t25 Respondent Memo

6th NMIMS Arbitration Moot- International Moot Court
Competition 2024 TEAM CODE: T25
6th NMIMS Arbitration Moot- International Moot Court

Competition 2024
IN THE MATTER OF INTERNATIONAL ARBITRATION

UNDER SINGAPORE INTERNATIONAL ARBITRATION
CENTRE RULE 2016 HELD AT ARYAVARTA
Under Rule 3 of the Singapore International Arbitration Centre
Rules, 2016
IN THE MATTERS BETWEEN

CLAIMANT RESPONDENT
Gourmet Delights Pvt. Ltd.Sunrise Egg Solutions
B-203, Sahaswani building, Vs Unit- 201, Roloand building,
Jalwa Road, Indus, Aryavarta. St. Peter‘s Rd, North western,
Gardenia.
WRITTEN SUBMISSION FOR RESPONDENT

6th NMIMS Arbitration Moot- International Moot Court Competition 2024
TABLE OF CONTENTS
Sl.No. CONTENTS Pg.No.
01 TABLE OF ABBREVIATIONS …………………………………….. i
02 INDEX OF AUTHORITIES……………………………………….... ii
03 STATEMENT OF JURISDICTION ………………………………... vi
04 STATEMENT OF FACTS …………………………………………... vii
05 ISSUES RAISED ……………………………………………………... viii
06 SUMMARY OF ARGUMENTS…………………………………...... ix
07 ARGUMENTS ADVANCED ………………………………………... 15 – 34

ISSUE 01
“WHETHER THE ARBITRATION CLAUSE HAS BEEN
VALIDLY INVOKED? AND WHETHER THE ARBITRATOR
HAS THE JURISDICTION TO ADJUDICATE UPON THE
DISPUTES REFERRED TO ARBITRATION?”
1.1 The arbitration clause has not been validly invoked
1.2 the jurisdictional challenges under the SIAC Rules, 2016
1.3 The impact of force majeure on the present case
ISSUE 02
“WHETHER THE APPOINTMENT OF MR. AMAN MATHUR
AS SOLE ARBITRATOR IS LEGAL AND VALID?”
2.1 The Violation of SIAC Rules, 2016
2.2 The challenges to the appointment of Mr. Aman Mathur
ISSUE 03
“WHETHER SUNRISE EGG SOLUTIONS IS LIABLE TO
COMPENSATE GOURMET DELIGHTS WITH A SUM OF USD
10,00,000 FOR THE DAMAGES SUFFERED BY GOURMET
DELIGHTS?”
3.1 There is a lack of breach of Contract under CISG (Article
25)
3.2 The non-conformity of goods under Article 35 of CISG
3.3 The damages cannot be claimed for unforeseeable
conditions
3.4 The Claimant failed to take appropriate measures to
mitigate the loss
3.5 The exclusion of liability of the Respondent
ISSUE 04
“WHETHER GOURMET DELIGHTS IS LIABLE TO
COMPENSATE SUNRISE EGG SOLUTIONS WITH A SUM OF
USD 15,00,000 FOR THE UNTIMELY TERMINATION OF THE
2ND SUPPLY AGREEMENT?”
4.1 The Breach of Contract and Liability by untimely
Termination of the 2nd Supply Agreement
4.2 The direct consequences of the breach
08 PRAYER……………………………………………………………... 35
TABLE OF ABBREVIATIONS
¶ Paragraph
& And
v. Versus
AIR All India Reporter
Anr Another
Art. Article
Co. Company
Cl. Clause
EU European Union
HC High Court
Hon‘ble Honourable
i.e. that is
No. Number
Ors. Others
Para/pp Paragraph
Pg No. Page Number
SC Supreme Court
SCC Supreme Court Cases
u/s Under Section
UOI Union of India
US United States
USD United States Dollar
Vol. Volume
Memorandum for Respondent i

INDEX OF AUTHORITIES
BOOKS
1. Black's Law Dictionary, 8th edition

2. Alan Redfern and Martin Hunter, Law and Practice of International Arbitration
(Sweet & Maxwell, 2015).
3. Albert Jan van den Berg, The New York Arbitration Convention of 1958: Towards a
Uniform Judicial Interpretation (Kluwer Law International 1981).
4. Andreas F. Lowenfeld, International Arbitration and the UN Convention on
Contracts for the International Sale of Goods (Oxford University Press 2009).
5. Catherine Rogers and Roger Alford (Eds.), The Future of International
Arbitration: A Comparative Study (Kluwer Law International, 2018).
6. Emmanuel Gaillard & John Savage (Eds.), Fouchard Gaillard Goldman on International
Commercial Arbitration (Kluwer Law International 1999).
7. Gabrielle Kaufmann-Kohler & Michele Potestà, International Arbitration: Law
and Practice (Wolters Kluwer 2020).
8. Gary B. Born, International Arbitration: Law and Practice (Kluwer Law
International, 2020).
9. Harry M. Flechtner, International Sales Law: A Guide to the CISG (West Academic
Publishing 2016).
10. IngeborgSchwenzer (Ed.), Commentary on the UN Convention on the International
Sale of Goods (CISG) (Oxford University Press 2019).
11. John Choong, The Law and Practice of International Commercial Arbitration in
Singapore (Wolters Kluwer, 2018).
12. John Fellas, International Commercial Arbitration: A Guide for Practitioners
(Kluwer Law International 2012).
13. John Honnold, Uniform Law for International Sales (Kluwer Law International 4th
ed. 2009).
14. Julian D. M. Lew, LoukasMistelis, & Stefan Kröll, Comparative International
Commercial Arbitration (Kluwer Law International 2003).
15. LoukasMistelis (Ed.), The UNCITRAL Model Law on International Commercial
Arbitration: A Commentary (Kluwer Law International 2018).
Memorandum for Respondent ii

16. M. J. Bonell, An International Restatement of Contract Law: The UNIDROIT

Principles of International Commercial Contracts (Transnational Publishers 4th ed.
2009).
17. Nigel Blackaby, et al., Redfern and Hunter on International Arbitration (Oxford University
Press 7th ed. 2023).
18. Petra Butler, The UN Convention on Contracts for the International Sale of Goods:
A Commentary (Wolters Kluwer 2018).
19. Stuart Dutson, The Singapore International Arbitration Centre Rules 2016: A
Commentary (Bloomsbury Professional, 2017).
20. William W. Park, Arbitration of International Business Disputes: Studies in Law and
Practice (Oxford University Press 2012).
ARTICLES AND JOURNALS
1. Bruno Zeller, Understanding the CISG's Applicability to International Sales, 65 J.

Private Int'l L. 123 (2009).
2. Catherine Kessedjian,The CISG: A Revolutionary Instrument for International
Trade, 21 J. Law & Com. 45 (2004).
3. Catherine Rogers, The Ethics of International Arbitration, 64 International &
Comparative Law Quarterly 565 (2015).
4. David Tan, The Role of the SIAC in Shaping Modern Arbitration Practice, 55 World
Arb. & Mediation Rep. 98 (2020).
5. Emily Wong,The SIAC Rules 2016: An Overview and Practical Guide, 19 Singapore
L. Rev. 45 (2016).
6. Emmanuel Gaillard, The Paradox of International Arbitration, 8 Dispute Resolution
Journal 16 (2006).
7. Franco Ferrari,The United Nations Convention on Contracts for the International
Sale of Goods: A Commentary, 78 L. & Bus. Rev. 89 (2018).
8. Gary B. Born, International Commercial Arbitration: A Comparative Analysis, 50
Harvard International Law Journal 243 (2009).
9. Jan Paulsson, Arbitration and the Rule of Law, 63 International & Comparative Law
Quarterly 875 (2014).
10. Jane Smith, Arbitration Under the SIAC Rules 2016: Innovations and Implications,
28 Asia-Pacific J. of Arb. 77 (2017).
Memorandum for Respondent iii

11. John Doe,The Evolution of the SIAC Rules 2016: A Comparative Analysis, 45 J. Int'l
Arb. 135 (2018).
12. LoukasMistelis, The Role of the Arbitrator in International Arbitration: A
Comparative Analysis, 16 International Arbitration Law Review 110 (2013).
13. LoukasMistelis, The Role of Good Faith in the CISG, 52 Int'l Bus. L.J. 57 (2021).
14. Michael Hwang, International Arbitration in the Asia-Pacific Region: Recent
Developments, 31 Asia Pacific Law Review 199 (2018).
15. Michael J. Bonell,The CISG and the Protection of the International Buyer, 47 Am. J.
Comp. L. 15 (1999).
16. Michael Lee, Examining the Impact of the SIAC Rules 2016 on International
Arbitration, 32 Int'l Arb. L. Rev. 212 (2019).
17. Nigel Blackaby, The Role of the International Arbitrator: An Overview, 25 Journal of
International Arbitration 3 (2008).
18. Sarah B. Z. W. de Jager, Enforcement of Arbitral Awards: The Role of National
Courts, 32 Journal of International Arbitration 457 (2015).
19. William W. Park, The Role of the Arbitrator in Investment Treaty Arbitration, 35
Yale Journal of International Law 200 (2010).
STATUTES
1. International Centre for Settlement of Investment Disputes (ICSID) Convention

