MEMORANDUM FOR CLAIMANT
MEMORANDUM FOR CLAIMANT
MEMORANDUM FOR CLAIMANT
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Rheinische Friedrich-Wilhelms-Universität Bonn<br />
facie evidence that a contract between <strong>CLAIMANT</strong> and RESPONDENT has been concluded<br />
[Varady/Barcelo/Mehren, p. 126; Interocean Shipping Co. v. National Shipping & Trad.<br />
Corp. (U.S.)]. Special regard has to be paid to the Legislative History of Art. 16 Model Law<br />
which explicitly states that Art. 16(1) Model Law (as part of the procedural law of Danubia)<br />
applies regardless of whether there are initial defects or later grounds for nullity of the<br />
arbitration agreement [Seventh Secretariat Note, Analytical Commentary on Draft Text<br />
A/CN.9./264, Art. 16, para. 2]. Therefore the doctrine of separability governs the case at issue.<br />
c. The arbitration agreement itself does not suffer from any defects<br />
38. Since the arbitration agreement constitutes a contract independent from the commercial<br />
contract pursuant to the doctrine of separability, the arbitration clause can only be recognized<br />
as invalid if it itself suffers from any defects in will (e.g. mistake, fraud) [All-Union Export-<br />
Import Assoc. Sojuznefteexport (Moscow) v. JOC OIL (USSR); Euro-Mec Import, Inc. v.<br />
Pantrem & C., S.p.A. (U.S.); Tennessee Imports, Inc. v. Pier Paulo Filippi and Prix Italia<br />
(U.S.)]. Neither of these defects is alleged with regard to the arbitration agreement concluded<br />
between <strong>CLAIMANT</strong> and RESPONDENT.<br />
39. The parties have agreed upon the arbitration clause including the choice of the “German<br />
Institution of Arbitration”. <strong>CLAIMANT</strong> and RESPONDENT concluded a valid and binding<br />
arbitration agreement, notwithstanding the validity or invalidity of the commercial contract.<br />
III. The CISG is the law applicable to the contract and its<br />
formation<br />
40. Since the provisions concerning the formation of contracts under the domestic law of<br />
Equatoriana significantly differ from those of the CISG, it is essential to identify the CISG as<br />
the law applicable to the contract [cf. Procedural Order No. 1, para. No. 8; Procedural Order<br />
No. 2, Clarification No. 35]. <strong>CLAIMANT</strong> and RESPONDENT have subjected their<br />
contracted to the commercial law of Equatoriana (A.). The choice of law clause at issue<br />
cannot be interpreted as implied exclusion of the CISG (C.). It rather means that the CISG as<br />
the pertinent part of the Equatorian law (B.) is applicable to the contract.<br />
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