Sie sind auf Seite 1von 43

L1020-C

THE 8TH LAWASIA INTERNATIONAL MOOT COURT, 2013


IN THE KUALA LUMPUR REGIONAL ARBITRATION CENTRE
AT SINGAPORE

BETWEEN

J ACK SMALL LIMITED


Claimant
AND

TAN SEN IMPORTS


Respondent

--MEMORIAL FOR THE CLAIMANT--

I
TABLE OF CONTENTS
INDEX OF AUTHORITIES ............................................................................................... VI
STATEMENT OF JURISDICTION ................................................................................. XIII
QUESTIONS PRESENTED ............................................................................................ XIV
STATEMENT OF FACTS .................................................................................................XV
SUMMARY OF PLEADINGS ...................................................................................... XVIII
PLEADINGS ........................................................................................................................ 1
I.

THE ARBITRAL TRIBUNAL HAS THE AUTHORITY TO ADJUDICATE


MATTERS PERTAINING TO UNFAIR TRADE PRACTICES. ....................... 1
A.

The Law governing the Arbitration Agreement is the Law of Malaysia. ................. 1
i.

Institutional rules must be considered in deciding the Lex Arbitri......................... 1

ii.

The Law governing the Arbitration Agreement shall be the law of the Seat of

Arbitration. ................................................................................................................ 2
iii.

The Arbitration agreement will not be governed by the Law of the Place of

Arbitration. ................................................................................................................ 2
B. The present matter is arbitrable before the Arbitral Tribunal even in the absence of
a private right of action. ................................................................................................. 3
i.

The Arbitrability of the dispute must be decided in accordance with the Law of

the Seat Malaysia. ................................................................................................... 3


ii.

The Arbitrability of the dispute is not barred under Malaysian Law. ................... 4
--MEMORIAL FOR THE CLAIMANT--

II
a.

Arbitrability of the matter is not barred under the Arbitration Act, 2005. ......... 4

b.

Arbitrability of the matter is unaffected by the public policy of Malaysia. ....... 4

iii. Disputes pertaining to Misleading & Deceptive Advertising and Consumer


Protection are arbitrable. ............................................................................................ 4
II.

THE RESPONDENT HAS ENGAGED IN UNFAIR TRADE PRACTICES. ........ 6


A.

Singapore Law governs the subject matter of the dispute between the parties. ........ 6
i.

The MAA requires the application of the Conflict of Laws Rules......................... 6

ii.

Singapore Law must be applied to the subject matter of the dispute according to

the Conflict of Laws Rules......................................................................................... 7


B. The Laws of Singapore pertaining to Protection of Endangered Species have been
violated by the Respondent. ........................................................................................... 7
i.

The Respondent is in violation of the Convention for International Trade in

Endangered Species (CITES). ................................................................................ 8


ii.

The Respondent is in violation of the Endangered Species (Import and Export)

Act, 2008 (Endangered Species Act). ..................................................................... 8


C. The Laws of Singapore pertaining to Advertising have been violated by the
Respondent.................................................................................................................... 9
i.

The Respondent has violated the Singapore Code of Advertising Practice, 2008

(SCAP). ................................................................................................................. 9
a.

The principles derived from the SCAP are applicable to the present matter. .... 9

--MEMORIAL FOR THE CLAIMANT--

III
b.

The Respondent has engaged in deceptive and misleading advertising under

SCAP. ................................................................................................................. 10
ii.

The Respondent has violated the principles of Consumer Protection (Fair

Trading) Act, 2004 (Consumer Protection Act) .................................................... 11


a.

The principles derived from the Consumer Protection Act are applicable in the

present matter. ..................................................................................................... 11


b.

The advertisement was misleading and deceptive under the Consumer

Protection Act. ..................................................................................................... 11


iii.

The intention of the Respondent is irrelevant to the present matter. .................. 12

iv.

The Respondents knowledge of the misleading element is irrelevant in the

present matter. ......................................................................................................... 13


III.

THE KLRCA HAS THE AUTHORITY TO ESTABLISH PENALTIES FOR


FUTURE SALE OF MISLABELED GOODS .................................................... 14
A.

The KLRCA has broad powers to take punitive measures. ................................... 14


i.

The travaux preparatoires give arbitrators maximum freedom. ........................... 14

ii.

The Arbitral Tribunal is empowered by the lex arbitri. ..................................... 14

iii.

The Arbitral Tribunal has inherent powers to grant sanction. ........................... 15

iv.

Article 14 of the Fast Track Rules gives the tribunal wide discretion. ............... 15

B. Monetary sanctions in the form of fines can have a stronger deterrence effect in
ensuring expeditious proceedings. ............................................................................... 16

--MEMORIAL FOR THE CLAIMANT--

IV
IV.

THE KLRCA HAS THE AUTHORITY TO GRANT A PERMANENT


INJUNCTION ENFORCEABLE IN SINGAPORE. .......................................... 17
A.

A future permanent injunction can be granted by the KLRCA. ............................. 17


i.

The express mention of power to grant injunctive relief is not necessary. ........... 17
The KLRCA can grant a permenenat injunction.. ................18

ii.

iii. The KLRCA has inherent powers to grant injunctory relief. .............................. 18
iv.

The KLRCA can award future injunctory relief. .............................................. 19

v.

The KL Rules incorporate Art. 26 of the UNCITRAL Rules and thereby

envisage greater flexibility for interim relief. ........................................................... 19


a.

The UNCITRAL Rules differ from the UNCITRAL Model Law. .................. 20

b.

The Rules do not limit the type of provisional measures. ............................... 20

c.

The Rules do not elucidate an exhaustive list of measures. ............................ 20

d.

The Rules broaden the range of actions to be refrained from. ........................ 20

B. A permanent injunction granted by the KLRCA is an award enforceable by courts


in Singapore. ............................................................................................................... 21
i.

Injunctions constitute awards under the KLRCA Rules................................... 21

ii.

Awards granting injunctions are enforceable. .................................................... 21

iii.

Arguendo: the permanent injunction is a partial award. ................................ 22

iv.

Foreign awards can be enforced in Singapore................................................... 22

--MEMORIAL FOR THE CLAIMANT--

V
CONCLUSION AND PRAYER FOR RELIEF ................................................................... 23

--MEMORIAL FOR THE CLAIMANT--

VI
INDEX OF AUTHORITIES
CASES
Adamas Mgt & Services Inc. v. Aurado Energy Inc., XXX Y.B Comm. Arb. 479 (New
Brunswick WB 2004) (2005)..................................................................................... 18, 22
Anderman/Smith Operating Co. v. Tenn. Gas Pipeline Co., 918 F.2d 1215 (5th Cir. 1990)... 20
Arrowhead Global Solutions Inc. v. Datapath Inc. 166 Fed.Appx. 39, 41 (4th Cir. 2006). .... 22
Bonython v. Commonwealth of Australia, [1951] AC 201, 219 (Privy Council on appeal from
Australia). ......................................................................................................................... 8
Bundesgerichtshof

(German

Supreme

Court), Gewerblicher

Rechtsschutz

und

Urheberrecht, 1982, 374. ................................................................................................ 13


Comandate Marine Corp v. Pan Australia Shipping Pty Ltd., [2006] FCAFC 192, 200. ........ 3
Comandate Marine Corp v. Pan Australia Shipping Pty Ltd., [2006] FCAFC 192................. 6
Enron Corp. and Ponderosa Assets LP v. Argentine Republic, Decision on Jurisdiction,
ICSID Case No. ARB/01/3 (14th Jan. 2004) 81. ............................................................ 19
Findlay v. Couldwell and Bcywiood Motors, (1976) 5 W.W.R. 340 at 345 (Canada). .......... 13
Freydberg Bros. Inc. v. Corey, 31 N.Y.S.2d 10 (N.Y.S.Ct 1941)......................................... 18
Global Sportsman v. Mirror, (1984) 55 A.L.R. 25 at 30 (Australia) .................................... 13
Hamlyn & Co. v. Talisker Distillery, [1894] A.C. 202, 208 (House of Lords). ....................... 2
IBM Australia v. National Distribution Services, (1991) 22 NSWLR 466. ............................ 5
ICC Case No. 6162 (1990), XVII Y.B. Comm. Arb. 153, 158 (1992). .................................. 4
--MEMORIAL FOR THE CLAIMANT--

