Willem C.

Vis International Commercial Arbitration Pre – Moot

Foreign Trade University - 2021

HANOI LAW UNIVERISTY

MEMORANDUM FOR CLAIMANT

On behalf of
RespiVac plc - Rue Whittle 9, Capital City, Mediterraneo
(CLAIMANT)

Against
CamVir Ltd VectorVir Ltd
112 Rue L. Pasteur
Oceanside, Equatoriana
(RESPONDENT No.1)
67 Wallace Rowe Drive Oceanside, Equatoriana (RESPONDENT
No.2)

HEILEN – COUNSELS
DOAN HUU KIEN ● PHAM THU NGAN ● HOANG MINH NGUYET
(Representative email and phone number: 0916095688)

HANOI ● VIETNAM
 TABLE OF CONTENTS

TABLE OF ABBREVIATIONS ............................................................................................... iii

INDEX OF LEGAL AUTHORITIES ....................................................................................... iv

INDEX OF CASES AND ARBITRAL AWARDS .................................................................. ix

LEGAL SOURCES AND MATERIALS................................................................................... x

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

ARGUMENTS ........................................................................................................................... 2

ISSUE 1: ROSS SHOULD NOT BE JOINED THE ARBITRATION ..................................... 2

I. Ross is not a party to the arbitration ................................................................................... 2

1. Ross is not in a defined legal relationship with CLAIMANT under the PCLA’s

arbitration agreement......................................................................................................... 2

2. Ross is not bound by the arbitration clause ................................................................... 3

II. Even if Ross is a party to the arbitration, it should not be joined .......................................... 4

1. The presence of Ross goes against the equal treatment principle, leading to

confidentiality loss. ................................................................................................................ 4

2. The efficiency of the proceedings can be negatively affected ........................................... 5

ISSUE 2: THE EXAMINATION OF WITNESSES AND EXPERTS SHOULD BE

CONDUCTED REMOTELY .....................................................................................................

5 I. The Tribunal has the power to conduct such hearing remotely ..........................................

6 1. Tribunal must conduct remote hearing due to public interests ..................................... 6

2. The Tribunal is obliged to contribute to the proceedings’ efficiency ........................... 7

II. Remote hearing does not put RESPONDENT in a disadvantaged position ..................... 7

1. RESPONDENTS’ right to be heard is still ensured ...................................................... 7

2. Equal treatment is still ensured in the hearing .............................................................. 8

ISSUE 3: CISG IS APPLICABLE TO THE PCLA ...................................................................

8 I. The PCLA is an international sale of goods contract under the CISG. .............................. 8

1. The PCLA constitutes an international sales contract within the CISG. ...................... 8

(i) The parties are based in different contracting States of the CISG. ......................... 9

i
 (ii) The PCLA contains acts of a sale. .......................................................................... 9 2.
The PCLA is a contract for the sale of goods under the CISG. .................................... 9 (i)
The subjects of the PCLA qualify as goods............................................................ 10

(ii) The preponderant obligations of the contract lie in the supply of goods, not the

provision of services regarding Article 3.2 CISG. ..................................................... 10

a. The purchase value of the PCLA signifies preponderant sale obligations. ....... 10

b. Intentions of parties throughout the process point to a sale contract. .............. 11

II. The choice of law agreed on by both parties is to apply the CISG. ................................ 11

ISSUE 4: RESPONDENT 1 breached its contractual obligations to deliver conforming goods

pursuant to Article 42.1 CISG .................................................................................................. 12

I. RESPONDENT 1 has violated Article 42(1) by delivering to CLAIMANT the first batch

of GorAdCam vectors. ......................................................................................................... 12

1. The vectors are not free from IP rights disputes and imminent claims. ......................

12 (i) The base IP rights are fundamental and inseparable for the viral vectors. ..........

12

(ii) Third party claims based on IP rights regarding the vectors might be
forthcoming. ................................................................................................................
12 2. RESPONDENT 1 has known and is obliged to know of Ross’s potential rights and
claims when contracting with CLAIMANT. .................................................................. 13

(i) RESPONDENTS acknowledged Ross’s situation when contracting with

CLAIMANT. ................................................................................................................ 13

(ii) There has been gross negligence on RESPONDENT 1 part regarding this issue

throughout the contracting process. ........................................................................... 13

II. CLAIMANT has informed RESPONDENTS at reasonable notice. ...............................

14 PRAYERS FOR RELIEF .........................................................................................................

15
ii
 TABLE OF ABBREVIATIONS

Ans to Arb Answer to Arbitration

Art. Article

CE CLAIMANT Exhibit

CISG United Nations Convention on Contracts for the

International Sales of Goods

CEO Chief Executive Officer

COO Chief Operating Officer

Et al Et alia

EUR European Monetary unit

ICC International Chamber of Commerce

IP Intellectual property

No. Number

Notice of Arb Notice of Arbitration

NYC New York Convention

P. Page

pp. Pages

Para. Paragraph

PCLA Purchase, Collaboration and License Agreement

PO Procedural Order No.