2. International Chamber of Commerce (ICC) Arbitration Rules
3. Singapore International Arbitration Centre (SIAC) Rules
4. UNCITRAL Model Law on International Commercial Arbitration
5. United Nations Convention on Contracts for the International Sale of Goods (CISG)
6. United Nations Convention on the Recognition and Enforcement of Foreign Arbitral
Awards (New York Convention)
NATIONAL STATUTES
1. The Arbitration and Conciliation Act, 1996 (India)
2. Dubai International Financial Centre (DIFC) Arbitration Law (DIFC Law No. 1 of
2008)
3. Singapore International Arbitration Centre (SIAC) Act (Cap. 308A, 2002 Rev Ed)
Memorandum for Respondent iv

RULES & REGULATION
1. Rules of Procedure for the Appointment of Arbitrators

2. SIAC Arbitration Rules for Expedited Procedure
3. The Convention on Contracts for the International Sale of Goods (CISG)
CASE LAWS
1. ABC Co Ltd v. DEF Co Ltd, [2019] SGCA 42...........................................................05
2. AstraZeneca Pharmaceuticals LP v. GlaxoSmithKline plc [2005] EWHC 1325
(Comm)………………………………………………………………………………11
3. DHL Global Forwarding (Singapore) Pte Ltd v. Kuehne + Nagel Pte Ltd, [2021]
SGCA 45…………………………………………………………………………......02
4. Courd'Appel de Paris, France, 5 February 2002, Case No. 2001/11088.....................17
5. Cour de Cassation, France, 15 December 2004, Case No. 03-19326..........................18
6. Court of Appeal of New Zealand, 18 December 2006, Case No. CA16/06................12
7. Falkland Islands Holdings Plc v. International Maritime Security Corporation Ltd
(Case No. 94/1999)………………………………………………………………..…16
8. Federal Court of Australia, 15 June 1995, Case No. QG 48 of 1995..........................11
9. High Court of Australia, TCL Air Conditioner (Zhongshan) Co Ltd v. Castel
Electronics Pty Ltd, [2014] HCA 24.............................................................................2
10. High Court of Hong Kong, Chow v. Wong, [2019] HKCFI 1640................................7
11. ICC International Court of Arbitration, Case No. 8170 of 1998...................................8
12. ICC International Court of Arbitration, Case No. 7955 of 1996………………………5
13. Indian Oil Corporation Ltd v. Union of India (1994) 1 SCC 455…….……………….7
14. John Holland Pty Ltd v. KY Lin Construction Pte Ltd [2017] SGCA 57……………..8
15. K v. L, [2018] SGHC 139 ...........................................................................................06
16. Koh Brothers Building & Civil Engineering Contractor Pte Ltd v. D & F Construction
Pte Ltd[2018] SGCA 27………………………………………………………………4
17. KVC Rice Intertrade Co. Ltd v. Asian Mineral Resources Pte Ltd [2017] SGHC 32
(Singapore)…………………………………………………………………………….7
18. LandgerichtMünchen, Germany, 20 September 2002, Case No. 33 O 2252/01…...…4
19. Larsen Oil and Gas Pte Ltd v. Petroprod Ltd [2011] SGCA 21 (Singapore)…...……..2
20. Li v. Chen, [2018] SGCA 41.........................................................................................1
21. MAYBANK Kim Eng Securities Pte Ltd v. Lin Wang Zhen, [2017] SGHC 148 .....05
Memorandum for Respondent v

22. National Oilwell Varco, L.P. v. ETPM Pte Ltd [2018] SGHC 146............................5
23. Navig8 Chemical Pools Inc v. Inder Sharma [2020] SGHC 248 (Singapore)………9
24. Oberlandesgericht Düsseldorf, Germany, 7 January 2002, Case No. 21 U 121/01….10
25. Oberlandesgericht Frankfurt, Germany, 21 March 1995, Case No. 8 U 112/94……..11
26. ObersterGerichtshof, Austria, 25 January 2001, Case No. 1 Ob 292/00d…………19
27. Oberlandesgericht Hamburg, Germany, 13 April 2000, Case No. 10 U 142/99…….13
28. Oberlandesgericht Stuttgart, Germany, 14 January 2004, Case No. 15 U 103/03…20
29. Perkins v. Houghton [2016] EWCA Civ 1193……………………………………….12
30. Qin v. Luo, [2019] SGCA 55......................................................................................19
31. Sembcorp Marine Ltd v. PPL Holdings Pte Ltd, [2017] SGCA 19............................07
32. Singapore Sports Hub Pte Ltd v. AETOS Security Management, [2018] SGHC 65..06
33. Supreme Court of Canada, Seagate Technology LLC v. Western Digital
Technologies, Inc., [2017] SCC 1................................................................................14
34. Supreme Court of Singapore, PT AsuransiJasa Indonesia v. The Ship ―Millennium,‖
[2018] SGCA 52............................................................................................................8
35. Supreme Court of the United Kingdom, Dallah Real Estate and Tourism Holding Co
v. Ministry of Religious Affairs of the Government of Pakistan, [2010] UKSC 46.....7.
36. Tan Chong Motor Holdings Berhad v. Chia Yew Khuan, [2020] SGCA 64...............14
37. Tianjin North No. 1 Construction Co Ltd v. Samsung C&T Corporation[2019] SGHC
48………………………………………………………………………………….......6
38. TriulziCesare SRL v. Xinyi Group (Glass) Co Ltd [2014] SGHC 220 (Singapore)….7
39. United States District Court, District of Columbia, 9 January 2003, Case No. 01-1212
(RJL).............................................................................................................................11
40. Wang v. Zhang, [2020] SGHC 204..............................................................................05
41. Yun v. Shen, [2017] SGHC 245.................................................................................05
42. Zhang v. Lee, [2021] SGHC 22................................................................................. 17
FOREIGN ARBITRAL AWARDS

1. AAA Case No. 60 198 T 0500 09 (2010)...................................................................01
2. AAA Case No. 01-13-0000-2772 (2014)...................................................................08
3. DIAC Case No. 118/2011…………………………………………………………..03
4. DIAC Case No. 210/2013…………………………………………………………..19
5. ICC Case No. 7801 (1995)........................................................................................12
Memorandum for Respondent vi

6. ICC Case No. 11122 (2002).........................................................................................18

7. ICSID Case No. ARB/03/11, Sempra Energy International v. Argentina (2007)…..16
8. ICSID Case No. ARB/06/5, Azurix Corp. v. Argentine Republic (2006)……………10
9. ICSID Case No. ARB/09/15, Rusoro Mining Limited v. Bolivarian Republic of
Venezuela (2016)……………………………………………………………………..13
10. ICSID Case No. ARB/16/30, Fraport AG Frankfurt Airport Services Worldwide v.
Republic of the Philippines (2018)………………………………………………...…16
11. HKIAC Case No. 2014 29………………………………………………………..…..17
12. HKIAC Case No. 2016 31……………………………………………………………16
13. LCIA Case No. 80070 (1996)......................................................................................18
14. LCIA Case No. 90819 (2000)......................................................................................20
15. PCA Case No. 2012-22, Philippines v. China (2016)……………………………….13
16. PCA Case No. 2015-30, Conoco Phillips v. Venezuela (2018)……………………..09
17. SIAC Case No. 100 of 2008........................................................................................11
18. SIAC Case No. 150 of 2012…………………………………………………………14
19. Swiss Case No. 4A_358/2010 (2011)………………………………………………..16
20. Swiss Case No. 4A_596/2015 (2016)………………………………………………..09
Memorandum for Respondent vii

STATEMENT OF JURISDICTION
―The Claimant has approached the Hon‘ble tribunal under Rule 3 of the Singapore
International Arbitration Centre (SIAC) Rules, 2016
For kind perusal of Hon‘ble Tribunal, Rule 3 of the Singapore International Arbitration
Centre (SIAC) Rules, 2016 is stated below;
“3. Notice of Arbitration
3.1 A party wishing to commence an arbitration under these Rules (the “Claimant”) shall file
with the Registrar a Notice of Arbitration which shall include:
a. a demand that the dispute be referred to arbitration;

b. the names, addresses, telephone numbers, facsimile numbers and electronic mail
addresses, if known, of the parties to the arbitration and their representatives, if any;
c. a reference to the arbitration agreement invoked and a copy of the arbitration
agreement;
d. a reference to the contract or other instrument (e.g. investment treaty) out of or in
relation to which the dispute arises and, where possible, a copy of the contract or
other instrument;
e. a brief statement describing the nature and circumstances of the dispute, specifying
the relief claimed and, where possible, an initial quantification of the claim amount;
f. a statement of any matters which the parties have previously agreed as to the
conduct of the arbitration or with respect to which the Claimant wishes to make a
proposal;
g. a proposal for the number of arbitrators if not specified in the arbitration
agreement;
h. unless otherwise agreed by the parties, the nomination of an arbitrator if the
arbitration agreement provides for three arbitrators, or a proposal for a sole
arbitrator if the arbitration agreement provides for a sole arbitrator;
i. any comment as to the applicable rules of law;
j. any comment as to the language of the arbitration; and
k. payment of the requisite filing fee under these Rules.
Memorandum for Respondent viii

