Memorandum For Respondent

EIGHTEENTH ANNUAL
WILLEM C. VIS INTERNATIONAL COMMERCIAL ARBITRATION MOOT
MEMORANDUM FOR RESPONDENT
Against:
On Behalf of:
Mediterraneo Trawler Supply SA,
Equatoriana Fishing Ltd.,
CLAIMANT
RESPONDENT
Mediterraneo
Equatoriana
TAYLOR BARTLETT PATRYCJA BIENIEK NICHOLAS KAZAZ

AYA MATAR ROZEMARIJN VERNOOIJ ABBIGAIL WEBB
TABLE OF ABBREVIATIONS
Paragraph(s)
Number
AG
Amtsgericht (German District Court)
All E.R.
All England Law Reports
Amended Defence
Amended Statement of Defence
ARB
Arbitration
Art. / Arts.
Article / Articles
BG
Bundesgericht (Supreme Court)
BGH
Bundesgerichtshof (Supreme Court, Germany)
CAM ####/#
Chamber of Arbitration of Milan documents (as referenced)
CAM
Chamber of Arbitration of Milan
CAMR
Chamber of Arbitration of Milan Rules of Arbitration
CEO
Chief Executive Officer
CIETCA
International Bar Association
Cir.
Circuit
CISG
United Nations Convention on Contracts for the

International Sales of Goods, Vienna, 1980
Cl.
Claimant
CLOUT
Case Law on UNCITRAL Texts
CLR
Commonwealth Law Reports
CONF
Conference
Contra Preferentem
Against the one bringing forth
Defence
Statement of Defence
Doc
Document
ed / eds
editor / editors
ed.
Edition
et al.
and others
EWCA Civ
England and Wales Court of Appeal (Civil Division)
Ex.
Exhibit
F.3d
Federal Reports Third Edition
HG
Handelsgericht (Commercial Court)
IBA
International Bar Association
i.e.
id est (that is)
ICC
International Chamber of Commerce
ICSID
International Centre for Settlement of Investment Disputes
LG
Landgericht (District Court, Germany)
ii
Ltd.
Limited
NE
North East
No.
Number
NY
New York
OED
Oxford English Dictionary
OLG
Oberlandesgericht (Provincial Court of Appeal)
OG
Oberster Gerichtshof (Supreme Court)
Pacta sunt servanda
Agreement must be kept
PO#
Procedural Order Number
PRC
Peoples Republic of China
QB
Queens Bench
R.
Respondent
Supra
Above
Rep.
Reports
Sc.
Sales Confirmation
TGI
Tribunal De Grande Instance de Paris
UN
United Nations
UNCITRAL
United Nations Commission on International Trade Law
USA
United States of America
USD
United States Dollars
v.
versus (against)
iii
INDEX OF AUTHORITIES
TREATIES, CONVENTIONS AND LAWS
CISG
United Nations Convention on Contracts for the International

Sale of Goods, Vienna 1980
passim
New York Convention
Convention on the Recognition and Enforcement of Foreign

Arbitral Awards, New York, 1958
14, 20
Danubian Law
UNCITRAL Model Law on International Commercial

Arbitration, 1985 with 2006 Amendments
passim
RULES
AAA
American Arbitration Association Commercial Arbitration Rules,

2009
10, 47
ACICA
Australian Centre for International Commercial Arbitration Rules,

2005
10
Argentine Code
Argentine Code of Civil Procedure

10
CAMR 2004
Arbitration Rules of the Chamber of Arbitration Milan 2004

passim
CAMR 2010
Arbitration Rules of the Chamber of Arbitration Milan 2010

passim
CAM Website 1
http://www.camera-arbitrale.it/risolvi.php?sez_id=63&lng_id=14
22, 44
CAM Website 2
http://www.camera-arbitrale.it/risolvi.php?sez_id=104&lng_id=14
30
CIETAC
China International Economic & Trade Arbitration Commission

Arbitration Rules, 2005
10
iv
Code of Ethics
Chamber of Arbitration of Milan Code of Ethics

24, 30
EAA 1996
English Arbitration Act 1996

10, 46, 57
HKIAC
Hong Kong International Arbitration Centre Administered

47
Hungarian Arbitration Act
Hungarian Arbitration Act 1994

9
IBA Guidelines
IBA Guidelines on Conflicts and Interests of International

Arbitration, Approved by Council of the International Bar
Association 22 May 2004
32, 33, 34
ICDR
International Centre for Dispute Resolution International

11
ICC
Rules of Arbitration of the International Chamber of Commerce,

1998
passim
Italian Code
Italian Code of Civil Procedure

10
KLRCA
Kuala Lumpur Regional Centre for Arbitration Rules for

Arbitration, 2010
47
LCIA
Rules of the London Court of International Arbitration, 1998

46
SCC
Stockholm Chamber of Commerce Arbitration Rules, 2010

10
SIAC
Singapore International Arbitration Centre Rules, 2010

47
Swiss Rules Art. 3.2
Swiss Rules of International Arbitration, effective as of January

2006
46
WIPO Rules
World Intellectual Property Organization Arbitration Rules, 2002

47
AUTHORITIES
Advisory Council Opinion
CISG Advisory Council Opinion No. 2 Examination of the

Goods and Notice of Non-Conformity Articles 38 and 39,
available at: http://www.cisg.law.pace.edu/cisg/CISG-ACop2.html
93
Bianca/Bonell
Cesare Massimo Bianca and Michael Jochim Bonell (eds.),

Commentary on the International Sales Law: The 1980 Vienna Sales
Convention (Milan: Giuffg, 1987)
76, 90
Born
Gary B. Born, International Commercial Arbitration (3rd ed., New York:

Kluwer Law International, 2009)
2, 7, 15, 40, 57, 62
Bucher/Tschanz
Andrea Bucher and Pierre-Yves Tschanz, International Arbitration in

Switzerland (Basel: Helbing & Lichtenbahn, 1988)
9
Buschtns
Corinna Buschtns, Damages under the CISG; Selected Problems (2005)

Minor Dissertation, School of Advanced Law of the University of
Cape Town
107
Coppo
Benedetta Coppo, The 2010 Revision of the Arbitration Rules of

the Chamber of Arbitration of Milan (2010) 14(2) The Vindobona
Journal of International Commercial Law and Arbitration 283-96
32, 47
Derains/Kreindler
Yves Derains and Richard H. Kreindler (eds.), Evaluation of Damages

in International Arbitration (Paris: ICC Publication No. 668, 2006)
62
Di Matteo et al
Larry A. Di Matteo, The Interpretive Turn in International Sales

Law: An Analysis of Fifteen Years of CISG Jurisprudence (2004)
vi
34 (Winter) Northwestern Journal of International Law and Business 299440

76, 105
Dundas
Hew R. Dundas, Condidentiality in English English Arbitration:

The Final Word? Emmott v. Micbael Wilson & Parters Ltd., (2008)
74 Arbitration 458-455
57
Enderlein/Maskow
Fritz Enderlein and Dietrich Maskow, International Sales Law, United

Nations Convention on Contracts for the International Sale of Goods,
Convention on the Limitation Period in the International Sale of Goods
(Oceana Publications, 1992)
109
Fortier
L. Yves Fortier, The Occasionally Unwarranted Assumption of

Confidentiality (1999) 15(2) Arbitration International 131-40
57
Fouchard/Gaillard/Goldman
Emmanuel Gaillard and John Savage (eds.), Fouchard, Gaillard,

Goldman on International Commercial Arbitration (The Hague: Kluwer
Law International, 1999)
15, 18, 31, 45
Graffi
Leonardo Graffi, Case Law on the Concept of Fundamental

Breach in the Vienna Sales Convention, (2003) 3 International
Business Law Journal 338-349
106
Hamilton/Vasquez
Calvin A. Hamilton and Eva M. Vasquez, Madrid Update: Due

Process in the Notification of Arbitral Awards (2007) 22(27)
Mealeys International Arbitration Report
31
Henschel
Ren F. Henschel, The Conformity of Goods in International Sales: An

analysis of Article 35 in the United Nations Convention on Contracts for the
International Sale of Goods (CISG) (Copenhagen: Forlaget Thomson
A/S, 2005)
83
Holtzmann/Neuhaus
Howard M. Holtzmann and Joseph E. Neuhaus, A Guide to the

UNCITRAL Model Law on International Commercial Arbitration:
vii
Legislative History and Commentary (Boston: Kluwer Law

International, 1989)
15
Honnold
John Honnold, Uniform Law for International Sales Under the 1980
United Nations Convention (4th ed., Alphen aan de Reijn: Kluwer Law
Interniational, 2009)
65
Huber/Mullis
Peter Huber and Alastair Mullis, The CISG: A New Textbook for
Students and Practitioners (Mnchen: Sellier European Law
Publishers, 2007)
99, 106
Hwang/Chung
Michael Hwang and Katie Chung, Defining the Indefinable:

practical problems of confidentiality in arbitration, (2009) 26(5)
Journal of International Arbitration 609645
57
Leisinger
Leisinger K. Benjamin, Fundamental Breach Considering Non-conformity

of the Goods, (Mnchen: Sellier European Law Publishers, 2007)
79
Lookofsky/Bernstein
Joseph Lookofsky and Herbet Bernstein, Understanding the CISG in

Europe (Alphen aan de Reijn: Kluwer Law International, 2003)
67
Liu
Chengwei Liu Price Reduction for Non-Conformity: Perspectives

from the CISG, UNIDROIT Principles, PECL and Case Law
[2nd edition: Case annotated update, March 2005] available at:
http://www.cisg.law.pace.edu/cisg/biblio/chengwei2.html
102
Magnus
Ulrich Magnus, in Kommentar zum UN-Kaufrecht 988 (H. Honsell ed.,

1997)
83
Mistelis/Lew
Julian D. Lew, Loukas A. Mistelis, and Stefan M. Krll, Comparative

International Commercial Arbitration (The Hague: Kluwer Law
International, 2003)
10
viii
Model Law Notes
Explanatory Notes by the UNCITRAL, secretariat on the 1985

Model Law on International Commercial Arbitration as amended
in 2006
19, 59
Opie
Elisabeth Opie, Commentary on the manner in which the

UNIDROIT Principles may be used to interpret or supplement
Article 77 of the CISG (2005)
<http://www.cisg.law.pace.edu/cisg/principles/uni77.html>
107
Peacock
Darren Peacock, Avoidance and the Notion of Fundamental

Breach Under the CISG: An English Perspective
106
Paulsson
Jan Paulsson and Nigel Rawding, The Trouble with

Confidentiality (1995) 11(3) Arbitration International 303-320
48, 50
Partasides
Constantine Partasides, BulBank The Ginal Act (2000) 15(12)

Mealeys International Arbitration Report 74
59
Poikela
Teija Poikela, Conformity of Goods in the 1980 United Nations

Convention of Contract for the International Sale of Goods
(2003) 1 Nordic Journal of Commercial Law 1-68
76
Posch/Petz
Willibald Posch and Thoma Petz, Austrian Cases on the UN

Convention on Contracts for the International Sale of Goods
(2002) 6 Vindobona Journal of International Commercial Law and
Arbitration 1-26
107
Poudret/Besson
Jean-Francois Poudret and Sebastien Besson, Comparative Law on

International Arbitration (2nd ed., London: Sweet and Maxwell, 2007)
46, 56
Pryles
Michael Pryles, Confidentiality in The Leading Arbitrators' Guide

to International Arbitration 415 (L. Newman and R. Hill eds., Juris
ix
Publishing, 2004)
47, 57
Redfern/Hunter
Alan Redfern, Martin Hunter with Nigel Blackaby and Constantine

Partasides, Redfern and Hunter on International Arbitration (5th ed.,
Oxford University Press, 2009)
3, 5, 15,17, 18, 19, 31, 32, 33, 34, 40, 45, 46, 57
Riznik
Peter Riznik, Article 77 CISG: Some Aspects of Mitigation in

International Sale of Goods (2010) 14(2) The Vindobona Journal of
International Commercial Law and Arbitration 267-283
107
Schlechtriem (2005)
Peter Schechtriem (ed.), Commentary on the UN Convention on the

International Sale of Goods (2rd ed., Oxford University Press, 2005)
78, 106, 109
Schlechtriem (2010)
Peter Schechtriem (ed.), Commentary on the UN Convention on the

International Sale of Goods (3rd ed., Oxford University Press, 2010)
67, 70, 74, 75, 78, 81, 83, 85, 86, 88, 90, 93,94,107
Schwebel
Stephan M. Schwebel, International Arbitration: Three Salient

Problems (Cambridge: Grotius Publications, 1987)
15
Shihata/Parra
Ibrahim Shihata and Antonio Parra, The Experience of the

International Centre for Settlement of Investment Disputes (1999)
14 ICSID Review Foreign Investment Law Journal, 299, 326
2
Sivesand
Hannah Sivesand, The Buyers Remedies for Non-Conforming

Goods: Should There Be Free Choice Are Restrictions Necessary?
(Sellier European Law Publicers 2006)
102
Secretariat Commentary on Art.# Commentary on the Draft Convention on Contracts the

International Sale of Goods prepared by the International Sale of
Goods prepared by the Secretariat, UN DOC. A/CONF. 97/5,
1978
65, 76, 105, 109
UNCITRAL Digest Arts. #
UN General Assembly, UNCITRAL Digest of Case Law on the

United Nations Convention on the International Sale of Goods,
<http://www.uncitral.org/uncitral/en/case_law/digests/ (8 June
2004)
90
Various Authors Choice Rules
Arbitral procedure: choice of rules Arbitration Law Monthly

(2010) Jun/Jul, 1-2
45
Will
Micheal R. Will in Commentary on the International Sales Law:

The 1980 Vienna Sale Convention, Cesare Massimo Bianca &
Michael Joachim Bonell eds., Milan (1987)
102
Yesilirmak
Ali Yesilirmak, Provisional Measures in International Commercial

Arbitration (Kluwer Law International, 2005)
9
Zeller
Bruno Zeller, Comparison between the provisions of the CISG on mitigation

of damages (Art. 77) and the counterpart provisions of the Principles of
European Contract Law (Art 9:505) Working Paper, Pace Law
School, New York USA (28 April 2005)
107
JUDICIAL DECISIONS
Australia
Esso v. Plowman
Esso Australia Resources Ltd. & ors v. Plowman Ltd. & ors
[1995] 183 CLR 10
58, 59
Austria
OLG Austria 1/7/1994
Oberlandesgericht Innsbruck, Austria 1 July 1994

63
Oberlandesgericht Graz, Austria, 9 November 1995

70
Oberlandesgericht Linz, Austria, 23 January 2006

67
OG Austria 6/2/1996
Oberster Gerichtshof, Austria, 6 February 1996

107
OG Austria 15/10/1998
Oberster Gerichtshof Austria, 15 August 1998
xi
70
Oberster Gerichtshof, Austria, 11 March 1999

78
Oberster Gerichtshof, Austria, 27 August 1999

90
Oberster Gerichtshof Austria, 14 January 2002

110
England
Ali Shipping Case
Ali Shipping v Shipyard Trogir [1999] 1 W.L.R. 314

57
Balli Trading Case
China Agribusiness Development Corporation v. Balli Trading

[1998] 2 Lloyds Rep. 76, 79
45
Banco Central Case
Offshore International SA v. Banco Central S.A. [1976] 2 Lloyds

Rep. 402
45
Bunge v. Kruse
Bunge S.A. v. Kruse [1979] 1 Lloyds Rep. 279

45
Emmott v. Wilson
Emmott v. Michael Wilson & Partners Ltd [2008] EWCA Civ 184
57
Fiona Trust Case
Premium Nafta Products Ltd. v. Fili Shipping Company Ltd.