RE RESPONDENT Exhibit

SRIA Swiss Rule on international arbitration

Subpara. Sub paragraph

UNCITRAL United Nations Commission on International Trade Law

iii
 INDEX OF LEGAL AUTHORITIES

Alan Redfern/Martin Redfern and Hunter on international arbitration, 6th edition,

Hunter/ Blackaby Nigel/ Oxford University press, November 17, 2015
Partasides Constantine Cited as: Redfern/Hunter/ Nigel/Constantine

C. Rauda/G. Etier Warranty for Intellectual Property Rights in the

International Sale of Goods, Vindobona J. of Int'l. Comm.
L. & Arb. 30 at 36, 2000
cited as: Rauda/Etier

CISG Digest UNCITRAL Digest of case law on the United nations

Convention of contracts for the International sales of goods

CISG-AC 4 CISG-AC Opinion no 4, Contracts for the Sale of Goods to

Be Manufactured or Produced and Mixed Contracts (Article
3 CISG), 24 October 2004.
Rapporteur: Professor Pilar Perales Viscasillas, Universidad
Carlos III de Madrid.
Adopted by the CISG-AC on the 7th meeting held in
Madrid with no dissent.
Cited as: CISG-AC 4

David C. Singer Conducting the Evidentiary Hearing Remotely, New York

Dispute Resolution Lawyer,Vol. 13, No. 2, p.32-33
Cited as: Singer

Eduardo Silva Romero/ The Extension Of The Arbitral Agreement To Non-

Luis Miguel Velarde Saffer
Signatories In Europe: A Uniform Approach?, American University Business Law Review,
Vol. 5, No. 3, 2016 .

Cited as: Romeo/Saffer

Franco Ferrari/Harry M. The Draft UNCITRAL Digest and Beyond, 2004

Flechtner/Ronald A. Brand
Cited as: Ferrari/Fletchtner/Brand

iv
Gary B. Born International commercial arbitration, 2nd edition, Kluwer
Law International, 2014
Cited as: Born

Hosking/Cardoso James Hosking, Marcel Engholm Cardoso, Practical

Considerations for Holding a RemoteArbitration Hearing,
New York Dispute Resolution Lawyer, Vol. 13, No. 2,
pp.14-17, 2020.
Cited as: Hosking/Cardoso

Irene M. Ten Cate Multi-Party and Multi-Contract Arbitrations: Procedural

Mechanisms and Interpretation of Arbitration Agreements
Under US Law, Am.Rev.Int'L Arb. 15, pp. 133-169, 2004
Cited as: Ten Cate

J. Anthony VanDuzer A Seller's Responsibility for Third Party Intellectual

Property Claims: Are the UN Sales Convention Rules
Better?, Canadian International Lawyer, 2001 cited
as: Anthony

Jacob Ziegel The Scope of the Convention: Reaching out to Article one
and beyond, Journal of Law and Commerce, 2006
Cited as: Ziegel

Jacqueline Mowbray The Application of the United Nations on Contract for the
International Sale of Goods to E-Commerce Transactions:
The Implications for Asia, Vindabona Journal of
International Commercial Law & Arbitration, 2003
Cited as: Mowbray

Janet Walker Virtual Hearings: An Arbitrator’s Perspective, 2020

Available at:

v
John Honnold Uniform Law for International Sales Under the 1980 United
Nations Convention, 2014
Cited as: Honnold

Joseph Lookofsky The 1980 United Nations Convention on Contracts for the
International Sale of Goods, International Encyclopaedia of
Laws - Contracts, 2000
Cited as: Lookofsky

Julian Lew/ Loukas Comparative International Commercial Arbitration, Kluwer

Mistelis/Stephan Kröll Law International, 2003
Cited as: Lew/Mistelis/Kröll

Maxi Scherer Remote Hearings in International Arbitration: An Analytical

Framework, Journal of International Arbitration, 37(4),
2020
Cited as: Scherer

Maxi Scherer/ Dharshini The Principle of Equal Treatment in International, A.

Prasad/ Dina Prokic Björklund, F. Ferrari & S. Kröll (eds), Cambridge
Compendium of International Commercial and Investment
Arbitration, 2018
Cited as: Scherer/Prasad/Prokic

Michael Waibel The principle of privity, University of Cambridge faculty of

law, Legal studies, paper No.44, 2016
Cited as: Waibel

Mohamed S. Abdel Wahab

Exculpating the Fear to Virtually Hear: A Proposed
Pathway to Virtual Hearing Considerations inInternational Arbitrations, New York Dispute
Resolution Lawyer, Vol. 13, No. 2, p.18-21, 2020.
Cited as: Wahab

vi
Petar Sarcevic/ International Sale of Goods: Dubrovnik Lectures, Oceana,
Paul Volken Ch. 5, 1996
Cited as: Sarcevic/Volken

Peter Huber/ The CISG: A new textbook for students and practitioners,
Alastair Mullis München 2007
Cited as: Huber/Mullis

Peter Schlechtriem Uniform Sales Law - The UNConvention on Contracts for

the International Sale of Goods, Wien, Manz, 1986
Cited as: Schlechtriem 1986

Peter Schlechtriem/ Commentary on the UN Convention on the International

Ingeborg Schwenzer Sale of Goods (CISG), 4th edition, Oxford University Press,
2016
Cited as: Schlechtriem/Schwenzer

Philippe Bartsch/ Swiss Rule of International Arbitration Commentary, 2nd

Angelina M/Petti edition, Juris Publishing, pp.52-67, 2013
Cited as: Bartsch/Petti

Pierre Mayer The Extension of the Arbitration Clause to Non-Signatories

- The Irreconcilable Positions of French and English Courts,
27 AM. U. INT'L L. Rev, pp.831-32, 2012
Cited as: Mayer

