Memo 6

27th Annual Willem C.
Vis International Commercial Arbitration Moot
MONASH UNIVERSITY
Melbourne · Australia
MEMORANDUM FOR RESPONDENT

HYDROEN PLC v. TURBINA ENERGIA LTD
– CLAIMANT – – RESPONDENT –
Rue Whittle 9 Lester-Pelton-Crescent 3
Capital City Oceanside
Mediterraneo Equatoriana
COUNSEL FOR RESPONDENT
Moe Ayman · Murphy Bong · Samira Lindsey
Joseph McDonald · Dave Yan Sima · Lorena Stents

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TABLE OF CONTENTS
INDEX OF ABBREVIATIONS ...........................................................................................................................5
SUMMARY OF FACTS ...........................................................................................................................................7
SUMMARY OF ARGUMENT ..............................................................................................................................8
SUBMISSIONS ...........................................................................................................................................................9
ISSUE 1: THE TRIBUNAL SHOULD DECLINE JURISDICTION BECAUSE THE
ARBITRATION AGREEMENT IS INVALID ...............................................................................................9
I. Equal Treatment Validly Restricts Party Autonomy in Drafting the Arbitration Agreement ............9
A. Equal Treatment Applies to Jurisdictional Challenges..........................................................................9
B. Equal Treatment is Critical under DAL ............................................................................................... 10
II. The Arbitration Agreement Violates Equal Treatment ..................................................................... 11
A. Availability of Arbitration is Subject to the Whim of CLAIMANT ................................................ 11
B. There is No Equal Influence in Choosing the Appropriate Forum for Dispute Resolution ...... 12
C. CLAIMANT Attempts to Control RESPONDENT’s Procedural Rights .................................... 13
III. Violation of Equal Treatment Creates Salient Risk of Non-Enforcement of Any Arbitral Award
in the Enforcing Jurisdictions.............................................................................................................................. 13
A. The Obligation to Render an Enforceable Award is a Central Element of Arbitration............... 14
B. The Award May Become Unenforceable if Contrary to Public Policy ........................................... 15
CONCLUSION OF ISSUE 1 ................................................................................................................................. 16
ISSUE 2: THE TRIBUNAL SHOULD NOT ORDER THE EXCLUSION OF THE EXPERT
SUGGESTED BY RESPONDENT, PROF. JOHN ................................................................................... 16
I. The LCIA Rules Are Silent on Dismissing PAEs ................................................................................... 16
A. The Power to Dismiss PAEs under LCIA Rules by Analogy is Inappropriate ............................. 16
B. Even if the Tribunal Could Dismiss Prof. John Under its Inherent Powers, the Circumstances
are Insufficient to Trigger this Power ........................................................................................................... 17
II. Even if the Tribunal was Empowered to Dismiss Prof. John, the Alleged Conflicts of Interest
are Insufficient for His Dismissal ....................................................................................................................... 18
A. The Relationship between Ms. Burdin and Prof. John Does Not Create a Sufficient Conflict of
Interest Warranting Prof. John’s Dismissal.................................................................................................. 18
B. Alternatively, Prof. John Should Not be Dismissed because of his Previous Commercial
Dealings with RESPONDENT ..................................................................................................................... 19
C. Dismissing Prof. John, in Either Alleged Conflict of Interest, is Disproportionate ..................... 21
D. The Conflict of Interests Does Not Meet the Threshold to Evoke the Power to Dismiss a PAE
in These Circumstances ................................................................................................................................... 21
III. RESPONDENT Reserving its Right to Challenge Ms. Burdin’s Appointment is Not in Bad
Faith 21
IV. Dismissing Prof. John Infringes RESPONDENT’s Ability to Present Its Case Fairly ............... 22
V. If the Tribunal Has the Power to Dismiss a PAE and Prof. John is Subject to a Conflict of
Interest Worthy of His Dismissal, then Ms. Burdin Cannot be Present in the Handing Down of that
Award 22
ISSUE 3: THE TRIBUNAL SHOULD FIND THAT THE TURBINES ARE CONFORMING
IN THE SENSE OF ART. 35 CISG ................................................................................................................. 23
MEMORANDUM FOR RESPONDENT 2

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I. The Turbines Are Conforming Under Art. 35(1) CISG ........................................................................ 23

A. To Establish Conformity Under Art. 35(1) CISG, the Usability of the Goods Prevails Over the
Agreed Features ................................................................................................................................................ 23
(1) The Standard for Art. 35(1) CISG ............................................................................................... 24
(2) The Standard in the SA .................................................................................................................. 24
(3) Suspicions Based on Agreed Features ......................................................................................... 24
B. The Goods Are Conforming Under Art. 35(1) CISG ....................................................................... 24
II. The Standard under Art. 35(2)(b) CISG Does Not Apply ................................................................... 25
A. RESPONDENT Was Not Expressly or Impliedly Made Aware of the Alleged Particular
Purpose .............................................................................................................................................................. 26
(1) The Particular Purpose is to Guarantee a Permanent Availability and Avoid Any Penalty 26
(2) RESPONDENT Was Not Expressly or Impliedly Made Aware of This Particular Purpose
26
B. Even If This Particular Purpose Was Made Known to RESPONDENT, CLAIMANT’s
Reliance on RESPONDENT’s Skill and Judgment Was Unreasonable ................................................. 27
III. The Turbines Are Conforming Under Art. 35(2)(a) CISG ............................................................... 28
A. For a Suspicion to Render Goods Non-Conforming Under Art. 35(2)(a) CISG, It Must Be
Proven With a Reasonable Degree of Certainty .......................................................................................... 28
(1) Defining the Ordinary Purpose of the Turbines ....................................................................... 28
(2) Defining the Standard of the Turbines ....................................................................................... 28
B. CLAIMANT’s Suspicion is Not a Reasonable Suspicion and Cannot Render the Goods Non-
Conforming under Art. 35(2)(a) CISG ......................................................................................................... 29
(1) The Market Valuation of the Goods is Not a Relevant Consideration.................................. 29
(2) The Riverhead Tidal Plant is Not Comparable to the Greenacre Plant ................................ 30
(3) The Probability of the Suspicion Materialising Does Not Support the Finding of a
Reasonable Suspicion.................................................................................................................................. 30
C. Even if the Suspicion is Reasonable, RESPONDENT is Still Not Liable ..................................... 31
ISSUE 4: THE TRIBUNAL SHOULD FIND CLAIMANT IS NOT ENTITLED TO
REQUEST REPLACEMENT OF THE TURBINES ............................................................................... 32
I. There is No Fundamental Breach under Art. 25 CISG ........................................................................ 32
A. There Has Been No Substantial Deprivation to CLAIMANT ........................................................ 32
(1) The Threshold to Establish Substantial Deprivation is High .................................................. 32
(2) Art. 20(2)(d) SA Does Not Lower the Threshold for Substantial Deprivation .................... 33
(3) CLAIMANT Has Not Been Substantially Deprived of Its Expectation Interest ................ 33
B. Even if CLAIMANT was Substantially Deprived, Such a Result Was Not Foreseeable ............. 35
(1) Foreseeability Should Be Determined at the Time of the Conclusion of the SA ................ 35
(2) RESPONDENT Did Not Foresee the Substantial Deprivation ............................................ 36
(3) A Reasonable Person in RESPONDENT’s Position Would Not Have Foreseen the
Substantial Deprivation .............................................................................................................................. 36
II. The Breach Can Be Remedied by Repair ................................................................................................ 37
A. Offer to Cure by Repair is Reasonable Compared to Replacement ................................................ 38
(1) Repair Would Not Cause Unreasonable Delay or Inconvenience.......................................... 38

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(2) Repair is Justified on Economic Grounds .................................................................................. 39

(3) Repair is Consistent with the Principle of Favor Contractus....................................................... 39
B. Entitlement to Specific Performance is Unlikely under Danubian Substantive Law .................... 40
REQUEST FOR RELIEF .............................................................................................................. 42
INDEX OF AUTHORITIES ......................................................................................................... 43
I. Rules & Laws ............................................................................................................................................... 43
II. Commentaries .............................................................................................................................................. 43
INDEX OF CASES ......................................................................................................................... 53
CERTIFICATE............................................................................................................................... 58

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INDEX OF ABBREVIATIONS
Arbitration Agreement Art. 21 of the SA
Art. Article
Arts. Articles
Contra Against
CIArb Protocols CIArb Protocols for the Use of Party-Appointed Expert Witnesses in
International Arbitration
CISG United Nations Convention on Contracts for the International Sale of Goods
Cl. Ex. CLAIMANT’s Exhibit
Cl. Memo. CLAIMANT’S Memorandum of Argument filed in this proceeding on 5

December 2019 by Counsel of St Petersburg University
ECHR European Convention on Human Rights
Edn. Edition
e.g. exempli gratia (for example)
Greenacre Plant Greenacre Pump Hydro Power Project
IBA Rules IBA Rules on the Taking of Evidence
IBA Guidelines IBA Guidelines to Conflicts of Interest in International Arbitration
ibid ibidem (in the same place)
i.e. Id est (that is to say)
SA Sales Agreement being Cl. Ex. C2 executed 22 May 2014 by the Parties
LCIA London Court of International Arbitration
LCIA Rules LCIA Arbitration Rules
ICSID International Centre for Settlement of Investment Disputes

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Inc. Incorporated
Ltd. Limited
ML UNCITRAL Model Law
No. Number
NYC New York Convention
p./pp. Page/Pages
PAE Party Appointed Expert
Parties CLAIMANT and RESPONDENT
para./paras. Paragraph/Paragraphs
P.O. Procedural Order
Prof. Professor
Response RESPONDENT’s Response to Request for Arbitration
Request CLAIMANT’s Request for Arbitration
Rsp. Ex. RESPONDENT’S Exhibit
Tender Invitation to tender for construction and operation of the Plant
Tender Contract Contract between CLAIMANT and Council of Greenacre
Turbines R-27V Francis Turbines delivered by RESPONDENT
UNCITRAL The United Nations Commission on International Trade Law
UPICC UNIDROIT Principles of International Commercial Contracts
v. versus (against)
US$ US-Dollars
% Per cent

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SUMMARY OF FACTS
The Parties to this arbitration are HydroEn Plc (hereinafter CLAIMANT) and TurbineEnergia Ltd
(hereinafter RESPONDENT). CLAIMANT is a market leader in providing pump hydro power
plants. RESPONDENT is a world-renowned producer of premium water turbines. The contract
(hereinafter SA) is to deliver the Turbines to CLAIMANT for the Greenacre Plant under tender.
January 2014 Council of Greenacre invites tenders for construction and operation of
the Plant.
Early March 2014 CLAIMANT contacts RESPONDENT to enquire about potential
delivery of the Turbines in preparation for CLAIMANT’s tender.
22 May 2014 CLAIMANT and RESPONDENT sign the SA for delivery and
installation of the Turbines at US$ 40,000,000, conditional upon
CLAIMANT being awarded the Tender.
15 July 2014 CLAIMANT awarded tender; CLAIMANT commences construction.
Late Spring 2018 RESPONDENT delivers and installs the Turbines.
~May 2018 Incident at Riverhead Tidal power plant occurs.
19 September 2018 Plant starts operating.
29 September 2018 Renewable Daily News publishes allegations of fraudulent quality
certificates against Trusted Quality Steel, RESPONDENT’s main
supplier. TechProof fails to confirm fraud.
3 October 2018 CLAIMANT contacts RESPONDENT to inquire as to extent the
Turbines could be compromised by Trusted Quality Steel’s fraud.
4 October 2018 RESPONDENT replies to CLAIMANT to suggest waiting until First
Inspection which has been brought forward to September 2020. The
Parties can then ascertain whether turbine runner or blades were
produced from steel of inferior quality.
~4 October 2018 CLAIMANT contacts Greenacre to discuss potential contamination to
the steel in the Plant. Greenacre calls for installation of replacement
Turbines by September/October 2020.
6 October 2018 CLAIMANT replies to RESPONDENT, requesting replacement of
the Turbines (or runners) by September/October 2020.
10 October 2018 RESPONDENT replies to CLAIMANT, stating that the Turbines
cannot be replaced ‘merely for the possibility’ they have contaminated
steel. RESPONDENT also cites lack of capacity to undertake
replacement.
1 December 2018 The Parties meet to discuss potential solutions. No agreement is
reached.
11 December 2018 Following refusal to replace the Turbines, RESPONDENT offers to
make preparations to, upon a finding of corrosion, repair the blades on
site or at RESPONDENT’s nearest factory.
31 July 2019 CLAIMANT issues Request for Arbitration.
30 August 2019 RESPONDENT issues Response to Request for Arbitration.

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SUMMARY OF ARGUMENT
1 RESPONDENT has been subjected to arbitration under an invalid Arbitration Agreement, in
circumstances where CLAIMANT’s allegations are lacking legal basis. CLAIMANT seeks to
compel RESPONDENT to produce, deliver and install two replacement R-27V Francis
Turbines. However, CLAIMANT has neither alleged nor proven that the existing Turbines are
non-conforming under the SA. Acting in good faith, RESPONDENT has honoured the SA
by proposing to bring forward the First Inspection of the Turbines by one year. Subsequently,
four issues arise:
2 First, the Tribunal does not have jurisdiction under the Arbitration Agreement, being Art. 21
SA, to hear the dispute, on the basis that: (I) the party’s autonomy in drafting the Arbitration
Agreement is restricted by the principle of Equal Treatment; (II) the Arbitration Agreement
violates the principle of Equal Treatment; and (III) such a violation of Equal Treatment creates
a salient risk that any arbitral award rendered will not be recognised in the enforcing
jurisdictions, i.e. Danubia, Mediterraneo and/or Equatoriana (Issue 1).
3 Second, the Tribunal should not order the exclusion of Prof. John, the expert suggested by
RESPONDENT, on the basis that: (I) the LCIA Rules does not empower the Tribunal to
dismiss a party-appointed expert; (II) even if it did, the alleged conflicts are insufficient to
dismiss Prof. John; (III) RESPONDENT reserves its right to challenge Ms Burdin’s
appointment as the arbitrator nominated by CLAIMANT; (IV) a decision to dismiss Prof. John
would prevent RESPONDENT presenting its case fairly; and (V) even if the Tribunal is
empowered to dismiss Prof. John, Ms Burdin cannot be present when the award is rendered
(Issue 2).
4 Third, the Tribunal should not find that RESPONDENT has breached the SA by delivering
non-conforming Turbines under Art. 35 CISG. This is on the basis that: (I) the Turbines are
conforming with the requirements set out by the SA; (II) the standard under Art. 35(2)(b)
CISG does not apply; and therefore (III) the Turbines are conforming with their ordinary
purpose under Art. 35(2)(a) CISG (Issue 3).
5 Fourth, the Tribunal should find that CLAIMANT is not entitled to request the delivery of
replacement turbines from RESPONDENT. This is on the basis that: (I) there has been no
fundamental breach under Art. 25 CISG; and (II) the alleged non-conformity can be remedied
through RESPONDENT’s reasonable offer to cure (Issue 4).

