Armenian Law Schools: Memorandum For Respondent

Twenty-Seventh Annual Willem C.
Vis International Commercial Arbitration Moot
MEMORANDUM FOR RESPONDENT
On Behalf of: Against:
TurbinaEnergia Ltd HydroEN plc Rue

Lester-Pelton-Crescent 3 Oceanside, Equatoria Whittle 9 Capital City, Mediterraneo
RESPONDENT CLAIMANT
Armenian Law Schools
COUNSEL FOR RESPONDENT

ARMENIAN LAW SCHOOLS
Susanna Babayan • Shaghek Manjikian • Lilit Shahinyan • Emil Abrahamyan

Yerevan • Armenia
INDEX OF ABBREVIATIONS 4
INDEX OF AUTHORITIES 7
INDEX OF CASES 11
STATEMENT OF FACTS 17
SUMMARY OF ARGUMENT 19
ARGUMENTS 20
ISSUE 1: THE ARBITRATION AGREEMENT IS INVALID AND THE TRIBUNAL LACKS
JURISDICTION 20
Art. 21 (2) of SA violates is in contradiction with several principles on which the procedure is
structured 20
1. Art. 21 (2) violates the essence of the principle of party autonomy 20
2. The asymmetric arbitration clause contradicts the principle of equal treatment of
parties. 21
B. Article 21 (2) of SA is null and void 22
There Is A Gross Disparity In The Parties Bargaining Powers 22
2. Article 21(2) SA Provided CLAIMANT with an Excessive Advantage and the
RESPONDENT is in a Weaker Bargaining Position 22
3. RESPONDENT was Found in a Position Where there was a Lack of Choice And Power
Imbalance. 23
C. ARTICLE 21(2) was Negotiated in Bad Faith by the CLAIMANT 25
ISSUE II. THERE IS NO GROUND TO ORDER EXCLUSION OF THE EXPERT 26

A. The Fundamental Of An Expert Is To Provide A Professional Opinion And Such Opinion Is
Decisive In This Case. 26
B. None of the Previous Relations With Prof. John is a Sufficient Ground to Put His
Independence and Impartiality under Question 27
C. RESPONDENT Acted in Good Faith Having as Main Aim to Receive a Reliable Report 28
ISSUE III. THE RESPONDENT DELIVERED GOODS WHICH CONFORM TO THE SALES
AGREEMENT 29
The goods are of the quantity, quality and description agreed between the parties (Art. 35 of
CISG) 30
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MEMORANDUM FOR RESPONDENT| 2
1. The goods delivered are fit for their ordinary use and for the particular purpose that
parties have agreed upon 31
2. BUYER didn’t rely on the SELLER’s skills and judgment 32
B. RESPONDENT is not liable for any possible defects 32
They were due to an impediment beyond his control 32
2. He could not reasonably be expected to have taken the impediment into account at the
time of the conclusion of the contract or to have avoided or overcome it, or its consequences
33
ISSUE IV. THE CLAIMANT IS NOT ENTITLED TO CLAIM FOR THE REPLACEMENT OF THE
TURBINES 34
The precondition for any remedy under CISG is the proven fact that the seller has failed to fulfill
its obligations which is absent Article 45 of CISG 34
B. There has not been a fundamental breach of the contract under Article 45(6) 34
REQUEST FOR RELIEF 36
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INDEX OF ABBREVIATIONS
§/§§ paragraph/paragraphs
Art. Article
CISG United Nations Convention on Contracts for the

International Sale of Goods
Cl. Ex. Claimant Exhibit
e.g. exempli gratia (for example)
et al. et alii/ et alia (and other persons, and other places)
ICC International Chamber of Commerce
___________
ICC Rules Rules of Arbitration of the ICC (2012)
LCIA London Court of International Arbitration
IBA International Bar Association
Ltd Limited
Model Law UNCITRAL Model Law on International Commercial

Arbitration with
amendments (2006)
No. Number
OLG Oberlandesgericht, Provincial Court of Appeal
PO Procedural Order
Req. Request for Arbitration
Res. Ex Respondent Exhibit
___________
Response to the request for RRfA

arbitration
RfA Request for Arbitration
UCC Uniform Commercial Code
PICC UNIDROIT Principles of International Commercial

Contracts (2016)
UNIDROIT Principles
USD United States Dollar
v. versus (against)
Vol. Volume
___________
INDEX OF AUTHORITIES
Cited As Citation Paragraph
Born, 2014 Gary B. Born
International Commercial Arbitration
2nd ed., 2014
Moses, 2008 M. Moses
___________
The Principles and Practice of International

Commercial Arbitration
3rd. ed., 2008
Söderlund et al, 2005 C. Söderlund, Lis Pendens, Res Judicata and the
(2005), Journal of International Arbitration,
Issue of Parallel Judicial Proceedings
2005
Digest, Russia Supreme Digest Of Case Law On The Issues Of Arbitration ¶33
Court 2018 (Russian)
2018
Charles T. Kotuby Jr. and Luke A. Sobota

Kotuby, 2017 ¶ 54
___________
General Principles of Law and International Due

Process
2017
Johannes Trappe Johannes Trappe, ¶ 55

(1998)
The Arbitration Proceedings: Fundamental

Principles and Rights of the Parties
1998
Hans Smit
Hans, 2009 ¶ 60
The Unilateral Arbitration Clause: A

Comparative Analysis
2009
___________
UNCITRAL Yearbook of United Nations Commission on ¶ 26

Yearbook, 1981 International Trade Law
1981
Fulbright, 2017 Norton Rose Fulbright, International Arbitration

Report, 9
2017
1. Commentary on the revised text of the 2010

Commentary on IBA ¶ 65 and 73
IBA Rules on the Taking of Evidence in
Rules of Evidence,
International Arbitration*
2010
1999 IBA Working Party & 2010 IBA Rules of

Evidence Review Subcommittee
2010
___________
INDEX OF CASES
Bridgestone Licensing Bridgestone Licensing Services, Inc. and ¶ 66; 73

(ICSID) Bridgestone Americas, Inc. v. Republic of
Panama, No. ARB/16/34
ICSID
2019
Laurent Semanza (ICTR) Laurent Semanza v. The Prosecutor (Appeal ¶ 64

Judgement), ICTR-97-20-A, I (ICTR), 20 May
2005
___________
International Criminal Tribunal for Rwanda
2005
Belgium
Scafom International Scafom International BV v. Lorraine Tubes ¶ 109

(Belgium) S.A.S. [2009]
Court of Cassation
Vital Berry Marketing Vital Berry Marketing v. Dira-Frost

(Belgium) ¶ 112
District Court Hasselt
Bulgaria
Judgement No. 71, Judgement No. 71, in commercial case No. ¶ 28

(Bulgaria) 1193/2010
___________
Bulgaria Court of Cassation
Canada
White Burgess (Canada)

White Burgess Langille Inman v. Abbott and ¶ 72
Haliburton Co,
2015
Supreme Court of Canada
Netherlands
Arbitral award, No. 2319 Landgericht Coburg 12 December 2006,

¶ 95
Netherlands Arbitration Netherlands Arbitration Institute 15 October
Institute 2002 (Arbitral award, No. 2319)
Netherlands Arbitration Institute
___________
France
Ms. X (France) Ms. X v Banque Privée de Rotschild, No ¶ 35

983/12, 26 [2012]
Cour de Cassation, France
ICH (France) ICH vs Credit Suisse ¶ 49
Cour de Cassation, France
Thermo King (France) Thermo King v. Cigna Insurance Company of ¶ 93

Europe, Cour d'appel, Grenoble, [1996]
Appellate Court Grenoble, France
Flippe Christian (France) Flippe Christian v. Douet Sport Collections ¶102
___________
[1998]
District Court Besançon
Switzerland
Wire and Cable Wire and Cable Case [2004]] ¶ 84

