by itself cannot determine the power of
an arbitral tribunal. CLAIMANT alleges that the award is valid as long as the substantive law

ALBERT LUDWIG UNIVERSITY OF FREIBURG

allows for an adaptation and cites two cases in support [MEMORANDUM CLAIMANT, p. 18, para.
77]. However, both court decisions that CLAIMANT relies on prove the opposite. In both
instances, the court looked at the relevant arbitrability provisions in the lex arbitri before
reaching its decision. Only after determining that there was no contrary provision to be found,
the court acknowledged the tribunal’s power [Desputeaux v Éditions Chouette, 21 Mar 2003,
paras. 40, 60; Compagnie Maritime Belge v Distrigas, 19 Dec 2001, para. 2(c)(bb)(aaa)].
Whether a decision is in accordance with the substantive law is thus only a subordinate
question to be determined after the arbitrability of the issue has been affirmed.
7 In the present case, an adaptation of the Contract is not arbitrable. In Danubia, there is consistent
jurisprudence that an arbitral tribunal may only adapt the contract with an express
empowerment [PO NO 2, p. 60, para. 36]. Danubia is a common law country [PO NO 2, p. 61,
para. 44], which makes this jurisprudence binding law. In the present case, the Parties have
not expressly empowered the Arbitral Tribunal to adapt the Contract. ‘Express’ is defined as
“clearly and unmistakably communicated; directly stated” [Black’s Law Dictionary]. No
mention of the term ‘adaptation’ can be found in the Arbitration Agreement or anywhere else
in the Contract. There is thus no express empowerment. An adaptation of the Contract is
therefore not arbitrable in the present case.

8 Furthermore, any award implementing an adaptation of the Contract in the present case would be
set aside. CLAIMANT argues that the only reason for setting aside the award would be if the
award were in conflict with the public policy of the state of the seat, as provided in Art. 34 (2)
(b)(ii) Danubian Arbitration Law [MEMORANDUM CLAIMANT, p. 18, para. 77]. CLAIMANT,
however, does not discuss the alternative of Art. 34(2)(b)(i) Danubian Arbitration Law, which
states that an award may also be set aside if the matter of the dispute is not capable of
settlement by arbitration under the law of the seat. In the present case, an adaptation of the
Contract is not arbitrable. Therefore, the award would be set aside. In conclusion, the power
of the Arbitral Tribunal to adapt the Contract is already excluded for the reason that it is not
arbitrable in Danubia. The question of whether the Parties intended to confer this power and
which law governs the Arbitration Agreement is thus not material for resolving this issue.

B. In Any Case, the Arbitration Agreement Does Not Allow for an Adaptation

9 Even if the Arbitral Tribunal were to regard the adaptation of the Contract as arbitrable, the
Arbitration Agreement, properly interpreted, shows that the Parties did not agree to confer the
power to adapt the Contract on the Arbitral Tribunal. As CLAIMANT correctly states, the law

ALBERT LUDWIG UNIVERSITY OF FREIBURG

governing the arbitration agreement is the law under which questions of its existence, validity
and scope of application are to be determined [cf. MEMORANDUM CLAIMANT, p. 17, para. 76].
However, contrary to CLAIMANT’s view, the scope of an arbitration agreement includes which
powers were assigned to the tribunal by the parties [cf. Redfern/Hunter, para. 5.06, fn. 7].
Whether the Parties intended for the Arbitral Tribunal to have the power to adapt the Contract
is thus to be determined by interpreting the Arbitration Agreement under the law governing it.
In the present case, Danubian Contract Law governs the Arbitration Agreement [I]. Applying
the Danubian rules of interpretation, there is nothing in the Arbitration Agreement to show
that the Parties intended to confer the power to adapt the Contract on the Arbitral Tribunal
[II]. Even interpreted under Mediterranean Contract Law, the Arbitration Agreement does not
 empower the Arbitral Tribunal to adapt the Contract [III].

I. The Arbitration Agreement Is Governed by Danubian Contract Law

10 Danubian Contract Law governs the Arbitration Agreement. The law governing the arbitration
agreement is generally determined by the parties’ choice [International Tank & Pipe v Kuwait
Aviation Fuelling, 9 Oct 1974, p. 3; BGH, 8 May 2014, para. 11; Blessing, ICCA Congress
Series, 1996, pp. 395 et seq.]. However, the Parties have not expressly chosen the law of the
Arbitration Agreement [1]. Instead, the negotiations show that the Parties impliedly agreed on
Danubian Contract Law to govern the Arbitration Agreement [2]. In any case, Danubian
Contract Law as the law of the seat of Arbitration has the closest connection to the Arbitration
Agreement and thus governs its interpretation [3].

1. There Is No Express Choice of Law for the Arbitration Agreement

11 The Parties have not expressly chosen a law governing the Arbitration Agreement. There is no
law specified in the Arbitration Agreement itself. The choice of law clause of the main
contract does not determine the law of the Arbitration Agreement due to the doctrine of
separability [a]. The separability is not contradicted by the fact that the Parties omitted a
choice of law clause in the Arbitration Agreement [b].

a) The Arbitration Agreement Is Separate from the Rest of the Contract

12 Due to the doctrine of separability, there is no express choice of the law governing the
Arbitration Agreement. The main contract contains a choice of law clause in favour of
Mediterranean Law [EXHIBIT C 5, p. 14, Clause 14] (hereafter “Clause 14”). CLAIMANT argues
that this also constitutes an express choice of law for the law governing the Arbitration
Agreement [MEMORANDUM CLAIMANT, p. 19, paras. 81 et seq.]. However, the doctrine of

ALBERT LUDWIG UNIVERSITY OF FREIBURG

separability provides that an arbitration agreement is a separate and autonomous agreement,
even if it is included in the underlying sales contract [Fouchard/Gaillard/Goldman, para.
389; Dicey/Morris/Collins, para. 16-011; Born, Cases and Materials, p. 190;
Redfern/Hunter, para. 2.103; Mustill/Boyd, p. 62; Jones, SAcLJ, 2014, p. 912, para. 6;
Moses, p. 18; ICC No 9480, 1998]. Consequently, the arbitration agreement can be, and often
is, governed by a different law than the sales contract [FirstLink Investments v GT Payment,
19 Jun 2014, para. 13; Black Clawson v Papierwerke, 3 Mar 1981, p. 453; Mustill/Boyd, p.
62; Poudret/Besson, para. 178; Fouchard/Gaillard/Goldman, paras. 412 et seq.; Born, Cases
and Materials, p. 91; Jones, SAcLJ, 2014, p. 912, para. 6]. The choice of law clause in the
substantive contract can thus not constitute an express choice for the Arbitration Agreement
by itself.
13 This is supported by the fact that the Parties recognised the separability of the Arbitration
Agreement and the main contract. In particular, a choice of law of the main contract cannot
automatically be held to govern the arbitration agreement if the parties knew of its separability
from the main contract [Czernich, SchiedsVZ, 2015, p. 184]. The Parties used the HKIAC
Model Arbitration Clause, which prompts the Parties to specify the law applicable to the
arbitration agreement [HKIAC Model Arbitration Clause; cf. D’Agostino/Hughes, Kluwer
Arbitration Blog, 2014]. Throughout the negotiations, the Parties made use of this suggestion
and distinguished between the substantive law and the law governing the Arbitration
Agreement by including an express choice of law in the Arbitration Agreement [cf. EXHIBIT R
1, p. 33]. Thus, the Parties demonstrated their intent to treat the two applicable laws
independently from each other. Therefore, the choice of law in the main contract cannot be
treated as an express choice of law for the Arbitration Agreement.

14 The placement of Clause 14 further emphasises the separability of the substantive contract and
the Arbitration Agreement. CLAIMANT argues that the placement of the contractual choice of
law clause and the Arbitration Agreement in the Contract is an indicator that Mediterranean
Law was intended to govern the Arbitration Agreement [MEMORANDUM CLAIMANT, p. 19,
para. 81]. CLAIMANT submits that the choice of law clause is a concluding clause placed at the
end of the Contract and for this reason applies to the entire Contract. Yet, the Arbitration
Agreement is placed after the choice of law clause, being Clause 15 of the Contract [cf.
EXHIBIT C 5, p. 14, Clause 14 and 15]. Following CLAIMANT’s logic, this in fact rather
indicates that the Arbitration Agreement must be viewed seperately and is therefore not
subject to Clause 14. There is thus no express choice of law for the law governing the
Arbitration Agreement.

ALBERT LUDWIG UNIVERSITY OF FREIBURG

b) The Separability Is Not Contradicted by the Omission of a Choice of Law in the
Arbitration Agreement

15 The separability of the Arbitration Agreement and the main contract is not contradicted by the
fact that the Parties omitted a choice of law governing the Arbitration Agreement. CLAIMANT
argues that by omitting the choice of law, the negotiators intentionally decided against a
separate law governing the Arbitration Agreement [MEMORANDUM CLAIMANT, p. 19, para. 80].
However, the omission was no deliberate choice.

16 First, CLAIMANT’s last draft of the Arbitration Agreement was never intended to be complete.
CLAIMANT itself stated that in the last draft, the Arbitration Agreement was only written out in
its “relevant part”, the part that CLAIMANT had changed in the respective email [EXHIBIT R 2,
p. 34]. Important information including language and the number of arbitrators was also not
included. This, however, was certainly not intended to be a deliberate omission. There is thus
 no reason why it should constitute a deliberate omission in the case of the law applicable to
the Arbitration Agreement.

17 Second, the fact that the final version of the Arbitration Agreement did not contain a reference
to the applicable law can be explained by the negligence of the final negotiators. The two
initial negotiators had been hospitalised after a car accident, and the Arbitration Agreement
was finished by two other lawyers who had limited time to familiarise themselves with the
past negotiations [EXHIBIT R 3, p. 35]. Without attributing much importance to the Arbitration
Agreement, they simply adopted the incomplete wording of CLAIMANT’s last draft [PO NO 2,
p. 55, para. 6]. They cannot remember why they did not include a choice of law governing the
Arbitration Agreement [ibid.]. One of the negotiators even states he would definitely have
included a reference to the applicable law had he been aware of all the past negotiations
[EXHIBIT R 3, p. 35]. In conclusion, the omission of a choice of law for the Arbitration
Agreement was not deliberate, but merely an oversight.

18 Finally, Clause 14 could not have been intended to govern the Arbitration Agreement, as it was
finished long before the Arbitration Agreement was finalised. Clause 14 had been part of
CLAIMANT’s standard contract template and had remained unchanged from the beginning
[EXHIBIT C 5, p. 14, Clause 14; PO N O 2, p. 55, para. 3]. It was thus already agreed upon
when the Parties discussed the law governing the Arbitration Agreement. The contractual
choice of law clause could therefore not have been intended to also determine the law of the
Arbitration Agreement. In conclusion, Clause 14 does not constitute an express choice of law
for the Arbitration Agreement.

ALBERT LUDWIG UNIVERSITY OF FREIBURG

2. The Parties Impliedly Chose Danubian Law to Govern the Arbitration Agreement

19 Absent an express choice, the Parties made an implied choice of Danubian Contract Law as the
law governing the Arbitration Agreement. It is generally acknowledged that where the parties
have chosen the seat of arbitration, but not the governing law, it can be inferred that they
intended to subject the arbitration agreement to the law of the seat [FirstLink Investments v
GT Payment, 19 Jun 2014, paras. 15, 16; Bulbank v AI Trade Finance, 27 Oct 2000, p. 4; C v
D, 5 Dec 2007, paras. 16 et seq.; Shashoua v Sharma, 7 May 2009, para. 29; XL Insurance v
Owens Corning, 28 Jul 2000, para. 42; cf. Petrasol v Stolt Spur, 28 Sep 1995, para. 9]. In the
decisions mentioned above this was assumed even where the parties had not discussed a
separate choice of law governing the arbitration agreement at all. The law of the seat should
thus apply all the more where this result is supported by the parties’ negotiations.

20 In the present case, the drafting history shows that the Parties had always intended the law of
the seat to govern the Arbitration Agreement. During the negotiations, the law governing the
 Arbitration Agreement was dependent upon the law of the seat. R ESPONDENT’s first draft of
an arbitration agreement specified the seat of arbitration as Equatoriana and contained a
choice of law in favour of Equatorianian Law [EXHIBIT R 1, p. 33]. CLAIMANT changed the
seat of arbitration to Danubia without mentioning the applicable law [ibid.]. This suggests that
the applicable law was also meant to be Danubian Law.

21 Additionally, the Parties’ choice of a neutral seat of the Arbitration implies the choice of
Danubian Contract Law. A neutral law of the arbitration agreement ensures the balance
between the parties, which is especially important if the parties are from different countries
[FirstLink Investments v GT Payment, 19 Jun 2014, para. 13; Oldendorff v Libera (No 2), 16
Nov 1995, pp. 12, 13; cf. Peter, p. 284, para. 3.2.4]. CLAIMANT proposed to choose a neutral
country as the seat of arbitration and suggested Danubia [EXHIBIT R 2, p. 34], which
RESPONDENT accepted in the final Contract [EXHIBIT C 5, p. 14]. The choice of Danubian
Contract Law would put both Parties in the same position with regard to their knowledge of
the legal system and would be in accordance with the neutral seat. This strongly suggests that
the Parties impliedly chose Danubian Contract Law to govern the Arbitration Agreement.

22 Contrary to CLAIMANT’s allegation, it never informed RESPONDENT that it intended the

Arbitration Agreement to be governed by Mediterranean Law. CLAIMANT argues that it
attached a condition to the final draft, which stated “that the offer is naturally on the condition
that the law applicable to the Frozen Semen Sales Agreement remains the law of
Mediterraneo” [MEMORANDUM CLAIMANT, p. 19, para. 81, EXHIBIT R 2, p. 34; corrected in PO
NO 2, p. 62, para. 50(c)]. However, the wording indicates that this statement merely

10

ALBERT LUDWIG UNIVERSITY OF FREIBURG

referred to the substantive law of the main contract, not the law governing the Arbitration
Agreement. CLAIMANT’s choice of the word “naturally” suggests that it simply wanted to
clarify that a change in the Arbitration Agreement would not affect the law of the sales part of
the contract due to the doctrine of separability [EXHIBIT R 2, p. 34]. It is also to be noted that
CLAIMANT wrote “remains the law of Mediterraneo”, which indicates that “the law” that
CLAIMANT referred to had also been Mediterranean Law before. Yet, the law governing the
Arbitration Agreement in the prior draft had been Equatorianian Law [EXHIBIT R 1, p. 33].
CLAIMANT could thus only have referred to the law applicable to the main contract, which had
always been Mediterranean Law. Hence, CLAIMANT never communicated its alleged intent to
RESPONDENT.