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SUBMISSIONS
ISSUE 1: THE TRIBUNAL SHOULD DECLINE JURISDICTION
BECAUSE THE ARBITRATION AGREEMENT IS INVALID
6 The Tribunal is competent in determining its own jurisdiction [Born 2015, p. 853; Waincymer, p.
114; Art. 16(1) ML; Art. 23.1 LCIA Rules].
7 RESPONDENT submits that should this Tribunal conclude the Arbitration Agreement is
valid and thereby, that it has jurisdiction, such a determination will have adverse implications
for the resolution of the merits of this dispute. Subsequently, RESPONDENT would be
denied a full and equal opportunity to present its case, contrary to the principle of equal
treatment as per Art. 18 ML [hereinafter Equal Treatment].
8 Thus, RESPONDENT respectfully submits that this Tribunal should decline jurisdiction as
the Arbitration Agreement is invalid. This is on the basis that: (I) the Parties’ autonomy in
drafting the Arbitration Agreement is restricted by Equal Treatment; (II) the Arbitration
Agreement violates Equal Treatment; and (III) such a violation creates a salient risk that any
award rendered by the Tribunal will not be recognised in the enforcing jurisdictions.
9 For the purposes of these Submissions, it is not disputed that the lex arbitri is Danubian
Arbitration Law (hereinafter DAL), which is a verbatim adoption of the ML. It is also not
disputed that the LCIA Rules apply [Art. 21 SA], and, that Danubia is a Contracting State of
the NYC [P.O. No. 1, p. 46, para. 4].
I. Equal Treatment Validly Restricts Party Autonomy in Drafting the
Arbitration Agreement
10 RESPONDENT recognises that party autonomy is paramount in international commercial
arbitration under both NYC and ML [Art. 19(1) ML; Born 2015, p. 788-91]. However, Equal
Treatment is a valid limitation on party autonomy [Art. 18 ML; Redfern, p. 317; Born 2015, pp.
793-4]. Art. 18 ML imposes an obligation on the Tribunal to afford the parties Equal Treatment
in the arbitral process. RESPONDENT thus submits that: (A) Equal Treatment applies to
challenges to the Tribunal’s jurisdiction; and (B) Equal Treatment is critical under DAL.
A. Equal Treatment Applies to Jurisdictional Challenges
11 CLAIMANT’s position is that party autonomy is not restricted by Equal Treatment, and that
the Parties themselves willingly agreed to the asymmetrical form of the Arbitration Agreement
[Cl. Memo, p. 3, para. 7]. On this reasoning, it appears that Equal Treatment only applies to
procedural rights of the Parties following the commencement of the arbitration, but not to
mediate the Parties’ prior conduct.

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12 However, RESPONDENT contends that Equal Treatment, properly understood, applies at

the time the election to arbitrate is made under the Arbitration Agreement and therefore
extends to protecting RESPONDENT against any asymmetry in accessing arbitration. For
instance, the Supreme Court of Poland has voided asymmetrical arbitration clauses on the basis
that a unilateral option granted to only one party is so unfair as to consequently impact their
standing procedurally, and their ability to present their case properly once the arbitration has
commenced [T.S.A Case; CIRS Case; Draguiev, p. 32].
13 In fact, RESPONDENT submits that a jurisdictional challenge is very much a question of
procedure, since the election to arbitrate constitutes conduct capable of affecting the arbitration
from the outset until such time as an award is rendered [Born 2014, p. 988; Fouchard, p. 647,
paras. 1197-8]. Additionally, the fact that the parties did not provide that the Tribunal should
render an award on its jurisdiction separate from an award on the merits implies that a
jurisdictional challenge cannot be separated from the resolution of the substantive questions in
this dispute [Born 2015, p. 991, Fouchard, p. 684, para. 1252]. In fact, a separate jurisdiction
award would incur unnecessary cost in time and money to parties, by effectively creating the
need for two separate proceedings.
14 Thus, it is only open to the Tribunal to conclude that Equal Treatment, even during the
negotiation and contractual-drafting stage, acts as a limitation on party autonomy because it
impacts not only the Tribunal’s decision on procedure and merits, but also the enforceability
of any award rendered on the merits [Draguiev, p. 32; Born 2015, p. 991; Fouchard, p. 684, para.
1252].
B. Equal Treatment is Critical under DAL
15 CLAIMANT suggests that ‘international judicial practice’ supports the position that
agreements which contradict national law or even public policy of a state are enforceable [Cl.
Memo, p. 3, para. 5]. However, this ignores the fact that the key jurisdictional basis of the rights,
duties and powers of arbitrators derives from the lex arbitri, i.e. DAL [Waincymer, p. 67; Reymond,
p. 3]. The Danubian Court of Appeal relied upon the decision of Siemens-Dutco in deciding that
Equal Treatment is of crucial importance under domestic law [Response, p. 28, para. 14]. In
fact, CLAIMANT concedes that ‘equality of parties in the formation of the tribunal’ forms part
of Danubian public policy [Cl. Memo, p. 3, para. 10].
16 However, CLAIMANT seeks to distinguish Siemens-Dutco from the facts before this Tribunal.
This is on the basis that the Parties had equal influence on the composition of the Tribunal, as
RESPONDENT was able to nominate its own arbitrator, Mr Deriaz [Cl. Memo, p. 4, paras. 11-
3; Fasttrack Letter, p. 25]. With respect, RESPONDENT’s position is that confining the

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application of Siemens-Dutco to the composition of a tribunal would be too restrictive an

interpretation of Equal Treatment. Siemens-Dutco was decided on the basis of the underlying
principle of Equal Treatment, and it is for this reason that the Danubian Court of Appeal relied
on Siemens-Dutco [Response, p. 28, para. 13].
II. The Arbitration Agreement Violates Equal Treatment
17 RESPONDENT submits the Arbitration Agreement is so asymmetrical that it violates Equal
Treatment. For a valid arbitration agreement, there must be a conferral of reciprocal and mutual
rights or obligations on both parties [Briggs, pp. 137-40; Dyna-Jet, para. 8]. However, the
Arbitration Agreement creates unequal opportunities for the Parties to resolve the dispute
before this Tribunal. This is because: (A) the availability of arbitration is subject to the whim
of CLAIMANT; (B) there is no ‘equal influence’ in choosing the appropriate forum for dispute
resolution; and (C) CLAIMANT attempts to control RESPONDENT’s procedural rights.
A. Availability of Arbitration is Subject to the Whim of CLAIMANT
18 RESPONDENT’s right to access dispute resolution is subject to the whim of CLAIMANT,
as is clear from the express words of the Arbitration Agreement and the nature of
CLAIMANT’s election to arbitrate.
19 Although the Arbitration Agreement permits RESPONDENT to commence litigation in the
courts of Mediterraneo, this right is always subject to CLAIMANT’s right to elect to arbitrate
[Art. 21.1 SA]. Hypothetically, had RESPONDENT initiated proceedings, this would likely
result in a stay of the litigation the moment CLAIMANT elected to refer the matter to
arbitration [Three Shipping; Law Debenture v Elektrim Finance]. The mere fact that
RESPONDENT is at arbitration now does not justify the fact that, under the SA, the power
to refer any dispute to arbitration is exercisable at the sole election of CLAIMANT [Rothschild;
Decision No. 71 of Supreme Court of Bulgaria]. In fact, CLAIMANT’s right to arbitrate under Art.
21.2 will always prevail over the shared right to litigate under Art. 21.1. This is not consistent
with the pro-arbitration approach of ML courts [ML, Part Two, p. 29].
20 In such circumstances, the Arbitration Agreement is potestative in nature as it depends ‘entirely
on the intention of only one of the Parties’ [Draguiev, p. 29]. Potestative clauses can exceed the
limits of party autonomy [Rothschild; Bulgarian Lending Case; Draguiev, p. 31]. This is compounded
by the fact that CLAIMANT operates in 100 countries and has an annual turnover 24 times
greater than that of RESPONDENT [P.O No. 2, p. 47, para. 1].
21 Further, CLAIMANT alleges that asymmetrical arbitration agreements are necessary because,
as an operator of hydro power plants, it relies heavily on its suppliers and therefore bears
significant risk under the Tender Contract [Cl. Memo, p. 6, para. 21]. However,

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RESPONDENT submits this cannot be the case since CLAIMANT themselves chose not to
pass on the risk from the Tender Contract to the SA and thereby to RESPONDENT [Cl.
Memo, p. 51, para. 26]. For example, CLAIMANT could have sought to ensure the SA made
express reference to the penalty clause under the Tender Contract [Cl. Ex. C6, p. 19, para. 7].
As CLAIMANT correctly notes, party autonomy is paramount, but the choice not to pass on
this risk reflects that CLAIMANT voluntarily assumed it [Born 2014, p. 1257].
B. There is No Equal Influence in Choosing the Appropriate Forum for Dispute
Resolution
22 RESPONDENT’s right to ‘equal influence’ in the arbitral procedure is restricted given that it
cannot participate in choosing the appropriate forum for dispute resolution.
23 The decision of Russian Telephone Company v Sony Ericsson is persuasive since it concerned an
asymmetrical choice of forum clause. Sony Ericsson obtained for itself the greater right to elect
between litigation and arbitration, whereas Russian Telephone Company had a limited right to
only litigate. The Supreme Court of Russia concluded that this clause violated Equal Treatment,
because ‘Sony Ericsson [gained] an advantage over Russian Telephone Company, since it is the
only one granted the right to choose the method of dispute resolution’ [Russian Telephone
Company v Sony Ericsson; see also Draguiev, p. 30]. Similarly, in Piramida, the same court upheld
the importance of equal rights in choosing the appropriate forum, highlighting that to provide
rights for one party to access dispute resolution whilst restricting the other reflects an
‘impairment’ on the parties’ rights.
24 Russian Telephone Company v Sony Ericsson is particularly relevant, as Equal Treatment is an
important aspect of Russian public policy which is not dissimilar to the facts before this
Tribunal in that Equal Treatment is critical to Danubian public policy [Asoskov & Kucher, p.
582]. Russian courts have defined the country’s public policy as concerning ‘the good faith and
equality of the parties entering into a private relationship, as well as, a proportionality between
the extent of civil liability and culpable wrong’ [ibid; Information Letter of HAC Presidium].
25 While Russian Telephone Company v Sony Ericsson has been criticised, RESPONDENT submits
that such criticism is irrelevant in this dispute. For example, Nasser argues that equality of
procedural rights does not apply to conduct prior to the commencement of dispute resolution
proceedings. However, RESPONDENT submits that Art 21.1 SA avoids this criticism, given
that RESPONDENT’s right to litigate can always be nullified by CLAIMANT exercising its
unilateral option to arbitrate under Art. 21.2 SA.
26 Ultimately, the dualism of the asymmetrical clause strips RESPONDENT’s right to
jurisdictional access, evincing an inequality in procedural rights [PMT Partners].

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C. CLAIMANT Attempts to Control RESPONDENT’s Procedural Rights

27 A claimant might argue that RESPONDENT voluntarily agreed to the asymmetrical
Arbitration Agreement in exchange for the limitation of liability [Art. 19 SA] and the entire
agreement clause [Art. 22.2 SA], as consideration under the Arbitration Agreement. However,
RESPONDENT submits there is no requirement for consideration under the applicable law
[Art. 3.1.2 UPICC], and in any case, an exchange of promises does not equate to mutuality.
28 A lack of mutuality can indicate further imbalance between the Parties [Armendariz; PMT
Partners]. This is for two reasons.
29 First, RESPONDENT submits the Arbitration Agreement is defective because CLAIMANT
insisted on its asymmetry to deliberately control RESPONDENT’s procedural rights. This is
evidenced by the fact that CLAIMANT tries to include asymmetrical arbitration agreements in
all of its contracts with its suppliers, and rejected RESPONDENT’s request to have a
symmetrical arbitration clause [P.O No. 2, p. 47, para. 2]. CLAIMANT uses imbalances in
procedural rights to its economic advantage, electing between arbitration and litigation when it
suits them [ibid]. For example, if CLAIMANT considers publicity to be in its interests, it will
elect for litigation but where it desires confidentiality, it can opt for arbitration [ibid].
30 Second, should RESPONDENT decide to litigate, it is confined to litigating before the courts
of Mediterraneo. This is disadvantageous to RESPONDENT given that Mediterraneo is the
place of the domicile of CLAIMANT. Additionally, Mediterraneo courts consider
asymmetrical clauses to be valid [Langweiler Letter, p. 41]. Hence, the inability to properly
challenge the validity of asymmetric clauses in Mediterraneo places a further restriction on
RESPONDENT in accessing a forum that will properly vindicate its claim of having unequal
dispute resolution rights [Draguiev, p. 32].
31 Thus, CLAIMANT can effectively control the entire dispute resolution process, displaying a
complete violation of the reciprocal rights and obligations ordinarily conferred on parties to
resolve disputes [Briggs, pp. 137-40]. It follows that the asymmetry manifested by the
Arbitration Agreement has strong implications for resolution of the merits of the dispute
before this Tribunal. Hence, CLAIMANT preserves imbalance between the Parties when
presenting its case in respect of Issue 3 and Issue 4.
III. Violation of Equal Treatment Creates Salient Risk of Non-Enforcement
of Any Arbitral Award in the Enforcing Jurisdictions
32 RESPONDENT submits that Equal Treatment is critical under DAL, and, comprises part of
Danubia’s public policy [Response, p. 28, para. 14]. Equal Treatment also comprises part of
Equatoriana’s public policy [P.O. No. 2, p. 54, para. 52], although it is unclear whether this is

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true of Mediterraneo [Langweiler Letter, p. 41, para. 2]. Thus, a non-adherence to the principle
of Equal Treatment creates a salient risk of non-enforcement of any arbitral award rendered
by this Tribunal in each of the relevant enforcing jurisdictions, i.e. Danubia, Equatoriana and
Mediterraneo.
33 In light of the above, RESPONDENT submits that: (A) the obligation to render an enforceable
award is a central element of arbitration; and (B) the award may become unenforceable for
being contrary to the public policy of the relevant enforcing jurisdictions.
A. The Obligation to Render an Enforceable Award is a Central Element of
Arbitration
34 With respect, the obligation to render an enforceable award is a central function of this Tribunal
[Waincymer, p. 97; Lew, p. 117]. The procedure shaped by the arbitrators must, from the very
beginning, aim to result in an enforceable award [Böckstiegel, p. 50; Waincymer, p. 97].
35 RESPONDENT acknowledges the views of numerous commentators that the duty to render
an enforceable award does not per se impact a decision on jurisdiction [Waincymer, p. 98; Jarvin,
p. 153; Platte, pp. 309-10]. Indeed, the Tribunal does have the power, under the competence-
competence principle, to decide its own jurisdiction and this duty should not automatically be
obviated because of a lack of enforceability [ICC Case 4695].
36 However, the Tribunal should not be ‘deaf’ to RESPONDENT’s concerns regarding the
enforceability of an award, even if conclusive weight is not given to the issue [Blessing, p. 206].
This is for two reasons.
37 First, the asymmetrical nature of the Arbitration Agreement means that issues of enforceability
will impact the Tribunal’s decision on its jurisdiction. Asymmetrical arbitration agreements, by
their very nature, confer exclusive benefits on one party, which ensures that one party gains
the benefit of greater recourse to methods to enforce its rights against the other’s assets [Draguiev,
p. 21]. Given the purpose of asymmetrical clauses is, in part, to secure an imbalance in
enforcement options, CLAIMANT’s unilateral option to elect arbitration simultaneously
includes the ability to enforce a potential award – this necessarily bears upon issues of
jurisdiction.
38 Second, the parties’ reasonable expectations, when entering arbitration, is to receive an
enforceable award at the end of the process. RESPONDENT should not be required to
expend resources responding to arbitration, at the sole election of CLAIMANT, when there
are doubts surrounding the enforceability of such awards [Platte, p. 308]. In addition, Art. 32.2
LCIA Rules requires that the Tribunal ‘make every reasonable effort to ensure that any award
is legally recognised and enforceable at the arbitral seat’.

