memorandum for respondent ludwig-maximilians-universität münchen

LUDWIG-MAXIMILIANS-UNIVERSITÄT MÜNCHEN
(BLESSING CONGRESS SERIES p. 415; ICC 1404; USSR Maritime Arbitration Commission). Contrary
to CLAIMANT’s allegation, the contract was concluded in Mediterraneo (Cl. Memorandum § 92).
The place of contract conclusion must indirectly be determined according to the time at which
the contract was concluded (DELAUME p. 32). Pursuant to Article 23 CISG, a contract is
concluded when the acceptance of an offer becomes effective, thus at the moment when it
reaches the offeror (Article 18 (2) CISG). CLAIMANT’s acceptance to RESPONDENT’s offer
reached RESPONDENT shortly after 30 May 2002 in Mediterraneo (Statement of Claim § 8). The
acceptance thus became effective in Mediterraneo, establishing it as the place of contract
conclusion. Therefore, the lex loci contractus principle determines Mediterraneo as the country with
the closest connection to the dispute and renders the MED-Law applicable.
(d) The Law of Danubia Is Not Directly Applicable
17 CLAIMANT might allege that the direct application of substantive law leads to the law of
Danubia, where the Tribunal is located. However, the tribunal’s seat is generally not considered a
connecting factor to a contract (CRAIG/PARK/PAULSSON p. 322; LALIVE p. 159;
MANIRUZZAMAN JIA p. 151; ICC 1512), especially where the parties’ selection is purely
coincidental (CROFF § I.B.2; PELLONPÄÄ/CARON p. 83; ICC 1422). The choice of Danubia as
the arbitral forum (Cl. Exh. No. 7 § 13) was merely based on the consideration that it represents a
neutral country. None of the parties or their businesses are connected to Danubia (Statement of
Claim §§ 1, 2), and the contract was neither signed, nor were any obligations arising out of it
performed there. Consequently, the substantive law of Danubia lacks connection to the dispute
and should not be applied.
2. The MED-PIL Is Applicable Pursuant to Article 32 (1) 2 nd Alt. CIDRA-AR
18 Should the Tribunal prefer to determine the applicable substantive law by way of conflict of
law rules pursuant to Article 32 (1) 2 nd Alt. CIDRA-AR, RESPONDENT will show that the
MED-PIL – leading to the two-year limitation period provided by Article 87 MED-Law – is
applicable to the present dispute. The MED-PIL is applicable – contrary to CLAIMANT’s
allegations (Cl. Memorandum § 75) – as it provides a predictable result (a.) and ensures the
enforceability of the Tribunal’s eventual award (b.).
(a) The Application of the MED-PIL Guarantees Legal Certainty
19 CLAIMANT correctly states (Cl. Memorandum § 49) that in choosing conflict of law rules, the
aim of arbitration to guarantee legal certainty (CROFF § I.B.1.) through foreseeability must be
reflected (BERGER p. 499; DERAINS p. 189). “It is absolutely essential for the parties to know the
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