23 Contrary to CLAIMANT’s assumption [MEMORANDUM CLAIMANT, p. 20, para. 85], the standard
set by the decisions of BCY v BCZ, Sulamérica, Arsanovia and Habas Sinai does not speak in
favour of a choice of Mediterranean Law. These decisions merely state that the choice of a
seat might not be enough to displace the presumption that the whole contract is governed by
 the same law if no evidence of past negotiations is available and no indicators to the contrary
can be discerned [BCY v BCZ, 9 Nov 2016, para. 65; Sulamérica v Enesa Engenharia, 16
May 2012, para. 26; Arsanovia v Cruz City, 20 Dec 2012, para. 21; Habas Sinai v VSC Steel,
19 Dec 2013, para. 101]. However, in the present case, the Parties have discussed a separate
law governing the Arbitration Agreement, and, in addition to stipulating the seat as Danubia,
there are further indicators that they intended Danubian Contract Law to govern their
Arbitration Agreement. Thus, the court decisions cited are not in conflict with Danubian
Contract Law governing the Arbitration Agreement.

24 Finally, the Hague Principles on the Choice of Law in International Commercial Contracts
(hereafter “Hague Principles”) cannot be taken into account in the present case. C LAIMANT
contends that according to the Hague Principles, the choice of the seat is not a sufficient
indicator of the Parties’ choice of law of the arbitration agreement [MEMORANDUM CLAIMANT,
p. 21, para. 86]. As admitted by CLAIMANT, however, Art. 1(3)(b) Hague Principles expressly
stipulates that the Hague Principles do not apply to the law governing arbitration agreements.
Thus, the applicability of the Danubian Contract Law to the Arbitration Agreement is not
affected by the Hague Principles. In conclusion, the Arbitration Agreement is governed by
Danubian Contract Law.

11

ALBERT LUDWIG UNIVERSITY OF FREIBURG

3. Danubian Contract Law Has the Closest Connection to the Arbitration Agreement

25 Even if an implied agreement cannot be deduced from the Parties’ negotiations, Danubian
Contract Law is applicable as it has the closest connection to the Arbitration Agreement. If no
clear choice of the law governing the Arbitration Agreement can be determined, the law with
the closest connection to the Arbitration Agreement is deemed to be the governing law, which
is usually the law of the seat [C v D, 5 Dec 2007, para. 26; Abuja International Hotels v
Meridien, 20 Jan 2012, para. 21; Sulamérica v Enesa Engenharia, 16 May 2012, paras. 32,
56; Owerri Commercial v Dielle, 4 Aug 1993, para. 8; Dicey/Morris/Collins, para. 16-021;
Harisankar, JIA, 2013, p. 630]. The arbitration agreement has a fundamentally different role
than the rest of the contract and is much more closely connected with the procedural law than
with the law governing the parties’ substantive obligations [Poudret/Besson, para. 297;
Nazzini, ICLQ, 2016, p. 702; van den Berg, p. 293]. This is also acknowledged by Art. V(1)
(a) NYC and Art. 34(2)(a)(i) Model Law, which state that the law of the seat governs the
arbitration agreement as a default rule if no choice of law is made. The Parties agreed on
Danubia as the seat of arbitration and therefore on Danubian Law to govern the procedural
 framework. Danubian Contract Law thus has the closest connection to the Arbitration
Agreement. Therefore, Danubian Contract Law would govern the Arbitration Agreement even
in the absence of a choice by the Parties.

II. An Interpretation Under Danubian Contract Law Demonstrates that the Arbitration
Agreement Does Not Allow for an Adaptation of the Contract

26 Applying the rules of interpretation of Danubian Contract Law to the Arbitration Agreement, it
is clear that the Parties did not confer the power to adapt the Contract on the Arbitral Tribunal.
In Danubia, Art. 28(3) Danubian Arbitration Law is taken as a general standard that applies to
all the exceptional powers of an arbitrator [PO NO 2, p. 60, para. 36]. Thus, an express
conferral of powers is required for contract adaptation [ibid.]. Additionally, under Danubian
Contract Law arbitration agreements are to be interpreted narrowly [PO NO 1, p. 52, para. II,
point 3]. The absence of an express empowerment shows that the Parties did not intend for the
Arbitral Tribunal to be able to adapt the Contract. Accordingly, in the telephone conference on
4 October 2018, both Parties agreed that under Danubian Contract Law, there was a high
likelihood that the Arbitration Agreement would not be interpreted as authorising a contract
adaptation by the Arbitral Tribunal [PO NO 1, p. 52, para. II, point 3]. The interpretation
under Danubian Law thus shows that no empowerment to adapt the Contract was intended.

12

ALBERT LUDWIG UNIVERSITY OF FREIBURG

27 This conclusion is not invalidated by CLAIMANT’s allegations that there was a prior agreement
between the Parties regarding the Arbitral Tribunal’s power to adapt the Contract. Contrary to
CLAIMANT’s allegations [MEMORANDUM CLAIMANT, p. 22, para. 93], the conversation between
the Parties’ negotiators on 12 April 2017 [EXHIBIT C 8, p. 17] does not constitute an express
empowerment to adapt the Contract.

28 First, the four corners rule of Art. 4.3 Danubian Contract Law states that a contract cannot be
supplemented by evidence of prior statements [PO NO 2, p. 61, para. 45]. Second, even if
CLAIMANT were correct in stating that prior statements may nonetheless be used to interpret
the written word [cf. MEMORANDUM CLAIMANT, p. 22, para. 90], the negotiations show there
was no final agreement on an empowerment of the Arbitral Tribunal. RESPONDENT’s
negotiator only stated that it was “probably” the arbitrator’s task to adopt the contract and
promised to come back with a proposal for a solution of the issue [EXHIBIT C 8, p. 17]. This
suggests the issue was not yet fully resolved, and the final negotiators never made proposals
regarding this issue. Contrary to CLAIMANT’s assumption, the former negotiator’s statement
cannot be taken as RESPONDENT’s intent. It is the common intention of the Parties at the time
of the conclusion of the contract that is decisive [Comment to Art. 4.1(1) PICC (Danubian
Contract Law)]. The Arbitration Agreement was drafted by the final negotiators [PO NO 2, p.
 55, para. 4] and it is their intent that is conclusive. RESPONDENT’s final negotiator could not
have been aware of an oral communication between the two former negotiators and if he had
been, he would not have agreed [EXHIBIT R 3, p. 35]. Therefore, the Parties did not reach a
final agreement to empower the Arbitral Tribunal to adapt the Contract. Thus, interpreted in
accordance with Danubian Contract Law, the Arbitration Agreement does not allow for an
adaptation of the Contract.

III. Even Interpreted Under Mediterranean Contract Law, the Arbitration Agreement
Does Not Allow for an Adaptation of the Contract

29 Even if Mediterranean Law were to govern the Arbitration Agreement, the Arbitral Tribunal
would not have the power to adapt the Contract. Mediterranean Law provides for the
interpretation of international arbitration agreements under the Convention on the
International Sale of Goods (hereafter “CISG”) [PO NO 1, p. 53, para. 4]. Pursuant to Art. 8
(2),(3) CISG statements of a party are to be interpreted according to the understanding of a
reasonable person in the same situation with regard to all the relevant circumstances. A
reasonable person in terms of Art. 8(2),(3) CISG would conclude that the Parties intended to
exclude the power to adapt the Contract by deviating from the HKIAC Model Arbitration
Clause. The Arbitration Agreement in its final version refers “[a]ny dispute arising out of this

13

ALBERT LUDWIG UNIVERSITY OF FREIBURG

contract […]” [EXHIBIT C 5, p. 14, emph. add.] to arbitration. In contrast, the HKIAC Model
Arbitration Clause, which was initially relied upon by the Parties, additionally covers “any
dispute, controversy, difference or claim arising out of or relating to this contract” [cf.
HKIAC Model Arbitration Clause, emph. add.]. The Parties considered the original wording
too broad and excluded any “controversy, difference or claim” as well as any dispute
“relating to” the Contract [EXHIBIT R 1, p. 33]. A reasonable person would have deduced from
that exclusion that the Parties intended to limit the scope of their Arbitration Agreement.

30 A reasonable person would further conclude that the adaptation of the Contract was not within
the intended scope of the Arbitration Agreement. While it is true that the wording ‘dispute’ on
its own is generally interpreted broadly in the context of arbitration [Fiona Trust v Privalov,
17 Oct 2007, para. 13], in the present case, the Parties have deliberately chosen to limit
‘dispute’ to its strict sense by excluding all further terms. A ‘dispute’ is generally considered
narrower than a ‘difference’ [Poudret/Besson, para. 157; Kheng, p. 12, para. 7.4; F and G
Sykes v Fine Fare, 1967, p. 60]. A traditional legal ‘dispute’ is a question that can be reduced
to a yes or no decision [Berger, Arb Int’l, 2001, p. 2]. When adapting a contract, the arbitral
tribunal has to decide on its own discretion, even beyond the provisions of the contract. In the
strict sense of the word, adaptation is thus not a ‘dispute’ [Fouchard/Gaillard/Goldman, para.
34, Mandri-Perott/Stiggers, p. 170; Berger, Vand. J. Transnat’L., 2003, pp. 1372 et seq.].
 This is why traditionally, adaptation was not considered arbitration at all but a wholly separate
form of conflict resolution [OGH, 27 Feb 1985; Oppetit, Clunet, 1974, pp. 808 et seq.;
Rubino-Sammartano, para. 1.19; Bernardini, ICSID Rev, 1998, pp. 421 et seq.]. A reasonable
person would thus conclude that the Parties did not intend the Arbitration Agreement to
include contract adaptation. In conclusion, even if Mediterranean Law governed the
Arbitration Agreement, it would not allow for an adaptation of the Contract.

31 Conclusion to the First Issue: The Arbitral Tribunal does not have the power to adapt the
Contract since, in the present case, adaptation is not arbitrable under the lex arbitri, which is
Danubian Law. Even if an adaptation of the Contract were arbitrable, the Arbitration
Agreement, properly interpreted, would not allow for an adaptation in the present case. The
Parties agreed on Danubian Contract Law to govern the Arbitration Agreement, which
provides for a narrow interpretation and does not allow for an adaptation without express
authorisation to adapt the Contract. However, even if Mediterranean Contract Law applied,
the Arbitration Agreement would not allow for an adaptation of the Contract by the Arbitral
Tribunal.

14

ALBERT LUDWIG UNIVERSITY OF FREIBURG

SECOND ISSUE: CLAIMANT IS NOT ENTITLED TO AN ADDITIONAL
PAYMENT OF US$ 1,250,000 OR ANY OTHER AMOUNT

32 CLAIMANT is not entitled to the payment of an additional US$ 1,250,000 or any other amount.
Even if the Arbitral Tribunal had the power to adapt the Contract, using that power would not
be called for in the present case. After CLAIMANT had delivered the first two shipments of
frozen semen, Equatoriana imposed punitive tariffs on agricultural goods from Mediterraneo
[EXHIBIT C 6, p. 15]. The Parties discovered that the tariffs applied to frozen horse semen and
thus affected the third shipment. CLAIMANT authorised the delivery of the third shipment and
paid for the tariffs, as it was responsible for the delivery [cf. EXHIBIT C 8, p. 18]. Facing
financial problems, CLAIMANT now demands RESPONDENT to pay for the additional costs
caused by the tariffs. However, CLAIMANT stretches the provisions of both the Contract and
the CISG beyond their limits to justify its demand. Consequently, C LAIMANT is not entitled to
an adaptation of the price under Clause 12 [A] or under the CISG [B].

A. CLAIMANT Is Not Entitled to an Additional Payment Under Clause 12

33 CLAIMANT is not entitled to the payment of US$ 1,250,000 or any other amount under Clause
12. The agreement on the incoterm DDP (“delivery duty paid”) allocates all delivery risks to
CLAIMANT [I]. As the tariffs do not meet the requirements of Clause 12 [II], CLAIMANT is not
exempted by that provision. In any case, Clause 12 does not provide for contract adaptation as
 a legal remedy [III].

I. The Agreement on DDP Allocates Delivery Risks to CLAIMANT

34 Generally, all risks associated with the delivery of the frozen semen are allocated to C LAIMANT
by the agreement on DDP. Clause 8 of the Contract requires the shipments to be sent DDP
[EXHIBIT C 5, p. 14]. DDP refers to the ICC incoterm, meaning that the seller is obliged to
deliver the goods at the agreed upon destination and bears all costs and risks of delivery [ICC
Guide Incoterms 2010, p. 149]. This also includes the obligation to clear the goods for import
and pay for tariffs [ibid; MEMORANDUM CLAIMANT, p. 4, para. 26]. CLAIMANT argues that “the
parties did not actually intend for DDP to apply”, because the parties allegedly removed some
of the risks associated with DDP in the Clauses 10 and 13 (insurance) of the Contract
[MEMORANDUM CLAIMANT, p. 5, para 27]. However, the inclusion of specific exceptions from
DDP into the Contract would only demonstrate that the parties fundamentally accepted the
risk distribution associated with DDP. Consequently, the agreement on DDP assigns all
delivery risks to CLAIMANT.

15

ALBERT LUDWIG UNIVERSITY OF FREIBURG

II. The Requirements of Clause 12 Are Not Met

35 Clause 12 does not exclude tariffs from falling into CLAIMANT‘s sphere of responsibility, as the
tariffs do not meet the requirements of the provision. The tariffs do not qualify as comparable
events to additional health and safety requirements [1] and do not constitute hardship [2].

1. The Tariffs Do Not Qualify as Comparable Events in the Sense of Clause 12

36 The tariffs are not an event comparable to health and safety requirements. To begin with, the
scope of Clause 12 is to be interpreted narrowly. The interpretation of a contract shall ensure
that the contract implements the parties’ will [Schlechtriem/Schwenzer – Schmidt-Kessel, Art.
8, para. 51; Baldus, p. 131; cf. Calnan, p. 35, para. 3.02]. CLAIMANT argues that the wording
of Clause 12, which requires “comparable unforeseen events”, is a catch-all provision
[MEMORANDUM CLAIMANT, p. 2, para. 16]. In fact, the Parties agreed on a narrow hardship
clause. The ICC Hardship Clause 2003, which was originally suggested by C LAIMANT
[EXHIBIT R 2, p. 34], recognises hardship whenever “an event” occurs that meets the
requirements listed in the clause. The parties narrowed down the provision by requiring the
event to be “caused by additional health and safety requirements or comparable unforeseen
events”, thereby limiting the number of events that may constitute causes of hardship [cf.
EXHIBIT R 3, p. 35; EXHIBIT C 5, p. 13, Clause 12]. Thus, the scope of the term “comparable
events” is to be interpreted narrowly to reflect the Parties’ intention when drafting the Clause.
37 Second, tariffs are objectively not comparable to health and safety requirements. CLAIMANT
argues that tariffs fall into the same category as health and safety requirements [MEMORANDUM
CLAIMANT, p. 2, para. 18]. However, Clause 12 was included in the Contract to address
CLAIMANT’s concerns resulting from experiences with events that made highly expensive
tests necessary [cf. EXHIBIT C 4, p. 12]. Possible causes for such measures other than health
and safety requirements might be additional product-related quality requirements. The tariffs
are an act of Mediterranean foreign policy and thus not related to either health and safety
requirements or comparable product related quality standards.