VII
Inter Chem Asia 2000 PTE Ltd v. Oceana Petrochem, 373 F.Supp.2d 340 (S.D.N.Y. 2005)
933 .................................................................................................................................. 15
Island Creek Coal Sales Co. v. City of Gainesville, 729 F.2d 1046, 1049 (6th Cir. 1984). .... 18
Judgment of 26 May 1994, XXIII Y.B. Comm. Arb. 754, 757 (Bezirksgericht Affoltern am
Albis 1994 (1998) ............................................................................................................. 2
Judgment of 28 October 1997, Socit Procds de prfabrication pour le bton v. Libye,
1998 Rev. arb. 399 (Paris Cour dappel). ........................................................................... 3
Lesotho Highlands Development Authority v. Impregilo Spa, [2006] 1 A.C. 221 (House of
Lords). .............................................................................................................................. 2
Lloyds London v. Argonaut Ins., 264 F.Supp.2d 926,944 (N.D. Cal. 2003). ....................... 17
LV Fiannce Group Ltd. v. IPOC Intl Growth Fund Ltd. [2006] Bda LR 69 (Bermuda
Commercial Court).......................................................................................................... 22
Minoutsi Shipping Corp v. Trans Continental Shipping Services (Pte) Ltd, [1971] SGHC 3 .. 2
NSW Racing v. T.A.B, [2002] N.S.W.S.C 742 26 (New South Wales Supreme Court). ...... 18
P.T. Pukuafu Indah and Ors. v. Newmont Indonesia Ltd. and Anr., [2012] SGHC 187. ....... 23
Pac. Reins v. Ohio Reins, 9.35 F.2d 1019 (1991)................................................................. 22
Parkdale v. PUXU (1982) 42 A.L.R. 1 at 6 (Australia). ....................................................... 13
Prima Paint Corporation v. Flood & Conklin Manufacturing Company, 18 L.Ed 2d 1270. ... 5
Prosecutor v. Tihomic Blaskic, IT-95-1 4-AR 108 bis (1997), 33. ..................................... 17
R. v. International Trustee for the Protection of Bondholders, [1937] A.C. 500, 529. ............ 2
--MEMORIAL FOR THE CLAIMANT--

VIII
Re An Arbitration Between Hainan Machinery Import and Export Corp and Donald &
McArthy Pte Ltd., [1995] SGHC 232. ................................................................................ 5
Reed & Martin Inc. v. Westinghouse Electric Corporation, 439 F.2d 1268, 1273 (2nd Cir.
1971)................................................................................................................................. 1
ReliaStar Life Insurance Company of New York v. EMC National Life Company. Docket No.
07-0828-cv, 2009 WL 941173 (2d Cir. April 9, 2009) ..................................................... 16
Robson v. Chrysler Canada Ltd. [2001] B.C.T.C. 40 (Canada)............................................ 12
Rushak v. Henneken, (1991) 84 D.L.R (4th) 87 (Canada). .................................................... 14
Steven v. Coudert Brothers, 662 N.Y.S.2d 42 (N.Y. App. Div. 1997). ................................... 1
Techno-Impex v. Gebr. Van Weelde Scheepvaartkantoor B, [1981] QB 648. ....................... 16
Vita Foods Products Inc. v. Unus Shipping Co. Ltd., [1939] A.C. 277, 299 (P.C.). ................ 2
Whitworth Street Estates (Manchester) Ltd. v. James Milller and Partners Ltd. [1970] AC
583, 603. ........................................................................................................................... 8
Wilkinson v. Katies, (1986) 67 A.L.R 137 (Australia).......................................................... 14
Y.K. Fung Securities Sdn Bhd v. James Cape (Far East) Ltd, 3 [1997] 2 MLJ 621. ............... 8
AWARDS
Award of 22 April 2008, ICSID, 726-730. ....................................................................... 16
Award of 31 March 1986, 2 ICSID Rep. 343, 378. .............................................................. 16
Rainbow Warrior (Fr. V. N.Z), R.I.A.A., Vol. XX, 1990, P.217, at 270, 114 .................... 19
Trail Smelter Case, (U.S. v. Canada), 3 R.I.A.A. 1905...........................................................20
--MEMORIAL FOR THE CLAIMANT--

IX
STATUTES/CONVENTIONS
Consumer Protection (Fair Trading) Act, 2004. ............................................................. 12, 13
Convention for International Trade in Endangered Species, 2008. ................................. 23, 33
Endangered Species (Import and Export) Act, 2008. ....................................................... 9, 10
International Arbitration Act (Singapore). ........................................................................... 23
Malaysian Arbitration Act, 2005. ...............................................................................7, 15, 19
Singapore Code of Advertising Practice, 2008..................................................................... 11
REPORTS
Singapore Report for ACCP (ASEAN Committee on Consumer Protection), June 2008...... 11
UNCITRAL, Report of Working Group II (Arbitration and Conciliation) on the Work of its
Fiftieth Session, 92, delivered to the General Assembly, U.N. Doc. A/CN.9/669 (March
9, 2009). .......................................................................................................................... 21
UNCITRAL, Report of Working Group II (Arbitration and Conciliation) on the Work of its
Forty-Fifth Session, 17-19, delivered to the General Assembly, U.N. Doc. A/CN.9/614
(Oct. 5, 2006) 51............................................................................................................ 20
UNCITRAL, Report of Working Group II (Arbitration and Conciliation) on the Work of its
Forty-Fifth Session, 17-19, delivered to the General Assembly, U.N. Doc. A/CN.9/614
(Oct. 5, 2006). ................................................................................................................. 20
UNCITRAL, Settlement of Commercial Disputes: Revision of the UNCITRAL Arbitration
Rules, Note by the Secretariat, 13, art. 26(2), delivered to Working Group II (Arbitration

--MEMORIAL FOR THE CLAIMANT--

X
and Conciliation), U.N. Doc. A/CN.9/WG.II/WP.151/Add.1 (Aug. 6, 2008) with 2010
Arbitration Rules, Art. 26(2)............................................................................................ 21
United Nations Commission on International Trade Law, Summary Record of the 10th
Meeting of the Committee of the Whole(II) (UN Doc A/CN.9/9/C.2/SR.10) 59............. 15
RULES
Kuala Lumpur Regional Centre for Arbitration Fast Track Rules, (2 nd Edition, 2012)... passim
UNCITRAL Arbitration Rules, 2011................................................................................... 15
BOOKS
Brown, Chester, A Common Law of International Adjudication New York, (Oxford University
Press 2007)...................................................................................................................... 17
Claudia Alfons, Recognition and Enforcement of Annulled Foreign Arbitral Awards,
(Frankfurt: Peterl Lang, 2010) ........................................................................................... 5
Gary B. Born, International Commercial Arbitration, Vol. I (3rd ed., The Hague, Kluwer
Law International, 2009) ................................................................................................... 1
Gary B. Born, International Commercial Arbitration, Vol. II (3rd ed., The Hague, Kluwer
Law International, 2009) ................................................................................................... 7
Schreuer, Christopher The ICSID Convention: A Commentary (Cambridge University Press
2001)............................................................................................................................... 17
Trevor Cook and Alejandro I. Garcia, International Intellectual Property Arbitration, 270
(Kluwer Law International 2010).............................................................................................19

--MEMORIAL FOR THE CLAIMANT--

XI
ARTICLES
Antoine Kirry, Arbitrability: Current Trends in Europe, 12 Arb. Int. 4, (1996), P.379........... 4
Carlos Alfaro & Flavia Guimarey, Who Should Determine Arbitrability? Arbitration in a
Changing Economic and Political Environment, Arb. Int, 1996, Vol. 12 No. 4, 416-420. .. 5
Gaeta, P. Inherent Powers of International Courts and Tribunals in Vohrah, L.C. et al (eds)
Mans Inhumanity to Man: Essays on International Law in Honour of Antonio Cassese
(Kluwer Law International 2003) 370-71 [Gaeta]......................................................... 17
Hanotiau, Bernard, Caprasse, Oliver, Public Policy in International Commercial
Arbitration, in Gaillard & Di Pietro (eds.), Enforcement of Arbitration Agreements and
International Arbitral Awards: The New York Convention in Practice, (Cameron May,
2008), P.819. ..................................................................................................................... 5
J. Edward Russo, Barbara L. Metcalf and Debra Stephens, Identifying Misleading
Advertisement, Journal of Consumer Research, Vol. 8, No. 2 (Sep., 1981), pP.119-131. .. 13
Margaret Griffiths, Unfair Commercial Practices - A New Regime, Comms. L. 2007, 12(6),
196-204. .......................................................................................................................... 11
Neil, Philip D., The Power of Arbitrators to Award Monetary Sanctions for Discovery Abuse
(Nov. 2005/ Jan. 2006) 60 Disp. Res .J. 60, 3. ................................................................. 15
Stavros L. Brekoulakis, On Arbitrability: Persisting Misconceptions and New Areas of
Concern in Mistelis, Loukas, A & Stavros L. Brekoulakis, Arbitrability: International &
Comparative Perspectives (The Hauge, Kluwer Law International, 2009), P.32. ............... 4