R. Caivano Dispute settlement in International commercial arbitration,

module 5.2 The arbitration agreement, United Nations
Conference on Trade and Development, 2003
Cited as: Caivano

S. I. Strong Third Party Intervention and Joinder as of Right in

International Arbitration: An Infringement of Individual
Contract Rights or a Proper Equitable Measure?, 31 Vand.
J. Transnat'l L. 915, 1998
Cited as: Strong

vii
Secretariat Commentary UNCITRAL, Secretariat Commentary on Article 42 CISG,
the 1978 Draft of the CISG
cited as: Secretariat

Tobias Zuberbuehler/ Introductory Rules: Consolidation of Arbitral proceedings

Klaus Muller et al. (Joinder), participation of third parties (Art.4), Swiss Rules
of International Arbitration commentary, Kluwer law
International, p.36-44, 2005
Cited as: Zuberbuehler/Muller et al.

Ulrich Schroeter Vienna Sales Convention: Applicability to 'Mixed Contracts'

and Interaction With the 1968 Brussels Convention, 2001
cited as: Schroeter

viii
INDEX OF CASES AND ARBITRAL AWARDS

Dow chemical v. Isover Saint Gobain

Dow chemical v. Isover Saint Gobain Paris Court of Appeals
(1983) October 21, 1983
cited as: Dow chemical case

Société Korsnas Marma v.

Société Durand-Auzias
Société Korsnas Marma v. Société Durand-Auzias Court of Appeal of Paris
(1988) November 30, 1988
Cited as: Marma v. Durand-Auzias

Cylinder case Germany District Court Mainz

(1998) November 26, 1998
Cited as: Cylinder case

Am.Bureau of Shipping v.
Tencara Shipyard S.P.A
Am.Bureau of Shipping v. Tencara Shipyard S.P.A United States court of Appeals
(Second Circuit)
(1999) March 17, 1999
Cited as: Tencara case

Asante Technologies v. PMC-Sierra

Asante Technologies, Inc. v. PMC-Sierra, Inc. U.S. [Federal] District Court for the
Northern
(2001) District of California
July 30, 2001
Cited as: Asante v. PMC-Sierra

Pack All Manufacturing

Inc. v. Triad Plastics Inc
Pack All Manufacturing Inc. v. Triad Plastics Inc Superior Court of Justice Ontario
(2001) October 1, 2001
Cited as: Pack All v. Triad Plastics

X., Y. & A. v. Z X.__S.A.L., Y__S.A.L. & A __. v. Z.__ Sàrl

(2003) First Civil Law Court
October 16, 2003
cited as: X., Y. & A. v. Z

Recycling machine case

Oberster Gerichtshof, Austria Supreme Court Case

ix
(2005) November 8, 2005
cited as: Recycling machine case

Capic v. Ford Motor Company of Australia

Capic v. Ford Motor Company of Australia Limited Federal Court of Australia
Limited April 15, 2020
(2020) cited as: Capic v. FMCA

LEGAL SOURCES AND MATERIALS

CISG United Nations Convention on Contracts for the

International Sales of Goods

ICC Guidance note

ICC Guidance Note on possible measures aimed at mitigating the effects of the
COVID-19 pandemic

SRIA Swiss Rule on International arbitration

UNCITRAL Model Law

UNCITRAL Model Law on International Commercial Arbitration

x
 STATEMENT OF FACTS

1.The Parties to this arbitration are RespiVac plc (“CLAIMANT”) and CamVir Ltd
(“RESPONDENT 1”), VectorVir Ltd (“RESPONDENT 2”)

2.CLAIMANT is a start-up biopharmaceutical company engaged in the development of

vaccines for respiratory diseases caused by viruses.

3.RESPONDENT 1 is the Contract Manufacturing Organisation of Roctis. It produces

pharmaceutical base materials under licenses or sublicenses from Roctis’ other
subsidiaries and outside the company. RESPONDENT 2 is a small company owning
patents for GorAdCam and ChAdcam viral vectors, whose potentials were seen in the
field of malaria and all respiratory diseases respectively.

4. On 15 June 2014, RESPONDENT 2 granted Ross Pharmaceuticals (“Ross”) an

exclusive license to use GorAdcam for “malaria and infectious diseases” under the
Collaboration and License Agreement (“Ross Agreement”) [CE C1]

5. In August 2018, Roctis acquired RESPONDENT 2 and its patents. After Roctis’
acquisition, RESPONDENT 2 signed an exclusive license agreement with
RESPONDENT 1 to produce, sell and sublicense GorAdcam for all applications
except malaria [CE C2].

6.On 1 January 2019, CLAIMANT entered into a Purchase, Collaboration and Licensing
Agreement (“PCLA”) with RESPONDENT 1, to develop a vaccine against respiratory
diseases. If CLAIMANT successfully develops and produces a vaccine, CLAIMANT
has to buy the HEK 294-cells and cell growth medium from RESPONDENT 1 [CE C3,
section 16]. Afterward, CLAIMANT concentrated on a vaccine against COVID-19.

7.On 1 May 2020, after knowing the dispute between Ross and RESPONDENT 2 as to the
reach of the Ross Agreement on saying “malaria and comparable infectious disease”,
CLAIMANT contacted RESPONDENT 1, begging for clarification [CE C4]. The
scope of an exclusive license, according to Ross, can be inclusive of research into
COVID-19 as “infectious diseases”[CE C7].