[2007] UKHL 40
40
Hong Kong Fir Case
Hong Kong Fir Shipping Co Ltd v. Kawasaki Kisen Kaisha Ltd

[1962] 1 AlL ER 474
106
Mertens & Co. v. Veevoeder
Mertens & Co. P.V.B.A. v. Veevoeder Import Export Vimex B.V.

[1979] 2 Lloyds Rep. 372
45
France
French Case
Unknown parties, Cour dAppel de Colmar 12 June 2001

111
xii
French Case II
Unknown parties, Cour de Cassation, Commercial Chamber, 24

September 2003
61
Giustoma v. Perfect Circle
Socit Giustina International v. Socit Perfect Circle Europe,

Cour dappel Versailles 29 January 1998
106
Germany
LG Ger. 27/2/2002
Landgericht Mnchen, Germany, 27 February 2002

79
LG Ger. 12/12/2006
Landgericht Cobrug, Germany, 12 December 2006

83
OLG Ger. 17/9/1991
Oberlandesgericht, Frankfurt, Germany, 17 September 2001

106
OLG Ger. 11/9/1998
Oberlandesgericht, Koblenz, Germany, 11 September 1998

83
OLG Ger. 11/3/1999
Oberlandesgericht, Munchen, Germany, 11 March 1998

78
OLG Ger. 3/6/1998
Oberlandesgericht, Saarbrucken, Germany, 3 June 1998

95
Italy
Vertsicherungen v. Atlarex
Rheinland Vertsicherungen v. Atlarex, Tribunale di Vigevano 12

July 2000
88
Malaysia
Malaysian Newsprint v Bechtel
Malaysian Newsprint Industries Sdn Bhd v Bechtel International

Inc & another (2008) 5MLJ 254
57
Netherlands
Netherlands 14/10/1999
SA Ren Vidal & Cie v. Verotex Industries BV, Rechtbank

Rotterdam, NIPR 2000, no.29, 14 October 1999
76
xiii
Peoples Republic of China

Hang Tat v. Rizhao
Hang Tat Foods USA Inc. v. Rizhao Aquatic Products Group &
Rizhao Rirong Aquatic Products Ltd. Co., Rizhao Intermediate
People's Court, Shandong Province, 17 December 1999
109
Russia
Russia 6/6/2000
Arbitration proceeding 406 /1998, 6 June 2000

107
Singapore
Car & Cars Case
Car & Cars Pte Ltd v. Volkswagen AG [2009] SGHC 233 (HC
(Sing))
45
Slovakia
Elastic Clothing Case
Supreme Court Zilina, Slovak Republic, 15 Cb/14/2005, 27 June

2007
92
Sweden
Bulbank Case
Bulgarian Foreign Trade Bank Ltd. v. A.I. Trade Finance Inc.,

Supreme Court Stockholm, Case no. T 1881 99, 27 October 2000
58, 59
Switzerland
ZG Switz. 21/12/1992
Civil Court Basel, Switzerland, 21 December 1992

70
HG Switz. 03/12/2002
Commercial Court (Handelsgericht) St. Gallen, Switzerland, 3

December 2002
107
OG Switz. 24/03/1998
Obergericht des Kantons, Zug, Switzerland, 24 March 1998
xiv
110
BG Switz. 7/7/2004
Unknown parties, Schweizerisches Bundesgericht, 7 July 2004

63
United States
Chicago Prime Packers
Packers Chicago Prime Packers, Inc. v. Northam Food

Trading Co., 408 F.3d 894 (7th Cir. 2005) 65
63
Delchi Carrier v. Roterex
Delchi Carrie v. Rotorex Corp. 71 F.3d 1024 (2d Cir. 1995)

76
Encyclopaedia v. Britannica
Encyclopedia Universalis S.A. v. Encyclopedia Britannica, Inc.,

403 F.3d 85 (2nd Cir.(N.Y.) 31 March 2005
17, 20
Panhandle Case
United States v. Panhandle Eastern Corp. et al, 118 F.R.D. 346

(D. Del.1988)
58
US v. Mexico
HSN Capital LLC v Productora y Comercializador de Television,

SA de CV 2007 XXXII Ybk Comm Arb at 774 3-7
18
International Court of Justice

Nicaragua v. US
Nicaragua v. United States, Order of 10 May 1984, [1984] I.C.J. Rep.

169, 179
2
AWARDS
ICSID
ICSID ARB/81/1
Amco Corporation et al v. Republic of Indonesia, Decision on

Request for provisional measures (1983) printed in, 1 ICSID
Reports 410, 412
xv
18
ICSID ARB/97/3
Compaa de Aguas del Aconquija S.A. and Vivendi Universal

S.A. v. Argentine Republic, Award of 21 November 2000, 5
ICSID Rep. 296 (2000), 315
27
ICSID ARB/02/18
Tokios Tokels v. Ukraine, April 2004, printed in 20 ICSID

Review, Foreign Investment Law Journal 205 (2005)
2, 7
ICSID ARB/06/11
Occidental Petroleum Corporation and Occidental Exploration

and Production Company v. Republic of Ecuador, July 2006
11
ICSID ARB/05/22
Biwater Gauff (Tanzania) Limited v. United Republic of Tanzania,

July 2008
2, 7
ICC
ICC No. 2321
ICC International Court of Arbitration Case No. 2321, 1974

18
ICC No. 6653

63
ICC No. 8324

67
ICC No. 8817

107
Other Awards
NAI No. 2319
The Netherlands Arbitration Institute, 15 October 2002

81
xvi
TABLE OF CONTENTS
SUMMARY OF ARGUMENTS ..................................................................................................................... 3
PROCEDURAL REQUEST ........................................................................................................................... 4
I.
THE TRIBUNAL SHOULD ORDER CLAIMANT TO RESPECT ITS DUTY OF CONFIDENTIALITY

A. THE TRIBUNAL'S POWER TO ISSUE THE INTERIM ORDER ON CONFIDENTIALITY IS
NOT BARRED BY ANY MANDATORY PROVISIONS OF DANUBIAN LAW............................................. 5
B. AN INTERIM ORDER ON CONFIDENTIALITY PROTECTING RESPONDENT IS BOTH
URGENT AND PROVISIONAL UNDER ART. 22.2 CAM RULES 2010 ............................................................ 5
(i) The interim order on confidentiality is urgent because Claimants prejudicial actions are likely to be repeated
before the final award .............................................................................................................................................................................. 5
(ii)
An interim order on confidentiality is provisional in nature as it will lapse with the final award ................................ 6
C. CAM RULES 2010 ALLOW FOR 'ALL' TYPES OF INTERIM ORDERS, INCLUDING AN
INTERIM ORDER TO PREVENT A FURTHER BREACH BY CLAIMANT OF ITS DUTY OF
CONFIDENTIALITY ......................................................................................................................................................... 6
D. ANY EVENTUAL AWARD MUST BE KEPT CONFIDENTIAL UNDER THE EXPRESS DUTY
OF CAM RULES 2004 AND 2010 .................................................................................................................................... 6
ARGUMENT ON JURISDICTION .............................................................................................................. 7
II. THE TRIBUNAL WAS CONSTITUTED IN BREACH OF THE ARBITRATION AGREEMENT AND
LACKS JURISDICTION TO HEAR THE PRESENT CASE ........................................................................................ 7
A. CAM BREACHED THE SPECIFIC PROCEDURE OF APPOINTMENT ADOPTED BY THE
PARTIES IN THE ARBITRATION AGREEMENT .................................................................................................. 8
B. EVEN IF CAM RULES SUPERSEDE THE SPECIFIC PROCEDURE OF THE ARBITRATION
AGREEMENT, CAM BREACHED ART. 14 OF ITS RULES ................................................................................. 9
C. NEITHER CAM RULES NOR ANY OTHER RULES OR PROCEDURAL PRINCIPLES
ENTITLED CAM TO REPLACE MR. Y ..................................................................................................................... 10
(i)
(ii)
(iii)
Under CAM Rules 2010 Mr. Y should be the presiding arbitrator.................................................................................... 10

Mr. Y complied with the Code of Ethics .............................................................................................................................. 11
The requirements of due process were respected accordingly ......................................................................................... 11
D. EVEN IF CAM HAD THE AUTHORITY TO REFUSE CONFIRMATION OF MR. Y AS

CHAIRMAN, IT SHOULD NOT HAVE DONE SO BECAUSE MR. Y IS IMPARTIAL AND
INDEPENDENT................................................................................................................................................................ 12
E. RESPONDENT MAY CHALLENGE THE JURISDICTION OF THE TRIBUNAL AS THE TIME
LIMIT SET OUT IN ART. 19 CAM RULES DOES NOT APPLY TO RESPONDENTS CHALLENGE14
COUNTER-CLAIM ON JURISDICTION ................................................................................................... 14
III. CLAIMANT BREACHED ITS DUTY OF CONFIDENTIALITY UNDER CAM RULES AND
RESPONDENT IS ENTITLED TO DAMAGES ........................................................................................................... 14
A. CLAIMANT BREACHED ITS DUTY OF CONFIDENTIALITY BOTH UNDER CAM RULES
AND DANUBIAN LAW .................................................................................................................................................. 15
(i)
Claimant breached its duty of confidentiality under CAM Rules 2010 ............................................................................. 15
(a) CAM Rules 2010 are applicable to the present proceedings ........................................................................................ 15
(b) The duty of confidentiality under Art. 8.1 CAM Rules 2010 was in force when Claimant gave its interview .. 16
(c) Claimant breached the duty of confidentiality by disclosing the existence of the arbitration proceedings to
Commercial Fishing Today ............................................................................................................................................................ 16
(d) Further or alternatively, Claimant breached the duty of confidentiality by disclosing the content of the arbitral
proceedings in Commercial Fishing Today ................................................................................................................................. 17
(e) Claimant was not protecting its own rights when it gave the interview .................................................................... 18
(ii)
Even if CAM Rules 2004 apply, Claimant has breached its implied duty of confidentiality under Danubian Law18
(a) Claimant owes an implied duty of confidentiality under Danubian Law .................................................................. 18
(b) Claimant breached its implied duty of confidentiality ................................................................................................... 19
THE ................................................................................................................................................................................... 20
B. TRIBUNAL SHOULD FIND THAT CLAIMANT IS LIABLE FOR DAMAGES ARISING FROM
ITS BREACH OF CONFIDENTIALITY .................................................................................................................... 20
ARGUMENTS ON MERITS ....................................................................................................................... 20
IV. RESPONDENT DID NOT BREACH THE CONTRACT ................................................................................... 20
A.
RESPONDENT DELIVERED SQUID IN ACCORDANCE WITH THE CONTRACT UNDER
xvii
ART. 35(1) CISG .................................................................................................................................................................. 21

(i) Size was never specified in the contract but 2007/2008 catch was ................................................................................. 21
(ii)
Under Arts. 8 and 9 CISG, the terms as per sample and 2007/2008 catch indicate that the parties contracted
for unsized squid..................................................................................................................................................................................... 21
B. RESPONDENT DELIVERED SQUID CONFORMING TO THE MODEL AND IN ANY EVENT

TO THE SAMPLE HELD OUT UNDER ART. 35(2)(C) CISG ............................................................................. 23
(i) The squid shown to Claimant was legally a model and Respondent delivered squid conforming to it ..................... 23
(ii)
Should the Tribunal find that a sample was provided, Respondent was not required to deliver squid that
possessed all of the qualities of the sample ....................................................................................................................................... 24
(iii)
Even if the Tribunal finds that the qualities of the sample are in conflict with the terms of the contract, the
parties intended the catch to be determinative ................................................................................................................................. 24
C. CLAIMANT DID NOT MAKE THE PARTICULAR PURPOSE FOR THE SQUID KNOWN,
THUS CLAIMANT MAY NOT RELY ON ART. 35(2)(B) CISG ........................................................................... 25
(i) Claimant failed to make its particular purpose made known .............................................................................................. 25
(ii)
As Claimant has equal skill and judgement in the fish trade, it could not have relied upon Respondents skill and
judgment ................................................................................................................................................................................................... 26
D. EVEN IF TRIBUNAL FINDS THAT RESPONDENT IS IN BREACH, IT IS EXCLUDED FROM

LIABILITY ........................................................................................................................................................................... 26
(i)
(ii)
Respondent is exempted from liability under Art. 35(3) CISG .......................................................................................... 26

Respondent is excluded from liability because Claimant assumed the risk of receiving unsized squid .................... 26
V. UNDER ARTS. 38 AND 39 CISG, RESPONDENT IS NOT LIABLE FOR THE ALLEGED LACK OF
CONFORMITY AS CLAIMANT FAILED TO PROPERLY AND TIMELY INSPECT AND NOTIFY
RESPONDENT ........................................................................................................................................................................ 27
A.
CLAIMANT FAILED TO CONDUCT A PROPER INSPECTION OF THE DELIVERED SQUID

27
B. EVEN IF CLAIMANT IS FOUND TO HAVE PROPERLY CONDUCTED AN INSPECTION, IT
FAILED TO SPECIFICALLY AND TIMELY NOTIFY RESPONDENT OF THE ALLEGED NONCONFORMITY ................................................................................................................................................................... 29
(i) Claimant waited too long to give notice and such notice was not specific ...................................................................... 29
(ii)
While Claimant sent an e-mail specifying the alleged non-conformity, its reply arrived too late to constitute
proper notification.................................................................................................................................................................................. 29
C. RESPONDENT FULFILLED ITS DUTY TO ASK FOR CLARIFICATION AFTER THE FIRST
VAGUE E-MAIL ................................................................................................................................................................ 30
D. RESPONDENT WAS NOT AWARE OF THE SIZE REQUIREMENT AND THEREFORE ART.
40 CISG CANNOT APPLY .............................................................................................................................................. 30
VI. SHOULD THE TRIBUNAL FIND A BREACH OF CONTRACT, NO REMEDY IS AVAILABLE TO
CLAIMANT ............................................................................................................................................................................... 31
A. CLAIMANT IS NOT ENTITLED TO RESTITUTION OF THE PURCHASE PRICE IN THE
REQUESTED AMOUNT ................................................................................................................................................. 31
(i) Claimant cannot recover the entire purchase price under Art. 50 CISG ......................................................................... 31
(ii)
Claimant is not entitled to the entire purchase price under any other provision of the CISG as there was no
fundamental breach ................................................................................................................................................................................ 32
B. ANY DAMAGES POTENTIALLY AWARDED SHOULD BE REDUCED AS CLAIMANT

