UNIVERSITY OF BANJA LUKA

MEMORANDUM FOR CLAIMANT

ON BEHALF OF AGAINST
CLAIMANT RESPONDENT
GreenHydro Plc Equatoriana RenPowerLtd
Russell Avenue 1974 Russell Square 1
Capital City Oceanside
Mediterraneo Equatoriana
COUNSEL FOR CLAIMANT

DAVID RAKITA • LUKA STANAR • DEJAN STOJAKOVIĆ

 32ND ANNUAL WILLEM C. VIS INTERNATIONAL COMMERCIAL
ARBITRATION MOOT 11 APRIL – 17 APRIL 2025, VIENNA

Academic Integrity and Artificial Intelligence

Disclosure Statement
[NOTE: This signed declaration must appear as the first page of the Memoranda submitted at the
Willem C. Vis International Commercial Arbitration Moot [i.e. immediately after the front cover]. If you
are unsure please tick “unsure”, you should only declare “no” use when you are certain that there has
been no use. In doing so please be mindful of the explicit prohibitions set out in Rules 64, 65, 66. The
text of this note does not need to be reproduced in your declaration]

UNIVERSITY: UNIVERSITY OF BANJA LUKA

COUNTRY: BOSNIA AND HERZEGOVINA

ACADEMIC INTEGRITY YES UNSURE NO
We confirm that this memorandum does not include text from any source,
whether the source was in hard copy or online available, which has not
been properly distinguished by quotation marks or citation.
X
USE OF AI

We have used AI enhanced search engines for researching sources and

[factual or legal] information on the Moot Problem.
X
We have used AI-enhanced proof-reading tools.
X
We have used AI enhanced translation tools to translate sources relevant
for our work on the Moot Problem.
X
We have used AI enhanced translation tools to translate parts of the text
submitted in this Memorandum into English from any other language. X
We have used AI to generate overviews or briefings on relevant factual
and legal topics which are not submitted as part of the memorandum but
have been solely used to advance our own understanding.
X
We have used AI tools to generate statements that are now included in
the memo. Please tick yes even if you have altered or amended the text X
generated by AI before submission.
We have trained an AI tool on Vis Moot documents.
X
We have used an AI tool that has been trained on Vis Moot documents
to generate text that is part of our Memorandum
X
Other [please specify]: X
We hereby certify the truthfulness of our statements, and confirm that we have not used AI-applications in any
other way in preparing the submission of this memorandum.

Name: David Rakita Signature:

Name: Luka Stanar Signature:

Name: Dejan Stojaković Signature:

2
 32ND ANNUAL WILLEM C. VIS INTERNATIONAL COMMERCIAL
ARBITRATION MOOT 11 APRIL – 17 APRIL 2025, VIENNA

TABLE OF CONTENTS

TABLE OF ABBREVIATIONS.......................................................................................6
TABLE OF AUTHORITIES...............................................................................................6
TABLE OF CASES AND ARBITRAL AWARDS..............................................................10
STATEMENT OF FACTS.................................................................................................12
LEGAL FRAMEWORK....................................................................................................13
INTRODUCTION INTO ARGUMENTS.......................................................................14
CLAIM 1: THE TRIBUNAL HAS JURISDICTION AND SHOULD ADMIT THE
CLAIM AS PART OF ITS DISCRETION.........................................................................15
1. The Tribunal has the jurisdiction...................................................................................16
1.1. The mediation clause does not constitute a condition precedent for
arbitration................................................................................................................................18
1.1.1. Multi-tier dispute resolution clause does not require mediation as a precondition
for arbitration...................................................................................................................18
1.1.2. The mediation clause does not constitute an obligation for the
parties.................................................................................................................................18
2. Compliance with the mediation requirement is related to the admissibility of the
claim.......................................................................................................................................................19
2.1. Claim is admissible.................................................................................................................20
2.2. The mediation attempt is pointless in this case..................................................................21
3. The Arbitral Tribunal has the discretion to admit the claim.........................................................22
CLAIM 2: THE TRIBUNAL SHOULD ADMIT EXHIBIT C7 AND SHOULD
EXCLUDE EXHIBIT R3..................................................................................................22
1. The Arbitral Tribunal should admit the „without prejudice offer” in exhibit C7 as non-
confidential...........................................................................................................................................22
1.1. Mediation Rules do not cover pre-mediation negotiations.......................................23
1.1.1. Art. 15 of the Mediation Rules applies only to formal mediation
proceedings.........................................................................................................23
1.1.2. Parties never agreed on the confidentiality of all negotiations before the
start of formal mediation or arbitration proceedings...................................23
1.1.3. Mr. Deiman’s email does not indicate that Claimant agreed to extend
confidentiality to pre-mediation negotiations................................................24
1.2. Respondent’s “without prejudice offer” was not a genuine settlement offer..........24
1.3. Respondent’s status as a state-owned company mandates transparency.................25

3
 32ND ANNUAL WILLEM C. VIS INTERNATIONAL COMMERCIAL
ARBITRATION MOOT 11 APRIL – 17 APRIL 2025, VIENNA
1.3.1. Equatoriana’s commitment to transparency created a legitimate
expectation that Respondent would not seek to hide crucial documents in
this dispute..........................................................................................................26
1.3.2. The realisation of PSA is linked to public interests, which necessitates a
higher level of transparency..............................................................................25
1.3.3. Respondent’s invocation of confidentiality goes against its public
statements and commitments...........................................................................26
2. The Arbitral Tribunal has the power and should exclude internal legal assessment in exhibit
R3 as it was obtained illegally..............................................................................................................27
2.1. The tribunal has the power to determine the admissibility of evidence..................27
2.2. The tribunal should not admit Exhibit R3 into these proceedings.........................27
2.2.1. Admitting Exhibit R3 would violate procedural fairness and equality of
parties...................................................................................................................28
2.2.2. Admitting Exhibit R3 would breach the procedural duty to act in good
faith......................................................................................................................28
2.2.3. Exhibit R3 represents confidential and privileged information protected by
the attorney-client privilege..............................................................................29
2.2.4. Admitting Exhibit R3 would risk setting aside the award under DAL and
endanger enforceability of the award under NYC.........................................31
3. Art. 9.3. of the IBA rules allows Tribunal to exclude evidence that was obtained illegally or in
violation of ethical standards..............................................................................................................32
CLAIM 3: THE CISG APPLIES TO THE PSA.................................................................32
1. The PSA is an international sales contract under Art. 1[1][a] of the CISG..........................34
1.1. The Parties’ respective places of business are in different contracting states...............36
1.1.1. The delivery of goods by Volta Transformer nor its acquisition by Claimant does not
affect the international character of the PSA............................................................................37
1.1.2. The place of dispatch of goods does not affect Claimant’s place of business...........38

2. The PSA is not a sale by auction under Art. 2[b] of the CISG................................................40

2.1. Reverse auction conducted through public procurement does not fall under the term
“auction” in Art. 2[b] of the CISG..............................................................................................40

3. The CISG is not excluded under Art. 3[2] CISG.......................................................................40

3.1. The sale of the hydrogen plant constitutes the preponderant part of the PSA.............40

4
 32ND ANNUAL WILLEM C. VIS INTERNATIONAL COMMERCIAL
ARBITRATION MOOT 11 APRIL – 17 APRIL 2025, VIENNA
3.2. The sale of the hydrogen plant also constitutes the preponderant part of the PSA
according to the Parties intent....................................................................................................45

CLAIM 4: THE PARTIES HAVE NOT EXCLUDED THE APPLICATION OF THE

CISG UNDER ART. 6. CISG.............................................................................................46

1. The CISG applies to the PSA, as an integral part of Equatorianian law.............................46

2. There is no express intention of the Parties to exclude the application of the CISG under
its Art. 6..........................................................................................................................................47
3. There is no implied intention of the Parties to exclude the application of the CISG........48

REQUEST FOR RELIEF..................................................................................................49

CERTIFICATE..................................................................................................................50