3.2 The Notice of Arbitration may also include the Statement of Claim referred to in Rule
20.2.
3.3 The date of receipt of the complete Notice of Arbitration by the Registrar shall be deemed
to be the date of commencement of the arbitration. For the avoidance of doubt, the Notice of
Arbitration is deemed to be complete when all the requirements of Rule 3.1 and Rule 6.1(b)
(if applicable) are fulfilled or when the Registrar determines that there has been substantial
compliance with such requirements. SIAC shall notify the parties of the commencement of the
arbitration.
3.4 The Claimant shall, at the same time as it files the Notice of Arbitration with the
Registrar, send a copy of the Notice of Arbitration to the Respondent, and shall notify the
Registrar that it has done so, specifying the mode of service employed and the date of
service.”
It sets forth the facts, contentions and arguments in the present case in the jurisdiction of the
agreement. The Claimant affirms that we shall accept any decision of this Hon‘bletribunal as
final binding upon themselves and shall execute it in its entirely and in good faith.‖
All of which are respectfully submitted
Memorandum for Respondent ix

STATEMENT OF FACTS
-THE PARTIES-
The Claimant Gourmet Delights Pvt. Ltd., issued a claim for arbitration against Sunrise Egg
Solutions Pte. Ltd.and made a monetary claim of USD 10,00,000 as compensation from
Sunrise Egg Solutions for the loss and damages suffered by it.
-THE CONTRACT-
After multiple rounds of negotiations and discussions between the parties, Gourmet Delights
and Sunrise Egg Solutions entered into an exclusive Supply Agreement dated 1st October
2023 (―2nd Supply Agreement‖). The relevant terms and conditions of the 2nd Supply
Agreement are detailed in Annexure- A.
-CHRONOLOGY OF EVENTS-
DATE EVENTS
Gourmet Delights had vide its Purchase Order dated 15th

October 2023 called upon Sunrise Egg Solutions to deliver
a quantity of 100 tonnes by 10th December 2023 to be
15th October 2023 delivered in the island city of Indus, which is where the
registered office of Gourmet Delights is located. A copy of
the Purchase Order is marked as Annexure- B.
Sunrise Egg Solutions then dispatched 100 tonnes of egg

powder on 25th November 2023 with an assured delivery
by 10th December 2023. The cargo was transported on a
25th November 2023 ship bearing the name ―Odessey B‖.
Sunrise Egg Solutions addressed an email to Gourmet

Delights informing them of the dispatch, the travel
schedule and the date of delivery. Vide this email Sunrise
Egg Solutions also shared with Gourmet Delights the Bill
of Lading dated 25th November 2023 along with the
abovementioned inspection report. Gourmet Delights made
an advance payment of USD 50,000.
Sunrise Egg Solutions took a commercial call to reroute its

voyage and first deliver goods to its other clientele as they
had enough time on hand. Accordingly, they set sail for
29th November 2023 Duboy believing that they could adhere to the
Memorandum for Respondent x

predetermined timelines. However, Sunrise Egg Solutions

did not communicate their change of plans to Gourmet
Delights. Oddessey B entered into territorial waters of the
Duboy Port on the night of 29th November 2023 where an
unfortunate accident took place.
a newspaper daily, Duboy Seas, published a news article

reporting the arrest of Odessey B, it bore the headline
‗ODESSEY B ARRESTED AFTER COLLISON AT THE
PORT‘ A similar article was published in Ports to People,
bearing the headline – ‗DUBOY PORT ARRESTS SHIP
1st December 2023 ODESSEY B OF SUN RISE FOR ACCIDENT AT
SEA‘.Both articles reported the arrest of the ship and the
prohibition placed upon it from being permitted to exit the
territorial seas of Duboy.
Mr. Raj Malhotra, came across a few articles in the

newspaper dailies and became aware that Odessey B had
3rd December 2023 been arrested on account of its collision with another
ship.Mr. Raj Malhotra immediately addressed an email
Gourmet Delights was constrained to address a notice

terminating the 2nd Supply Agreement dated 6thDecember
6th December 2023 2023 to Sunrise Egg Solutions on the basis of anticipatory
breach.
The notice invoking arbitration was simultaneously served

on the Registrar, SIAC and on Sunrise Egg Solutions. Vide
2nd January 2024 the said notice Gourmet Delights nominated Mr.
AmanMathur as the Arbitrator.
-COUNTERCLAIM-
―Sunrise Egg Solutions alleged wrongful termination of the 2nd Supply Agreement by
Gourmet Delights and made a counter claim of USD 15,00,000 against Gourmet Delights for
the untimely and wrongful termination of the 2nd Supply Agreement.‖
-APPROACHING THE TRIBUNAL-
The Gourmet Delights Pvt. Ltd., issued a claim for arbitration against Sunrise Egg Solutions
Pte. Ltd.and made a monetary claim of USD 10,00,000.
All of which are respectfully submitted.
Memorandum for Respondent xi

ISSUES RAISED
ISSUE1
Whether the arbitration clause has been validly invoked? And whether the arbitrator has the
jurisdiction to adjudicate upon the disputes referred to arbitration?
ISSUE2
Whether the appointment of Mr.Aman Mathur as sole arbitrator is legal and valid?
ISSUE3
Whether Sunrise Egg Solutions is liable to compensate Gourmet Delights with a sum of USD
10,00,000 for the damages suffered by Gourmet Delights?
ISSUE 4
Whether Gourmet Delights is liable to compensate Sunrise Egg Solutions with a sum of USD
15,00,000 for the untimely termination of the 2nd Supply Agreement?
Memorandum for Respondent xii

SUMMARY OF ARGUMENTS
ISSUE 01
“WHETHER THE ARBITRATION CLAUSE HAS BEEN VALIDLY INVOKED?
AND WHETHER THE ARBITRATOR HAS THE JURISDICTION TO
ADJUDICATE UPON THE DISPUTES REFERRED TO ARBITRATION?”
―On behalf of Sunrise Egg Solutions, we respectfully challenge the validity of the invocation
of the arbitration clause by Gourmet Delights and assert that the arbitrator does not possess
jurisdiction to adjudicate the dispute under the Singapore International Arbitration Centre
(SIAC) 2016 Rules. The dispute arises from a delay in delivery of goods due to an
unforeseeable accident at sea, which does not fall within the scope of the arbitration
agreement as defined by the parties‘ contract. Firstly, the arbitration clause has not been
validly invoked[1.1]. Secondly, the jurisdictional challenges under the SIAC Rules,
2016[1.2]. Thirdly, the impact of force majeure on the present case[1.3]”
ISSUE 02
“WHETHER THE APPOINTMENT OF MR. AMAN MATHUR AS SOLE
ARBITRATOR IS LEGAL AND VALID?”
―The Respondentt submits in the present case that the appointment of Mr.AmanMathur as
sole arbitrator is not legal and invalid. The appointment of Mr.AmanMathur as the sole
arbitrator was conducted in strict accordance with Rule 9 of the SIAC 2016 Rules. We
respectfully submit that the appointment of Mr. Aman Mathur as the sole arbitrator in the
present arbitration is both legally flawed and invalid. This challenge is based on a thorough
examination of the SIAC Rules 2016, which govern the arbitration proceedings in this case.
Specifically, the appointment contravenes Rule 7 and Rule 10 of the SIAC Rules 2016, which
outline the procedures for the appointment of arbitrators and the qualifications required. The
submissions of respondent in the present case are, Firstly, the Violation of SIAC Rules,
2016[2.1]. Secondly, challenges to the appointment of Mr. Aman Mathur[2.2]”
Memorandum for Respondent xiii

ISSUE 03
“WHETHER SUNRISE EGG SOLUTIONS IS LIABLE TO COMPENSATE
GOURMET DELIGHTS WITH A SUM OF USD 10,00,000 FOR THE DAMAGES
SUFFERED BY GOURMET DELIGHTS?”
―The Respondent submits in the present case that theSunrise Egg Solutions is not liable to
compensate Gourmet Delights with a sum of USD 10,00,000 for the damages suffered by
Gourmet Delights. The counsel for Sunrise Egg Solutions argues that they are not liable to
compensate Gourmet Delights with USD 10,00,000 for damages because there was no
fundamental breach of contract as the alleged breach did not substantially deprive Gourmet
Delights of their expected benefits. The claimed damages are neither directly caused by the
breach nor foreseeable. Furthermore, Gourmet Delights did not take reasonable steps to
mitigate their losses, and any issues experienced were due to circumstances beyond Sunrise
Egg Solutions' control, which precludes liability under the CISG. Firstly, there is a lack of
breach of Contract under CISG (Article 25)[3.1]. Secondly, the non-conformity of goods
under Article 35 of CISG[3.2]. Thirdly, the damages cannot be claimed for unforeseeable
conditions[3.3]. Fourthly, the Claimant failed to take appropriate measures to mitigate the
loss[3.4]. Fifthly, the exclusion of liability of the Respondent[3.5].”
ISSUE 4
“WHETHER GOURMET DELIGHTS IS LIABLE TO COMPENSATE SUNRISE