8. On 4 May 2020, RESPONDENT 1 replied playing down the problem [CE C6].
Supposing that RESPONDENT 1 did not deliver GorAdcam vectors which are free

1
 from any right or claim of a third party for CLAIMANT, CLAIMANT brought the case
to arbitration for a declaration as to the existence of a breach of contract.

ARGUMENTS

ISSUE 1: ROSS SHOULD NOT BE JOINED THE ARBITRATION

9.RESPONDENTS request the joinder of Ross to the current arbitration under Art.4.2
SRIA, which stipulated that “the arbitral tribunal shall decide on such request, after
taking into account all relevant circumstances”.

10. The joinder of a third party raises problems in connection with the scope of the
arbitration agreement. It has to be determined whether this third party can be regarded
as a party to the arbitration clause and whether an extension of the arbitration clause
can be accepted [Zuberbuehler/Muller et al, p.39; X., Y. & A. v. Z].

11. CLAIMANT strongly objects to the joinder of Ross, since (I) Ross is not a party to the
arbitration; and (II) Even if Ross is a party to the arbitration, it cannot be joined.

I. Ross is not a party to the arbitration

12.Arbitration agreements are a matter of contract law expressly agreed to by the parties. A
contract cannot confer rights or impose obligations on any persons other than the
parties to the contract [Yu et al, p.2]. In other words, a party who is not in a defined
legal relationship under the arbitration agreement cannot join the arbitral proceedings.

13. In the current situation, Ross has not considered a party to arbitration because (1) It is
not in a defined legal relationship with CLAIMANT under the PCLA’s arbitration
agreement, and (2) Ross is not bound by such agreement.

1. Ross is not in a defined legal relationship with CLAIMANT under the PCLA’s
arbitration agreement

14.Under Art.7.1 UNCITRAL Model Law, ‘arbitration agreement’ is an agreement by the

parties to submit toarbitration all or certain disputes which have arisen or which may
arisebetween them in respect of a defined legal relationship, whether contractualor not.
A defined legal relationship can be construed as a concrete and specific legal
relationship between the parties [Caivano, p.22].

2
15. In this case, each license agreement has its own arbitration clause which regulates the
corresponding relationship between the licensor and licensee. Hence, specific
considerations under the PCLA only bind CLAIMANT and RESPONDENT 1,
conforming to the privity of contract [Waibel, pp.1-2].

16.RESPONDENTS may claim that Ross will receive direct benefits from the dispute,
therefore it should be joined to the proceedings. Nonetheless, such benefits, if exist,
are not a result of the PCLA containing the arbitration agreement, but the dispute’s
outcome instead [Tencara case].

17.RESPONDENTS may claim that Ross’s extension of its licensed scope can be
considered a ‘non-contractual relationship’ with CLAIMANT under Art.7.1
UNCITRAL Model Law. However, such violation, if it exists, is a tort-based claim,
falling outside the scope of the arbitration clause [Redfern/Hunter/Nigel/Constantine,
p.83].

2. Ross is not bound by the arbitration clause

18.The extension of the arbitration agreement to a non-signatory is generally affirmed in

legal doctrines, such as alter ego, piercing the corporate veil, assignment [Born,
chapter 10]. If a third party, in relation to the conclusion or performance of the main
contract, acted in a way in which the opposite side, in good faith, could understand that
the third
party ‘wished to join and accept the main contract as well as the arbitration agreement’
[Romeo/Saffer, p.378; X., Y. & A. v. Z].

19. Such exceptions are inapplicable to this dispute because unlike non-signatories in the
aforementioned doctrines, Ross did not show consent or willingness to be bound by the
PCLA.

20. First, Ross showed express objection to any joinder because it saw no basis for this
[The Problem, p.46]. One of the bases, as above mentioned, is that Ross is not in any
defined contractual relationship with CLAIMANT.

21. Second, Ross did not show any implied consent, because it did not have ‘substantial
interference with others’ contractual performance and conclusion’ [Dow chemical]. It
is RESPONDENT 2’s responsibility as a patent holder to ensure the exclusivity of the
license granted to licensees, but need any active interference from Ross. Ross indeed
3
 did not participate in any step, from contractual negotiation to the conclusion of the
PCLA.

22.Furthermore, Ross’s obligation to observe CLAIMANT’s scope of research is not

equivalent to Ross’s awareness of the PCLA arbitration agreement. An arbitration

clause requires it to be applied to the parties 'directly involved’ in the performance of the
contract and the disputes which may result from it, once parties, despite being non-
signatories, were ‘aware of the existence and the scope of the arbitration clause’
[Marma v. Durand-Auzias; Mayer, p.831]. The Ross Agreement was concluded before
the PCLA, so there was no evidence that Ross was aware of the PCLA’s arbitration
clause.

II. Even if Ross is a party to the arbitration, it should not be joined

23.Whether there would be a loss of confidentiality and/or efficiency if a third party is

joined to the arbitration are vital criteria that the Tribunal must consider [Bartsch/Petti,
p.65].

24.In this proceeding, even if Ross is considered a party to the arbitration, it should not be
joined, for (1) the presence of Ross will lead to confidentiality loss due to violation of
equal treatment principle; and (2) the efficiency of the proceedings can be negatively
affected.

1. The presence of Ross goes against the equal treatment principle, leading to
confidentiality loss.

25.Ross’s present defense for its interpretation under the Ross Agreement does not mean
that it will keep opposing RESPONDENTS if it is ordered for joinder. Based on its
relationship with CLAIMANT, it is likely that Ross will favor RESPONDENT,
violating the equal treatment principle.