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39 Therefore, the Tribunal ought to give weight to the issue of enforceability when deciding its
jurisdiction.
B. The Award May Become Unenforceable if Contrary to Public Policy
40 Should CLAIMANT seek to enforce any award rendered by this Tribunal, RESPONDENT
submits that enforcement may be refused as any such award would be contrary to the public
policy of the enforcing jurisdictions, i.e. Danubia, Equatoriana and Mediterraeno [Moses, p. 223].
41 If enforcement is sought in Danubia where RESPONDENT has 400 employees [P.O. No. 2,
p. 47, para. 47], the Danubian Courts will not be restricted to the public policy of the lex loci
situs, i.e. DAL [Fouchard, p. 3655]. It is well recognised that courts may consider international
public policy [Barley Case], as exhibited by the Danubian Court of Appeal in relying on Siemens-
Dutco to refuse the enforcement of an award from Mediterraneo [Response, p. 28, para. 14]. The
Tribunal may then be guided by the fact that while there is no precedent regarding asymmetrical
clauses in Danubia, Danubian Courts nevertheless consider Equal Treatment to be ‘of crucial
importance’ [Response, p. 28, para. 14].
42 If enforcement is sought in Equatoriana, RESPONDENT may have recourse to seek refusal
to recognise and enforce an award which violates the Equatoriana’s public policy, under Art.
V(2)(b) NYC and Art. 36(2)(b)(ii) ML [Response, p. 28, para. 13; P.O. No. 2, p. 54, para. 52].
CLAIMANT asserts that both NYC and ML demonstrate a pro-enforcement attitude [Cl.
Memo, p. 7, para. 24]. However, the public policy exception is clearly a limitation on this pro-
enforcement approach [Born 2009, p. 2620]. For instance, the case of Ledee v Ceramiche (as cited
by CLAIMANT) highlights that international public policy can be limiting if it ‘can be applied
neutrally on an international scale’ [Cl. Memo, p. 3, para. 5]. This extends to Equal Treatment,
forms a neutral basis upon which international public policy can limit the enforceability of an
award [Ledee v Ceramche, p. 187; Born 2009, p. 2622].
43 In response to the possibility of non-enforcement, CLAIMANT relies on the US District Court
case of Rhone v Lauro, noting that the possibility of RESPONDENT’s voluntary compliance with
any award justifies the rendering of an award, even if grounds for non-recognition may be
found [Cl. Memo, p. 7]. However, Rhone v Lauro presumes that ‘parties are satisfied with the
arbitrator’s decision’. This argument is somewhat circular as the election of voluntary
compliance rests on RESPONDENT. Neither the Tribunal, CLAIMANT, nor
RESPONDENT can themselves predict from the outset – before arbitration has commenced
– whether the ‘parties are satisfied with the arbitrator’s decision’ [Rhone v Lauro].
44 If enforcement was sought in Mediterraneo, refusal by Equatorianian courts to enforce awards
would automatically apply in Mediterraneo too [Moses, p. 223]. This is because there exists a

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bilateral enforcement agreement between the two states [P.O. No. 2, p. 54, para. 59].
Additionally, both Mediterraneo and Equatoriana have similar national law since both have
adopted the ML [ibid]. Hence, the bilateral enforcement agreement would likely be interpreted
in a way consistent with public policy [McLaughlin & Genevro, p. 272], which favours non-
enforcement.
CONCLUSION OF ISSUE 1
45 In light of the above, RESPONDENT respectfully requests this Tribunal to decline jurisdiction
and find the Arbitration Agreement is invalid due to its asymmetry, which exceeds the limits
of party autonomy by violating Equal Treatment in international commercial arbitration.
ISSUE 2: THE TRIBUNAL SHOULD NOT ORDER THE EXCLUSION
OF THE EXPERT SUGGESTED BY RESPONDENT, PROF. JOHN
46 RESPONDENT respectfully requests the Tribunal not to exclude Prof. John on the basis that:
(I) the LCIA Rules does not empower the Tribunal to dismiss a PAE; (II) even if it did, the
alleged conflicts are insufficient to dismiss Prof. John; (III) RESPONDENT reserves its right
to challenge Ms. Burdin’s appointment as the arbitrator nominated by CLAIMANT; (IV) a
decision to dismiss Prof. John would prevent RESPONDENT presenting its case fairly; and
(V) even if the Tribunal is empowered to dismiss Prof. John, Ms. Burdin cannot be present
when the award is rendered.
I. The LCIA Rules Are Silent on Dismissing PAEs
47 CLAIMANT is misguided in its request to the Tribunal to dismiss Prof. John, because the
Tribunal lacks explicit authority within the LCIA Rules to dismiss PAEs. CLAIMANT is
further misguided in seeking Prof. John’s dismissal on the basis of Arts. 22.1(iv-vi) LCIA Rules,
which concern rules of evidence but not the procedural question as to whether to dismiss Prof.
John as a PAE [Cl. Memo, pp. 14-5, paras. 57-8].
48 RESPONDENT believes there is no need to dismiss a PAE within the LCIA Rules, given that
Art. 22.1(vi) confers extensive powers on the Tribunal regarding rules of evidence [see also
IBA Rules]. Therefore, CLAIMANT’s argument that Prof. John must be dismissed is
ineffectual given that the Tribunal has the power to weigh the evidence on its merits
irrespective of any alleged conflict of interest. This is the preferred approach when a question
arises concerning the evidence or appointment of PAE’s [Burianski & Lang, p. 276].
49 Consequently, RESPONDENT submits that the Tribunal is not empowered to dismiss a PAE
because neither of the following two sources are available on the facts: (A) dismissing an
Arbitrator within LCIA Rules by analogy; and (B) within the inherent powers of the Tribunal.
A. The Power to Dismiss PAEs under LCIA Rules by Analogy is Inappropriate

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50 A claimant may allege that Arts. 18.3-4 LCIA Rules governing the exclusion of a legal
representative extend a fortiori to a PAE [Cl. Memo, p. 10, para. 38; Langweiler Letter, p. 41].
However, this is problematic as those provisions require that this Tribunal find that a PAE is
equal to a legal representative, under the LCIA Rules. This is contrary to the appointment of
an expert in principle, whose duty is to guide the Tribunal in their opinion rather than to
advocate for the appointing party’s position [Born 2014, pp. 2280-1].
51 Requirements for a PAE are inconsistent with the standards of a legal representative whose
role is to present the case of their client [Burianski & Lang, p. 272; Art. 3 IBA Guidelines; Art.
V(1)(b) NYC]. The IBA Rules introduces requirements under Art. 5.2 that PAEs provide a
statement of independence [Art. 5.2(c) IBA Rules] and a statement of their past and present
relationships with the Parties [Art 5.2(a) IBA Rules]. The commentary by the IBA on these
provisions explains that Art. 5.2(a) requires disclosure whereas ‘Art. 5.2(c) is intended to
emphasise the duty of each PAE to evaluate the case in an independent and neutral fashion
rather than to exclude experts with some connections to the participants or the subject matter
of the case’ [IBA Rules, p. 19].
52 Furthermore, the silence of the LCIA Rules on dismissing a PAE cannot be considered
unintentional. To equate PAEs to legal representatives by analogy would be contrary to the
drafters’ intent, especially given the significant difference between the IBA 1999 Rules and IBA
2010 Rules [Waincymer, p. 942].
53 For instance, taking into account the revision of Art. 5, as described in the commentary on the
revised text of the IBA 2010 Rules, it seems unlikely that the omission of an objection
procedure for PAEs is an unintentional gap. This means that allowing for an analogous
application to, for example, a legal representative or a Tribunal-appointed expert under the
IBA Rules Art 6.2, would be contrary to the purpose of the IBA Guidelines. On the contrary,
if the drafters of the 2010 version eliminated one of the differences between tribunal-appointed
experts and PAEs while keeping another one, this permits the conclusion that the other
difference was intentionally maintained [Burianski & Lang, pp. 272-3].
54 RESPONDENT invites the Tribunal to find that, as a consequence of the drafting of the IBA
Rules, and the silence of the LCIA Rules, that the argument by analogy to exclude Prof. John
is not within the scope of powers conferred by the LCIA Rules.
B. Even if the Tribunal Could Dismiss Prof. John Under its Inherent Powers, the
Circumstances are Insufficient to Trigger this Power
55 It has been held that a tribunal has the inherent power to uphold its integrity and ensure parties
have free and fair arbitrations. The ICSID Tribunal in Hrvatska adopted this argument, and

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while RESPONDENT accepts the legal basis, RESPONDENT questions their possible
application to Prof. John.
56 In Hrvatska, the tribunal based the exclusion of the respondent’s counsel on the tribunal’s
inherent powers because they shared the same chambers as the president of the tribunal, whilst
acknowledging that the ICSID Rules did not explicitly provide them the power to do so. This
exercise of powers was confirmed in Rompetrol in a limited sense – if the Hrvatska powers
existed, they were to be exercised only in ‘extraordinary circumstances … which genuinely
touch on the integrity of the arbitral process’. Therefore, if this LCIA-bound Tribunal were to
evoke similar principles, then it must find such ‘extraordinary circumstances’ that there is a
genuine threat to the Arbitral process.
57 However, it is important to acknowledge that, in relation to the LCIA, the mere fact that a
counsel for a party is from the same chambers as an arbitrator does not give rise to justifiable
doubts as to impartiality or independence [LCIA Reference No. UN97/X11]. Therefore, the
underlying factual scenario of Hrvatska which considered ‘extraordinary circumstances’ does
not appear to be of the same standard in LCIA proceedings.
58 Furthermore, RESPONDENT points to the case of Bridgestone (an ICSID case) as informing
what triggers the ‘extraordinary circumstances’ required to dismiss a PAE in the Hrvatska-sense.
In Bridgestone, the respondent’s PAE had previously met with Bridgestone and unknowingly
been provided with confidential materials, before the claimant elected another PAE. The
ICSID Tribunal here acknowledged that they could dismiss the PAE according to the Hrvatska
principles but found that even though the PAE had been provided confidential materials by
the claimant, this was not ‘extraordinary circumstances’ to trigger Hrvatska. If Bridgestone is not
circumstances worthy of dismissal, RESPONDENT respectfully submits that the tenuous
conflict of interest between Prof. John and Ms. Burdin is not ‘extraordinary’ to trigger such
powers. This is because, ultimately, the alleged conflict of interest of Prof. John does not
undermine the arbitration process, especially given the powers under Art. 22.1(iv-vi) LCIA
Rules to which CLAIMANT points [Cl. Memo, p. 14, para. 56].
59 Therefore, whilst the Tribunal under the LCIA Rules may have inherent powers to dismiss a
PAE, as a Tribunal upholding fundamental principles of arbitration, the circumstances here are
not extraordinary in the Hrvatska-sense to be triggered.
II. Even if the Tribunal was Empowered to Dismiss Prof. John, the Alleged
Conflicts of Interest are Insufficient for His Dismissal
A. The Relationship between Ms. Burdin and Prof. John Does Not Create a
Sufficient Conflict of Interest Warranting Prof. John’s Dismissal

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60 CLAIMANT alleges the relationship between Ms. Burdin and Prof. John is a conflict of
interest sufficient to warrant the Tribunal’s dismissal of Prof. John [Cl. Memo, p. 9, para. 32].
Here, the Tribunal should consider the IBA Guidelines as ‘best practise’, as stated by
CLAIMANT and which RESPONDENT accepts [Cl. Memo, pp. 9-10, para. 32, 42]. The IBA
Guidelines provide that disclosure of a potential conflict of interest does not imply or constitute
the existence of a conflict of interest, and, in turn the presumption of disqualification [IBA
Guidelines, p. 18]. Rather, disclosure of any relationship between the Parties is to be assessed
objectively from the perspective of a reasonable third person having knowledge of the relevant
facts and circumstances [ibid; see also Parsons, pp. 8-9]. The Tribunal must determine that there
are 'justifiable doubts as to the PAE’s impartiality and independence [IBA Guidelines, p. 18].
61 RESPONDENT invites the Tribunal to also consider the IBA Guidelines ‘Orange List’,
specifically, conflict 3.4.4 which covers situations where ‘[e]nmity exists between an arbitrator
and … or a witness or expert’ [IBA Guidelines, p. 25 emphasis added; see also Cl. Memo, p.9, para.
32].
62 Although, this ‘Orange List’ is subject to criticism, RESPONDENT respectfully submits that
the Tribunal should uphold it as Best Practice and adopt its test to find that an objective, third-
party observer would not believe that Prof. John’s patent dispute with Mr. Burdin can impact
his or Ms. Burdin’s conduct within the arbitration [Parsons, pp. 8-9; Redfern, p. 258; Art. 4(1)
CIArb Protocol; Born 2014, p. 2280].
63 Further, RESPONDENT emphasises that a PAE expert report is merely evidence to be
assessed on its merits [Art. 22.1(vi) LCIA Rules]. The report is not ‘binding the tribunal in any
way’, and, a tribunal cannot ‘delegate its obligation’ by adopting a report’s findings [Redfern, p.
313]. Hence, it would be inappropriate for this Tribunal to dismiss Prof. John on the basis of
his relationship with Ms. Burdin if it cannot impact their respective abilities to provide the
expert report and to weigh it on its merits.
B. Alternatively, Prof. John Should Not be Dismissed because of his Previous
Commercial Dealings with RESPONDENT
64 ‘Tribunals virtually never “disqualify” experts or exclude their testimony for lack of
independence’ because the rules of evidence and the powers of a Tribunal to consider the
evidence before them would override the conflict of interest in question [Born 2014, p. 2281;
Art. 22.1(iv-vi) LCIA Rules; Kantor, pp. 335-6; Karrer, p. 8] Therefore, CLAIMANT submits
that Prof. John’s presence is of no significance to the Tribunal, which is not a point which
CLAIMANT may argue but which is subject to the Tribunal’s own discretion [Cl. Memo, p. 13,
para. 49].

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65 CLAIMANT is misguided in arguing that Prof. John’s relationship and previous dealings with
RESPONDENT entitles the Tribunal to dismiss Prof. John [Cl. Memo, p. 13, para. 48]. Walde
suggests ‘that the independence of PAE witness is largely (but not completely) a fiction’ [Kantor,
p. 334; see also Born 2014, p. 2281]. The relationship between Prof. John and RESPONDENT
is professional, as described by CLAIMANT [Cl. Memo, p. 13, para. 48; P.O. No. 2, p. 49, para.
17]. Prof. John and RESPONDENT have had prior commercial engagements, but
RESPONDENT requests the Tribunal acknowledge that this does not raise ‘justifiable doubts’
under the terms of the IBA Guidelines, because a relationship between PAE and the party
themselves does not inherently result in partiality. Importantly, Art. 20(6) LCIA Rules provides
that there is no impropriety if a party interviews, among others, an expert before appointment
[see also Born 2014, pp. 2863-4; Art. 4(3) IBA Rules].
66 This argument is compounded by the absence of any mention of previous professional
relationships between a party and its expert in the IBA Guidelines 2014. Even if this
relationship is considered problematic, conflicts involving previous services for one of the
parties are limited to three years preceding the arbitration [IBA Guidelines, ‘Orange List’
conflict 3.1].
67 The relationship between a PAE and their appointing party cannot be described as wholly
independent [Waincymer, p. 942]. Kantor observes that experts are rarely engaged before there
has been questioning to determining whether their opinion is likely to be advantageous [Kantor,
p. 335; Waincymer, pp. 942-3]. CLAIMANT’s articulation that any PAE opinion should be
honest, objective and independent is true [Cl. Memo, p. 12, para. 46]. However, the presence of
a PAE can never be described as ‘wholly independent’ given the fact that a party appoints the
PAE; there will always be a relationship, if not one that has already been established [Waincymer,
pp. 942-3; Kantor, pp. 329, 335].
68 Dr. Karrer points out that in the IBA Rules, ‘it is quite clear that it is for the arbitral tribunal
to decide how much to believe a [PAE]’s report’ and, therefore, ‘even those who are biased
may still be helpful to arbitrators’ [p. 8; Kantor, pp. 335-6]. So, whilst CLAIMANT may seek to
dismiss Prof. John, it is more appropriate that the Tribunal consider Prof. John’s evidence on
its merits and weigh it accordingly [Karrer, p. 8; Art. 22.1(vi) LCIA Rules].
69 Therefore, RESPONDENT respectfully requests the Tribunal to find that Prof. John and
RESPONDENT’s relationship is not sufficient to trigger the ‘extraordinary circumstances’ in
the Hrvatska-sense, which is coloured by the higher threshold of previous LCIA rulings as
discussed [LCIA Reference No. UN97/X11; LCIA Reference No. 81160 cited in Qureshi, pp. 22-
3].