5
 32ND ANNUAL WILLEM C. VIS INTERNATIONAL COMMERCIAL
ARBITRATION MOOT 11 APRIL – 17 APRIL 2025, VIENNA
TABLE OF ABBREVIATIONS
MfC Memo for Claimant
RfA Request for Arbitration
ARfA Answer to the Request for Arbitration
PSA Purchase and Service Agreement
VT Volta Transformer
VE Volta Electrolyser
CISG United Nations Convention on Contracts for the International Sale of Goods
RfQ Request for Quotation
EPC work Engineering, Projection and Construction work
PO2 Procedural Order number 2
PO1 Procedural Order number 1
CF Casefile
ENP Equatoriana National Party
DAL Danubian Arbitration Law
Arbitration Rules Arbitration Rules of the Finland Chamber of Commerce
Model Contract Equatoriana Model Contract for Government Entities
¶ Paragraph
p. Page
Art. Article
i.e. id est
Tribunal The Arbitral Tribunal of the Finland Arbitration Institute
Mediation Rules Mediation Rules of the Finland Chamber of Commerce
IBA Rules IBA Rules on the Taking of Evidence in International Arbitration
NYC Convention on the Recognition and Enforcement of Foreign Arbitral Awards

TABLE OF AUTHORITIES
Law and Practice of Escalation Clauses,
Berger Klaus Peter Arbitration International, Vol. 22, Issue 1, 1
March 2006
Cited as: Berger Cited in: ¶ 10

6
 32ND ANNUAL WILLEM C. VIS INTERNATIONAL COMMERCIAL
ARBITRATION MOOT 11 APRIL – 17 APRIL 2025, VIENNA
Born Gary International Commercial Arbitration, p.
Cited as: Born 3012, p.396, p. 3535–3536
Cited in: ¶ 30

Brekoulakis S., Kroll S., Mistelis L., UN Convention on Contracts for the
Raymond A., Spohnheimer F. International Sale of Goods: A Commentary
Cited as: Brekoulakis, Kroll commentary; 2nd Edition, 2018, Beck/Hart, introduction,
Kroll, Kroll commentary; ¶ 12; p. 47, ¶ 27, 28, 30; p. 59, ¶ 17-19; p.
Mistelis/Raymond, Kroll commentary; 189, ¶ 38
Spohnheimer, Kroll commentary Cited in: ¶ 86, ¶ 96, ¶ 98, ¶ 105, ¶ 118, ¶ 126
Brunner C., Streich R., Maier B. Commentary on the UN Sales Law [CISG],
Cited as: Brunner, Streich, Maier, Wolters Kluwer, 2019, p. 4, ¶ 35
Brunner/Gottlieb commentary Cited in: ¶ 98

Buttler Alisson „Place of Business“: Comparison between

Cited as: Buttler Provisions of the CISG [Article 10] and
Counterpart Provisions of UNIDROIT
[Article 1.10], p. 59-62, ¶13
Cited in: ¶ 86

CISG Advisory Council Opinion number 4 CISG Advisory Council Opinion number 4,
Cited as: AC Opinion no. 4 ¶ 1.1
Cited in: ¶ 102

CISG Advisory Council Opinion number 6 CISG Advisory Council Opinion number 6,
Cited as: AC Opinion no. 6 ¶ 4.5
Cited in: ¶ 128

CISG Advisory Council Opinion number 13 CISG Advisory Council Opinion number
Cited as: AC Opinion no. 13 13, ¶ 9.2
Cited in: ¶ 135

CISG Advisory Council Opinion number 16 CISG Advisory Council Opinion number
Cited as: AC Opinion no. 16 16, ¶ 3, 4[b][i]
Cited in: ¶ 127

Delvolvé J., Pointon G. French Arbitration Law and Practice, p. 253

Cited as: Devolve/Pointon Cited in: ¶ 68

7
 32ND ANNUAL WILLEM C. VIS INTERNATIONAL COMMERCIAL
ARBITRATION MOOT 11 APRIL – 17 APRIL 2025, VIENNA
Douglas Zachary The International Law of Investment
Cited as: Douglas Claims [2009], Cambridge University Press,
¶ 310
Cited in: ¶ 4
Ferrari Franco Kommentar zum UN-Kaufrecht [CISG]
Cited as: Ferrari 7th edition, C.H. Beck, 2019
Cited in: ¶ 127

Huber Peter Münchener Kommentar zum Bürgerlichen

Cited as: Huber, Munich Commentary Gesetzbuch, 9th edition, C.H. Beck, 2021
Cited in: ¶ 103

International Centre for Dispute Resolution ICDR Guidelines for Arbitrators

Cited as: ICDR Concerning Exchange of Information Art. 7
Cited in: ¶ 60

Johnson William Understanding Exclusion of the CISG: A

Cited as: Johnson New Paradigm of Determining Party Intent,
Buffalo Law Review, 1999, p. 259
Cited in: ¶ 128
Lüke G., Rauscher T., Wax P., Wenze J., Münchener Kommentar zur
Krüger W. Zivilprozessordnung, Münch [2001], § 1059
Cited as: MünchKommZPO Cited in: ¶ 68

Lookofsky Joseph Understanding the CISG, 5th edition, DJØF

Cited as: Lookofsky Publishing, 2017
Cited in: ¶ 129

Mankowski Peter International and European Business Law

Cited as: Mankowski, Mankowski by Schulze / Lehmann, Commercial Law:
commentary Article-by-Article Commentary, 2019,
Nomos
Verlagsgesellschaft, Verlag C. H. Beck oHG,
Hart Publishing p. 26, ¶ 8; p. 43, ¶ 2
Cited in: ¶ 105, ¶ 106
McLachlan Campbell Equality of Parties Before International
Cited as: McLachlan Investment Tribunals Institut de Droit
International, 18th Commission, Annuaire
79, Forthcoming,
Cited in: ¶ 53, ¶ 57

8
 32ND ANNUAL WILLEM C. VIS INTERNATIONAL COMMERCIAL
ARBITRATION MOOT 11 APRIL – 17 APRIL 2025, VIENNA
Muchlinski P., Ortino F., Schreuer C. The Oxford Handbook of International
Investment Law [2008], Oxford University
Cited as: Oxford Handbook Press, p. 831
Cited in: ¶ 5

Paulsson, Jan Global Reflections on International Law,

Commerce and Dispute Resolution, 2005, p.
Cited as: Paulsson 616–617
Cited in: ¶ 5
Savage J., Gaillard E. Fouchard Gaillard Goldman on
International Commercial Arbitration, p.
Cited as: Fouchard/Gaillard/Goldman 396
Cited in: ¶ 25
Schroeter Ulrich Internationales UN-Kaufrecht, 7th Edition,
Mohr Siebeck, 2022
Cited as: Schroeter Cited in: ¶ 127

Schwenzer I., Hachem P., Schmidt N., Kessel E.Schlechtriem and Schwenzer: Commentary
on The UN Convention on The
Cited as: Schwenzer/Hachem, International Sale of Goods [CISG], Fourth
Edition, 2016, Oxford University Press, p.
Schwenzer/Schlechtriem commentary; 69, ¶ 18; p. 109, ¶ 15; p. 110, ¶ 17; p. 119, ¶
Schmidt/Kessel, Schwenzer/Schlechtriem 5; p. 153, ¶ 21; p. 198, ¶ 2-3; p. 200, ¶ 6; p.
201, ¶ 9
commentary
Cited in: ¶ 84, ¶ 86, ¶ 105
Smythe Donald Reasonable Standards for Contract
Interpretation under the CISG, Cardozo
Cited as: Smythe Journal of International and Comparative
Law, 2016, p. 8
Cited in: ¶ 130
The IBA Arbitration Guidelines and Rules IBA Arbitration Guidelines and Rules
Subcommittee Subcommittee, ‘Report on the Reception of
IBA Arbitration Soft Law Products’ [2016
Subcommittee Report] ¶¶ 12–18, 2016
Cited As: IBA Arbitration Guidelines and Rules Cited in: ¶ 70
Subcommittee
UNCITRAL Yearbook III United Nations Commission on
International Trade Law Yearbook, III
Cited as: UNCITRAL Yearbook III 1972, 311, p. 79
Cited in: ¶ 102

9
 32ND ANNUAL WILLEM C. VIS INTERNATIONAL COMMERCIAL
ARBITRATION MOOT 11 APRIL – 17 APRIL 2025, VIENNA
Zuberbühler T., Hofmann D., et al. Commentary on the IBA Rules on the
Cited as: Zuberbühler, Hofmann Taking of Evidence in International
Arbitration [Second Edition, Admissibility
and Assessment of Evidence', Art 9., p. 211,
p. 208.
Cited in: ¶ 64