FAILED TO MITIGATE LOSS ...................................................................................................................................... 32
(i) Claimant failed to make a reasonable effort to sell for bait the cartons labelled 2007 catch which was of the
appropriate size for bait. ....................................................................................................................................................................... 33
(ii)
Claimant should have made reasonable efforts to sell the squid in foreign markets .................................................... 33
(iii)
Claimant failed to sell the squid for any other purpose than for bait ............................................................................. 34
REQUEST FOR RELIEF ............................................................................................................................ 34
xviii
Claimant
STATEMENT OF FACTS
Mediterraneo Trawler Supply SA, a corporation organised under the laws of
Mediterraneo, buys and sells fish products for both bait and human consumption.
Respondent
Equatoriana Fishing Ltd, a company organised under the laws of Equatoriana, is an

international dealer of fish products for both bait and human consumption.
2007 Season
The squid catch from the Oceanian Islands was below normal and prices increased.
14 April 2008 Claimant knew of the inconsistent size of Danubian squid, but nonetheless wrote to
Respondent inquiring about prices for Danubian squid.
17 May 2008
Respondent sent its representative, Mr. Weeg, to Claimant with a sample of unsized
Danubian squid from the 2007 catch. During that time, Claimant did not mention
the alleged purpose of the squid.
29 May 2008
Claimant was pleased with the sample shown and made an order. Claimant did not
specify any size requirements, ordering unsized squid. Respondent inserted an
arbitration clause and the term 2007/2008 Catch. Claimant did not object.
1 July 2008
Respondent delivered the squid that conformed with all contractual terms. Claimant
inspected the squid and did not raise any objections at that time.
29 July 2008
Almost one month later, Claimant wrote to Respondent complaining that the squid
was hardly usable for bait, its alleged purpose.
3 August
2008
12 August
2008
Respondent replied and requested testing of the squid.
16 August
2008
Claimant wrote to Respondent asking it to reclaim the squid, on the unexpected
18 August
2008
Respondent replied to Claimant, attaching the inspection report which confirmed
20 May 2010
Almost two years after the sale and without any notice, Claimant commenced
The squid was tested by a certified testing agency and found to be of excellent
quality and fit for human consumption.
grounds that it was not of a specific size.
that the squid was in complete conformity with the contract.
arbitration against Respondent and appointed Ms. Arbitrator 1, from Mediterraneo.
22 May 2010
Claimants CEO gave an interview to Commercial Fishing Today, a trade

newspaper distributed in forty-five countries.
24 May 2010
Claimants interview was published. Thereby, the comment that [Respondent] sold
us squid for bait that was completely inappropriate and they knew it was widely
circulated. Respondents outstanding reputation was attacked.
25 May 2010
Respondent received the Request for Arbitration
24 June 2010
Respondent filed its Answer to the Notice of Arbitration and a Statement of

Defence. In accordance with the Arbitration Agreement, Respondent appointed
Professor Arbitrator 2 from Equatoriana.
25 June 2010
In accordance with the Arbitration Agreement, CAM requested Ms. Arbitrator 1

and Professor Arbitrator 2 to appoint a third, presiding, arbitrator. It specifically
drew the arbitrators attention to the IBA Guidelines on Conflict of Interest.
15 July 2010
Ms. Arbitrator 1 and Professor Arbitrator 2 jointly appointed Mr. Y as chairman of

the Tribunal. In accordance with its Code of Ethics, CAM demanded Mr. Y to
disclose any potential conflicts that could give rise to doubts on independence and
impartiality in his Statement of Independence.
19 July 2010
Mr. Y disclosed that he is a partner in a large law firm, Wise, Strong & Clever. Mr.
Samuel Z, one of Claimant advisors, is also a partner in that firm. CAM forwarded
the Parties Mr. Ys Statement of Independence.
26 July 2010
2 August
2010
Claimant and Respondent waived their rights to object to Mr. Ys appointment.

In breach of the Arbitration Agreement and of the Parties' consent, CAM refused
to confirm Mr. Y alleging that he did not comply with the independence
requirements under its own rules. CAM then asked the party-appointed arbitrators
to make a substitute appointment.
13 August
2010
In a letter to CAM, the two party-appointed arbitrators stated that they knew Mr. Y
very well and fully trusted him to conduct the arbitration with competence,
impartiality, and independence and re-affirmed his appointment as chairman.
23 August
2010
In spite of the party-appointed arbitrators' insistence and Mr. Y's full disclosure and
adhesion to the terms of the Arbitration Agreement, CAM chose not to confirm
him. In replacement of Mr. Y, CAM appointed Mr. Horace Z (Mr. Z) as the third
arbitrator.
10
September
2010
20
September
2010
24
September
2010
CAM confirmed Mr. Z as Chairman of the Arbitral Tribunal against the Parties
express will.
Ms. Arbitrator 1, Professor Arbitrator 2, and Mr. Z met and determined that the
Tribunal was constituted.
Respondent filed an amendment of its Statement of Defence to reflect its objection
to the intrusion and breach by CAM of the express terms of the Arbitration
Agreement and subsequent will of the Parties.
SUMMARY OF ARGUMENTS
First: The Tribunal is requested to issue an interim order on confidentiality against Claimant not
only because all of the conditions under Art. 22.2 CAM Rules and Danubian Law are met, but also
because it is the only viable remedy available to Respondent to prevent further damage to its
reputation. The order on confidentiality should cover both the proceedings and any eventual
award.
Second: As the present Tribunal has not been constituted in accordance with the Arbitration
Agreement or any applicable rules, Respondent requests the Tribunal to dismiss the arbitration for
lack of jurisdiction.
Third: Respondent requests the Tribunal to find that Claimant was bound by a duty of
confidentiality, either under the institutional rules or Danubian Law, that Claimant breached its
duty and is liable for damages to be assessed at a later stage.
Fourth: Respondent did not breach the contract in any way. It delivered squid that met all of the
contractual requirements under Art. 35(1) CISG. The delivered squid was in conformity with the
sample as required by Art. 35(2)(c) CISG. Further, Claimant did not make its particular purpose
for the squid known and thus Claimant cannot rely on Art. 35(2)(b). Regardless of whether a
breach is found, Respondent is excluded from liability under Art. 35(3) CISG and because
Claimant assumed the risk of receiving unsized squid.
Fifth: Claimant breached Art. 38 CISG because it failed to properly inspect the delivered squid.
Even if the Tribunal finds that the inspection was proper, Claimant breached Art. 39 CISG
because it failed to timely and specifically notify Respondent of the alleged non-conformity.
Because of this breach, Claimant is not entitled to rely upon any alleged non-conformity in the
delivered squid. Further, Art. 40 CISG does not excuse Claimants breach because Respondent
could not have been aware of Claimants alleged size requirement.
Sixth: Claimant is not entitled to restitution of the purchase price it requests under Art. 50 CISG
and in any event, it is cannot recover the purchase price under the CISG because there was not a
fundamental breach. Further, any damages potentially awarded should be reduced as Claimant
failed to mitigate loss. In fact, Claimant contributed to the loss because it failed to make a
reasonable effort to sell the squid and after this failed to mitigate the loss.
PROCEDURAL REQUEST
I.THE TRIBUNAL SHOULD ORDER CLAIMANT TO RESPECT ITS DUTY OF
CONFIDENTIALITY
1. On 22 May 2010, after Claimant commenced the arbitration proceedings, it gave an
inflammatory interview to Commercial Fishing Today (CFT), a widely distributed trade
newspaper [Defence 4; R. Ex. 1; PO3 17]. Not only did it reveal the existence of the
proceedings, but it also made false statements regarding the content of the proceeding. This
included an accusation that Respondent sold squid with the knowledge that it was
completely inappropriate for its purpose [R. Ex. 1]. The contents of the interview inevitably
affected Respondent's reputation and caused Respondent irreparable harm [Defence 4 - 9; R.
Ex. 1] and the same would be true if any subsequent award would be rendered public. Thus,
in order to prevent Claimant from breaching its duties and causing any further damage,
Respondent requests the Tribunal to issue an interim order on confidentiality covering both
the proceedings and any eventual award before considering the issue of jurisdiction and
merits. The Tribunal is entitled under the applicable law to issue an immediate interim order
on confidentiality.
2. Claimant does not dispute that the Tribunal has power to issue interim orders before
addressing jurisdictional and substantive claims [Cl. Mem. 45, 69]. This is a generally
accepted practice in international arbitration [Born 1992; Shihata/Parra; ICSID ARB/02/18;
ICSID ARB/05/22; Nicaragua v. US]. However, Claimant contends that the conditions for
the Tribunal to exercise this power under the applicable law are not fulfilled in the present
case [Cl. Mem. II].
3. The applicable laws and rules governing arbitral proceedings are found in the express terms
of the arbitration agreement, the institutional rules chosen by the parties and the law of the
seat of arbitration [Redfern/Hunter 3.04, 3.10]. The institutional rules incorporated by the
Parties are the Rules of the Chamber of Arbitration of Milan (CAM Rules) and Danubia was
chosen as the seat of arbitration [Cl. Ex. 4; Defence 22]. Danubia has enacted the
UNCITRAL Model Law on International Commercial Arbitration 1985 with 2006
amendments (Danubian Law) [Defence 22; Req. Arb.]. As the Parties have not incorporated
any specific requirements in their Arbitration Agreement regarding the Tribunal's power to
issue interim orders, this power is governed by CAM Rules and Danubian Law. In the
interest of brevity, CAM Rules 2010 will be referred to even though CAM Rules 2004 on
interim orders are identical [CAMR 2004 Art. 25.2].
4. Art. 22 CAM Rules 2010 gives the Tribunal power to 'issue all urgent and provisional
measures of protection, also of anticipatory nature, that are not barred by mandatory
provisions applicable to the proceedings'. An interim order on confidentiality against

Claimant would fulfil every requirement set out by Art. 22.2 CAM Rules as it is not barred by
any mandatory provisions of Danubian Law [A] and would be an urgent and provisional
measure of protection [B]. Since CAM Rules explicitly allow all orders, this would naturally
include orders to protect confidentiality [C]. Finally, this order should include a reminder for
Respondent of its express duty under Art. 8.1 to keep any eventual award confidential [D].
A. THE TRIBUNAL'S POWER TO ISSUE THE INTERIM ORDER ON
CONFIDENTIALITY IS NOT BARRED BY ANY MANDATORY
PROVISIONS OF DANUBIAN LAW
5. Where parties incorporate institutional rules in their arbitration agreement, these rules govern
the proceedings except where mandatory rules of the law of the seat apply [Redfern/Hunter
3.50]. Accordingly, the applicable mandatory rules have to be found in Danubian Law, and
more specifically, in Art. 17 which regulates tribunals power to issue interim orders, '[u]nless
otherwise agreed by the parties. Thus, parties are not only allowed to opt out of the
conditions set out in Art. 17 but potentially to opt out of this power in its entirety, rendering
this provision non-mandatory [Danubian Law Art. 17(1)]. In the present case, the Parties
agreed otherwise by incorporating CAM Rules, specifically Art. 22.2.
B. AN INTERIM ORDER ON CONFIDENTIALITY PROTECTING
RESPONDENT IS BOTH URGENT AND PROVISIONAL UNDER ART. 22.2
CAM RULES 2010
6. The two requirements imposed by CAM Rules 2010 relating to the Tribunal's power to issue
interim orders are that the order is urgent [i] and provisional [ii].
(i)
The interim order on confidentiality is urgent because Claimants prejudicial

actions are likely to be repeated before the final award
7. A situation is urgent where action prejudicial to the rights of either party is likely to be taken
before a final decision on jurisdiction and merits [ICSID No. ARB/02/18; ICSID No.
ARB/05/22; Born 1986]. Claimant caused severe prejudice to Respondent by telling CFT that
Respondent sold squid [] that was completely inappropriate for bait and they knew it and
had to be forced to live up to its responsibilities [R. Ex. 1; PO3 17]. Not only is CFT an
international fishing trade journal that is distributed to forty-five countries [R. Ex. 1], it is
specifically distributed to both Mediterraneo and Equatoriana where the Parties business
interests are principally based [PO3 17].
8. Claimant has fully disregarded its duty to keep both the existence and content of the arbitral
proceedings confidential and is fiercely resisting this application for an interim order, the
sole object of which is to enforce Claimant's duty of confidentiality [Cl. Mem. 44-74].
Claimants attitude thus shows that it is likely to repeat its prejudicial actions before the
award is rendered. Moreover, as the Tribunal chose to merge jurisdiction and merits [PO2],
any postponement of addressing the interim order would give Claimant more time to act
thereby increasing the risk of further prejudicial action and damage to Respondent. In the
present case, Claimants comments were prejudicial and it is very likely that it will release
further details on the arbitral proceedings before the final award is rendered.
(ii)
An interim order on confidentiality is provisional in nature as it will lapse with