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C. Dismissing Prof. John, in Either Alleged Conflict of Interest, is Disproportionate

70 For this Tribunal to dismiss Prof. John would be to accept the Hrvatska principle, and in turn,
accept a potentially biased or partial PAE threatening the arbitral process. RESPONDENT
respectfully submits that this is a disproportionate response to the issue at hand [Burianksi &
Lang, p. 276].
71 It is contemplated that dismissal would be necessary if evidence adduced by the PAE was made
via illegal means, such as fraud or breach of confidentiality [Burianksi & Lang, p. 276; contra
Bridgestone]. Even so, such evidence would be inadmissible under both the LCIA Rules and IBA
Guidelines such that dismissing the PAE would not be necessary [Art. 22.1(vi) LCIA Rules;
Art. 5 IBA Rules]. As such, dismissing Prof. John would be disproportionate to the
circumstances before this Tribunal as well as contrary to contemplated procedures already in
place.
D. The Conflict of Interests Does Not Meet the Threshold to Evoke the Power to
Dismiss a PAE in These Circumstances
72 Finally, the ‘Orange’ Conflict of Interest before this Tribunal must subsequently be found by
to exceed the Hrvatska ‘extraordinary circumstances’ threshold, which RESPONDENT argues
is not open for it to find [see also Rompetrol; LCIA Ref. No. UN97/X11].
III. RESPONDENT Reserving its Right to Challenge Ms. Burdin’s
Appointment is Not in Bad Faith
73 CLAIMANT argues RESPONDENT’s behaviour is in bad faith [Cl. Memo, p. 10, paras. 35-7],
and not permissible under Art 10.3 LCIA Rules [Cl. Memo, p. 10, para. 35]. However,
RESPONDENT submits that the right to reserve its challenge to Ms. Burdin’s appointment
as arbitrator is not in bad faith. Further, the right arises under Art. V(1)(d) NYC.
74 Ms. Burdin has published two significant papers stating that mere suspicion of non-conformity
is sufficient to establish Art. 35 CISG [Cl. Memo, p. 10, paras. 33-4]. CLAIMANT argues this
does not undermine Ms. Burdin’s ability to assess the issues before this Tribunal. However,
RESPONDENT respectfully reserves its ‘right to challenge’ because Ms. Burdin’s publications
align with CLAIMANT’s submissions in regard to Art. 35 CISG, which is in issue before this
Tribunal [Fasttrack Letter, p. 42; P.O. No. 2, p. 48, para. 9; see infra Issue 3]. Prejudgment of
issues before a case undermines an arbitrator’s ability to act independently and impartially and
hence, allows for a right to challenge the arbitral award [Art. 5.3 LCIA Rules; Born 2009, pp.
2592, 2755-6].
75 RESPONDENT argues that the issue of prejudgment within proceedings is not one grounded
in bad faith, but a legitimate concern, especially concerning party-appointed arbitrators

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[Waincymer, p. 307-8]. Instances such as the Telekom Malaysia Case and Perenco have found that
prejudgment by arbitrators (either in failing to assess a case on its merits or in making public
comments on a proceeding’s issues) gives rise to justifiable doubts as to the impartiality of an
arbitrator, thus exposing an award to challenge [LCIA Reference No. UN7949; Lutrell, pp. 18-9].
76 Therefore, this Tribunal should see that Ms. Burdin’s pre-existing views on the matter of ‘mere’
suspicions raises concerns for RESPONDENT. Therefore, RESPONDENT acts in its best
interests and not in bad faith by reserving its right to challenge Ms. Burdin’s appointment.
IV. Dismissing Prof. John Infringes RESPONDENT’s Ability to Present Its
Case Fairly
77 As mentioned above, the Parties shall be treated in accordance with Equal Treatment [see supra
para. 10]. Accordingly, RESPONDENT submits dismissing Prof. John would infringe its
ability to present its case, constituting abuse of due process. CLAIMANT’s argument that
appointing another PAE would remedy the dismissal of Prof. John is incorrect because, by the
time of arbitration, Prof. John’s report will have been produced [P.O. No. 2, p. 54, para. 56].
The report will undeniably be relied upon by RESPONDENT; so to dismiss Prof. John will
unduly disadvantage RESPONDENT’s ability to present its case. It follow that the Tribunal
should allow Prof. John as RESPONDENT’s PAE and assess his report on its merits, in order
to afford ‘an equal, adequate opportunity to present one’s case … to an impartial tribunal which
applies regular, rational procedures’ [Cl. Memo, p. 14, paras. 53-4; Art. 2.1(iv-vi) LCIA Rules;
Born 2009, p. 2745; Luttrell, p. 2].
78 Born writes that cases where a party is misled or denied the opportunity to present evidence
provides sufficient grounds to challenge an arbitral award [Born 2009, p. 2753]. Therefore to
exclude Prof. John could result in a ‘violation of basic principles of procedural fairness’ [Born
2009, p. 2763] because ‘it is appropriate to [deny recognition of] an arbitral award if the
exclusion of relevant evidence deprives a party of a fair hearing’ [Karaha Bodas Co].
RESPONDENT may thus rely on Art. V(1)(d) NYC in seeking the refusal of recognition and
enforcement of the Tribunal’s award.
79 Therefore, to dismiss Prof. John on CLAIMANT’s baseless allegations of conflicts of interest
is to deny RESPONDENT of its ability to present its case as it sees fit, undermining the arbitral
award’s enforceability.
V. If the Tribunal Has the Power to Dismiss a PAE and Prof. John is Subject
to a Conflict of Interest Worthy of His Dismissal, then Ms. Burdin Cannot
be Present in the Handing Down of that Award

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80 RESPONDENT submits that even if this Tribunal was to find that, first, it has the power to
dismiss Prof. John, second, Prof. John should be dismissed, and, third, dismissal is procedurally
fair, Ms. Burdin cannot be preside over the arbitration, given her relationship with Prof. John.
81 It is generally recognised that no one should be the judge of their own case [Dr. Bonham’s Case;
Art. 10.6 LCIA Rules]. Should the Tribunal find that Prof. John’s relationship with Ms. Burdin
enlivens grounds for the former’s dismissal, then the latter’s reciprocal relationship would
preclude the Tribunal from being ‘impartial and independent’ on the same basis, given that Ms.
Burdin presides over the issues concerning both her and Prof. John [Art. 5.3 LCIA Rules].
82 The presence of Ms. Burdin as arbitrator will also undermine the enforceability of the award
as the presence of an arbitrator who is lacking impartiality or independence would be an
‘egregious breach’ of procedural fairness [Art. 5 (1)(b) NYC; Born 2009, p. 2763]. This
compounds RESPONDENTS’s right to challenge Ms. Burdin’s appointment [see supra paras.
60-3].
83 In light of the above, RESPONDENT respectfully requests the Tribunal find that it cannot
dismiss Prof. John because the conflicts alleged by CLAIMANT do not warrant dismissal, and
even if they did, the Tribunal lacks the power to do so under the LCIA Rules.
ISSUE 3: THE TRIBUNAL SHOULD FIND THAT THE TURBINES
ARE CONFORMING IN THE SENSE OF ART. 35 CISG
84 RESPONDENT respectfully requests that the Tribunal find the Turbines are conforming in
the sense of Art. 35 CISG. CLAIMANT contends the Turbines ‘most likely do not comply
with their corrosion resistant requirement’ [Request, p. 8 para. 24]. RESPONDENT submits
that: (I) this mere suspicion does not suffice to render the Turbines non-conforming with the
SA [Art. 35(1) CISG]. RESPONDENT further submits that: (II) no particular purpose was
made known to it; and therefore (III) the suspicion does not preclude conformity with the
Turbines’ ordinary purpose.
I. The Turbines Are Conforming Under Art. 35(1) CISG

85 RESPONDENT accepts CLAIMANT’s concession that the Turbines are prima facie
conforming in the sense of Art. 35(1) CISG [Cl. Memo, p. 16, para. 61]. It is important to
emphasise how a mere suspicion does not preclude the finding that the Turbines are
conforming under Art. 35(1) CISG.
A. To Establish Conformity Under Art. 35(1) CISG, the Usability of the Goods
Prevails Over the Agreed Features

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(1) The Standard for Art. 35(1) CISG

86 Under Art. 35(1) CISG, the seller must deliver goods which are of the quantity, quality and
description required by the contract. Art. 35(1) CISG therefore defines the contractual
provisions of the parties as the primary standard for conformity [Kroll, p.496; Schwenzer 1998,
p. 276; Brunner & Gottlieb, p. 228]. It follows that it is necessary to look to the SA to determine
the standard of conformity under Art. 35(1) CISG.
(2) The Standard in the SA
87 The seller’s primary obligation under the SA is to produce and deliver the Turbines of 300MW
each [Cl. Ex. C2, p. 11]. The preamble may be included as a standard of
conformity/incorporated into the contract [Art. 4.3 UPICC; Art. 8(1) CISG].
88 RESPONDENT therefore acknowledges that the Turbines must have increased corrosion and
cavitation resistance, consistent with its new and innovative design [Cl. Ex. C2, p. 11; Resp. Ex.
R1, p. 30]. Further, the increased efficiency must lengthen the time period between repair and
maintenance intervals, and conversely shorten the repair and maintenance intervals themselves
[Cl. Ex. C2, p. 11; Resp. Ex. R1, p. 30].
89 RESPONDENT is not a party to the Tender Contract between CLAIMANT and Greenacre
Council [Cl. Ex. C7, p. 20]. Therefore, the standard in the SA does not include the guarantee
of energy supply to avoid the penalty clause of the Tender Contract [Cl. Ex. C6, p. 19].
(3) Suspicions Based on Agreed Features
90 CLAIMANT contends that the Turbines ‘most likely’ do not comply with the corrosion
resistant requirement [Request, p. 8, para.24]. This is not proof of a defect, but a suspicion that
the Turbines may be non-conforming [Response, p. 28, para.15].
91 To determine whether a suspicion relating to agreed features renders goods non-conforming
[Art. 35(1) CISG], the usability of the goods prevail over fulfilment of the agreed features
[Schwenzer & Tebel, p. 158]. Generally, the agreed features of the contract prevail, and must be
complied with [ibid]. However, where a suspicion arises after the conclusion of a contract, there
is a contradiction between the agreed features and the goods’ usability created by subsequent
circumstances not envisaged by the parties [ibid; Argentinian Rabbit Case]. In this situation the
usability of the goods prevails over the agreed features [Schwenzer & Tebel, p. 158].
Consequently, where there is a suspicion relating to agreed features of goods, the goods are
conforming unless the suspicion impedes usability.
B. The Goods Are Conforming Under Art. 35(1) CISG
92 RESPONDENT submits that the goods conform under Art. 35(1) CISG because the suspicion
has not undermined the usability of the Turbines. This is the case for three main reasons.

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93 First, the Turbines have been functioning since 19 September 2018 [Request, p. 6 para. 11]. The
operation of the Plant was preceded by an inspection and approval by the relevant authority,
which included a test run of the turbines [ibid].
94 Second, the Turbines successfully passed their acceptance test two weeks prior to 3 October
2018 [Cl. Ex. C4, p. 15]. The passing of the acceptance test was the condition for the remainder
of the payment of the purchase price for the Turbines [Cl. Ex. C2, p. 12]. The successful
passing of the acceptance test indicates that the Turbines operate properly, have the agreed
output of 300MW, and that extraordinary corrosion was not detected [P.O. No. 2, p.47 para.3].
95 Third, RESPONDENT has made an offer to ensure it complies with its obligation to ensure a
power supply with minimal interruptions [Cl. Ex. C2, p. 11]. RESPONDENT has offered to
produce, at CLAIMANT’s expense, two turbine runners [Cl. Ex. C7, p. 21]. In the unlikely
event the Turbines must be replaced, RESPONDENT will repurchase the Turbines from
CLAIMANT and install them at its own expense [ibid]. This is consistent with the request of
Greenacre councillor in charge of the Plant, Mr. Crewdson [Request, p.7 para.16]. Under this
arrangement, RESPONDENT protects CLAIMANT’s ‘well understood interest in a smooth
operation of the plant with as little downtime as possible’ [Cl. Ex. C5, p. 16; Cl. Ex. C7, p. 21].
Therefore, even in the unlikely event that it transpires that the turbine runners must be
replaced, RESPONDENT would still maintain an energy supply with minimal downtime,
maximising the usability of the Turbines.
II. The Standard under Art. 35(2)(b) CISG Does Not Apply
96 RESPONDENT accepts CLAIMANT’s submission that Arts. 35(1) and 35(2) CISG apply
cumulatively and supplement each other [Cl. Memo, p. 16, para. 62; Flechtner , p. 580; Schwenzer
2016, p. 600]. Art. 35(2) CISG addresses the seller’s implied obligations [Lookofsky 2016, p.
110], in containing supplementary standards which apply unless excluded by the parties [Kroll,
p. 502]. Art. 35(2)(b) CISG prevails over art. 35(2)(a) CISG, as goods must be fit for a particular
purpose before their ordinary purposes [ibid p. 503].
97 CLAIMANT alleges the turbines are not fit for the particular purpose of meeting all the
obligations in the Tender Contract. For goods to be conforming under Art. 35(2)(b) CISG, the
particular purpose must have been communicated by the buyer to the seller, the buyer must
have relied on the skill and judgment of the seller, and that reliance must have been reasonable
[Kroll, p. 515; Schwenzer 2016, p. 605]. RESPONDENT submits that the standard in Art.
35(2)(b) CISG does not apply as the particular purpose alleged by CLAIMANT was not
expressly or impliedly made known to RESPONDENT.

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A. RESPONDENT Was Not Expressly or Impliedly Made Aware of the Alleged

Particular Purpose
98 The particular purpose of the goods must be expressly or impliedly made known to the seller
[Schwenzer 2016, p. 606; Kroll, p. 515]. RESPONDENT submits that it was not made aware of
the particular purpose of the Turbines [New Zealand Mussels Case].
(1) The Particular Purpose is to Guarantee a Permanent Availability and Avoid
Any Penalty
99 The particular purpose of the goods should be interpreted narrowly as it gives the buyer a
unilateral right to determine the content of the contract by informing the seller about its
particular purpose [Kroll, p. 515]. CLAIMANT contends that the particular purpose of the
Turbines is to fulfil CLAIMANT’s obligation under the Tender Contract [Cl. Memo, p. 16, para.
65].
100 More specifically, this particular purpose would be to guarantee the availability of the Plant for
at least 11 months per year [Request, p. 27, para. 9] and avoid penalty payment [Cl. Ex. C6, p.
19, para. 7; Kroll, p. 515]. This purpose requires RESPONDENT to ‘avoid or at least minimise
the need to rely on carbon energy’ [Request, p. 27, para. 9; Cl. Ex. C1, p. 10, para. 2].
(2) RESPONDENT Was Not Expressly or Impliedly Made Aware of This
Particular Purpose
101 RESPONDENT submits it did not have actual knowledge of the special purpose [Schwenzer
1998, p. 281], nor was it able to deduce the particular purpose from the information passed
[Kroll, p. 516].
102 RESPONDENT submits it did not have actual knowledge of the particular purpose. The
penalty clause to guarantee an availability of the Greenacre Plant of at least 335 days was
inserted into the Tender Contract on 3 August 2014 [Cl. Ex. C6, p. 18, para. 5] whilst the SA
was concluded more than two months later [ibid]. CLAIMANT did not inform
RESPONDENT about the subsequent changes in the SA [ibid]. Consequently,
RESPONDENT did not have actual knowledge of the newly formed special purpose to avoid
any penalty payment until January 2018 [P.O No. 2, p. 51, para. 26], 8 months after the SA was
concluded. Further, CLAIMANT did not subsequently seek an amendment to the SA to
increase the liability cap after accepting the penalty clause [Cl. Ex. C6, p. 19, para. 7] to pass on
or apportion that risk. It was therefore not reflected in the risk allocation under the SA, and
the purpose was not made known to RESPONDENT at the time the SA was concluded
because the purpose was only formulated after the SA was concluded.

