MEMORANDUM FOR THE RESPONDENT

REPRESENTED BY TEAM MAURITIUS 2

ON BEHALF OF AGAINST

YTZ Shoes, Trans-Pacific,

RESPONDENT CLAIMANT
 I. The Tribunal Should Hold This As CLAIMANT’S Failure To Meet The Standard Of Proof
Regarding This Transaction In The Absence Of Production Of Such Evidence

1. CLAIMANT has failed to meet the standard of proof in proving the existence of text messages

regarding this transaction. The burden of proof lies with the claimant because it is the party asserting the

claim1. This principle is under UNCITRAL rules Article 27 : Each party shall have the burden of proving

the facts relied on to support its claim or defense2. As Trans-Pacific is making the claim that there is this

evidence of text messages to confirm the details of this transaction on 20 June 20223, the burden of proof

in this case lies with CLAIMANT to provide this evidence

2. IBA rules article 9.2 (a): The Arbitral Tribunal shall, at the request of a Party or on its own motion,

exclude from evidence or production any Document, statement, oral testimony or inspection, in whole or

in part, for any of the following reasons: (a) lack of sufficient relevance to the case or materiality to its

outcome4. RESPONDENT does not need to provide these messages, as it is CLAIMANT's duty. As per

the IBA rules5, the onus of proof falls on CLAIMANT.

3. No adverse inference should be drawn6 as RESPONDENT fits the exemption criteria of article 9(2)(c)

of the IBA Rules as it is unreasonable and burdensome to produce the text messages, as Mr. Tran cannot

1
SolEs Badajoz GmbH v. Kingdom of Spain, ICSID Case No. ARB/15/38
2
UNCITRAL Rules 2021
3
Procedural Order No. 1
4
IBA Rules 2020: Article 9(2)(c)
5
IBA Rules, Article 3 [C][i]
6
Mojtaba Kazazi, Burden of Proof and Related Issues: A Study on Evidence before International
Tribunals
(Kluwer Law International, 1996) 321; Bedrosyan, Alexander Sevan, “Adverse inferences in international
arbitration: Toothless or terrifying?”
be involved in these proceedings due to his personal health reasons and is no longer an employee of

RESPONDENT7.

4. The failure of CLAIMANT to provide the required evidence can result in the tribunal dismissing this

claim since the IBA exemption concerning adverse inference is met by RESPONDENT.8

II. The Tribunal Does Not Have Jurisdiction to Hear This Matter

5. The rejection of the jurisdiction of this tribunal is based on the fact that the transaction was between

Triumph and RESPONDENT, excluding CLAIMANT. CLAIMANT was only acting as a third party

agent in negotiation of the contract. In our case, the dispute and contract is only between YTZ Shoes and

Triumph. The CISG convention only governs contracts of sale between the seller and buyer arising from

such contract9.

6. On 17 June 2022, Ms. Pajmon in a telephone call to Mr. Tran clearly stated the goods were ordered for

Triumph and details of logistics and payment would be followed up by Triumph10. During this call there

was a brief mention of ad hoc arbitration but the clause mentioned was too incomplete for

RESPONDENT to consent to it. CLAIMANT’s arbitration practices were inconsistent. At first, it was to

take place in Australia, but then, Mrs Pajmon confirmed in one of her business interactions that

CLAIMANT prefers domestic dispute resolution in Breynia. 11

7. There is no longer any written arbitration agreement between YTZ Shoes and Trans-Pacific, since

Rockdale was dissolved. As this company no longer exists, no arbitration agreement with Rockdale

Distributing would be binding between Trans-Pacific and YTZ Shoes. The Tribunal does not have

7
Procedural Order No. 1 [3][C]
8
Plama Consortium Limited v. Republic of Bulgaria, ICSID Case No. ARB/03/24
9
Article 4 CISG
10
Response to Notice of Arbitration
11
Exhibit R4
jurisdiction to hear this matter as no written arbitration clause exists between RESPONDENT and

Trans-Pacific.