the final award
9. An interim measure on confidentiality is provisional by definition as it ceases to be effective
upon the issuance of the final award [Bucher/Tschanz 178; Yesilirmak 159-236; Hungarian
Arbitration Act 1994 s. 26]. It is only in the award that the Tribunal would finally decide on
both the definition of confidentiality and on the question of whether Claimant has breached
its duty, thus entitling Respondent to damages, or not. An order would preclude Claimant
from divulging any further information about the arbitral proceedings and the ensuing
arbitral awards.
C. CAM RULES 2010 ALLOW FOR 'ALL' TYPES OF INTERIM ORDERS,
INCLUDING AN INTERIM ORDER TO PREVENT A FURTHER BREACH
BY CLAIMANT OF ITS DUTY OF CONFIDENTIALITY
10. Some institutional rules explicitly limit the possible interim orders to certain subject areas
[ACICA Rule 28.1; English Arbitration Act s. 38], others exclude this power altogether
[CIETAC Rules ; Italian Code Art. 818; Argentine Code Art. 753]. However, the majority of
arbitration rules allow tribunals a broad discretion to order 'any' type of interim order [ICC
Art. 23.1; SCC Art. 32.1; AAA Rule 34(a); ICDR Art. 21]. Where a provision is drafted
broadly, it grants a tribunal a discretionary power to issue any type of interim order
[Lew/Mistelis 592]. In the present case, CAM Rules grant the Tribunal the power to issue all
orders [CAMR 2010 Art. 22.2]. This means the Tribunal is not limited in any way as to
which interim orders it may issue, including an order on confidentiality.
11. In the event of doubt the Tribunal should not delay granting an interim order [ICSID No.
ARB/06/11], as the benefit to Respondent outweighs any burden on Claimant. The order,
while being provisional, will have a significant impact on Respondents future business.
Conversely, the sole obligation on Claimant would be to refrain temporarily from divulging
information about the arbitral proceedings and any eventual award from now on.
D. ANY EVENTUAL AWARD MUST BE KEPT CONFIDENTIAL UNDER THE
EXPRESS DUTY OF CAM RULES 2004 AND 2010
12. Art. 8.1 CAM Rules 2010 explicitly states: the partiesshall keepthe arbitral award
confidential and Art. 8.2 CAM Rules 2004 states that the award may be published only with
the prior written consent of the parties to the Chamber of Arbitration. Claimants assertion
that the duty of confidentiality only governs the proceedings itself gives rise to a risk that
Claimant will not keep the award confidential [Cl. Mem. 57]. Therefore, the Tribunal should
issue an order reminding and requiring Claimant to keep any eventual award confidential.
Conclusion on Issue I: An interim order on confidentiality covering both proceedings and
any eventual award should be issued against Claimant.
ARGUMENT ON JURISDICTION
II.THE TRIBUNAL WAS CONSTITUTED IN BREACH OF THE ARBITRATION
AGREEMENT AND LACKS JURISDICTION TO HEAR THE PRESENT CASE
13. Claimant alleges that the Tribunal, as constituted, has jurisdiction to resolve the present
dispute [Cl. Mem. 1]. Respondent respectfully requests the Tribunal to find that it has been
constituted in breach of the Arbitration Agreement and therefore lacks jurisdiction to hear
the present case [Amended Defence].
14. The present Tribunal has been constituted in breach of the specific appointment procedure
adopted by the Parties in the Arbitration Agreement. The current chairman Mr. Z was
appointed by an institution, CAM, instead of being nominated by the party-appointed
arbitrators, as specified in the Arbitration Agreement [Cl. Ex. 4]. Since the composition of
the Tribunal is not in accordance with the agreement of the Parties, the award rendered will
be refused recognition and enforcement [Art. 36(iv) Danubian Law; Art. V(1)(d) New York
Convention]. Claimant appointed Ms. Arbitrator 1 [Req. Arb. 28] and then Respondent
appointed Professor Arbitrator 2 [Letter of 24 June 2010]. The decision of the two party
appointed arbitrators yielded the appointment of Mr. Y as the presiding arbitrator [Letter of 15
July 2010]. However, CAM refused to confirm Mr. Y and appointed Mr. Z thereby breaching
the partys chosen appointment procedure [CAM 9410/7, 8].
15. Respondent does not contest that a tribunal has power to rule on its own jurisdiction under
the principle of competence-competence [Fouchard/Gaillard/Goldman 397; Born 85;
Holtzmann/Neuhaus 478; Schwebel 2]. This includes the power to decide that it has no
jurisdiction [Redfern/Hunter 5.114].
16. In order to ensure enforceability of the final award, Respondent requests the Tribunal to find
that it does not have jurisdiction because the specific procedure of appointment adopted by
the Parties in the Arbitration Agreement has not been respected [A]. Should the Tribunal
find that CAM Rules prevail over the specific wording of the Arbitration Agreement, CAM
breached Art. 14 of its rules [B]. Further, CAM did not have the authority under its rules,
any other rules or procedural principles to replace Mr. Y [C]. Should the Tribunal find that
CAM had the authority to replace Mr. Y as chairman, it should not have done so as Mr. Y is
both impartial and independent [D]. Finally, Respondent is not precluded from challenging
the Tribunals jurisdiction as the time limit set out in Art. 19 CAM Rules does not apply to
Respondents challenge [E]. In the interest of brevity, CAM Rules 2010 will be referred to
even though CAM Rules 2004 on the appointment procedure are identical [Arts. 15 - 22
CAMR 2004].
A. CAM BREACHED THE SPECIFIC PROCEDURE OF APPOINTMENT
ADOPTED BY THE PARTIES IN THE ARBITRATION AGREEMENT
17. Claimant alleges that the nature of institutional arbitration is that once the arbitration came
under CAM, CAM became responsible for the arbitration and CAM Rules became applicable
to the proceedings in their entirety [Cl. Mem. 6]. Respondent does not dispute the principle
that when parties incorporate institutional rules in their arbitration agreement, those rules will
govern the proceedings [Redfern/Hunter 1.161]. However, any provisions specifically stated
in an arbitration agreement supersede institutional rules [Encyclopaedia v Britannica].
18. Whenever the wording of the arbitration agreement concerning procedure of appointment of
arbitrators is specific, it must be respected [US v Mexico]. In the present case, the Parties
selected a specific appointment procedure: each party shall appoint one arbitrator and the
two arbitrators shall appoint the presiding arbitrator [Cl. Ex 4]. This is the international
method of appointment because it is the most efficient means of ensuring neutrality,
impartiality and independence of the third arbitrator [Redfern/Hunter 4.25]. Respondent
inserted the Arbitration Agreement into the sales confirmation [Cl. Ex. 4] and Claimant
explicitly acknowledged this agreement [R. Ex. 2]. This collaborative effort suggests that the
Parties sought to establish an effective machinery for the settlement of disputes [ICC No.
2321]. In fact, the Parties adopted this procedure because it is the most efficient way of
appointing an impartial chairman. An arbitration agreement must be interpreted purposively
with the consequences reasonably and legitimately envisaged by the parties [ICSID
ARB/81/1; Fouchard/Gaillard/Goldman 475]. In the instant case, the arbitration clause is not
ambiguous, therefore it is irrational to suggest that the Parties intended something different
from what they explicitly said.
19. Moreover, arbitration is based on party autonomy [Redfern/Hunter 1.38]. It is undisputed
that the only limits to party autonomy are the mandatory rules of the applicable law
[Redfern/Hunter 3.50]. Art. 11.2 Danubian Law states that [t]he parties are free to agree on a
procedure of appointing the arbitrator or arbitrators. This permissive language indicates that
the provision is not mandatory [Model Law Note 7, 34]. Thus, full effect should be given to
the Parties autonomy to specify the appointment procedure.
20. Further, if the Parties intention of choosing their own arbitrators is not respected, then any
tribunal constituted in this form would lack jurisdiction to hear the case and any award
rendered would be refused recognition and enforcement [Art. 36(iv) Danubian Law; Art.
V(1)(d) NYC]. In Encyclopaedia v Britannica, the parties had contractually agreed that the two
party-appointed arbitrators must attempt to choose a third arbitrator and that upon their
failure to do so, the Court would make the appointment. The appellant side-stepped the
requirement that the two party-appointed arbitrators must choose the third arbitrator and
instead obtained an appointment of the third arbitrator by the Court. The Court of Appeal
held that the appointment of the third arbitrator in breach of the arbitration agreement
irremediably spoiled the arbitration process and refused recognition and enforcement of the
award. [Encyclopaedia v Britannica]. Similarly, in the present case, the Arbitration Agreement
requires the two party-appointed arbitrators to appoint the third arbitrator [Cl. Ex. 4]. As
CAM breached this agreement, any award rendered by the Tribunal would be unenforceable.
B. EVEN IF CAM RULES SUPERSEDE THE SPECIFIC PROCEDURE OF THE
ARBITRATION AGREEMENT, CAM BREACHED ART. 14 OF ITS RULES
21. Should the Tribunal find that CAM Rules prevail over the specific appointment procedure of
the Arbitration Agreement, CAM breached its own rules by replacing Mr. Y Art. 14.1 CAM
Rules 2010 states that: The arbitrators shall be appointed in accordance with the procedures
established by the parties in the arbitration agreement. The appointment procedure adopted
by the parties in the Arbitration Agreement states that each party shall appoint one arbitrator
and the two arbitrators shall appoint the presiding arbitrator [Cl. Ex 4]. This explicitly falls
within Art. 14.4.b CAM Rules which allows the Parties to choose for the president to be
appointed by party-appointed arbitrators jointly. Thus, CAM rules maximise the choice and
influence of the parties in the appointment process. CAMs decision to override the parties
choice of Mr. Y was a severe infringement of its own explicit provisions.
22. The CAM institution provides parties that want to arbitrate under its auspices with a model
clause [CAM Website 1], which does not include a specific appointment procedure [CAMR
2010 p. 5]. Art. 14.4.b CAM Rules states that unless otherwise agreed by the parties, the
presiding arbitrator shall be appointed by the Arbitral Council. This article would have
applied if the Parties had chosen to incorporate the model clause in their contract as it is
proposed. Instead of adopting the model clause as it is, Respondent inserted a specific
procedure to appoint the arbitrators [Cl. Ex. 4]. Thus, the Arbitral Council was not entitled
to make the appointment.
23. Further, Claimant asserts that the institution which governs the proceedings (CAM), must
make sure that final awards are enforceable [Cl. Mem. 16]. This coincides with Respondents
claim that the Tribunal must include Mr. Y or else it would be in breach of the Arbitration
Agreement and any award rendered would not be granted recognition and enforcement [supra
14].
C. NEITHER CAM RULES NOR ANY OTHER RULES OR PROCEDURAL
PRINCIPLES ENTITLED CAM TO REPLACE MR. Y
24. Under CAM Rules, Mr. Y should be the presiding arbitrator [i]. He complied with the Code
of Ethics [ii] and due process was respected [iii].
(i)
Under CAM Rules 2010 Mr. Y should be the presiding arbitrator
25. Whilst the CAM Rules 2010 grant the institution some power to refuse to confirm an
appointment, the present case was not an appropriate time to exercise these powers. The
rules give specific examples of when the refusal of appointment is appropriate, for instance
where the parties cannot agree or fail to make an appointment [Art. 14.3, 14.4]. However,
nothing in the rules allows intervention in the present situation.
26. Art. 16 CAM Rules 2010 states that the following persons cannot be appointed as arbitrators:
professional partners, employees and all who have an ongoing cooperative professional
relationship with members of the board or members of the arbitral council unless the parties
agreed otherwise. Art. 16 only refers to arbitrators in the same tribunal. Mr. Y and Mr.
Samuel Z are Arbitrator and Counsel respectively. Even if the Tribunal nevertheless applied
Art. 16 to Mr. Y, the Parties agreed otherwise. Both stated: We know of Mr. Ys reputation
and are sure that he would be independent and impartial in chairing the arbitral tribunal, and
both explicitly waived their right to object to his appointment [Letter from Joseph Langweiler 26
July 2010; Letter from Horace Fasttrack 27 July 2010]. Thus, the restrictions of Art. 16 CAM
Rules do not apply.
27. Further, Art. 18.2 CAM Rules 2010 imposes a duty of disclosure on the arbitrator. The
arbitrator must disclose any relationship with the parties, their counsel ... which may affect
his/her impartiality or independence. Despite the fact that Mr. Ys relationship with his
partner Mr. Z would not have affected his impartiality or independence, Mr. Y nevertheless
revealed all facts about this relationship [CAM 9410/6]. In a similar case, a respondent State
challenged the President of an ad hoc annulment committee based on the fact that a partner
in his law firm had given limited advice to one of the parties, which advice was continuing
but nearing completion. This fact was disclosed by the President even though he had no
personal involvement in the advice in question. The challenge was dismissed because: (a) the
relationship in question was immediately and fully disclosed thus maintaining full
transparency; (b) the arbitrator personally has had no lawyer-client relationship with the
Claimants or its affiliates [ICSID No. ARB/97/3]. Similarly, in the present case, Mr. Y
disclosed his relationship with Mr. Z and never had a lawyer-client association with Claimant.
28. In compliance with Art. 18.3 CAM Rules 2010, both Parties filed their comments on Mr. Ys
10
statement of independence. Despite both Parties explicit waiver of objection to Mr. Ys

appointment [Letter from Joseph Langweiler 26 July 2010; Letter from Horace Fasttrack 27 July 2010],
CAM decided to overlook the Parties agreement and did not confirm Mr. Y [CAM 9410/7].
Instead, CAM invited them to make a substituted appointment [CAM 9410/7]. In response
to CAMs actions, the two co-arbitrators wrote a joint letter re-appointing Mr. Y on the basis
that they both know him very well and have complete trust in him to conduct the
arbitration with competence, impartiality and with independence. [Letter 13 August 2010].
Rather than confirming Mr. Y, CAM once again disregarded the explicit intention and
autonomy of the Parties and appointed Mr. Z to be the presiding arbitrator [CAM 9410/8].
29. Further, Claimant alleges that the re-appointment of Mr. Y by the party-nominated
arbitrators is by definition a failure to appoint the replacement of the presiding arbitrator
and requires CAMs interference under Art. 20.3 CAM Rules 2010 [Cl. Mem. 39]. Art. 20.3
CAM Rules 2010 states: A new arbitrator shall be appointed by the same authority that
appointed the substituted arbitrator. If a replacement arbitrator must also be substituted, the
new arbitrator shall be appointed by the Arbitral Council. Even if the re-appointment of Mr.
Y is considered a replacement under Art. 20.3 CAM Rules, there is no reason for the CAM
to intervene as this replacement does not constitute a failure. First, it gives effect to the
unequivocal agreement of the Parties. Secondly, Mr. Y is an adequate choice of chairman. In
conclusion, applying CAM Rules rigorously shows that CAM has breached its own rules
when refusing to confirm Mr. Y as the chairman of the Tribunal and thereby breached the
Arbitration Agreement.
(ii)
Mr. Y complied with the Code of Ethics
30. CAMs Code of Ethics imposes on an arbitrator a duty to disclose all circumstances and
relationships that need to be disclosed in order not to keep anything hidden that might give
rise to doubts on independence and impartiality [CAM Website 2]. The arbitrator who does
not comply with the Code shall be replaced by the Chamber of Arbitration itself, which may
also refuse to confirm him in subsequent proceedings because of this violation [Art. 13 Code
of Ethics]. When CAM addressed the arbitrators to accept their mandate, it explicitly laid
down the rules of the Code that need to be followed by any potential arbitrator [CAM
9410/3; CAM 9410/5]. Mr. Y followed the rules provided to him and disclosed all relevant
details about his relationship with Claimants counsel [supra 27]. Thereby, Mr. Y complied
with CAMs Code of Ethics.
(iii) The requirements of due process were respected accordingly
31. Claimant alleges that the enforcement of the award is one of the main reasons why due
process must be maximised [Cl. Mem. 16]. Respondent does not object to this allegation. In
11
order to satisfy due process, certain procedural standards need to be observed. These
procedural standards are designed to ensure that the arbitral tribunal is properly constituted,
that the arbitral procedure is in accordance with the agreement of the parties, and that the
parties are given proper notice of the proceedings, hearings, and awards [Hamilton/Vasquez;
Redfern/Hunter 10.47]. The principle of due process applies to all aspects of the arbitral
proceedings. Its aim is to ensure that the parties are treated with equality and are given a fair
hearing, with a full and proper opportunity to present their respective cases
[Fouchard/Gaillard/Goldman 949]. It is not disputed that in the present case, both Claimant
and Respondent were treated equally and were both were duly notified of all procedural
matters [CAM 9410/2, 3, 4, 6]. More importantly, due process was fully observed when Mr.
Y was appointed by the party-nominated arbitrators: this appointment was according to the
chosen appointment procedure in the Arbitration Agreement and gave both Parties equal
opportunity to nominate the members of the Tribunal [Cl. Ex. 4]. Thus, due process in its
widest interpretation was respected.
D. EVEN IF CAM HAD THE AUTHORITY TO REFUSE CONFIRMATION OF
MR. Y AS CHAIRMAN, IT SHOULD NOT HAVE DONE SO BECAUSE MR. Y
IS IMPARTIAL AND INDEPENDENT
32. The impartiality and independence of arbitrators is a hallmark of international commercial
arbitration. This means that the arbitrators are free of external influences [Redfern/Hunter
4.79]. The IBA Guidelines on International Conflicts of Interest establish a common set of
principles that address standards of disclosure upon appointment of arbitrators by reference
to concrete situations. Although these guidelines are non-binding, they are almost invariably
used by tribunals as guidance [Redfern/Hunter 4.89]. Importantly, CAM recognises and
embraces them [Coppo 227]. Thus, the Tribunal should give them due consideration.
33. Claimant alleges that the test of impartiality and independence is an objective one [Cl. Mem.
22-23]. There is a subtle difference between the objective test as to whether the relevant
facts would cause doubt in the mind of a reasonable third party, and the subjective test as to
whether they might cause doubt in the mind of the parties involved in the specific case in
question [Redfern/Hunter 4.83]. The Explanatory Notes to the IBA Guidelines state as
follows: ...the Working Group in principle accepted, after much debate, a subjective
approach to disclosure [IBA Guidelines Explanation 3]. This means that a prospective
arbitrator should not accept an appointment if there is reason to believe that either party will
genuinely feel that the person concerned is not independent, or not capable of approaching
the issues impartially [Redfern/Hunter 4.138]. Since both parties waived their right to object
to Mr. Ys appointment [Letter from Joseph Langweiler 26 July 2010; Letter from Horace Fasttrack 27
July 2010], and both co-arbitrators expressed their trust in Mr. Y and declared that they
12
believe in him to conduct the arbitration impartially and independently [Letter 13 August
2010], the subjective test favours Mr. Ys appointment over Mr. Z.
34. The IBA Guidelines include a non-exhaustive list of circumstances under which
independence and impartiality could be questioned, divided into four groups. The group
entitled Waivable Red List contains examples of situations that, while potentially leading to
disqualification, may be accepted by express agreement of the parties to the dispute as not
requiring disqualification [Redfern/Hunter 4.87]. One of the examples cited is if the arbitrator
is a lawyer in the same law firm as the counsel to one of the parties [IBA Guidelines 2.3.3].
Claimant argues that Mr. Y falls within this example of the waivable red list of the IBA
Guidelines. However, this is incorrect as Mr. Z, albeit being from the same law firm as Mr.
Y, is not a counsel to Claimant but a mere advisor. Even if the role of counsel and advisor
were to be assimilated, after Mr. Y disclosed his relationship with an advisor of one of the
parties, both Parties waived their rights to object to Mr. Y [supra 27]. Therefore, there is no
reason for him not to be confirmed as even the IBA Guidelines have been complied with.
35. In addition, Claimant alleges that by refusing confirmation of Mr. Y as chairman, CAM was
applying a higher standard of fairness than provided for under the IBA Guidelines [Cl. Mem.
34]. However, when contacting the arbitrators to accept their mandate CAM specifically
referred to the IBA Guidelines [CAM 9410/3, 9410/5]. Therefore, it is impossible to claim
that CAM intended to adopt a different standard.
36. Claimant alleges that it is obvious how a party who is a partner in the same law firm as the
chairman in the arbitration can use this to his advantage [Cl. Mem. 28]. Claimant does not
substantiate this point by providing examples, but simply alludes to the potential examples
[Cl. Mem. 28]. Both lawyers would be bound by national codes of practice, and would risk
being disbarred. This would certainly deter Mr. Samuel Z. Furthermore, the faith of the two
co-arbitrators in Mr. Y and the fact that he was re-appointed on the basis that both coarbitrators know him very well and have complete trust in him to conduct the arbitration
with competence, impartiality and with independence ought to satisfy the Tribunal that this
suspicion has no basis [Letter of 13 August 2010].
37. Respondent fears that Mr. Y may have access to the opposing partys information which
could affect Mr. Ys impartiality as chairman [Cl. Mem. 26]. Respondent assures Claimant
that a Chinese Wall is common in international law firms and will be implemented by Wise,
Strong & Clever. A Chinese Wall is an information barrier implemented within a firm to
separate and isolate persons who make investment decisions from persons who are privy to
undisclosed material information which may influence those decisions. Therefore, Mr. Y may
not have access to any information given by the party or else he would jeopardise his career.
13
E. RESPONDENT MAY CHALLENGE THE JURISDICTION OF THE

