MEMORANDUM FOR RESPONDENT - Pace University

More documents

Recommendations

Info

QUEEN’S UNIVERSITY FACULTY OF LAW an award from a London arbitration in a Paris court, since doing so publicized previously confidential matters [(France 1986); Noussia 121]. 56. Claimant may argue that there is no harm stemming from past disclosures, since the existence of the dispute had already been revealed. This assertion is inaccurate. Commercial Fishing Today’s previous publications did not mention this arbitration and revealed no information that prejudiced Respondent’s position [Clar. 17]. Mr. Schwitz’s statement, on the other hand, revealed the existence and substance of this arbitration. He insinuated that Respondent was at fault in the dispute, claiming, “the only way to get them to live up to their responsibilities is to force them to do so” [Resp. Ex. 1]. Claimant’s disclosure included allegations about Respondent’s integrity and business practices. Those accusations could harm Respondent financially, by damaging Respondent’s credibility or driving away future customers. It is foreseeable that Claimant’s allegations will result in quantifiable and compensable monetary harm to Respondent, which should be sanctioned through an order for damages. PART FOUR: THE SQUID CONFORMED TO THE CONTRACT. 57. Respondent delivered squid to Claimant on 1 July 2008 (the “Squid”). The Squid were of the quantity, quality, and description required by the Contract, as required by art. 35(1) CISG [I]. The Squid were fit for the purposes for which goods of the same description are ordinarily used, as required by art. 35(2)(a) CISG [II]. In addition, art. 35(2)(b) CISG does not apply because Claimant did not make known any particular purpose to Respondent [III]. Furthermore, the Contract was not a sale by sample under art. 35(2)(c) CISG [IV]. Finally, even if the Squid did not conform under art. 35(2) CISG, Respondent’s liability is excluded by art. 35(3) CISG [V]. I. RESPONDENT DELIVERED CONFORMING GOODS UNDER ART. 35(1) CISG. 58. Art. 35(1) CISG requires that the seller deliver goods of the quantity, quality and description required by the contract. Here, the Contract expressly required that the Squid be: fit for human consumption, of the species illex danubecus, landfrozen, Grade A, blast frozen, and packaged in poly-line blocks [Cl. Ex. 3; Cl. Ex. 4]. It is not disputed that the Squid conformed to all these characteristics. Claimant alleges that the Contract required squid weighing 100-150 g; however, the Contract instead called for delivery of unsized squid. This is evident from both a subjective interpretation of the Parties’ intentions [A], and an objective interpretation according to the understanding of a reasonable person [B]. In both cases, according to art. 8(3) CISG, the Tribunal should consider all relevant circumstances, including the Parties’ negotiations. 18
QUEEN’S UNIVERSITY FACULTY OF LAW A. Claimant knew, or could not have been unaware, that Respondent intended the Squid to be unsized. 59. Claimant contends that the Squid had to be of a certain size [Cl. Memo. 30]; however, the Contract actually called for unsized squid. Art. 8(1) CISG gives priority to the subjective intent of a party where the other party knew or could not have been unaware of that intent. Respondent’s intent was to sell unsized squid to Claimant. Claimant knew or could not have been unaware of that intent, and is therefore bound by it according to art. 8(1) CISG. 60. Respondent’s intent was made clear in the course of the Parties’ negotiations. If, in the course of negotiations, one party clearly expresses its intent and the other party does not object, the Tribunal will presume agreement [AG Sept 2008; LG Kassel Feb 1996; Caito v. Société (France 1995); Schmidt-Kessel in Schlechtriem/Schwenzer 2005 118-9]. For example, in a case concerning machinery for producing glass vials, the seller did not object to the buyer’s request for a machine capable of producing 180 vials per minute. A Swiss Court of Appeal held that the seller knew the buyer’s intent and so, under art. 8(1) CISG, the contract required delivery of a machine matching those requirements [AG Sept 2008 aff’d in BGer May 2009]. 61. Throughout the Parties’ negotiations, Respondent repeatedly expressed its intent to sell unsized squid. On 17 May 2008, Respondent brought Claimant squid from the 2007 catch [St. of Def. 12]. The squid were not sized, nor was any size indicated on the packaging [St. of Def. 10, 12]. Respondent was not present when the squid was weighed [Req. for Arb. 14; Cl. Ex. 10 7; St. of Def. 10]. These squid had been caught late in the growing season, between mid-June and mid- August, and had an average weight of 130 g [Cl. Ex. 10 7; St. of Def. 13]. However, this weight was a mere coincidence; there is no evidence the size of this squid was ever promised by—or even known to—Respondent. 62. Claimant was no doubt pleased that this lot of discounted, “run of the catch” squid weighed an average of 130 g and could be used as bait [St. of Def. 12]. Claimant was no doubt hopeful that the discounted, unsized squid delivered in July would also weigh 130 g. But Claimant never expressed these hopes, nor did Respondent say or do anything that would lead Claimant to reasonably expect delivery of sized squid. 63. Respondent’s only other communication with Claimant before the dispute arose, the Sale Confirmation, similarly expressed Respondent’s intention to deliver unsized Squid. The Sale Confirmation, received by Claimant on 29 May 2008, indicated the Squid would come from the “2007/2008 Catch” [Cl. Ex. 4]. When the Contract was formed in May 2008, Claimant knew it was still early in the season for harvesting illex danubecus [Clar. 27]. Since delivery of the Squid would occur mid-way through the 2008 season, Claimant knew or could not have been unaware that squid from the 2008 catch would be younger and weigh less than 100 g [St. of Def. 13]. As a 19
Page 1 and 2: Eighteenth Annual Willem C. Vis Int
Page 3 and 4: QUEEN’S UNIVERSITY FACULTY OF LAW
Page 7 and 8: i.e. Id est [that is] kg Kilogram Q
Page 11 and 12: Hwang, Michael and Katie Chung Inte
Page 13 and 14: Schlechtriem, Peter and Ingeborg Sc
Page 35: QUEEN’S UNIVERSITY FACULTY OF LAW
Page 53: QUEEN’S UNIVERSITY FACULTY OF LAW

MEMORANDUM FOR RESPONDENT - Pace University

Create successful ePaper yourself

Delete template?

Save as template?