38 Third, the agreement on DDP indicates that tariffs are not covered by Clause 12. DDP is the one
incoterm that obligates the seller to bear all costs and risks associated with import clearance
[Piltz/Bredow – Piltz, paras. D-500, D-504; ICC Guide Incoterms 2010, p. 149]. This
generally includes the risk of unexpected difficulties regarding import clearance
[cf. ICC Guide Incoterms 2010, p. 32]. Had the Parties intended for the costs and risks of

16

ALBERT LUDWIG UNIVERSITY OF FREIBURG

tariffs to be borne by R ESPONDENT, they would have chosen a different incoterm, such as
DAP, which differs from DDP mainly in the regard that it assigns risks and costs of import
clearance to the buyer. The official ICC Incoterm Guide advises contracting parties to either
choose a different incoterm [cf. Incoterm 2010 Guide, p. 57], or modify the term by using a
phrase such as “DDP tariffs unpaid” [ICC Guide Incoterms 2010, p. 150] if the seller is not
supposed to pay for import tariffs. As the Parties agreed to apply the specific incoterm DDP,
they could not have meant Clause 12 to negate that incoterm’s defining criteria. Therefore, the
tariffs are not comparable events as set forth by Clause 12.

2. The Tariffs Do Not Constitute Hardship

39 Contrary to CLAIMANT’s submission [MEMORANDUM CLAIMANT, p. 3. para. 21], the tariffs do not
cause hardship in the sense of Clause 12. C LAIMANT argues that any increase in difficulty or
expensiveness constitutes hardship [MEMORANDUM CLAIMANT, p. 3. para. 22]. However, a
person concluding a contract takes the risk that performance becomes more difficult or
expensive than expected [Southerington, para. 5.2.3; MEMORANDUM CLAIMANT, p. 3. para.
22]. Only in exceptionally detrimental situations the disadvantaged party may be relieved due
to hardship. The Parties chose to include the term “hardship” into the wording of Clause 12,
which indicates that the characteristic requirements of hardship do apply to Clause 12. If any
measure of increase in cost were to trigger Clause 12, the requirement of “hardship” would be
redundant. Thus, the tariffs need to meet the threshold of onerousness that is customarily
associated with hardship.

40 The tariffs do not make the Contract sufficiently more onerous to meet the threshold of
 hardship. Generally, the threshold for hardship requires the contract to be 100 or even 200 per
cent more onerous, with only a few commentators suggesting a threshold of 50 per cent [OLG
Hamburg, 28 Feb 1997; Rechtbank van Koophandel Hasselt, 2 May 1995; Cour d’Appel de
Colmar, 12 Jun 2001; Cour de Cassation, 20 Jun 2004; CIETAC, 10 May 1996; ICC No
2508, 1976; ICSID, CMS Gas v Argentine, 2005, para. 355; BCCI, 12 Feb 1998;
Schwenzer/Hachem/Kee, p. 671, para. 45.106; Vogenauer – McKendrick, Art. 6.2.2, para. 8;
Schwenzer, VWULR, 2008, p. 717; Maskow, Am. J. Comp. L., p. 661]. CLAIMANT’s increased
cost of performance only amounts to 15 per cent, not to “at least 30 per cent” as claimed by
the opposing party [MEMORANDUM CLAIMANT, p. 3, para 22]. The tariffs amounted to a cost
increase of 30 per cent on the third shipment, which constitutes half of the delivery [NOTICE
OF ARBITRATION, p. 6, paras. 9, 13]. However, hardship must alter the equilibrium of the entire
contract, not just a single shipment [Schwenzer, VWULR, 2008, p. 714; Maskow, Am. J.
Comp. L., 1992, p. 662; Brunner, Hardship, pp. 397 et seq.; Schwenzer/Hachem/Kee, p. 666,

17

ALBERT LUDWIG UNIVERSITY OF FREIBURG

para. 45.67]. This rule is confirmed by the wording of Clause 12, which postulates that
hardship must make “the contract more onerous” [EXHIBIT C 5, p. 14, Clause 12, emph. add.].
The increased cost of full performance of the Contract thus amounts to 15 per cent. An
increase in cost of performance by merely 15 per cent however, does not constitute hardship.

III. In Any Case, Clause 12 Does Not Provide for the Remedy of Contract Adaptation

41 Even if the requirements of Clause 12 were met, an adaptation of the Contract would not be a
possible remedy of Clause 12. The wording of Clause 12 merely provides that the “Seller is
not responsible for […] hardship”. This wording suggests that the clause precludes certain
claims of the buyer against the seller. Those claims would be claims for damages and the
claim for performance. Clause 12 does not imply that it allows for any additional claims, such
as price adaptation, to be raised by the seller against the buyer. Hence, the wording of Clause
12 does not provide for an adaptation.

42 CLAIMANT argues that the Parties agreed on the remedy of adaptation during the negotiations
[cf. MEMORANDUM CLAIMANT, p. 13, paras. 40 et seq.]. Yet, CLAIMANT does not take into
account that the final version of Clause 12 was agreed upon at a much later time. After the
original negotiators were involved in a car accident, the negotiations had to be relaunched and
Clause 12 was finalised by two unbriefed representatives [EXHIBIT R 3, p. 35]. Considering
these circumstances, an interpretation of Clause 12 under Art. 8 (1) CISG shows that the
Parties did not intend Clause 12 to provide for the remedy of adaptation:

43 During the drafting of the Clause, CLAIMANT proposed to rely on the ICC Hardship Clause 2003
[EXHIBIT R 2, p. 34], which does not allow for the remedy of contract adaptation [ICC
Hardship Clause 2003]. Whilst the older version of the ICC Hardship Clause included the
 remedy of price adaptation, that part was excluded from the 2003 version [Schwenzer,
VWULR, 2008, p. 723]. CLAIMANT itself recognised that the ICC Hardship Clause 2003 does
not provide for the remedy of price adaptation [MEMORANDUM CLAIMANT, p. 6, para. 34]. The
fact that CLAIMANT suggested this hardship clause shows that CLAIMANT did not intend
contract adaptation to be a possible remedy. Instead of adding remedies to the ICC Hardship
Clause 2003, the negotiators who finalised the Contract agreed on an even narrower wording
in Clause 12 [EXHIBIT R 3, p. 35; PO NO 2, p. 56, para. 12]. Hence, the drafting history
demonstrates that contract adaptation was not intended as a remedy of Clause 12.

44 Contrary to CLAIMANT’s submission, the original negotiators’ oral conversation does not lead to
a different conclusion. The parties’ common intent at the conclusion of the contract which is
decisive for interpretation purposes [Enderlein/Maskow, Art. 8, para. 3.1]. In this case, the

18

ALBERT LUDWIG UNIVERSITY OF FREIBURG

original negotiators exchanged their thoughts on an adaptation of the Contract in an oral
discussion. This conversation was not meant to be binding as the Parties agreed to further
discuss the issue [EXHIBIT C 8, p. 17]. The final negotiators, however, could not have been
aware of their predecessors’ thoughts on the remedy. They merely drafted Clause 12 on the
basis of the Parties’ email chain [PO NO 2, p. 55, para. 5] and a note from RESPONDENT’s
previous negotiator [EXHIBIT R 3, p. 35]. Both sources do not record the original negotiators’
conversation. Therefore, the oral statements of their predecessors were not part of the final
negotiators’ common intention when drafting Clause 12. Hence, the conversation cannot be
consulted to interpret Clause 12 in terms of Art. 8 (3) CISG.

45 CLAIMANT argues that it is in the nature of hardship clauses to allow for an adaptation of the
price [MEMORANDUM CLAIMANT, p. 5, para. 28]. However, CLAIMANT’s sources also stress
that hardship clauses allow for a renegotiation of the contract only under the condition that the
clause expressly allows for it [Ullman, CWILJ, 1988, p. 82; Schmitthoff, pp. 418 et seq.;
Flambouras, PILR, 2001, p. 283; Rimke, Pace Rev. CISG, 1999-2000, p. 228]. As even the
remedy of renegotiation by the parties needs to be expressly provided for, so does the more
invasive remedy of contract adaptation. Yet, in the present case, the Contract does not
expressly allow for adaptation. Further, CLAIMANT recognises that the lack of an adaptation
mechanism in the hardship clause does not render the Clause incomplete [MEMORANDUM
CLAIMANT, p. 5, para. 29]. Hardship clauses do not necessarily provide for adaptation
[Ferrario, p. 138; Schmitthoff, pp. 418 et seq.; Rimke, Pace Rev CISG, 1999/2000, p. 229;
Ullman, CWILJ, 1988, pp. 81 et seq]. They have to be distinguished from adaptation clauses
[Schwenzer/Hachem/Kee, p. 667, para. 45.85]. Therefore, Clause 12 does not allow for the
adaptation of the price.

B. CLAIMANT Is Not Entitled to an Adaptation of the Price Under the CISG

46 CLAIMANT is not entitled to an adaptation of the Contract under the CISG, as Clause 12
supersedes the application of Art. 79 CISG [I]. In any case, the requirements of Art. 79 CISG
are not met [II] and the CISG does not provide for the remedy of contract adaptation [III].

I. Clause 12 Supersedes the Application of Art. 79 CISG

47 Art. 79 CISG cannot be applied in addition to Clause 12 of the Contract. Pursuant to Art. 6
CISG, parties can derogate from individual provisions of the CISG, including Art. 79 CISG
[Schlechtriem/Schwenzer – Schwenzer/Hachem, Art. 6, para. 8]. Both Clause 12 and Art. 79
CISG deal with unexpected events that impede performance and provide exemption for the
disadvantaged party if these events meet certain criteria. In

19

ALBERT LUDWIG UNIVERSITY OF FREIBURG

Clause 12, the Parties adjusted the conditions for exemption to meet their specific needs.
Hence, Clause 12 is lex specialis to Art. 79 CISG and thus supersedes that provision.
Furthermore, Clause 12 was drafted as a force majeure clause with an added hardship wording
[ANSWER TO NOTICE OF ARBITRATION, p. 30, para. 4]. A derogation from Art. 79 CISG
through a force majeure clause is quite common in international trade
[Schlechtriem/Schwenzer – Schwenzer, Art. 79, para. 58]. The nature of Clause 12 therefore
speaks for a derogation of Art. 79 CISG. It may thus not be applied next to Clause 12.

1. The Tariffs Do Not Meet the Requirements of Art. 79 CISG

48 In any case, the tariffs do not meet the requirements set forth in Art. 79 CISG. Under Art. 79
CISG, a party is exempted if its “failure to perform” was due to “an impediment beyond his
control and that he could not reasonably be expected to have taken the impediment into
account at the time of the conclusion of the contract or to have avoided or overcome it or its
consequences”. The tariffs do not meet these conditions. There is no failure to perform [a]
and the tariffs are not an impediment in the sense of Art. 79 CISG [b]. Further, CLAIMANT
could have taken the tariffs into account [c].

a) There Is No Failure to Perform

49 Art. 79 CISG is not applicable to the present case as there is no failure to perform. Art. 79 CISG
grants a party exemption from liability for a “failure to perform any of its obligations” due to
certain impediments. The provision is thus meant to grant relief in cases where unexpected
events impede performance, thereby causing a failure to perform. In the present case,
CLAIMANT did not fail to perform any of its obligations as it delivered the frozen semen on
time [NOTICE OF ARBITRATION, p. 6, para. 13; EXHIBIT C 5, p. 14, Clause 8]. Therefore, Art. 79
CISG is not applicable to the present case.

b) The Tariffs Are No Impediment in the Sense of Art. 79 CISG

50 Contrary to CLAIMANT’s submission, the tariffs do not constitute an impediment as required by
Art. 79 CISG [MEMORANDUM CLAIMANT, p. 9, paras. 44 et seq.]. The fundamental principle of
pacta sunt servanda binds each party to the performance of the contract [Brunner, Hardship,
pp. 392 et seq.; Schwenzer/Hachem/Kee, p. 668, para. 45.87; Rimke, Pace Rev CISG,
1999/2000, p. 242]. This principle also applies under the CISG [Kröll/Mistelis/Perales
Viscasillas – Perales Viscasillas, Art. 7, para. 64]. Art. 79 CISG only provides for an
exception in cases when an unexpected impediment gravely affects one party’s ability to
perform. It is disputed whether economic hardship may constitute such an

20

ALBERT LUDWIG UNIVERSITY OF FREIBURG

impediment [Kröll/Mistelis/Perales Viscasillas – Atamer, Art. 79, para. 79; Flambouras,
Pace Int’l Law Rev, 2001, pp. 291 et seq.]. If, however, economic hardship is to be included
in the scope of Art. 79 CISG, its effects on performance must be equal to those of physical
impediments. The threshold is thus to be set high enough to amount to unaffordability
[Schlechtriem/Schroeter, p. 293, para. 678].

51 The tariffs do not meet the threshold of Art. 79 CISG. It is generally accepted that the threshold
for hardship is established above a 70 per cent cost increase [Brunner, Hardship, p. 427;
Schwenzer, VWULR, 2008, p. 717; Schwenzer/Hachem/Kee, p. 671, para. 46.106]. An Italian
court ruled that a 30 per cent cost increase is not enough to constitute a hardship impediment
as required by Art. 79 CISG [Nuova Fucinati v Fondmetall International,
14 Jan 1993]. The tariffs caused CLAIMANT’s overall cost to increase by 15 per cent [supra,
para. 43]. Thus, the tariffs do not constitute hardship.