TRIBUNAL AS THE TIME LIMIT SET OUT IN ART. 19 CAM RULES DOES
NOT APPLY TO RESPONDENTS CHALLENGE
38. Claimant insists that Respondent did not contest the jurisdiction of the tribunal within the
time limit set by CAM Rules 2010 [Cl. Mem. 41]. Art. 19.1 states: Each party may file a
reasoned challenge against an arbitrator on any ground that casts a doubt on his/her
independence or impartiality. Art. 19.2 continues [t]he challenge shall be filed with the
Secretariat within ten days from receipt of the statement of independence or from the date
when the party becomes aware of the ground for the challenge. Respondent does not
challenge Mr. Z on the ground that he is partial or dependant. If this was the case, then
Claimant would be right to argue that it would be covered by Art. 19.2 [Cl. Mem. 34]. The
reason behind contesting the jurisdiction of the present tribunal with Mr. Z as the presiding
arbitrator is that this tribunal is in breach of the Arbitration Agreement. Therefore, this
challenge does not fall within the scope of Art. 19 and is only subject to the time limit set out
by Art. 12 CAM Rules 2010 which states that: Any objection to the existence, the validity or
the effectiveness of the arbitration agreement or lack of jurisdiction of the Arbitral Tribunal
shall be raised in the first brief or at the first hearing following the claim to which the
objection relates, or shall be deemed to be waived. Respondent has raised its objection to
jurisdiction at the first opportunity available and more specifically four days after the
Tribunal was constituted [PO1 6; Amended Defence 7, 8].
Conclusion on Issue II: As the present Tribunal has not been constituted in accordance
with the Arbitration Agreement or any applicable rules, the Tribunal lacks jurisdiction.
COUNTER-CLAIM ON JURISDICTION
III.CLAIMANT BREACHED ITS DUTY OF CONFIDENTIALITY UNDER CAM RULES
AND RESPONDENT IS ENTITLED TO DAMAGES
39. Respondent strongly refutes Claimants assertion that the issue of damages is entirely
different from the substantive dispute because the claim regarding confidentiality does not
concern it [Cl. Mem. 73-74]. Claimants argument is neither viable nor true as the question is
whether Claimant is liable for actions it already committed in relation to the arbitral
proceedings. This issue is preliminary to the merits of the dispute for which the arbitral
tribunal has been constituted. If it were not for Claimants allegations regarding the sale of
squid, Respondent would not be raising this challenge concerning Claimants breach of
confidentiality. Thus, no reasonable party could argue that Respondents counter-claim on
damages arising out of the breach of confidentiality should be dealt with separately: it is
14
intrinsically linked to the main dispute.

40. Claimant has misunderstood the legal principle enunciated by Gary Born that liability and
damages are usually separated [Cl. Mem. 73-74; Born 1815]. It is usual for liability and
quantum of damages to be separated, but it would be highly unusual for a Tribunal to
separate a consideration of breach from liability for damages. If the Tribunal establishes
liability for damages at this stage, this will act not only as a normal consequence of breach,
but also as a deterrent against Claimant from causing any further damage to Respondents
reputation [Fiona Trust Case; Redfern/Hunter 9.04]. Further, as the Tribunal has indicated that
the claim for damages is to be treated as a counter-claim, it is not a new claim [PO1 4].
41. Claimant alleges that it has not breached its duty of confidentiality under the allegedly
applicable CAM Rules 2004 or under CAM Rules 2010 [Cl. Mem. 45, 56] and that even if it
breached its duty it would not be liable for damages [Cl. Mem. 76, 77]. Should the presently
constituted Tribunal find that it has jurisdiction, Respondent requests the Tribunal to find
that Claimant breached its duty of confidentiality [A], and is liable for any resulting damage
that can be demonstrated later [B].
A. CLAIMANT BREACHED ITS DUTY OF CONFIDENTIALITY BOTH
UNDER CAM RULES AND DANUBIAN LAW
42. Claimant has breached its duty of confidentiality both under the applicable CAM Rules 2010
[i], and, even if CAM Rules 2004 applied, under the implied duty of confidentiality under
Danubian Law [ii].
(i)
Claimant breached its duty of confidentiality under CAM Rules 2010
43. CAM Rules 2010 state that the parties shall keep the proceedings and the arbitral award
confidential except in the case where a disclosure is necessary to protect a partys rights
[CAMR 2010 Art. 8.1]. Although Claimant alleges that it has not breached its duty of
confidentiality under these rules [Cl. Mem. 56], by making extensive inflammatory comments
about both Respondent and the arbitration, Claimant violated the confidentiality provision
under Art. 8.1 CAM Rules 2010 [Defence 4; R. Ex. 1]. Respondent submits that CAM Rules
2010 apply [a] and that the duty of confidentiality was in force when Claimant gave its
interview [b]. Further, Claimant breached the duty by revealing the existence of the
proceedings [c]; and even if the duty does not cover the existence of the proceedings,
Claimant breached its duty by disclosing the content of the proceedings [d]. Furthermore, at
no stage does Claimant argue that it was protecting its own rights when breaching its duty of
confidentiality. This confirms Respondents position that these inflammatory comments were
in no way protective of any rights whatsoever [e].
(a) CAM Rules 2010 are applicable to the present proceedings
44. Claimants assertion that CAM Rules 2004 apply is erroneous [Cl. Mem. 48]. CAM Rules
15
2010 apply to any arbitration proceedings commenced after the rules entered into force [Art.
39.2 CAMR 2010]. As the rules entered into force on 1 January 2010 [CAM Website 1] and
the present arbitration was commenced by Claimant on 20 May 2010 [Req. Arb.] the
requirement for the application of CAM Rules 2010 is fulfilled.
45. CAM Rules 2010 are in line with international practice where parties incorporate institutional
rules in their most current form [Redfern/Hunter 1.161; Fouchard/Gaillard/Goldman 11101112] and accept any subsequent changes [Various Authors Choice Rules; Car & Cars Case; Balli
Trading Case; Banco Central Case; Bunge v. Kruse; Mertens & Co. v. Veevoeder]. An experimented
and large trading company such as Claimant must have known this practice at the time of
signing the Arbitration Agreement. Claimant had the opportunity to specify the date of the
CAM Rules in the Arbitration Agreement at the moment of signing, but it chose not to do so
[Cl. Ex. 4; R. Ex. 2]. As the clause does not specifically refer to any date, in accordance with
international accepted practice and CAM Rules, the latest version of the rules should apply.
(b) The duty of confidentiality under Art. 8.1 CAM Rules 2010 was in force when
Claimant gave its interview
46. As stated by Claimant itself, CAM Rules 2010 impose a full duty of confidentiality on the
Parties [Cl. Mem. 50; CAMR 2010 Art. 8.1]. This duty covers, as admitted by the Claimant,
the full arbitral proceedings [Cl. Mem. 57]. In institutional arbitration, proceedings are
deemed to have commenced when the request for arbitration is accepted by the institutional
secretariat and sent to the respondent [Poudret/Besson 568; ICC Art. 4.2; LCIA Art. 1.2; Swiss
Rules Art. 3.2; English Arbitration Act (1996) s. 14(5); Redfern/Hunter 4.11]. This is no different
under CAM Rules 2010, which specifically state that any time-limit set by the Rules will run
from the sending made by the Secretariat [CAMR 2010 Art. 9.3]. Claimant submitted its
request on 20 May 2010 [Req. Arb.] and CAM sent its letter to Respondent on 21 May 2010
[CAM 9410/1]. Claimant gave its interview to CFT on 22 May 2010 [R. Ex. 1]. Therefore,
proceedings had begun when Claimant gave its interview and the duty of confidentiality
under CAM Rules was in force.
(c) Claimant breached the duty of confidentiality by disclosing the existence of the
arbitration proceedings to Commercial Fishing Today
47. Claimant disclosed the existence of the arbitration to CFT on 22 May 2010 by stating that on
Thursday our lawyer started arbitration proceedings [R. Ex. 1]. Claimant asserts that the duty
of confidentiality under CAM Rules 2010 only covers the content of proceedings because the
rules do not specifically refer to the existence of proceedings [Cl. Mem. 57]. However,
Claimant does not substantiate this allegation with any authority. Further, the comparative
analysis of other leading institutional rules indicates that the duty of confidentiality extends to
the existence of proceedings where the rules use the word proceedings in relation to a duty
16
[SIAC; HKIAC; WIPO; AAA; KLRCA; Pryles]. CAM has stressed the importance it attaches
to the duty of confidentiality [Coppo 223]. This is also reflected in the mandatory language of
Art. 8.1 stating that the proceedings shall be kept confidential [CAMR 2010 Art. 8.1].
48. A principal purpose of arbitration is to settle disputes out of the sight of jealous competitors
and the inquisitive media [Paulsson 303]. Parties expect this of the arbitral process [Paulsson
303]. While the present dispute was already public knowledge because it had been reported
earlier by CFT [PO3 17], the existence of the arbitral proceedings was not known [PO3
17; R. Ex. 1]. Claimants assertion that the dispute had been reported in CFT previously is
irrelevant because the duty of confidentiality does not bind the newspaper [Cl. Mem. 61] but
specifically binds Claimant [CAMR 2010 Art. 8.1]. Confirmation of the existence of
arbitration by Claimant has greater authority than mere speculation by a newspaper. By
revealing the existence of arbitral proceedings, Claimant has acted in direct contravention to
one of the principal objectives of the arbitral process [R. Ex. 1].
(d) Further or alternatively, Claimant breached the duty of confidentiality by disclosing
the content of the arbitral proceedings in Commercial Fishing Today
49. Claimant disclosed the content of the proceedings by stating on the 22 May 2010 that
Equatoriana Fishing sold us squid for bait that was completely inappropriate and they knew
it [R. Ex. 1]. This false comment was then exacerbated by a further defamatory statement
that apparently the only way to get them to live up to their responsibilities is to force them
to do so [R. Ex. 1].
50. Claimant readily admits that the content of the proceedings including the hearing and
arbitrators deliberations is subject to the duty of confidentiality under Art. 8.1 CAM Rules
2010 [Cl. Mem. 57, 59]. This duty covers the comments made by Claimant on 22 May 2010
because they explicitly reveal the contents of the proceedings to a large audience [Defence 4;
PO3 17]. Claimant attacked Respondents business practices by stating that they sold squid
for bait that was completely inappropriate [R. Ex. 1]. Two of the main issues before the
Tribunal are whether the squid was sold for the purpose of bait and whether the contract has
been fully complied with [PO1 5]. In effect, the whole dispute centres around these issues.
Unilateral disclosures are likely to provide a selective view of a dispute, often with
tendentious explanations and selective evidence [Paulsson 304]. By disclosing these key issues
Claimant has allowed the public to become a party to these proceedings without allowing
them to hear both sides.
51. Claimant went even further by alleging that Respondent knew that the squid was
inappropriate [R. Ex. 1]. It effectively accused Respondent of being dishonest in its business
dealings in front of the entire business community. Nothing in the facts or the extensive
17
exchange of correspondence between Claimant and Respondent indicates any knowledge on