(Switzerland)
Appellate Court Benn
Sweden
Beijing Light Automobile Beijing Light Automobile Co., Ltd v. Connell ¶ 94

(Sweden) Limited Partnership, [1998]
SWEDEN Arbitration Institute of the Stockholm

Chamber of Commerce
USA
___________
Manfredi (USA) Manfredi v. Blue Cross and Blue Shield of

Kansas City,” (en banc) ¶ 60
340 S.W.3d, 126 “Mo. Ct. App., 2011
Hull v. Norcom,
Hull (USA) ¶ 60
Inc. 750 F.2d 1547 (11th Cir. 1985)
Russia
___________
Sony Ericson (Russia) Sony Ericson vs Russian Telephone Company, ¶ 25, 26

[2012]
Supreme Court of Russia
Dredging (Russia) Dredging and Maritime Management SA v. ¶ 32

InjTransStroy AO, [2018]
Supreme Court of Russia
ECHR
___________
Akdivar (ECHR) 1. Akdivar and Others v. Turkey, no. 21893/93

Grand Chamber [1996] ¶ 48
Feldbrugge (ECHR) Feldbrugge v. The Netherlands App. No.

8562/79, [2004] ¶ 49
Dombo (ECHR) Dombo Beheer B.V. v. the Netherlands

(37/1992/382/460) [1992] ¶ 49
___________
STATEMENT OF FACTS
1. RESPONDENT is a widely known producer of premium water turbines.HydroEN plc “The

CLAIMANT” is a distinguished company that provides pump hydro power plants complying with the
highest environmental standards. It operates in over 100 countries.
2. Greenacre is a city located in Western Mediterraneo. Greenacre committed to becoming a sustainable
community. Therefore, its Council adopted a“no-carbon” energy strategy.
3. The Council also decided to construct a pump hydro power plant to ensure there will not be the need to
rely on carbon-based energy and ensure that Greenacre will always have an available amount of renewable
energy.
4. For this reason, in January 2014, tenders were invited for the construction of the pump hydro power
plant. Through it Greenacre would have a sufficient availability of energy whenever the other sources of
renewable energy would not produce a sufficient amount of it.
5. In March 2014, CLAIMANT has contacted RESPONDENT and they agreed on a potential delivery of
two of RESPONDENT’s newest R-27V Francis Turbines to the CLAIMANT in case the contract was
to be awarded to the last.
6. On 22nd May 2014, the Sales Agreement was signed between the parties. This Sales Agreement included
in it Article 21 (2) an asymmetric arbitration clause. Through this agreement the RESPONDENT had a
contractual obligation of delivering and installing two of its newest turbines for CLAIMANT's
Greenacre project.
7. On 15 July 2014, CLAIMANT won the tender and immediately started the construction of the hydro
power plant and finalized it within 4 years.
8. On 3 August 2014, CLAIMANT and Greenacre Councillor, Mr. Crewdson agreed on unusual
availability guarantee along with unusual penalty clause in case of any breach of this guarantee which
consisted of in case of the breach of the contract paying a 20.000 USD per day and if there would be a
need to rely on carbon-based energy, it would be 40.000 USD per day.
9. In late spring 2017, RESPONDENT delivered and installed the two Turbines.
10. On 19 September 2018, the power plant started operating.
11. On 29 September 2018, a report was published about a major fraud case against “Trusted Quality Steel”
one of the RESPONDENT’s main steel suppliers. This raised concerns for the CLAIMANT about the
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quality of steel used by RESPONDENT in the production of R-27V Francis Turbines especially because
the turbines, provided by the RESPONDENT for Riverhead Tidal Power Plant that was exposed to
saltwater, were heavily damaged after only two years of operating and they had to be replaced in order to
avoid further damage to the turbine and the plant itself.
12. On 3 October 2018, Ms. Michelle Faraday, CLAIMANT’s CEO, contacted Mr. Eric Gilkes,
RESPONDENT’s chief negotiator, to understand to what extent the provided two R-27V Francis
Turbines in the Greenacre Plant could have been affected by the fraud.
13. On 4 October 2018, Mr. Fourneyron, RESPONDENT’s CEO, suggested moving the 1st inspection from
September 2021 to September 2020. He also asked to wait until the first inspection to assess whether the
turbines could be affected and based on that to decide the following actions.
14. On 6 October 2018, CLAIMANT made a request for the RESPONDENT to exchange the turbines
during the time of the first inspection in September 2020.
15. On 10 October 2018, RESPONDENT rejected the request to replace the two turbine runners especially
because there was no evidence that the Turbines were not functioning properly.
16. On 1 December 2018, the Parties met, but no agreement could be reached as the CLAIMANT was
insisting to exchange the Turbines during the first inspection and refused the RESPONDENT’s offer to
pull forward the scheduled inspection by one year.
17. Another offer made by the RESPONDENT was rejected by the CLAIMANT. RESPONDENT
suggested that the Turbines could be repaired in its nearest factory if any issues were to be found during
the inspection.
18. On 31 July 2019, CLAIMANT submitted the Request for Arbitration, nominating Ms. Burdin as its
arbitrator.
19. On 30 August 2019, RESPONDENT submitted the Response and nominated Mr. Deriaz as its
arbitrator. RESPONDENT challenged the validity of the asymmetric arbitration agreement and argued
that CLAIMANT has no claim for the replacement of the Turbines.
SUMMARY OF ARGUMENT
20. ISSUE 1: The Arbitration agreement is invalid and the Tribunal lacks jurisdiction to hear the case for the
following reasons. Firstly, some of the core principles considered as bases of commercial arbitration, have
___________
not been respected. CLAIMANT insisted on an asymmetric arbitration clause ignoring the limits of
“party autonomy” and acting in bad faith. This obviously led to violations of RESPONDENT’s rights,
such as the right to a fair trial, which is protected under applicable law. Plus, Art. 21(2) of the SA is null
and void because it provides CLAIMANT with an excessive advantage, puts RESPONDENT in a
weaker bargaining position and leads to an imbalance of powers.
21. ISSUE 2: There is no ground to order the exclusion of the expert. To begin, it is highly important to have
an expert to give his professional opinion to which RESPONDENT may rely on as the subject matter of
the case is deeply technical and requires special knowledge. What is more important, the expert must be
impartial, independent and reliable. And as RESPONDENT and his expert worked together before they
did not have any other type of relationship, besides working together. Overall, the turbine sphere is very
narrow, therefore RESPONDENT had no choice but appointing exactly Prof. John.
22. ISSUE 3: The RESPONDENT delivered goods which conform to the sales agreement and requirements
under applicable law. In detail, delivered two R-27V Francis turbines conformed with the requirements
of the contract and Article 31 of CISG being of specified “quantity, quality and description”. And
CLAIMANT relies on nothing but assumptions claiming the opposite. Plus, CLAIMANT did not even
rely on RESPONDENT’s skill and judgment in rejecting the latter's suggestions. Also, the possible non-
conformity may be the result of a fraud that was beyond RESPONDENT’s control to predict. Hence,
RESPONDENT is not liable for possible defects.
23. ISSUE 4: CLAIMANT is not entitled to claim the replacement of the turbines. First of all, it hasn’t been
proved that RESPONDENT has failed to fulfill his obligations because RESPONDENT hasn’t.
CLAIMANT again makes only assumptions. As to resolve this problem RESPONDENT is willing to
carry the burden of proof which by Article 25 of the CISG is the foreseeability and deprivation of
expectations. Furthermore, there has not been a fundamental breach of a contract under Article 45 (6) ,
which is the other necessary component of the replacement claim. RESPONDENT delivered the
turbines within specified terms and had approval from the relevant authority which also included a
successful acceptance test.
___________
ARGUMENTS
ISSUE 1: THE ARBITRATION AGREEMENT IS INVALID AND THE TRIBUNAL

