MEMORANDUM FOR CLAIMANT

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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. 19
Rheinische Friedrich-Wilhelms-Universität Bonn 53. In the fax of 3 April 2001, Mr. Black, purchasing manager of RESPONDENT, declared that he considered himself to have concluded a contract of sale during the telephone conversation he and Mr. Storck had held the same day [CLAIMANT’s Exhibit No. 3]. The responding fax shows the same was true for Mr. Storck [CLAIMANT’s Exhibit No. 4]. Therefore, there is no doubt that both parties were in agreement that they had concluded a contract and intended to be bound. A contract has thus been concluded. b. The agreement contained all elements of Art. 14 CISG 54. As the agreement indicates the goods, fixes the quantity and determines the price, it is sufficiently definite to culminate in the formation of a contract according to Art. 14 CISG. During their conversation, Mr. Storck and Mr. Black agreed that RESPONDENT would purchase 1350 tons of polypropylene film. Payment, shipping and similar terms were to be the same as in the written contract of 15 December 2000 [CLAIMANT’s Exhibit No. 3, No. 4]. Several adjustments were made for the dates of shipment and the price RESPONDENT had to pay, since the list price had risen to $ 1,900 per ton [CLAIMANT’s Exhibit No. 3]. According to the commitments Mr. Storck made in his letter of 7 December 2000, he agreed that RESPONDENT would receive a discounted price [CLAIMANT’s Exhibit No.4]. They hereby fixed the exact price for the goods, although they did not expressly mention the percentage of the discount RESPONDENT was to receive [cf. paras. 64 et seq.]. Therefore, a valid contract of sale was concluded during the telephone conversation between Mr. Storck and Mr. Black on 3 April 2001, containing all elements of an offer set by Art. 14 CISG. B. Irrespective of the fact whether there was an agreement on the discount, a contract would still have been validly concluded even if the parties had not fixed the discount 55. The requirements Art. 14 CISG stipulates for an offer need not be met as to the formation of the contract between CLAIMANT and RESPONDENT, since they did not follow the offeracceptance pattern of Part II of the CISG (a.). An agreement on the discount was not necessary on order to conclude a valid contract of sale (b.). The domestic law of Equatoriana has no impact on the present contract (c.). 20
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 45: Rheinische Friedrich-Wilhelms-Unive
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MEMORANDUM FOR CLAIMANT

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