TABLE OF CASES AND ARBITRAL AWARDS

Aiton Australia Pty Ltd. v. Transfield Pty Ltd NSW Supreme Court
Cited as: Aiton case [1999] 2 VR 493

Cited in: ¶ 11
BTN v BTP, SGCA 105, Singapore Court of appeal, Civil
Cited as: Singapore case Appeal No. 165 of 2019.
Cited in: ¶ 5

CISG-online case no. 5508 CISG-online case no. 5508, Swiss Federal

Cited as: Facade Panels for Mountain Lodge Supreme Court, 04 January 2021
Case Cited in: ¶ 125

CISG-online case no. 4463 CISG-online case no. 4463, Swiss Federal

Cited as: Electronic electricity Meters Case Supreme Court, 28 May 2019, p. 5, ¶ 24

Cited in: ¶ 99

CISG-online case no. 254 CISG-online case no. 254, Court of Appeal

Cited as: Used Car Case Cologne, 21 May 1996

Cited in: ¶ 126

CISG-online case no. 1889 CISG-online case no. 1889, Austrian Supreme

Cited as: Boiler Case Court, 02 April 2009

Cited in: ¶ 127

CISG-online case no. 1889 CISG-online case no. 117, Austrian Supreme

Cited as: Chinchilla furs case Court, 10 November 1994

Cited in: ¶ 130

CISG-online case no. 585 CISG-online case no. 585, Court of Appeal

Cited as: Window production plant case Munich, 03 December 1999, ¶ 17

10
 32ND ANNUAL WILLEM C. VIS INTERNATIONAL COMMERCIAL
ARBITRATION MOOT 11 APRIL – 17 APRIL 2025, VIENNA
Cited in: ¶ 118

CLOUT Case No. 1021 CLOUT Case No. 1021, Foreign Trade Court

Cited as: CLOUT Case No. 1021 of Arbitration attached to the Serbian Chamber
of Commerce, 15 July 2008, p. 69, ¶ 4

Cited in: ¶ 86, ¶ 92

EDF [Services] Ltd v Romania ICSID Case No ARB/05/13, Procedural Order
Cited as: EDF case No 3 of 29 August 2008, ¶ 38, ¶¶ 48-49
Elizabeth Chong Pty Ltd v. Brown Elizabeth Chong Pty Ltd v Brown, Federal
Cited as: Brown case Magistrates Court of Australia, 22 July 2011,
FMCA 565
Cited in: ¶ 23
Halifax Financial Services Ltd. v. Intuitive Halifax Financial Services Ltd v. Intuitive
Systems Ltd. Systems Ltd [1998] 1997 H. No. 614, 1 All ER
Cited as: Halifax case [Comm] 303
ICC Award No. 7656 ICC Award No. 7656

Cited as: ICC Award No. 7656 Cited in: ¶ 128

Libananco Holdings co. v. Republic of Turkey ICSID Case No. ARB/06/8, ¶ 89
Cited as: Libananco case Cited in: ¶ 54
Methanex Corporation v United States NAFTA Chapter 11 arbitration, Award of 3
Cited as: Methanex case August 2005, pt II ch I ¶ 56
Cited in: ¶ 72
NWA and others v NVF and others 2021 EWHC 2666 [Comm] Case No: CL-2020-
Cited as: Sierra Leone case 000649
Cited in: ¶ 6
Party names unavailable Multi-Tiered Dispute Resolution Clauses in ICC
Cited as: ICC Case No 10256 Arbitration, ICC Case No 10256, Interim Award
[12 August 2000] in Figueres [n 2], p. 88-89
Cited in: ¶ 9
Poštová banka, a.s. and Istrokapital SE v. ICSID Case No. ARB/13/8; Award - 9 Apr
Hellenic Republic 2015
Cited as: Poštová banka v. Hellenic Republic Cited in: ¶ 65

11
 32ND ANNUAL WILLEM C. VIS INTERNATIONAL COMMERCIAL
ARBITRATION MOOT 11 APRIL – 17 APRIL 2025, VIENNA
Vantage Deepwater Company, Vantage ICDR Case No. 01-15-0004-8503, 28 June
Deepwater Drilling, Inc. v. Petrobras America 2018', Public Source Awards, Kluwer Law
Inc., Petrobras Venezuela Investments & International
Services, BV, Petróleo Brasileiro S.A. [Petrobras Cited in: ¶ 33
Brazil], [Final Award]
Cited as: Vantage case
Waste Mgt, Inc. v. United Mexican States Waste Mgt, Inc. v. United Mexican States,
Cites as: Waste Mgt case Dissenting Opinion of Keith Highet in ICSID
Case No. ARB[AF]/98/2 of 8 May 2000, ¶58
Cited in: ¶ 16

STATEMENT OF FACTS

GreenHydro PLC [“Claimant”] is an engineering company from Mediterraneo, specializing in

planning, constructing, and selling plants for renewable energy production. Equatoriana RenPower
[“Respondent”] is a fully government-owned company that operates Equatoriana’s power
infrastructure.

In accordance with Equatoriana’s government “Green Energy Strategy”, whose goal was to
decarbonize its industry and introduce renewable energy sources, on 3 January 2023, Respondent
invited bids for the construction and delivery of a plant to produce green hydrogen and potential
derivatives. The Request for Quotation [“RFQ”] was published via an official tender platform, in
accordance with the Public Procurement Law of Equatoriana, as a reverse auction. One of the
RFQ’s conditions required that each quotation has a minimum of 25% of materials of local origin.

Claimant’s offer satisfied all quotation requirements, and therefore, beginning in early May 2023,
Claimant was chosen amongst two final bidders, who entered specific negotiations with
Respondent. For this project to serve as a showcase for new hydrogen technology, Claimant was
ready to give up on all profits. On 13 July 2023, it was agreed between the parties that the Claimant
would lower its already competitive price by 5%. The new renegotiated price amounted to losses
of EUR 15 million for Claimant. In return, the Respondent gave up its right to terminate the
agreement for convenience and agreed to certain commitments concerning the sharing of data.

The project itself would provide a great opportunity for Claimant to introduce its new technology
and demonstrate the advantages of its patent-protected production process. The strong support

12
 32ND ANNUAL WILLEM C. VIS INTERNATIONAL COMMERCIAL
ARBITRATION MOOT 11 APRIL – 17 APRIL 2025, VIENNA
given by the Equatorianian government, evident in the expedited planning and permission process,
gave the impression of a short time frame which only increased Claimant’s attractiveness to the
project.

On 17 July 2023, the parties signed the Purchase and Service Agreement [“PSA”], which provides
that Claimant is to deliver a plant of 100 MW for a price of EUR 285 million. Additionally,
Claimant would grant the Respondent two options for the extension of the plant in capacity of
another 100 MW and eAmmonia production option.

On 25 August 2023, Claimant had, fulfilling its obligations under the PSA, concluded a contract
with Volta Transformer from Equatoriana which was to provide 40% of the electrolyser stacks
and packaging for the project, greatly exceeding the required 25% minimum. Claimant has put
great efforts into increasing the overall participation of entities from Equatoriana in the project.
For those reasons, Claimant conducted negotiations with another Equatorianian company P2G,
which was supposed to cooperate with Claimant for the eAmmonia module. Unfortunately, the
negotiations failed due to quality issues, but Claimant signed the contract with Green Ammonia
from Danubia. This hasn’t affected the PSA requirements on local content participation.

In October 2023, the shift in Equatoriana’s government led to changes in Respondent’s

management structure and a revision of the Green Energy Strategy. The new minister considered
the Strategy too strict and too focused on quotas for green hydrogen. Claimant was cautioned
about the upcoming revision and possible termination of all contracts which don’t fit the new
policy objectives.

On 29 February 2024, Respondent notified the Claimant about the termination of the PSA. The
alleged reason was a delay of 28 days in delivering the final plans for the entire plant, including the
options. However, this delay does not constitute a fundamental breach under the CISG, and the
Respondent waived its right to terminate the contract for convenience in exchange for a 5% price
reduction.

