MEMORANDUM FOR CLAIMANT

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Rheinische Friedrich-Wilhelms-Universität Bonn d. CLAIMANT lost profit in the amount of $ 575,477.98 88. The amount of CLAIMANT’s lost profit can be determined according to CLAIMANT’s profit margin and the contract price. If RESPONDENT had performed its obligations under the contract, CLAIMANT would have received $ 2,615,809, the price RESPONDENT was to pay [cf. CLAIMANT’s Exhibit No. 4]. This price reflected the 4% discount CLAIMANT granted [cf. paras. 51 et seq.]. CLAIMANT’s profit margin would have been 22% of this sum [cf. Statement of Claim, para. 11]. The CISG does not explicitly present a method for calculating the lost profit. However, it is generally agreed that the loss can be calculated using the seller`s profit margin [OGH, 28 April 2000 (Austria); Delchi Carrier SpA v. Rotorex Corporation (U.S.); Schlechtriem et al, Art. 74 note 23]. Thus, CLAIMANT’s lost profit was 22% of the contract price, i.e. $ 575,477.98. 89. After all, CLAIMANT suffered lost volume damages as a consequence of RESPONDENT’s breach. These damages can be measured by CLAIMANT’s loss of profit, which amounts to $ 575,477.98. C. The damages were foreseeable to RESPONDENT 90. CLAIMANT’s lost volume damages in the amount of $ 575,477.98 were foreseeable loss for the purposes of Art. 74 CISG. The pertinent standard for the foreseeability of loss is what a reasonable person ought to have foreseen at the time of the conclusion of the contract [ICC Court of Arbitration, 8324/1995 (Fr); Downs Investment v. Perjawa Steel (Australia); Schlechtriem et al, Art. 74 note 12; Audit, note 172; Bianca/Bonell/Knapp, Art. 74, note 26]. Since CLAIMANT is a merchant and not a non-profit organization, it is obvious to any reasonable person entering into a contract with CLAIMANT that the latter intends to make profit from this contract. 91. The actual amount of the damages need not be foreseen [Schlechtriem et al, Art. 74 note 37; Staudinger et al/Magnus, Art. 74 note 31]. However, CLAIMANT’s gross margin of 22% was foreseeable since it is a percentage that is in line with what can be expected in the industry [Procedural Order 2, Clarification No. 55]. 31
Rheinische Friedrich-Wilhelms-Universität Bonn D. CLAIMANT did not fail to take measures to mitigate its loss according to Art. 77 CISG 92. Since RESPONDENT bears the burden of proof if it wants to invoke Art. 77 CISG [Schlechtriem et al, Art. 77 note 12], unless RESPONDENT raises this issue, it need not be discussed in detail. However, it is obvious that due to the lost volume situation CLAIMANT did not fail to mitigate its loss as stipulated in Art. 77 CISG. There were no mitigation measures that were “reasonable in the circumstances to mitigate the loss", Art. 77 CISG [cf. Saidov, II.4.(d)]. The only mitigation measure one could think of would have been finding a substitute buyer and reselling the polypropylene film originally reserved for RESPONDENT. However, as shown above [cf. paras. 85, 86], no sale following RESPONDENT’s breach can be regarded as a resale because each and every subsequent sale would have been made even if RESPONDENT had not breached the contract with CLAIMANT. Accordingly, no subsequent transaction could help to avoid CLAIMANT’s loss. Accordingly, CLAIMANT did not fail to mitigate the damages. Thus, it is entitled to recover the entire lost profit. 93. After all, CLAIMANT is entitled to claim damages in the amount of $ 575,477.98. VIII. CLAIMANT is entitled to interest on the damages 94. Art. 78 CISG grants the right to claim interest on damages (A.). The period of time during which interest has to be charged begins with the date when the damages occurred and ends with payment (B.). A. Art. 78 CISG grants the right to claim interest on damages 95. Art. 78 CISG grants the right to interest on any “sum that is in arrears”. This wording includes damages that are due even though such damages are not explicitly mentioned in Art. 78 CISG [Schlechtriem et al, Art. 78 note 15]. Accordingly, it is not a requirement for the right to claim interest that there is a claim liquidated or established by judgment [Delchi Carrier SpA v. Rotorex Corporation (U.S.); Margon Srl v. VN Sadelco (Belgium); Commercial Court Zürich, 5 February 1997 (Ch); Arbitral Award 52/97, 10 December 1997 (Austria)]. 32
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On Behalf of TENTH ANNUAL WILLEM C.
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Rheinische Friedrich-Wilhelms-Unive
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Rheinische Friedrich-Wilhelms-Unive
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MEMORANDUM FOR CLAIMANT

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