MEMORANDUM FOR RESPONDENT - Pace University

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QUEEN’S UNIVERSITY FACULTY OF LAW into a “trial by press release” [Born 2282]. The Tribunal is entitled to take steps to protect the integrity of the arbitration [Biwater Gauff v. Tanzania 135], and should do so by issuing an injunctive order. 49. The circumstances of the current dispute meet the conditions for granting an interim measure under art. 17A of the Model Law. First, harm “not adequately reparable by an award of damages is likely” if the Tribunal does not grant the desired relief; this does not conflict with an order for damages [A] Second, Respondent has a reasonable prospect of success on the claim’s merits [B]. A. Damages are insufficient to protect against future breaches of confidentiality. 50. The Tribunal should issue an injunctive order protecting confidentiality to preserve the status quo and prevent harm from future disclosures. The Tribunal is empowered by art. 17(2)(a) to issue measures preserving the status quo, including orders prohibiting public statements that breach confidentiality [Born 1999]. Article 17A(1)(a) Model Law stipulates that Respondent would have to show that harm not adequately reparable by damages would result if a protective measure was not ordered. Claimant may argue that it is contradictory for Respondent to ask for both an interim measure and damages, but that assertion mischaracterizes the remedies. The two remedies work together with respect to future breaches of confidentiality: a declaration that damages will ensue from future violations is a way of ensuring compliance with an injunctive order. An injunctive order protects Respondent against future disclosures in breach of the confidentiality obligation. Damages, on the other hand, redress past disclosures [Noussia 169]. Hence, although each remedy relates to confidentiality, the two are not mutually exclusive. 51. Damages are often considered to be an inadequate or unsatisfactory remedy for breaches of confidentiality. For this reason, it is “appropriate, and generally necessary, for tribunals to issue provisional measures ordering compliance with confidentiality obligations” [Born 2008; Cook/Garcia ft 121]. By definition, damages can only be sought after harm from a breach of confidentiality has already occurred [Hwang/Chung 640; Brown 1016]. An injunctive order, on the other hand, protects against future breaches of confidentiality. 52. Respondent could suffer economic loss as a result of Claimant’s disclosures. In True North v. Bleustein, True North’s disclosure of the existence of the dispute and the arbitration proceedings resulted in negative economic consequences for the other party, specifically a drop in share value [(France 1999); Poudret/Besson 316]. The Commercial Court of Paris enjoined True North from making any further disclosures about the arbitration. Claimant’s past disclosure and any future disclosures may result in similar negative consequences for Respondent. The threat of negative publicity has been held to be sufficient basis to issue an injunctive order, so long as there is not a countervailing public interest in disclosure [Biwater Gauff v. Tanzania; Giovanna a Beccara v. Argentine 16
QUEEN’S UNIVERSITY FACULTY OF LAW Republic]. This case involves only private commercial actors, and there is no public interest that might outweigh the negative consequences of disclosure [Clar. 15]. 53. Claimant may argue that there is no evidence that it will commit future breaches of confidentiality. Nevertheless, it has been found that parties who have breached confidentiality should be enjoined from making future disclosures [Dolling-Baker v. Merrett (UK 1991); Insurance v. Lloyd’s Syndicate (UK 1995); Ali Shipping v. Shipyard (UK 1998); True North v. Bleustein (France 1999) cited in Poudret/Besson 317]. Moreover, the fact that future disclosures may be unlikely does not justify refusing to issue an injunctive order. If Claimant does not make future disclosures, the order will do no harm.!On the other hand, the order will reassure both Parties that neither will breach confidentiality in the future. B. There is a reasonable possibility that Respondent will succeed on the merits of the dispute. 54. The Tribunal should also find that Respondent has a reasonable prospect of success on the merits of the dispute, as required by art. 17A(1)(b) Model Law. Respondent delivered squid which conformed to the Contract. In particular, Respondent’s delivery conformed with the terms of the Sale Confirmation, the final communication between the Parties at the time of the conclusion of the Contract. Therefore, there is a reasonable possibility that the goods conformed. In addition, even if Respondent’s squid did not conform, Claimant lost its right to rely on the breach by failing to give Respondent reasonable notice. The squid delivered were perishable and seasonal goods, yet Claimant waited 45 days from the time of its examination to give notice. Accordingly, there is a reasonable possibility that the Tribunal will find Claimant’s claim to be barred. Harm not adequately reparable by damages is likely to ensue from future breaches of confidentiality, and Respondent has a reasonable possibility to succeed on the merits of its claim. Therefore, an interim order should be made. II. THE TRIBUNAL SHOULD DECLARE THAT CLAIMANT IS LIABLE <strong>FOR</strong> PROVABLE DAMAGES ARISING FROM PAST OR FUTURE BREACHES OF CONFIDENTIALITY. 55. The Tribunal should declare Claimant is liable for provable damages arising from breaches of confidentiality. If the Tribunal finds that Claimant has breached its duty of confidentiality, now or in the future, Respondent need only quantify its resulting monetary losses to justify an award of damages [Brown 1016; Cook/Garcia 269]. At this point, Respondent merely seeks a declaration that Claimant must pay damages in the event that such losses can be quantified [St. of Def. 9]. Breaches of confidentiality have been sanctioned through the award of damages in the past. For example, in Aita v. Ojjeh, the Paris Court of Appeal assessed damages against Aita for challenging 17
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MEMORANDUM FOR RESPONDENT - Pace University

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