--MEMORIAL FOR THE CLAIMANT--

XII
Yves Fortier, Arbitrability of Disputes in Gerald Aksen et al., Global Reflections on
International Law, Commerce and Dispute Resolution: Liber Amicorum in honour of
Robert Briner (Paris, ICC Publishing, 2005) P.273 ............................................................ 5

--MEMORIAL FOR THE CLAIMANT--

XIII
STATEMENT OF JURISDICTION

Jack Small Limited (Claimant) and Tan Sen Imports (Respondent) jointly submit the
present dispute to the Kuala Lumpur Regional Centre for Arbitration (KLRCA), Malaysia,
according to the KLRCA Fast Track Rules (KLRCA Rules).
The dispute includes issues on the Tribunals jurisdiction. Pursuant to Article 6 of the
KLRCA Rules, the Tribunal may elect to rule on its jurisdiction as a preliminary question or
in an award on its merits. Both parties shall accept the judgment of the Tribunal as final and
binding and execute it in good faith in its entirety.

--MEMORIAL FOR THE CLAIMANT--

XIV
QUESTIONS PRESENTED

I.

WHETHER

THE

ARBITRATION TRIBUNAL

HAS THE AUTHORITY TO ADJUDICATE

MATTERS PERTAINING TO UNFAIR TRADE PRACTICES?

II.
III.

WHETHER THE RESPONDENT HAS ENGAGED IN UNFAIR TRADE PRACTICES?


WHETHER

THE

KLRCA

HAS THE AUTHORITY TO ESTABLISH PENALTIES FOR

FUTURE SALE OF MISLABELLED GOODS?

IV.

WHETHER THE KLRCA HAS THE AUTHORITY TO GRANT A PERMANENT INJUNCTION


ENFORCEABLE IN SINGAPORE?

--MEMORIAL FOR THE CLAIMANT--

XV
STATEMENT OF FACTS
BACKGROUND
There is a business dispute between two parties, Jack Small Ltd. (hereinafter CLAIMANT) and
Tan Sen Imports (hereinafter RESPONDENT) who own and operate Singapore departmental
stores selling garmensts, including fur garments. There are two types of fur sold in the
market, real fur and faux fur. Faux fur is synthetically designed to resemble real fur. It is an
animal friendly alternative to real fur. In some countries, it has been seen that real fur is
promoted as faux fur.
The claimant complained to the Enforcement Support Office of the Convention on
International Trade in Endangered Species (CITES) that the Respondent was selling real fur
products made from the fur of an endangered species, the Asian Golden Cat. Trade or sale
in the fur of any endangered species listed under the CITES is prohibited. The Asian Golden
Cat is listed under Appendix I of the CITES and as a Near Threatened species by the IUCN.
DISPUTE
Upon investigation, it was found that the Respondent was indeed selling real fur of the Asian
Golden Cat, not faux fur, and advertising it as having the touch, feel and smell of real fur.
Up to 8 of these small cats are required to make one single fur coat.
The Respondent claims to have acquired these products from China Fur, who represented the
fur as being made from the pelts of Asian cats. The samples were shown to the Respondent
prior to importing. The labels on these goods were designed and supplied by the Respondent.
Unable to resolve their dispute, the parties agreed to submit their dispute to binding
arbitration in accordance with the rules for arbitration of the Kuala Lumpur Regional Centre
for Arbitration (hereinafter KL Rules), namely the Fast Track rules. All hearings and
--MEMORIAL FOR THE CLAIMANT--

XVI
proceedings were to be held in Singapore. The parties did not decide the applicable law to
apply in resolving the dispute.
CLAIMS AND COUNTER-CLAIMS
Around 60% of the claimants total sales include fur products, which amount to over 90% of
its profits. Since the Respondent started to sell real fur of the Asian Golden Cat, the
claimants total sales reduced by 40% and fur products sale by 70%. The claimant asserted
before the Tribunal that the Respondent has engaged in unfair practices by violating the
Endangered Species (Import and Export) Act and CITES and not disclosing to the public that
the fur was made of endangered species.
It was contended that the Respondent was engaging in deceptive and misleading advertising
by advertising the fur products as having the touch, feel and smell of real fur.
Further, the claimant requested an order to refrain the Respondent from carrying out,
promoting, and/or selling the fur of any endangered species. A penalty of 500 USD was
claimed for each item containing the fur of an endangered species, and this amount would be
donated to The Nature Society (Singapore).
The Respondent contended that it had no knowledge of the fur being real, and that buyers too
could not generally tell the difference between real and faux fur. It stated that primarily,
neither the Endangered Species (Import and Export) Act, nor CITES allows a private right of
action between businesses for the violation of their provisions. Only the Government has the
authority to enforce its laws and treaty obligations. Further, it was asserted that the Arbitral
Tribunal lacks the authority to award a penalty for the future sale of mislabelled goods. The
Respondent held that the under the KL rules (which follows Article 26 of UNCITRAL
Arbitration Rules) the Arbitral Tribunal does not possess the authority to impose future

--MEMORIAL FOR THE CLAIMANT--

XVII
injunctive relief. Under Article 26 only an interim relief can be claimed, not a permanent
injunction and that a Singapore Court would not enforce such an order.

--MEMORIAL FOR THE CLAIMANT--

XVIII
SUMMARY OF PLEADINGS
I.

THE ARBITRAL TRIBUNAL

HAS THE AUTHORITY TO ADJUDICATE MATTERS

PERTAINING TO UNFAIR TRADE PRACTICES.

By virtue of the KLRCA Fast Track Arbitration Rules, 2012, since Malaysia has been
designated as the seat of arbitration, the law governing the arbitration agreement would be the
laws of Malaysia. Therefore, since disputes pertaining to the practice of unfair trade practices
are arbitrable under Malaysian Arbitration Law, the Arbitral Tribunal can decide the matter
pertaining to the Respondents engagement in unfair trade practices.
II.

THE RESPONDENT HAS ENGAGED IN UNFAIR TRADE PRACTICES.

By virtue of the application of the Conflict of Laws Rules, the laws of Singapore govern the
subject matter of the dispute between the parties before the Arbitral Tribunal. It is therefore
contended that the Respondent has violated the laws of Singapore pertaining to prevention in
trade and sale of endangered species. Further, the Respondent has engaged misleading and
deceptive advertising of his products, thereby amounting to unfair trade practices.
III.

THE KLRCA HAS THE AUTHORITY TO ESTABLISH PENALTIES FOR FUTURE SALE OF

MISLABELLED GOODS.

The KLRCA has the authority to establish penalties because first it has broad powers to take
punitive measures. They stem from the travaux preparatoires and the lex arbitri. Moreover, it
has inherent powers to grant sanction. Further, Article 14 of the Fast Track Rules gives the
tribunal wide discretion. Second, monetary sanctions in the form of fines can have a stronger
deterrence effect in ensuring expeditious proceedings.

--MEMORIAL FOR THE CLAIMANT--

XIX
IV.

THE KLRCA

HAS THE AUTHORITY TO GRANT A PERMANENT INJUNCTION

ENFORCEABLE IN SINGAPORE.

The KLRCA is authorized to grant a future permanent injunction because injunctions


constitute awards. Additionally, awards granting injunctions are enforceable. Arguendo, the
permanent injunction is a partial award. Further, foreign awards can be enforced in
Singapore. In any case, a permanent injunction granted by the KLRCA is an award, which is
enforceable by courts in Singapore.

--MEMORIAL FOR THE CLAIMANT--

1
PLEADINGS

I.

THE ARBITRAL TRIBUNAL HAS THE AUTHORITY TO ADJUDICATE


MATTERS PERTAINING TO UNFAIR TRADE PRACTICES.