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103 In the absence of actual knowledge, it would be sufficient if a reasonable seller could have
recognised the particular purpose from the circumstances [Schwenzer 1998, p. 281]. Further, a
reasonable buyer in CLAIMANT’s position could have interpreted the seller’s conduct as
accepting the particular purpose [Schwenzer, Hachem & Kee, p. 387]. RESPONDENT submits
that even under this objective test, it would not have constructive knowledge of the particular
purpose
104 A reasonable seller in RESPONDENT’s position would not be able to deduce the full
implication of the permanent availability based on the tender documents [Cl. Ex. C1, p. 10,
para. 3] and the SA. In the absence of any indication of change in the SA, no reasonable seller
would be in a position to expect a potential increase in the liability arising out of the unusual
penalty clause. Given the information regarding the ‘unusual penalty clause’ was not explicitly
or implicitly communicated to RESPONDENT, a reasonable buyer in CLAIMANT’s position
would not have inferred from the mere fact that RESPONDENT entered the SA that
RESPONDENT was accepting that particular purpose.
105 Furthermore, CLAIMANT downplayed the importance of the uninterrupted availability of the
turbines with its subsequent conduct [Schwenzer 1998, p. 281]. CLAIMANT rejected
RESPONDENT’s two construction proposals which will considerably improve the availability
of the Plant [Rsp. Ex. R2, p. 31, para. 5]. CLAIMANT was also not willing to incur extra costs
to guarantee the availability of the plant [ibid]. Thus, a reasonable seller could not have
reasonably inferred the full implication of that purpose from this conduct.
B. Even If This Particular Purpose Was Made Known to RESPONDENT,
CLAIMANT’s Reliance on RESPONDENT’s Skill and Judgment Was
Unreasonable
106 Should the Tribunal find, against RESPONDENT’s submission, that the particular purpose
was made known to it, RESPONDENT submits that CLAIMANT’s reliance on its skill and
judgment in relation to this particular purpose was unreasonable. More specifically,
CLAIMANT unreasonably expected RESPONDENT to provide a turbine free from defects
to avoid the penalty clause.
107 It is unreasonable to expect RESPONDENT to detect fraud two steps removed from it in the
supply chain. Trusted Quality Steel (hereinafter TQS), RESPONDENT’s supplier, was party to
a fraud along with TechProof, a well-known quality and certification entity [Cl. Ex. C3, p. 14].
To meet RESPONDENT’s particular purpose would have required RESPONDENT to
proactively detect fraud in the third-party production process. Although it is true that
RESPONDENT is a world-renowned producer of premium water turbines [Request, p. 4, para.

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2], it has no special knowledge and this requisite skill is unusual in its ‘branch of trade’ [Schwenzer
2016, p. 606].
III. The Turbines Are Conforming Under Art. 35(2)(a) CISG

108 Where Art. 35(2)(b) CISG does not apply, Art. 35(2)(a) CISG is the ‘final default rule’ for the
required quality of goods [Kroll, p. 504]. CLAIMANT emphasises the importance of Art.
35(2)(a) CISG in protecting the Parties’ reasonable expectation that goods are fit for their
ordinary purpose [Cl. Memo, p. 16, para. 62; Kroll, p. 503; Schwenzer 2016, p. 599].
RESPONDENT submits that CLAIMANT’s suspicion does not preclude the finding that the
Turbines are conforming with their ordinary purpose.
A. For a Suspicion to Render Goods Non-Conforming Under Art. 35(2)(a) CISG,
It Must Be Proven With a Reasonable Degree of Certainty
109 Under Art. 35(2)(a) CISG, goods must be fit for the purposes for which goods of the same
description would ordinarily be used [Schwenzer 1998, p. 279].
(1) Defining the Ordinary Purpose of the Turbines
110 For the Turbines to conform under Art. 35(2)(a) CISG, they need to be fit for ordinary
purposes and use [Schwenzer 2016, p. 600; Kroll p. 504; Schwenzer 1998, p.279]. Factors the
Tribunal should consider in determining the ordinary purpose of the Turbines include the
nature of the goods, advertisements made by the seller, the price of the goods and the nature
of the seller [Kroll, p. 505].
111 RESPONDENT agrees with CLAIMANT’s submission that the ordinary purpose of the
Turbines is to produce energy for the community of Greenacre with increased efficiency and
minimal downtime [Cl. Memo, p. 22, para. 101]. The increased efficiency derives from the
innovative design and materials used, which increases the corrosion and cavitation resistance
of the Turbines [Resp. Ex. R1, p. 30]. The minimal downtime is possible due to the increased
inspection and maintenance intervals exclusive to the R-27V Francis Turbines [ibid; Resp. Ex.
R2, p. 31, para. 2].
(2) Defining the Standard of the Turbines
112 It has been extensively discussed whether, in order to be fit for their ordinary purpose, goods
have to be of an average quality, of a merchantable quality, or of a reasonable quality [Kroll, p.
506; Rijn Case]. The dominant view is that goods must be of a reasonable quality, as this
interpretation supports a uniform interpretation of the CISG [Kroll, p. 507; Schwenzer 2016, p.
603; Rijn Case; Beijing Light].
113 Ordinarily, goods will not be of reasonable quality fit for their ordinary purpose where they
have defects which impede their material use [Maley, p. 113]. However, CLAIMANT’s

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submission is that the Turbines are ‘most likely’ not corrosion resistant [Request, p. 8, para. 24].
This is a suspicion, not a proven defect.
114 In principle, the mere suspicion that goods may be defective does not render them non-
conforming – they must actually not be fit for their ordinary purpose [Kroll, p. 513]. The only
circumstance where a suspicion in itself is able to render goods non-conforming is if it is
reasonable, based on past events or experience [Kroll, p. 513; Saidov, p. 104].
115 A suspicion is reasonable if it affects the market valuation of the goods, thereby impeding their
intended use by the buyer [Schwenzer & Tebel, p. 157; Frozen Pork Case]. Further, reasonable
suspicions have been held to render goods non-conforming if they are based on concrete facts,
or obvious [Argentinian Rabbit Case; Frozen Pork Case; Dry Rot Case]. This threshold is reached
where the suspected defect has been proven to a considerable extent at the place of origin prior
to the transfer of risk [Argentinian Rabbit Case; Frozen Pork Case; contra Austrian Wine Case].
116 It is RESPONDENT’s submission that only reasonable suspicions meeting the
aforementioned threshold could render goods non-conforming under Art. 35(2)(a) CISG.
B. CLAIMANT’s Suspicion is Not a Reasonable Suspicion and Cannot Render
the Goods Non-Conforming under Art. 35(2)(a) CISG
117 RESPONDENT submits that CLAIMANT has not adequately discharged its burden of
proving a reasonable suspicion, and in turn, non-conformity under Art. 35(2)(a) CISG [Request,
p. 8 para. 24; Kroll, p. 513; Rijn Case; contra Cl. Memo, p. 23, para. 108]. CLAIMANT only has a
mere suspicion due to the following considerations.
(1) The Market Valuation of the Goods is Not a Relevant Consideration
118 One determination of whether a suspicion is reasonable is whether it affects the market
valuation of the goods, impeding the buyer’s intended use [Schwenzer & Tebel, p. 157].
RESPONDENT submits that any market valuation of the Turbines does not impede
CLAIMANT’s intended use.
119 If the intended use of goods is resale or consumption, this intended use will be impeded if a
suspicion affects the goods’ market valuation. This is because the market will no longer value
the purchase or consumption of the goods, undermining the buyer’s interest in the goods
[Frozen Pork Case]. It is irrelevant whether the suspicion is actually true; the decisive factor is
the effect of the suspicion on the buyer’s ability to resell or trade the goods [Animal Feed Case;
Austrian Wine Case; Schwenzer & Tebel, p. 157].
120 In the situation at hand, CLAIMANT’s intended use of the turbines is not affected by the
market valuation. CLAIMANT intends to use the Turbines to supply hydro power through the
Greenacre Plant [Cl. Ex. C2, p. 12]. The market valuation of the Turbines itself will not impede

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CLAIMANT’s intended use, which is not resale or consumption [contra Frozen Pork Case;
Austrian Wine Case; Animal Feed Case].
121 CLAIMANT’s intended use will only be impacted if the suspicion prohibits the energy supply
to the community of Greenacre. The subsequent factors establish that this is not the case.
(2) The Riverhead Tidal Plant is Not Comparable to the Greenacre Plant
122 CLAIMANT relies on the problems at the Riverhead Tidal Plant as the basis of its suspicion
[Cl. Ex. C4, p. 15]. For the following two reasons, RESPONDENT submits that this event is
insufficient to sustain a reasonable suspicion.
123 First, the Riverhead Tidal Plant is a different project to the Greenacre Plant, using a different
charge of steel [Response, p. 28, para. 16]. This demonstrates that the crux of the issue – the steel
used in the Turbines at the Greenacre Plant – is not the same as that in the Riverhead Tidal
Plant. The corrosion in the latter plant therefore cannot sustain a suspicion as to corrosion in
the former Plant.
124 Second, even if the Riverhead and Greenacre turbines were manufactured with the same charge
of steel (which they are not), the environment of the Riverhead Tidal Plant makes it more
prone to corrosion. The Riverhead Tidal Plant is exposed to the far more corrosive salt-water
[Cl. Ex. C5, p. 16; Response p. 28, para. 16]. The design and manufacturing process of the R-
27V Francis Turbines makes it extremely unlikely that these turbines could be affected to the
same extent as the Riverhead Tidal Plant [Cl. Ex. C5, p. 16].
(3) The Probability of the Suspicion Materialising Does Not Support the Finding
of a Reasonable Suspicion
125 A suspicion is a fear founded on probability [Maley, p. 116]. RESPONDENT submits that the
probability of the suspicion materialising is insufficient to amount to a reasonable suspicion
for the following reasons.
126 First, there is a real possibility that the Turbines have been produced without using steel from
TQS, let alone inferior steel [P.O. No. 2, p. 51 para. 31]. An important rationale behind cases
where a reasonable suspicion has rendered goods non-conforming is that there are concrete
facts at the goods’ origin proving the suspicion to be true [Argentinian Rabbit Case; Frozen Pork
Case; Dry Rot Case]. Not all of RESPONDENT’s steel supply came from TQS [P.O. No. 2, p.
50, para. 24]. Contrary to CLAIMANT’s submission that facts forming the suspicion exist prior
to the passing of risk [Cl. Memo, p. 20, para. 90], RESPONDENT therefore submits that the
situation at hand does not feature the concrete facts necessary for the suspicion to be
reasonable.

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127 Second, there is only a 5% chance that the turbines must be replaced in their entirety [Cl. Ex.
C7, p. 21; P.O. No. 2, p. 55]. This is in the unlikely event that the Turbines have been
manufactured with steel of inferior quality.
128 Third, as a matter of policy, the risk posed by a mere suspicion arising after the passing of risk
from the seller to the buyer must be borne by the buyer. Otherwise, the seller may be held
liable for any number of suspicions arising in an infinite timeframe after delivery [Schwenzer &
Tebel, p. 161].
C. Even if the Suspicion is Reasonable, RESPONDENT is Still Not Liable
129 RESPONDENT submits that, even if the Tribunal finds that the suspicion is reasonable, it is
not liable for the suspicion. This is because the risk of change in market requirements only
arose after the delivery date of 20 May 2018 [see supra paras. 36-9; Schwenzer & Tebel, p. 160;
P.O. No. 2, para. 19].
130 Art. 36(1) CISG states that the seller is responsible for a non-conformity if it existed in nuce at
the time of the passing of risk, even if it became apparent only later [Art. 36(1) CISG; Schwenzer
& Tebel, p. 160]. In circumstances where there is a reasonable suspicion, the seller is only liable
if the risk of market valuation of the feature exists at the time the risk passed [Schwenzer & Tebel
p. 160].
131 CLAIMANT attempted to demonstrate that the factors forming the suspicion in relation to
the Riverhead plant incident already existed at the time of delivery [Cl. Memo, p. 20, paras. 91-
2]. However, this view does not find support in Schwenzer and Tebel as it would ‘undermine
the high threshold under Art. 36 of the CISG’ [p. 160].
132 In the current situation, the suspicion only arose after the risk passed [Cl. Ex. C4, p. 15]. This
means that any possible risk of change in market valuation could not have occurred at the time
of passing of risk [see supra paras 36-39]. According to Schwenzer & Tebel, the risk of change
of the market requirements after the passing of risk must be borne by CLAIMANT [p. 161].
133 RESPONDENT submits that the aforementioned factors render CLAIMANT’s suspicion
below the threshold of reasonable. Rather, there is only a mere suspicion, which is insufficient
to render the Turbines non-conforming under Art. 35(2)(a) CISG [Kroll, p. 513].
134 The Turbines are therefore fit for their ordinary purpose of providing power to the Greenacre
community with increased efficiency and minimal downtime [see supra para. 16]. Contrary to
CLAIMANT’s submission, a mere suspicion where the turbines are fit for their ordinary
purpose will still justify the premium paid of 10% [Resp. Ex. R1, p. 30].

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135 RESPONDENT respectfully requests that the Tribunal to find the turbines conforming in the
sense of Art. 35 CISG. CLAIMANT has not discharged its burden of proving that its suspicion
is reasonable. It is therefore only a mere suspicion, which is insufficient to amount to a non-
conformity. For this Tribunal to find otherwise would risk lowering the threshold of non-
conformity below that of a reasonable suspicion.
ISSUE 4: THE TRIBUNAL SHOULD FIND CLAIMANT IS NOT
ENTITLED TO REQUEST REPLACEMENT OF THE TURBINES
136 Under Art. 46(2) CISG, CLAIMANT is only entitled to request replacement turbines if it is
shown that non-conformity [see supra Issue 3] amounts to a fundamental breach under Art.
25 CISG, and timely notice of the request is made.
137 CLAIMANT seeks delivery of replacement turbines as the allegedly non-conforming Turbines
constitute a fundamental breach of the SA [Cl. Memo, p. 24, para. 116]. However, Respondent
submits that: (I) there is no fundamental breach under Art. 25 CISG; and subsequently (II) the
alleged non-conformity can be cured by repair, despite CLAIMANT’s request for replacement
under Art. 46(2) CISG. For clarity, RESPONDENT does not dispute that sufficient notice
was given by CLAIMANT.
I. There is No Fundamental Breach under Art. 25 CISG
138 RESPONDENT submits that there has been no fundamental breach under Art. 25 CISG.
139 CLAIMANT bears the burden of establishing the facts giving rise to fundamental breach
[Müller-Chen, p. 747], which is a two-limb test [Whittington, p. 433]. However, RESPONDENT
submits that CLAIMANT has not discharged this burden as: (A) there has been no substantial
deprivation; and, (B) even if there was substantial deprivation, such a result was not foreseeable.
A. There Has Been No Substantial Deprivation to CLAIMANT
140 CLAIMANT submits it is substantially deprived what it was entitled to expect under the SA
[Cl. Memo, p. 25] (hereinafter the Expectation Interest). RESPONDENT invites this Tribunal
to find otherwise, given that: (1) the threshold for ‘substantial deprivation’ is high; (2) that
threshold is not lowered by Art. 20(2)(d) SA; and (3) CLAIMANT has not been substantially
deprived of its Expectation Interest.
(1) The Threshold to Establish Substantial Deprivation is High
141 It is unclear what constitutes ‘substantial deprivation’ under Art. 25 CISG. This ‘uncertainty’
[Lookofsky 2000, p. 79] makes it difficult for the Parties ‘in case of dispute, to determine ex ante
[in forecast rather than in actuality] whether a breach was fundamental’ [Koch 1998, pp. 184-5].
Thus, it is for this Tribunal to ascertain the threshold for ‘substantial deprivation’ [ibid, p. 188].