26.The equal treatment principle is stipulated in Art. 15.1 SRIA and Art.18 UNCITRAL
Model Law. Joining one party to the arbitration may make it prejudice one of the
existing parties by helping the other party make its case [Strong, p.927].

27.Ross has been a competitor against CLAIMANT’s parent company since 2010 [PO2,
para.13]. Ross, whose aim is its continuous research on the COVID-19 vaccine, is
likely to favor RESPONDENTS to win this dispute. If RESPONDENTS win the
dispute, which means RESPONDENT 1 did not breach obligations to deliver goods
free from
4
 the third party’s right or claim, Ross will keep conducting research into COVID-19.
There is even an offer from RESPONDENTS permitting Ross to do so, under a
potential different contract but the Ross Agreement [RE R5, para.4].

28.Moreover, RESPONDENTS will present experts and witnesses to explain the

production and operating modes of vectors, and differences between the various viral
applications [The Problem, p.49]. This presentation may reveal CLAIMANT’s
confidential information, regarding know-how, whether technical or non-technical, that
is disclosed, orally, electronically, visually or in writing, by one Party or its Affiliates
to the other Party or its Affiliates [PO2, para.30]. Such violation of confidentiality is a
major disadvantage of the joinder of a third party [Lew/Mistelis/Kröll, p.408; Ten Cate,
p.138] since Ross can make use of such information to compete against CLAIMANT.

2. The efficiency of the proceedings can be negatively affected

29.According to Art.15.7 SRIA, all participants shall take every effort to contribute to the
efficient conduct of the proceedings and avoid unnecessary costs and delays.

30.The joinder of Ross may have detrimental impacts on the arbitral process. Since the
scope of arbitration is widened, the proceedings will become more complicated
[Strong, p.986].

31. It is clear that RESPONDENTS wanted to join Ross to use the arbitration to finally
resolve the dispute about the scope of the Ross Agreement [PO2, para.33].

32.However, due to the high likelihood that Ross will cause prejudice, as well as the
persistent conflict between Ross and RESPONDENT 2, a quick and impartial award
seems unpromising. It is unreasonable that CLAIMANT has to suffer from any

additional unnecessary costs or delays because of RESPONDENT 2’s carelessness in

its word choice in the Ross Agreement [PO2, para.20].

ISSUE 2: THE EXAMINATION OF WITNESSES AND EXPERTS SHOULD BE

CONDUCTED REMOTELY

33.Tribunal wants to know whether the Parties have any objections to conducting a remote
hearing on experts and witnesses, if necessary in the light of the COVID-19 pandemic
[The Problem, pp.46-47].

5
 34.Regarding remote hearings in international arbitration, the first factor that should be
considered is whether the governing procedural rules permit the Tribunal to conduct
such hearings. Moreover, whether the circumstances of the case make it appropriate,
inter alia, participants’ access to reliable technology, the lack of any serious risk of
prejudice, is another concern [Wahab, pp. 18-19].

35.CLAIMANT raises no opposition to Tribunal’s question, because (I) The Tribunal has
the power to conduct a remote hearing under the SRIA and the law of the arbitration
seat; and (II) A remote hearing does not put RESPONDENTS into a disadvantaged
position.

I. The Tribunal has the power to conduct such hearing remotely

36. Pursuant to Art. 15.1 SRIA, the Tribunal may conduct the arbitration in such a manner
as it considers appropriate, provided that it ensures equal treatment of the parties and
their right to be heard.

37. In addition to the SRIA, it is also the law of the arbitration seat that governs the
arbitration [Redfern/Hunter/Nigel/Constantine, p.179; Art. V.1.a, d, e NYC]. The seat
of arbitration shall be in Danubia [PCLAsection 14], indicating that Danubian law will
govern the arbitration. In light of the pandemic, Danubian legislators regulated in
April 2020 that hearings could be held via videoconferencing if both parties agree or if
required by public interest [PO2, para.37].

38.In brief, both SRIA and Danubian law permit the Tribunal to conduct a remote hearing.
Once requirements are met, a remote hearing can be conducted without the parties’
consent.

1. Tribunal must conduct remote hearing due to public interests

39.In light of the pandemic, the Danubian policy permits a remote hearing in two
scenarios: (1) if both parties agree; or (2) if required by public interests. It is the
context of the COVID-19 pandemic that falls into the scope of the second scenario,
permitting a remote hearing to be conducted without parties' consent.

40.COVID-19 is not a normal disease but is now turning into a pandemic. Safety concerns
and public health restrictions are of the essence to limit or slow the virus’s spread [ICC
Guidance Note]. Therefore, the Tribunal’s implementation of remote hearing based on

6
 public interests due to the pandemic’s uncertain development, as well as a likelihood of
travel ban at the time of the hearing [PO2, para.34] is an obligation. A travel ban is a
normative physical distancing for the deeds of the public in the pandemic [Wahab,
p.18].

2. The Tribunal is obliged to contribute to the proceedings’ efficiency

41. Pursuant to Art. 15.7 SRIA, all participants have to contribute to the efficiency of the
procedures and avoid any unnecessary costs and delays. Postponing the hearing,
perhaps indefinitely, was problematic since doing so is inconsistent with one of the
hallmark features and benefits of arbitration, namely, the efficient process
administration and prompt dispute resolution [Singer, p.32].