1. Since the law governing the arbitration agreement is that of Malaysia [A], and such law
envisages the arbitrability of the present matter [B], the Arbitral Tribunal can decide on
the Respondents engagement in unfair trade practices.
A. THE LAW GOVERNING THE ARBITRATION AGREEMENT IS THE LAW OF MALAYSIA.
2. In order to determine the law governing the arbitration agreement, institutional rules
should be considered [i]. Furthermore, the lex arbitri shall be governed by the Law of the
Seat of Arbitration [ii] and not the Place of Arbitration [iii].
i.

Institutional rules must be considered in deciding the Lex Arbitri.

3. Institutional arbitration rules may be resorted to for the selection of the seat of arbitration,
when the parties have not agreed upon the place where the arbitration is to be held.1 In the
present case, the parties have agreed to arbitrate their dispute pursuant to the rules
prescribed under the KLRCA Fast Track Rules, 2012.2 Therefore, it is contended that the
dispute must be referred to the same for resolution under such rules.3 Furthermore, when
the rules authorize the KLRCA to designate the arbitral seat as Malaysia, 4 challenges to
the institutions selection should not be furthered.5

Gary B. Born, International Commercial Arbitration, Vol. I (3rd ed., The Hague, Kluwer Law International,
2009), P.1679 [hereinafter Gary Born I].
2
Proposition, P.3.
3
Steven v. Coudert Brothers, 662 N.Y.S.2d 42 (N.Y. App. Div. 1997).
4
Art. 6(2), Kuala Lumpur Regional Centre for Arbitration Fast Track Rules, (2nd Edition, 2012) [hereinafter
Fast Track Rules].
5
Reed & Martin Inc. v. Westinghouse Electric Corporation, 439 F.2d 1268, 1273 (2nd Cir. 1971).

--MEMORIAL FOR THE CLAIMANT--

2
ii.

The Law governing the Arbitration Agreement shall be the Law of the
Seat of Arbitration.

4. It is a fundamental principle of the rule of conflict of laws that intention is the general test
of what law is to apply.6 In the absence of an express choice-of-law provision regarding
the arbitration agreement, the arbitration clause must be interpreted according to the law of
the seat of the Arbitral Tribunal.7 By seating the arbitration in a particular State, the parties
are regarded to have impliedly agreed that the Law of the Arbitral Seat should govern the
arbitration clause.8
5. By virtue of the express intent of the parties to resort to the KLRCA Fast Track Rules,
2012 for the settlement of their dispute,9 the seat of the arbitration is Malaysia.10 In light of
the above, it is contended that the law governing the arbitration agreement must, by the
same reasoning, be the laws of the State of Malaysia.
iii.

The Arbitration Agreement will not be governed by the Law of the Place
of Arbitration.

6. The arbitral seat is the juridical seat of the arbitration, and therefore, the arbitral seat is
not necessarily the place where the hearings of the arbitration proceedings are held.11
Rather, it is the place where the parties have agreed upon as the legal place of the
arbitration.12 Since the concept of the arbitral seat is a legal construct, not a geographic or
physical location, the law applicable to the arbitration is unaffected even if arbitral

Vita Foods Products Inc. v. Unus Shipping Co. Ltd., [1939] A.C. 277, 299 (P.C.).
Judgment of 26 May 1994, XXIII Y.B. Comm. Arb. 754, 757 (Bezirksgericht Affoltern am Albis 1994 (1998);
Minoutsi Shipping Corp v. Trans Continental Shipping Services (Pte) Ltd, [1971] SGHC 3; R. v. International
Trustee for the Protection of Bondholders, [1937] A.C. 500, 529.
8
Hamlyn & Co. v. Talisker Distillery, [1894] A.C. 202, 208 (House of Lords).
9
Clarifications, First Set, P.4.
10
Art. 6(2), Fast Track Rules.
11
Lesotho Highlands Development Authority v. Impregilo Spa, [2006] 1 A.C. 221 (House of Lords).
12
Id.
7

--MEMORIAL FOR THE CLAIMANT--

3
proceedings are physically conducted in places other than the seat of arbitration for any
reason.13
7. By providing that the arbitral proceedings shall be held in Singapore,14 the only plausible
inference is that the parties agreed for Singapore to be the place of arbitration and not
the seat of arbitration. Therefore, although the place of arbitration, by virtue of the
arbitration agreement would be Singapore,15 it is argued that the seat of the arbitration
continues to be that of Malaysia and the laws thereof.
B. THE PRESENT MATTER IS ARBITRABLE BEFORE THE ARBITRAL TRIBUNAL EVEN IN THE
ABSENCE OF A PRIVATE RIGHT OF ACTION.

8. The law of the seat of arbitration, i.e., of Malaysia, is the determining factor regarding
questions of arbitrability [i], and the arbitrability of the present matter is not barred by
Malaysian law [ii]. Furthermore, matters pertaining to unfair practices and consumer
disputes are arbitrable under common law [iii]. Therefore, the present matter is arbitrable
before the Tribunal, irrespective of whether a private right of action exists or not.
i.

The Arbitrability of the dispute must be decided in accordance with the


Law of the Seat Malaysia.

9. It has been held that the words capable of being settled by arbitration or arbitrability
are to be understood as dealing with the question "whether the dispute is of the type that
comes properly within the domain of arbitration."16 It is internationally accepted that the
law of the seat of arbitration must be applied for the determination of the arbitrability of
the subject matter of the dispute.17 This is in furtherance of this proposition that the

13

Judgment of 28 October 1997, Socit Procds de prfabrication pour le bton v. Libye, 1998 Rev. arb. 399
(Paris Cour dappel).
14
Proposition, P.3.
15
Id.
16
Comandate Marine Corp v. Pan Australia Shipping Pty Ltd., [2006] FCAFC 192, 200.
17
ICC Case No. 6162 (1990), XVII Y.B. Comm. Arb. 153, 158 (1992).

--MEMORIAL FOR THE CLAIMANT--

4
claimants argue that the Malaysian Arbitration Act, 2005 is applicable to the present
dispute.
ii.

The Arbitrability of the dispute is not barred under Malaysian Law.

a. Arbitrability of the matter is not barred under the Arbitration Act, 2005.
10. The Arbitration Act, 2005, states that the fact that any written law confers jurisdiction in
respect of any matter on any court of law but does not refer to the determination of that
matter by arbitration shall not, by itself, indicate that a dispute about that matter is not
capable of determination by arbitration.18 This is implicative of the fact that though a
matter may be subject to the jurisdiction of any court of law, this does not bar an Arbitral
Tribunal from exercising its jurisdiction over the same.
b. Arbitrability of the matter is unaffected by the public policy of Malaysia.
11. Furthermore, it has been argued that public policy, in the present day, has diminished in
relevance to the issue of arbitrability of international commercial disputes.19 It is
contended that, relevance of public policy to the discussion of arbitrability is essentially
very limited, and therefore, the scope of inarbitrability should not be determined by
reference to public policy.20 That being the case, even if the adjudication of the present
matter by the Arbitral Tribunal were in contravention to Malaysian public policy, the
present matter may be considered for adjudication by the Arbitral Tribunal.
iii.

Disputes pertaining to Misleading & Deceptive Advertising and


Consumer Protection are arbitrable.

12. Judicial interpretations have held disputes pertaining to consumer protection to be


capable of settlement by arbitration pursuant to an arbitration clause that uses the words
18

4(2), Malaysian Arbitration Act, 2005.


Antoine Kirry, Arbitrability: Current Trends in Europe, 12 Arb. Int. 4, (1996), P.379.
20
Stavros L. Brekoulakis, On Arbitrability: Persisting Misconceptions and New Areas of Concern in Mistelis,
Loukas, A & Stavros L. Brekoulakis, Arbitrability: International & Comparative Perspectives (The Hauge,
Kluwer Law International, 2009), P.32.
19

--MEMORIAL FOR THE CLAIMANT--

5
related to this agreement or any breach thereof.21 It has also been expressly held by the
Full Court of the Federal Court of Australia that consumer protection claims under the
domestic statute were arbitrable.22 Furthermore, disputes that arise on the grounds of
misleading and deceptive conduct by parties to an arbitration agreement have also been
held to be arbitrable under various common law jurisdictions.23 By virtue of the
application of the aforementioned precedents, it is argued that matter submitted for
substantive adjudication before the Arbitral Tribunal pertains to the aforementioned
transgressions, and the present matter must also be held arbitrable.

21

supra note 24.