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142 RESPONDENT submits that the threshold is high, for two reasons. First, ‘[t]he breach must
… nullify or essentially depreciate the aggrieved party’s justified contract expectations’ [Ferrari
et al, p. 601, para. 3], such that the contract cannot be performed [Whittington, p. 345; Shoes Case;
Curran, p. 233]. Second, the term ‘fundamental breach’ is not readily applied [Packaging Machine
Case, para. 7.1]. There is no presumption of fundamental breach which automatically arises
under Art. 25 CISG, particularly in cases where it is unclear whether or not the alleged breach
may qualify as fundamental [ibid]. This is justified by the primary purpose of the CISG, which
is to avoid termination by preserving contractual performance, i.e. favor contractus [Sono, p. 167;
Packaging Machine Case, para. 7.1; Meat Case, para. 2(b)].
(2) Art. 20(2)(d) SA Does Not Lower the Threshold for Substantial Deprivation
143 RESPONDENT submits that Art. 20(2)(d) SA does not constitute a lowering of the threshold,
contrary to CLAIMANT’S allegations [Cl. Memo, p. 29, paras. 146-7]. CLAIMANT argues that
by omitting the word ‘substantially’, the Parties agreed to contract out of the otherwise high
threshold set by the CISG [Art. 6(1) CISG; Cl. Memo, p. 29, para. 146].
144 However, if anything, Art. 25 CISG ‘supplements the terms of sale where the Parties omit to
consider a particular situation’ [Whittington, p. 428]. Had the Parties truly intended to lower the
threshold, the SA would have made express provision [CISG, Part II, p. 35].
145 Further, while Art. 20(2)(d) SA may constitute a reference to Art. 25 CISG, that is only insofar
as one of the Parties would seek to avoid the contract. Since Art. 20 SA is entitled ‘Termination
for Cause’, the ‘breaches’ listed therein apply to avoiding the SA, but not in seeking its
performance. In fact, the Parties did not consider termination would be likely, since avoidance
of the SA prevents CLAIMANT from performing its obligations under the Tender Contract
[P.O. No. 2, p. 47, para. 4]. Indeed, lowering the threshold would lead to absurdity, such that
virtually any non-conformity (whether serious or not) would constitute ‘substantial
deprivation’. This conflicts with the view that ‘[t]he most important principle is that the default
attains a certain minimum degree of seriousness’ [Schroeter, p. 417]. Thus, Art. 20(2)(d) SA
should not be too readily applied.
(3) CLAIMANT Has Not Been Substantially Deprived of Its Expectation Interest
146 CLAIMANT alleges the suspicion of the Turbines’ non-conformity may lead to: economic loss
higher than the value of any profit it would receive under the Tender Contract; a risk that
Greenacre will terminate the Tender Contract; and harm to CLAIMANT’s business reputation
[Cl. Memo, p. 25, para. 123] (cumulatively, the Expectation Interest) [see supra para. 89].
147 However, RESPONDENT submits the importance of CLAIMANT’s Expectation Interest
should be considered ‘along with the actual consequences of the breach’ [Whittington, p. 436].

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This is because the Parties’ interests (as expressed in the SA and/or inferred from the
circumstances of the transaction) are relevant in assessing the fundamentality of any alleged
breach [Schroeter, p. 421].
148 RESPONDENT argues further that the Tribunal can only conclude that CLAIMANT has not
suffered detriment, substantially depriving it of its Expectation Interest, for two reasons.
149 First, the Turbines can and are presently being used, in full performance of the SA. It is clear
from the SA (and the Preamble therein) that minimum downtime for service/maintenance and
a largely uninterrupted supply of hydro energy are critical to CLAIMANT [Art. 2 SA; Cl. Ex.
C2, p. 11]. However, since RESPONDENT contracted in order to support the Tender, the
use of the Turbines was of objective importance to both Parties such that CLAIMANT must
show the (alleged) defect prevents the use of the Turbines [Müller-Chen, p. 745; Cobalt Sulphate
Case, pp. 132, 135, 290, 298].
150 In this respect, RESPONDENT submits there is nothing on the facts supporting the
conclusion that the Turbines are not usable, and in fact, the Turbines are currently operating
in compliance with the SA. For example, the Turbines do not deviate from the contracted-for
product specifications set out in Annex A to the SA [P.O. No. 2, p. 8, para. 6]. Additionally,
CLAIMANT itself informed RESPONDENT on or about 3 October 2018 that the Turbines
had passed the Acceptance Test and have been producing energy without fault since installation
[Cl. Ex. C4, p. 15, para. 2]. Hence, the Turbines were and are still usable.
151 Second, the purpose of the SA remains achievable [Koch 1998, p. 214, Enderlein & Maskow, para.
3.4], pointing away from fundamental breach [Koch 2007, p. 126]. CLAIMANT has neither
alleged nor proven that the Turbines are affected by corrosion, precluding a finding of
substantial deprivation [Response, p. 26, para. 2].
152 According to Prof. John, there is less than a 5% chance the Turbines were constructed from
faulty steel requiring total replacement [Rsp. Ex. R1, p. 30]. It follows there remains a 95%
chance that CLAIMANT would not be substantially deprived [see e.g., CLOUT Case No. 171].
This is particularly the case given that the Riverhead incident, the catalyst for CLAIMANT’s
concern, is not comparable here, as the factors leading to replacement of the defective
Riverhead turbine are not present at Greenacre. For example, the exposure of the Riverhead
turbines to saltwater exacerbated the corrosion, necessitating replacement [Cl. Ex. C5, p. 16,
para. 4].
153 Contrastingly, the Turbines at Greenacre are exposed only to freshwater and were designed to
include specific anti-corrosive features [Rsp. Ex. R1, p. 30]. Both factors minimise the risk of
corrosive damage, suggesting the Turbines are more resistant to corrosion [ibid]. Additionally,

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RESPONDENT’s suggestion to bring forward the First Inspection by one year and perform
additional investigations at its own expense will prevent any immediate unplanned downtime
interrupting energy supply [Cl. Ex. C5, p. 16, paras. 3, 5]. Hence, the objects of the SA can still
be achieved.
154 Ultimately, RESPONDENT invites the Tribunal to conclude there has been no ‘substantial
deprivation’, particularly in light of the high threshold for substantial deprivation.
B. Even if CLAIMANT was Substantially Deprived, Such a Result Was Not
Foreseeable
155 Art. 25 CISG requires that RESPONDENT foresaw, and a reasonable person in
RESPONDENT’s position would have foreseen, that CLAIMANT would be substantially
deprived of its Expectation Interest. The burden of proving lack of foreseeability lies with
RESPONDENT, since foreseeability constitutes an exemption for breaching parties but does
not cumulatively go to proving substantial deprivation [Schroeter, p. 430, para. 26; Graffi, p. 339,
para. 17; Koch 1998, p. 264; Bonell, p. 215; Whittington, p. 436].
156 CLAIMANT alleges ‘substantial deprivation’ was foreseeable. However, RESPONDENT
invites this Tribunal to find otherwise on the basis that: (1) foreseeability should be determined
at the time of the conclusion of the SA; (2) RESPONDENT did not foresee the ‘substantial
deprivation’; and (3) a reasonable person in RESPONDENT’s position would not have
foreseen the ‘substantial deprivation’ either [Art. 25 CISG; Ferrari, p. 499].
(1) Foreseeability Should Be Determined at the Time of the Conclusion of the SA
157 While Art. 25 CISG does not specify the time to assess foreseeability, the dominant view is
that the relevant time is at the conclusion of the contract [Ferrari, p. 499; Schroeter, p. 434, para.
32; Graffi, p. 340, para. 19; Koch 2007, p. 229], being 22 May 2014 [Cl. Ex. C2, p. 13].
CLAIMANT submits that foreseeability can be assessed by reference to ‘information received
after’ conclusion of the contract [Cl. Memo, p. 28, para. 139]. However, RESPONDENT argues
CLAIMANT has not justified why this Tribunal should deviate from the dominant view, and
submits that it should reject this for two reasons.
158 First, fundamentality of breach relates directly to the Parties’ legitimate expectations as agreed
under the SA [Ferrari, p. 500]. It would be inappropriate for the Tribunal to consider
‘information received after’ conclusion, as that material could not reflect the Parties’ true
interests otherwise defined by the SA [ibid]. For example, CLAIMANT relies on its economic
interest given the ‘unusual penalty clause’ contained in the Tender Contract [Cl. Ex. C6, p. 18,
para. 5]. However, RESPONDENT was unaware of this the time it contracted with
CLAIMANT [see infra para. 161]. Additionally, awareness of the penalty clause in assessing

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‘substantial deprivation’ would neither objectively nor realistically reflect the expectations and
agreed risk allocation between the Parties.
159 Second, adopting the minority view would lead to legal uncertainty, as parties assume their
contract will be performed under the circumstances in which it was concluded. This is
consistent with both the principle of good faith [Graffi, p. 340, paras. 19-20] and the meaning
of foreseeability elsewhere in the CISG [see e.g., Art. 74 CISG; Koch 2007, p. 230].
(2) RESPONDENT Did Not Foresee the Substantial Deprivation
160 CLAIMANT alleges that ‘substantial deprivation’ was foreseeable by RESPONDENT as it
had knowledge of the penalty clause, the importance of the obligations, and the media coverage
of the project [Cl. Memo, p. 28, paras. 138-140]. However, RESPONDENT submits that, at the
time of concluding the SA, it did not foresee that a mere suspicion of a risk that the Turbines
might have been constructed from defective steel would substantially deprive CLAIMANT of
its Expectation Interest. This is for two reasons.
161 First, RESPONDENT had no knowledge of the penalty clause and was therefore unable to
foresee the related consequences. The penalty clause was inserted into the Tender Contract on
3 August 2014 [Cl. Ex. C6, p. 18, para. 5], which is 3 months after the SA was executed [Cl.
Ex. C2, p. 13]. Additionally, RESPONDENT is not privy to the Tender Contract [Cl. Ex. C7,
p. 20, para. 4] and was only informed of the penalty clause in January 2018 [P.O. No. 2, p. 51,
para. 26]. Hence, CLAIMANT’s unusually high quantifiable liability under the penalty clause
could not have been contemplated by the Parties at the time of contracting.
162 Second, RESPONDENT could not foresee that Greenacre Council would seek to terminate the
Tender Contract with CLAIMANT (unless an immediate replacement of the Turbines occurs
in 2020) [Rsp. Ex. R3, p. 33]. While RESPONDENT knew of the importance of a largely
uninterrupted supply of hydro energy at the time of the conclusion of the contract, it could not
have foreseen how Greenacre Council would respond, nor the serious political repercussions.
While RESPONDENT was given CLAIMANT’s tender documents, the facts do not indicate
that it directly dealt with Greenacre Council. RESPONDENT could not, thus, have foreseen
Greenacre Council’s extreme political reaction, in threatening to terminate the Tender
Contract.
(3) A Reasonable Person in RESPONDENT’s Position Would Not Have
Foreseen the Substantial Deprivation
163 Additionally, the Tribunal should have regard to the nature of the ‘specific trade sector … since
reasonableness may considerably differ from one sector to another’ [Graffi, pp. 339-40, para.
18; Schlechtriem 1998, p. 179]. RESPONDENT submits that a reasonable person in its position

MONASH UNIVERSITY
would not have foreseen ‘substantial deprivation’. Here, the reasonable person would be a
globally-known and multi-million dollar turbine producer with over 500 employees (hereinafter
a RP) [P.O. No. 2, p. 47, para. 1; Request, p. 4, para. 2].
164 Although penalty clauses are usually used in international commercial contracts [Schwenzer,
Hachem & Kee, pp. 635-6], a RP would not have foreseen such an unusual penalty clause. In fact,
the amount of penalty payable under the Tender Contract as amended is 1.5 times that of the
profit which CLAIMANT would receive each month [P.O. No. 2, p. 55]. To use CLAIMANT’s
wording, the penalty effectively acted as ‘a very unusual availability guarantee’ for Greenacre
[Cl. EX. C6, p. 18, para. 5]. Additionally, a RP, at the time of contracting, could not foresee
that the penalty clause would be made public to the Greenacre community [Cl. Ex. C6, p. 19,
para. 6].
165 Thus, a RP would not have foreseen that mere suspicion of a risk that the Turbines might have
been manufactured from inferior steel quality would substantially deprive CLAIMANT of its
Expectation Interest. Should the Tribunal find that RESPONDENT has established lack of
foreseeability, then CLAIMANT is precluded from seeking a remedy, including by way of
specific performance [Graffi, p. 338, para. 16].
II. The Breach Can Be Remedied by Repair
166 RESPONDENT submits CLAIMANT is not entitled to require replacement under Art. 46(2)
CISG. This is because RESPONDENT has made a reasonable offer to repair the Turbines
under Art. 48(1) CISG [Müller-Chen, p. 744, para. 23; Bridge 12.08], such that there can be no
fundamental breach [Brunner et al, p. 350; Huber, p. 684].
167 By exercising its right to cure under Art. 48(1) CISG, RESPONDENT can ‘choose the means
for performance’ [Brunner et al, p. 347; Huber, p. 684; Müller-Chen, p. 749, para. 35; Lookofsky
2012, p. 135]. Thus, RESPONDENT can defeat CLAIMANT’s preference for replacement
[Huber, p. 683, para. 42], as the offer to cure can ‘exclude any remedy of the buyer that is
inconsistent with the remedy chosen by the seller’ [Brunner et al, p. 347; Lookofsky 2012, p. 135;
Müller-Chen, p. 749, para. 35].
168 RESPONDENT acknowledges that Art. 48 CISG is subject to a buyer’s right to avoid a
contract under Art. 49(1) CISG. However, Huber explains (in detail) that the dominant view is
that curability is directly linked to fundamental breach, and the CISG’s history reveals that Art.
48 CISG was not intended to be reserved in favour of Art. 49 CISG [pp. 683, 699; Bach, 708-
10]. This is consistent with the principle of favor contractus [Whittington, p. 430].

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169 Thus, RESPONDENT submits that: (A) its offer to cure the alleged defect by repair is
reasonable compared to replacement; and (B) entitlement to specific performance is unlikely
under Danubian substantive law.
A. Offer to Cure by Repair is Reasonable Compared to Replacement
170 RESPONDENT submits that its offer to cure by repair is reasonable compared to total
replacement because: (1) repair would not cause unreasonable delay or inconvenience for
CLAIMANT; (2) repair is justified on economic grounds; and (3) repair is consistent with the
principle of favor contractus. The burden to prove that replacement is unreasonable lies with
RESPONDENT [Huber, p. 685, para. 46].
(1) Repair Would Not Cause Unreasonable Delay or Inconvenience
171 RESPONDENT submits the repair is reasonable, as it does not cause ‘unreasonable delay’ or
‘unreasonable inconvenience’ for CLAIMANT [Müller-Chen, p. 715; Huber 1998, p. 387] and
can be effected within reasonable time [Huber, p. 684]. This is for the following three reasons.
172 First, RESPONDENT recommended pulling forward the First Inspection by one year to 2020,
and expressed its willingness to bear the costs directly associated with facilitating that
inspection and the additional metallurgical examinations [Cl. Ex. C7, p. 21, para. 6; Response, p.
27, para. 8]. This is a responsive and commercially pragmatic plan, which accommodates
CLAIMANT’s ‘interest in a smooth operation of the Plant with as little downtime’ [Cl. Ex. C5,
p. 16, para. 6].
173 Second, there is no material difference in the Parties’ positions in terms of outcomes. The only
disagreement between the Parties concerns which party will bear the cost of the runners, in the
first instance. CLAIMANT has demanded replacement of the Turbines’ runners by 2020, as
this is ‘that part of the turbine which is exposed to the greatest stress’ [P.O. No. 2, p. 52, para.
34; Rsp. Ex. R3, p. 33, para. 2]. RESPONDENT has also proposed to replace the runners, if
required following First Inspection [Cl. Ex. C6, p. 21, para. 3].
174 Third, repair of the Turbines’ runners will not cause inconvenience to CLAIMANT. This is
because RESPONDENT offered to install the new runners by August 2020 onsite at
Greenacre, avoiding further delay or unplanned downtime [Cl. Ex. C6, p. 21, para. 3].
Additionally, RESPONDENT offered to simultaneously repurchase the existing runners from
CLAIMANT, should First Inspection reveal a need to replace them [Cl. Ex. C7, p. 23, para. 8].
Comparably, prefabrication of the Turbines would incur 3 months of unplanned downtime,
and it would be unreasonable to expect RESPONDENT to replace the Turbines by September
or October 2020 [ibid].

