MEMORANDUM FOR CLAIMANT

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UNIVERSIDAD NACIONAL DE ASUNCIÓN • MEMORANDUM FOR CLAIMANT 49. CONCLUSION ON ISSUE I: The arbitral tribunal has jurisdiction to understand in this matter since it has been constituted in accordance with the arbitration agreement, the appointment- process agreed by the parties and the CAM rules incorporated thereby. ARGUMENT ON THE MERITS 50. CLAIMANT‘s and RESPONDENT‘s places of business are respectively located in Mediterraneo and Equatoriana, both of which are signatories without reservations to the CISG. In the absence of a choice of law clause, the present dispute is governed by the CISG pursuant to Art. 1(a) CISG [R. for A. ¶¶1, 3, 24; PO 3 ¶1]. II. RESPONDENT FAILED TO DELIVER CONFORMING SQUID IN COMPLIANCE WITH ART. 35 CISG 51. RESPONDENT breached the contract in the light of Art. 35(1) CISG [A.] or, alternatively, RESPONDENT failed to abide by Art. 35(2) CISG [B.]. A. RESPONDENT breached the contract in the light of Art. 35(1) CISG 52. Article 35(1) CISG imposed on RESPONDENT the duty to deliver squid of the quality required by the contract. According to both a subjective and objective reading of the contract, each squid had to be between 100 and 150 g [i.]. Other phrases in the Order Form and Sale Confirmation cannot be interpreted as having modified said quality requirement [ii.]. By delivering undersized squid, RESPONDENT failed to supply goods of the quality required by the contract [iii.]. i. The contract provided that each squid be between 100 and 150 g 53. Even though neither the Order Form [Cl. Ex. 3] nor the Sale Confirmation [Cl. Ex. 4] contains an express reference to weight, the contract required that every individual squid fall within the 100-150 g bracket. The application of Art. 8 CISG leads to both express and implied requirements constituting duties of the seller under Art. 35(1) CISG [Neumann ¶¶4, 5]. By putting the contract to either the subjective [Art. 8(1) CISG] [1.] or objective [Art. 8(2) CISG] tests [2.] one concludes that it stipulated that the squid weigh 100-150 g each. RESPONDENT was also bound to deliver squid in the 100-150 g range by international trade usages of the fishing industry under Art. 9(2) CISG [3.]. 1. In the light of Art. 8(1) CISG, the contract required 100-150 g squid 54. Article 8(1) CISG mandates that a party‘s statements and conduct be construed in accordance with that party‘s intent whenever ‗the other party knew or could not have been unaware [of] what that intent was‘. To establish a party‘s intent, all relevant circumstances of the case must be taken into account, including the negotiations [Art. 8(3) CISG]. 12
UNIVERSIDAD NACIONAL DE ASUNCIÓN • MEMORANDUM FOR CLAIMANT 55. CLAIMANT intended to acquire squid for resale as bait. To be used as bait, squid need weigh 100-150 g. This intent was unequivocally conveyed to RESPONDENT during the contract negotiation phase. RESPONDENT‘s conduct indicates that it had understood CLAIMANT‘s intent. 56. CLAIMANT‘s specifically stated that it intended to purchase squid for resale to the long-liner fishing fleet based in Mediterraneo ‗to be used as bait‘ and invited RESPONDENT to make offers of ‗appropriate product‘ [Cl. Ex. 1]. In reply, RESPONDENT‘s proxy presented CLAIMANT with a sample of squid representative of the squid on offer [R. for A. ¶13]. Virtually all squid in the sample fell within the 100-150 g range [R. for A. ¶14]. RESPONDENT obtained the sample from a lot of squid it had sold to another customer in Mediterraneo who deals in squid exclusively for bait [PO 3 ¶24]. By offering to CLAIMANT this specific type of squid, RESPONDENT‘s conduct clearly indicates that it ‗knew‘ that CLAIMANT‘s intent was to contract for squid to be used as bait and that thus every specimen had to weigh 100-150 g. 57. CLAIMANT made its intent abundantly clear to RESPONDENT in the email that accompanied the Order Form [Cl. Ex. 2]. CLAIMANT stated that it was particularly pleased that the squid in the sample ‗fell almost exclusively in the range of 100/150 g‘ and emphasised that that is the size range that gives its customers the best results. Consequently, RESPONDENT cannot claim to have been unaware that the contract provided for 100-150 g squid [Neumann ¶44; Lookofsky p.90]. 2. In the light of Art. 8(2) CISG, the contract required 100-150 g squid as well 58. If the Tribunal deems Art. 8(1) CISG to be inapplicable, the contract is to be interpreted according to the standard set in Art. 8(2) CISG. The application of either section of Art. 8 CISG leads to the same conclusion. 59. Under Art. 8(2) CISG the statements and conduct of CLAIMANT must be interpreted according to the understanding that a reasonable person of the same kind as RESPONDENT would have had in the same circumstances [Honnold ¶107]. This begs the question as to what kind of person RESPONDENT is. 60. RESPONDENT is a prominent privately owned Equatorianan fishing corporation [St. of D. ¶1; R. Ex. 1; PO 3 ¶15, 17]. RESPONDENT owns a fishing fleet in the Pacific Ocean and trades in fish products [St of D. ¶2]. In regard to squid, RESPONDENT catches, purchases and sells exclusively Danubian squid [St. of D. ¶2]. RESPONDENT‘s presence in the 13
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MEMORANDUM FOR CLAIMANT

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