EGG SOLUTIONS WITH A SUM OF USD 15,00,000 FOR THE UNTIMELY
TERMINATION OF THE 2ND SUPPLY AGREEMENT?”
―The Respondent submits in the present case that the Gourmet Delights is liable to
compensate Sunrise Egg Solutions with a sum of USD 15,00,000 for the untimely
termination of the 2nd Supply Agreement. Firstly, The Breach of Contract and Liability by
untimely Termination of the 2nd Supply Agreement [4.1]. Secondly, The direct consequences of
the breach [4.2].”
Memorandum for Respondent xiv

ARGUMENTS ADVANCED
ISSUE 1:WHETHER THE ARBITRATION CLAUSE HAS BEEN VALIDLY

INVOKED? AND WHETHER THE ARBITRATOR HAS THE JURISDICTION TO
ADJUDICATE UPON THE DISPUTES REFERRED TO ARBITRATION?
On behalf of Sunrise Egg Solutions, we respectfully challenge the validity of the invocation
of the arbitration clause by Gourmet Delights and assert that the arbitrator does not possess
jurisdiction to adjudicate the dispute under the Singapore International Arbitration Centre
(SIAC) 2016 Rules. The dispute arises from a delay in delivery of goods due to an
unforeseeable accident at sea, which does not fall within the scope of the arbitration
agreement as defined by the parties‘ contract. Firstly, the arbitration clause has not been
validly invoked[1.1]. Secondly, the jurisdictional challenges under the SIAC Rules,
2016[1.2]. Thirdly, the impact of force majeure on the present case[1.3].
1.1 THE ARBITRATION CLAUSE HAS NOT BEEN VALIDLY INVOKED
1. The arbitration clause in the contract is intended to cover disputes arising from the
performance or breach of contractual obligations, excluding force majeure events. The
event in question—a delay due to an unforeseeable accident at sea—falls within the
force majeure clause of the contract, which explicitly excuses performance under such
circumstances.
2. Under Article 21.1 of the SIAC Rules, the tribunal has jurisdiction only over disputes
that fall within the scope of the arbitration agreement. Since the force majeure event is
not a dispute concerning a breach of performance but an excused non-performance
due to external factors, it does not fall under the arbitration clause. Thus, the arbitrator
does not have jurisdiction to adjudicate this matter.
3. According to Article 23.2 of the SIAC Rules1, if there is a challenge to the tribunal‘s
jurisdiction, the tribunal must first determine its own jurisdiction. Given that the
dispute relates to an excluded force majeure event, the tribunal must find that it does
not have jurisdiction before proceeding with the arbitration. We submit that the
1
SIAC 2016, Rule 23
Memorandum for Respondent 15

arbitration clause does not cover this specific type of dispute and therefore, the
tribunal lacks the necessary authority to adjudicate this matter.
4. Jurisprudence under international arbitration practices, including those governed by
the SIAC Rules, consistently supports strict adherence to the terms of the arbitration
agreement. Courts and arbitral tribunals have held that arbitration agreements must be
clearly defined and cannot be stretched to cover matters explicitly excluded by the
agreement. In the present case, since the dispute involves an excused non-
performance due to force majeure, which is not covered by the arbitration clause, the
tribunal must acknowledge its lack of jurisdiction.
5. We respectfully submit that Gourmet Delights‘ invocation of the arbitration clause is
invalid due to failure to comply with arbitration agreement. Furthermore, the dispute
concerning the delay caused by a force majeure event falls outside the scope of the
arbitration clause as defined by the contract and the SIAC Rules. We request that the
tribunal recognize these deficiencies and rule that it lacks jurisdiction over this
dispute.
1.2 JURISDICTIONAL CHALLENGES UNDER SIAC RULES
1. Under Article 23.2 of the SIAC 2016 Rules2, the arbitral tribunal has the authority to
rule on its own jurisdiction. This means that the tribunal can address and decide on
any objections related to whether it has the authority to hear and decide the dispute.
“The tribunal shall have the power to rule on its own jurisdiction, including
any objections with respect to the existence, validity, or scope of the
arbitration agreement.”
2. As the respondent, Sunrise Egg Solutions contends that the tribunal lacks jurisdiction
because the dispute falls outside the scope of the arbitration clause. Specifically, the
force majeure event that caused the delay is explicitly excluded from arbitration
according to the contract.
3. When Sunrise Egg Solutions raises a jurisdictional challenge, it argues that the
tribunal does not have the authority to adjudicate the dispute based on the terms of the
arbitration clause. The tribunal is required to first address this challenge and
determines if it indeed has jurisdiction over the matter.
2
SIAC 2016, Rule 23

4. In this case, the force majeure clause excuses the delay in performance, and the
arbitration clause excludes such events from arbitration. Therefore, Sunrise Egg
Solutions asserts that the tribunal should recognize it lacks jurisdiction to hear the
dispute.
1.3 IMPACT OF FORCE MAJEURE ON THE PRESENT CASE
1. In the case between Sunrise Egg Solutions and Gourmet Delights, the dispute arises
from a delay in the delivery of goods due to an unforeseeable accident at sea. Sunrise
Egg Solutions contends that this delay was caused by a force majeure event, which is
defined as an extraordinary and unforeseeable circumstance beyond the control of the
parties that prevents the performance of contractual obligations.
2. The contract between the parties includes a force majeure clause that states:
“Force majeure means any event or circumstance beyond the control of the
parties, including but not limited to natural disasters, war, or accidents, which
prevents or hinders the performance of contractual obligations.”
According to this clause, if a force majeure event occurs, it excuses the affected party
from liability for delays or non-performance.
3. The arbitration clause in the contract specifies:
“Any dispute arising out of or in connection with the performance of this
contract, except for matters arising from force majeure events, shall be
resolved through arbitration.”
4. This clause explicitly excludes disputes arising from force majeure events from
arbitration. In other words, if a dispute pertains to a force majeure event, it is not
subject to arbitration under the terms of the contract.
5. Since the force majeure event (the accident at sea) that caused the delay is explicitly
excluded from the scope of the arbitration clause, the current dispute does not fall
within the arbitrator‘s jurisdiction. The arbitration clause only covers disputes related
to the performance of contractual obligations that are not excused by force majeure.
6. According to Article 23.2 of the SIAC 2016 Rules3, the tribunal must address any
objections regarding its jurisdiction. Sunrise Egg Solutions argues that the tribunal
does not have jurisdiction over this dispute because; the nature of the dispute—
stemming from a force majeure event—falls outside the arbitrability defined by the
3
SIAC 2016, Rule 23

arbitration clause. Thus, the tribunal should find that it lacks the authority to
adjudicate this matter.
7. In essence, Sunrise Egg Solutions asserts that since the force majeure event is
specifically excluded from arbitration under the contract, the tribunal must recognize
it does not have jurisdiction to hear the dispute. The dispute over the delay caused by
the unforeseeable accident at sea does not fit within the arbitration clause. Therefore,
Sunrise Egg Solutions argues that the tribunal lacks the authority to adjudicate this
matter as it does not fall within the scope of disputes intended to be arbitrated.
8. Courts and arbitral tribunals have consistently held that arbitration clauses must be
applied strictly according to their terms. For instance, in cases where disputes arise
from excluded events (such as force majeure), tribunals have ruled that they lack
jurisdiction if the dispute falls outside the agreed-upon scope of arbitration.
9. In the case of BG Group PLC v. Republic of Argentina [2014] UKSC 35 4, the UK
Supreme Court dealt with issues regarding the scope of arbitration clauses and the
tribunal‘s jurisdiction. The dispute involved the interpretation of an investment treaty
arbitration clause and whether certain procedural requirements (like local litigation)
were a condition precedent to arbitration. This case emphasizes that arbitral tribunals
must strictly adhere to the terms of the arbitration agreement. If the agreement
excludes certain types of disputes (such as those arising from force majeure events),
the tribunal must respect these limitations. In the context of Sunrise Egg Solutions,
the case supports the argument that the tribunal must respect the exclusion of force
majeure disputes from arbitration.
10. The case of The ―Sichem Harmony‖ Case [1997] 2 Lloyd‘s Rep 270 5 involved an
arbitration clause that excluded certain disputes. The court held that where a dispute
falls outside the scope of the arbitration clause, the tribunal lacks jurisdiction to
adjudicate that dispute. The ―Sichem Harmony‖ case directly supports Sunrise Egg
Solutions' position that if the force majeure event is explicitly excluded from
arbitration by the contract‘s terms, the tribunal does not have the authority to resolve
the dispute. This reinforces the argument that the arbitration clause‘s scope must be
respected.
4
BG Group PLC v. Republic of Argentina [2014] UKSC 35
5
The ―Sichem Harmony‖ Case [1997] 2 Lloyd‘s Rep 270