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(2) Repair is Justified on Economic Grounds

175 RESPONDENT submits that repair is also ‘justified on economic grounds’ [Huber, p. 684].
This is because the cost to repair is proportionate to the 70% risk that First Inspection may
reveal the need for repair [P.O. No. 2, p. 55]. Comparably, it would cost US$ 24,200,000 to
replace the Turbines in circumstances where there is only a 5% chance that replacement would
be required [P.O. No. 2, p. 55]. This is a remarkably low probability, and it is more likely that
First Inspection will reveal that there is no extraordinary corrosion or corrosion inducing
cavitation damage [Rsp. Ex. R2, p. 32, para. 8], according to the professional opinion of Prof.
John [Rsp. Ex. R1, p. 30]. Moreover, the cost to replace one Turbine is US$ 14,000,000 alone
[Rsp. Ex. R2, para. 8].
176 Additionally, the production of one turbine would cost RESPONDENT at least US$
14,000,000 [Rsp. Ex. R2, p. 32, para. 8]. The cost to replace two turbines would amount to at
least US$ 28,000,000, which equates to approximately 18.57% of RESPONDENT’s annual
turnover (US$ 180,000,000) [P.O. No. 2, p. 47, para. 1]. Even if RESPONDENT used all 10 of
its production lines to build new turbines, the production for each turbine would take 12
months [P.O. No. 2, p. 51, para. 28]. Additionally, the estimated downtime period is 12 months,
including downtime for First Inspection [P.O. No. 2, p. 55]. This is compounded by the fact
that the downtime calculated for the installation and deinstallation of just 1 turbine is
approximately 5-6 weeks [P.O. No. 2, p. 52, para. 37].
(3) Repair is Consistent with the Principle of Favor Contractus
177 Reasonably expedient replacement is paramount in effecting specific performance [Müller-Chen,
p. 744, para. 23; Lookofsky 2012, p. 131; Acrylic Case]. However, RESPONDENT submits that
it would not likely be capable of effecting replacement within the time necessary to ensure
performance of the SA in accordance with the principle of favor contractus, underlying the CISG.
178 The policy reason for inclusion of the fundamental breach requirement in Art. 46(2) CISG is
to keep the contract alive and avoid unnecessary transfers of goods [Huber, p. 681]. However,
in some circumstances, a claim for substitute delivery can cause unnecessary transfers of goods,
similar to a claim for avoidance of contract.
179 In this dispute, the transport of replacement turbines to the Plant would take 10 days whereas
transport to Equatoriana would take 24 days [P.O. No. 2, p. 47, para. 1]. Transport of the
replacement turbines would also take the same amount of time. In addition to the significant
financial implication of producing new turbines [see supra paras. 175-6], these transfers are
unnecessary in that they would cause significant delay to both parties, whereas remedy by repair
could be performed within reasonable time. Therefore, in order to keep the contract alive, such

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undesirable result can be avoided by restricting CLAIMANT to claims for repair and/or
damages.
180 Therefore, RESPONDENT’s offer to cure by repair is reasonable since repair would not cause
unreasonable delay or inconvenience to CLAIMANT, is justified on economic grounds and is
consistent with the principle of favor contractus.
B. Entitlement to Specific Performance is Unlikely under Danubian Substantive
Law
181 Art. 28 CISG confers autonomy on courts in ML countries not to order specific performance,
unless they otherwise would under the national law where the CISG does not apply. Since
Danubian substantive law is a verbatim adoption of UPICC, CLAIMANT alleges that under
Art. 7.2.2. UPICC, specific performance would be ordered [Cl. Memo, p. 34, para. 180].
182 However, RESPONDENT submits that the CISG operates to cover all ‘four corners’ of a
contract, and applies by default such that UPICC is only relevant where there is a ‘gap’ in the
CISG [Lookofsky 2005, pp. 88-9; Schlechtriem 1998, p. 93; Art. 28 ML]. RESPONDENT asserts
that there is no such ‘gap’ in respect of Art. 46(2) CISG, contrary to CLAIMANT’s argument
[Cl. Memo, p. 31, para. 162]. Rather, RESPONDENT is of the view that specific performance
is sufficiently governed by Art. 46(2) CISG such that there is no justification for applying Art.
7.2.2 UPICC. Additionally, Art. 28 CISG does not bind this Tribunal to consider whether a
Danubian court may or may not order specific performance [Schwenzer, Hachem & Kee, p. 572,
para. 43.55].
183 Even if this Tribunal were to find such a ‘gap’, RESPONDENT submits that both the CISG
and UPICC share the same interpretive principles, and must be interpreted and applied in
accordance with the principles of favor contractus, good faith, and reasonableness [Art. 7 CISG;
Art. 1.7 UPICC]. Thus, if this Tribunal were to conclude that replacement is inappropriate
under the CISG, it would reach the same conclusion under UPICC [Schwenzer 1999, p. 300].
184 For example, any ‘unreasonable burden’ on the seller to deliver substitute goods constitutes an
exception to requiring specific performance under Art. 7.2.2 UPICC [Schwenzer 1999, p. 295].
Reasonableness in this context extends to whether or not specific performance would be
unduly expensive to the seller, such as to cause the seller to suffer heavy loss, or where specific
performance would undermine the importance of good faith in international trade [Schroeter,
pp. 295-6; Co-Operative Insurance Society Ltd v Argyll Stores]. Importantly, UPICC empowers the
breaching party to choose the remedy to avoid scenarios where ‘replacement would cause
disproportionately high costs to the [seller] and the [buyer] can use the object of the contract
as intended after the repair’ [Schroeter, pp. 300-1]. As discussed above, replacement of the

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Turbines would constitute an unreasonable burden for RESPONDENT, but not CLAIMANT
[see supra Issue 4(II)(A)].
185 Additionally, RESPONDENT’s offer to cure is both reasonable and made in good faith [Koch
1998, pp. 188-9]. Since reasonableness in dealings is considered an element of good faith
[Whittington, p. 432], RESPONDENT submits that its offer to cure is reasonable in respect of
not only time and cost, but also in preserving CLAIMANT’s Expectation Interest [Huber, p.
685, paras. 46-7]. In mitigating loss, it has been found that preservation of goods can be
characterised as a ‘particular expression of the general requirement of good faith’ [Kastely, p.
596].
186 In light of the above, it is not open to this Tribunal to find that RESPONDENT committed a
fundamental breach under Art. 25 CISG. CLAIMANT is not therefore entitled to require
replacement turbines from RESPONDENT in reliance on Art. 46(2) CISG. Even if there was
fundamental breach, the Tribunal should find that, in the circumstances, the only appropriate
remedy is repair to, but not, replacement of the Turbines.

MONASH UNIVERSITY
REQUEST FOR RELIEF
For the above reasons, Counsel for RESPONDENT respectfully requests the Tribunal to make
the following orders:
(1) The Tribunal does not have jurisdiction to hear the dispute under the Arbitration
Agreement;
(2) CLAIMANT’s request to exclude Prof. John as the expert suggested by RESPONDENT
be denied;
(3) CLAIMANT’s request for delivery and installation of two substitute R-27 Francis turbines
is denied; and
(4) CLAIMANT bear the costs of this arbitration.

MONASH UNIVERSITY
INDEX OF AUTHORITIES
I. Rules & Laws

Brussels Recast Regulation (EU) No. 1215/2012 of the European Parliament and of the Council of 12
December 2012 on Jurisdiction and the Recognition and Enforcement of Judgments in Civil
and Commercial Matters (recast) [2012] OJ L 351/1
CISG UN Convention on Contracts for the International Sale of Goods, opened for signature
11 April 1980, 1489 UNTS 58 (entered into force 1 January 1988)
CIArb Protocols CIArb Protocols for the Use of Party-Appointed Expert Witnesses in
LCIA Rules London Court of International Arbitration Rules, 2014
IBA Rules International Bar Association Rules on the Taking of Evidence in

NYC UN Convention on the Recognition and Enforcement of Foreign Arbitral Awards,

opened for signature 10 June 1958, 330 UNTS 3 (entered into force 7 June
1959) (‘New York Convention’)
ML UN Commission on International Trade Law Model Law on International Commercial

Arbitration, GA Res 61/33, UN Doc A/40/17 (11 December 1985, adopted
4 December 2006) (‘Model Law’)
UPICC UNIDROIT, Governing Council, Principles of International Commercial Contracts,

95th sess, 18-20 May 2016
II. Commentaries
Bach, Ivo ‘Article 49’ in Kroll et al (eds), UN Convention on Contracts ¶168
for the International Sale of Goods (CISG) (Beck, Hart &
Nomos, 2nd ed, 2018)
Cited as: Bach
Blessing, Marc ‘The Law Applicable to the Arbitration Clause and ¶36
Arbitrability’ in Albert van den Berg (ed), Improving the
Efficiency of Arbitration and Awards: Forty Years of Application

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of the New York Convention ICCA Congress Series (Kluwer Law

International, 1999)
Cited as: Blessing
Bonell, Michael ‘The UNIDROIT Principles and CISG’ in An International ¶155

Restatement of Contract Law (Transnational Irvington, New
York 1997)
Cited as: Bonnell
Böckstiegel, Karl- ‘Major Criteria for International Arbitrators in Shaping an ¶34

Heinz Efficient Procedures’, (1999) Arbitration in the Next Decade,
ICC International Court of Arbitration Bulletin 50.
Cited as: Böckstiegel
Born, Gary B International Commercial Arbitration: Vol 1 (Kluwer Law ¶42,74, 77-
International, 2009) 8, 82
Cited as: Born 2009
Born, Gary B International Commercial Arbitration (Kluwer Law ¶13, 21,

International, 2nd ed, 2014) 50, 62, 64-
5
Cited as: Born 2014
Born, Gary B International Arbitration: Cases and Materials (Wolters Kluwer, ¶6, 10, 13,
2nd ed, 2015) 14
Cited as: Born 2015
Bridge, Michael The International Sale of Goods (Oxford University Press, ¶166
2017)
Cited as: Bridge
Briggs, Adrian ‘One-Sided Jurisdiction Clauses: French Folly and Russian ¶17, 31
Menace: Banque Edmond de Rothschild v X’ (2013) 2
Lloyds Maritime & Commercial Law Quarterly 137

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Cited as: Briggs
Brunner, Christoph ‘Article 35: Conformity of the Goods’ in Christoph ¶86

and Benjamin Brunner and Benjamin Gottlieb (eds), Commentary on the
Gottlieb UN Sales Law (CISG) (Kluwer Law International, 2019)
Cited as: Brunner & Gottlieb
Brunner, Christoph, ‘Article 46: Buyer’s Right to Compel Performance’ in ¶166-7

Diana Akikol and Christoph Brunner and Benjamin Gottlieb (eds),
Lucien Burki Commentary on the UN Sales Law (CISG) (Kluwer Law
Cited as: Brunner et al
Burianksi, Markus ‘“Challenges” to Party-Appointed Experts’ in Jörg Risse ¶48, 51,

and Alexander Lang et al. (eds.) (2017) 15(6) German Arbitration Journal 269 53, 70-1
Cited as: Burianski & Lang
Curran, Vivian ‘Interpretive Decisions Applying CISG: XI. OLG ¶142

Frankfurt/Main 5 U 164/90, September 17, 1991 (1993)
12 Journal of Law & Commerce
Cited as: Curran
Draguiev, Deyan ‘Unilateral Jurisdiction Clauses: The Case for ¶12, 14,
Invalidity, Severability or Enforceability’ (2014) 31 Journal 20, 23, 30,
of International Arbitration 19 37
Cited as: Draguiev
Enderlein, Fritz & International Sales Law (Oceana, 1992) ¶151

Dietrich Maskow
Cited as: Enderlein & Maskow

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Ferrari, Franco ‘Fundamental Breach of Contract Under the UN Sales ¶156-8

Convention: 25 Years of Article 25 CISG’(2005) 25
Journal of Law and Commerce 489
Cited as: Ferrari
Ferrari, Franco et al The Draft UNCITRAL Digest and Beyond: Cases, Analysis and ¶142
(eds) Unresolved Issues in the U.N. Sales Convention (Sweet &
Maxwell, 2004)
Cited as: Ferrari et al
Flechtner, Harry ‘Part II: International Sales Law Commercial Law, ¶96
Chapter 30: Excluding CISG Article 35(2) Quality
Obligations: The ‘Default Rule’ View vs the ‘Cumulation’
View’ in Kroll, S.M. et al (eds), International Arbitration and
International Commercial Law: Synergy, Convergence and
Evolution (Kluwer International Law, 2011)
Cited as: Flechtner
Gaillard, Emmanuel Fouchard, Gaillard, Goldman on International Commercial ¶13-4, 41

and John Savage Arbitration (Kluwer Law International, 1999)
(eds)
Cited as: Fouchard
Graffi, Leonardo ‘Case Law on the Concept of “Fundamental Breach” in ¶155, 157,
the Vienna Sales Convention’ (2003) 3 International Business 159, 163,
Law Journal 338 165
Cited as: Graffi
Huber, Peter ‘Article 46’ in Kroll et al (eds), UN Convention on Contracts ¶166-8,

for the International Sale of Goods (CISG) (Beck, Hart & 170-1, 178
Nomos, 2nd, 2018)
Cited as: Huber

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Huber, Ulrich ‘Art. 46’ in Peter Schelectriem (ed), Commentary on the UN ¶166, 171,
Convention on the International Sale of Goods (CISG) (Oxford 175
University Press, 2nd ed, 1998)
Cited as: Huber 1998
Jarvin, Sigvard ‘The Sources and Limits of Arbitrator’s Power’, (1986) ¶35
Arbitration International no.2 153
Cited as: Jarvin
Kantor, Mark ‘A Code of Conduct for Party-Appointed Experts in ¶64-5, 67-

International Arbitration – Can One be Found?’ (2010) 8
26(3) Arbitration International 323.
Cited as: Kantor
Karrer, Pierre ‘The Civil Law and Common Law Divide: An ¶64, 67-8
International Arbitrator Tells It Like He Sees It’ (2008)
Dispute Resolution Journal
Cited as: Karrer
Kastely, Amy H ‘Unification and Community: A Rhetorical Analysis of the ¶185

United Nations Sales Convention’ (1988) 8 Northwestern
Journal of International Law & Business 574
Cited as: Kastely
Koch, Robert ‘The Concept of Fundamental Breach of Contract under ¶141, 151,
the United Nations Convention on Contracts for the 155, 185
International Sale of Goods (CISG)’ in Pace (ed) Review of
the Convention on Contracts for the International Sale of Goods
(CISG) 1998 (Kluwer Law International, 1999)
Cited as Koch 1998
Koch, Robert ‘“Fundamental Breach”: Commentary on Whether the ¶151, 157,

UNIDROIT Principles of International Commercial 159
Contracts May Be Used to Interpret or Supplement Article

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25 CISG’ in John Felemegas (ed), An International Approach

to the Interpretation of the United Nations Convention on Contracts
for the International Sale of Goods (1980) as Uniform Sales Law
(Cambridge University Press, 2007)
Cited as: Koch 2007
Kroll, Stefan ‘Article 35’ in Kroll et al (eds), UN Convention on Contracts ¶86, 96-9,
for the International Sale of Goods (CISG) (Beck, Hart & 100-1, 108,
Nomos, 2nd, 2018) 110, 112,
114, 117,
Cited as: Kroll
133
Kucher, Asoskov & ‘Are Russian Courts Able to Keep Control Over the ¶24
Alyona Unruly Horse: The Long-Awaited Guidance of the
Russia’s Highest Commercial Court on the Concept of
Public Policy’ (2013) 30 Journal of International Arbitration
581
Cited as: Asosokov & Kucher
Lew, Julian et al Comparative International Commercial Arbitration (Kluwer Law ¶34

Cited as: Lew
Lookofsky, Joseph ‘Article 25: Avoidance and Fundamental Breach’ in J ¶141