LACKS JURISDICTION
A. Art. 21 (2) of SA violates is in contradiction with several principles on which the

procedure is structured
24. Art. 21 (2) of SA which gives the right to apply to arbitration tribunal solely to CLAIMANT is in
contradiction with such core principles of any proceedings aimed at dispute resolution as 1. party
autonomy and 2. the principle of equal treatment of parties.
1. Art. 21 (2) violates the essence of the principle of party autonomy
25. The principle of party autonomy should be approached in balance with other procedural rules. It is the
cornerstone of international commercial arbitration, however, in some cases, the asymmetric arbitration
clauses violate the principle of party autonomy. Although party autonomy leads to an effective
arbitration and promotes the interests of the parties, the principle of party autonomy cannot be
interpreted as a “complete autonomy” as the latter could undermine the interest of the legal system. This
approach can be easily found both in official documents and case law.
26. The UNCITRAL Secretariat noted that “it will be one of the more delicate and complex problems of the
preparation of a model law to strike a balance between the interest of the buto freely determine the procedure
to be followed and the interests of the legal system expected to give recognition and effect thereto.”
[UNCITRAL Yearbook, 1981]. Therefore, party autonomy has limitations which include the
asymmetric arbitration clauses as will be shown, for instance, in the below-illustrated cases.
27. In its Decision No. 71 of September 2011, the Bulgarian Supreme Court of Cassation held the asymmetric
arbitration clause to be invalid, as “it violated the principle of party autonomy and freedom of contract”.
28. The case arose between a borrower and lender and according to the arbitration agreement lender was able
to initiate both arbitration and litigation in Sofia regional court, while the borrower was only restricted to
litigation [Judgement No. 71, Bulgaria Court of Cassation]. In its reasoning the court noted that
“unilateral arbitration clause powers to the lender to make changes into the sphere of rights and obligations
___________
held by the borrower.”
2. The asymmetric arbitration clause contradicts the principle of equal treatment of parties.
29. Besides the non-conformity with the integrity of the principle of party autonomy, asymmetric arbitration
clauses invoke the invalidity of an arbitration agreement on the grounds of unequal treatment of parties
as well.
30. In Sony Ericsson vs Russian Telephone Company case, the tribunal found that the asymmetric arbitration
clause validates Article 6 of the European Convention of Human Rights (ECRH) under which the right
to a fair trial is protected. In that case, acting as claimant Russian Telephone Company filed a claim in
the Arbitration Court of Moscow against Sony Ericsson requesting to replace the defective goods.
31. However, the Arbitration Court of Moscow Rejected the claim due to asymmetric clause, which only gave
Sony Ericsson the right to refer the dispute in the state court. The arbitration clause was drafted as
follows “[it] does not restrict Sony Ericsson’s rights to file with a court of competent jurisdiction a claim
for recovery of debts for supplied Products”.
32. This judgment was later overturned by the Supreme Court of Russia. The Russian Court subsequently
relied on the case-law of the ECHR, where the principle of equal treatment is referred to as the principle
of equality of arms- "a contractual arbitration clause may not entitle only one party to go to a state court,
while depriving the other party of the same right" [Sony Ericson (Russia)].
33. Further, the Russian Supreme Court issued a Digest of Court Practice Relating to Judicial Assistance and
Control over Domestic and International Arbitration, which emphasized that the asymmetrical
arbitration clauses may be engaged in a way that would give both parties a chance to enjoy the advantages
of unilateral option clauses. In this context, the Russian Supreme Court noted that an arbitration
agreement where the advantage is given either to "CLAIMANT" or "RESPONDENT" is acceptable as
both parties could potentially enjoy the benefits of an asymmetric arbitration clause.
34. However, in our case the right of arbitration has been specifically given to "Buyer" as per Article 21 (2) of
the arbitration agreement. Whereas the RESPONDENT has one option less and the facts that in this
situation RESPONDENT may protect its rights, doesn’t deprive the CLAIMANT from its advantage,
Therefore, Article 21 (2) violates the principle of equal treatment of parties.
B. Article 21 (2) of SA is null and void
___________
Comparing the circumstances in which parties signed the contract, where the RESPONDENT
faces 1. Gross disparity, 2. weaker bargaining position and 3.power imbalance, the Art. 21 (2) of SA
becomes obviously null and void and as this tribunal is applied relying on that Article, the Tribunal lacks
jurisdiction.
1. There Is A Gross Disparity In The Parties Bargaining Powers
35. The first base for claiming the Art. 21(2) null and void, that’s the gross disparity, occurs in cases where the
conclusion of the contract unjustifiably gives only one party an excessive advantage [PICC Art. 3.2.7]. In
such cases Article 3.2.7 of PICC gives the right to the second party to avoid the contract. In our case the
CLAIMANT has an excessive advantage to apply both to the arbitral tribunal and to court and this
advantage was by no doubts unjustifiable.
36. The CLAIMANT submitted the first draft of the SA which already included the asymmetric dispute
resolution clause. The proposal of the RESPONDENT to have a symmetric arbitration clause was
rejected by the CLAIMANT. [PO No 2, Para2].
2. Article 21(2) SA Provided CLAIMANT with an Excessive Advantage and the