The true motivation behind Respondent’s termination decision became evident in the
negotiations that followed. Henry La Cour, Respondent’s new CEO, demanded an additional
price reduction of 15% or more, stating that further discussions with Claimant would only be
worthwhile if Claimant agreed to such a reduction, or at least a 'two-digit' price cut. This demand
was entirely unacceptable for Claimant, especially given that the original price had already been

13
 32ND ANNUAL WILLEM C. VIS INTERNATIONAL COMMERCIAL
ARBITRATION MOOT 11 APRIL – 17 APRIL 2025, VIENNA
set on a cost-only basis, with no profit margin. Despite this, Claimant agreed to an additional 5%
reduction in prior negotiations, offering the lowest possible price. Respondent’s request for a
further 15% reduction, knowing that Claimant had already reached its maximum concession,
underscores that Respondent’s primary aim was to drive the price down under the pretense of
policy changes.

The facts demonstrate Claimant's commitment to fulfilling its contractual obligations, in contrast
to Respondent’s intent to reduce its obligations under the guise of policy changes. Respondent’s
unreasonable demand for further price reductions—despite Claimant's already substantial
concessions—clearly indicates that negotiation cannot lead to an amicable solution. Claimant,
therefore, firmly believes that the only path to justice in this dispute is to compel Respondent to
fully honor its commitments under the PSA.

LEGAL FRAMEWORK

Regarding the dispute at hand, the Parties agreed upon a dispute resolution in Art. 30 of the PSA.
This article states that any dispute, controversy or claim arising out of or relating to this contract,
or the breach, termination or validity thereof, shall finally be settled by arbitration. The parties
arbitration agreement is in the form of a provision of the PSA. Parties consented that arbitration
shall be conducted in accordance with the Rules for Expedited Arbitration of the Finland Chamber
of Commerce and that, at the request of party, the Arbitration Institute of the Finland Chamber
of Commerce may determine the Arbitration Rules of the Finland Chamber of Commerce shall
apply instead of Rules for Expedited Arbitration if the Arbitration Institute considers this to be
appropriate considering relevant circumstances. The language of the arbitration is to be in English,
the seat of arbitration will be in Vindobona, Danubia and the arbitral tribunal shall be appointed
in accordance with the Arbitration Rules, by which the parties may jointly nominate a sole arbiter
for confirmation within 10 days from the date on which the Claimant received the Answer. If the
time limit is passed, the Board will appoint the sole arbitrator. Lex arbitri is Danubian Arbitration
Law and Finnish Arbitration Institute Arbitration Rules. Danubia, as well as Mediterraneo and
Equatoriana, are Member States of the New York Convention.

The Parties in Art. 29 of the PSA concluded a choice of law clause which indicated that the law
applicable to the contract is the law of Equatoriana. This law also encompasses the CISG, as

14
 32ND ANNUAL WILLEM C. VIS INTERNATIONAL COMMERCIAL
ARBITRATION MOOT 11 APRIL – 17 APRIL 2025, VIENNA
Equatoriana is a signatory to the CISG and according to the Convention, it is directly applied when
the Parties choose a law of a contracting state. However, the Parties have the ability to exclude its
application in accordance with Art. 6 of CISG. Additionally, Danubia, which is the seat of
arbitration, and Mediterraneo are also signatories to the CISG.

INTRODUCTION INTO ARGUMENTS

PART I: THE TRIBUNAL HAS JURISDICTION AND SHOULD ADMIT THE

CLAIM AS PART OF ITS DISCRETION

The Tribunal's jurisdiction to hear this case derives from the agreement of the Parties i.e. the Art.
30 of PSA. The Claimant's claim is admissible since it was submitted in a timely manner and is
legally appropriate. The Tribunal has the discretion to arbitrate in this case in accordance with Art.
19 of DAL and admit the claim.

PART II: THE TRIBUNAL SHOULD ADMIT EXHIBIT C7 AND SHOULD

EXCLUDE EXHIBIT R3

The Tribunal should admit the evidence Exhibit C7 since the confidentiality protection clause
from Art. 15 of the Mediation Rules does not apply to pre-mediation negotiations. The Tribunal
should exclude Exhibit R3 because its inclusion in evidence would violate procedural fairness, and
equality of parties and would result in a breach of the procedural duty to act in good faith.

PART III: THE CISG APPLIES TO THE PSA

The Parties to the PSA come from different contracting states of the CISG, therefore the CISG
should apply according to Art. 1[1]. Respondent disputes this, as according to it, Claimant had
a place of business in Equatoriana, the state where Respondent has its place of business.
According to Respondent this was established because Claimant hired a subcontractor named
Volta Transformer, whose place of business was in Equatoriana, for the delivery of the transformer
and a part of the electrolyzers to Respondent as at the time it “almost exclusively produced for
Claimant“ and the fact that it was acquired by Claimant. Additionally, Respondent claims that
as the PSA was concluded through a reverse auction process, the CISG should not apply, as reverse
auctions are apparently excluded from the CISG according to Art. 2[b]. Finally, Respondent
argues that the PSA is a mixed contract whose preponderant part is the service obligation,
therefore the CISG should not apply, according to Art. 3 [2] of the CISG. Claimant will prove

15
 32ND ANNUAL WILLEM C. VIS INTERNATIONAL COMMERCIAL
ARBITRATION MOOT 11 APRIL – 17 APRIL 2025, VIENNA
that the fact that Volta Transformer exclusively produced for Claimant at the given time and the
fact that it was acquired by Claimant does not affect the internationality of the PSA. Additionally,
Claimant will dispute the fact that the PSA falls outside of the scope of application of the CISG,
as the way the bids for the awarding of the contract were simply a step for further negotiations,
therefore the CISG should apply. Finally, Claimant will demonstrate that, even though the PSA
is a mixed contract, its preponderant obligation is the sales obligation, therefore making the CISG
applicable.

PART IV: THE PARTIES HAVE NOT EXCLUDED THE APPLICATION OF THE
CISG UNDER ART. 6. CISG

The PSA has a choice of law clause applicable to the contract in Art. 29, which states: “...the
agreement is governed by the law of Equatoriana, with the exclusion of its conflict of laws
principles”. According to Respondent, the Parties, by choosing Equatorianian law, validly
excluded the application of the CISG. Respondent further argues that because the Parties agreed
to exclude the conflict of laws principles, they therefore excluded the application of the CISG.
However, Claimant will prove that the applicable law of Equatoriana within itself contains the
CISG. Additionally, Claimant will dispute the fact that the Parties excluded the application of the
CISG to the PSA, as this exclusion has to be made either explicitly or implicitly, which the Parties
never intended to do.

I. THE TRIBUNAL HAS JURISDICTION AND SHOULD ADMIT THE CLAIM AS PART
OF ITS DISCRETION

1. Before diving into the substance of the case and legal evaluation of facts, it is necessary to address
matters of the Tribunal’s jurisdiction and admissibility of the RfA. The Claimant will prove that the
Tribunal has jurisdiction to decide this case [1.] and should admit the Claimant’s requests since they
are admissible [2.] and the Tribunal holds discretionary power to admit the claims in any case [3].

1.The Tribunal has the jurisdiction over claim

2. To resolve the matter of jurisdiction, this Tribunal needs to look at applicable legal sources. The
Parties concluded a valid arbitration agreement in the main contract [C2, p. 12, Art. 30], which was
signed by both parties on 17 July 2023. The dispute resolution clause is as follows:

16
 32ND ANNUAL WILLEM C. VIS INTERNATIONAL COMMERCIAL
ARBITRATION MOOT 11 APRIL – 17 APRIL 2025, VIENNA
“Any dispute, controversy, or claim arising out of or relating to this contract, or the breach, termination, or validity thereof,
shall first be submitted to mediation in accordance with the Mediation Rules of the Finland Chamber of Commerce.

[a] The place of mediation shall be Danubia.

[b] The language of the mediation shall be English.

Any dispute, controversy or claim arising out of or relating to this contract, or the breach, termination or validity thereof, shall
be finally settled by arbitration in accordance with the Rules for Expedited Arbitration of the Finland Chamber of
Commerce. However, at the request of a party, the Arbitration Institute of the Finland Chamber of Commerce may
determine that the Arbitration Rules of the Finland Chamber of Commerce shall apply instead of the Rules for
Expedited Arbitration, if the Arbitration Institute considers this to be appropriate, taking into account the amount in
dispute, the complexity of the case, and other relevant circumstances.