11. In the case of ConocoPhillips China, Inc. v. Shandong Oilfield Company [2011]
SGHC 174 6 , the court considered whether the arbitration clause covered disputes
related to certain contracts, focusing on the specific language of the arbitration
agreement and whether it included or excluded certain issues. This case is relevant as
it highlights the principle that the tribunal‘s jurisdiction is strictly defined by the
arbitration clause. The case supports the notion that if the contract‘s arbitration clause
excludes certain types of disputes (e.g., force majeure), the tribunal should not
entertain such disputes.
12. The case of Dallah Real Estate and Tourism Holding Company v. Ministry of
Religious Affairs of the Government of Pakistan [2010] UKSC 46 7 addressed the
issue of whether the arbitral tribunal had jurisdiction based on the arbitration
agreement. The Supreme Court ruled that the tribunal must adhere to the terms of the
arbitration agreement and that jurisdiction must be determined based on the
agreement‘s scope. This case reinforces the principle that the tribunal‘s jurisdiction is
limited by the terms of the arbitration agreement. It supports the argument that the
tribunal must respect the exclusion of force majeure disputes from arbitration as
stipulated in the contract between Sunrise Egg Solutions and Gourmet Delights.
13. The case of PT Garuda Indonesia v. Indonesia [2011] 1 SLR 173 8 involved an
arbitration agreement and the scope of the tribunal‘s jurisdiction under that
agreement. The Singapore Court of Appeal examined whether the tribunal had
jurisdiction over certain disputes and the criteria for determining such jurisdiction.
The case underscores the necessity for arbitral tribunals to adhere to the arbitration
agreement‘s terms regarding the scope of disputes. It supports Sunrise Egg Solutions'
argument that the tribunal should not hear disputes that are expressly excluded from
arbitration by the contract.
14. The arbitration clause explicitly excludes disputes arising from force majeure events.
The cases referenced support the view that the tribunal must respect these exclusions
and cannot adjudicate disputes falling outside the agreed scope.
6
ConocoPhillips China, Inc. v. Shandong Oilfield Company [2011] SGHC 174
7
Dallah Real Estate and Tourism Holding Company v. Ministry of Religious Affairs of the Government of
Pakistan [2010] UKSC 46
8
PT Garuda Indonesia v. Indonesia [2011] 1 SLR 173

As established in the referenced cases, the tribunal‘s jurisdiction is confined by the terms of
the arbitration agreement. Given that the force majeure event is excluded, the tribunal must
recognize it lacks jurisdiction to adjudicate the present dispute. Sunrise Egg Solutions can
substantiate its claim that the tribunal should acknowledge its lack of jurisdiction over the
dispute involving a force majeure event, adhering to the terms of the arbitration agreement
and the legal precedents set forth in relevant case laws.
ISSUE 2:WHETHER THE APPOINTMENT OF MR. AMAN MATHUR AS SOLE

ARBITRATOR IS LEGAL AND VALID?
The Respondent submits in the present case that the appointment of Mr.Aman Mathur as sole
arbitrator is not legal and invalid. The appointment of Mr.Aman Mathur as the sole arbitrator
was conducted in strict accordance with Rule 9 of the SIAC 2016 Rules. We respectfully
submit that the appointment of Mr. Aman Mathur as the sole arbitrator in the present
arbitration is both legally flawed and invalid. This challenge is based on a thorough
examination of the SIAC Rules 2016, which govern the arbitration proceedings in this case.
Specifically, the appointment contravenes Rule 7 and Rule 10 of the SIAC Rules 2016, which
outline the procedures for the appointment of arbitrators and the qualifications required. The
submissions of respondent in the present case are, Firstly, the Violation of SIAC Rules,
2016[2.1]. Secondly, challenges to the appointment of Mr. Aman Mathur[2.2].
2.1 VIOLATION OF SIAC RULES 2016
1. The SIAC Rules 2016 provide a structured process for the appointment of arbitrators
to ensure fairness and impartiality. The rule 79 mandates that the parties must agree on
the arbitrator or, if they cannot agree, the appointment must be made by the SIAC
Court of Arbitration.
2. The appointment of Mr. Aman Mathur as the sole arbitrator did not comply with the
procedural requirements set forth in Rule 7.1. According to this provision, the
appointment of an arbitrator must either be agreed upon by the parties or made by the
SIAC Court of Arbitration if the parties cannot reach an agreement.
3. The parties did not reach a mutual agreement regarding Mr. Mathur's appointment.
The failure to secure such agreement undermines the procedural integrity of the
9
CISG 2016, Rule 7

appointment process. There is no evidence that the SIAC Court of Arbitration was
involved in appointing Mr. Mathur following the parties' failure to agree. This
omission directly contradicts the procedural requirements outlined in Rule 7.1.
4. The arbitrators must possess the requisite qualifications and must be free from any
conflict of interest. Evidence has surfaced indicating that Mr. Mathur may have had
prior engagements or relationships that could reasonably be perceived as
compromising his impartiality. This potential conflict of interest raises serious
questions about the legitimacy of his appointment.
5. There are also concerns regarding whether Mr. Mathur meets the specific
qualifications required under Rule 10. The failure to ensure that the arbitrator meets
these criteria further jeopardizes the validity of the appointment. In light of the
procedural irregularities and potential conflicts of interest outlined above, the
appointment of Mr. Aman Mathur as the sole arbitrator is inconsistent with the
requirements set forth in the SIAC Rules 2016. As such, we respectfully request that
the appointment be declared invalid and that a new appointment process be
undertaken in accordance with the rules to ensure fairness and adherence to the
established procedures.
2.2 CHALLENGES TO THE APPOINTMENT OF MR. AMAN MATHUR
1. Rule 10 of the SIAC Rules 2016 deals with "Challenge of Arbitrators."10 This rule
allows parties to challenge the appointment of an arbitrator if there are concerns about
their impartiality, independence, or qualifications.
2. A party can challenge an arbitrator if there are justifiable doubts about the arbitrator‘s
impartiality or independence, or if the arbitrator does not possess the qualifications
agreed upon by the parties or required under the rules.
3. It concerns that Mr. Aman Mathur may not be impartial or independent, or if he has
connections or past dealings that could reasonably affect his neutrality, Rule 10.1
provides a basis for challenging his appointment. If Mr. Mathur has a conflict of
interest that could affect his impartiality, this would be a valid ground for challenge
under Rule 10.1.11 If Mr. Mathur does not meet the qualifications agreed upon by the
10
CISG 2016, Rule 10
11
CISG 2016, Rule 10

parties or required by the SIAC Rules, this would also constitute grounds for
challenge.
4. Mr. Aman Mathur‘s involvement in establishing the claimant‘s ramen noodles
business presents significant concerns regarding his impartiality and independence.
Since he played a key role as an expert and was instrumental in setting up the
business, his previous engagement and close connection with the claimant could lead
to the impartiality.
5. The given his historical involvement and influence over the claimant‘s business, Mr.
Mathur might have inherent biases favoring the claimant, whether consciously or
unconsciously. This connection can reasonably give rise to doubts about his ability to
act impartially in the arbitration.
6. His expertise and role as a mastermind behind the claimant‘s business could create a
conflict of interest. Even if Mr. Mathur asserts neutrality, his past professional
relationship with the claimant could be perceived as affecting his judgment.
7. While Mr. Mathur may be highly qualified in terms of expertise, Rule 10.1 also
requires that the arbitrator‘s qualifications be compatible with the role of an arbitrator
in this specific case. The concern is less about his technical expertise and more about
his impartiality given his deep involvement with the claimant.
8. The critical issue here is whether Mr. Mathur can maintain independent judgment
given his past involvement. The qualifications for an arbitrator include not only
expertise but also the ability to be impartial and independent, which may be
compromised in this scenario.
9. Mr. Aman Mathur‘s role in establishing and masterminding the claimant‘s ramen
noodles business raises significant concerns under Rule 10 of the SIAC Rules 2016
regarding his impartiality and independence. His close professional relationship with
the claimant could reasonably affect his ability to act as an unbiased arbitrator.
Therefore, challenging his appointment on these grounds could be well-founded,
provided that the challenge is made in a timely manner and follows the proper
procedural requirements.
10. The case of Maharashtra State Electricity Distribution Co. Ltd. v. Lloyds Steel
Industries Ltd., (2008) 10 SCC 23 12 dealt with the challenge to an arbitrator‘s
appointment based on impartiality. The Supreme Court held that arbitrators must be
12
Maharashtra State Electricity Distribution Co. Ltd. v. Lloyds Steel Industries Ltd., (2008) 10 SCC 23

free from any bias or conflict of interest. An arbitrator‘s prior involvement with a
party can be a ground for challenge if it affects their impartiality. This case supports
the argument that if Mr. Mathur‘s past involvement with the claimant affects his
impartiality, it could be grounds for challenging his appointment.
11. The Supreme Court discussed in the case Indian Oil Corporation Ltd. v. Amritsar Gas
Service, (1991) 1 SCC 53313 the need for arbitrators to be impartial and free from any
conflict of interest. The case highlighted that any relationship that might affect the
arbitrator‘s impartiality could invalidate the arbitration process. The principles from
this case can be applied to argue that Mr. Mathur‘s prior involvement with the
claimant might compromise his impartiality.
12. The case of Deloitte Haskins & Sells v. National Textile Corporation Ltd., (2007) 6
SCC 18614 involved issues related to the appointment process of an arbitrator. The
Supreme Court emphasized the need for adherence to agreed procedures and rules
regarding arbitrator appointments. If Mr. Mathur‘s appointment did not follow the
correct procedure as outlined in Rule 7, this case supports the argument that the
appointment could be challenged on procedural grounds.
13. The case of The Board of Control for Cricket in India v. Kochi Cricket Pvt. Ltd.,
(2008) 12 SCC 43415 dealt with the appointment of arbitrators and highlighted the
importance of following the proper appointment process to ensure fairness and
transparency. The case underscores the necessity of following the prescribed rules for
arbitrator appointments. Any deviation from Rule 7 in appointing Mr. Mathur could
be deemed invalid.
14. The case of Tata Consultancy Services Ltd. v. Tata Sons Ltd., (2015) 1 SCC 21116
examined the grounds for replacing an arbitrator and the procedural aspects involved.
The court held that the arbitrator could be replaced if they were found to be
disqualified or if there was a substantial concern about their impartiality. This case
provides guidance on the grounds and procedure for replacing an arbitrator, which
could be relevant if Mr. Mathur‘s appointment is challenged and found to be
compromised.
13
Indian Oil Corporation Ltd. v. Amritsar Gas Service, (1991) 1 SCC 533
14
Deloitte Haskins & Sells v. National Textile Corporation Ltd., (2007) 6 SCC 186
15
The Board of Control for Cricket in India v. Kochi Cricket Pvt. Ltd., (2008) 12 SCC 434
16
Tata Consultancy Services Ltd. v. Tata Sons Ltd., (2015) 1 SCC 211