RESPONDENT is in a Weaker Bargaining Position
37. A valid agreement should be the uniformity of two sides’ consent. Thus cases, where a party is provided
with an excessive advantage, haven’t been accepted in court practice. Recently, the French Supreme
Court in Ms X v Banque Privée Edmond de Rothschild, similarly to other court decisions in, for instance,
Russia, appeared to refuse the enforcement of asymmetric arbitration clauses as it gives only one party an
excessive advantage.
38. In the following case [Dredging (Russia)] the Russian Arbitrazh Court refused the asymmetric clause as
one party had an unfair advantage over the other and the principle of equality of arms was violated.
39. The same principle has several times been adopted by several German courts. It has been refused to
enforce asymmetric arbitration clauses and considered it unfair as it violates the article 138 of German
Civil code, according to which “a legal transaction is void by which a person, by exploiting the
predicament, inexperience, lack of sound judgment or considerable weakness of will of another, causes
___________
himself or a third party, in exchange for an act of performance, to be promised or granted pecuniary
advantages which are clearly disproportionate to the performance” [German Civil Code, Article 138] .
3. RESPONDENT was Found in a Position Where there was a Lack of Choice And Power
Imbalance.
40. Another ground to claim the Art. 21 (2) null and void is the lack of choice by RESPONDENT. The
CLAIMANT is a market leader in providing pump hydro power plants, it operates in more than 100
countries with a huge number of employees and income. CLAIMANT has a very large market in the
industry to offer its services and to make a profit. Meanwhile, the RESPONDENT compared to the
CLAIMANT has a very limited choice in the industry, It has a smaller market to sell turbines. Therefore,
although both are business entities, the CLAIMANT is in a much stronger position in business than the
RESPONDENT [PO N 2, § 1].
41. CLAIMANT structured its arguments in its Memorandum on the leading case of the French Cour de
Cassation in Ms X vs Rothschild referring, however, to the parts of the case where the statements were in
favor to CLAIMANT considering them not in integrity with the whole case. But the court eventually
held that a unilateral dispute resolution clause was invalid is similar to our case for the following reasons
[Ms X (France)].
42. Similarly to Ms X v Rothschild case, in the current case, there is a significant power imbalance between the
parties. In Ms. X case Luxembourg courts had exclusive jurisdiction to look into any dispute between the
parties. However, the contract between them gave the right to Luxembourg Bank to litigate in the courts
of the client's domicile or any other competent court. As a result, Ms. X, was the only one forced to apply
to Luxembourg courts.
43. To the estimation of the Court of Appeal, this clause was 'potestative' for the bank and it was in conflict
with the object and purpose of a choice of jurisdiction mentioned under article 23 of the Brussels
Regulation and therefore, as a result, the clause was considered invalid.
44. CLAIMANT is trying to prove that the holding of the court shouldn’t be considered in this case as
Rothschild case differs from the current case because the one-sided arbitration clause in Rothschild was
invalidated as it violated Art. 23 of the Brussels Regulation concerning choice-of-court agreement which
is not applicable to our case. [CLAIMANT MEMORANDUM Article 18].
45. However, the Brussels Regulation provides general rules with respect to jurisdiction within its
applicability of course. The fact that it’s binding for European Union’s member states, is a sufficient
___________
ground to rely on its logic and concepts. As it is stated in the preamble, “[the] Regulation respects
fundamental rights and observes the principles recognized in the Charter of Fundamental Rights of the
European Union, in particular the right to an effective remedy and to a fair trial guaranteed in Article 47
of the Charter”.
46. Not surprisingly, that REGULATION is not the sole document that is applied and referred
independently of its binding character in a special case. For instance, the EUROPEAN COURT OF
HUMAN RIGHTS has already established case law with references to inter-American court’s decisions
[ Akdivar (ECHR)].
47. Following this principle here too, Article 6 of the European Convention on Human Rights should be
considered which grants the right to “a fair and public hearing within a reasonable time by an
independent and impartial tribunal established by law”. The principle of “equality of arms” is inherent in
the broader concept of a fair trial. [Feldbrugge (ECHR)]. Plus, “[that principle]] implies that each party
must be afforded a reasonable opportunity to present his case – including his evidence – under conditions
that do not place him at a substantial disadvantage vis-à-vis the other party”. [Dombo Beheer B.V.
(ECHR)].
48. In our case, the courts in Mediterraneo have exclusive jurisdiction over any dispute arising out of or in
connection with their contract, including any question regarding its existence, validity or termination.
[SA, Art. 21 (1)]. According to paragraph 2, only the CLAIMANT has the right to apply to arbitration.
The RESPONDENT was the only one obliged to apply to Mediterano courts, meanwhile, the
CLAIMANT had the right to choose arbitration as a method of settling disputes. Similarly to the French
case, this clause is “potestative” for the CLAIMANT and this fact contradicts with RESPONDENT’s
choice of jurisdiction. The courts of Mediterano were the choice of the jurisdiction of the parties and the
RESPONDENT was forbidden from its right to settle the dispute through the court.
49. Moreover, rejecting the one-sided jurisdiction clauses is not rare in the practice of french courts. We may
refer also, for instance, to the case of ICH v Crédit Suisse where another one-sided jurisdiction clause was
invalidated. [ICH (France)].
50. In this case, a loan agreement was signed between a French borrower and a Swiss Bank. The borrower
acknowledged the exclusive forum for any judicial proceedings is Zurich, Switzerland or at the place
where the relationship with the bank's branch is established. The bank, however, was entitled to bring a
claim against the borrower before any other competent court.
51. Besides the mere fact that there was another case where the court ruled in favor of the party in the same
situation as RESPONDENT, it had reference to Rothschild case. In detail, the ruling of this case
clarified that the rationale underlying the Rothschild ruling is not the protection of the consumer, but a
___________
more general prohibition of imbalanced clauses, irrespective of the status of the contracting parties, It
means it's applicable even when Claimant is a corporate entity and not a natural person.
52. The elements of these two cases match the elements of the present case.
Similarly to these cases, there is a power imbalance between the parties and there is a violation of the right
of one party related to the “Choice of Jurisdiction” required by Article 23 of Brussels Regulation.
53. Even before signing the contract and during the negotiations period, it was obvious that the
CLAIMANT is in a more powerful bargaining position and that there was gross disparity between the
parties. CLAIMANT constantly rejected proposals submitted by RESPONDENT, not only the request
of symmetric arbitration, a suggestion made by the CEO of the RESPONDENT to construct buildings
containing the turbines and the installation of a fixed crane to facilitate inspections and maintenance was
also rejected. [Cl. Ex. C1.]
Moreover, according to Hague Choice of Court Convention to which Mediterraneo, Equatoriana and
Danubia are contracting states, “ when a court or courts of a Contracting State designated in an exclusive
choice of court agreement shall have jurisdiction to decide a dispute to which the agreement applies
unless the agreement is null and void under the law of that State]. Hague Choice of Court Convention,
Article 5. As mentioned earlier, the RESPONDENT was prohibited from his right to have access to a
court which was agreed between the parties that it has exclusive jurisdiction. According to the sales
agreement, courts in Mediterraneo should have exclusive jurisdiction in regard to any matter related to
the sales agreement. Sales Agreement, Article 21. Thus, the RESPONDENT should not be prevented
from this right and this is a clear violation of the Hague convention.
C. ARTICLE 21(2) was Negotiated in Bad Faith by the CLAIMANT

54. To consider a contract is a valid contract, it should be negotiated in good faith. The general principle of
good faith imposes a positive obligation on parties to cooperate in international arbitration proceedings.
Contracts, like treaties in international law, carry the obligation to honor the agreed undertaking
according to good faith. [Kotuby, 2017]․
55. “Under the good faith principle, arbitration agreements must respect the rights of both contracting parties,
regardless of any possible power, position or negotiating imbalance” [Johannes Trappe (1998)]. Plus, the
concept of good faith in international arbitration can be understood as a moral principle "reflective of all
good senses such as honesty, good conscience, fairness, equity, reasonableness, equitable dealing or fair
dealing." [39 Hastings Int'l & Comp. L. Rev. 41 2016].
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56. Not surprisingly, many international documents, treaties refer to the requirement to act in good faith. Art.
7 of CISG requires the parties to perform contracts in good faith. PICC also included the principle of
good faith in its scope requiring the parties to act in good faith and fair dealing in international trade”.
[Art. 1.7 PICC].
57. RESPONDENT believes that asymmetric dispute resolution clauses should be declared null and void for
above-discussed arguments. However, for the whole consideration of the case and fair treatment of
parties their motivations should be put under focus as well.
58. CLAIMANT rejected RESPONDENT’s request to have a symmetric arbitration clause. It appears that
CLAIMANT is used to include such clauses in its contracts for reasons which are not compatible with
good faith. Those are: ensuring certain publicity of the dispute to be in its interest, putting some pressure
upon suppliers which normally do not want to discuss defects in their products in open courts. [PO N 2,
§ 2].
59. In addition, CLAIMANT “wants to maintain the option to go to arbitration if it has either an interest in
confidentiality itself or the perceived other advantages of arbitration outweigh the benefits of court
proceedings in the particular dispute” [PO N 2, § 2]. Thus, even claiming that RESPONDENT has the
possibility to apply to courts and its rights are not restricted, CLAIMANT, appears, from the beginning,
understood itself the advantages of arbitration dispute resolution or at least that he will be found in a
“better position”.
60. The CLAIMANT's behavior is considered also under another unconscionability doctrine as a ground for
invalidating arbitration clauses between parties. [Manfredi (USA)]. Unconscionability doctrine applies in
cases when a party takes advantage of its economically powerful position or the ignorance of the party
who agrees to a unilateral arbitration clause without understanding the unfair advantage it gives to its
contract partner by insisting upon acceptance of a unilateral arbitration clause. [Hans, 2009]. In another
case the court invalidated the arbitration clause based on lack of mutuality and as the contract was
unconscionable in its terms. [Hull (USA)].
61. As the arbitration agreement is invalid, the Tribunal which has jurisdiction only by force of that
arbitration agreement cannot hear the case as it lacks jurisdiction. Compared to courts which are created
by force of law, the jurisdiction power of each arbitral tribunal is decided upon the agreement on which
parties try to rely. In this case, however, no such valid agreement exists.
___________
ISSUE II. THERE IS NO GROUND TO ORDER EXCLUSION OF THE EXPERT
A. The Fundamental Of An Expert Is To Provide A Professional Opinion And Such