[a] The seat of arbitration shall be in Vindobona, Danubia.

[b] The language of the arbitration shall be English.”

3. The Parties, in this case, come from different countries, Equatoriana and Mediterraneo. PSA Art.
30 provides that the seat of arbitration shall be in Danubia [C2, p. 13], which has adopted
UCNITRAL Model Law on International Commercial Arbitration as DAL [PO2, p. 51, ¶ 4]. Art.
16 of DAL provides that the Tribunal is competent to rule on its own jurisdiction.
4. The Respondent wrongfully claims the Tribunal lacks jurisdiction to decide the case because the
mediation proceedings were not initiated. [p. 27, ¶ 4]. Contrary to these assertions, Claimant
argues that this Tribunal has jurisdiction since the issue of mediation in no way affects the
Tribunal’s jurisdiction. Mediation is not a condition precedent for the Tribunal’s jurisdiction.
Whether mediation has been agreed upon or not, the Tribunal still has the jurisdiction based on
Art. 30 of PSA. There could only be a discussion about whether the RfA is admissible.
5. Claimant points out that the Tribunal's decision on objections regarding preconditions to
arbitration, like time limits and the fulfillment of conditions precedent such as conciliation
provisions before arbitration may be pursued, are matters of admissibility, not jurisdiction
[Singapore case; Paulsson]. The term ‘jurisdiction’ concerns the competence of the arbitrators to hear
a specific dispute and is related to the parties’ consent [The Oxford Handbook]. In contrast,
admissibility concerns the dispute and whether it is ready for adjudication by competent arbitrators
[Douglas]. It relates to procedural requirements - whether it is appropriate for the Tribunal to hear
it.
17
 32ND ANNUAL WILLEM C. VIS INTERNATIONAL COMMERCIAL
ARBITRATION MOOT 11 APRIL – 17 APRIL 2025, VIENNA
6. Therefore, the jurisdiction of the Tribunal in this arbitration is unquestionable since the parties
consented and concluded a valid arbitration agreement. Consequently, the question of the
admissibility of the claim does not affect the jurisdiction in any way. [Sierra Leone case]. The problem
of admissibility will be further elaborated.

1.1. The mediation clause does not constitute a condition precedent for arbitration

7. To assess whether compliance with the mediation requirement is a requirement for the
admissibility of the claim, it is important to understand the legal nature of the dispute resolution
clause and its meaning. Subsequently, the parties agreed to a multi-tier dispute resolution clause in
the PSA [1.1.1.]. Yet, the mediation clause contained in the dispute resolution clause does not
constitute an obligation for the parties [1.1.2.].

1.1.1. Multi-Tier Dispute Resolution Clause Does Not Require Mediation as a

Precondition for Arbitration

8. The parties agreed to a multi-tier dispute resolution clause in the PSA. They agreed that all eventual
disputes which arise from the PSA are to first be submitted to mediation and agreed on the
application of Mediation Rules [C2, p. 12, Art. 30]. However, Claimant asserts that does not mean
a Party cannot request arbitration before requesting mediation. The Mediation Rules, Art. 11.1,
clarify that an agreement to mediate “does not constitute a bar to any judicial, arbitral or similar proceedings”
unless otherwise agreed by the parties. There is no evidence in the PSA or otherwise that the
parties agreed to restrict access to arbitration in this way. The wording of the arbitration clause
leaves no room for doubt. PSA states that: “any dispute… arising out of or relating to this
contract… shall be finally settled by arbitration”. Mediation was a preferred way of dispute resolution,
however not the only one. The Parties never agreed mediation was a condition prerequisite for the
commencement of arbitration.

1.1.2. The mediation clause does not constitute an obligation for the parties

9. The wording, i.e. the specificity of the language, is crucial for the interpretation of a multi-tier
clause. Parties who want to strictly enforce multi-tier clauses need to use mandatory and specific
language [such as defining a time limit in which mediation must be initiated]. Dispute resolution
clauses requiring efforts to reach an amicable settlement, before commencing arbitration, are
primarily expressions of intention and should not be applied to oblige the parties to engage in

18
 32ND ANNUAL WILLEM C. VIS INTERNATIONAL COMMERCIAL
ARBITRATION MOOT 11 APRIL – 17 APRIL 2025, VIENNA
fruitless negotiations or to delay an orderly resolution of the dispute [ICC Case No 10256, p. 88-
89].
10. In this case, there were no definitive provisions for conducting mediation. Drafting a multi-tiered
dispute resolution clause requires specific care because of various mechanisms within different
steps and when drafted without sufficient consideration, such provisions are unenforceable since
they are insufficiently certain or definite. [Berger; Born, Validity and Enforceability of Agreements to
Mediate Disputes, p. 986-987].
11. In the case of Aiton Australia Pty Ltd. v. Transfield Pty Ltd [Aiton case], the court considered two
requirements for an agreement to conciliate or mediate to be enforceable: it should be expressed
as a condition precedent to litigation or arbitration and it should be sufficiently certain. In the
present case, none of the two requirements has been satisfied. The Parties never agreed to a
condition precedent for arbitration, as was already elaborated earlier [MfC p. 14, ¶7]. The PSA
also does not provide any certain provisions regarding mediation, except the declaratory statement
which is non-obligatory.
12. The mediation clause from the PSA slightly deviates from the FAI model clause. The following
sentence was omitted:

“The commencement of proceedings under the Mediation Rules shall not prevent any party from commencing arbitration
in accordance with the clause below.”

13. However, even though this part was omitted, this still does not mean arbitration cannot be
initiated. In the absence of specific regulations, general rules apply. The Parties expressly agreed
to be bound by Mediation Rules, which as a general rule provide that an agreement to mediate
does not constitute a bar to arbitral proceedings.
14. Therefore, the only possible conclusion is that the mediation clause was merely a declaration of
intent for the resolution of disputes in a friendly manner and does not constitute an obligation for
the parties.

2. Compliance with the mediation requirement is related to the admissibility of the claim

15. As previously mentioned, whether mediation was conducted does not affect the Tribunal's
jurisdiction. Claimant can agree with Respondent that compliance with the mediation
requirement could be seen as a requirement for the admissibility of the claim in theory. However,
Claimant strongly objects to Respondent’s assertions that Claimant’s claim should not be heard
in front of this Tribunal.
19
 32ND ANNUAL WILLEM C. VIS INTERNATIONAL COMMERCIAL
ARBITRATION MOOT 11 APRIL – 17 APRIL 2025, VIENNA
16. While a prerequisite for conducting arbitral proceedings is the admissibility of the claim,
admissibility refers to the acceptability of a claim within the already established arbitration
agreement. It is possible for a tribunal to have jurisdiction but still rule the claim inadmissible on
grounds relating to the case itself – not relating to the role or powers of the Tribunal [Waste Mgt
Case]. Such grounds exist if the claim is premature, late, or legally inappropriate. However,
Claimant’s claim is admissible in any case since it is not premature [2.1.]. Even if this Tribunal
would find that mediation was premature and as such a condition precedent for this arbitration,
Claimant reiterates that conducting mediation would be futile, which gave Claimant the right to
raise the claim directly to this Tribunal [2.2.].

2.1. The claim is admissible

17. For a claim to be admissible, it has to be first submitted within the relevant time limits according
to the contract, and second, it has to be legally appropriate.
18. In Art. 30 of PSA, Parties did not set any time limits for the initiation of the proceedings.
Therefore, the claim is neither premature nor late, which deems it admissible. The PSA does not
require any condition-precedents that need to be fulfilled before the arbitral proceedings [MfC p.
13, ¶7]. Art. 30 provides that all disputes relating to the termination and validity of the agreement
will be finally settled by arbitration. The Claimant’s request is aimed at compelling the Respondent
to honor the PSA. Therefore, the Claimant’s request is legally appropriate. In conclusion,
Claimant’s claim is submitted in a timely manner, is legally appropriate and is therefore admissible.