8.CLAIMANT has shown through the inconsistency of their dispute resolution method and the

vagueness of the phone call that no informed consent from RESPONDENT could be reasonably expected.

As no meeting of wills exists between the parties concerning the arbitration, the tribunal has no

jurisdiction nor a definite choice of the dispute resolution method or a seat.

III. A Contract Has Not Been Concluded Between CLAIMANT and RESPONDENT

9. A contract has not been formed between YTZ Shoes and Trans-Pacific, but between Triumph and YTZ

Shoes. RESPONDENT never received confirmation of contract from CLAIMANT, but received

subsequent communication confirming this transaction from Triumph12. The transaction was not

confirmed by Trans-Pacific, they acted like a third party negotiating the contract between Triumph and

RESPONDENT, YTZ Shoes. In Exhibit R4, Triumph concluded the contract of sale between them and

YTZ Shoes, by providing logistics and payment details13. This shows there was no offer and acceptance of

a contract between CLAIMANT and RESPONDENT. A contract was not concluded.

10. RESPONDENT as the seller fulfilled their contractual obligations to Triumph and delivered the shoes

to them by the requested date, following Article 30 of the CISG.

IV: CLAIMANT’S Rejection of the Goods Can Not Be Upheld

11. CLAIMANT has failed to inspect the goods and give the RESPONDENT timely notice about

potential issues arising from the goods to be solved. CLAIMANT did not timely notify RESPONDENT

of this so they were not able to remedy the potential deficiency in the goods, which contradicts article 37

of the CISG14. CLAIMANT is required to notify RESPONDENT in regards to claims like this but, did

12
Exhibit R4
13
Article 23 CISG
14
Article 37 CISG
not give notice until 2 weeks via email after the goods arrived after Port Blevio but did not express

intention to reject these goods15. Article 39(1) of the CISG states that the buyer loses the right to reject if

it does not notify the seller within a reasonable time16. After the email from Triumph, it was not over 2

months later on 23 November 2023 that CLAIMANT rejected the goods and terminating the contract due

to quality issues17. The time frame between notifying RESPONDENT of potential issues and rejecting the

goods exceeded a reasonable period of time.

12. The report submitted by CLAIMANT, is lacking the evidence to prove it was the goods sold by

RESPONDENT and the 4 shoes samples sent to be inspected does not reflect the quality of all the 24,000

pairs of shoes.18 RESPONDENT also provided evidence that the materials used in the manufacturing of

the goods provided were of good quality, fulfilling the contract.19

13. Pursuant to the CISG,20 CLAIMANT has waived its rights to reject the goods and failed to prove the

existence of any quality issues since they have failed to follow the timely manner standard CISG to

inspect the goods and prove the claims of quality issues of the goods.

14. Thus, RESPONDENT requests that CLAIMANT be ordered to pay residual amounts and any

interest due and costs incurred under the agreement .

15
Response to Notice of Arbitration [10] and [12]
16
Article 39(1) CISG
17
Response to Notice of Arbitration [13]
18
Exhibit C4
19
Exhibit R6
20
Article 46 and 48 of the CISG
 BIBLIOGRAPHY

A Articles

Mojtaba Kazazi, Burden of Proof and Related Issues: “A Study on Evidence before International

Tribunals”

Bedrosyan, Alexander Sevan, “Adverse inferences in international

arbitration: Toothless or terrifying?”

B Books

Born,Gary B, “International Commercial Arbitration (Third Edition)”

C Cases

SolEs Badajoz GmbH v. Kingdom of Spain, ICSID Case No. ARB/15/38

E Treaties

United Nations Convention on Contracts for the International Sale of Goods, opened for signature 11

April 1980, 1489 UNTS 3 (entered into force 1 January 1988)

F Other

International Bar Association, Rules on the Taking of Evidence in International Arbitration

(2010)

United Nations Commission on International Trade Law, Arbitration Rules of the United Nations

Commissionon International Trade Law (2010)

International Commercial Arbitration (1985)