Opinion Is Decisive In This Case.
62. After the production and the start of operation of the two R-27 turbines, it became apparent that there is a
possibility that the steel used in production doesn’t correspond to the requirements agreed between the
parties. Particularly, it turned out that the RESPONDENT probably had been defrauded by Trusted
Quality Steel, RESPONDENT’s main supplier of steel. Unfortunately, it was impossible to determine
whether the turbines operating at the Greenacre Plant were produced with the steel of the required
quality or not [RRfA § 6].
63. Although being able and ready to fulfill its obligations in case because of the fraud the steel used for the
production of the two R-27 turbines is not of the expected quality, the RESPONDENT obviously is
willing to have a certain answer to that question which will eventually mean that RESPONDENT has or
has not violated its contractual obligations providing goods non conforming to the agreed quality. That
was the main goal of the RESPONDENT when deciding that he will engage an expert and have a
professional report provided by him [RRfA § 20].
64. CLAIMANT is demanding immediate exchange of turbines which is unacceptable for the
RESPONDENT as none of RESPONDENT’s obligations’ misconduct has been proved as the efficiency
of the turbines and their correspondence to the requirements is a question of pure technical and special
knowledge and unless a competent professional has not been involved in the proceedings, that question
will remain open. As it is beyond doubt that “...the purpose of expert testimony is to supply specialised
knowledge that might assist the trier of fact in understanding the evidence before it, and [...] that in the
ordinary case an expert witness offers a view based on specialized knowledge regarding a technical, scientific
or otherwise discrete set of ideas or concepts that is expected to fall outside the lay person’s ken” [Laurent
Semanza (ICTR)].
65. It is within the powers of the Arbitral Tribunal, after consultation with the parties, to appoint one or more
experts to report in writing to the Arbitral Tribunal and the parties on specific issues in the arbitration, as
identified by the Arbitral Tribunal [LCIA rules, Art. 21, § 1]. Thus, RESPONDENT has decided to use
its right and appoint an expert he may rely on as “[a] party may rely on on a party-appointed Expert as a
means of evidence on specific issues” [IBA Rules of Evidence, 2010, Art. 5(1)].
66. The field of hydro power plants is quite narrow in terms of experts which will be able to give a reliable
report on the cavitation and corrosion maintenance of the turbines. Including the expert suggested by the
RESPONDENT there are only four experts in that sphere [PO No 2, § 17]. Consequently, the
___________
RESPONDENT has not many options and logically needs a distinguishing characteristics when selecting
one of the experts as the report that expert will provide plays a decisive role in this proceedings as “it is
quite common for lawyers to have their preferred experts whom they regularly instructed to act in litigation
or arbitration” [Bridgestone Licensing (ICSID)].
67. RESPONDENT has selected and suggested Prof. John as an expert due to the fact that RESPONDENT
had previously had opportunity to see his skills and knowledge in practice in the field of corrosion in steel
and cavitation in water turbines which may be due to corroded blades and now is of the belief that Prof.
John one of the best experts in the field and parties can rely on the report provided by him. Surely,
RESPONDENT, for whom the continuing relations with one of its most important clients is preferable,
is willing to achieve a fair result for the case. However, if the fairness, in this case, will lead to the exchange
or repair of the turbines or paying for damages, the RESPONDENT's interest is to have an undeniable
proof for that.
68. RESPONDENT’s suggestion, of course, doesn’t deprive the CLAIMANT of the right to suggest an
expert too. Plus, the CLAIMANT may also question during the oral hearings the expert suggested by the
RESPONDENT [LCIA rules, Art. 21, § 4]. These options are discussed as the CLAIMANT apparently
has doubts about the impartiality and independence of Prof. John, which, according to the
RESPONDENT’s estimation, are baseless and cannot serve as a ground to exclude Prof. John from these
proceedings.
B. None of the Previous Relations With Prof. John is a Sufficient Ground to Put His
Independence and Impartiality under Question
69. RESPONDENT has already had the opportunity to see Prof. John in practice in another arbitration case
where the RESPONDENT was involved back in 2004 and the work he had done was impressive for
RESPONDENT. After that RESPONDENT even hired two of his assistants who were experts jointly
with him. However, there is no record concerning their further relations or more importantly Prof.
John’s relations with RESPONDENT except for the fact that Prof. John was invited to the presentation
of the new R-27V turbine in 2013 [PO No 2, § 17]. Though, considering his reputation in the sphere,
for any producer would be preferable to listen to his professional opinion.
70. Another case where RESPONDENT had the chance to see Prof. John’s skills was during the Riverhead
Tidal Power Plant project when it was the operators of the Riverhead Tidal Power Plant had decided on
___________
5 August 2018 to hire Prof. John as their advisor to supervise the replacement of the turbine in the plant
[PO No 2, § 14].
71. During one break in a meeting concerning the Riverhead Tidal Power Plant project, RESPONDENT
representatives had a quick discussion with Prof. John being concerned about other projects. And Prof.
John made some assumptions for a theoretical situation relying on his previous experience and general
knowledge however not giving a certain opinion because “though he [is]fairly confident about his
assumption it would have to be verified by proper testing”[PO No 2, § 15].
72. Above are enumerated all cases where RESPONDENT had some interaction with Prof. John which
cannot be considered as sufficient to claim that “ [he] is unable to provide evidence in an independent
and/or impartial manner as a result of his previous successful dealings with
RESPONDENT’’[CLAIMANT MEMORANDUM § 49]. Plus, “... the existence of some interest or a
relationship does not automatically render the evidence of the proposed expert inadmissible. In most cases, a
mere employment relationship with the party calling the evidence will be insufficient to do so”. [White
Burgess (Canada)]
73. The IBA rules of taking evidence in international arbitration also put a duty on the expert “[to make] a
statement of his or her independence from the Parties, their legal advisors and the Arbitral Tribunal ” [IBA
rules of taking evidence in international arbitration, 2010, Art. 5.2(c)]. However, “the Article 5.2(c)
[doesn’t intend] to exclude experts with some connection to the participants or the subject-matter of the case ”
[Commentary on IBA Rules of Evidence, 2010]. Plus, “an appearance of partiality does not result in the
disqualification of an expert witness” [Bridgestone Licensing (ICSID)].
C. RESPONDENT Acted in Good Faith Having as Main Aim to Receive a Reliable Report
74. CLAIMANT argues that RESPONDENT acted in bad faith when appointing Prof. John mainly because
of CLAIMANT’s choice of arbitrator Ms. Burdin. Such a claim is completely baseless for several reasons.
First, the sequence of facts shows that it was CLAIMANT that could have knowledge about the possible
suggestion of Prof. John by RESPONDENT. On the contrary, RESPONDENT had no access to such
kind of information which would make clear for him that the suggestion of Prof. John would raise any
question of conflict of interests.
75. Secondly, Mrs. Burdin, in any case, should not be in the arbitral tribunal as she will decide whether to
appoint Prof. John or not and her previous professional works put her objectivity under question.
___________
76. The CLAIMANT was present at The Hydro Energy trade fair where Prof. John was invited by
RESPONDENT as one of the leading experts in the field and CLAIMANT’s COO also had a chance to
speak to him and discuss the new turbines. Plus back in 2018 there was an article in the local newspaper
(which is a publicly accessible source) about the litigation between Prof. John and Mr. Burdin. [PO No 2,
§ 13]
77. In addition to these facts, CLAIMANT brings no arguments concerning the appointment of Ms. Burdin
as its arbitrator which is another ground for RESPONDENT to have concerns about the bad faith of
CLAIMANT and the purpose to claim for exclusion of Prof. John.
78. Though parties are free when appointing their arbitrators, such freedom should be restricted when the
realization of such right may lead to limitation of the other party’s protective arms. Otherwise, in the end,
the arbitration award will not be enforceable as RESPONDENT was “unable to present his case” [New
York Convention on the Recognition and Enforcement of Foreign Arbitral Awards, Art. VI, 1 (b)].
79. Another fact that gives right to RESPONDENT to claim that Ms. Burdin’s appointment should not be