52 CLAIMANT argues that the tariffs qualify as a hardship impediment because performance would
result in CLAIMANT’s financial ruin and possible bankruptcy [MEMORANDUM CLAIMANT, p. 9,
para. 45]. However, the deterioration of a party‘s financial situation falls within its own
sphere of control and may therefore not authorise this party to invoke the hardship exemption
[Girsberger/Zapolskis, Jurisprudence, 2012, p. 131]. A deviation from this rule is possible
only if the financial ruin is not due to a lack of managerial skill or resources [ibid; Brunner,
Hardship, p. 437]. Because of CLAIMANT’s business history, CLAIMANT is in debt and needs
to make substantial profits to prolong its main credit lines [PO NO 2, p. 59, para. 29].
However, the additional costs cannot be assigned to R ESPONDENT so that CLAIMANT’s
company may make the profits it desires. The Contract did not guarantee either C LAIMANT or
RESPONDENT that their respective companies would be profitable due to the transaction. In
any case, CLAIMANT would not be financially ruined if it had to pay for the tariffs, as it would
be able to prolong its credit lines by selling its dressage part [PO NO 2, p. 59, para. 29].
Therefore, CLAIMANT’s financial situation does not make the tariffs qualify as hardship. The
tariffs are thus not an impediment in the sense of Art. 79 CISG.
 c) CLAIMANT Could Have Taken the Tariffs into Account

53 CLAIMANT could have taken the tariffs into account. According to CLAIMANT’s definition, the
tariffs would qualify as unforeseeable if they constituted an “ahistorical jump”
[MEMORANDUM CLAIMANT, p. 9, para. 47; DiMatteo, p. 296]. However, it is not the first time
that Equatoriana imposed retaliatory tariffs [EXHIBIT C 6, p. 15; cf. MEMORANDUM CLAIMANT,
p. 10, para. 48]. Additionally, since 2016, the prospect of multiple trade wars loomed over the

21

ALBERT LUDWIG UNIVERSITY OF FREIBURG

stage of international trade. The ongoing tensions eventually culminated in tariffs and counter
tariffs being imposed by some of the greatest trade nations, including the United States, China
and the EU. Already in January 2017, the President of Mediterraneo announced a “preference
for a more protectionist approach to international trade, in particular in relation to
agricultural products” in his election programme [EXHIBIT C 6, p. 15]. Moreover, he
appointed the most ardent critic of free trade as superminister for agriculture, trade and
economics on 5 May 2017, a day before the Contract was concluded [PO NO 2, p. 58, para.
23]. The possibility of tariffs being imposed by Mediterraneo was thus very present when the
Contract was concluded on 6 May 2017. Therefore, the initial tariffs imposed by the
Mediterranean government were not unforeseeable.

II. In Any Case, the CISG Does Not Provide for an Adaptation of the Contract

54 In any case, the CISG does not provide for an adaptation of the Contract. Art. 79 CISG does not
authorise the court or tribunal to adapt contracts as a response to an “impediment”: Art. 79 (1)
CISG specifies that the disadvantaged party is “not liable,” and Art. 79 (5) CISG clarifies that
this means the party is not liable in damages for failing to perform its duties
[Flechtner, Magnus lib.am., p. 201]. Even gap-filling under Art. 7 (2) CISG does not allow for
contract adaptation as an additional remedy of Art. 79 CISG [1]. Furthermore, the PICC may
not be applied to provide for the remedy of contract adaptation by including the PICC in the
Contract via Art. 9 (2) PICC [2]. Finally, the general principle of good faith does not allow for
an adaptation of the price [3].

1. The Remedy of Contract Adaptation May Not Be Established Under Art. 7 (2) CISG

55 The remedy of contract adaptation cannot be read into the CISG by means of gap-filling
according to Art. 7 (2) CISG. There is no internal gap in Art. 79 CISG [a]. In any case, the
PICC may not be used for gap-filling purposes under Art. 7 (2) CISG [b] and the principles
underlying the CISG would provide for an adequate remedy for cases of hardship [c].

a) There Is No Internal Gap in Art. 79 CISG Concerning Its Remedies

56 There is no internal gap in Art. 79 CISG as to its legal remedies. C LAIMANT argues that Art.
6.2.3 PICC may be used to fill a gap in Art. 79 CISG, thereby providing for the remedy of
price adaption [MEMORANDUM CLAIMANT, p. 11 paras. 52, 53]. However, CLAIMANT does not
provide reasons for the allegation that there is a gap in Art. 79 CISG allowing for the
supplementary use of the PICC. An internal gap only exists if a question concerning the

22

ALBERT LUDWIG UNIVERSITY OF FREIBURG

particular provision cannot be answered after liberally interpreting the provision
[Schlechtriem/Schwenzer – Schwenzer/Hachem, Art. 7, para. 29].

57 The drafting history of the CISG confirms that there is no gap in Art. 79 CISG that requires the
additional remedy of contract adaptation. According to Art. 7 (1) CISG, the CISG is to be
interpreted by considering its history [Schlechtriem/Schwenzer – Schwenzer/Hachem, Art. 7,
para. 22; MüKo HGB – Ferrari, Art. 7 CISG, para. 34]. During the drafting of Art. 79 CISG,
the remedy of price adaptation for cases of hardship was proposed but deliberately excluded
from the CISG [da Silveira, pp. 329 et seq.; Gillete/Walt, p. 304; Flechtner, BLR, 2011, p. 89;
Honnold/Flechtner, p. 629; Lindström, NJCL, 2006, p. 15]. Therefore, the lack of the remedy
of contract adaptation cannot be considered a gap of Art. 79 CISG.

58 Additionally, considering the rationale of the provision, Art. 79 CISG itself already provides an
adequate legal remedy for cases of economic hardship. The rationale is the protection of the
disadvantaged party against the possible ramifications of its failure to perform. The relief
from damage claims specifically provided in Art. 79 CISG is sufficient to provide for
effective relief in hardship situations when combined with a suspension of the obligation to
deliver for the duration of the hardship event [Schlechtriem/Schroeter, p. 295, para. 682;
Flechtner, BLR, 2011, p. 97]. Art. 79 CISG thus provides for an exhaustive remedy in cases
of economic hardship. Consequently, there is no internal gap which needs to be filled.

b) The PICC May Not Be Used for Gap-Filling Under Art. 7 (2) CISG

59 Even if a gap existed, the provisions of the PICC could not be used for gap-filling purposes.
According to Art. 7(2) CISG, internal gaps in the CISG “are to be settled in conformity with
the principles on which it is based”. CLAIMANT argues that the PICC constitute such
principles [MEMORANDUM CLAIMANT, p. 11, para. 52]. However, the PICC do not constitute
general principles underlying the CISG and may thus not be used for gap-filling in the CISG.
The wording of Art. 7(2) CISG does not support the use of the PICC as general principles. The
provision states that gaps in the CISG are to be “settled in conformity with the principles on
which it is based”. This indicates that these principles must be drawn from within the CISG
itself, not from external model law provisions.
60 Further, the legal nature of the PICC contradicts its use as general principles underlying the
CISG. Not only do the PICC derive their provisions from sources unconnected to the CISG,
but they also partly contradict the CISG and were issued by bodies without any law-making
authority [Ferrari/Gillette/Torsello/Walt, IHR, 2017, p. 101; Flechtner, Magnus lib. am., p.
199]. The CISG is a carefully crafted compromise between the contracting states, which

23

ALBERT LUDWIG UNIVERSITY OF FREIBURG

ratified its automatic application in cross-border disputes. Using the PICC as principles
underlying the CISG despite the fact that they are of a fundamentally different legal nature
than the CISG would endanger the sensitive political compromise that is the CISG.

61 Finally, the rationale of Art. 7(2) CISG contradicts the assumption that the PICC reflect general
principles underlying the CISG. Art. 7 (2) CISG provides a two-step-solution for matters not
expressly settled by the Convention. Primarily, gaps are to be filled with principles underlying
the CISG as these principles can be assumed to reflect the hypothetical consensus of the states
that drafted the Convention. In the absence of such principles, gaps are filled by recourse to
domestic law. This second step is indispensable because the drafting states did not reach a
consensus on all matters, which is why they were not expressly settled in the Convention.
Those matters cannot be settled in accordance with general principles of the CISG, as there
never was a consensus of the drafting states that these principles could be based on. Due to
the great extent of the PICC, almost all internal gaps in the CISG could be filled by the
corresponding PICC provision [Flechtner, Magnus lib. am, p. 199]. The second step of Art.
7(2) CISG to refer to domestic law in absence of general principles would thus be rendered
redundant. One would need to assume that the PICC reflect an all-encompassing consensus of
the drafting states, even though such a consensus never existed. The rationale of Art. 7 (2)
CISG thus contradicts the use of the PICC as principles underlying the CISG.

c) The General Principles of the CISG Provide for an Adequate Remedy for Hardship

62 The general principles underlying the CISG provide for an adequate remedy for hardship. A
recourse to domestic law via the second step of Art. 7 (2) CISG is thus not necessary. The
principle of internationality anchored in Art. 7(1) CISG indicates that the remedy for hardship
would not be contract adaptation, as the remedy of contract adaptation is not internationally
accepted [Flechtner, The Exemption Provision of the CISG, p. 13]. It is not consistent or
necessary to create a different legal remedy for economic impossibility that differs from the
remedy that already exists for actual impossibility [cf. MüKo HGB – Mankowski, Art. 79,
para. 10; Schwenzer, VWULR, 2008, p. 724; cf. Schlechtriem/Schroeter, p. 295, para. 682].
Art. 79 CISG expressly exempts the disadvantaged party from damage claims. The party
affected by physical impossibility is naturally protected against the claim of performance, as
impossibilium nulla est obligatio. Correspondingly, the duty to perform would be suspended
 in cases of economical hindrance for the duration of the impediment. Thereby, parties affected
by both physical and economic impediments are adequately and equally protected. It can
safely be assumed that the states that signed the Convention would have consented to this
solution regarding hardship, as it mirrors the solution they already approved of for physical

24

ALBERT LUDWIG UNIVERSITY OF FREIBURG

impediments. Thus, there is no necessity to produce additional legal remedies for Art. 79
CISG via recourse to domestic law, as the general principles of the CISG provide for an
adequate remedy for hardship.

2. The PICC Are Not Applicable by Virtue of Art. 9(2) CISG

63 The PICC cannot be applied by virtue of Art. 9 (2) CISG. According to Art. 9 (2) CISG, usages
which are known to the parties and widely known in international trade may be applicable to
the contract. CLAIMANT argues that Art. 6.2.3 PICC, which provides for an adaptation of the
price in cases of hardship, constitutes such a usage [MEMORANDUM CLAIMANT, p. 11, para. 55].
The PICC are opt-in provisions which parties may or may not choose to apply to their
contract [Vogenauer – Vogenauer, Introduction, para. 12]. Applying the PICC provisions by
default as trade usages in terms of Art. 9 CISG contradicts their legal nature, because the
application of the PICC would no longer depend on the parties’ choice [Bridge, ULR, 2014, p.
628]. Finally, an automatic application of PICC provisions to CISG
governed contracts is subject to many of the same concerns as the inclusion of the PICC via
Art. 7 (2) CISG. Including the PICC into the CISG as trade usages under Art. 9 (2) CISG
would go far beyond the limited compromise that was reached by the states that signed the
CISG. Art. 9(2) CISG may thus not be applied to allow for contract adaptation.

3. The General Principle of Good Faith Does Not Allow for an Adaptation

64 The general principle of good faith does not provide the legal remedy of price adaptation.
CLAIMANT argues that an interpretation of Art. 79 (5) CISG in light of Art. 7(1) CISG allows
for an adaptation of the price [MEMORANDUM CLAIMANT, p. 12, paras. 56 et seq.]. However,
the general principle of good faith does not create additional legal remedies [a]. Furthermore,
RESPONDENT did not act in breach of good faith [b].

a) Art. 7 (1) CISG May Not Be Used to Procure Additional Legal Remedies

65 Art. 7 (1) CISG may not procure legal remedies that were not intended by the Convention.
CLAIMANT cites Art. 7 (1) CISG to establish a duty to renegotiate in good faith [MEMORANDUM
CLAIMANT, p. 12, para. 56]. However, the wording of Art. 7(1) CISG clarifies that Art. 7(1) CISG
is a standard for the interpretation of the CISG. It may not be used to create rights for the parties
[Schlechtriem/Schwenzer – Schwenzer/Hachem, Art. 7, para. 19]. Furthermore, Art. 7(1) CISG
 postulates the CIGS’s international character as one of its main principles next to good faith. The
doctrine of contract adaptation is not accepted in most common law jurisdiction and is thus not in
conformity with the international character of the

25

ALBERT LUDWIG UNIVERSITY OF FREIBURG

CISG [Flechtner, The Exemption Provision of the CISG, p. 13]. The principle of good faith
may not be used in a way that disregards the CISG’s international character. Hence, an
adaptation of the price may not be derived from Art. 7(1) CISG.

b) RESPONDENT Did Not Act in Bad Faith

66 Furthermore, RESPONDENT did not, at any point, act in breach of good faith. Contrary to
CLAIMANT’s allegations [cf. MEMORANDUM CLAIMANT, p. 12, para. 59], RESPONDENT never
assured that it would pay for the tariffs. R ESPONDENT’s representative told CLAIMANT that
according to his understanding of the Contract, CLAIMANT would have to pay for the tariffs
and merely added that “if the Contract provides for an increased price”, an agreement would
be reached [EXHIBIT R 4, p. 56; emph. add.]. RESPONDENT thus never assured that it would pay
for the tariffs. Hence, RESPONDENT did not act in breach of good faith and the general
principle of good faith does therefore not provide for the legal remedy of price adaptation.
Hence, CLAIMANT may not demand an adaptation of the Contract under the CISG.

67 Conclusion to the Second Issue: The tariffs do not meet the requirements of either Clause 12
of the Contract or Art. 79 CISG. Moreover, neither Clause 12 or Art. 79 CISG provide for an
adaptation of the price. CLAIMANT is thus not entitled to an additional payment of US$
1,250,000 or any other amount.
 26

ALBERT LUDWIG UNIVERSITY OF FREIBURG

THIRD ISSUE: THE ARBITRAL TRIBUNAL SHOULD NOT ADMIT THE
PARTIAL INTERIM AWARD FROM THE OTHER PROCEEDINGS INTO
EVIDENCE

68 CLAIMANT is trying to derail the present proceedings by attempting to submit evidence which is
questionable in various ways. RESPONDENT is currently involved in a different, unrelated
arbitration concerning the sale of a mare to a Mediterranean buyer [PO NO 2, p. 60, para. 39;
CLAIMANT’s Email, p. 50]. Confidential information regarding the existence of an Interim
Award rendered in the other proceedings was leaked to C LAIMANT [PO NO 2, p. 60, para. 41].
Now, CLAIMANT is willing to pay US$ 1,000 to acquire and submit the confidential and
illegitimately obtained Interim Award [PO NO 2, p. 60, para. 41]. An admission would
therefore unnecessarily taint the proceedings, especially as the Interim Award fails to serve
any factual or legal support for the current Arbitration.