the part of Respondent of the alleged breach. To the contrary, even after Claimant accused
Respondent of the breach, Respondent was adamant, stating that the report confirms our
belief that the squid were in complete conformity to the contract [Cl. Ex. 9].
52. Further, Claimant stated that the only way to get them [Respondent] to live up to their
responsibilities is to force them to do so [R. Ex. 1]. Claimant provided a biased and onesided account failing to recognise Respondents extensive efforts to avoid escalating the
dispute. For instance, Respondent replied within days to each accusing letter from Claimant
[Cl. Ex. 5, 6, 7, 8]. The last email of 18 August 2008 from Respondent was answered two
years later with a request for arbitration [Cl. Ex. 9; Req. Arb.]. Claimant did not leave any
space for settlement or further negotiations.
(e) Claimant was not protecting its own rights when it gave the interview
53. Art. 8.1 CAM Rules 2010 allows an exception to the duty of confidentiality where a party
breached this duty to protect its rights. Claimant does not argue that it was protecting its own
rights when it made inflammatory comments to CFT [R. Ex. 1]. This was a judicious
decision. Claimant could not have reasonably argued that its offensive and accusatory
comments, such as the only way to get [Respondent] to live up to its responsibilities is to
force them to do so [R. Ex. 1], were protective.
54. In conclusion, Claimant breached its duty of confidentiality under Art. 8.1 CAM Rules 2010
by both disclosing the existence of the proceedings and details of the dispute.
(ii)
Even if CAM Rules 2004 apply, Claimant has breached its implied duty of
confidentiality under Danubian Law
55. Claimant alleges that CAM Rules 2004 are applicable to the present arbitral proceedings
because they were the only Rules [the Parties] knew at thetime [of signing the Arbitration
Agreement] [Cl. Mem. 48, 51]. Should the Tribunal agree with this proposition, Respondent
does not contest that in contrast to CAM Rules 2010, Art. 8.1 CAM Rules 2004 does not
impose the duty of confidentiality on parties to arbitral proceedings [Cl. Mem. 50]. This,
however, does not absolve Claimant of the duty of confidentiality implied under the
applicable Danubian Law [a] and Claimant breached this duty by disclosing the existence and
content of the proceedings [b].
(a) Claimant owes an implied duty of confidentiality under Danubian Law
56. According to Claimant, Art. 8.1 CAM Rules 2004 only extends the duty of confidentiality to
the Chamber of Arbitration, the Arbitral Tribunal and the expert witnesses [Cl. Mem. 50].
CAM Rules 2004 are indeed silent on parties duty of confidentiality. The default rule is that
where an arbitration agreement and institutional rules are silent on a procedural issue, the law
of the seat is determinative [Poudret/Besson 83]. The Tribunal should therefore look at the
18
provisions of the law of the seat, Danubian Law [Cl. Ex. 4].
57. Danubian law does not explicitly address the duty of confidentiality. Not only is this duty
widely recognised [Redfern/Hunter 2.149; Born 2252-2253; Pryles 432; Dundas 466; Malaysian
Newsprint v Bechtel], but other national laws, which similarly adopted the UNCITRAL Model
Law, have been interpreted to impose an implied duty of confidentiality on the parties. For
instance, the English Arbitration Act 1996, which is based on the UNCITRAL Model Law
[Born 31], has been interpreted to impose an implied duty of confidentiality on the parties
[Emmott v Wilson; Ali Shipping Case; Fortier 135]. Particularly, in Ali Shipping it was held that
confidentiality attaches to arbitration agreement as a matter of law [Fortier 134 citing Ali
Shipping]. This implied duty covers both the existence [Emmott v Wilson 1380] as well as
content of the proceedings [Pryles 454; Hwang/Chung 638]. In particular it extends to any
information that emanates from the arbitral proceedings and any documents prepared for
and used in the arbitration [Emmott v Wilson 1379].
58. Claimant asserts that there is no implied duty of confidentiality under Danubian Law [Cl.
Mem. 65] basing its claim on three cases: Esso v. Plowman, Bulbank Case and US v Panhandle
[Cl. Mem. 63-65]. To fully understand the reasoning behind the Australian High Courts
decision in Esso v Plowman the greater public interest concerns need to be analysed. The case
arose out of arbitrations between Esso and two public utilities each having an agreement
relating to the supply of natural gas to the public. As illustrated in the decision itself, the main
reason behind refusing an implied duty of confidentiality to the Parties was the public
interest involved. The court famously stated: Why should the consumers and the public of
Victoria be denied knowledge of what happens in these arbitrations, the outcome of which
will affect, in all probability, the prices chargeable to consumers by the Public Utilities? [Esso
v. Plowman 403]. In the same way, the 1988 decision by the district court of Delaware only
demonstrates that the interest of the government may contradict the principle of
confidentiality in a given case [US v. Panhandle]. Yet, a dispute about the delivery of squid
does not affect any public interest nor does it involve the government.
59. Further, the Bulbank Case, which was based on Esso v Plowman, is distinguishable from the
facts of the present case as it was decided in the context of Swedish Law, which provides
that a duty of confidentiality is not to be implied into an arbitration agreement [Partasides].
To conclude, Claimant was bound by the implied duty of confidentiality under Danubian
Law and the Tribunal should not follow the famously irregular decisions from the Swedish
and Australian Courts. The Tribunal should exercise its full powers to decide on the matter
of confidentiality [Model Law Note 36].
(b) Claimant breached its implied duty of confidentiality
19
60. By disclosing the existence of arbitral proceedings and giving explicit details on the nature of
the dispute [R. Ex. 1] Claimant breached its duty of confidentiality [supra 47, 49, 53].
B. THE TRIBUNAL SHOULD FIND THAT CLAIMANT IS LIABLE FOR
DAMAGES ARISING FROM ITS BREACH OF CONFIDENTIALITY
61. It has been established that Claimant was under a duty to keep the existence and the content
of the proceedings confidential and that Claimant breached this duty [supra 47, 49-53].
Respondent solely requests the Tribunal to find that Claimant is liable for breach of this duty
and as a result liable for any damages that may arise in the future because of this breach
[Defence 24].
62. Respondent requests that the question of quantum be considered in subsequent proceedings
and allow it to adduce evidence at a later stage up until the point at which an award on
quantum is rendered. Determination of quantum often raises issues, which merit separate
treatment after consideration of liability [Born 1816]. It is irrelevant that Respondent has been
unable to demonstrate the quantum of damages in relation to Claimants breach of
confidentiality [Cl. Mem. 75]. Respondent has been unable to show any loss because it is too
early to assess the effect Claimants comments have had on its reputation [Contra Cl. Mem.
75; Defence 9]. In order for damages to be awarded, they must be proven to be certain and
foreseeable [Derains/Kreindler 12, 14]. In Respondents case there was not just the mere
disclosure by Claimant of the existence of proceedings, but also scurrilous attacks on its
reputation before a widely distributed newspaper [supra 47, 49, 50]. Respondent had an
outstanding reputation in the fisheries trade throughout the world [Defence 7]. It is
reasonable to state that the effect of Claimants false accusations and more specifically its
statement that the only way to get [Respondent] to live up to [its] responsibilities is to force
[it] to do so to a trade newspaper distributed in forty-five countries caused damage to
Respondents reputation and will certainly result in monetary loss.
Conclusion on Issue III: Claimant was bound by a duty of confidentiality, breached its
duty, and is liable for damages to be assessed at a later stage.
ARGUMENTS ON MERITS
IV.RESPONDENT DID NOT BREACH THE CONTRACT
63. In an effort to satisfy its customers wanting lower squid prices, Claimant sought to import
squid from Danubia, where the squid was cheaper [Req. Arb. 9]. Claimant knew that
Danubian squid was often undersized, but it took the risk and ordered it anyway [Req. Arb.
9, Cl. Ex. 10 4, Cl. Ex. 2]. When contracting for the squid, Claimant failed to specify the
20
size it required, taking advantage of less expensive unsized squid [Cl. Ex. 3, 4]. Claimant was
very experienced in the fisheries trade and knew that unsized squid was cheaper than sized
squid [PO3 27]. As a result of its poor business judgement in contracting for unsized squid,
some of the delivered squid was too small for Claimants alleged purposes and Claimant now
seeks to shift the blame for this consequence to Respondent. The Tribunal is reminded that
Claimant bears the burden of proving non-conformity [ICC No. 6653; OLG Austria
1/7/1994; France Case 2; BG Switz. 7/7/2004; Chicago Prime Packers].
64. Respondent delivered squid in accordance with all contractual terms in compliance with Art.
35(1) CISG [A]. In addition, the delivered squid conformed to the model or in any event the
sample held out under Art. 35(2)(c) CISG [B]. Further, Claimant did not make known the
particular purpose for the squid and may thus not rely on Art. 35(2)(b) CISG [C]. In addition,
Respondent is exempted from liability under Art. 35(3) CISG and because Claimant assumed
the risk of receiving unsized squid [D].
A. RESPONDENT DELIVERED SQUID IN ACCORDANCE WITH THE
CONTRACT UNDER ART. 35(1) CISG
65. Art. 35(1) CISG requires the seller to deliver goods that are of the quantity, quality, and
description required by the contract. The contract is the primary basis to assess the
conformity of the goods [Honnold 224; Secretariat Commentary 33 2]. In the present case, the
the size of the squid was never specified in the contract [i] and the terms 2007/2008 catch
and as per sample, interpreted under Arts. 8 and 9 CISG, indicate that the parties contracted
for unsized squid [ii].
(i)
Size was never specified in the contract but 2007/2008 catch was
66. Claimant alleges that it contracted for squid sized between 100-150 grams [Cl. Mem. 98].
However, it failed to state this alleged requirement explicitly in its order form [Cl. Mem. 89,
98, 116, 117; Cl. Ex. 3]. Furthermore, Claimant argues that the year of the catch was
irrelevant [Cl. Mem. 117]. Yet, the sales confirmation explicitly stated 2007/2008 catch and
Claimant accepted the sales confirmation form in its entirety [Cl. Ex. 4; R. Ex. 2]. Thus,
Claimant cannot argue that a term that was never mentioned prevails over an explicit
contractual term.
(ii)
Under Arts. 8 and 9 CISG, the terms as per sample and 2007/2008 catch
indicate that the parties contracted for unsized squid
67. Art. 8 CISG provides that any statement or other conduct made by a party must be
interpreted with respect to the parties intent if the other party knew or could not have been
unaware of the intent [Bernstein/Lookofsky 42; ICC 8324; OLG Austria 23/1/2006]. If this
provision is inapplicable, according to Art. 8(2) CISG, statements and other conduct of a
party are to be interpreted according to the understanding that a reasonable person of the
21
same kind as the other party would have had under the circumstances [OG Austria
20/04/1997; OLG Ger. 30/08/2000]. To establish both intent and understanding of the
reasonable person, Art. 8(3) CISG provides that all the circumstances of the case must be
taken into account, including pre-contractual negotiations [Schlechtriem (2010) 146].
68. Claimant argues that its intent has always been to use the squid only for bait and that the
squid should therefore be of the 100-150 gram size [Cl. Mem. 100, 103]. Respondent accepts
that Claimant mentioned in the pre-contractual correspondence that the size of 100-150
grams was of particular importance to its customers [Cl. Ex. 2]. However, when the sample
was shown to Claimant, not only did it not mention that that size mattered [PO3 25], it also
did not mention that the squid would be used for bait and thereby indirectly indicate that size
mattered [PO3 25]. There was never any mention that the size of the sample was more
important than the catch. Although Claimant subsequently informed Respondent in writing
that it was particularly pleased with the size of the sample [Cl. Ex. 2], such a vague
communication does not indicate by any means that size was essential to the contract and
that it should prevail. Moreover, Claimant agreed to the explicit term 2007/2008 catch, and
thereby further confirmed Respondents understanding that the contract was for unsized
squid [Cl. Ex. 4; R. Ex. 2].
69. With unsized squid, the catch is the only attribute giving any indication of the squid size.
Since shipment was in June, Claimant, an experienced fish trader [PO3 27], could not have
been unaware of the fact that part of the squid contracted for must have been caught in the
early season, and would thus be too small to be used as bait [Cl. Ex. 10 9, PO3 27].
Therefore, neither Respondent nor a reasonable person in the same circumstances could
have been aware that Claimants wanted sized squid suitable for bait.
70. In the event of uncertainty, common trade usages prevail over basic rules of Art. 8 CISG
[Schlechtriem (2010) 162]. The role of trade usages is regulated in Art. 9(2) CISG, which
requires that commonly known trade terms and usages that are regularly observed by
comparable traders must be taken into account when interpreting the contract [Schlechtriem
(2010) 190; OG Austria 15/10/1998; OG Switz. 21/12/1992], but do not have to be in the
contract itself [OLG Austria 9/11/1995]. When applying this rule, trade practices in the
particular case must be taken into account [Schlechtriem (2010) 187-188]. In the squid trade,
unsized squid is commonly ordered by a reference only to the year of the catch [Defence 12].
According to this common trade usage in the fish trade, the year of the catch indicates
unsized squid. The fact that the sample was marked 2007 catch [Defence 10] indicated that
the Parties were contracting for unsized squid. Moreover, the explicit contractual term
2007/2008 catch further confirms this interpretation.
22
71. Although Claimant alleges that its need for squid for bait can be ascertained by its name
Trawler Supply [Cl. Mem. 106], it has to be noted that Claimant sells fish products for both
bait and human consumption. In fact, Claimant considers itself to have these two principal
lines of business [Cl. Ex. 10 2]. Accordingly there is no way that Respondent could have
known, simply by Claimants name, that Claimant wanted squid for bait.
72. As the size was never mentioned in the contract and all the relevant circumstances indicate
that the Parties contracted for unsized squid, the Tribunal should come to the conclusion
that Respondent delivered squid as required by the contract and has thereby complied with
by Art. 35(1) CISG.
B. RESPONDENT DELIVERED SQUID CONFORMING TO THE MODEL
AND IN ANY EVENT TO THE SAMPLE HELD OUT UNDER ART. 35(2)(C)
CISG
73. Art. 35(2)(c) CISG provides that the goods do not conform to the contract unless they
possess the qualities of goods which the seller has held out to the buyer as a sample or
model. The squid shown to Claimant was technically a model and Respondent delivered
squid conforming to it [i]. Should the Tribunal find the squid was held out as a sample,
Respondent was not required to deliver squid that possessed every quality of the sample, but
only the qualities indicated [ii]. Further, if the Tribunal finds that the qualities of the sample
are in conflict with the terms of the contract, the parties intended the catch quality to be
determinative [iii]. For these reasons, any duties under Art. 35(2)(c) CISG were fulfilled.
(i)
The squid shown to Claimant was legally a model and Respondent delivered
squid conforming to it
74. The terms model and sample have different legal meanings. A model is something that is
provided to the buyer so that he can examine the goods when they are not yet available
[Schlechtriem (2010) 583]. In contrast, a sample is taken from the actual goods to be delivered
[Schlechtriem (2010) 583]. In the case at hand, the sales confirmation form specified squid from
the 2007/2008 catch [Cl. Ex. 4]. The squid shown by Mr. Weeg was of 2007 catch, and at the
time of showing the 2008 squid was not yet available [Defence 10, 14]. Therefore, although
the Parties colloquially referred to the squid shown by Mr. Weeg as a sample it was legally a
model.
75. A model may represent all or only some features of the goods to be provided [Schlechtriem
(2010) 583]. In the case of a model, the contract needs to be interpreted in order to establish
which qualities of the goods are illustrated by the model and have therefore been
contractually agreed upon [Schlechtriem (2010) 583]. In the present case, as established above
[supra 67, 68], the contract was for unsized squid of the 2007/2008 catch. In contrast, the
model squid was unsized squid of 2007 catch. It follows that the size between 100-150
23
grams of the majority of the model squid was merely incidental and was not a quality
illustrated by the model. Thus the model illustrated unsized squid and Respondent delivered
squid in conformity with that model.
(ii)
Should the Tribunal find that a sample was provided, Respondent was not
required to deliver squid that possessed all of the qualities of the sample
76. In general, if a seller holds out goods to the buyer as a sample, he is bound to deliver goods
which possess all of the qualities of that sample, provided that the parties did not agree
otherwise [LG Ger. 27/2/2002; Skin Care Case; Delchi Carrier v. Roterex; Netherlands
14/10/1999; Di Matteo]. However, if the seller provided a sample and indicated that only
certain characteristics are possessed by the goods, he will only be bound to deliver goods that
conform to those indicated qualities [Bianca/Bonell 275; Secretariat Commentary Art. 35; Poikela
46]. Claimant asserts that Respondent was obliged to deliver squid complying with all of the
qualities of the sample squid [Cl. Mem. 115]. In particular, it argues that when Respondent
provided the sample it did not indicate that the delivered squid would deviate in any way
from the sample [Cl. Mem. 116]. However, Respondent inserted the 2007/2008 catch term
in the sales confirmation form [Cl. Ex. 4] and Claimant has never objected to it [Defence 15;
Cl. Ex. 2]. If Claimant was not satisfied with receiving 2007/2008 catch, the time to object
was on receipt of the sales confirmation.
77. Claimant is an experienced firm in fish trade and knows the seasons for harvesting the
different species of squid and that squid grows larger as the season progresses [PO3 27].
Moreover, since the shipment was made in June and the season began in April, it was clear to
both Parties that the 2008 catch part of the shipment would necessarily be sourced during
the first three months of the season meaning it would be young and small [Defence 15]. Thus,
the insertion of the 2007/2008 catch term was an explicit indication to Claimant that the
delivered squid would be smaller and that the size of the 2007 sample may not be complied
with.
(iii)
Even if the Tribunal finds that the qualities of the sample are in conflict with
the terms of the contract, the parties intended the catch to be determinative
78. The sample carton was marked illex danubecus 2007 [Defence 10] and the sales confirmation
classified the squid to be of the 2007/2008 catch [Cl. Ex. 4]. If the Tribunal finds that this
gives rise to a conflict between the terms of the contract and the sample, the contract must
be interpreted on the facts of the individual case in order to establish which qualities the
parties intended to take priority [Schlechtriem (2005) 423; OG Austria 11/3/1999; Art. 8 CISG].
While Claimant accepts this principle [Cl. Mem. 117], it applies the principle falsely. It alleges
that it should, as a rule, be assumed that qualities provided for under Art. 35(2)(c) CISG take
priority because in that respect, the buyer places no reliance on the sellers skill and judgment
24
[Cl. Mem. 117]. However, this rule applies where a conflict exists between two implied
qualities, one determined by the particular purpose under Art. 35(2)(b) CISG, and the other
represented by the sample under Art. 35(2)(c) CISG [Schlechtriem (2010) 583].
79. In the present case, the situation is markedly different as the Tribunal must decide whether
the explicit contractual description or the conflicting term implied by the sample prevails. In
fact, in accordance with the principle of party autonomy, the parties can change or clarify
some attributes of the sample goods by specific agreement [Leisinger 22]. If this is the case,
any agreement on features that deviate from the provided sample become binding under Art.
35(1) CISG [Leisinger 22]. In the instant case, the parties subsequently agreed on the explicit
term that the delivered squid would of the 2007/2008 catch. This specific agreement
deviated from the 2007 catch quality of the sample. Thus the 2007/2008 catch clause
became binding under Art. 35(1) CISG and prevails over the term previously implied by the
sample.
C. CLAIMANT DID NOT MAKE THE PARTICULAR PURPOSE FOR THE
SQUID KNOWN, THUS CLAIMANT MAY NOT RELY ON ART. 35(2)(B)
CISG
80. Art. 35(2)(b) CISG provides that if the particular purpose for the goods is made known to
the seller, then the goods should be fit for this purpose, except where the buyer did not rely
or it was unreasonable for him to rely on the sellers skill and judgement. First, the particular
purpose for the squid alleged by Claimant was not made known to Respondent [i]. Secondly,
Claimant did not rely on Respondents skill and judgement [ii].
(i)
Claimant failed to make its particular purpose made known
81. In order for a buyer to rely on Art. 35(2)(b) CISG, the buyer must make the particular
purpose known to the seller. To determine whether the particular purpose was made known,
the tribunal must ask whether a reasonable person would have understood the particular
purpose under the circumstances [Schlechtriem (2010) 581]. When certain goods have several
uses and even if both contracting parties are in the trade concerned, the buyer has to indicate
which of the several possible usages it intends to make the particular purpose. Otherwise, the
buyer cannot rely on non-conformity [NAI No. 2319].
82. In the present case, although Claimant initially inquired by email for a quotation for squid for
bait, several subsequent circumstances indicate that Claimants particular purpose was human
consumption. First, it failed to mention the purpose for bait when given the sample by Mr.
Weeg. [Cl. Ex. 1]. Second, not only did Claimant fail to mention its particular purpose in the
contract [Cl. Ex. 3, 4], it explicitly stated certified fit for human consumption [Cl. Ex. 3]. It
is notable that, under the heading Quality, the Parties described the squid in meticulous
detail. The contract stated as per sample already received, Grade A, iced on board and blast
25
frozen immediately upon discharge, fit for human consumption. Nowhere was bait
mentioned in this detailed description. Therefore, in light of the terms certified fit for human
consumption and the fact that Claimant sold fish products for human consumption [Req.
Arb. 2, 4], a reasonable person could have interpreted this to mean that Claimant wanted
squid for human consumption and not for bait. Accordingly, Claimant cannot rely on nonconformity with the alleged particular purpose for bait.
(ii)
As Claimant has equal skill and judgement in the fish trade, it could not have
relied upon Respondents skill and judgment
83. An additional requirement for Art. 35(2)(b) is that the buyer could have relied on the sellers
skill and judgement in choosing appropriate goods [Art. 35(2)(b) CISG]. Where both parties
have equal professional skill and judgement, or when the seller is more knowledgeable, such
reliance will be nullified [Magnus Art. 35 22; Henschel 236; Schlechtriem (2010) 23; OLG Ger.
11/09/1998]. There can be no reliance if the buyer has the same ability to estimate the
usability of the goods as the seller, namely Art. 35(2)(b) CISG only applies where the seller is
more knowledgeable than the buyer [LG Ger. 12/12/2006]. In the present case, both
Claimant and Respondent were experts in the buying and selling of fish products [PO3 26,
27].
Therefore, the Tribunal should find that Claimant could not have relied on
Respondents skill and judgement.