Comandate Marine Corp v. Pan Australia Shipping Pty Ltd., [2006] FCAFC 192.
23
Francis Travel Marketing v. Virgin Atlantic Airways, (1996) 39 NSWLR 160; Hi-Fert v. Kiukiang Maritime
Carriers, (1998) 159 ALR 142.
22

--MEMORIAL FOR THE CLAIMANT--

6
II. THE RESPONDENT HAS ENGAGED IN UNFAIR TRADE PRACTICES.
13. The laws of Singapore govern the subject matter of the dispute between the parties to the
arbitral proceeding [A]. Furthermore, the Respondent has violated such laws pertaining
to protection of endangered species [B] and advertising [C] and therefore, unfair trade
practices have been alleged against them.
A. SINGAPORE

LAW GOVERNS THE SUBJECT MATTER OF THE DISPUTE BETWEEN THE

PARTIES.

14. Section 30(4) of the (Malaysian) Arbitration Act, 2005 (hereinafter MAA) states that
the tribunal should apply the law determined by the conflict of laws rules whenever there
is no agreement relating to the choice of law [i]. Following these rules, the domestic law
of Singapore is the applicable law [ii].
i.

The MAA requires the application of the Conflict of Laws Rules.

15. The MAA states that in the absence of an agreement deciding the law applicable, the
Arbitral Tribunal shall apply the law determined by the conflict of laws rule.24
Furthermore, they are also derived from a place, which the parties can be considered to
have impliedly regarded as acceptable.25 This is especially so where the place of
arbitration was agreed upon by the parties themselves.26 Employing the conflict rules of
the seat is certain and efficacious, avoiding the complexity and ambiguity of arbitrators
deciding between various existing conflicts rules, or even developing new ones.

24

30(4), Malaysian Arbitration Act, 2005.


Gary B. Born, International Commercial Arbitration, Vol. II (3rd ed., The Hague, Kluwer Law International,
2009), P.2139 [herinafter Gary Born II]
26
Id.
25

--MEMORIAL FOR THE CLAIMANT--

7
ii.

Singapore Law must be applied to the subject matter of the dispute


according to the Conflict of Laws Rules.

16. The applicable law under Malaysian conflict rules depends on express or inferred
intention of the parties.27 In the absence of intention, the applicable law is that with the
closest and most real connection to the transaction.28
17. The Malaysia Court of Appeal held that the determination of the law with the closest
and most real connection involved consideration of several connecting factors. These
include: the place of performance, the place of contracting, the places of residence or
business of the parties, and the nature and subject matter of the contract.29 The facts in
this particular case provide no precise guidance as to the intention of the parties.30
Therefore, the closest and most real connection test should be applied. The place of
agreeing to arbitrate31 and the place of business of parties32 are both Singapore.
Furthermore, even the nature and subject matter of the contract point to Singapore Law
to govern the settlement of the dispute. The alleged false and misleading advertising and
violation of the laws of endangered species are within the territory of Singapore.33
Therefore, applying the closest and most real connection test, it is clear that the law
governing the substantive aspects of the dispute is the Singapore domestic law.
B. THE LAWS OF SINGAPORE PERTAINING TO PROTECTION OF ENDANGERED SPECIES

HAVE

BEEN VIOLATED BY THE RESPONDENT.

18. The Respondent has violated the laws dealing with the protection of trade in endangered
species namely the Convention for International Trade in Endangered Species [i] and the
Endangered Species (Import and Export) Act of Singapore [ii].
27

Whitworth Street Estates (Manchester) Ltd. v. James Milller and Partners Ltd. [1970] AC 583, 603.
Bonython v. Commonwealth of Australia, [1951] AC 201, 219 (Privy Council on appeal from Australia).
29
Y.K. Fung Securities Sdn Bhd v. James Cape (Far East) Ltd, 3 [1997] 2 MLJ 621.
30
Proposition, P.3.
31
Proposition, P.3.
32
Proposition, P.1.
33
Proposition, P.2.
28

--MEMORIAL FOR THE CLAIMANT--

8
i.

The Respondent is in violation of the Convention for International


Trade in Endangered Species (CITES).

19. A specimen includes any animal or plant mentioned within the schedules, whether alive
or dead.34 Trade in such specimen must be particularly strict as they are threatened with
extinction. Trade is authorized only in exceptional circumstances, 35 and is not permitted
except in accordance with the provisions of CITES.36 The Asian Golden Cat is
recognized as a scheduled species under Appendix I of the CITES.37 Since Singapore is a
party to the CITES, in order to export or import any of the species cited in Appendix I
within its territory, prior grant and permit is essential.38 As Respondent has not procured
any such permit,39 he has engaged in the illegal trade in an endangered species, and
therefore, has violated the CITES.
ii.

The Respondent is in violation of the Endangered Species (Import and


Export) Act, 2008 (Endangered Species Act).

20. This domestic Act has been adopted in compliance with and in order to enforce the
CITES. No person can import/export or re-export and schedule species without a
permit.40 Further, no person is allowed to have possession, sell, offer or expose for sale
or display any of the schedule species without a permit.41 The Asian Golden Cat is a
scheduled specimen under the Endangered Species Act. 42 The Respondent, has not
acquired any permit for import/export, is in possession and has offered for sale a
schedule specimen, which is in contravention to this Act.

34

Art. I, (b)(i), Convention for International Trade in Endangered Species, 2008 [hereinafter CITES].
Article II, 1, CITES.
36
Article II, 4, CITES.
37
Catopuma temminckii, Appendix I, CITES.
38
Article III, 2, CITES; Article III, 3, CITES.
39
Clarifications, First Set, P.1.
40
4(1), Endangered Species (Import and Export) Act, 2008 [hereinafter Endangered Species Act].
41
4(2), Endangered Species Act.
42
Part 1, Appendix I, Endangered Species Act.
35

--MEMORIAL FOR THE CLAIMANT--

9
21. Further, the Respondent cannot take the defence of the trade being due to some reason
beyond his control. The Respondent, in this case, would be required to prove that he took
all reasonable precautions and exercised all due diligence to avoid the commission of
such offense.43 Before the import of the goods from the Respondents supplier, China
Fur, the Respondent was shown samples of the products.44 The Respondent has not
exercised due diligence to avoid the commission of such offence. Being in the business
of such trade, it is reasonably expected of the Respondent to have or acquire the
knowledge and details of the products put up for sale. Ignorance is not an excuse to avoid
the provisions of this Act. Therefore, the Respondent has clearly violated the Act.
C. THE LAWS OF SINGAPORE PERTAINING TO ADVERTISING HAVE BEEN VIOLATED BY THE
RESPONDENT.
22. The Respondent has engaged in deceptive and misleading advertising through unfair
trade practices. The Respondent has violated the laws of Singapore, namely the
Singapore Code of Advertising Practice, 2008 [i] and the Consumer Protection (Fair
Trading) Act, 2004 [ii]. Furthermore, neither the intention [iii] nor the knowledge [iv] of
the Respondent is relevant considerations in respect of such violations.
i.

The Respondent has violated the Singapore Code of Advertising


Practice, 2008 (SCAP).

a. The principles derived from the SCAP are applicable to the present matter.
23.

The Singapore Code of Advertising Practice, by Consumer Association of Singapore

(CASE), has been formulated against the background of national law, international law
and practice including the International Code of Advertising Practice published by the
International Chamber of Commerce (ICC). It is a self-regulatory code, which is approved

43
44

6(1), Endangered Species Act.


Clarifications, First Set, P.1.

--MEMORIAL FOR THE CLAIMANT--

10
by the Agri-Food & Veterinary Authority (AVA), a governmental authority.45 The
Singapore government in many reports has recognized and applauded the principles of
SCAP and their necessity in the context of advertising. 46 These self-regulatory codes are
approved in common law countries to be an effective part of regulatory controls over
misleading advertising.47 In Singapore too, the SCAP is a regulatory source of dealing
with misleading advertisement and thereby the principles have effect in this scenario.
b. The Respondent has engaged in deceptive and misleading advertising under SCAP.
24. Advertisements should not abuse the trust of the consumer or exploit his lack of
experience, expertise and knowledge.48 They should give a truthful presentation - there
should be no ambiguity or inaccuracy,49 and should not misrepresent any information to
mislead the consumers into believing any matter, which is not true, such as the source of
the product and the quality of the product.50 In this factual matrix, the Respondent has
misrepresented the material facts to the consumers through its advertisement. There
existed ambiguity, which led consumers to believe that the products are made of faux fur,
while they were actually made of the real fur of the Asian Golden Cat. The source of the
product and the quality of the product were not stated clearly. The advertisement is
misleading and deceptive in nature and therefore, the principles of the SCAP have been
violated.

