MEMORANDUM FOR CLAIMANT

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Rheinische Friedrich-Wilhelms-Universität Bonn facie evidence that a contract between CLAIMANT and RESPONDENT has been concluded [Varady/Barcelo/Mehren, p. 126; Interocean Shipping Co. v. National Shipping & Trad. Corp. (U.S.)]. Special regard has to be paid to the Legislative History of Art. 16 Model Law which explicitly states that Art. 16(1) Model Law (as part of the procedural law of Danubia) applies regardless of whether there are initial defects or later grounds for nullity of the arbitration agreement [Seventh Secretariat Note, Analytical Commentary on Draft Text A/CN.9./264, Art. 16, para. 2]. Therefore the doctrine of separability governs the case at issue. c. The arbitration agreement itself does not suffer from any defects 38. Since the arbitration agreement constitutes a contract independent from the commercial contract pursuant to the doctrine of separability, the arbitration clause can only be recognized as invalid if it itself suffers from any defects in will (e.g. mistake, fraud) [All-Union Export- Import Assoc. Sojuznefteexport (Moscow) v. JOC OIL (USSR); Euro-Mec Import, Inc. v. Pantrem & C., S.p.A. (U.S.); Tennessee Imports, Inc. v. Pier Paulo Filippi and Prix Italia (U.S.)]. Neither of these defects is alleged with regard to the arbitration agreement concluded between CLAIMANT and RESPONDENT. 39. The parties have agreed upon the arbitration clause including the choice of the “German Institution of Arbitration”. CLAIMANT and RESPONDENT concluded a valid and binding arbitration agreement, notwithstanding the validity or invalidity of the commercial contract. III. The CISG is the law applicable to the contract and its formation 40. Since the provisions concerning the formation of contracts under the domestic law of Equatoriana significantly differ from those of the CISG, it is essential to identify the CISG as the law applicable to the contract [cf. Procedural Order No. 1, para. No. 8; Procedural Order No. 2, Clarification No. 35]. CLAIMANT and RESPONDENT have subjected their contracted to the commercial law of Equatoriana (A.). The choice of law clause at issue cannot be interpreted as implied exclusion of the CISG (C.). It rather means that the CISG as the pertinent part of the Equatorian law (B.) is applicable to the contract. 15
Rheinische Friedrich-Wilhelms-Universität Bonn A. The parties have chosen the commercial law of Equatoriana 41. CLAIMANT and RESPONDENT agree that by virtue of reference to their contract of 15 December 2000 [CLAIMANT’s Exhibit No. 2] the choice of law clause contained therein also applies to the contract at issue [Statement of Claim, paras. 5, 12; Statement of Defence, para. 14, 15]. According to this clause, the contract is to be “subject to the commercial law of Equatoriana” [CLAIMANT’s Exhibit No. 2]. Both Section 23.1 DIS Rules and Art. 28(1) Model Law provide that “the arbitral Tribunal shall decide the dispute in accordance with such rules of law as are chosen by the parties as applicable to the substance of the dispute”. B. The CISG is the pertinent part of the commercial law of Equatoriana for the contract at issue 42. Equatoriana is a party to the CISG [Statement of Claim, para. 13]. Thus, the CISG has become part of the commercial law of Equatoriana and confers rights and obligations upon the parties [Procedural Order No. 2, Clarification No. 5]. CLAIMANT and RESPONDENT have their places of business in different states, and the contract at issue is one for the sale of goods for the purposes of the CISG, Art. 1(1). Accordingly, the transaction falls within the scope of the CISG. Since the CISG covers only the international sale of goods whereas the domestic law of Equatoriana applies to all (other) contracts of sale, the CISG is the lex specialis and excludes application of the law governing domestic transactions [cf. Procedural Order No. 2, Clarification No. 5]. Thus, under the commercial law of Equatoriana the CISG is the law governing contracts like the one between CLAIMANT and RESPONDENT. C. Reference to the “commercial law of Equatoriana” does not amount to an implied exclusion of the CISG 43. The choice of law clause making the contract subject to the commercial law of Equatoriana does not amount to an implied exclusion of the CISG because the clause does not indicate the parties’ actual intent to exclude the CISG. While a few decisions even deny the possibility of an implied exclusion [Orbisphere Corp. v. United States (U.S.); LG Landshut, 5 May 1995 (Germany)], the majority opinion accepts it as possible to exclude the CISG according to Art. 6 CISG implicitly as long as there is an adequate indication of the parties’ actual intent to do so [Assante Technologies, Inc. v. PMC-Sierra, Inc. (U.S.); Staudinger et 16
Page 1 and 2: On Behalf of TENTH ANNUAL WILLEM C.
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MEMORANDUM FOR CLAIMANT

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