D. EVEN IF TRIBUNAL FINDS THAT RESPONDENT IS IN BREACH, IT IS
EXCLUDED FROM LIABILITY
84. Should the Tribunal find that Respondent breached either the particular purpose or the
sample provisions, Respondent is excluded from liability under Art. 35(3) CISG [i].
Additionally, Claimant assumed the risk of this transaction, and should therefore be held
accountable for its poor business decision [ii].
(i)
Respondent is exempted from liability under Art. 35(3) CISG
85. A seller is not liable for a lack of conformity if the buyer knew or could not have been
unaware of the lack of conformity [Art. 35(3) CISG]. This provision relates to the sample and
particular purpose arguments, as found in Art. 35(2)(a)-(c) [Schlechtriem (2010) 586]. As shown
in paragraphs [supra 67, 74], Claimant could not have been unaware for a number of
enumerated reasons that the squid contracted for would not be of the 100-150 gram size
range. Most importantly, in light of a June shipment, Claimant was aware that some of the
squid contracted for was caught in the early season, and therefore would be smaller [Cl. Ex.
10 9, PO3 27]. Thus, Claimant could not have been unaware of the lack of conformity of
the squid with its alleged particular purpose or its interpretation of the sample.
(ii)
Respondent is excluded from liability because Claimant assumed the risk of

receiving unsized squid
86. A party that foresees or discerns a circumstance and fails to protect itself accordingly
26
through agreement bears the risk of such circumstance [Schlechtriem (2010) 165]. As shown in
paragraphs [supra 67, 74]. Claimant foresaw the risk that the Danubian squid might be
undersized. Claimant failed to protect itself by including a term specifying the desired size in
the purchase order [Cl. Ex. 3]. Claimant further failed to protect itself by not objecting to the
2007/2008 catch term on the sales confirmation which implied that the squid would be
unsized [Cl. Ex. 4]. Thus, Claimant assumed the risk that the squid would be unsized and
Respondent is excluded from liability.
Conclusion on Issue IV: Respondent is not liable for breach of contract under Art. 35
CISG.
V.UNDER ARTS. 38 AND 39 CISG, RESPONDENT IS NOT LIABLE FOR THE
ALLEGED LACK OF CONFORMITY AS CLAIMANT FAILED TO PROPERLY
AND TIMELY INSPECT AND NOTIFY RESPONDENT
87. Claimant received the squid it ordered on 1 July 2008 but waited until 29 July 2008 to send a
vague message merely writing that the squid was hardly usable as bait [Cl. Ex. 10 9, Cl. Ex.
5]. Respondent was only fully informed of the true nature of the alleged non-conformity on
16 August 2008, 46 days after the squid was delivered [Cl. Ex. 7]. By this time, the long-liners
had already left port and there was nothing Respondent could do to remedy any potential
non-conformity.
88. Arts. 38 and 39 CISG impose a duty upon a buyer to examine delivered goods within as
short a period of time as is reasonable and to then notify seller if any deformities exist
[Schlechtriem (2010) 608, 624]. The main principle behind these articles is to facilitate a sellers
ability to cure any alleged defects [Vertsicherungen v. Atlarex; LG Ger. 29/07/1998]. The
Tribunal should reject Claimants arguments because it prevented the main principle of Arts.
38 and 39 CISG to be fulfilled. First, Claimant failed to conduct a proper inspection of the
delivered squid [A]. Even if Claimant is found to have properly conducted an inspection, it
failed to specifically and timely notify Respondent of the alleged non-conformity [B]. After
Claimants unreasonable delay and attempted notification, Respondent fulfilled its duty to ask
for more clarification [C]. Respondent was unaware of any alleged non-conformities in the
delivered squid and therefore Art. 40 CISG is inapplicable [D].
A. CLAIMANT FAILED TO CONDUCT A PROPER INSPECTION OF THE
DELIVERED SQUID
89. Claimant alleges that it conducted a reasonable inspection even though it failed to discover
the defects upon its inspection [Cl. Mem. 121]. It bases this assertion on the fact that the
squid was frozen and arrived in large quantities [Cl. Mem. 124, 125]. However, such
27
characteristics are considered typical in the frozen fish business [PO3 27]. It would be
unreasonable to allow Claimant to rely on these characteristics in order to avoid its duty to
inspect especially since Claimant admitted that it was in a rush to send squid to the longliners [Cl. Ex. 10 10]. This rush was the real reason for Claimants failure to conduct a
proper inspection.
90. Art. 38 CISG requires that the buyer conduct a reasonable inspection of the goods upon
delivery and such inspection should be thorough and professional [UNCITRAL Digest Art.
38; OG Austria 27/08/1999]. Where goods are delivered in large quantities, the buyer may
choose to take a representative sample of the lot to meet the thorough and professional
inspection requirements [Cl. Mem. 125; Schlechtriem (2010) 613; Bianca/Bonell 297; OG Switz.
24/03/1998]. Where the buyer is experienced in the trade, he must carry out a thorough and
expert examination [Schlechtriem (2010) 612; OLG 11/03/1998]. While the squid arrived in a
large total quantity, the squid was packaged in twelve containers and in small boxes that were
clearly labelled either 2007 or 2008 catch [Cl. Ex. 10 10; PO3 32]. Claimant only inspected
the first two containers and failed to inspect the last ten to arrive [PO3 31]. It only
conducted an inspection of the boxes marked 2007 catch and failed to inspect any box
marked 2008 even though the contract stated that the squid would be from both 2007 and
2008 catches [PO3 32; Cl. Ex. 4]. In contrast, TGT Laboratories took a sample of 120
cartons, ten from each container [Cl. Ex. 8]. Respondent submits that this is representative
sampling . In contrast, Claimants haphazard and selective inspection was neither thorough,
expert, nor representative of the entire lot.
91. Thus, Claimant cannot argue that it conducted a reasonable examination by taking the
required representative sampling. Further, Claimant misinterprets the requirement as it argues
that it would have reasonably discovered the defect only by sampling a large percentage of
the squid [Cl. Mem. 125]. Conversely, it would have been possible to take a representative
sampling of the entire delivery of squid by merely inspecting a few boxes from each
container just as TGT Laboratories did.
92. Claimant further argues that the alleged non-conformity is hidden and therefore it could not
have discovered the defect upon a reasonable examination [Cl. Mem. 127]. However, a
hidden defect is one that can only be detected upon the products use [Elastic Clothing Case].
In the instant case, the size of the squid was not hidden as it would have been easily
discernable if a reasonable examination had occurred. The process of defrosting and
weighing any box marked 2008 would have revealed the alleged non-conformity, just as the
same process revealed that the 2007 marked boxes were compliant with the desired attributes
[Cl. Ex. 10 10; Cl. Ex. 8]. Accordingly, Claimants allegation that the alleged non-conformity
28
was hidden is unfounded.