69 Pursuant to Art. 22(2) HKIAC Rules 2018, the arbitral tribunal shall determine the
admissibility, relevance, materiality and weight of evidence. Art. 22(3) HKIAC Rules 2018
enables arbitral tribunals to exclude evidence. The Arbitral Tribunal should use its power to
exclude the Interim Award, as it is confidential and has illegitimate origins [A]. In any case,
the information contained in the Interim Award is irrelevant to the case and immaterial to its
outcome [B]. Finally, the joinder or consolidation requested by CLAIMANT is not possible
under the HKIAC Rules 2018 [C].

A. The Interim Award Should Be Excluded Due to Its Illegitimate Origins

70 The Interim Award was obtained in an illegitimate manner and should therefore be excluded by
the Arbitral Tribunal. CLAIMANT is attempting to buy the Interim Award from a company that
specialises in selling “intelligence” on businesses operating in the horseracing industry [PO
NO 2, pp. 60 et seq., para. 41]. The company is known for its dubious ways of acquiring such
information [ibid.]. An investigation has shown that the Interim Award was either stolen
through a hack of RESPONDENT’s computer system or leaked by former employees of
RESPONDENT which were under the contractual obligation to keep the Interim Award
confidential [ibid.; RESPONDENT’s Email, p. 51]. The Interim Award was thus illegitimately
obtained in either case. Therefore, the Interim Award should be excluded to preserve the
integrity of the proceedings, as its submission would violate the principle of fair conduct [I].
Further, confidentiality obligations bar the admission of the Interim Award [II]. Finally,
admitting the Interim Award into the proceedings could violate public policy and endanger
the enforceability of the award [III].

27
 ALBERT LUDWIG UNIVERSITY OF FREIBURG
I. Admitting the Interim Award Violates the Principle of Fair Conduct

71 The submission of the illegitimately obtained Interim Award would infringe the principle of fair
conduct. Pursuant to Art. 13 (5) HKIAC Rules 2018, “the arbitral tribunal and the parties
shall do everything necessary to ensure the fair and efficient conduct of the arbitration”. This
obligation is further specified within the International Bar Association Rules on the Taking of
Evidence in International Arbitration (hereafter “IBA Rules”). According to Art. 9 (2)(g) IBA
Rules, arbitral tribunals shall exclude documents from evidence because of “considerations of
procedural economy, proportionality, fairness or equality of the Parties”. The IBA Rules are
commonly adopted in arbitrations under HKIAC Rules [Moser/Bao, HKIAC Commentary,
para. 9.155; cf. Hayward, p. 178, para. 4.86; Karrer, Bergsten lib. am., p. 292]. As
CLAIMANT submitted, the IBA Rules should operate as guidance in the present case since they
reflect the international best practice on the admission of evidence [MEMORANDUM CLAIMANT,
p. 25, para. 101]. Following these rules, the Interim Award should be excluded due to
CLAIMANT’s misconduct according to Art. 9(2)(g) IBA Rules.

72 CLAIMANT argues that it did not perform any illegal activities and that the Interim Award is
therefore admissible [MEMORANDUM CLAIMANT, p. 29, para. 116]. Yet, in various cases
obtaining evidence in breach of fair conduct has led to the exclusion of the respective
evidence [Methanex v USA, 2005, Part II, Ch. I, paras. 53 et seq.; EDF v Romania, PO No 3,
2008, p. 21, para. 38, p. 26, para. 48; Libananco v Turkey, Preliminary Award, 2008, p. 36,
para. 78; p. 42, paras. 1.1.6 et seq.; cf. Boykin/Havalic, TDM, 2014, p. 32; Blair/Gojkovic,
ICSID Review, 2018, p. 250; Cremades, Am. U. Int’l L. Rev., 2012, p. 787; Berger/Kellerhals,
p. 461, para. 1320]. In contrast to CLAIMANT’s allegation [MEMORANDUM CLAIMANT, p. 29,
para. 116], whether the party submitting the evidence itself behaved illegally is not decisive.
Even in the cases cited by CLAIMANT [MEMORANDUM CLAIMANT, p. 29, para. 116], legal but
unfair conduct was grounds for exclusion [EDF v Romania, PO No 3, 2008, p. 26, para. 48;
Libananco v Turkey, Preliminary Award, 2008, p. 36, para. 78; p. 42, paras. 1.1.6 et seq.].
CLAIMANT intends to buy the Interim Award despite its knowledge of the illegitimate origins
[PO NO 2, pp. 60 et seq., para. 41]. This constitutes dishonest and unfair behaviour.

73 Further, the planned purchase of the Interim Award would violate the principle of fair conduct
because CLAIMANT did not attempt to include the Interim Award into the proceedings using
the established procedural means. Pursuant to Art. 3 (2) IBA Rules, a party is entitled to
request documents from the other party to be admitted in the proceedings. C LAIMANT, after
learning of the existence of the Interim Award, could have requested R ESPONDENT to produce
the Interim Award. However, CLAIMANT is attempting to circumvent the legitimate procedure

28
 ALBERT LUDWIG UNIVERSITY OF FREIBURG
and confidentiality obligations by acquiring an illegitimate copy of the Interim Award. The
admission of this copy would only perpetuate the unfaithful behaviour behind the obtainment
of the Interim Award. Thereby, CLAIMANT would infringe the duty to arbitrate in a fair
manner.

74 Finally, the Interim Award should be excluded to preserve the integrity of the present
proceedings. Requests based on wrongdoing committed by the party raising the claim should
not be entertained, as allowing them will compromise the integrity of proceedings and thereby
violate core principles of justice [Herstein, Legal Theory, 2011, p. 177; cf. Precision v
Automotive, 23 Apr 1945, p. 324, para. 815; Bein v Heath, 1848, p. 47, para. 247]. The
company CLAIMANT is attempting to buy the Interim Award from is specialised in selling
information from questionable origins [PO NO 2, pp. 60 et seq., para. 41]. The admission of
the Interim Award into evidence would hence lead to the support of illegitimate, possibly
even criminal activities. Any decision based on such tainted material would compromise the
integrity of the proceedings. Thus, the Arbitral Tribunal should not admit the Interim Award.

II. Admitting the Interim Award Violates Confidentiality Obligations

75 The Interim Award should not be admitted into the proceedings due to its confidentiality. The
confidentiality of arbitral proceedings has traditionally been considered to be one of the most
important advantages of international commercial arbitration, and an implied obligation of
confidentiality arises out of the nature of arbitration itself [Dolling-Baker v Merrett, 21 Mar
1990, p. 7; Redfern/Hunter, para. 2.145; Thomson/Finn, Dis. Res. J, 2007, p. 1; Moser/Bao,
HKIAC Commentary, para. 12.27; Trakman, Arb. Int., 2002, pp. 1 et seq.]. CLAIMANT does
not contest that the Interim Award and any related information is confidential under Art. 42
HKIAC Rules 2013 [cf. RESPONDENT’s Email, p. 51]. Instead, CLAIMANT argues that the
admission of confidential documents is not prohibited [MEMORANDUM CLAIMANT,
p. 26, para. 107]. However, this does not hold true in the present case. Pursuant to the HKIAC
Rules 2018, the confidentiality obligation extends to C LAIMANT and bars the admission of the
Interim Award, in accordance with the IBA Rules [1]. RESPONDENT has also not waived the
confidentiality of the Interim Award [2].

1. Confidentiality Provisions Bar the Admission of the Interim Award

76 The HKIAC Rules suggest the inadmissibility of the Interim Award for confidentiality reasons.
Fair conduct requires a respect for confidentiality [Libananco v Turkey, Preliminary Award,
2008, p. 36, para. 78]. The unauthorised use of confidential information violates this principle
and has led to the exclusion of the respective evidence in several instances

29
 ALBERT LUDWIG UNIVERSITY OF FREIBURG
[cf. Libananco v Turkey, Preliminary Award, 2008, p. 42, paras. 1.1.6 et seq.; Danube
Commission, 8 Dec 1927, para. 79; Reisman/Freedman, Am. J. Int. L., 1982, p. 743]. Further,
it is a general principle that a duty of confidentiality extends to third parties when the party
obtaining the information is aware of its confidentiality [Attorney General v Guardian
Newspapers, 13 Oct 1988; Toulson/Phipps, p. 20, para. 2-006]. CLAIMANT is not a party of
the other proceedings and was thus not explicitly bound by its confidentiality provision. Yet,
CLAIMANT is conducting the present Arbitration under HKIAC Rules and RESPONDENT
informed CLAIMANT of the Interim Award’s confidential nature [RESPONDENT’s Email, p. 51].
Hence, CLAIMANT had to be aware that the Interim Award rendered under HKIAC Rules is
generally confidential. Therefore, the duty of confidentiality extends to CLAIMANT and bars
the admission of the Interim Award.

77 The Interim Award should also be excluded pursuant to the IBA Rules. According to Art. 9 (2)
(b) IBA Rules, documents shall be excluded due to a “legal impediment or privilege under
the legal or ethical rules applicable”. The term ‘legal impediment’ includes every legal rule
that prohibits the disclosure of evidence [Marghitola, p. 29, para. 5.10; cf.
Zuberbühler/Hofmann/Oetiker/Rohner, p. 178, para. 37]. The rule prohibiting the disclosure
of evidence in the current case is the confidentiality obligation of Art. 42 HKIAC Rules 2013.
Even though Art. 42 HKIAC Rules 2013 does not bind the Arbitral Tribunal and C LAIMANT
explicitly, the need to honour such confidentiality provisions is recognised in Art. 9 (4) IBA
Rules, pursuant to which confidential information requires general protection. Therefore, Art.
42 HKIAC Rules 2013 constitutes a legal impediment in terms of Art. 9 (2)(b) IBA Rules,
leading to an exclusion of the Interim Award.

2. RESPONDENT Has Not Waived the Confidentiality of the Interim Award

78 Contrary to CLAIMANT’s submission [MEMORANDUM CLAIMANT, p. 26, para. 108], RESPONDENT

has not waived its right to object to the admission of the Interim Award on the grounds of
confidentiality. According to Art. 9 (3)(d) IBA Rules, parties may waive confidentiality by
virtue of consent, earlier disclosure, or affirmative use of the document or its contents. A
waiver therefore requires voluntary, legally significant conduct showing a party’s intent to not
rely on its rights [AAY v AAZ, 15 Jun 2009, para. 130; Baptista, ICC Dossiers, p. 130]. The
mere mentioning of a privileged document does not suffice to waive the confidentiality of said
document [Buttes Gas and Oil Co v Hammer No 3, 20 Jun 1980, pp. 233 et seq.]. CLAIMANT
argues that RESPONDENT’s objection to the announced submission of the confidential Interim
Award constitutes a waiver by affirmative use [MEMORANDUM CLAIMANT, p. 27, paras. 109 et
seq.]. However, RESPONDENT did not

30
 ALBERT LUDWIG UNIVERSITY OF FREIBURG
affirmatively use the Interim Award, as it did not refer to the document [cf. RESPONDENT’s
Email, p. 51]. RESPONDENT only stated that any materials obtained by CLAIMANT are
confidential and that CLAIMANT’s allegations are taken out of context [RESPONDENT’s Email,
p. 51]. RESPONDENT also did not consent, but objected to the announced submission
[RESPONDENT’s Email, p. 51]. This objection cannot constitute a waiver in respect to the
confidentiality of the Interim Award. Otherwise, the confidentiality of any document would be
waived by any objection to its use. Art. 9 (2)(b) IBA Rules, which allows parties to object to
production based on privilege, would thus be redundant. Hence, the Interim Award’s
confidentiality has not been waived and is thus still protected by Art. 42 HKIAC Rules 2013.

III. Admitting the Interim Award Endangers the Enforceability of the Award

79 Admitting the Interim Award could render the award of the present proceedings unenforceable.
According to Art. V(2)(b) NYC, an award is not enforceable if it is against public policy.
Public policy protects basic notions of morality and justice, which includes the principle of
good faith [Wolff – Wolff, p. 429, para. 560; cf. Fouchard/Gaillard/Goldman, p. 996, para.
1711; van den Berg, p. 360]. The principle of fair conduct is an expression of good faith,
which will be infringed by CLAIMANT’s plans to obtain the Interim Award. Additionally, the
admission of illegally obtained evidence by itself can violate public policy
[Böckstiegel/Kröll/Nacimiento - Kröll, p. 561, para. 129; Wolff – Wolff, p. 427, para. 554;
Schlosser, p. 483, para. 647]. Therefore, any decision based on the illegitimately obtained
Interim Award would violate public policy. Thus, the Arbitral Tribunal should take into
consideration that the admission of the Interim Award into the proceedings could lead to the
award being set aside by national courts.

B. In Any Case, the Interim Award Is Not Relevant and Material

80 In any case, the Interim Award is not relevant to the case and not material to its outcome.
CLAIMANT argues that the illegitimacy of the Interim Award may still be outweighed by its
relevance and materiality to the case [MEMORANDUM CLAIMANT, p. 28, para. 114]. Evidence is
relevant when it is useful to prove a fact from which a legal conclusion can be drawn
[Raeschke-Kessler, Arb. Int., 2002, p. 427; Born, p. 2362; Pilkov, Arbitration, 2014, p. 148].
Evidence is material if it is needed for a complete consideration of the legal issues [Raeschke
Kessler, Arb. Int., 2002, p. 427; Born, p. 2362; Pilkov, Arbitration, 2014, p. 148; Kekenadze,
p. 35; Sattar, Int. Arb. L. Rev., 2011, pp. 215 et seq.]. However, CLAIMANT fails to show that
the Interim Award satisfies this standard. The facts of the other case are not comparable to the
present ones and thus do not allow for any legal conclusions [I]. Therefore, the Interim Award

31
 ALBERT LUDWIG UNIVERSITY OF FREIBURG
has no impact on the result of the arbitration and hence is not material to the outcome of the
present case [II].

I. The Two Proceedings Are Not Comparable

81 The other proceedings differ on several important facts, which make them incomparable to the
present case. CLAIMANT argues that the fact that the other arbitral tribunal confirmed its power
to adapt the contract under the other arbitration agreement shows that the present arbitration
agreement also allows for an adaptation [MEMORANDUM CLAIMANT, p. 26, para. 106].
However, the facts shared by the Arbitral Tribunal regarding the other arbitration [PO NO 2,
p. 60, para. 39] demonstrate that the facts of the other case and the present case differ in
content as well as context. Whilst the arbitration agreement in the other arbitration is a
verbatim adoption of the HKIAC Model Clause with all its additions [PO NO 2, p. 60, para.
39], the Arbitration Agreement in the present case is considerably streamlined and “narrowed
down” [EXHIBIT R 1, p. 33]. The present Arbitration Agreement is also governed by a different
law, which bars adaptation without an express empowerment [supra, paras. 8 et.seq.; cf. PO
NO 2, p. 60, para. 39]. Therefore, the arbitration agreements are not comparable.