considered as a ground for exclusion its expert, is that Ms. Burdin has previously written some articles
arguing that the “suspicion of defects [leads to ]non-conformity under Article 35 CISG” [PO No 2, § 9].
Thus one of the arbitrators has prejudiced one of the main questions to be discussed during the arbitral
proceedings and this fact gives “rise to justifiable doubts as to that arbitrator’s impartiality or
independence” which is a ground to challenge the arbitrator [LCIA rules, Art. 10.1 (iii), Model law, Art.
12,§ 2]
ISSUE III. THE RESPONDENT DELIVERED GOODS WHICH CONFORM TO THE SALES
AGREEMENT
80. In 2014 RESPONDENT designed and produced its R-27V turbines which, due to their special
characteristics (shape of the blades, the way they are allocated, the steel alloy used, longer inspection
terms) they became the most efficiently working turbines in the market and not surprisingly drove to
them the special attention of the market players despite their higher price [RRfA § 3].
81. Compared to many other goods, the specialty of the turbines is that when providing the goods to the
customer, a thorough and complete inspection upon the passing moment is not possible. Thus, it was
accorded with the CLAIMANT that only an acceptance test will be conducted in which the objective is
“to examine over a period of one week of continuous operation whether the turbines operate properly and
___________
have the agreed-upon output at the time of testing” [PO N 2, § 3]. And the results of the acceptance test
were positive [Cl. Ex. C 4].
82. Hence, the CLAIMANT willingly entered into a contract knowing that there will be no possibility to
have provided goods examined as only the acceptance test will be conducted and there will be no
guarantees that the turbines are produced as they are designed by RESPONDENT and CLAIMANT
relied on the good faith and appropriate conduct by RESPONDENT which was not breached as the
“possible defect” was not RESPONDENT’s fault but the result of its counterparty’s unlawful actions.
83. According to the sales agreement signed between the parties, the applicable law on the contract is the Law
of Danubia. [Cl. Ex., C2]. Danubia is a contracting state of CISG, therefore, this agreement is included
within the scope of CISG.
84. The Art. 79 of CISG is considered to be the ground to discuss the question of the burden of proof
between parties. “From [Art. 79 (1)], as well as Arts 2(a) and 25 CISG it can be deduced that each party
has to prove the factual prerequisites of the provisions upon which it wants to rely for its claim or
defense. It is often referred to as 'rule and exception-principle' or using Roman terminology as the
principle ei incumbit probatio, qui dicit non qui negat or actori incumbit probatio (Latin, meaning The
burden of proof lies upon him who affirms not he who denies) [Wire and cable (Switzerland)].
85. Discussions of Art. 25 of CISG in official sources focuses on its character to regulate to some extent the
burden of proving its elements including “[the obligation] of the aggrieved party to prove that the breach
substantially deprived it of what it was entitled to expect under the contract” [2012 UNCITRAL Digest of
case law on the United Nations Convention on the International Sale of Goods].
86. The rule of burden of proof if conforming to the Art. 27 of UNCITRAL RULES as revised in 2010,
which states that “[each] party shall have the burden of proving the facts relied on to support its claim or
defense”.
87. Thus, CLAIMANT bears the responsibility to prove the non-conformity of the goods according to Art.
35 (2) of CISG where are enumerated those facts which should be proved to claim the non-conformity of
the goods. Plus, the CLAIMANT should bring appropriate evidence to prove that “the buyer [didn’t
know] or could not have been [aware[ of such lack of conformity” [Art. 35 (3) of CISG]. Such claims, to the
conviction of the RESPONDENT, have no prospect with the arguments developed below.
___________
A. The goods are of the quantity, quality and description agreed between the parties (Art.
35 of CISG)
88. According to Article 35 of CISG, the seller should provide goods conforming to the contract in quality
and quantity. [Article 35 of CISG]. In case there is no clear agreement between the parties, the goods do
not conform with the contract unless;
(a)-are fit for the purposes for which goods of the same description would ordinarily be used.
(b)-are fit for any particular purpose expressly or impliedly made known to the seller at the time of the
conclusion of the contract, except where the circumstances show that the buyer did not rely, or that it
was unreasonable for him to rely, on the seller's skill and judgment. [Article 35 (2) (a) (b)].
89. The provided goods, the two Francis Turbines, conform with the requirements of the contract,
requirement of Article 35 (1) Of CISG. They conform to the quality and description ensured by
RESPONDENT which includes also the certificates of steel quality. Moreover, they conform with the
requirements of Article 35 (2) (a) (b).
90. The Francis R-27V Turbines, are successfully serving for the requirements in which they were purchased
for. They have successfully minimized the risk of having to rely on carbon-based energy providing
uninterrupted supply of the energy with the required amount and most important, based on the current
facts, they are operating in a way that assures they will have a lengthy uninterrupted operation and there
are no signs of any defeat in its operation nor any signs of corrosion or cavitation.
91. The CLAIMANT failed to prove that the turbines were affected by corrosion or cavitation and its
accusation that the goods do not conform with the requirements of the sales agreement is based on
assumptions and CLAIMANT prevents with his behavior to the approval of the conformity opposing to
the appointment of an expert.
1. The goods delivered are fit for their ordinary use and for the particular purpose that parties
have agreed upon
92. RESPONDENT’s turbines were selected by CLAIMANT for their some new features compared to the
turbines produced by competing companies. However, the particularity and the particular purpose
didn’t alter the ordinary use. Hence, the delivered goods by the RESPONDENT fit for the particular
purpose and also for the use which goods of the same description would ordinarily be used. The goods
fulfilled the requirement of Article 35 (2) (a).
___________
93. It is noticeable that courts in different countries intended to hold that the standard of Article 35 (2) (a)
would be violated when there is a proof or at least a sign that the provided goods are defected. The French
court of appeal held that Article 35 (2) (a) was breached when the seller delivered a refrigeration unit that
broke down soon after it was first put into operation [Thermo King (France)]. It was also found violated
where the seller uses as an alternative different component in a machine without notifying the buyer and
without giving the buyer proper instructions for installation. The machine failed after three years of use
and failed to meet the buyer's expectations for long and continuous operation without failure. [Beijing
Light Automobile (Sweden)]
94. As it is obvious, courts had basis, grounds and facts to consider these goods will not serve properly not
only for the purpose of contract that it was purchased for but moreover, these goods will not function
properly as goods of the same description would normally do in the ordinary use in the same industry.
95. In regard to the threshold required to consider a good meets the requirement of Article 35 (2) (a) goods
should be in an"average" quality or "reasonable" quality. [Arbitral award, No. 2319 Netherlands
Arbitration Institute].
96. In the present case, the CLAIMANT was concerned as the characteristics of the alloy used in producing
the Francis Turbines had been changed by heat during the manufacturing process. [Request For
Arbitration, Para 14]. However, this can not be considered as a base to establish that the goods don’t fit
for the purpose that was agreed between the parties upon signing the contract nor to establish that it
doesn’t fit for the purpose required in the ordinary use. In its worst, these turbines would be considered
goods in reasonable quality as there is no proof of a defeat.
2. BUYER didn’t rely on the SELLER’s skills and judgment
97. CLAIMANT obviously did not rely on RESPONDENT’s skill and judgment since RESPONDENT
suggested 2 specific ways of constructing the turbines. However, all of them were denied by
CLAIMANT. In detail, CLAIMANT approached with a ready design which, to the estimation of
RESPONDENT, being professional in that field, should have been changed. But CLAIMANT decided
to apply the initial design where RESPONDENT didn’t invest its skills or judgments [Claimant Ex C2].
98. The fact of relying on the counterparty’s skills and judgments should be assessed not considering why the
CLAIMANT approached or chose RESPONDENT to work with but rather whether CLAIMANT
eventually used those skills and judgments in his project. In this case, obviously, CLAIMANT did not.
___________
B. RESPONDENT is not liable for any possible defects
1. They were due to an impediment beyond his control

