MEMORANDUM FOR RESPONDENT - Pace University

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QUEEN’S UNIVERSITY FACULTY OF LAW Compagnie des Bauxites de Guinee v. Hammermills Inc. [29 May 1992], United States District Court, U.S. Dist. Lexis 8046, No. 90- 0169, 1992 WL 122712 cited as: Compagnie v. Hammermills (USA 1992) Karaha Bodas Co. v. Perusahaan Pertambangan Minyak Dan Gas Bumi Negara [2001], United States District Court, 190 F. Supp. 2d 936 cited as: Karaha v. Perusahaan (USA 2001) Other Biwater Gauff (Tanzania) Ltd., v. United Republic of Tanzania, Procedural Order No. 3, ICSID Case No. ARB/05/22 cited as: Biwater Gauff v. Tanzania Giovanna a Beccara and Others v. The Argentine Republic, Procedural Order No. 3 (Confidentiality Order), ICSID Case No. ARB/07/5 cited as: Giovanna a Beccara v. Argentine Republic ICC Case No. 2671 (1976) unpublished interim award as cited in Mobil Oil Indonesia v. Asamera Oil [1977] 43 N.Y. 2d 276 cited as: ICC 1976 xviii 25 25 48, 52 32, 52 30
QUEEN’S UNIVERSITY FACULTY OF LAW SUMMARY OF ARGUMENT PART ONE: THE TRIBUNAL LACKS JURISDICTION TO HEAR THE PARTIES’ DISPUTE. The Tribunal was not constituted according to the Parties’ Agreement. The Arbitral Council did not comply with the Parties’ Agreement in denying confirmation of Mr. Y and in appointing Mr. Z. Moreover, Respondent did not waive its right to object to the constitution of the Tribunal. If the Tribunal affirms its jurisdiction, an eventual award is at risk of being set aside or refused recognition and enforcement PART TWO: CLAIMANT BREACHED ITS DUTY OF CONFIDENTIALITY. The Tribunal should find that Claimant was bound by an express duty of confidentiality in art. 8(1) 2010 Milan Rules. If the Tribunal finds that the 2004 Milan Rules are applicable to confidentiality, then Claimant was bound by an implied duty of confidentiality. Mr. Schwitz’s statements constituted a breach of both the express confidentiality obligation in the 2010 Rules and the implied obligation in the 2004 Rules. PART THREE: CLAIMANT’S BREACH OF CONFIDENTIALITY JUSTIFIES AN INJUNCTIVE ORDER AND DAMAGES. The Tribunal should issue an interim order enjoining Claimant from further disclosures. The Tribunal should declare that Claimant is liable for any quantifiable damages resulting from a breach of confidentiality. These two measures are not inconsistent; a declaration that damages will ensue from future violations is a means of ensuring compliance with an injunctive order. PART FOUR: THE SQUID CON<strong>FOR</strong>MED TO THE CONTRACT. The Parties agreed that the Squid would be unsized and, accordingly, the Squid conformed to art. 35(1) CISG. The Squid also conformed under art. 35(2) CISG: they were fit for their ordinary purposes and any particular purpose made known to Respondent. Furthermore, the Contract was not a sale by sample. Finally, even if the Squid did not conform under art. 35(2), art. 35(3) CISG excludes Respondent’s liability. PART FIVE: CLAIMANT CANNOT RELY ON THE ALLEGED NON- CON<strong>FOR</strong>MITY. Even if the Squid did not conform, Claimant may not rely on the non-conformity. Claimant failed to conduct a reasonable examination of the goods, which would have discovered the non- conformity. Thereafter, Claimant waited 45 days before giving notice on 16 August 2008. This was beyond a reasonable time. Even if Claimant gave notice on 29 July 2008, this was still not within a reasonable time. PART SIX: CLAIMANT FAILED TO MITIGATE ITS LOSSES. Claimant failed to make reasonable attempts to resell the Squid to alternative buyers, incurred unreasonable warehouse storage costs and failed to seek a substitute purchase. Accordingly, any damages awarded should be reduced under art. 77 CISG. 1
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MEMORANDUM FOR RESPONDENT - Pace University

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