II. The Interim Award Has No Impact on the Outcome of the Present Arbitration

82 The Interim Award has no impact on the result of the current Arbitration and is therefore
immaterial. CLAIMANT argues that RESPONDENT acts contradictory, demanding a contract
adaptation from a third party whilst not granting a contract adaptation to C LAIMANT
[MEMORANDUM CLAIMANT, p. 25, para. 105]. However, this does not allow for any legal
conclusions. A party will only be bound by its prior conduct if the other party could
reasonably rely thereon in good faith [Kotuby/Sobota, p. 121; Friede, ZaöRV, 1935, p. 517].
CLAIMANT was not aware of RESPONDENT’s conduct concerning the other proceedings at the
time the present contract was signed. Therefore, it could not reasonably rely on it. Thus, any
conduct regarding the other dispute between RESPONDENT and the Mediterranean buyer
cannot bind RESPONDENT in the present proceedings.

83 Further, contrary to CLAIMANT’s allegation [MEMORANDUM CLAIMANT, p. 25, para. 104],

RESPONDENT’s submissions regarding the contract underlying the other proceedings cannot be
used to determine RESPONDENT’s intent in the present proceedings. Such a farfetched
interpretation of a party’s intent is neither covered by Art. 4 Danubian Contract Law nor Art.
8 CISG. Legal opinions are inevitably linked to the facts of the respective situation and
therefore vary depending on the facts of the individual case. It is entirely possible that

32

ALBERT LUDWIG UNIVERSITY OF FREIBURG

 RESPONDENT signed one contract with the intent to allow for adaptation and then another with
the intent to exclude such a remedy. Therefore, R ESPONDENT’s intent in the present case must
be determined independently from the other proceedings.

84 Finally, CLAIMANT argues that the Interim Award holds persuasive authority regarding the
present case in favour of CLAIMANT’s contentions, as the other arbitral tribunal confirmed its
power to adapt the contract [MEMORANDUM CLAIMANT, p. 26, para. 106]. However, there is no
doctrine of precedent in arbitration [Waincymer, p. 798; Kaufmann-Kohler, Arb. Int., 2007, p.
357; Guillaume, JIDS, p. 5; cf. Hay, 40 under 40 Int. Arb., 2018, pp. 223 et seq.]. Arbitral
tribunals must make a finding of fact independent from other proceedings and cannot rely on
any conclusions drawn by other arbitral tribunals [Waincymer, p. 789]. Therefore, the Interim
Award is not relevant or material in any way.

C. The Joinder or Consolidation Requested by CLAIMANT Is Not Possible Under the

HKIAC Rules 2018

85 The present circumstances do not allow for either the joinder of the third party or a
consolidation with the other proceedings. CLAIMANT argues that a joinder or a consolidation
can be ordered, which would then allow for the disclosure of the Interim Award without a
breach of confidentiality [MEMORANDUM CLAIMANT, pp. 30 et seq., paras. 120 et seq.].
However, neither a joinder nor a consolidation is possible.

86 First, the requirements of a joinder of the third party are not met. A joinder pursuant to Art. 27
(1) HKIAC Rules 2018 requires the joining party to be “bound by an arbitration agreement
under these Rules giving rise to the arbitration”. This requires the additional party to be
bound by the same arbitration agreement [Moser/Bao, HKIAC Commentary, para. 10.18,
emph. add]. The third party is not a signatory to the Arbitration Agreement of the present
Arbitration. Moreover, the arbitration agreement of the other proceedings is fundamentally
different and has no relation to the present proceedings. Hence, the possibility of a joinder is
ruled out.

87 Second, a consolidation of the two proceedings is equally impossible. C LAIMANT argues that the
Arbitral Tribunal should consolidate the different proceedings pursuant to Art. 28 (1)(c)
HKIAC Rules 2018 [MEMORANDUM CLAIMANT, p. 30, para. 122]. However, a consolidation
may only be ordered by the HKIAC, not an arbitral tribunal [Art. 28(1) HKIAC Rules 2018;
Moser/Bao, HKIAC Commentary, para. 10.97]. Additionally, Art. 28(1)(c) HKIAC Rules
2018 requires that the respective proceedings concern a series of related transactions and that
the arbitration agreements are compatible. Contrary to CLAIMANT’s

33

ALBERT LUDWIG UNIVERSITY OF FREIBURG

assumptions [MEMORANDUM CLAIMANT, p. 31, paras. 125 et seq.], neither is the case. The sale
 of the mare concerning the other proceedings and the sale of frozen horse semen in the
present case are not related. The arbitration agreements have different scopes, are governed by
different arbitration laws and provide for different seats [PO NO 2, p. 60, para. 39]. The
consolidation requested by CLAIMANT is therefore not possible.

88 Conclusion to the Third Issue: The Interim Award should not be admitted into the proceedings
as it was obtained illegitimately and therefore endangers the integrity of the proceedings. The
Interim Award is irrelevant to the case and immaterial to its outcome. Finally, the Interim
Award cannot be introduced to the proceedings through a joinder or consolidation of the third
party as the requirements are not met.

34

ALBERT LUDWIG UNIVERSITY OF FREIBURG

REQUEST FOR RELIEF
In response to the Arbitral Tribunal’s Procedural Orders and the Memorandum for
CLAIMANT, Counsel makes the above submissions on behalf of R ESPONDENT. For the reasons
stated in this Memorandum, Counsel respectfully requests the Arbitral Tribunal to find that:

▪ An adaptation of the Contract is not arbitrable in these proceedings. In any case,

Danubian Law governs the Arbitration Agreement. Interpreted thereunder, the
Arbitration Agreement does not provide the Arbitral Tribunal with the power to adapt
the Contract. An interpretation under Mediterranean Law would not lead to a different
outcome [First Issue].
▪ Even if the Arbitral Tribunal had the power to adapt the Contract, neither Clause 12 of
the Contract nor the CISG would provide for an adaptation of the purchase price
[Second Issue].
▪ CLAIMANT should not be entitled to submit the Interim Award from the other arbitration
proceedings as evidence [Third Issue].

On these grounds, the Arbitral Tribunal is respectfully requested to dismiss all of CLAIMANT’s
claims and order CLAIMANT to bear the costs incurred in this Arbitration.

Freiburg im Breisgau, 24 January 2019

Marc Bovermann • Julien Feurer

Lukas Gottschling • Julia Schmidt • Hauke Schneider

David Willfort • Anna Maria Yang-Jacobi

35

ALBERT LUDWIG UNIVERSITY OF FREIBURG

INDEX OF ABBREVIATIONS

Art. article
 BCCI Bulgarian Chamber of Commerce and Industry
BeckOK Beck’sche Online-Kommentare BGer Bundesgericht (Federal Supreme Court of
Switzerland)
BGH Bundesgerichtshof (German Federal Court of Justice)
cf. confer (compare)
Ch. chapter
CIETAC China International Economic and Trade Arbitration Commission
CISG United Nations Conventions on Contracts for the International Sale of Goods
Co Company
DAP delivered at place
DDP delivered duty paid
ed. edition
emph. add. emphasis added
et seq. et sequens (and the following) EU European Union
fn. footnote
HKIAC Hong Kong International Arbitration Centre HGB Handelsgesetzbuch (German
Commercial Code)
IBA International Bar Association ibid. ibidem (in the same place) ICC International
Chamber of Commerce ICCA International Council for Commercial Arbitration
ICSID International Centre for Settlement of Investment Disputes
Inc Incorporation

XXXVI

ALBERT LUDWIG UNIVERSITY OF FREIBURG

lib. am. liber amicorum (commemorative publication)
Ltd Limited
Mr. Mister
MüKo Münchener Kommentar No number
NYC New York Convention on the Recognition and Enforcement of Foreign Arbitral
Awards
OGH Oberster Gerichtshof (Austrian Supreme Court)
OLG Oberlandesgericht (appellate court) p./pp. page/pages
para./paras. paragraph/paragraphs
PICC Principle of International Commercial Contracts
PO Procedural Order
UNCITRAL United Nations Commission on International Trade Law
UNCITRAL Model Law United Nations Commision on International Trade Law Model
Law on International
 Commercial Arbitration
UNIDROIT International Institute for the Unification of Private Law
US United States
USA United States of America US$ United States Dollar
v versus
Vol. volume
WTO World Trade Organization

XXXVII

ALBERT LUDWIG UNIVERSITY OF FREIBURG

INDEX OF AUTHORITIES

Baldus, Christian Beweislastverteilung im UN-Kaufrecht,

Frankfurt am Main (1995)
cited as: Baldus
in para. 39

Baptista, Luiz Olavo Arbitrations – Waivers and Estoppel

in: Parallel State and Arbitral Procedures in International
Arbitration, Dossiers of the ICC Institute of World Business Law,
Vol. 3 (2005),
pp. 127–151
cited as: Baptista, ICC Dossiers, 2005
in para. 81

Berg, Albert Jan van den The New York Arbitration Convention of 1958, Towards a
Uniform Judicial Interpretation,
Alphen aan den Rijn (1981)
cited as: van den Berg
in paras. 28, 82

Berger, Bernhard Kellerhals, Franz Switzerland, 3rd ed., Bern (2015)

International and Domestic Arbitration in
cited as: Berger/Kellerhals in para. 75

Berger, Klaus Peter Re-examining the Arbitration Agreement: Applicable Law –

Consensus or Confusion?,
in: Albert Jan van den Berg, International Arbitration 2006: Back
to Basics? ICCA Congress Series Vol. 13 (2007),
pp. 301–334
cited as: Berger, Int’l Arb. 2006,
in para. 8

XXXVIII

ALBERT LUDWIG UNIVERSITY OF FREIBURG

Berger, Klaus Peter Renegotiation and Adaptation of International Investment
Contracts: The Role of Contract Drafters and Arbitrators,
in: Vanderbilt Journal of Transnational Law, Vol. 36 (2003),
No 4,
pp. 1347-1380
cited as: Berger, Vand. J. Transnat’L., 2003
in para. 33

Berger, Klaus Peter Neuverhandlungs-, Revisions- und Sprechklauseln im

Internationalen Wirtschaftsvertragsrecht,
in: Recht der internationalen Wirtschaft (2000), No 1
pp. 1–14
cited as: Berger, RIW, 2000
in para. 7

Bernardini, Piero Stabilization and adaptation in oil and gas investments, in: Journal of
World Energy Law and Business, Vol. 1 (2008),
pp. 98–112
cited as: Bernardini, JWELB, 2008
in para. 7

Bernardini, Piero The Renegotiation of the Investment Contract, in: ICSID Review –
Foreign Investment Law Journal, Vol. 13/2
(1998),
 pp. 411–425
cited as: Bernardini, ICSID Rev, 1998
in para. 33

Black’s Law Dictionary Garner, Bryan A. [ed.] cited as: Black’s Law Dictionary
Black’s Law Dictionary – Deluxe Eighth Edition in para. 10
8th ed., St. Paul (2004)

XXXIX

ALBERT LUDWIG UNIVERSITY OF FREIBURG

Blackaby, Nigel Redfern, Alan in paras. 6, 8, 12, 15, 78
Hunter, Martin
WikiLeaks and Beyond: Discerning an
International Standard for the Admissibility of
Blair, Cherie Illegally Obtained Evidence,
Gojković, Ema Vidak in: ICSID Review, Vol. 33 (2018), No 1,
Redfern and Hunter on International Arbitration, pp. 235–259
6th ed., Oxford (2015) cited as: Blair/Gojković, ICSID Review, 2018
cited as: Redfern/Hunter in para. 75

Blessing, Marc Regulations in Arbitration Rules on Choice of Law in: Planning

Efficient Arbitration Proceedings: The Law
Applicable in International Arbitration, ICCA Congress Series,
Vol. 7 (1996)
pp. 391–446
cited as: Blessing, ICCA Congress Series, 1996
in para. 13

Böckstiegel, Karl-Heinz Kröll, Stefan Michael Practice Alphen aan den Rijn (2007)
Nacimiento, Patricia cited as: Böckstiegel/Kröll/Nacimiento – Author
Arbitration in Germany, The Model Law in in para. 82

Born, Gary International Arbitration: Cases and Materials New York

(2011)
cited as: Born, Cases and Materials
 in para. 15

Born, Gary B. International Commercial Arbitration, 2nd ed.,

Alphen aan den Rijn (2014)
cited as: Born
in paras. 6, 83

XL

ALBERT LUDWIG UNIVERSITY OF FREIBURG

Boykin, James H. Havalic, Malic in: Transnational Dispute Management, Yukos
Fruits of the Poisonous Tree: The Admissibility Special, Vol. 5 Preliminary version, (2014)
of Unlawfully Obtained Evidence in cited as: Boykin/Havalic, TDM, 2014
International Arbitration, in para. 75

Bridge, Michael The CISG and the Unidroit Principles of International

Commercial Contracts,
in: Uniform Law Review, Vol. 19 (2014), Issue 4
pp. 623–642
cited as: Bridge, ULR, 2014
in para. 66

Briner, Robert Special Considerations Which May Affect the Procedure, in: Albert Jan
van den Berg (ed.) Planning Efficient Arbitration
Proceedings: The Law Applicable in International Arbitration,
ICCA Congress Series, Vol. 7,
Alphen aan den Rijn (1996)
pp. 362–373
cited: Briner
in para. 7

Brunner, Christoph Force Majeure and Hardship under General Contract Principles –
Exemption for Non-Performance in International Arbitration,
Alphen aan den Rijn (2009)
cited as: Brunner, Hardship
in paras. 8, 43, 53, 54, 55

Calnan, Richard Principles of Contractual Interpretation,

 2nd ed., Oxford (2017)
cited as: Calnan
in para. 39

XLI

ALBERT LUDWIG UNIVERSITY OF FREIBURG

Cremades, Bernardo Good Faith in International Arbitration,
in: American University International Law Review, Vol. 27
(2012), No 4,
pp. 761–788
cited as: Cremades, Am. U. Int’l L. Rev., 2012
in para. 75

Czernich, Dietmar Österreich: Das auf die Schiedsvereinbarung anwendbare Recht, in:
Zeitschrift für Schiedsverfahren, Vol. 4 (2015),
pp. 181–187
cited as: Czernich, SchiedsVZ, 2015
in para. 16

