MEMORANDUM FOR CLAIMANT

Rheinische Friedrich-Wilhelms-Universität Bonn
two different states and even choose a third state as the place of arbitration, determining the
applicable law appears to be a complex issue. It cannot be assumed that the parties had
knowledge of the relevant rules of conflict of laws, and thus it made perfect sense for them to
choose the law of Equatoriana.
49. Furthermore, the application of the CISG does not render the choice of law clause
meaningless. It still has the important effect of determining the law applicable to all those
issues that are not governed by the CISG [cf. Art. 4 CISG], thus avoiding the necessity to
invoke conflict of laws rules to solve such issues.
50. After all, the requirements for an implied exclusion of the CISG have not been met.
Reference merely to the “commercial law” is not sufficiently particular reference to the
domestic law of Equatoriana to indicate clearly the intention of the parties to exclude the
application of the CISG. Thus, CLAIMANT and RESPONDENT have not excluded the CISG
by virtue of the choice of law clause. The CISG is the law applicable to the contract.
IV. A contract of sale was concluded between CLAIMANT
and RESPONDENT
51. The parties reached an agreement that was sufficiently definite (A.). If the Tribunal finds
that the parties did not agree on the discount, a valid contract of sale has still been concluded
(B.).
A. A contract containing all elements of Art. 14 CISG has been concluded during the
telephone conversation between Mr. Storck and Mr. Black
a. Mr. Storck and Mr. Black concluded a contract during their conversation
52. According to Art. 11 CISG, a contract can be concluded orally. Mr. Storck explicitly
declared that the written form of the contract dated 15 December 2000 was necessary only
because it was the first order RESPONDENT was placing with CLAIMANT [CLAIMANT’s
Exhibit No. 1]. Neither Mr. Storck nor Mr. Black showed any intention for a requirement as to
a written form for future contracts.
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