2.2. The mediation attempt is pointless in this case

19. Mediation is a voluntary process, and its prerequisite is the willingness of both parties to find an
amicable settlement. The applicable Mediation Rules define mediation as a “voluntary and
confidential process in which a neutral third party [a mediator] assists the parties [two or several]
in settling their disputes amicably. “
20. Unfortunately, there was no such willingness on the Respondent's side. Respondent refused to
make due payments, and when Claimant performed its obligation and delivered plans for the
eAmmonia option, the Respondent terminated the PSA the following day [PO2, p. 54 ¶ 23]. It
is worth noting that the delay in delivering plans was entirely due to problems on the side of Green
Ammonia, of which Respondent was promptly informed.
21. The facts also demonstrate Respondent was not interested in an amicable resolution and its only
objective was to reduce the already low price further. Claimant called upon Respondent to
20
 32ND ANNUAL WILLEM C. VIS INTERNATIONAL COMMERCIAL
ARBITRATION MOOT 11 APRIL – 17 APRIL 2025, VIENNA
engage in further discussions and try to find an amicable settlement, but there was no response
from the Respondent [PO2, p. 55 ¶ 24]. Respondent never indicated that it would be inclined
to participate in mediation and there was no specific request after the dispute had arisen and before
the RfA had been submitted [PO2, p. 53, ¶ 14]. Not only Respondent was not willing to negotiate
fairly, but Respondent’s Chief Executive Officer, Henry la Cour, informed Claimant that any
further discussion only makes sense if Claimant is willing to accept a serious price reduction of
15% or at least a two-digit number [C7, p.20]. Evidently, Claimant was not given a choice but
was backed in the corner with the Respondent’s “in the interest of keeping the good relationship”
offer.
22. It is worth noting that under FAI Mediation rules, the parties may agree to stay any judicial, arbitral
or similar proceedings and to initiate FAI Mediation, yet Respondent to this day never made such
a request, showcasing it has no intent in actually resolving this dispute amicably [Art. 11.2].
23. This Tribunal should consider that forced mediation between the parties would be futile and its
only real effect would be to add to expense and delay [Halifax case]. Futility refers to pointlessness
or lack of effectiveness of an action. Futility exception is well established in international
investment disputes and commercial arbitration in cases where resorting to a certain legal remedy
would be ineffective [Brown Case]. Accordingly, any attempt to mediate with Respondent would
be unsuccessful and would only prolong the inevitable result of this dispute being settled by
arbitration. The process would only amount to an unnecessary loss of time and money. That is
evident by Respondent’s intentions in Exhibit C7 and the fact that Respondent refused to
engage in further discussions even though Claimant warned it would resort to arbitration [PO2,
p. 55, ¶ 24]. It was of the utmost importance for the Claimant to finish this project by 2026. It
is supposed to present the Claimant's competence in larger projects and attract new customers.
Claimant’s already attractive price left them operating at a EUR 15 million loss, which Claimant
can only recoup with new customers.
24. Subsequently, any attempt made by Claimant to try and resolve this dispute via mediation would
be futile, would cost both parties time and money, and in the end, both Parties would find
themselves in this arbitration nevertheless.

3. The Arbitral Tribunal has the discretion to admit the claim

25. Art. 16 of DAL provides that the tribunal may rule on its own jurisdiction, including any objections
with respect to the existence or validity of the arbitration agreement. This rule is widely known as
the Competence-Competence rule [Fouchard/Gaillard/Goldman, p. 396]. Art. 30 of PSA provides

21
 32ND ANNUAL WILLEM C. VIS INTERNATIONAL COMMERCIAL
ARBITRATION MOOT 11 APRIL – 17 APRIL 2025, VIENNA
that: any dispute, controversy or claim arising out of or relating to this contract, or the breach,
termination, or validity thereof, shall be finally settled by arbitration. As already established, the
Tribunal has the power to rule on its jurisdiction and it has jurisdiction to hear this case.
26. Additionally, it is in the discretion of the Tribunal to resolve the dispute, and before everything
else, rule on the admissibility of the claim. DAL provides grounds for displaying initiative in solving
any procedural question not regulated in the arbitration agreement or the applicable arbitration
law [Art. 19 DAL; Explanatory Note]. Therefore, this Tribunal has discretionary power to admit
Claimant’s claim and guide these proceedings in a manner it considers appropriate.

II. The Arbitral Tribunal should admit exhibit C7 and order the exclusion of exhibit R3

27. It is interesting how Respondent is trying to ensure that any evidence that is harmful to its
position, which shines a light on its true intentions, should be excluded. On the other hand,
evidence that benefits the Respondent’s contention to get away from its contractual obligations
is being pushed into this arbitration, irrespective of the illegality of such evidence.
28. Respondent argues that Claimant engaged in a blatant breach of the confidentiality of the
negotiations between the Parties by submitting Exhibit C7 into this proceeding. [ARfA, p. 27, ¶
17] Irrespective of this, the Arbitral Tribunal should admit Exhibit C7 which contains an email
that Respondent sent for the purpose of further lowering the already attractive price, with the
goal of offering an ultimatum to Claimant, and order the exclusion of Exhibit R3 which was
illegally obtained containing confidential communication between the in-house counsel and
employees of Claimant.

1. The Arbitral Tribunal should admit the „without prejudice offer” in exhibit C7 as non-
confidential

29. The Respondent has argued that the Claimant’s use of the “without prejudice offer” should be
rejected on the grounds that confidentiality extends to such offers under the applicable rules [CF,
p.27, ¶17]. However, this argument fails for two key reasons. First, the confidentiality of the
“without prejudice offer” is not automatically extended unless the parties have expressly agreed to
such confidentiality. Second, the offer itself was not made in good faith as part of a genuine
settlement negotiation but was rather framed as an ultimatum that was coercive in nature. As such,
the Tribunal should admit the evidence of the "without prejudice offer" as it is not protected by
confidentiality, and its use is necessary to expose bad faith conduct on the part of the Respondent.

22
 32ND ANNUAL WILLEM C. VIS INTERNATIONAL COMMERCIAL
ARBITRATION MOOT 11 APRIL – 17 APRIL 2025, VIENNA
30. It is necessary to distinguish between the terms “without prejudice” and confidentiality. The term
“without prejudice” is primarily concerned with the admissibility of evidence in proceedings and
does not extend to confidentiality unless explicitly agreed to by the parties. The without prejudice
rule serves to protect settlement negotiations and promote dispute resolution but does not
automatically impose confidentiality on the entire negotiation process. Confidentiality is in the
domain of parties’ autonomy and has to be agreed upon between them [Born, pp. 3012]. The
Parties never agreed on the confidentiality of negotiations, which will be elaborated on later. [MfC
1.1.2.]

1.1. Mediation Rules do not cover pre-mediation negotiations

31. Claimant strongly disagrees with Respondent’s incorrect statements that confidentiality extends
to “without prejudice offer”. Firstly, Mediation Rules apply only to formal mediation proceedings
[1.1.1.], secondly, parties never agreed on the confidentiality of all negotiations before the start of
formal mediation or arbitration proceedings [1.1.2.]. Thirdly, Mr. Deiman’s email does not indicate
that Claimant agreed to extend confidentiality to pre-mediation negotiations [1.1.3.].

1.1.1. Art. 15 of the Mediation Rules applies only to formal mediation proceedings

32. Respondent’s claim that Article 15 of the Mediation Rules extends to pre-mediation negotiations
based on the drafting of the contract is false because for confidentiality to be extended, the parties
must explicitly agree on its extension based on Art. 15 of Mediation Rules. The rules state that the
existence and outcome of mediation will be confidential, as well as all information obtained during
the mediation [Art. 15]. Confidentiality was never extended to pre-mediation negotiations and
since mediation was never initiated, confidentiality rules from Art. 15 do not apply to Exhibit C7.

1.1.2. Parties never agreed on the confidentiality of all negotiations before the start of
formal mediation or arbitration proceedings

33. For confidentiality to be extended, the parties must agree on its extension as well as the scope of
the extension. Contrary to Respondent’s assertions, the parties never agreed for confidentiality
to be extended. An example of an agreement for the extension of confidentiality can be found in
the Vantage case, where the Parties agreed that any Dispute and any negotiations and arbitration
proceedings between the Parties in relation to any Dispute shall be confidential and will not be
disclosed to any third party. The Parties further agreed that any information, documents or
materials produced for the purposes of, or used in, negotiations, mediation or arbitration of any
23
 32ND ANNUAL WILLEM C. VIS INTERNATIONAL COMMERCIAL
ARBITRATION MOOT 11 APRIL – 17 APRIL 2025, VIENNA
Dispute shall be confidential and will not be disclosed to any third party [Vantage case, ¶ 22, [M],
[N], [2]].
34. Such provisions were never agreed to in PSA, therefore nothing prevents Claimant from
presenting Exhibit C7 as evidence. If the Respondent claims that confidentiality was extended
based on the drafting history of the contract, the burden of proof falls on the Respondent.