D’Agostino, Justin Hughes, Timothy http://arbitrationblog.kluwerarbitration.com/

2014/08/15/revisions to-the-hkiacs-model-
clauses-address-uncertainty-regarding-the law-
governing-arbitration-clauses/
cited as: D’Agostino/Hughes, Kluwer Arbitration
Blog, 2014 in para. 16

National Report for Belgium 2018

in: Jan Paulsson, Lise Bosman (eds.), ICCA
Dal, Georges Albert Keutgen, Guy International Handbook on Commercial

Dal, Marc Arbitration

Revisions to the HKIAC’s Model Clauses address Binder I, BELGIUM,
uncertainty regarding the law governing pp. 1–53
arbitration clauses, in: Kluwer Arbitration Blog, cited as: Dal/Keutgen, National Report Belgium
15 Aug 2014 2018, ICCA in para. 7
available at:
 XLII

ALBERT LUDWIG UNIVERSITY OF FREIBURG

De Cossío, Francisco González International Handbook on Commercial
Arbitration
Binder IV, MEXICO,
pp. 1–46
cited as: De Cossío, National Report Mexico
2018, ICCA in para. 7

Dicey, Albert Venn Morris, John H. C. Lord The Conflict of Laws,

Collins of Mapesburry 15th ed., London (2012)
National Report for Mexico 2018 cited as: Dicey/Morris/Collins
in: Jan Paulsson, Lise Bosman (eds.), ICCA in paras. 15, 28

DiMatteo, Larry A. Contractual Excuse under the CISG: Impediment, Hardship, and the
Excuse Doctrines
in: Pace International Law Review, Vol. 27 (2015)
pp. 258-305
cited as: DiMatteo
in para. 56

Enderlein, Fritz Maskow, Dietrich cited as: Enderlein/Maskow in para. 47

International Sales Law, New York (1992)

Ferrario, Pietro The Adaptation of Long-Term Gas Sale Agreements by

Arbitrators,
Alphen aan den Rijn (2017)
cited as: Ferrario
in paras. 7, 48

XLIII

ALBERT LUDWIG UNIVERSITY OF FREIBURG

Flambouras, Dionysios P. Contract Law – A Comparative Analysis,
The Doctrines of Impossibility of Performance in: Pace International Law Review, Vol. 13
and Clausula Rebus SIC Stantibus in the 1980 (2001), Issue 2, pp. 261–293
Convention on Contracts for the International cited as: Flambouras, PILR, 2001
Sale of Goods and the Principles of European in paras. 48, 53

Flechtner, Harry M. The Exemption Provisions of the Sales Convention including

Comments on Hardship Doctrine and the 19 June 2009 Decision
of the Belgian Cassation Court,
in: Belgrade Law Review, Vol. 59 (2011), No 3,
pp. 84–101
cited as: Flechtner, BLR, 2011
in para. 60, 61
Flechtner, Harry M. Uniformity and Politics: Interpreting and Filling Gaps in the
CISG,
in: Peter Mankowski, Wolfgang Wurmnest (eds.), Festschrift für
Ulrich Magnus,
pp. 193-207
cited as: Flechtner, Magnus lib. am.
in paras. 57, 63, 64

Fouchard, Philippe Gaillard, Emmanuel (ed.) Hague (1999)

Goldman, Berthold Savage, John (ed.) cited as: Fouchard/Gaillard/Goldman in paras.
On International Commercial Arbitration, The 15, 33, 82

Frick, Joachim G. Arbitration and Complex International Contracts, Zurich

(2001)
cited as: Frick
in paras. 7, 8

XLIV

ALBERT LUDWIG UNIVERSITY OF FREIBURG

Friede, Wilhelm Das Estoppel-Prinzip im Völkerrecht, in: Zeitschrift für
ausländisches öffentliches Recht und
Völkerrecht, Vol. 5 (1935),
pp. 517–545
 cited as: Friede, ZaöRV, 1935
in para. 85

Gillete, Clayton P. Walt, Steven D. 2nd ed., Cambridge (2016)

cited as: Gillete/Walt
in para. 60

Fundamental Alteration of the Contractual

Girsberger, Daniel Zapolskis, Paulius Equilibrium under Hardship Exemption,
The UN Convention on Contracts for the in: Jurisprudence, Vol. 19 (2012), No 1,
International Sale of Goods: Theory and pp. 121–141
Practice, cited as: Girsberger/Zapolskis, Jurisprudence,
2012 in para. 55

Guillaume, Gilbert The Use of Precedent by International Judges and Arbitrators in:
Journal of International Dispute Settlement, Vol. 2 (2011),
No. 1
pp. 5–23
cited as: Guillaume, JIDS, 2011
in para. 87

Harisankar, K.S. International Commercial Arbitration in Asia and the Choice of Law
Determination,
in: Journal of International Arbitration, Vol. 30 (2013), No 6,
pp. 621–636
cited as: Harisankar, JIA, 2013
in para. 28

XLV

ALBERT LUDWIG UNIVERSITY OF FREIBURG

Hay, Emily Winds of Change? Confidentiality and in International Commercial
Arbitration,
in: 40 under 40 International Arbitration (2018)
pp. 211–230
cited as: Hay, 40 under 40 Int. Arb., 2018
in para. 87
 Hayward, Benjamin Conflict of Laws and Arbitral Discretion – The Closest
Connection Test,
Oxford (2017)
cited as: Hayward
in para. 74

Henderson, Alastair Lex Arbitri, Procedural Law and the Seat of Arbitration, in:
Singapore Academy of Law Journal, Vol. 26 (2014),
pp. 886–910
cited as: Henderson, SAcLJ, 2014
in para. 8

Herstein, Ori J. A Normative Theory of the Clean Hands Defence in: Legal
Theory, Vol. 17 (2011)
pp. 171–208
cited as: Herstein, Legal Theory, 2011
in para. 77

Honnold, John O. Flechtner, Harry M. 4th ed., Alphen aan den Rijn (2009)
Uniform Law for International Sales under the cited as: Honnold/Flechtner
1980 United Nations Convention, in para. 60

XLVI

ALBERT LUDWIG UNIVERSITY OF FREIBURG

Jones, Doug Choosing the Law or Rules of Law to Govern the Substantive Rights of the
Parties,
in: Singapore Academy of Law Journal, Vol. 26 (2014),
pp. 911–941
cited as: Jones, SAcLJ, 2014
in para. 15

Kaplan, Neil Morgan, Robert in: Jan Paulsson, Lise Bosman (eds.), ICCA
National Report for Hong Kong 2018 International Handbook on Commercial
Arbitration pp. 1–152
Binder III, HONG KONG S.A.R., cited as: National Report Hong Kong 2018, ICCA
in para. 7

Kapwadi, Lukanda Renegotiating a Long-Term Investment Contract: The Case of

Mining Contracts in DRC,
Pretoria (2012)
cited as: Kapwadi
in para. 7

Karrer, Pierre A. Law, Para-Regulatory Texts and People in International

Arbitration: Predictability or Fureur Reglementaire?,
in: International Arbitration and International Commercial Law:
Synergy, Convergence and Evolution – Liber Amicorum
Bergsten,
Alphen aan den Rijn (2011),
pp. 291–299
cited as: Karrer, Bergsten lib. am.
in para. 74

XLVII

ALBERT LUDWIG UNIVERSITY OF FREIBURG

Kaufmann-Kohler, Gabrielle 3, pp. 357–378
Arbitral Precedent: Dream, Necessity or Excuse? cited as: Kaufmann-Kohler, Arb. Int., 2007 in
in: Arbitration International, Vol. 23 (2007), No para. 87

Kekenadze, Giorgi Discovering Nemo: A Document Production in International

Commercial Arbitration,
Budapest (2016)
cited as: Kekenadze
in para. 83

Kheng, Oon Chee Drafting Effective Dispute Resolution Clauses: Some

 Considerations,
Kuala Lumpur (2004)
cited as: Kheng
in para. 33

Kotuby, Charles T. Sobota, Luke A. Transnational Disputes, Oxford (2017)

General Principles of Law and International Due cited as: Kotuby/Sobota
Process, Principles and Norms Applicable in in para. 85

Kröll, Stefan Ergänzung und Anpassung von Verträgen durch Schiedsgerichte, Eine
Untersuchung zum deutschen und englischen Recht,
Bonn (1998)
cited as: Kröll
in paras. 7, 8

Kröll, Stefan for the International Sale of Goods (CISG),

Mistelis, Loukas A. Perales Viscasillas, María 2nd ed., Munich (2018)
del Pilar cited as: Kröll/Mistelis/Perales Viscasillas –
Commentary on the UN Convention on Contracts Author in para. 53

XLVIII

ALBERT LUDWIG UNIVERSITY OF FREIBURG

Lew, Julian D.M. Mistelis, Loukas A. Kröll, Arbitration, Alphen aan den Rijn (2003)
Stefan cited as: Lew/Mistelis/Kröll
Comparative International Commercial in paras. 6, 8

Lindström, Niklas Changed Circumstances and Hardship in the International Sale of Goods,
in: Nordic Journal of Commercial Law, Issue 1 (2006),
pp. 1-29
cited as: Lindström, NJCL, 2006
in para. 60

Mandri-Perott, Cledan Stiggers, David cited as: Mandri-Perott/Stiggers

Public Private Partnerships in the Water Sector, in para. 33
London (2013)

Marghitola, Reto Document Production in International Arbitration, Alphen

aan den Rijn (2015)
 cited as: Marghitola
in para. 80

Maskow, Dietrich Hardship and Force Majeure,

in: American Journal of Comparative Law, Vol. 40 (1992)
pp. 657–669
cited as: Maskow, Am. J. Comp. L., 1992
in para. 43

Matray, Lambert National Report for Belgium 1980-1986, in: ICCA Yearbook
Commercial Arbitration, Vol. 5 (1980)
pp. 1–27
cited as: Matray, Yearbook Commercial Arbitration, 1980
in para. 7

XLIX

ALBERT LUDWIG UNIVERSITY OF FREIBURG

McKendrick, Ewan (ed.) cited as: McKendrick – Author
in para. 43

A Guide to the HKIAC Arbitration Rules, Oxford

Moser, Michael J. Bao, Chiann (2017)
Force Majeure And Frustration of Contract, 2nd cited as: Moser/Bao, HKIAC Commentary in
ed., London (1995) paras. 74, 78, 89, 90

Moses, Margaret L. The Principles and Practice of International Commercial

Arbitration,
1st ed., Cambridge (2008)
cited as: Moses
in para. 15

Nariman, Fali Sam National Report for India 2015

in: Jan Paulsson, Lise Bosman (eds.), ICCA International
Handbook on Commercial Arbitration
Binder III, INDIA,
pp. 1–62
 cited as: Nariman, National Report India 2015, ICCA
in para. 7

Nazzini, Renato The Law Applicable to the Arbitration Agreement: Towards

Transnational Principles,
in: International and Comparative Law Quarterly, Vol. 65 (2016)
pp. 681–703
cited as: Nazzini, ICLQ, 2016
in para. 28

ALBERT LUDWIG UNIVERSITY OF FREIBURG

Oppetit, Bruno L'adaptation des contrats internationaux aux changements de
circonstances: La clause de hardship
in: Journal de droit international “Clunet”, Vol. 101 (1974),
pp. 794–814
cited as: Oppetit, Clunet, 1974
in para. 33

Peter, Wolfgang Arbitration and Renegotiation of International Investment

Agreements,
2nd ed., The Hague (1995)
cited as: Peter
in paras. 7, 8, 24

Peter, Wolfgang International Investment Agreements – Types, Arbitration and

Renegotiation,
in: Fritz Nicklisch (ed.), The Complex Long-Term Contract,
Heidelberg (1987),
pp. 119–150
cited as: Peter, in: Nicklisch, Long-Term Contract
in para. 7
 Pilkov, Konstantin Evidence in International arbitration: Criteria for Admission and
Evaluation,
in: Arbitration, the international journal of arbitration, mediation
and dispute management, Vol. 80 (2014), No 2,
pp. 147–155
cited as: Pilkov, Arbitration, 2014
in para. 83

Piltz, Burghard Bredow, Jens cited as: Piltz/Bredow in para. 41

Incoterms: Kommentar, Munich (2018)

LI

ALBERT LUDWIG UNIVERSITY OF FREIBURG

Poudret, Jean-Francois Besson, Sébastien in paras. 8, 15, 28, 33

The Production of Documents in International

Arbitration – A Commentary on Article 3 of the
Raeschke-Kessler, Hilmar New IBA Rules of Evidence, in: Arbitration
Comparative Law of International Arbitration, International, Vol. 18 (2002), No 4, pp. 411–430
2nd ed., London (2007) cited as: Raeschke-Kessler, Arb. Int., 2002
cited as: Poudret/Besson in para. 83

Ramberg, Jan ICC Guide to Incoterms® 2010, Understanding and practical usage,
ICC Publication No. 720E,
Paris (2011)
cited as: ICC Guide Incoterms 2010
in paras. 37, 41

Reisman, W. Michael Freedman, Eric. E. in: The American Journal of International Law,
The Plaintiff’s Dilemma: Illegally Obtained Vol. 76 (1982) pp. 737–753
Evidence and Admissibility in International cited as: Reisman/Freedman, Am. J. Int. L., 1982
Adjudication in para. 79

Rimke, Joern Force majeure and hardship: Application in international trade practice with
specific regard to the CISG and the UNIDROIT
Principles of International Commercial Contracts,
 in: Pace Review of the Convention on Contracts for the
International Sale of Goods 1999-2000,
pp. 197–243
cited as: Rimke, Pace Rev CISG, 1999/2000
in paras. 48, 53

LII

ALBERT LUDWIG UNIVERSITY OF FREIBURG

Rubino-Sammartano, Mauro cited as: Rubino-Sammartano
rd
International Arbitration Law and Practice, 3 in para. 33
ed., Huntington (2014)

Sanders, Pieter Quo Vadis Arbitration?: Sixty Years of Arbitration Practice, The
Hague (1999)
cited as: Sanders
in para. 7

Sattar, Sameer Document production and the 2010 IBA Rules on the Taking of Evidence
in International Arbitration: A Commentary,
in: International Arbitration Law Review (2011)
cited as: Sattar, Int. Arb. L. Rev., 2011
in para. 83

Schlechtriem, Peter Schroeter, Ulrich G. in paras. 53, 61, 65

Commentary on the UN Convention on the

International Sale of Goods (CISG),
Schlechtriem, Peter Schwenzer, Ingeborg (ed.) 4th ed., Oxford (2016)
Internationales UN-Kaufrecht, cited as: Schlechtriem/Schwenzer – Author
th
5 ed., Tübingen (2013) in paras. 39, 50, 59, 60, 68
cited as: Schlechtriem/Schroeter