42.Regarding delays in dispute resolution, if the hearing of expert and witness cannot be
conducted remotely, a hearing in person will be postponed at the earliest 4 months due
to conflicting schedules [PO2, para.42]. Apparently, such a timeframe was
undetermined, afflicting the quick final award. An expeditious award is of particular
essence since the liabilities of parties breaching its obligations will be clearly defined,
preventing further monetary investment in research and arbitration costs.

43.Regarding unnecessary costs, travel costs, including venue location costs, international
airfares, and accommodation expenses are deemed unnecessary. In a physical hearing,
such costs are certain, but in the pandemic where costs have to be mitigated as much as
possible in arbitration, such travel expenses should be undermined due to a potential
travel ban. Huge reductions in travel costs are one of the most encouraging aspects of
remote hearing [Walker, p.2].

II. Remote hearing does not put RESPONDENT in a disadvantaged position

44.Under Article 15.1 SRIA, the Tribunal may conduct the arbitration in such manner as it
considers appropriate, provided that (1) it ensures equal treatment of the parties; and
(2) their right to be heard.

1. RESPONDENTS’ right to be heard is still ensured

45.In a remote hearing, a right to be heard is violated if a party cannot effectively present
its arguments in a remote hearing [Scherer, pp.29-30].

46.RESPONDENTS said that the presentation of witnesses and experts would be an

essential part, implying that such hearing should not be excluded, such as by means of
document-only hearing [The Problem, p.49]. Indeed, the Tribunal only raised the
7
 question of whether it should be held remotely [PO2, para.42, subpara. a], but exclude
the witnesses or experts that help RESPONDENTS present their case in a meaningful
manner.

47.RESPONDENTS objected to virtual hearing for fear that their presentation may be less
effective and that the data may not be 100% protected [PO2, para.38]. However, such
fears are baseless. A proper analysis of case law worldwide shows that these fears are
often ‘overblown’ and typically can be ‘counterbalanced’ by appropriate technological
solutions [Pack All v. Triad Plastics; Capic v. FMCA]. Current guidelines such as ICC
Guidance Note also strictly stipulate the privacy of a virtual hearing [Hosking/Cardoso,
p.15].

2. Equal treatment is still ensured in the hearing

48.Equal treatment in hearing means one party should not be treated less favorably than
others in the arbitration [Scherer, p.33; Scherer/Prasad/Prokic, pp.21-22].

49.In this case, the application of remote hearing is not beyond RESPONDENTS’ financial
reach. All participants potentially involved in an oral hearing have sufficient bandwidth
and equipment [PO2, para.38]. Thus, technical standards for both parties’ presentation
are fair, adhering to the equal treatment principle.

50.The fact that technological equipment is better on CLAIMANT’s side does not mean
that CLAIMANT will have the power to control the hearing or do something in bad
faith to prevent RESPONDENTS from presenting its case. Both Parties still meet the
standards to join a remote hearing, where CLAIMANT’s facilities are above the
standards.

ISSUE 3: CISG IS APPLICABLE TO THE PCLA

51.It is respectfully requested of the Tribunal to rule that the PCLA is governed by CISG
for (I) the PCLA constitutes an international sale of goods contract; and (II) the PCLA
contains a choice of law pointing to the CISG.

I. The PCLA is an international sale of goods contract under the CISG.

52.The PCLA is meant to fall under the ambit of the CISG for (1) it is an international sale
contract, and (2) its primary subjects concern goods conforming to CISG standards.

1. The PCLA constitutes an international sales contract within the CISG.

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53.The PCLA is inherently an international sale contract governed by the CISG for (i) its
participating parties are from different contracting States of the CISG, (ii) its
obligations entail acts of sale.

(i) The parties are based in different contracting States of the CISG.

54.The first and foremost condition to invoke the CISG, as stipulated by Article 1.1.a,
involves “contracts of sale of goods between parties whose places of business are in
different States when the States are its Contracting States” [Digest, p.4].

55.Regarding the fore business location, CLAIMANT is a start-up in Mediterraneo [Notice

of Arb, para.1] while RESPONDENT 1 is based in Equatoriana [Notice of Arb,
para.2], both States being contracting states of the CISG [PO1, III, para.3].

56.Accordingly, the CISG is generally applicable to the PCLA by virtue of Art. 1.1.a.

(ii) The PCLA contains acts of a sale.

57.The term “sale” in the CISG generally refers to the acts involved in exchanging goods
for money [Schlechtriem/Schwenzer, Art. 1, para.8].

58.The PCLA between CLAIMANT and RESPONDENT 1 comprises different

obligations, nevertheless, the primary ones like purchasing and licensing can be
counted as acts of sales.

59.The purchase of the batch of GorAdCam vectors qualifies as a sale of goods since the
batch was priced at EUR 2,5 Mio, which has been paid in full by CLAIMANT to
RESPONDENT 1 at the time of delivery [Notice of Arb, para 16; PCLA, Art 9.2].

60.Licensing agreements can also be counted as sales contracts, in particular, the

transaction purchasing goods pursuant to a license agreement [Mowbray, para.8;
Primak, p.221].

61.Moreover, RESPONDENT 1 is by nature a “Contract Manufacturing Organization”,

who produces and sells base material for the production of vaccines [PCLA, recitals,
para.1].

62.Consequently, the PCLA could be considered a sale contract for the manufacture and
production of goods.