99. Leading daily news feed published a report on 29 September 2018 according to which Trusted Quality
steel, one of RESPONDENT’s main suppliers, who were delivering 70% of RESPONDENT’s steel,
delivered steel to RESPONDENT with forged documentation concerning its quality control. [Cl. Ex. C
3].
100. The quality control of steel is a separate professional business activity and cooperation with such
companies is accepted in the market. Thus CLAIMANT was aware that RESPONDENT could be
responsible for designing and manufacturing decisions but not the steel quality. RESPONDENT relied
on the certificates provided by a professional company which, unfortunately, appeared to be forged.
101. When considering the liability of a party under Art. 79 of CISG one of the main facts to consider is
whether the impediment was beyond his control or not. If the impediment was beyond that party’s
control he wouldn’t be liable. The “beyond party’s control” element is very particular to every case.
However, the current case law established “protects” RESPONDENT in similar circumstances.
102. In one decision, the court found that “ that [seller] finding itself in the position of a seller of a product
whose manufacture and notably whose elaboration of the fabrics are beyond [seller]'s control, it is proper,
in the absence of a showing of bad faith on [seller]'s part, to allow [seller] the benefit of Article 79 CISG”.
[Flippe Christian (France)].
103. In general, “[a court] must have regard to the allocation of risk that was incorporated in the contract, as
well as any trade usages or practices that might be relevant (according to CISG Article 9) [Mazzacano,
2013]
104. Taking into consideration the above-discussed facts, it is obvious that RESPONDENT didn’t have
control over the steel quality and did all necessary and possible actions accepted in the market.
CLAIMANT himself thought that the delivered steel was of premium quality and didn’t require for
more guarantees. Thus both parties relied on the same claims and certificates provided by a third party
and both are affected by this fraud.
___________
2. He could not reasonably be expected to have taken the impediment into account at the
time of the conclusion of the contract or to have avoided or overcome it, or its
consequences
105. At the time of the conclusion of the Sales Agreement, RESPONDENT was sure that the Turbines are
produced as they had been designed, including the steel quality that had been used. For such business
behavior RESPONDENT “[relied on] the certificates issued by the independent and certified companies
such as TechProof which are usually supplied with the steel by the producer” [PO N 2, § 18]. In its turn,
CLAIMANT didn’t rely even on those certificates, but “[on] a statement by RESPONDENT that they
were produced with certified steel” [PO N 2, § 5]. Thus, CLAIMANT, not demanding more that have
been provided by RESPONDENT, agreed that RESPONDENT acted in an “accepted way”. So,
RESPONDENT did not have any doubts about Trusted Quality Steel and its product.
106. RESPONDENT delivered two of its newest turbines to CLAIMANT which were in accordance with the
sales agreement. At the moment, there is no proof that the turbine in the Greenacre plant has any
technical problems. It means that RESPONDENT did not fail his obligations under Article 35 of CISG
which says “[t]he seller must deliver goods which are of the quantity, quality and description required by
the contract and which are contained or packaged in the manner required by the contract”.
107. RESPONDENT did all of his obligations according to the sales agreement. He every necessary step to be
sure that his obligations of the sales agreement are done.However, no contract considering the possibility
that any counterparty has ever provided non-conforming goods or have forged any documents.
108. In addition, RESPONDENT’s R-27V turbines had the characteristics that CLAIMANT was looking for
and choose RESPONDENT for. Up until this day, CLAIMANT’s power plant is operating in
Greenacre without any technical problems. There was no examination, proving that there is any
problems regarding the turbines. Knowing RESPONDENT’s goodwill in the market, [as CLAIMANT
keeps saying] “selling low-quality steel” is not worth it.
109. However, “in order to qualify as an "impediment," the change of circumstances ought not to have been
reasonably foreseeable at the time of the conclusion of the contract” [Scafom International (Belgium)]. For
instance, the exemption for “the lack of foreseeability” was denied by courts when the fact to foresee was
the existing regulations prohibiting the export of coal or a significant drop in the world market price
[ Berry Marketing (Belgium))].
110. In comparison not are rare cases where in the similar to this case circumstances where, for instance, in Art
books case in order to have catalogs available at the opening of the exhibition, the seller commissioned a
forwarding company, which had guaranteed timely delivery but the catalogs arrived too late and the seller
was not held liable [Switzerland 10 February 1999 Commercial Court Zürich].
___________
111. RESPONDENT did not breach the contract between the parties, simply because RESPONDENT was
not responsible for the low-quality steel. RESPONDENT did do all his duties and did not fail in any of
them.
ISSUE IV. THE CLAIMANT IS NOT ENTITLED TO CLAIM FOR THE REPLACEMENT OF
THE TURBINES
112. Even after the RESPONDENT showed the situation with its production capacities and brought
reasonable arguments on why the turbines’ replacement is not a must the CLAIMANT eventually opted
for their replacement and started these proceedings [RRfA § 11]. However, the CLAIMANT’s such
decision and behavior is not legally based and justified.
A. The precondition for any remedy under CISG is the proven fact that the seller has failed
to fulfill its obligations which is absent Article 45 of CISG
113. The Art. 45 of the CISG consists of stating the defensive powers of the Buyer and determining the only
precondition of its applicability: “If the seller fails to perform any of his obligations under the contract or
this Convention”.In other words, “the availability of any remedy to the buyer presupposes that the seller has
failed to perform an obligation deriving either from the contract, from trade usages, from practices between
the parties or from the Convention” [UNCITRAL Digest of Case Law on CISG, Art. 45].
114. Plus, every remedy accessible for Buyer under CISG is unique and has its own prerequisites. As for the
remedy Buyer argues for, the replacement of the provided goods, there should additionally be proved
fundamental breach [Art. 46(2) of CISG]. Above has already been proven by RESPONDENT that there
is no proved non-fulfillment of its obligations by RESPONDENT as the turbines haven’t been examined
and their current status is unclear and below will be shown that none of the conduct by RESPONDENT
so far equals to fundamental breach.
B. There has not been a fundamental breach of the contract under Article 45(6)
115. The standard and threshold of fundamental breach must be examined in light of the expectations of both
parties as well as under the UNCITRAL case law. By exploiting the flexibility granted under Article 6 of
CISG, parties decided to include three criteria (delay in delivery, inappropriate payments, not passing the
acceptance test) [SA, Article 20 (2)] in addition to general definition of fundamental breach under Article
___________
25 CISG. As per the information presented by the RESPONDENT the turbines have been delivered in
time and have been approved by the relevant authority which also included successful acceptance test
[Req. par. 11]. Additionally, there is no information on inappropriate payments from RESPONDENT
to CLAIMANT. As the three criteria under Article 19 (2a-2c) have not been met, the fact of
fundamental breach of contract must be investigated under Article 19 (2d) which is the verbatim
definition of Article 25 CISG.
116. Article 25 CISG states that “breach of contract committed by one of the parties is fundamental if it results
in such detriment to the other party as substantially to deprive him of what he is entitled to expect under the
contract”. The Sales Agreement states that “the time period between the repair and maintenance intervals
should be lengthy… and the first inspection should be three years after installation” [Cl. Ex. C2].
CLAIMANT argues that the expectation of “long inspection intervals” has been disturbed by the fact
that it was decided to pool forward the first inspection by a year. Therefore, CLAIMANT argues that
early inspection can be considered as a basis for fundamental breach. However, the early inspection
cannot be interpreted as an obligation, rather it was a gesture of good will from RESPONDENT to
dispel the concerns of the CLAIMANT even the risk that the turbines were affected by the fraud
remained extremely low.
117. The statements of the CLAIMANT that the turbines might not fit their purpose are merely based on
assumptions and CLAIMANT fails to mention any material fact which directly would indicate that the
quality of turbines has been negatively affected by the fraud case. The CLAIMANT is able to
demonstrate that the quality of still used in the production process of turbines for the Riverhead plant
has been acted by the fraud case, however, the Riverhead plant is a completely different project and the
relevant aspects of the project are not applicable in our case. Firstly, in Riverhead plant, the turbines
operated in saltwater, which is a catalytic fact for the corrosion of turbines. Therefore, the likelihood that
the turbines will be affected by fraud cannot be assessed by the experience in Riverhead, as these are two
different projects with different circumstances. In fact,
118. RESPONDENT is able to satisfy its burden of proof of foreseeability while the CLAIMANT fails to
prove that there was a breach which deprived of its expectations. The burden of proof under Article 25 of
CISG consists of two elements- foreseeability and deprivation of expectations.
119. The burden with regard to the foreseeability element of Article 25 lies with the RESPONDENT
[CLOUT case No. 171, Bundesgerichtshof, Germany, 3 April 1996] who is able to demonstrate that the
RESPONDENT could not have foreseen that it would become a victim of fraud case. In particular, the
Trusted Quality Steel has been a market leader and supplied steel for many producers and the fraud case
has been a complete surprise for the market. Therefore, it was very unlikely for the RESPONDENT to be
___________
able to foresee that the steel used in the production process is of inferior quality. On the other hand, the
CLAIMANT has to prove that the breach substantially deprived it of what it was entitled to expect
under the contract [ID]. However, no material fact has been presented by CLAIMANT, rather all
conclusions are based on assumptions- “CLAIMANT’s conclusion is solely based on the fact that Trusted
Quality Steel was RESPONDENT’s main supplier providing around 70% of the steel used at the time” [Po.
2, par. 24].
120. From the first moment of being aware that the documents shown by its main supplier have been forged,
RESPONDENT took immediate actions to clear the situation and suggested a thorough examination of
the turbines at the first regularly scheduled inspection which should be pulled forward by a year to
autumn 2020 being ready to bear all costs [CLAIMANT’s exhibit N 5].
121. Later, RESPONDENT, being informed that one of the projects, for which the production of four
turbines has started, will be delayed suggested using that time for production turbine runners during the
inspection time in September/October 2020. However, this suggestion was also rejected by CLAIMANT
for no reasonable argumentation[CLAIMANT’s exhibit N 7].
122. Thus, the RESPONDENT is willing and is ready to fulfill its obligations and put additional financial and
production resources if such a need exists and all RESPONDENT’s previous conduct was made
according to maximum standard of good faith and commitment. However, the CLAIMANT is trying
to impose liability on the RESPONDENT without any evidence and doesn’t consider the reasonable
suggestions acting, inter alia, against Art. 77 of CISG according to which “[the]party who relies on 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”.
REQUEST FOR RELIEF
In light of the above, RESPONDENT respectfully requests the Tribunal to find that:
1. The Arbitral Tribunal lacks jurisdiction to hear the case and the Arbitration Agreement is invalid
2. RESPONDENT’s expert, Prof. John, should not be excluded
3. RESPONDENT didn’t breach the SA and delivered goods are not proved to be nonconforming
in the sense of Article 35 CISG
4. CLAIMANT is not entitled to request the delivery of replacement turbines
___________
Respectfully submitted on behalf of the RESPONDENT,