Schlosser, Peter Das Recht der internationalen privaten Schiedsgerichtsbarkeit, 2nd ed.,
Tübingen (1989)
cited as: Schlosser
in para. 82
 LIII

ALBERT LUDWIG UNIVERSITY OF FREIBURG

Schmidt, Karsten (ed.) Münchener Kommentar zum Handelsgesetzbuch, Vol. 5, §§
343-406 HGB, CISG,
3rd ed., Munich (2013)
cited as: MüKo HGB – Author
in paras. 60, 65

Schmitthoff, Clive M. Cheng, Chia-Jui (ed.) (1988)

Clive M. Schmitthoff’s Select Essays on cited as: Schmitthoff
International Trade Law, Alphen aan den Rijn in para. 48

Schwenzer, Ingeborg Force majeure and hardship in international sales contracts, in:
Victoria University of Wellington Law Review, Vol. 39
(2008)
pp. 709–725
cited as: Schwenzer, VWULR, 2008
in paras. 43, 54, 65

Schwenzer, Ingeborg Hachem, Pascal Kee, in paras. 43, 48, 53, 54

Christopher
Trade Sanctions and International Sales: An
Inquiry into International Arbitration and
Silveira, Mercedeh Azerdo da Commercial Litigation, Alphen aan den Rijn
Global Sales and Contract Law, (2014)
Oxford (2012) cited as: Silveira
cited as: Schwenzer/Hachem/Kee in para. 60

Southerington, Tom Impossibility of Performance and Other Excuses in International

Trade,
Turku (2001)
cited as: Southerington
in para. 42

LIV

ALBERT LUDWIG UNIVERSITY OF FREIBURG

Thomson, Claude Finn, Annie in: Dispute Resolution Journal, Vol. 62 (2007),
No 2, pp. 1–8
cited as: Thomson/Finn, Dis. Res. J., 2007
in para. 78

Confidentiality
Toulson, R. G. Phipps, C. M. 3rd ed., London (2012)
Confidentiality in Arbitration: A Valid cited as: Toulson/Phipps
Assumption? A Proposed Solution! in para. 79

Trakman, Leon E. Confidentiality in International Commercial Arbitration in:

Arbitration International, Vol. 18 (2002), No 1,
pp. 1–18
cited as: Trakman, Arb. Int., 2002
in para. 78

Ullman, Harold Enforcement of Hardship Clauses in the French and American Legal
Systems,
in: California Western International Law Journal, Vol. 19 (1988),
pp. 81–106
cited as: Ullman, CWILJ, 1988
in para. 48

Vogenauer, Stefan Commentary on the UNIDROIT Principles of International

Commercial Contracts (PICC),
2nd ed., Oxford (2015)
cited as: Vogenauer – Author
in paras. 43, 66

LV

ALBERT LUDWIG UNIVERSITY OF FREIBURG

Waincymer, Jeffrey Procedure and Evidence in International Arbitration,
Alphen aan den Rijn (2012)
 cited as: Waincymer
in para. 87

Wolff, Reinmar (ed.) Commentary on the New York Convention – Convention on the
Recognition and Enforcement of Foreign Arbitral Awards of
10 June 1958,
Munich (2012)
cited as: Wolff – Author
in paras. 6, 82

Zuberbühler, Tobias Hofmann, Dieter Oetiker, Zur internationalen Joint-Venture,

Christian Rohner, Thomas in: Ottoarndt Glossner, Walter Reimers (eds.),
Festschrift for Martin Luther zum 70.
Geburtstag,
Zweigert, Konrad Hoffmann, Bernd von Munich (1976)
IBA Rules of Evidence: Commentary on the IBA pp. 203–211
Rules on the Taking of Evidence in International cited as: Zweigert/Hoffmann, Luther lib. am.
Arbitration, Zurich (2012) in para. 8
cited as: Zuberbühler/Hofmann/Oetiker/Rohner in
para. 80

LVI

ALBERT LUDWIG UNIVERSITY OF FREIBURG

INDEX OF CASES

Austria

Oberster Gerichtshof (Austrian Supreme

Court) 27 February 1985
Case No: OGH 1 Ob 504/85
cited as: OGH, 27 Feb 1985
in para. 33

Belgium

Rechtbank van Koophandel, Hasselt

Vital Berry Marketing NV v Dira-Frost NV
2 May 1995
Case No: AR 1849/94
CISG-online: 371
cited as: Rechtbank van Koophandel, Hasselt, 2 May
1995 in para. 43

Canada

Desputeaux v Éditions Chouette (1987)

Inc. Supreme Court
21 March 2003
Case No: [2003] 1 SCR 178
cited as: Desputeaux v Éditions Chouette, 21 Mar
2003 in para. 9

LVII

ALBERT LUDWIG UNIVERSITY OF FREIBURG

France

Cour de Cassation
30 Jun 2004
Case No: 964
CISG-online: 870
cited as: Cour de Cassation, 30 Jun
2004 in para. 43

Cour d’Appel de Colmar

12 June 2001
CISG-online: 694
cited as: Cour d'Appel de Colmar, 12 Jun
2001 in para. 43

Germany

Bundesgerichtshof
8 May 2014
Case No: III ZR 371/12
cited as: BGH, 8 May 2014
in para. 13

Oberlandesgericht Hamburg
28 February 1997
Case No: 1 U 167/95
CISG-online: 261
cited as: OLG Hamburg, 28 Feb
1997 in para. 43

LVIII

ALBERT LUDWIG UNIVERSITY OF FREIBURG

International

Jurisdiction of the European Commission of the Danube Between Galatz and Braila
International Court of Justice
8 December 1927
cited as: Danube Commission, 8 Dec 1927
in para. 79

Italy

Nuova Fucinati S.p.A. vs. Fondmetall International A.B.

Tribunale Civile de Monza
14 January 1993
Clout No: 54
CISG-online: 540
cited as: Nuova Fucinati v Fondmetall International, 14 Jan
1993 in para. 54

The Netherlands

Owerri Commercial Inc v Dielle Srl

Gerechtshof The Hague
4 August 1993
cited as: Owerri Commercial v Dielle, 4 Aug 1993
in para. 28

Petrasol BV v Stolt Spur Inc

Arrondissementsrechtbank Rotterdam
28 September 1995
cited as: Petrasol v Stolt Spur, 28 Sep 1995
in para. 22

LIX

ALBERT LUDWIG UNIVERSITY OF FREIBURG

United Kingdom

Fiona Trust & Holding Corporation v Yuri Privalov

Also known as: Premium Nafta Products v Fili Shipping Co Ltd
House of Lords
17 October 2007
Case No: [2007] UKHL 40
cited as: Fiona Trust v Privalov, 17 Oct 2007
in para. 33

Attorney General v Guardian Newspaper (“Spycatcher”)

House of Lords
13 October 1988
cited as: Attorney General v Guardian Newspapers, 13 Oct
1988 in para. 79

Sulamérica Cia Nacional De Seguros S.A. and others v Enesa Engenharia S.A.
Court of Appeal
16 May 2012
Case No: A3/2012/0249
cited as: Sulamérica v Enesa Engenharia, 16 May 2012
in paras. 26, 28

CvD
Court of Appeal
5 December 2007
Case No: [2007] EWCA Civ 1282
cited as: C v D, 5 Dec 2007
in paras. 22, 28

LX

ALBERT LUDWIG UNIVERSITY OF FREIBURG

Dolling-Baker v Merrett and Anor
Supreme Court of Judicature, Court of Appeal
21 March 1990
Case No: 3514
cited as: Dolling-Baker v Merrett, 21 Mar 1990
in para. 78

Buttes Gas and Oil Co. and Another v Hammer and Another (No
3) Court of Appeal
20 June 1980
Case No: [1981] Q.B. 223
cited as: Buttes Gas and Oil Co v Hammer No 3, 20 Jun
1980 in para. 81

International Tank and Pipe S.A.K. v Kuwait Aviation Fuelling Co.

K.S.C. Court of Appeal
9 October 1974
Case No: [1975] Q.B. 224
cited as: International Tank & Pipe v Kuwait Aviation Fuelling, 9 Oct 1974
in para. 13

F and G Sykes (Wessex) v Fine Fare Ltd

Court of Appeal
1967
Case No: [1967] 1 Lloyd's Rep. 53
cited as: F and G Sykes v Fine Fare, 1967
in para. 33

Habas Sinai Ve Tibbi Gazlar Istihsal Endustrisi v VSC Steel Company Ltd.
High Court of Justice
19 December 2013
Case No: 2012-1055
cited as: Habas Sinai v VSC Steel, 19 Dec 2013
in para. 26

LXI

ALBERT LUDWIG UNIVERSITY OF FREIBURG

Arsanovia Limited & Ors v Cruz City 1 Mauritius
Holdings High Court of Justice
20 December 2012
Case No: 111809
cited as: Arsanovia v Cruz City, 20 Dec 2012
in para. 26

Abuja International Hotels Ltd v Meridien

SAS High Court of Justice
20 January 2012
Case No: [2012] EWHC 87 (Comm)
cited as: Abuja International Hotels v Meridien, 20 Jan
2012, in para. 28

Shashoua & Ors v Sharma

High Court of Justice
7 May 2009
Case No: [2009] 1 C.L.C. 716
cited as: Shashoua & Ors v Sharma, 7 May
2009 in para. 22

XL Insurance Ltd v Owens Corning

High Court of Justice
28 July 2000
Case No: 2000 Folio 694
cited as: XL Insurance v Owens Corning, 28 Jul
2000 in para. 22

Egon Oldendorff v Libera Corp (No 2)

High Court of Justice
16 November 1995
Case No: [1996] C.L.C. 482
cited as: Oldendorff v Libera (No 2), 16 Nov
1995 in para. 24

LXII

ALBERT LUDWIG UNIVERSITY OF FREIBURG

Black Clawson International Ltd v Papierwerke Waldhof-Aschaffenburg AG
High Court of Justice
3 March 1981
Case No: [1981] 2 Lloyd’s Rep. 446
cited as: Black Clawson v Papierwerke, 3 Mar 1981, p. 453
in para. 15

United States of America

Precision Instrument Manufacturing Co v Automotive Maintenance Machinery

Co United States Supreme Court
23 April 1945
Case No: 324 U.S. 806
cited as: Precision v Automotive, 23 Apr 1945
in para. 77

Bein v Heath
United States Supreme Court
1848
Case No: 47 U.S. 228
cited as: Bein v Heath, 1848
in para. 77

Singapore

BCY v BCZ
Singapore High Court
9 November 2016
Case No: [2016] SGHC 249
cited as: BCY v BCZ, 9 Nov 2016
in para. 26

LXIII

ALBERT LUDWIG UNIVERSITY OF FREIBURG

FirstLink Investments Corp Ltd v GT Payment Pte Ltd and
others Singapore High Court
19 June 2014
Case No: [2014] SGHCR 12
cited as: FirstLink Investments v GT Payment, 19 Jun 2014
in paras. 15, 22, 24

AAY and others v AAZ

Singapore High Court
15 June 2009
Case No: [2009] SGHC 142
cited as: AAY v AAZ, 15 Jun 2009
in para. 81

Sweden

Bulgarian Foreign Trade Bank Ltd v AI Trade Finance Inc

Swedish Supreme Court
27 October 2000
Case No: T 1881-99
cited as: Bulbank v AI Trade Finance, 27 Oct 2000
in para. 22

Switzerland

N.V. Belgische Scheepvaartmaatschappij-Compagnie Martime Belge v N.V. Distrigas

19 December 2001
Case No: 4P.114/2001
cited as: Compagnie Maritime Belge v Distrigas, 19 Dec 2001
in para. 9

LXIV

ALBERT LUDWIG UNIVERSITY OF FREIBURG

INDEX OF AWARDS

Ad Hoc

3 August 2005
Methanex Corporation v United States of America
cited as: Methanex v USA, 2005
in para. 75

BCCI (Bulgarian Chamber of Commerce and Industry)

12 February 1998
Case No: 11/1996
CISG-online: 436
cited as: BCCI, 12 Feb 1998
in para. 43

CIETAC (China International Economic & Trade Arbitration Commission)

10 May 1996
Case No: CISG/1996/21
CISG-online: 1067
cited as: CIETAC, 10 May 1996
in para. 43

ICC

ICC Award No 9480

July 1998
cited as: ICC No 9480
in para. 15

LXV

ALBERT LUDWIG UNIVERSITY OF FREIBURG

ICC Award No 4604
1985
cited as: ICC No 4604
in para. 8
ICSID (International Centre for Settlement of Investment Disputes)

29 August 2008
Case No: ARB/05/13
EDF (Services) Limited v Romania,
Procedural Order No 3
cited as: EDF v Romania, PO No 3, 2008
in para. 75

12 May 2005
Case No: ARB/01/8
CMS Gas Transmission Company v The Argentine
Republic cited as: ICSID, CMS Gas v Argentine, 2005
in para. 43

23 June 2008
Case No: Arb/06/8
Libananco Holdings Co Limited v Republic of
Turkey, Decision on Preliminary Issues
cited as: Libananco v Turkey, Preliminary Award,
2008 in paras. 75, 79

LXVI

ALBERT LUDWIG UNIVERSITY OF FREIBURG

CERTIFICATE
We hereby confirm that this Memorandum was written only by the persons whose names are
listed below and who signed this certificate. We also confirm that we did not receive any
assistance during the writing process from any person that is not a member of this team.

Our university is competing in both the Vis East Moot and the Vienna Vis Moot. We are
submitting two separately prepared, different Memoranda.

Marc Bovermann Julien Feurer

Lukas Gottschling

Julia Schmidt Hauke Schneider

David Willfort Anna

Maria Yang-Jacobi

LXVII

Certificate and Choice of Forum

To be attached to each Memorandum

I Nicole Grohmann, on behalf of the Team for the Albert-Ludwigs-Universität Freiburg

hereby certify that the attached memorandum was prepared by the members of the
student team, and that no person other than a student team member has participated
in the writing of this Memorandum.

Check off the boxes as appropriate:

c□ Our School will be participating only in the Vis East Moot and is not competing in
the Vienna Vis Moot.

c□ Our School is competing in both Vis East Moot and Vienna Vis Moot.
c□ We are submitting two separately prepared, different Memoranda to Vis
East Moot and to Vienna Vis Moot.
Or

c□ We are submitting the same Memorandum to both Vis East Moot and
Vienna Vis Moot, and we choose to be considered for an Award in
(check one box)

c□Vis East Moot in Hong Kong, or

c□ Vienna Vis Moot

Authorised Representative of the Team for the Albert-Ludwigs-Universität Freiburg

Name Nicole Grohmann

Signature _________________________________

LXVIII