2. The PCLA is a contract for the sale of goods under the CISG.

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63.The PCLA constitutes a contract of sale of goods since (i) its primary subjects including
the vectors fall within the notion of goods under the CISG and (ii) the preponderant
part of the obligations lies in the supply of goods pursuant to Article 3.2 CISG.

(i) The subjects of the PCLA qualify as goods.

64.Commentators often consider “goods” under the CISG to be moveable, tangible,

corporeal objects which form the subject matter of commercial sales contracts
[Schlechtriem/Schwenzer, Art.1; Huber/Mullis p.41; Ferrari/Fletchtner/Brand, p.56,
Honnold, p.42].

65.Through the PCLA, RESPONDENT 1 would supply base materials like the GorAdCam
viral vectors, the HEK-294 cells, and the cell culture medium. Both the vectors and the
cells, though cannot be perceived by human eyes, still exist as microscopic organisms,
which can be seen or moved with the assistance of microscopic equipment.

66.Consequently, the subjects of the PCLA would be deemed goods, making this
Agreement a contract for the sale of goods falling within the scope of CISG.

(ii) The preponderant obligations of the contract lie in the supply of goods, not
the provision of services regarding Article 3.2 CISG.

67.To determine the “preponderant” obligation of a contract, a financial means of

measuring obligations and the intent of parties during the contracting period are taken
into consideration [Digest, p.20; CISG-AC 4, para 4.1; Cylinder case; Recycling
machine case].

68.Accordingly, (a) the purchase value of the PCLA signifies preponderant sale
obligations. Moreover (b) the intentions of parties throughout the process point to a
sale contract.

a. The purchase value of the PCLA signifies preponderant sale obligations.

69.The CISG is applicable where the obligation concerning the supply of goods amounts to
more than 50% of the total value of the seller’s obligations concerned [Digest p.20,
Lookofsky para.61; Schroeter, p.77].

70.Regarding the most recent progress between both parties, CLAIMANT has just
announced a Phase III Clinical trial in December 2020 [PO2, para.16], but this trial is
yet to begin as this arbitration commenced. According to Mr. Doherty, representative

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 of RESPONDENT 1, the following milestone and purchase obligations are “irrelevant
for the current arbitration” [RE R2, para.8].

71.Up till the commencement of the arbitration, CLAIMANT has made the following
payments: the materials costs, including production costs [Appendix 1, PO2, para.7],
and the first two milestone payments [PCLA, section 9.4], the former being clearly sale
obligations. Activities contributing to the production of the goods cannot be excluded
from the calculation [Schlechtriem/Schwenzer, Art.3, pp.2-3; Sono, p.523].

72.The calculated economic value of selling the first batches of GorAdCam vectors
accounts for about 71% of the obligations’ total value, rendering the supply of goods a
preponderant part of the PCLA.

b. Intentions of parties throughout the process point to a sale contract.

73.Concerning the parties’ intent, the intention of sale was first publicly made by a
representative of RESPONDENT 1 in the credible LifeScience Today papers, stating
that its focus was for the “continuous delivery of the base materials for vaccine” and
even production of vaccines on behalf of other companies [CE C2, para.6], of which
CLAIMANT is well aware.

74.This shows that both parties have signed a sale contract concerning base materials and
potentially vaccines, which are to be manufactured. This does not violate Article 3.2
CISG, as CLAIMANT would only be supplying the know-how and research results to
produce vaccines, only if it opted for the production option as stipulated in section 16.2
of the PCLA.

75.Consequently, considering the economic values of the parties’ obligations and the
parties’ intent when negotiating the contract, it can be determined that the PCLA is an
international sale of goods contract.

II. The choice of law agreed on by both parties is to apply the CISG.

76.According to Art. 28.1 Model Law, the parties’ preferred choice of law is given priority
over others, which is the exclusive application of the “law of Danubia” for all matters
concerning this Agreement [PCLA, Section 15.2].

77.As Danubia is a member state of the CISG [PO1, section III, para.3], it naturally adopts
the CISG as part of its legislation, rendering the Convention part of its national law
[Asante v. PMC-Sierra]. The term “the laws of Danubia'' includes the CISG [PO2,
para.39].

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 78.In light of the parties’ obvious choice of law implying the application of the CISG, the
PCLA shall be governed by the Convention.

ISSUE 4: RESPONDENT 1 breached its contractual obligations to deliver conforming

goods pursuant to Article 42.1 CISG

79.RESPONDENT 1 is liable for (I) breaching its contractual obligations pursuant to

Article 42.1 CISG and (II) CLAIMANT has noticed RESPONDENTS in a reasonable
time.

I. RESPONDENT 1 has violated Article 42(1) by delivering to CLAIMANT the first

batch of GorAdCam vectors.

80.The contract breach of RESPONDENTS occurred because (1) the vectors are not free
from right or claim of a third party related to IP rights, of which (2) RESPONDENT 1
is well-aware, while in contrast (3) CLAIMANT could not have known or been aware
of such a situation when executing and concluding the contract.

1. The vectors are not free from IP rights disputes and imminent claims.

81.The batches of GorAdCam vectors which RESPONDENT 1 delivered to CLAIMANT

would qualify as the subject of Article 42(1) for (i) the IP rights involved are a
fundamental component to the GorAdCam batches and considering the progress with
Ross, (ii) third party claims of the vectors could be imminent.

(i) The base IP rights are fundamental and inseparable for the viral vectors.