45

Singapore Code of Advertising Practice, 2008 [hereinafter SCAP].


Singapore Report for ACCP (ASEAN Committee on Consumer Protection), June 2008.
47
Margaret Griffiths, Unfair Commercial Practices - A New Regime, Comms. L. 2007, 12(6), 196-204.
48
Part II, 3.1, SCAP.
49
Part II, 5.1, SCAP.
50
Part II, 5.1.b, SCAP.
46

--MEMORIAL FOR THE CLAIMANT--

11
ii.

The Respondent has violated the principles of Consumer Protection


(Fair Trading) Act, 2004 (Consumer Protection Act)

a. The principles derived from the Consumer Protection Act are applicable in the
present matter.
25. In the British Columbian case of Robson v. Chrysler Canada Ltd.,51 it was held that a
local distributer who advertised and promoted products could be considered to be
involved in a consumer transaction. As the practices engaged in by the Respondent are
related to a consumer transaction, the principles of the Consumer Protection Act are
applicable, irrespective of whether there was a contract or agreement or not. In this
particular case, the Respondent is promoting his goods and advertising the fur to
consumers as having the touch, feel and smell of real fur. By virtue of this
advertisement and promotion, the Respondent can be said to be involved in a consumer
transaction and thereby the principles of Consumer Protection Act can be applied.
b. The advertisement was misleading and deceptive under the Consumer Protection Act.
26. An unfair practice is said to have occurred when the supplier states something as a result
of which a consumer might be reasonably deceived or misled.52 Representing goods to be
of a particular quality or origin, which they are not amounts to an unfair practice.53 A
supplier should not take advantage of a consumer when he reasonably knows that a
consumer will not be able to ascertain the language, character, effect or any matter related
to the transaction.54 In this particular case, the Respondent has represented the goods to be
of a certain quality (faux) in an implied manner. It is reasonable to assume that an average
consumer will not be able to ascertain the quality of the product. Therefore, the

51

Robson v. Chrysler Canada Ltd. [2001] B.C.T.C. 40 (Canada).


4(a), Consumer Protection (Fair Trading) Act, 2004 [hereinafer Consumer Protection Act].
53
Second Schedule, Consumer Protection Act.
54
4(c)(ii), Consumer Protection Act.
52

--MEMORIAL FOR THE CLAIMANT--

12
Respondent has indulged in unfair practices by misrepresenting his goods and not
disclosing material facts.
27. Further, this misleading and deceptive advertising occurs if the non-disclosure of
material facts is likely to affect the decision-making process of a consumer.55 The aspect
of the misleading nature focuses wholly on consumer beliefs. If an individuals belief in
a false claim is increased after exposure to the advertisement, it is deemed a misleading
advertisement.56 The Respondent himself has admitted that consumers are unable to tell
the difference between real and faux fur. This ambiguity in the belief of the consumers
was taken advantage of by the Respondent, as clear disclosure of the material facts is
likely to have affected the decision-making process of a consumer. The advertisement
therefore deceived the consumers into believing that the fur, which was actually real, was
faux.
iii.

The intention of the Respondent is irrelevant to the present matter.

28. The standard of a reasonable man is applied to determine whether or not conduct of a
party has been misleading or deceptive. An intention to mislead is not a necessary
ingredient.57 The Singapore statute expressly points to reasonableness and therefore the
objective test is to be applied.58 In common law, 59 it is an established principle that if a
fact conveys a meaning, which is misleading or false, that itself is enough to prove
misleading advertisement. It need not have a deliberate intent to deceive. If the act has
the capability of deceiving individuals, it is considered as misleading advertising. It has
been established that the advertisement by the Respondent had the capability of
55

Bundesgerichtshof (German Supreme Court), Gewerblicher Rechtsschutz und Urheberrecht, 1982, 374.
J. Edward Russo, Barbara L. Metcalf and Debra Stephens, Identifying Misleading Advertisement, Journal of
Consumer Research, Vol. 8, No. 2 (Sep., 1981), 119-131.
57
Parkdale v. PUXU (1982) 42 A.L.R. 1 at 6 (Australia).
58
5(3)(a), Consumer Protection Act.
59
Global Sportsman v. Mirror, (1984) 55 A.L.R. 25 at 30 (Australia); Findlay v. Couldwell and Bcywiood
Motors, (1976) 5 W.W.R. 340 at 345 (Canada).
56

--MEMORIAL FOR THE CLAIMANT--

13
deceiving individuals. The argument of the Respondent stating that there was no
intention to deceive does not stand, as intention is irrelevant in such disputes.
iv.

The Respondents knowledge of the misleading element is irrelevant in


the present matter.

29. There is a positive duty on the supplier to ascertain the relevant facts, which may be of
interest to consumers.60 China Fur, the manufacturer, before the import, displayed
samples of the fur products to the Respondent.61 Given the Respondents experience in
the business and the description provided by him, the defence of not possessing the
knowledge of the element, which leads to a misleading act, does not stand.
30. Further, it has been held that merely putting the label on a fabric is sufficient to hold a
seller liable for unfair practices, and not the manufacturer.62 In this factual scenario, the
manufacturer (China Fur) cannot be held liable if the Respondent himself has advertised
the goods. The defence of ignorance of the fact is irrelevant, as the Respondent has
labelled, advertised and sold the products.63 Therefore, it is the Respondent, who is to be
held liable, and not the manufacturer. It is irrelevant whether the Respondent actually
possessed the knowledge of whether the fur was actually real or faux.

60

Rushak v. Henneken, (1991) 84 D.L.R (4th) 87 (Canada).


Clarifications, First Set, P.1.
62
Wilkinson v. Katies, (1986) 67 A.L.R 137 (Australia).
63
Clarifications, First Set, P.2.
61

--MEMORIAL FOR THE CLAIMANT--

14
III. THE KLRCA HAS THE AUTHORITY TO ESTABLISH PENALTIES FOR
FUTURE SALE OF MISLABELED GOODS
31. The KLRCA has the authority to establish penalties because it has broad powers to take
punitive measures [A]. In addition, monetary sanctions in the form of fines can have a
stronger deterrence effect in ensuring expeditious proceedings [B].
A. THE KLRCA HAS BROAD POWERS TO TAKE PUNITIVE MEASURES.
32. The KLRCAs broad powers stem from the travaux preparatoires [i]. Second, it is
empowered by the lex arbitri [ii]. Third, it has inherent powers to grant sanction [iii].
Finally, Article 14 of the Fast Track Rules gives the tribunal wide discretion [iv].
i.

The travaux preparatoires give arbitrators maximum freedom.

33. The UNCITRAL Rules allow the tribunal to make separate awards on different issues at
different times.64 The travaux preparatoires indicates that such broad powers give
arbitrators maximum freedom in issuing awards that ensures the maximum efficiency of
the proceedings.65 Moreover, the Malaysian Arbitration Act does not expressly forbid
international arbitrations from issuing fines.66 Hence, the penalties can be imposed by the
KLRCA since it has been accorded broad powers.
ii.
34.

The Arbitral Tribunal is empowered by the lex arbitri.

Article 21(3)(i) of the Malaysian Arbitration Act provides that such powers conferred

upon the Arbitral Tribunal include the power to make such other orders as the tribunal
considers appropriate.67 Thus, the lex arbitri warrants a very large power for the tribunal
to impose monetary sanctions without restriction. Since the power to impose sanctions is
expressly granted to the Arbitral Tribunal, the imposition of penalties will not give rise to
64

Art. 34(1), UNCITRAL Arbitration Rules, 2011.


United Nations Commission on International Trade Law, Summary Record of the 10th Meeting of the
Committee of the Whole(II) (UN Doc A/CN.9/9/C.2/SR.10) P.59.
66
Inter Chem Asia 2000 PTE Ltd v. Oceana Petrochem, 373 F.Supp.2d 340 (S.D.N.Y. 2005) P.933; Neil, Philip
D., The Power of Arbitrators to Award Monetary Sanctions for Discovery Abuse (Nov. 2005/ Jan. 2006) 60
Disp. Res .J. 60, 3.
67
21(3)(i), Malaysian Arbitration Act, 2005.
65

--MEMORIAL FOR THE CLAIMANT--

15
a ground for setting aside or refusal of enforcement of such award. Hence, the Arbitral
Tribunal is empowered by the lex arbitri to impose penalties. Therefore, the tribunal can
establish a penalty of US $500 on Tan Sen for each item of clothing containing the fur of
an endangered species it sells.
iii.