B. EVEN IF CLAIMANT IS FOUND TO HAVE PROPERLY CONDUCTED AN
INSPECTION, IT FAILED TO SPECIFICALLY AND TIMELY NOTIFY
RESPONDENT OF THE ALLEGED NON-CONFORMITY
93. The buyer loses the right to rely on a lack of conformity if it fails to give timely and specific
notice [Art. 39 CISG]. If the buyer fails to conduct a reasonable inspection and there is a lack
of conformity that could have been discovered, the notice period in Art. 39 CISG
commences from the time the buyer ought to have discovered the defect [Advisory Council
Opinion 2]. The notice must be prompt and specific [Schlechtriem (2010) 624, 630]. Claimant
waited too long to give notice and such notice was not specific [i]. While Claimant sent an email specifying the alleged non-conformity, its reply arrived too late to constitute proper
notification [ii].
(i)
Claimant waited too long to give notice and such notice was not specific
94. Notice must be sufficiently timely and specific to allow the seller to cure defects and
particularly to prepare for the delivery of substitute goods [Schlechtriem (2010) 624-625].
Prompt notice is required, especially where a buyer chooses to reject the goods [Schlechtriem
(2010) 630]. At the earliest, Claimant sent an e-mail purporting to notify Respondent 28 days
after delivery, two weeks after the long-liners had left port and inspected the squid
themselves [Cl. Ex. 5]. Thus, Claimant rejected the squid 28 days after delivery, but failed to
provide prompt notice [Req. Arb. 27]. As a result of this delay, it was impossible to provide
any replacement squid because the long-liners had already used other bait or purchased squid
from other sources [Cl. Ex. 10 12]. Therefore, Claimant breached the underlying principle
of Art. 39 CISG that a seller should have the opportunity to cure alleged defects.
95. A professional buyer is obliged to notify the seller using sophisticated terms such as size and
appearance of the goods rather than stating that the goods are merely inferior [OLG Ger.
3/06/1998]. However, Claimant, a professional fish dealer, argues that the words hardly
usable as bait were sufficient to put Respondent on notice of the specificity of the defect [Cl.
Mem. 135]. These words did not put Respondent on notice of any defects because this
phrase does not identify Claimants position that the squid was too small but merely speaks
to an alleged inferior quality. The use of such a vague phrase left Respondent secondguessing Claimants meaning and position, contrary to the requirement of specificity.
(ii)
While Claimant sent an e-mail specifying the alleged non-conformity, its reply
arrived too late to constitute proper notification
96. Claimant sent a follow-up e-mail 18 days after its first insufficient e-mail specifying further
details of the alleged non-conformity [Cl. Ex. 7, 8]. This was 46 days after it discovered the
alleged defect [Cl. Ex. 7]. Although Claimant does not argue that the second communication
constituted proper notice, and should the Tribunal consider this issue, the second e-mail was
29
sent too late to meet the time requirement under Art. 39 CISG. One month is a generous
period of time for notification [BG Ger. 8/03/1995]. Thus, a period of 46 days is excessive.
Such a delay was unreasonable as it did not allow Respondent to prepare for the delivery of
substitute goods.
C. RESPONDENT FULFILLED ITS DUTY TO ASK FOR CLARIFICATION
AFTER THE FIRST VAGUE E-MAIL
97. Claimant further argues that seller has the duty to ask for clarification if notice is insufficient
[Cl. Mem. 137]. While this is true, Respondent fulfilled this duty. It sent a follow up email
requesting more information three days after the first untimely and unspecific e-mail was sent
[Cl. Ex. 6]. Respondent was attempting to do everything in its power to determine what the
problem was and to remedy the situation if possible.
D. RESPONDENT WAS NOT AWARE OF THE SIZE REQUIREMENT AND
THEREFORE ART. 40 CISG CANNOT APPLY
98. Claimant argues that Respondent cannot rely upon Arts. 38 and 39 CISG if the nonconformity relates to facts of which it knew or of which it could not have been unaware [Cl.
Mem. 142]. The main argument presented is that Respondent consciously disregarded
apparent facts that were of evident relevance to the non-conformity [Cl. Mem. 142].
However, as has been proven above, Respondent was not aware that the squid should be of a
certain size to be used solely as bait [supra 82]. In addition to this unsubstantiated allegation,
Claimant argues that Respondent delivered 2008 catch squid which Respondent knew was
too small [Cl. Mem. 144]. It concludes that Respondent should have waited months until the
entire 2008 catch was of appropriate size for Claimants alleged use [Cl. Mem. 144].
However, this would have been contrary to the specific contractual requirement that delivery
must be prompt found both on the order form and sales confirmation [Cl. Ex. 3, 4].
99. Finally, Claimant arbitrarily alleges that Respondent did not act in good faith by delivering
2008 catch squid [Cl. Mem. 144]. Respondent strongly refutes this allegation because in order
to prove bad faith under the CISG, a more than gross negligence standard is often applied
[Huber/Mullis 164]. This standard was described as a conscious disregard of facts that meet
the eyes and are of evident relevance to the non-conformity [Huber/Mullis 165]. Far from
being grossly negligent, Respondent acted in good faith by respecting the explicit contractual
terms and by delivering both 2007 and 2008 catch squid promptly as required by the contract
[Cl. Ex. 4].
Conclusion on Issue V: Claimant failed to properly inspect and notify Respondent of the
alleged non-conformity in breach of Arts. 38 and 39 CISG.
30
VI.SHOULD THE TRIBUNAL FIND A BREACH OF CONTRACT, NO REMEDY IS

AVAILABLE TO CLAIMANT
100. Claimant requests the Tribunal to award it reimbursement of the entire purchase price
reduced by the value of the squid sold [Cl. Mem. 175-179]. It further requests damages for
loss of profit, preservation costs and costs incurred to sell the residual squid [Cl. Mem. 155].
Even if the Tribunal finds that Respondent breached the contract, Claimant is not entitled to
the remedies it has requested. First, Claimant is not entitled to restitution of the purchase
price in the requested amount [A]. Further, any damages awarded to Claimant should be
reduced as it failed to adequately mitigate the loss [B].
A. CLAIMANT IS NOT ENTITLED TO RESTITUTION OF THE PURCHASE
PRICE IN THE REQUESTED AMOUNT
101. Claimant specifically cannot recover the entire purchase price under Art. 50 CISG [i]. In
any event, Claimant is not entitled to the entire purchase price under the CISG as there was
no fundamental breach [ii].
(i)
Claimant cannot recover the entire purchase price under Art. 50 CISG
102. Art. 50 CISG allows the buyer a proportionate reduction of the price calculated by
comparing the value of non-conforming goods with the value that conforming goods would
have had at the time of delivery [Sivesand 59; Liu; Will 371-372]. Claimant incorrectly applied
Art. 50 CISG in two ways. Firstly, the party relying on this provision bears the burden of
proving the amount and extent of non-conformity [Liu]. Claimant merely stated that all of
the goods were without any value due to the fact that goods were not marketable in
Claimants location [Cl. Mem. 176-177]. However, the delivered squid had resale value. The
entire 2007 catch squid could have been sold for bait as it was of the appropriate size for this
purpose [Req. Arb. 18; Cl. Ex. 8]. Further, the smaller squid could have been sold for other
purposes such as human consumption or at least as fishmeal [Cl. Ex. 8; Cl. Ex. 10 10].
103. In an effort to support its allegation that the squid was worthless, Claimant relies on the
defective coffeemakers case [Cl. Mem. 176; Coffee Maker Case]. In that case, the coffeemakers
were found not to be resaleable because they could not be resold for any purpose other than
to make coffee. As the squid could have been sold for all the above mentioned purposes,
Claimant cannot rely on the Coffee Maker Case.
104. In addition, Art. 51 CISG provides that, if only part of the goods delivered is in
conformity with the contract, the proportionate reduction in price under Art. 50 CISG
applies only in respect to the part of the goods which does not conform. Claimant
misunderstood the application of this article and attempted to apply the price reduction to
the entire delivery including the 40% of the conforming goods [Cl. Mem. 176, 177]. Even if
31
the Tribunal decides that 60% of the allegedly non-conforming squid was completely
worthless, applying Arts. 50 and 51 CISG, Claimant could request at most a 60% reduction
in the purchase price. However, Claimant is asking for $297,000 which is a 93% reduction in
the purchase price [Req. Arb. 30; Cl. Mem. 175]. Accordingly, Claimant is not entitled to its
requested reduction in purchase price under Art. 50 CISG.
(ii)
Claimant is not entitled to the entire purchase price under any other provision
of the CISG as there was no fundamental breach
105. A request for the full purchase price is a restitutionary remedy [Secretariat Commentary Art.
81]. Under the CISG, restitution requires avoidance of the contract [Art. 81 CISG]. To avoid
the contract, a party must prove a fundamental breach [Art. 49(1)(a) CISG]. Additionally, in
situations where only a part of the goods are nonconforming, as in this case, the buyer may
declare the contract avoided in its entirety only if the failure to make delivery . . . in
conformity with the contract amounts to a fundamental breach [Art. 51(2) CISG emphasis
added]. In order to show a fundamental breach, the breach must result in such detriment to
the other party as substantially to deprive him of what he is entitled to expect under the
contract [Art. 25 CISG]. Art. 25 CISG must be interpreted in a narrow manner and when a
tribunal is in doubt, it should find that there was no breach [DiMatteo et al 412]. In the present
case, Claimant did not even address fundamental breach. Even if it had done so, the breach
in the present case did not amount to a fundamental breach.
106. A fundamental breach requires that the detriment must be serious [Schlechtriem (2005) 282;
Peacock; Hong Kong Fir Case; Graffi 339-340; Huber/Mullis 33]. Thus, a buyer is not entitled to
avoid the contract unless the goods are worthless and the goods cannot be used for any other
purpose [Giustoma v. Perfect Circle; OLG Ger. 17/9/1991; Schlechtriem (2005) 282; BGH Ger.
03/04/1996]. In the present case, Claimant submits that it is entitled to nearly the full
purchase price because the delivered squid was without any value. [Cl. Mem. 176-177].
However, as demonstrated above [supra 102 ] the goods did have a resale value. Therefore, if
the Tribunal finds that there was a breach of contract, this breach did not amount to a
fundamental breach. Accordingly, Claimant is not entitled to restitution in the form of the
purchase price.
B. ANY DAMAGES POTENTIALLY AWARDED SHOULD BE REDUCED AS
CLAIMANT FAILED TO MITIGATE LOSS
107. Claimant asserts that it took reasonable steps to mitigate loss [Cl. Mem. 164-174]. In
particular, it submits that it acted reasonably by selling 10% of the residual squid in foreign
markets, by preserving the goods, and by ultimately disposing of the squid [Cl. Mem. 172174]. In order for an aggrieved party to be entitled to full damages it should take reasonable
measures in the circumstances to mitigate loss [Opie 3; Zeller II]. This should be evaluated
32
from the perspective of a reasonable person acting in good faith [Buschtns 25; Schlechtriem
(2010) 1045; Posch/Petz 23; OG Austria 6/2/1996]. In order to adequately mitigate loss,
practical and positive steps must be taken by the aggrieved party [Russia 6/6/2000; HG Switz.
03/12/2002]. Thus, the aggrieved party cannot wait passively for the loss to increase and
then sue for damages [Riznik 1.3; ICC No. 8817]. In the present case, Claimant failed to
make a reasonable effort sell the 2007 catch squid that was suitable for bait (i). It also failed
to make a reasonable effort to sell the squid in foreign markets (ii). Further, Claimant made
no efforts to sell the squid for any purpose other than for bait (iii).
(i)
Claimant failed to make a reasonable effort to sell for bait the cartons labelled
2007 catch which was of the appropriate size for bait.
108. Claimant submits that the long-liners became aware that it was dealing in undersized squid
and it could therefore not resell the portion of the squid that was suitable for bait [Cl. Mem.
173]. However, the laboratory test showed that 94% of the 2007 catch squid was within the
size range of 100-150 grams [Cl. Ex. 8], which is ideal for bait. Two percent were between
90-100 grams and four percent were between 150-180 grams [Cl. Ex. 8]. Claimant confirms
that some product below the 100-150 range is acceptable as is some product as high as 200
grams [Req. Arb. 14]. Accordingly the 2007 catch was suitable for bait. By simply sending a
copy of the laboratory test to its customers, Claimant could have shown that the 2007 catch
squid was suitable for bait. By doing this, Claimant would have easily overcome its alleged
loss of reputation. Therefore, it cannot rely on this as a ground for not selling the 2007 catch
squid.
109. The underlying idea of Art. 77 CISG is that a party cannot recover for damages or losses
that could reasonably have been avoided [Schechtriem (2005) 787; Secretariat Commentary Art. 73;
Enderlein/Maskow 309; Hang Tat v. Rizhao]. Had Claimant sold the 2007 catch squid, it would
not have incurred any costs for preservation or disposal of this portion of the squid. Because
Claimant could have reasonably avoided these mitigation costs, it is not entitled to requests
them as damages.
(ii)
Claimant should have made reasonable efforts to sell the squid in foreign
markets
110. Although Claimant asserts that the market was small and saturated and thus it was unable
to sell the squid domestically [Cl. Ex. 10], Claimant should have made reasonably efforts to
sell it in the international market. Claimant contacted Reliable Trading House, which sold
only 10% of the delivered squid [Cl. Ex. 10]. Claimant made no further attempts to resell the
residual squid [Cl. Ex. 10]. A party is required to make efforts to mitigate when the costs for
such efforts are in proportion to the benefit of the cure [OGH Austria 14/01/2002]. In the
present case, the mitigation costs to sell the squid would have been a fraction of the potential
33
benefit from such sale [Req. Arb. 30]. Therefore, Claimant should have contacted a further
intermediary reseller. A failure to sell goods in foreign markets may amount to a failure to
mitigate [OLG Ger. 02/09/1996]. As Claimant did not make reasonable efforts to sell in
foreign markets, the Tribunal should find that Claimant failed to undertake reasonable
mitigation.
(iii) Claimant failed to sell the squid for any other purpose than for bait
111. A party trying to sell the goods should assess whether the goods can be sold for purposes
other than those contracted for [French Case]. One of the possible commercial uses of squid is
fishmeal [Cl. Ex. 10 10]. Claimant made no effort whatsoever to sell the squid for this
purpose. If Claimant had attempted to do so, it would have made some profits and thereby
reduced damages.
112. Moreover, Claimant increased the losses by leaving the squid to deteriorate in its
warehouse. As a result it paid $6000 for the disposal of the squid [Req. Arb. 30]. As these
costs could have been avoided by selling the squid for fishmeal, the requested damages
should be further reduced by this amount.
Conclusion on Issue VI: Claimant cannot recover the purchase price it requested and
claimed damages should be reduced because it failed to mitigate as required under Art. 77
CISG.
REQUEST FOR RELIEF
Respondent respectfully requests the Tribunal to:
Order Claimant to respect the confidentiality of the arbitral proceedings and the award;
Find that the Tribunal has not been constituted in accordance with the arbitration
agreement.
In the alternative, Respondent respectfully requests the Tribunal to:
Find that Claimant is liable for any damage that can later be demonstrated resulting from
its breach of the confidentiality of the proceedings;
Find that the shipment of squid to Claimant was in conformity with the contract;
Find that Claimant neither conducted an adequate examination of delivered squid nor
properly notified Respondent and thus Claimant has lost its right to rely upon the alleged
lack of conformity of the goods; and
Award Respondent costs in the arbitration.
34

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EIGHTEENTH ANNUAL

WILLEM C. VIS INTERNATIONAL COMMERCIAL ARBITRATION MOOT

MEMORANDUM FOR RESPONDENT

Mediterraneo Trawler Supply SA,

Equatoriana Fishing Ltd.,

TAYLOR BARTLETT PATRYCJA BIENIEK NICHOLAS KAZAZ

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All England Law Reports

Amended Statement of Defence

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Chamber of Arbitration of Milan documents (as referenced)

Chamber of Arbitration of Milan

Chamber of Arbitration of Milan Rules of Arbitration

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International Bar Association

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Handelsgericht (Commercial Court)

International Bar Association

id est (that is)

International Chamber of Commerce

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Landgericht (District Court, Germany)

Oxford English Dictionary

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Tribunal De Grande Instance de Paris

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UNCITRAL Model Law on International Commercial

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Arbitration Rules of the Chamber of Arbitration Milan 2004

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Chamber of Arbitration of Milan Code of Ethics

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IBA Guidelines on Conflicts and Interests of International

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