1.1.3. Mr Deiman’s email does not indicate that Claimant agreed to extend
confidentiality to pre-mediation negotiations

35. Mr. Deiman’s email mentioned confidentiality in the context of confidentiality of any future ADR
proceedings. That means all future dispute resolution proceedings are confidential for the general
public i.e. for all except the Respondent, Claimant, and the Tribunal. That is why Mr. Deiman
mentioned Art. 15 of Mediation Rules and Art. 51 and 52 of Arbitration Rules [R2, p. 31, ¶ 2]. As
already explained earlier [MfC, p. 18 ¶ 32] confidentiality obligations from Mediation Rules are
non-applicable.
36. The Tribunal is already bound by confidentiality in Art. 51 of FAI Arbitration Rules. Therefore,
all information acquired in this proceeding is confidential and not available to the general public.
Developments in Danubia’s legal sphere regarding “the protection of confidentiality agreements
in negotiations and ADR proceedings” in Exhibit R4 merely present an appeal by legal
professionals to Danubian legislators for the change of law. Even though numerous proposals
were presented to legislators, none were enacted and did not constitute positive law.

1.2. Respondent’s “without prejudice offer” was not a genuine settlement offer

37. The Respondent’s “without prejudice offer” should not be treated as a legitimate settlement
proposal, as it was not made in good faith. Instead of offering a genuine attempt to resolve the
dispute, the offer was a coercive ultimatum designed to force the Claimant into accepting
unfavorable terms or face the termination of the contract. This conduct undermines the very
purpose of settlement negotiations and demonstrates that the offer was not made with the
intention of resolving the dispute amicably. For the following reasons, the Respondent’s offer
cannot be considered a genuine settlement offer.
38. To quote Respondent once again: “Any further discussion between us or our lawyers only makes
sense if Green Hydro is willing to accept a serious price reduction of 15% or at least a two-digit
number” [C7]. In Claimant’s Exhibit C 7, Respondent’s language used to frame an ultimatum

24
 32ND ANNUAL WILLEM C. VIS INTERNATIONAL COMMERCIAL
ARBITRATION MOOT 11 APRIL – 17 APRIL 2025, VIENNA
as a genuine settlement offer is blatant evidence of a breach of good faith obligations by
Respondent.

1.3. Respondent’s status as a state-owned company mandates transparency

39. As a fully state-owned entity, Respondent holds a position of public trust and accountability.
Under both domestic and international principles of governance for state enterprises, transparency
in its operations and decision-making processes is not just an ethical expectation but also a legal
and policy-driven obligation. Respondent was explicitly tasked with implementing Equatoriana's
"Green Energy Strategy," a central government initiative aimed at achieving ambitious
decarbonization targets. This mandate inherently subjects Respondent to higher standards of
openness, given the substantial public interest in the effective use of state resources and adherence
to policy objectives.

1.3.1. Equatoriana’s commitment to transparency created a legitimate expectation that

Respondent would not seek to hide crucial documents in this dispute

40. Given the political backing of the Green Energy Strategy, the PSA is a high-profile project that
aligns with national priorities, such as meeting climate goals. As such, there is a political interest in
ensuring the project proceeds effectively and efficiently. Transparency is needed to prevent
political backlash, as any failure or inefficiency could harm the government's credibility. Exhibit
C5, which highlights how shifts in political leadership impacted the project, demonstrates the
public nature of the PSA's realisation and its dependence on political goodwill. Media coverage
and public debates on the project are not only common but also crucial in ensuring that public
resources are used responsibly. A failure to disclose key aspects of the project would risk
undermining the project’s legitimacy in the eyes of both local communities and international
stakeholders. Media coverage in Exhibit C3 underscores the public interest in the project and
highlights the need for transparency in its realisation.

1.3.2. The realisation of PSA is linked to public interests, which necessitates a higher
level of transparency

41. The Green Energy Strategy [Exhibit C3] highlights the significant role of RenPow in advancing
national energy goals, further solidifying the need for openness. Respondent is a state-owned
company with the goal of implementing Equatoriana's Green Energy Strategy, a public policy
aimed at achieving decarbonization and sustainable energy goals. This creates a need for greater
25
 32ND ANNUAL WILLEM C. VIS INTERNATIONAL COMMERCIAL
ARBITRATION MOOT 11 APRIL – 17 APRIL 2025, VIENNA
transparency in the decisions related to major public infrastructure projects, especially those
involving green energy and technological innovation. Public interest demands that these projects
be open to criticism from the public to ensure they are in line with national environmental goals,
avoid waste, and maximize societal benefits.
42. RfQ requires clear and transparent reporting on local content, which helps ensure public interests
are met. The local content requirements are another element directly tied to the PSA's public
interest. By promoting local economic benefits—such as involving local manufacturers and service
providers—the PSA is designed to ensure the project contributes to the national economy. For
such goals to be realized, transparency is key. The public, as well as governmental stakeholders,
must be able to access relevant information about how well these goals are being met. Without
transparency, there is a risk of corruption or inefficiencies, both of which undermine public trust
in the project.

1.3.3. Respondent’s invocation of confidentiality goes against its public statements and
commitments.

43. Respondent's request to exclude Exhibit C7 by invoking confidentiality contradicts its prior
public statements and commitments, which emphasize transparency and collaboration in
implementing the Green Energy Strategy. As a 100% state-owned company with political interests
in promoting green energy infrastructure, Respondent has repeatedly confirmed its dedication to
openness, as demonstrated during the tender process and through the extensive media coverage
that followed the Agreement [C3].
44. It can be seen from the agreement that this cooperation was public, particularly Article 27 [PSA],
which explicitly permits the sharing of project-related data for marketing purposes. This provision
highlights Respondent’s acceptance of limited transparency to promote the project’s broader
goals. Respondent’s reliance on confidentiality here is inconsistent with its behavior during
negotiations, where it openly sought to use the project for political and financial gain, as evidenced
by its without-prejudice offer in Exhibit C7. Respondent’s invocation of confidentiality in this
instance is inconsistent with these public commitments. Respondent’s without-prejudice offer
seeking an unrealistic 15% price reduction reveals how Respondent used this offer to make the
Claimant reject said offer and use it as a reason for termination of the contract, contrary to its
publicized dedication to decarbonization and innovation.
45. Allowing Respondent to selectively invoke confidentiality to suppress evidence of such behavior
undermines its stated goals of transparency and collaboration. Respondent transparency goals are

26
 32ND ANNUAL WILLEM C. VIS INTERNATIONAL COMMERCIAL
ARBITRATION MOOT 11 APRIL – 17 APRIL 2025, VIENNA
evident when they publicly endorsed the project as part of its strategy to decarbonize the energy
sector, highlighting the innovative technology and potential local economic benefits through
partnerships with private enterprises. Therefore, the Tribunal should reject Respondent’s request
to exclude Exhibit C7 and recognize its relevance to understanding the context of Respondent’s
actions and motivations in the dispute.

2. The Arbitral Tribunal has the power and should exclude internal legal assessment in exhibit
R3 as it was obtained illegally

46. Claimant requests from this Tribunal to remove Exhibit R3 and all information contained therein
from the proceedings. The document was obtained most likely in the course of an illegal criminal
investigation used by the Government of Equatoriana, probably instigated by Respondent, to
pressure Claimant into settling the dispute on favorable terms for Respondent.
47. This Tribunal has the power to order such exclusion [2.1.] and should exercise its power to exclude
since this Tribunal cannot and should not render an arbitral award based on evidence that would,
if admitted, violate the core principles of public policy, good faith, procedural fairness, and ethical
standards [2.2.].