82.According to the PCLA, the IP rights attached to the GorAdCam vectors, which are
transferable through licensing, allowed CLAIMANT to perform research activities on
the vectors, cultivate and produce potential respiratory vaccines [PCLA, Section 5.2].

83.IP rights related to GorAdCam vectors are also the focus of RESPONDENT 2 from the
beginning as they decided to focus on monetizing through licensing [Notice of Arb,
para.7; Ans to Arb, para.4].

84.The accompanying IP rights indeed comprise a vital part of the GorAdCam vectors,
making the vectors valuable in the transaction between CLAIMANT and
RESPONDENT 1.

(ii) Third party claims based on IP rights regarding the vectors might be
forthcoming.

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85.Regarding Article 42(1), commentators have suggested that claims and rights of a third
party that have not been asserted can also invoke the liability of the seller
[Rauda/Etier, p.36; Lookofsky, para.201]. Accordingly, the mere assertion of rights
from Ross would qualify as a pending third party claim.

86.Ross is also known for its vigorous enforcement of IP-rights [PO2, para.15]. The scope
of the Ross Agreement is crucial to Ross’ merits, which is a potential reason for making a
claim.

87.Thus, though Ross’ outspoken opinion of the scope might not have amounted to a
legally binding claim against RESPONDENTS, it is enough to render RESPONDENTS
liable when delivering the viral vectors to CLAIMANT.

2. RESPONDENT 1 has known and is obliged to know of Ross’s potential rights and
claims when contracting with CLAIMANT.

88.RESPONDENTS could not have been unaware of the third-party issues involving Ross,
since (i) RESPONDENTS acknowledge Ross’ potential rise to the IP claims, to which (ii)
RESPONDENT 1 being intentionally negligent when contracting with CLAIMANT.

(i) RESPONDENTS acknowledged Ross’s situation when contracting with

CLAIMANT.

89.RESPONDENTS’ negotiation with Ross has spanned from 2014 to 2020, in which
Ross’ extensive interpretation of its license definitely received RESPONDENT 2’s
attention as Roctis further conducted a legal search involving IP-lawyers into this matter
in 2019 to subsequently reply to Ross [RE R5, para.2].

90.RESPONDENTS must have possessed at least the plain knowledge of Ross’ intentions
and its possibility of widening its applications of over GorAdCam vectors to respiratory
disease at the time of contracting with CLAIMANT, considering that the PCLA entered
into force in 2019 [CE C3, para.1].

(ii) There has been gross negligence on RESPONDENT 1 part regarding this issue
throughout the contracting process.

91.Pursuant to Article 42.1, apart from the plain knowledge of third-party potential rights
or claims, the seller might also be held liable for “could not have been unaware” of such
problems, which places a duty on the seller not to be grossly negligent about obvious
information at hand at the time of contracting [HuberMullis, p.176; Schlechtriem 1986

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 para.6] and to investigate the impending third party right or claim [Anthony, para.22],
especially when it has been made public [Secretariat, p.109].

92.Accordingly, RESPONDENT 1 is obliged to bear the burden of taking actions to resolve

any right or claim of Ross over the GorAdCam vectors delivered to CLAIMANT.

93.Nevertheless, RESPONDENT 1 has failed to review RESPONDENT 2’s extensive

license to Ross, resulting in an underlying limited scope of the license which
RESPONDENT 1 granted to CLAIMANT. RESPONDENT 1 further exasperated the
situation by dismissing imminent problems of Ross’ IP to push on with its
commercializing process [Ans to Arb, para.14], instead of conforming to its obligation to
investigate and thoroughly solve the existing problems with Ross for the benefit of its
licensee.

94.All in all, RESPONDENT 1 has not fulfilled its obligations as seller towards
CLAIMANT through committing gross negligence of third party’s IP right or claim
relating to the batches of GorAdCam vectors, leading to an impending violation of Article
42 and breach of contract.

II. CLAIMANT has informed RESPONDENTS at reasonable notice.

95.According to Article 43 CISG, CLAIMANT is entitled to protection under Article 42 for

it has reasonably noticed RESPONDENT 1 of the right or claim involving IP rights. A
“reasonable time” is decided based on the buyer’s contemplation progress and inquiry into
the legal situation, and the nature of it is fast-paced [Sarcevic/Volken, section m].

96.CLAIMANT first acknowledged the ambiguity issue in GorAdCam vectors’ scope of

use on 1 May 2020 upon the piece written in BioPharma Science, to which it replied with
an email detailing its worry of Ross imposing a potential limitation to its GorAdCam-
based research and future products as well as its disadvantaged position as a small start-up
in IP litigation. [CE C5, para.3,4].

97.CLAIMANT has also expeditiously initiated investigations upon the notice of the
potential third party claim and has been observing the case at hand. Afraid of forthcoming
IP litigation affecting its merits, CLAIMANT has no other choice but to commence an
arbitration against RESPONDENTS for breach of contract pursuant to Article 42 CISG on
15 July 2020.

98.Consequently, CLAIMANT has indeed noticed RESPONDENT 1 in a reasonable time.

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 PRAYERS FOR RELIEF

Counsels, on behalf of CLAIMANT, respectfully requests the Arbitral Tribunal to order that:

1)Ross should not be joined to the arbitration proceedings

2)The examination of witnesses and experts should be conducted remotely
3)The CISG is applicable to the PCLA
4)RESPONDENT 1 breached its contractual obligations to deliver conforming goods
under Art.42 CISG

Respectfully submitted,
Hanoi, 21st February, 2021

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