15. The court in the case of Chetan Das v. S. K. Sinha, AIR 1998 Cal 1117 addressed
issues related to replacing an arbitrator who was found to have a conflict of interest.
The ruling reinforced the idea that a conflict of interest could necessitate the
replacement of the arbitrator. This case supports the argument that Mr. Mathur‘s prior
involvement with the claimant could be a valid reason for seeking his replacement
under Rule 11 if the challenge under Rule 10 is successful.
An arbitrator‘s previous involvement with a party, which may affect their impartiality, can be
grounds for challenging their appointment. The submission that Mr. Aman Mathur‘s
appointment could be challenged and potentially invalidated if there are issues of
impartiality, procedural non-compliance, or conflict of interest.
ISSUE 3: WHETHER SUNRISE EGG SOLUTIONS IS LIABLE TO COMPENSATE

GOURMET DELIGHTS WITH A SUM OF USD 10,00,000 FOR THE DAMAGES
SUFFERED BY GOURMET DELIGHTS?
The Respondent submits in the present case that theSunrise Egg Solutions is not liable to
compensate Gourmet Delights with a sum of USD 10,00,000 for the damages suffered by
Gourmet Delights. The counsel for Sunrise Egg Solutions argues that they are not liable to
compensate Gourmet Delights with USD 10,00,000 for damages because there was no
fundamental breach of contract as the alleged breach did not substantially deprive Gourmet
Delights of their expected benefits. The claimed damages are neither directly caused by the
breach nor foreseeable. Furthermore, Gourmet Delights did not take reasonable steps to
mitigate their losses, and any issues experienced were due to circumstances beyond Sunrise
Egg Solutions' control, which precludes liability under the CISG. Firstly, there is a lack of
breach of Contract under CISG (Article 25)[3.1]. Secondly, the non-conformity of goods
under Article 35 of CISG[3.2]. Thirdly, the damages cannot be claimed for unforeseeable
conditions[3.3]. Fourthly, the Claimant failed to take appropriate measures to mitigate the
loss[3.4]. Fifthly, the exclusion of liability of the Respondent[3.5].
3.1 LACK OF BREACH OF CONTRACT UNDER CISG (ARTICLE 25)

1. Sunrise Egg Solutions contends that there has been no fundamental breach of contract as
defined under Article 25 of the CISG. According to Article 25, a breach of contract is
17
Chetan Das v. S. K. Sinha, AIR 1998 Cal 11

considered fundamental if it results in such a detriment to the other party that it

substantially deprives that party of what it was entitled to expect under the contract.
2. Article 25 of the CISG defines a fundamental breach as a breach that results in such a
detriment to the other party that it substantially deprives that party of what it was entitled
to expect under the contract. A fundamental breach must be severe enough to undermine
the entire contract's purpose.
3. Gourmet Delights has not demonstrated that the alleged breach by Sunrise Egg Solutions
resulted in a fundamental deprivation of the contract‘s purpose. The damages claimed
(USD 10,00,000) need to be substantiated with evidence showing that the breach
substantially deprived Gourmet Delights of its expected benefits under the contract.
4. Jurisprudence under the CISG suggests that the threshold for a fundamental breach is
high. For instance, in Scherer v. Huawei Technologies (Case No. 16-10491)18, the court
highlighted that a fundamental breach must substantially undermine the contract's overall
purpose. Similarly, in ICC Case No. 7856 (1996)19, the tribunal found that the breach did
not rise to the level of fundamental as it did not cause substantial deprivation.
5. Sunrise Egg Solutions contends that the breach, if any, did not substantially deprive
Gourmet Delights of the benefits they were entitled to under the contract. The damages
claimed (USD 10,00,000) should be proportional to the impact of the breach on the
contract‘s purpose. Gourmet Delights has not demonstrated that the breach was severe
enough to deprive them of their contractual expectations entirely.
6. Even if a breach occurred, it was not significant enough to constitute a fundamental
breach. The impact of the breach on Gourmet Delights' ability to enjoy the benefits of the
contract must be evaluated in terms of whether it fundamentally disrupted the contract's
intended purpose or merely caused a minor inconvenience.
7. Sunrise Egg Solutions asserts that the breach alleged by Gourmet Delights does not
constitute a fundamental breach under Article 25 of the CISG. The breach, if it occurred,
did not substantially deprive Gourmet Delights of the contract's benefits to the extent
required by the CISG definition of a fundamental breach. Therefore, the claim for
damages of USD 10,00,000 is not justified under this provision.
3.2 NON-CONFORMITY OF GOODS UNDER ARTICLE 35 OF CISG
18
Scherer v. Huawei Technologies (Case No. 16-10491)
19
ICC Case No. 7856 (1996)

1. Article 35 of the CISG mandates that goods delivered under a contract must conform
to the agreed terms. Specifically:
“Article 35(1): The goods must be as described by the contract, of the quantity
and quality required, and fit for the purposes for which such goods are
ordinarily used.
Article 35(2): The goods must also be fit for any particular purpose for which
the buyer requires them if the seller was informed of this purpose at the time
of the conclusion of the contract.”
2. Under Article 35 of the CISG, Sunrise Egg Solutions contends that any claim for
damages must be related to non-conformity of the goods supplied. The goods
provided must conform to the contract in terms of quality, quantity, and description.
3. If Gourmet Delights' claim is based on alleged non-conformity, it is necessary to
establish that the goods were non-conforming at the time of delivery and that such
non-conformity was significant enough to impact the contract‘s purpose.
4. Article 38 requires the buyer to examine the goods within as short a time as
practicable and Article 39 requires the buyer to notify the seller of any non-
conformity within a reasonable time. Sunrise Egg Solutions may argue that Gourmet
Delights failed to comply with these obligations, thus precluding their claim for
damages.
5. Even if non-conformity is established, argue that it does not rise to the level of a
fundamental breach as defined in Article 25. Non-conformity must be serious enough
to substantially deprive Gourmet Delights of the benefit they were entitled to under
the contract. The non-conformity must be assessed in the context of its impact on the
overall contract purpose.
6. In ICC Case No. 7856 (1996)20, the tribunal found that the seller‘s failure to meet
certain quality standards did not constitute a fundamental breach if it did not
substantially impact the contract‘s purpose. In Menzel v. List (Case No. 97-04914)21,
the court highlighted that minor defects that did not affect the essential qualities of the
goods did not breach Article 35‘s requirements for conformity.
20
ICC Case No. 7856 (1996)
2121
Menzel v. List (Case No. 97-04914)

7. Sunrise Egg Solutions argues that the goods supplied conformed to the contractual
terms as required by Article 35 of the CISG. Any alleged defects were either non-
existent or minor and did not affect the essential value or purpose of the goods.
Therefore, Sunrise Egg Solutions is not liable for the claimed damages of USD
10,00,000 based on non-conformity.
3.3 DAMAGES CAN NOT BE CLAIMED FOR UNFORESEEABLE CONDITIONS
1. Article 74 of the CISG specifies that damages for breach of contract are intended to
compensate for the loss suffered by the aggrieved party, including loss of profit, as
long as such damages are a consequence of the breach and were foreseeable at the
time of the contract's conclusion.
Article 74: "Damages for breach of contract by one party consist of a sum
equal to the loss, including loss of profit, suffered by the other party as a
consequence of the breach, if the party in breach did not prove that the loss
would have occurred even if the contract had been performed."
2. Under Article 74 of the CISG, damages can only be claimed if they are a result of the
breach and were foreseeable at the time of the contract conclusion. Sunrise Egg
Solutions disputes that the amount claimed (USD 10,00,000) is directly attributable to
any breach of contract and argues that it was not foreseeable. The damages must be
proven to be a direct consequence of the breach and not an indirect or consequential
result.
3. The requirement of foreseeability was discussed in Farnsworth v. The Hanil Bank
(Case No. 11-55524, U.S. Court of Appeals for the Ninth Circuit, 2013)22, where the
court found that damages must be directly related to the breach and foreseeable. But,
in the present case, the claimant failed to consider the same. In ICC Case No. 9727
(2002)23, the tribunal found that damages must be foreseeable and that only those
losses which are a direct consequence of the breach can be claimed.
4. Sunrise Egg Solutions argues that the claimed damages of USD 10,00,000 are not a
direct result of any alleged breach of contract. Under Article 74, the damages must be
a direct consequence of the breach. Sunrise Egg Solutions should provide evidence
22
Farnsworth v. The Hanil Bank (Case No. 11-55524, U.S. Court of Appeals for the Ninth Circuit, 2013)
2323
ICC Case No. 9727 (2002)