Herbots and R Blanpain (eds) International Encyclopaedia of
Laws - Contracts (Kluwer Law International, 2000) 1
Cited as: Lookofsky 2000
Lookofsky, Joseph ‘Walking the Article 7(2) Tightrope Between CISG and ¶182
Domestic Law’ (2005) 25(87) Journal of Law and Commerce
87

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Lookofsky, Joseph ‘Convention on Contracts for the International Sale of ¶167, 177
Goods (CISG)’ (Kluwer Law International, 2012)
Lookofsky, Joseph ‘Chapter 5. Obligations, Risk and Remedies’ in J Herbots ¶96

et al. (eds) International Encyclopaedia of Laws Contracts
(Kluwer Law International, 2016) 95
Luttrell, Sam ‘Bias Challenges in International Commercial Arbitration: The ¶75, 77

Need for a ‘Real Danger’ Test’ (The Hague, Kluwer Law
International, 2009).
Cited as: Luttrell
Maley, Kristian ‘The Limits to the Conformity of Goods in the United ¶113, 125
Nations Convention on Contracts for the International
Sale of Goods’ 12 International Business & Trade Law Review
82-126 (2009).
Cited as: Maley
Mclaughlin, Joseph ‘Enforcement of Arbitral Awards under the New York ¶44
and Genevro, Laurie Convention - Practice in U.S. Courts’, (1986) 3 Int'l Tax &
Bus Law 249
Cited as: McLaughlin & Genevro
Moses, Margaret ‘The Principles and Practice of International Commercial ¶40, 44

Arbitration’ (Cambridge University Press, 2017, 3rd ed)
Cited as: Moses
Müller-Chen, Markus ‘Article 25’ in Ingeborg Schwenzer (ed), Schwenzer & ¶139, 147,
Schlechtriem Commentary on the Convention on Contracts for the 166-7, 171
International Sale of Goods (CISG) (Oxford University Press,
2016, 4th ed)

MONASH UNIVERSITY
Cited as: Müller-Chen
Nasser, Youssef ‘Are Unilateral Option Clauses Valid?’, Kluwer Arbitration ¶25
Blog (Blog Post, 13 October 2018)
Cited as: Nasser
Parsons, Luke Q.C. ‘Independence, Impartiality and Conflicts of Interest in Arbitration’ ¶60, 62
at 2nd IPBA ASIA-PAC Arbitration Day, 8th September
2016
Cited as: Parsons
Platte, Martin ‘Arbitrator’s Duty to Render Enforceable Awards’ (2003), ¶35, 38

20 Journal of International Arbitration 3
Cited as: Platte
Qureshi, Khawar QC Conflicts of Interest in International Arbitration: An Overview ¶69

and Catriona Nicol (Wildy, Simmonds & Hill Publishing, 2016).
Cited as: Qureshi
Redfern, Alan et al Law and Practice of International Commercial Arbitration ¶10, 62-3
(Sweet and Maxwell, 2004)
Cited as: Redfern
Reymond, Claude ‘Where is an Arbitral Award Made?’ (1992) 1(3) Law ¶15
Quarterly Review 108
Cited as: Reymond
Saidov, Djakhongir Conformity of Goods and Documents: The Vienna Sales ¶114
Convention (Hart Publishing, 2015) 104
Cited as: Saidov
Schlechtriem, Peter ‘Art. 25’ in Peter Schelectriem (ed), Commentary on the UN ¶163, 182
Convention on the International Sale of Goods (CISG) (Oxford
University Press, 2nd ed, 1998)

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Cited as: Schlechtriem 1998
Schroeter, Ulrich G ‘Article 25’ in Ingeborg Schwenzer (ed), Schwenzer & ¶145, 147,
Schlechtriem Commentary on the Convention on Contracts for the 155, 157,
International Sale of Goods (CISG) (Oxford University Press, 184
2016, 4th ed)
Cited as: Schroeter
Schwenzer, Ingeborg ‘Suspicions, mere suspicions: non-conformity of the ¶91, 115,

and David Tebel goods?’ (2014) 19(1) Uniform Law Review 152 118-9,
128-32
Cited as: Schwenzer & Tebel
Schwenzer, Ingeborg ‘Art. 35’ in Peter Schelectriem (ed), Commentary on the UN ¶86, 101,
Convention on the International Sale of Goods (CISG) (Oxford 103, 105,
University Press, 2nd ed, 1998) 109-10
Cited as: Schwenzer 1998
Schwenzer, Ingeborg ‘Specific Performance and Damages According to the 1994 ¶183-4
UNIDROIT Principles of International Commercial
Contracts’ (1999) 1(3) European Journal of Law Reform 289
Schwenzer, Ingeborg ‘Art. 35’ in Ingeborg Schwenzer (ed), Schwenzer & ¶96-8,
Schlechtriem Commentary on the Convention on Contracts for the 107-8, 110,
International Sale of Goods (CISG) (Oxford University Press, 112
2016, 4th ed)
Schwenzer, Ingeborg, Global Sales and Contract Law (Oxford University Press, ¶103, 164,
Pascal Hachem, and 2012). 182
Christopher Kee
Cited as: Schwenzer, Hachem & Kee
Sono, Hiroo ‘The Diversity of Favor Contractus: The Impact of the CISG ¶142
on Japan’s Civil Code and its Reform’ in Ingebord
Schwenzer and Lisa Spagnolo (eds), Towards uniformity : the

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2nd annual MAA Schlechtriem CISG conference (Eleventh

International Publishing, 2011)
Cited as: Sono
Waincymer, Jeffery Procedure and Evidence in International Arbitration (Kluwer ¶6, 15, 34-
Law International, 2012) 5, 52, 67-8,
75
Cited as: Waincymer
Whittington, ‘Reconsidering Domestic Sale of Goods Remedies in Light ¶139, 142,

Nicholas of the CISG’ (2006) 37 Victoria University of Wellington Law 145, 147,
Review 421 155, 168
Cited as: Whittington

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INDEX OF CASES
Cited as: Reference:
AUSTRALIA
PMT Partners PMT Partners PMT Partners Pty Ltd v. Australian National ¶26, 28
Parks & Wildlife Service (1995) 184 CLR 301
BULGARIA
Bulgarian Lending Decision No. 71 under Commercial Case No. 1193/2010, ¶19-20
Case (Second Commercial Chamber of the Supreme Court of
Cassation) 2 Sep. 2011.
FRANCE
ICC Case 4695 Unknown Parties (International Chamber of Commerce) of 1984 II ¶35
Collection of ICC Arbitral awards (1994).
Rothschild Mme X v. Banque Privee Edmond de Rothschild [Cour de ¶19-20

Cassation] 26 Sep. 2012 reported in [2013] ILPr 12 11-
26022
Siemens-Dutco Siemens AG and BKMI Industrienlagen GmbH v. Dutco ¶15, 16, 41

Construction Co, Cour de cassation [French Court of
Cassation], 89-18.726, 7 January 1992 reported in Bull civ I
n˚ 2; Rev. arb 1992.470
GERMANY
Acrylic Case Oberlandesgericht [Provincial Court of Appeal] 31 January ¶177

1997, 2 U 31/96
Animal Feed Case Oberlandesgericht, [Higher Regional Court Oldenburg] 18 ¶119-120

June 2013, 12 U 26/13

MONASH UNIVERSITY
Argentinian Rabbit Bundesgerichtshof [Federal Supreme Court] 16 April 1969, ¶91, 115, 126
Case NJW 1969, 1171–2.
Austrian Wine Bundesgerichtshof [Federal Supreme Court], 23 November ¶115, 119,

Case 1988, NJW 1989, 218–20. 120
Barley Case Judgment of 18 January 1990, XVII Y.B. Comm. Arb. 503, 505 ¶41
(German Bundesgerichtshof) (1992).
CLOUT Case No. Bundesgerichtshof [Federal Supreme Court], 3 April 1996, ¶152
171 VIII ZR 51/95.
Dry Rot Case Bundesgerichtshof [Federal Supreme Court], 7 February 2003, ¶115, 126
NJW-RR 2003, 772-3.
Frozen Pork Case Bundesgerichtshof [Federal Supreme Court], 2 March 2005 ¶115, 119,
[VIII ZR 67/04] 120, 126
New Zealand Bundesgerichtshof [Federal Supreme Court] 8 March 1995 ¶98

Mussels Case [VIII ZR 159/94]
Cobalt Sulphate Bundesgerichtshof [Federal Supreme Court] 3 April 1996 [VIII ¶149
Case ZR 51/95]
Shoes Case Landgericht [District Court Berlin] 15 September 1994 [52 S ¶142
247/94]
INTERNATIONAL
Bridgestone Bridgestone Licensing Services, Inc. and Bridgestone Americas, Inc. v. ¶58, 71
Republic of Panama (ICSID Arbitral Tribunal, Case No.
ARB/16/34, 13 December 2018)
Hrvatska Hrvatska Elektroprivreda, d.d. v. The Republic of Slovenia (ICSID ¶55-9, 69, 72
Arbitral Tribunal, Case No ARB/05/24, 6 May 2008)
LCIA Parties Unknown, LCIA Reference Number UN97/X11, ¶57, 69, 72

UN97/X11 Decision Rendered 5 June 1997

MONASH UNIVERSITY
LCIA UN7949 Parties Unknown, LCIA Reference Number UN7949, 12 ¶75

December 2007
LCIA 81160 Parties Unknown, LCIA Reference Number 81160, Decision ¶69
Rendered 28 August 2009
Perenco Perenco Ecuador Limited v Republic of Ecuador and Empresa ¶75

Estatal Petroles del Ecuador (ICSID Case No. ARB/08/16 12
July 2001)
Rompetrol The Rompetrol Group N.V. v. Romania (ICSID Arbitral ¶56, 72

Tribunal, Case No ARB/06/3, 14 January 2010)
NETHERLANDS
Rijn case Netherlands Arbitration Institute, 15 October 2002, Case No. ¶112, 117
2319, CISG- online 740
Telekom Malaysia Republic of Ghana v Telekom Malaysia, District Court of The ¶75
Case Hague, 18 October 2004, HA/RK/2004.667
POLAND
T.S.A Case Decision Decision of 19/10/2012, V CSK 503/11 (Supreme Court of ¶12
of 19/10/2012 Poland).
CIRS Case of Decision of 24/11/2010, II CSK 291/10 (Supreme Court of ¶12

24/11/2010 Poland).
RUSSIA
Piramida Piramida LLC v BOT LLC (Chamber on Economic ¶23

Disputes of the Supreme Court of Russia, Russian
Supreme Court) Case No. A621635/2014 24 Sep. 2014.

MONASH UNIVERSITY
Russian Telephone Russian Telephone Company v. Sony Ericsson Mobile ¶23

Company v Sony Communications Rus Ltd Liability Co (Supreme Arbitration
Ericsson (Commercial) Court of Russian Federation) Decision No
1831/12 19 Jun. 2012
SINGAPORE
Dyna-Jet Wilson Taylor Asia Pacific Pte v. Dyna-Jet Pte Ltd [2017] 2 ¶17
SLR 362
SWEDEN
Beijing Light Beijing Light Automobile Co Ltd v. Connell Limited ¶112

Partnership, (The Arbitration Institute of the Stockholm
Chamber of Commerce, Stockholm) Sweden Jun. 5,
1998
SWITZERLAND
Meat Case E.K., L. und A. v. F (Bundesgericht) 4C.179/1998/odi, 28 ¶142

October 1998.
Packaging Machine Case Unknown Parties (Bundesgerichtshof) 4A_68/2009, 18 May ¶142

2009.
UNITED KINGDOM
Co-Operative Insurance Co-Operative Insurance Society Ltd v Argyll Stores [1997] ¶184
Society UKHL 17.
Law Debenture Trust Law Debenture Trust Corp PLC v Elektrim Finance BV, ¶19
Elektrim SA, Concord Trust [2005] EWHC 1412

MONASH UNIVERSITY
Dr. Bonham's Case Thomas Bonham v College of Physicians (1610) 77 Eng. Rep. ¶81
638
Three Shipping NB Three Shipping LTD v. Harebell Shipping Ltd (2004) ¶19
All ER 152
UNITED STATES OF AMERICA
Armendariz Armendariz v Foundation Health Pscyhcare Services, 24 Cal. ¶28

4th 83 (Cal, 2000).
Karaha Bodas Co Karaha Bodas Co v. Perusahaan Pertamban, 364 F.3d 274 ¶78
(5th Cir. 2004), Court of Appeals for the Fifth Circuit
Ledee v Ceramiche M. Sylvain Ledee, et al v. Ceramihe Ragno, et. al. Defendants ¶42-3
United States District Court 684 F2d 184, D. Puerto
Rico 16 November 1981
Rhone v Lauro Rhone Mediterranee Compagnia Francese di Assicurazioni E ¶43

Riassicurazioni v. Achille Lauro, d/b/a Achille Lauro
Armatore, 712 F2d 50 (3rd Cir. 1983).

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27th Annual Willem C.

Vis International Commercial Arbitration Moot

MEMORANDUM FOR RESPONDENT

COUNSEL FOR RESPONDENT

Moe Ayman · Murphy Bong · Samira Lindsey

Joseph McDonald · Dave Yan Sima · Lorena Stents

MEMORANDUM FOR RESPONDENT 2

I. The Turbines Are Conforming Under Art. 35(1) CISG ........................................................................ 23

MEMORANDUM FOR RESPONDENT 3

(2) Repair is Justified on Economic Grounds .................................................................................. 39

MEMORANDUM FOR RESPONDENT 4

Cl. Ex. CLAIMANT’s Exhibit

Cl. Memo. CLAIMANT’S Memorandum of Argument filed in this proceeding on 5

ECHR European Convention on Human Rights

e.g. exempli gratia (for example)

Greenacre Plant Greenacre Pump Hydro Power Project

IBA Rules IBA Rules on the Taking of Evidence

IBA Guidelines IBA Guidelines to Conflicts of Interest in International Arbitration

ibid ibidem (in the same place)

i.e. Id est (that is to say)

LCIA London Court of International Arbitration

LCIA Rules LCIA Arbitration Rules

ICSID International Centre for Settlement of Investment Disputes

MEMORANDUM FOR RESPONDENT 5

ML UNCITRAL Model Law

NYC New York Convention

PAE Party Appointed Expert

Parties CLAIMANT and RESPONDENT

P.O. Procedural Order

Response RESPONDENT’s Response to Request for Arbitration

Request CLAIMANT’s Request for Arbitration

Rsp. Ex. RESPONDENT’S Exhibit

Tender Invitation to tender for construction and operation of the Plant

Tender Contract Contract between CLAIMANT and Council of Greenacre

Turbines R-27V Francis Turbines delivered by RESPONDENT

UNCITRAL The United Nations Commission on International Trade Law

UPICC UNIDROIT Principles of International Commercial Contracts

MEMORANDUM FOR RESPONDENT 6

MEMORANDUM FOR RESPONDENT 7

MEMORANDUM FOR RESPONDENT 8

MEMORANDUM FOR RESPONDENT 9

12 However, RESPONDENT contends that Equal Treatment, properly understood, applies at

MEMORANDUM FOR RESPONDENT 10

application of Siemens-Dutco to the composition of a tribunal would be too restrictive an

MEMORANDUM FOR RESPONDENT 11

MEMORANDUM FOR RESPONDENT 12

C. CLAIMANT Attempts to Control RESPONDENT’s Procedural Rights

MEMORANDUM FOR RESPONDENT 13

MEMORANDUM FOR RESPONDENT 14

MEMORANDUM FOR RESPONDENT 15

MEMORANDUM FOR RESPONDENT 16

MEMORANDUM FOR RESPONDENT 17

MEMORANDUM FOR RESPONDENT 18

MEMORANDUM FOR RESPONDENT 19

MEMORANDUM FOR RESPONDENT 20

C. Dismissing Prof. John, in Either Alleged Conflict of Interest, is Disproportionate

MEMORANDUM FOR RESPONDENT 21

MEMORANDUM FOR RESPONDENT 22

I. The Turbines Are Conforming Under Art. 35(1) CISG