The Arbitral Tribunal has inherent powers to grant sanction.

35. In LETCO v. Liberia, the Arbitral Tribunal awarded the Claimant the full costs of
carrying out the arbitration, including its own legal representation, based on Liberias
procedural bad faith.68 Similarly, in Victor Pey v. Chile, the Arbitral Tribunal ordered
Chile to pay three-quarters of the arbitration costs and US$2million of the Claimants
legal fees because it failed to cooperate in the arbitration.69 In ReliaStar Life, the Arbitral
Tribunal expressly relied on its inherent authority by awarding fees against a party that
acted in bad faith during the arbitration and arbitration expenses.70 Thus, an Arbitral
Tribunal has inherent powers to establish penalties. Hence, the KLRCA can penalize Tan
Sen.
iv.
36.

Article 14 of the Fast Track Rules gives the tribunal wide discretion.

The tribunal can impose legal or other costs on the Respondent.71 Moreover, the Rules

give the Arbitral Tribunal to award costs in a summary and commercial basis and in such
manner and amount as it shall in its absolute discretion consider fair, reasonable and
proportional to the matters in dispute.72 Considering that Jack Small suffered total sales
have dropped by 40% and sales of fur products have dropped 70% respectively,73 the

68

Award of 31 March 1986, 2 ICSID Rep. 343, 378.


Award of 22 April 2008, ICSID, 726-730.
70
ReliaStar Life Insurance Company of New York v. EMC National Life Company. Docket No. 07-0828-cv,
2009 WL 941173 (2d Cir. April 9, 2009), Techno-Impex v. Gebr. Van Weelde Scheepvaartkantoor B, [1981]
QB 648.
71
14(1)(e), Fast Track Rules.
72
14(2), Fast Track Rules.
73
Clarifications, First Set, P.2.
69

--MEMORIAL FOR THE CLAIMANT--

16
Arbitral Tribunal can impose costs on the Respondents since this is proportional and just.
Thus, KLRCA has the authority to establish penalties.
B.

MONETARY SANCTIONS IN THE FORM OF FINES CAN HAVE A STRONGER DETERRENCE


EFFECT IN ENSURING EXPEDITIOUS PROCEEDINGS.

37. Article 17 of the UNCITRAL Rules grants tribunals the power to fill gaps in the
procedural rules.74 In particular, tribunals will be minded to fill gaps in the procedural
rules where they are insufficient in ensuring expeditious arbitral proceedings.75 The
compensation would have a deterrence effect only if they are disproportionately higher
than the additional costs incurred.76 The KLRCA Fast Track Rules stem from the
KLRCA Rules, which are based on the UNCITRAL Arbitration Rules. Moreover, they
can fill gaps in expeditious proceedings under the Fast Track Rules since they do not
provide for necessary relief. Hence, the KLRCA can grant penalties in this matter.

74

Schreuer, Christopher The ICSID Convention: A Commentary (Cambridge University Press 2001), P.683;
Prosecutor v. Tihomic Blaskic, IT-95-1 4-AR 108 bis (1997), P.33.
75
Gaeta, P. Inherent Powers of International Courts and Tribunals in Vohrah, L.C. et al (eds) Mans
Inhumanity to Man: Essays on International Law in Honour of Antonio Cassese (Kluwer Law International
2003) 370-71; Brown, Chester, A Common Law of International Adjudication New York, (Oxford University
Press 2007) 78-81.
76
Certain Underwriters at Lloyds London v. Argonaut Ins., 264 F.Supp.2d 926,944 (N.D. Cal. 2003).

--MEMORIAL FOR THE CLAIMANT--

17

IV. THE KLRCA HAS THE AUTHORITY TO GRANT A PERMANENT


INJUNCTION ENFORCEABLE IN SINGAPORE.
38. The KLRCA is authorized to grant a future permanent injunction [A]. Moreover, a
permanent injunction granted by the KLRCA is an award, which is enforceable by courts
in Singapore [B].
A. A FUTURE PERMANENT INJUNCTION CAN BE GRANTED BY THE KLRCA.
39. The Arbitral Tribunal can grant a future permanent injunction because the express
mention of power to grant injunctive relief is not necessary [i]. The KLRCA also has
inherent powers to grant injunctory relief [ii] and more specifically, permanent relief of
that nature [iii]. Moreover, the KLRCA can award future injunctory relief [iv]. Lastly,
the KL Rules incorporate Art. 26 of the UNCITRAL Rules and thereby envisage greater
flexibility for interim relief [v].
i.

The express mention of power to grant injunctive relief is not necessary.

40. Even in the absence of an express agreement conferring powers of injunctive relief,
courts have routinely upheld granting of such relief.77 Common law courts have also
reached this conclusion, 78 because the words used to confer power to resolve the dispute
confer almost unlimited flexibility in the method of its resolution.79 Moreover, if there
are no specific limitations, the arbitrator has the power to award any remedy of relief
which the arbitrator deems just and reasonable.80
41.

The Fast Track Rules clearly establish that the seat of arbitration is Malaysia.81

Further, in principle, the law governing the Arbitral Tribunals power to grant interim

77

Adamas Mgt & Services Inc. v. Aurado Energy Inc., XXX Y.B. Comm. Arb. 479 (New Brunswick QB 2004)
(2005).
78
Freydberg Bros. Inc. v. Corey, 31 N.Y.S.2d 10 (N.Y.S.Ct 1941).
79
NSW Racing v. T.A.B, [2002] N.S.W.S.C 742 P.26 (New South Wales Supreme Court).
80
Island Creek Coal Sales Co. v. City of Gainesville, 729 F.2d 1046, 1049 (6th Cir. 1984).
81
Art. 6, Fast Track Rules.

--MEMORIAL FOR THE CLAIMANT--

18
relief is that of the arbitral seat.82 Moreover, the Arbitral Tribunal has the power to make
such other orders, as the tribunal deems appropriate.83 In any case, the Arbitral Tribunal
has absolute discretion to grant an award which it considers fair, reasonable and
proportional to matters in dispute.84
42. Hence, the law of the seat does not prevent the tribunal from granting a permanent
injunction. This is in consonance with Malaysian law since it is based on British
Common law, whose principles have upheld such relief in the given circumstances.
Thus, the absence of provisions of injunctive relief in the KLRCA Fast Track Rules does
not preclude it from granting injunctive relief.
ii.

The KLRCA has inherent powers to grant injunctory relief.

43. The authority to issue an order for the cessation or discontinuance of a wrongful act
results from the inherent powers of a competent tribunal85, confronted with the
continuous breach of an international obligation in force and that continues to be in
force. The wrongful act must have a continuing character and the violated rule must still
be in force at the time in which the order is issued.86 Moreover, such relief is not limited
to inter-State disputes.87
44. Tan Sen has violated international obligations by violating provisions of the CITES.88
Further, it will continue to use such fur of the Asian Golden Cat unless prevented from
doing so. Therefore, a permanent injunction is warranted. Thus, the KLRCA can grant
injunctory relief in this matter.

82

Gary Born II, P.1963.


21(3)(i), Malaysian Arbitration Act, 2005.
84
Art. 14(2), Fast Track Rules.
85
Enron Corp. and Ponderosa Assets LP v. Argentine Republic, Decision on Jurisdiction, ICSID Case No.
ARB/01/3 (14th Jan. 2004) P.81.
86
Rainbow Warrior (Fr. V. N.Z), R.I.A.A., Vol. XX, 1990, 217, at 270, P.114
87
Enron Corp. and Ponderosa Assets LP v. Argentine Republic, Decision on Jurisdiction, ICSID Case No.
ARB/01/3 (14th Jan. 2004) P.81.
88
Article III, 2, CITES.
83

--MEMORIAL FOR THE CLAIMANT--

19
iii.

The KLRCA can grant a permanent injunction.

Arbitral Tribunals can give the remedy of a permanent injunction in principle.89 In the Trail
Smelter Arbitration, the Arbitral tribunal granted a future permanent injunction.90 Further, the
Texaco (TOPCO) v. Libyan Arab Republic91 clearly established that whether the parties to the
arbitration are States, is irrelevant in granting a relief of resitutio in integrum. Therefore,
Arbitral Tribunals can grant permanent injunctive relief. Hence, the KLRCA can grant such
relief.
iv.

Further, the KLRCA can award future injunctory relief.