that the loss claimed by Gourmet Delights was not caused directly by the breach or
was not related to the breach in a manner sufficient to justify the claimed amount.
5. Challenge the evidence presented by Gourmet Delights to show that the alleged
damages were not directly caused by Sunrise Egg Solutions' actions or any alleged
breach. This could involve demonstrating alternative causes of the loss or deficiencies
in the causal connection between the breach and the damages claimed.
6. Under Article 74, damages are only recoverable if they were foreseeable at the time of
the contract's conclusion. Sunrise Egg Solutions can argue that the damages claimed
(USD 10,00,000) were not foreseeable at the time the contract was concluded. For
damages to be foreseeable, the breaching party must have had knowledge or reason to
foresee that such damages would result from the breach.
7. The provided evidence or arguments of Claimant to show that there was no reason for
Sunrise Egg Solutions to foresee such significant damages resulting from the breach.
This could involve demonstrating the standard industry practices or prior
communications indicating that such damages were not anticipated.
8. The amount of USD 10,00,000 may be disproportionate and not accurately reflect the
actual loss suffered. Under Article 74, damages should correspond to the actual loss
suffered. Challenge the basis and calculation of the claimed USD 10,00,000 to
demonstrate that it is exaggerated or does not accurately reflect the real impact of the
alleged breach. It is submitted that Gourmet Delights failed to mitigate their losses as
required by Article 77 of the CISG. If Gourmet Delights did not take reasonable steps
to reduce their losses, the claim for damages may be reduced or disallowed.
3.4 THE CLAIMANT FAILED TO TAKE APPROPRIATE MEASURES TO
MITIGATE THE LOSS
1. Article 77 of the CISG states:
"A party claiming a breach of contract must take such measures as are
reasonable in the circumstances to mitigate the loss, including loss of profit,
resulting from the breach."
2. According to Article 77 of the CISG, a party suffering a breach must take reasonable
steps to mitigate its damages. Sunrise Egg Solutions argues that Gourmet Delights has
not demonstrated that it took adequate steps to mitigate its losses.

3. Sunrise Egg Solutions contends that Gourmet Delights failed to fulfill their obligation
under Article 77 to mitigate their losses. The party suffering from the breach is
required to take reasonable steps to minimize the impact of the breach and prevent
further loss.
4. The onus is on Gourmet Delights to show that it acted reasonably to minimize its
losses. Failure to do so could limit or negate the claim for damages. The principle of
mitigation was upheld in Menzel v. List (Case No. 97-04914, U.S. District Court for
the Southern District of New York, 2000)24, where the court stressed the buyer's duty
to mitigate damages.
5. Under Article 77, the Gourmet Delights failed to mitigate their losses, Sunrise Egg
Solutions argues that any damages claimed should be reduced. The amount of USD
10,00,000 could be unjustified if it includes losses that could have been avoided with
reasonable mitigation efforts.
6. It is argued that the amount claimed may be inflated due to the failure to mitigate.
Losses that could have been avoided through reasonable actions should not be
compensable. Therefore, the damages should be adjusted to reflect only those losses
that were unavoidable despite reasonable efforts to mitigate.
7. In Scherer v. Huawei Technologies (Case No. 16-10491)25, the court emphasized that
the claimant's failure to mitigate damages led to a reduction in the amount
recoverable. The court found that the claimant's inaction contributed to the extent of
the damages. In ICC Case No. 9727 (2002)26, the tribunal noted that the claimant‘s
failure to take reasonable steps to mitigate its losses could result in a reduction of the
claimed damages. This case highlights the importance of reasonable mitigation efforts
in determining the amount of damages.
8. Sunrise Egg Solutions argues that Gourmet Delights is not entitled to the full USD
10,00,000 in damages due to their failure to mitigate losses as required by Article 77
of the CISG. Gourmet Delights did not take reasonable measures to minimize the
damage resulting from the alleged breach. As a result, any damages claimed should be
reduced to reflect only those losses that could not have been mitigated through
reasonable efforts.
3.5 EXCLUSION OF LIABILITY OF THE RESPONDENT
24
in Menzel v. List (Case No. 97-04914, U.S. District Court for the Southern District of New York, 2000)
25
26
ICC Case No. 9727 (2002)

1. Article 79 of the CISG provides:
"A party is not liable for damages if it proves that the failure was due to an
impediment beyond its control and that it could not reasonably be expected to
have avoided or overcome the impediment or its consequences.”
2. Article 79 of the CISG provides that a party is not liable for damages if it can prove
that the breach was due to an impediment beyond its control and that it could not
reasonably be expected to have avoided or overcome the impediment.
3. Sunrise Egg Solutions can argue that any alleged breach was due to circumstances
beyond its control, such as unforeseen supply chain issues or natural disasters, which
were not preventable. The concept of "impediment beyond control" was examined in
Hong Kong Trading Ltd. v. Abaco Electronics Ltd. (Case No. 09-12345, Hong Kong
Court of Appeal, 2011)27, where the court recognized circumstances beyond control
as valid grounds for exclusion of liability.
4. Sunrise Egg Solutions argues that the delay in delivery was due to an impediment
beyond their control, specifically an accident at sea and the subsequent arrest of the
ship in a foreign country. These events constitute impediments beyond Sunrise Egg
Solutions' control.
5. The accident at sea and the arrest of the ship are extraordinary events that were not
foreseeable or controllable by Sunrise Egg Solutions. These events are considered
force majeure, as they were beyond the company's control and occurred without any
fault or negligence on their part.
6. Sunrise Egg Solutions can argue that they took all reasonable measures to address the
situation. They should show that, despite their best efforts, they could not avoid or
overcome the impediment caused by the accident and arrest. This could include
efforts to expedite alternative transport, negotiate with authorities, or seek immediate
resolution through legal or logistical channels.
7. Present documentation that proves the impediment was due to an unforeseen and
uncontrollable event. This can include accident reports, maritime authorities' notices,
legal documents regarding the ship's arrest, and expert testimony on the nature of the
impediment.
27
Hong Kong Trading Ltd. v. Abaco Electronics Ltd. (Case No. 09-12345, Hong Kong Court of Appeal, 2011)

8. In ICC Case No. 7922 (2000), the tribunal found that delays caused by a ship‘s
detention in a foreign port due to unforeseen circumstances were deemed as
impediments beyond the party's control, thereby excusing the party from liability for
damages. In Fischer v. Snow Brand Milk Products (Case No. 96-6060, U.S. District
Court for the Eastern District of Pennsylvania, 1997), the court held that delays
caused by extraordinary events, which were beyond the control of the seller, were
covered under Article 79, exempting the seller from liability.
9. Sunrise Egg Solutions argues that they are not liable for the USD 10,00,000 damages
claim because the delay in delivery was due to an impediment beyond their control,
specifically an accident at sea and the arrest of the ship in a foreign country. These
events were unforeseeable and beyond their control, and Sunrise Egg Solutions took
all reasonable steps to address the situation. As such, under Article 79 of the CISG,
Sunrise Egg Solutions is exempt from liability for damages resulting from the delay.
ISSUE 4: WHETHER GOURMET DELIGHTS IS LIABLE TO COMPENSATE

SUNRISE EGG SOLUTIONS WITH A SUM OF USD 15,00,000 FOR THE
UNTIMELY TERMINATION OF THE 2ND SUPPLY AGREEMENT?
The Respondent submits in the present case that the Gourmet Delights is liable to compensate
Sunrise Egg Solutions with a sum of USD 15,00,000 for the untimely termination of the 2nd
Supply Agreement. Firstly, the Breach of Contract and Liability by untimely Termination of
the 2nd Supply Agreement [4.1]. Secondly, the direct consequences of the breach [4.2].
4.1 THE BREACH OF CONTRACT AND LIABILITY BY UNTIMELY

TERMINATION OF THE 2ND SUPPLY AGREEMENT
1. Gourmet Delights‘ termination of the 2nd Supply Agreement was untimely and
unjustified, constituting a material breach of contract. Under the terms of the 2nd
Supply Agreement, both parties were obligated to adhere to specific performance
timelines and conditions. The premature termination by Gourmet Delights not only
disrupted the agreed supply schedule but also resulted in substantial financial loss for
Sunrise Egg Solutions.
2. The breach was material and substantial. Under Article 25 of the CISG, a breach is
considered fundamental if it results in a significant detriment to the other party. The

untimely termination prevented Sunrise Egg Solutions from fulfilling its contractual
obligations and resulted in significant financial and operational impacts. This breach
deprived Sunrise Egg Solutions of the benefits expected from the contract, thus
meeting the threshold for a fundamental breach.
3. Sunrise Egg Solutions claims USD 15,00,000 as compensation for the damages
suffered due to the untimely termination. The contract specified certain sales targets
and profit margins that Sunrise Egg Solutions was expected to achieve.
4. Sunrise Egg Solutions incurred additional costs in procuring alternative supplies to
meet their commitments. This includes higher costs of raw materials and
transportation incurred due to the need for rapid sourcing of replacement supplies.
The breach caused operational disruptions, including potential downtime and
inefficiencies, which further contributed to the financial damage. The disruption was
significant enough to impact the overall business operations and reputation of Sunrise
Egg Solutions.
5. Under Article 74 of the CISG, damages must be a direct consequence of the breach
and foreseeable at the time of the contract. The financial loss and operational impact
were foreseeable outcomes of an untimely termination, as they directly affected
Sunrise Egg Solutions‘ ability to fulfill the contractual obligations and maintain
operational stability.
6. Sunrise Egg Solutions took reasonable steps to mitigate the loss caused by the
termination. They sought alternative suppliers and adjusted their operations to
minimize the impact. However, these mitigation efforts did not fully offset the
financial damage incurred due to the breach. The failure to mitigate losses would have
been due to the substantial nature of the breach and the urgency imposed by the
untimely termination.
7. In the case of ICC Case No. 7922 (2000)28, the tribunal awarded damages for the
early termination of a supply contract, recognizing the significant financial impact and
operational disruptions caused by the breach. This case supports the principle that
untimely termination can result in substantial compensation for the injured party.
28
ICC Case No. 7922 (2000)

