MEMORANDUM FOR CLAIMANT

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Statements of Facts Rheinische Friedrich-Wilhelms-Universität Bonn Page 1 On 3 April 2001, CLAIMANT, Equafilm Co. (hereafter referred to as CLAIMANT), concluded a contract with Medipack SA (hereafter referred to as RESPONDENT) during a telephone conversation. After this telephone conversation, Mr. Black, Purchasing Manager of RESPONDENT, faxed Mr. Storck, Sales Manager of CLAIMANT a confirmation of this contract. In this fax, he confirmed the order of 1350 tons of polypropylene film, to be delivered over a nine-month period of time. The conditions of sale were to be the same as in the previous contract CLAIMANT and RESPONDENT had concluded on 15 December 2000, with adjustments for the dates of shipment and the fact that CLAIMANT’s list prise had risen to $ 1,900 per ton. The same day, Mr. Storck also sent a confirmation of RESPONDENT’s order to Mr. Black in which the price set forth was $ 2,615,809, i.e. CLAIMANT’s current list price of $ 1,900 per ton less 4% discount. All other provisions of the previous contract dated 15 December 2000 should apply. The contract of 15 December 2000 to which both parties referred in their letters of confirmation contained an arbitration clause and a choice of law clause. According to this arbitration clause, “any dispute arising out of or relating to the contract concluded between CLAIMANT and RESPONDENT should be determined by arbitration in accordance with the rules of the German Arbitration Association”. The choice of law clause determined that the contract was subject to the commercial law of Equatoriana. Equatoriana is a party to the CISG. In response to Mr. Storck’s letter of confirmation, Mr. Black contested the price indicated by Mr. Storck claiming that RESPONDENT was to receive an 8% discount. In his letter dated 9 April 2001, Mr. Storck regretted the confusion about the discount rate which had arisen although Mr. Storck stated explicitly in his fax of 7 December 2000 that the 8% discount was only granted as in incentive for the first order. He affirmed that RESPONDENT would receive their best price which includes a 4% discount. In response, Mr. Black intimated that RESPONDENT would have to consider seriously 1
Rheinische Friedrich-Wilhelms-Universität Bonn returning to Polyfilm GmbH, its former supplier, if CLAIMANT did not offer an 8% discount to RESPONDENT. On 2 May 2001, RESPONDENT refused definitely to comply with its obligations under the contract concluded with CLAIMANT, since RESPONDENT had already placed the order with Polyfilm GmbH. As a result of this refusal, CLAIMANT suffered a loss of $ 575.477,98 which is the lost profit it would have earned on the contract. Counsel, prepared this Memorandum for CLAIMANT in compliance with the Arbitral Tribunal’s Procedural Order No. 1. It is argued that: • There is no reason to challenge Dr. Arbitrator • The Tribunal has authority to rule the case at issue • The CISG is the law applicable to the contract • A contract was concluded between CLAIMANT and RESPONDENT during their telephone conversation dated 3 April 2001 • The price included a 4% discount • RESPONDENT was in breach of its obligations under the contract • CLAIMANT is entitled to claim damages in the amount of $ 575,477.98 caused by RESPONDENT’s breach of its obligations • CLAIMANT is entitled to claim interest on the damages In arguing these propositions, CLAIMANT will demonstrate the legal and factual basis for its claim. 2
Page 1 and 2: On Behalf of TENTH ANNUAL WILLEM C.
Page 3 and 4: Rheinische Friedrich-Wilhelms-Unive
Page 9 and 10: Index of Authorities Rheinische Fri
Page 11 and 12: Derains, Yves / Schwartz, Eric A. D
Page 17 and 18: Witz, Wolfgang / Salger, Hanns Chri
Page 19 and 20: Belgium Rheinische Friedrich-Wilhel
Page 27: Rheinische Friedrich-Wilhelms-Unive
Page 61: Rheinische Friedrich-Wilhelms-Unive

MEMORANDUM FOR CLAIMANT

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