45. Awards fixing prices of disputed products for one year and the requirement to obtain the
tribunals approval in the future have been upheld.92 Therefore, the KLRCA can grant
future injunctive relief since there is no provision in the Malaysian Arbitration Act or
Fast Track Rules to prevent such relief. Hence, the tribunal has the requisite authority.
v.

The KL Rules incorporate Art. 26 of the UNCITRAL Rules and thereby


envisage greater flexibility for interim relief.

46. The Kuala Lumpur Regional Rules do not actually contain an Article 26. They do,
however, incorporate the UNICTRAL Arbitration Rules, which do have an Article 26
that provides for interim protection.93 Hence, the Rules must be read in reference to Art.
26 of the UNCITRAL Arbitration Rules.

89

Kamakazi Music Corp. v. Robbins Music Corporation, 684 F.2d 228 (1982) (US Court of Appeals). Trevor
Cook and Alejandro I. Garcia , International Intellectual Property Arbitration, 270 (Kluwer Law International
2010).
90
Trail Smelter Case, (U.S. v. Canada), 3 R.I.A.A. 1905.
91
Texaco Overseas Petroleum Company and California Asiatic Oil Company v. Government of the Libyan Arab
Republic, Award on the Merits, 19th Jan. 1977, 53 I.L.R 389.
92
Anderman/Smith Operating Co. v. Tenn. Gas Pipeline Co., 918 F.2d 1215 (5th Cir. 1990).
93
Clarifications, First Set, P.4.

--MEMORIAL FOR THE CLAIMANT--

20
a. The UNCITRAL Rules differ from the UNCITRAL Model Law.
47. The UNCITRAL Arbitration Rules are different from the Model Law because they are
directed at parties94 designed to enable greater flexibility and compatibility to parties
from diverse States, than are available under national laws.95 Hence, the parameters of
the UNCITRAL Model Law are not applicable to the UNCITRAL Rules. Thus, the
measures for provisional relief must be read from the UNCITRAL Rules.
b. The Rules do not limit the type of provisional measures.
48.

The Arbitration Rules omit from their definition a clause contained in the Model Law

providing that temporary measures are appropriate whether in the form of an award or
another form.96 Hence, by eliminating this clause, the Rules do not limit the form of the
temporary measure, but avoid explicitly encouraging awards as a permissible form for
interim measures.
c. The Rules do not elucidate an exhaustive list of measures.
49. The Rules definition of interim measures diverges from the Model Law by including the
words for example and without limitation in the chapeau of Article 26(2).97 Thus, the
insertion of without limitation contemplates the possibility of other types of interim
measures not found in the list.98 Hence, a permanent injunction may be granted by the
KLRCA. Therefore, it has the authority to pass such interim relief.
d. The Rules broaden the range of actions to be refrained from.
50. The Arbitration Rules clearly separate current or imminent harm from prejudice to the
arbitral process, the Rules expressly broaden the range of actions to be prevented or
94

UNCITRAL, Report of Working Group II (Arbitration and Conciliation) on the Work of its Forty-Fifth
Session, 17-19, delivered to the General Assembly, U.N. Doc. A/CN.9/614 (Oct. 5, 2006)
95
Id.
96
Id. at P.51
97
UNCITRAL, Settlement of Commercial Disputes: Revision of the UNCITRAL Arbitration Rules, Note by the
Secretariat, P.13, Art. 26(2), delivered to Working Group II (Arbitration and Conciliation), U.N. Doc.
A/CN.9/WG.II/WP.151/Add.1 (Aug. 6, 2008) with 2010 Arbitration Rules, Art. 26(2).
98
UNCITRAL, Report of Working Group II (Arbitration and Conciliation) on the Work of its Fiftieth Session,
P.92, delivered to the General Assembly, U.N. Doc. A/CN.9/669 (March 9, 2009).

--MEMORIAL FOR THE CLAIMANT--

21
refrained from. Without the clear distinction between harm and prejudice, the clause
could be understood to refer only to prejudice to the arbitral process. Thus, by
eliminating ambiguity that existed under the Model Law, the Rules seemingly minute
clarification explicitly widens the categories of circumstances under which interim
measures may be granted.
B. A PERMANENT INJUNCTION GRANTED BY THE KLRCA IS AN AWARD ENFORCEABLE
BY COURTS IN SINGAPORE.

51. The interim relief granted by the KLRCA is enforceable in Singapore because
injunctions constitute awards [i]. Second, awards granting injunctions are enforceable
[ii]. Third, the permanent injunction is a partial award. Finally, foreign awards can be
enforced in Singapore [iii].
i.

Injunctions constitute awards under the KLRCA Rules.

52. It is well settled that an award, within the meaning of the New York Convention,
includes instruments ordering non-monetary relief, such as injunctory relief. 99 Moreover,
arbitral decisions granting provisional measures are to be treated as final awards and
subject to recognition and enforcement.100 Further, provisional relief is also termed as an
interim award.101 Singapore is a contracting party to the New York Convention. Thus,
the grant of a permanent injunction is an award.
ii.

Awards granting injunctions are enforceable.

53. Under the New York Convention, interim awards of provisional relief finally dispose
of requests for such relief and should be capable of recognition and enforcement in
national courts, like other awards granting relief.102 Hence, the award of a permanent

99

Adamas Mgt & Services Inc. v. Aurado Energy Inc., XXX Y.B Comm. Arb. 479 (New Brunswick WB 2004)
(2005); LV Fiannce Group Ltd. v. IPOC Intl Growth Fund Ltd. [2006] Bda LR 69 (Bermuda Commercial
Court); Gary Born II, P.2354.
100
Arrowhead Global Solutions Inc. v. Datapath Inc. 166 Fed.Appx. 39, 41 (4th Cir. 2006).
101
Pac. Reins v. Ohio Reins, 9.35 F.2d 1019 (1991).
102
Gary Born II, P.2435.

--MEMORIAL FOR THE CLAIMANT--

22
injunction can be enforced in Singapore since it is a contracting party to the NYC
Convention.
iii.

Arguendo, the permanent injunction is a partial award.

54. The difference between an interim and a partial award is that an interim award is not
a definite adjudication of a matter in dispute but is subject to a subsequent review by the
arbitration tribunal.103 A partial award is an award that is a final ruling on an isolated
matter that may be appropriate for resolution at an early stage such as the general basis of
liability.104 The permanent injunction is a ruling on the mislabelling of goods by the
Respondent. Moreover, it is permanent relief and not subject to review. Hence, it was
appropriate at this stage to prevent further damage to the Claimant by means of deceptive
advertising. Thus, it is a partial award of the KLRCA.
iv.
55.

Foreign awards can be enforced in Singapore.

A foreign award means an arbitral award made in pursuance of an arbitration

agreement in the territory of a Convention country other than Singapore. Moreover, an


arbitral award passed by the KLRCA will be deemed to be an award passed in
Malaysia. 105 Hence, the award passed by the KLRCA is classified as a foreign award in
accordance with Singapore law.
56. An arbitral award under the Singapore International Arbitration Act includes any an
interim injunction or any other interim measure.106 Moreover, courts in Singapore have
refused to set aside interlocutory awards of Arbitral Tribunals in international
arbitrations.107 Thus, the foreign award passed by the KLRCA is enforceable in Singapore.

103

Howard M Holtzman & Joseph E. Neuhaus, A Guide to the UNCITRAL Model Law on International
commercial Arbitration: Legislative History (Boston: Kluwer Law and Taxation Publishers, The Hague, 1989).
104
Recognition and Enforcement of Foreign Arbitral Awards: A Global Commentary on the New York
Convention, 156 (Kronke, Nacimiento et. Al, eds, Wolters Kluwer, 2010).
105
Art. 6(3), Fast Track Rules.
106
Chapter 148A, 12(1)(i), 27(1), Singapore International Arbitration Act, 2002.
107
P.T. Pukuafu Indah and Ors. v. Newmont Indonesia Ltd. and Anr., [2012] SGHC 187.

--MEMORIAL FOR THE CLAIMANT--

23
CONCLUSION AND PRAYER FOR RELIEF

Jack Small Ltd., the Claimant, respectfully requests this Tribunal to adjudge and declare as
follows:

I.

Award damages to redress the economic losses it has suffered from lost sale of its
faux fur products.

II.

Issue an order prohibiting the Respondent from continuing to carry, promote, and/or
sell clothing containing any fur of any endangered species on the relevant CITES
protected list.

III.

Establish a penalty of US $500 for each item of clothing containing the fur of an
endangered species the Respondent sells.

--MEMORIAL FOR THE CLAIMANT--