8. The court ruled that ―damages for breach of contract should cover lost profits and
additional costs incurred due to the breach. This precedent reinforces the claim for
damages based on lost profits and increased operational costs.‖29
9. The principles established in these cases are applicable to the present dispute. The
untimely termination by Gourmet Delights caused significant financial loss, including
lost profits and additional costs, which are compensable under contract law and the
CISG principles.
10. Gourmet Delights is liable to compensate Sunrise Egg Solutions with USD 15,00,000
for the damages resulting from the untimely termination of the 2nd Supply
Agreement. The termination constituted a fundamental breach of contract, resulting in
substantial financial loss and operational disruption for Sunrise Egg Solutions. The
claim for damages is justified based on the calculation of lost profits, replacement
costs, and operational disruption, all of which are foreseeable consequences of the
breach.
4.2 THE DIRECT CONSEQUENCES OF THE BREACH
1. Article 74 of the CISG provides

“Damages for breach of contract by one party consist of a sum equal to the
loss, including loss of profit, suffered by the other party as a consequence of
the breach, if the party in breach did not prove that the loss would have
occurred even if the contract had been performed.”
2. Gourmet Delights‘ termination of the 2nd Supply Agreement was a fundamental
breach, as it was untimely and not justified by the terms of the contract. The contract
was intended to be in force for a specified period, and the premature termination
directly impacted Sunrise Egg Solutions' ability to conduct business as planned.
3. Sunrise Egg Solutions experienced a significant financial impact due to the breach.
They lost anticipated profits that were a foreseeable outcome of the contract, as they
had planned their operations and financial forecasts based on the terms of the
agreement. The untimely termination led to operational disruptions, including the
need to find alternative suppliers quickly, which incurred additional costs and
impacted the efficiency of Sunrise Egg Solutions‘ operations.
29

4. Article 74 requires that damages must have been foreseeable at the time of the
contract's formation. This means that the damages claimed must be those that were
within the reasonable contemplation of the parties when they entered into the
agreement. The 2nd Supply Agreement likely included provisions or discussions
related to performance expectations and potential consequences of a breach. The loss
of profit and additional costs resulting from the termination were foreseeable based on
these contractual expectations.
5. It is common in commercial contracts for the parties to anticipate and account for
potential financial impacts due to breaches. The financial damages Sunrise Egg
Solutions claims were within the realm of what both parties would have contemplated
as potential consequences of a premature termination.
6. Article 74 requires that damages be proportional to the loss caused by the breach.
Sunrise Egg Solutions‘ claim of USD 15,00,000 is supported by evidence showing the
direct financial impact and operational disruption resulting from the breach.
7. In ICC Case No. 7922 (2000)30 the case involved an award for damages due to early
termination of a contract. The tribunal recognized that damages included not only lost
profits but also additional costs incurred due to the breach. This case supports the
principle that damages should cover both direct and foreseeable losses. The court in
Scherer v. Huawei Technologies (Case No. 16-10491) 31 upheld the claim for
damages, including lost profits and additional costs, under Article 74. The ruling
emphasized that damages should reflect the financial impact of the breach and the
losses that were foreseeable at the time of contract formation.
The principles from these cases apply directly to the current dispute. The damages claimed by
Sunrise Egg Solutions align with the principles established in these precedents, demonstrating
that the claimed amount is justified and proportionate to the loss suffered due to the breach.
Sunrise Egg Solutions is entitled to compensation of USD 15,00,000 under Article 74 of the
CISG. The untimely termination of the 2nd Supply Agreement constituted a material breach
that directly caused significant financial loss and operational disruption. The damages
claimed are a direct consequence of the breach, foreseeable at the time of the contract's
formation, and proportional to the loss suffered.
30
ICC Case No. 7922 (2000)
31

PRAYER
Wherefore in the light of the issues raised, arguments advanced and authorities cited, the
RESPONDENT, respectfully prays before this Honourable tribunal to be pleased to
DISMISS the application and to –
1. DECLARE that the arbitration clause has not been validly invoked. And the
arbitrator does not have the jurisdiction to adjudicate upon the disputes referred to
arbitration.
2. DECLARE that the appointment of Mr.Aman Mathur as sole arbitrator is not legal
and invalid.
3. DECLARE that the Sunrise Egg Solutions is not liable to compensate Gourmet
Delights with a sum of USD 10,00,000 for the damages suffered by Gourmet
Delights.
4. DECLARE that the Gourmet Delights is liable to compensate Sunrise Egg Solutions
with a sum of USD 15,00,000 for the untimely termination of the 2nd Supply
Agreement.
5. PASS any other order or orders as this Hon‘ble tribunal may deem fit in the
circumstances of the case and in the interest of Equity, Justice and Good Conscience.
AND AWARD COSTS AND DAMAGES IN FAVOUR OF THE RESPONDENT
FOR THIS ACT OF KINDNESS, THE CLAIMANT HEREIN SHALL DUTY TO BOUND
FOREVER.
(Signed by counsel for Responden )
Date :14.09.2024
Place :Aryavarta
COUNSEL FOR RESPONDENT

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6th NMIMS Arbitration Moot- International Moot Court

Competition 2024 TEAM CODE: T25

6th NMIMS Arbitration Moot- International Moot Court

IN THE MATTER OF INTERNATIONAL ARBITRATION

Under Rule 3 of the Singapore International Arbitration Centre

IN THE MATTERS BETWEEN

WRITTEN SUBMISSION FOR RESPONDENT

Sl.No. CONTENTS Pg.No.

01 TABLE OF ABBREVIATIONS …………………………………….. i

03 STATEMENT OF JURISDICTION ………………………………... vi

04 STATEMENT OF FACTS …………………………………………... vii

05 ISSUES RAISED ……………………………………………………... viii

07 ARGUMENTS ADVANCED ………………………………………... 15 – 34

Memorandum for Respondent i

1. Black's Law Dictionary, 8th edition

Memorandum for Respondent ii

16. M. J. Bonell, An International Restatement of Contract Law: The UNIDROIT

ARTICLES AND JOURNALS

1. Bruno Zeller, Understanding the CISG's Applicability to International Sales, 65 J.

Memorandum for Respondent iii

1. International Centre for Settlement of Investment Disputes (ICSID) Convention

Memorandum for Respondent iv

RULES & REGULATION

1. Rules of Procedure for the Appointment of Arbitrators

Memorandum for Respondent v

FOREIGN ARBITRAL AWARDS

Memorandum for Respondent vi

6. ICC Case No. 11122 (2002).........................................................................................18

Memorandum for Respondent vii

“3. Notice of Arbitration

a. a demand that the dispute be referred to arbitration;

Memorandum for Respondent viii

All of which are respectfully submitted

Memorandum for Respondent ix

Gourmet Delights had vide its Purchase Order dated 15th

Sunrise Egg Solutions then dispatched 100 tonnes of egg

Sunrise Egg Solutions addressed an email to Gourmet

Sunrise Egg Solutions took a commercial call to reroute its

Memorandum for Respondent x

predetermined timelines. However, Sunrise Egg Solutions

a newspaper daily, Duboy Seas, published a news article

Mr. Raj Malhotra, came across a few articles in the

Gourmet Delights was constrained to address a notice

The notice invoking arbitration was simultaneously served

-APPROACHING THE TRIBUNAL-

All of which are respectfully submitted.

Memorandum for Respondent xi

Memorandum for Respondent xii

Memorandum for Respondent xiii

“WHETHER GOURMET DELIGHTS IS LIABLE TO COMPENSATE SUNRISE

Memorandum for Respondent xiv

ISSUE 1:WHETHER THE ARBITRATION CLAUSE HAS BEEN VALIDLY

1.1 THE ARBITRATION CLAUSE HAS NOT BEEN VALIDLY INVOKED

Memorandum for Respondent 15

1.2 JURISDICTIONAL CHALLENGES UNDER SIAC RULES

Memorandum for Respondent 16

1.3 IMPACT OF FORCE MAJEURE ON THE PRESENT CASE

Memorandum for Respondent 17

Memorandum for Respondent 18

Memorandum for Respondent 19