23rd January, 2020
Susanna Babayan______s________ Lilit Shahinyan_______s________
Shaghek Manjikian______s_______ Emil Abrahamyan_______s______
___________

Armenian Law Schools: Memorandum For Respondent

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Armenian Law Schools: Memorandum For Respondent

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Twenty-Seventh Annual Willem C.

Vis International Commercial Arbitration Moot

MEMORANDUM FOR RESPONDENT

On Behalf of: Against:

TurbinaEnergia Ltd HydroEN plc Rue

Armenian Law Schools

COUNSEL FOR RESPONDENT

Susanna Babayan • Shaghek Manjikian • Lilit Shahinyan • Emil Abrahamyan

ISSUE II. THERE IS NO GROUND TO ORDER EXCLUSION OF THE EXPERT 26

REQUEST FOR RELIEF 36

CISG United Nations Convention on Contracts for the

Cl. Ex. Claimant Exhibit

e.g. exempli gratia (for example)

et al. et alii/ et alia (and other persons, and other places)

ICC International Chamber of Commerce

ICC Rules Rules of Arbitration of the ICC (2012)

LCIA London Court of International Arbitration

IBA International Bar Association

Model Law UNCITRAL Model Law on International Commercial

OLG Oberlandesgericht, Provincial Court of Appeal

Req. Request for Arbitration

Res. Ex Respondent Exhibit

Response to the request for RRfA

RfA Request for Arbitration

UCC Uniform Commercial Code

PICC UNIDROIT Principles of International Commercial

USD United States Dollar

Cited As Citation Paragraph

Born, 2014 Gary B. Born

International Commercial Arbitration

2nd ed., 2014

Moses, 2008 M. Moses

The Principles and Practice of International

3rd. ed., 2008

Issue of Parallel Judicial Proceedings

Charles T. Kotuby Jr. and Luke A. Sobota

General Principles of Law and International Due

Johannes Trappe Johannes Trappe, ¶ 55

The Arbitration Proceedings: Fundamental

The Unilateral Arbitration Clause: A

UNCITRAL Yearbook of United Nations Commission on ¶ 26

Fulbright, 2017 Norton Rose Fulbright, International Arbitration

1. Commentary on the revised text of the 2010

1999 IBA Working Party & 2010 IBA Rules of

Bridgestone Licensing Bridgestone Licensing Services, Inc. and ¶ 66; 73

Laurent Semanza (ICTR) Laurent Semanza v. The Prosecutor (Appeal ¶ 64

International Criminal Tribunal for Rwanda

Scafom International Scafom International BV v. Lorraine Tubes ¶ 109

Vital Berry Marketing Vital Berry Marketing v. Dira-Frost

District Court Hasselt

Judgement No. 71, Judgement No. 71, in commercial case No. ¶ 28

Bulgaria Court of Cassation

White Burgess (Canada)

Supreme Court of Canada

Arbitral award, No. 2319 Landgericht Coburg 12 December 2006,

Netherlands Arbitration Institute

Ms. X (France) Ms. X v Banque Privée de Rotschild, No ¶ 35

Cour de Cassation, France

ICH (France) ICH vs Credit Suisse ¶ 49

Cour de Cassation, France

Thermo King (France) Thermo King v. Cigna Insurance Company of ¶ 93

Appellate Court Grenoble, France

Susanna Babayan__s Lilit Shahinyan_s______

Shaghek Manjikian__s_ Emil Abrahamyan_s__