2.1. The tribunal has the power to determine the admissibility of evidence

48. According to Art. 34.1 of the Arbitration Rules and Art. 19 DAL, the tribunal has the power to
determine the admissibility of evidence and should use this power to exclude Exhibit R3. Article
19 of DAL grants the arbitral tribunal power to determine the admissibility, relevance, materiality,
and weight of any evidence. Similarly, Art. 34.1 of the Arbitration Rules states that the arbitral
tribunal shall determine the admissibility, relevance, materiality, and weight of the evidence.
49. If this Tribunal finds there are no clear guidelines in applicable law or the applicable law is
insufficient for the decision on this matter, Claimant suggests applying IBA Rules would be
adequate and reduce the risk of the award being set aside. The IBA rules allow tribunals to exclude
evidence that was obtained illegally or in violation of ethical standards [МfC, argument 3 IBA].

2.2. The tribunal should not admit Exhibit R3 into these proceedings

50. The Tribunal should not admit Exhibit R3 since admitting Exhibit R3 would violate procedural
fairness and equality of parties [2.2.1.] and would breach the procedural duty to act in good faith
[2.2.2.]. Additionally, Exhibit R3 is confidential and privileged information protected by the

27
 32ND ANNUAL WILLEM C. VIS INTERNATIONAL COMMERCIAL
ARBITRATION MOOT 11 APRIL – 17 APRIL 2025, VIENNA
attorney-client privilege [2.2.3.]. Consequently, admitting Exhibit R3 would risk setting aside the
award and endanger the enforceability of the award [2.2.4.].

2.2.1. Admitting Exhibit R3 would violate procedural fairness and equality of parties

51. To assess whether to admit or exclude evidence from the proceedings, the Tribunal must take into
consideration the principles of procedural fairness and equality of the parties. Under the
Arbitration Rules, according to Art. 26.2. the Tribunal must treat parties equally and present them
with the opportunity to present their case. Even though the question of how the email presented
in Exhibit R3 by Respondent came into their possession is unclear, it can only be presumed that
the evidence gathered by the state police investigation of Mr. Deiman was the source of Exhibit
R3. This is highly likely as this is the only instance that we know of in which someone had access
to Mr. Deiman’s documents other than himself. Mr. Deiman states that he had all the information
relevant to the contract on his laptop. This laptop was seized by the police who had access to all
of his documents and personal information [C8, p. 36, ¶ 2].
52. Johanna Ritter, Head of Contracting of Respondent, in her Witness Statement states that she was
informed of the contents of the email in Exhibit R3 by “a friend involved in the subsequent
investigation” [R1, p. 29, ¶ 6]. The fact that Joanna Ritter had someone in the police force feeding
her confidential information and that RenPow is 100% state owned raises serious concerns about
abuse of state power. Considering that Mr. Deiman’s email was obtained by Ms. Jenna Ritter by
someone inappropriately leaking information while involved in the investigation, constitutes
grounds for unlawful access.
53. This kind of evidence-gathering is a blatant violation of due process. The evidence was gathered
without the consent of Claimant and no proper judicial authorization which means gathering
evidence was done in a manner that violated basic legal protections around privacy and due
process. The tribunal retains the inherent power to maintain the equality of the parties by ensuring
that a State does not obtain an unfair advantage by gathering evidence through the use of its police
power [McLachlan, p. 507, ¶ 293].
54. It is worth mentioning the ICSID Tribunal’s opinion in Libananco case which asserted that basic
procedural fairness and respect for confidentiality and legal privilege lie at the very heart of every
arbitral process and that all parties are obliged to comply with those principles, even states in the
exercise of their sovereign powers [Libananco case, ¶ 89].

2.2.2. Admitting Exhibit R3 would breach the procedural duty to act in good faith

28
 32ND ANNUAL WILLEM C. VIS INTERNATIONAL COMMERCIAL
ARBITRATION MOOT 11 APRIL – 17 APRIL 2025, VIENNA
55. Art. 26.3 of the Arbitration Rules expressly recognizes good faith obligations in arbitration. Since
the parties agreed that Arbitration Rules would apply to this contract they are obliged to conduct
arbitration in good faith. Principle of good faith in terms of the procedure, commands that parties
cooperate in evidentiary procedure. Good faith compels the parties to produce relevant and
material information that is within their control and not subject to privilege. However, Exhibit R3
is subject to privilege [МfC, ¶59] and admitting Exhibit R3 would be a direct breach of good faith
as the parties Respondent is presenting evidence gained by illegal means.
56. In Methanex Corporation v. The United States, Methanex attempted to introduce documents
obtained through questionable means, including accessing internal documents from meetings. The
tribunal determined that admitting such evidence would undermine the principles of procedural
integrity and good faith in arbitration. In refusing to admit certain documents to the record, the
tribunal in Methanex found that those documents had been obtained unlawfully, and admitting
them would breach a duty of good faith, under the applicable UNCITRAL Rules as well as
generally in international arbitration.
57. Tribunals have inherent power to maintain equality of the parties by ensuring States do not obtain
an unfair advantage in obtaining evidence through the use of police powers, including by requiring
States to make an application before deploying evidence obtained during a criminal investigation
[McLachlan, p. 506, ¶ 286, Art. 11, ¶ 3]. Even though it is unknown how the Respondent gained
access to Exhibit R3, the fact of the matter is that it was through illegal means [MfC, p. 21, ¶ 49.]
58. Consequently, Exhibit R3 was obtained through severe breaches of good faith and procedural
fairness and should, therefore, be excluded from evidence.

2.2.3. Exhibit R3 represents confidential and privileged information protected by the

attorney-client privilege

59. Claimant objects to the inclusion of Exhibit R3 since it represents confidential and privileged
information protected by the attorney-client privilege. The email presented in Exhibit R3 contains
direct communication between the Claimant’s in-house counsel with Claimant on advice regarding
specific legal questions regarding the law of Equatoriana concerning assurances and
misrepresentations.
60. To assess whether Ex. R3 falls under the scope of protected information in this sense, this Tribunal
must first establish the law applicable to this issue. In the present case, there are three legal systems
this Tribunal must and can take into account i.e. the law of Equatoriana, Danubia, and
Mediterraneo. To make such a choice, the Tribunal needs to consider the closest connection test

29
 32ND ANNUAL WILLEM C. VIS INTERNATIONAL COMMERCIAL
ARBITRATION MOOT 11 APRIL – 17 APRIL 2025, VIENNA
or “most favorable privilege” rule. The closest connection test provides for an application of the
law of the place where the entire attorney-client relationship has its predominant effects. In the
present case, that would be Mediterraneo as the country where Claimant has its place of business
and where the attorney-client relationship was established. [Admissibility and Assessment of
Evidence]. However, Claimant asks this Tribunal to apply the “most favorable privilege” rule i.e.
the rule that provides the highest level of protection” since the parties in this arbitration, their
counsel, and their documents are subject under applicable law to different rules of privilege
according to Art. 7 of the ICDR.
61. Under any law applicable, Claimant did not expect, and reasonably so, that the confidential
communication with its in-house lawyer could be admitted as evidence in this arbitration, because
even laws in Danubia and Mediterraneo, contained in the ethical rules for lawyers provide that
communication between counsel and clients is to be kept confidential [R4, p. 33]. This alone is
enough for the exclusion of Exhibit R3, therefore even the application of the “closest connection
test” leads to the exclusion of said evidence.
62. On the other hand, providing more detailed and broader insight on this issue, Equatoriana as a
common law country follows the American approach regarding the question of privileged
information. [R4, p. 33; PO2, p. 55, ¶ 34] In the US and England, the attorney-client privilege
applies to in-house counsel, provided that the relevant communication relates to legal advice and
not to general business matters [R4, p. 33]. Additionally, communications by In-house lawyers
containing legal advice benefit from the attorney-client privilege under the law of Equatoriana, at
least if the in-house lawyer is at the same time a member of the bar and the advice was given about
a specific legal question relevant. [PO2, p. 55, ¶ 29]
63. In the present case, specific legal advice contained in the email of 10 July 2023 i.e. Respondent’s
Exhibit no.3, was given by Claimant’s in-house counsel, Ms. Heidi Smith Head of Legal
Department, who is admitted to the Bar in Mediterraneo. Therefore, this communication clearly
benefits from the attorney-client privilege under law of Equatoriana [R4, p. 32].
64. Additionally, the most favorable privilege rule, which would be the scope of protection that
Equatoriana provides, best takes into account the parties' expectations because they can be
confident that information privileged under their own laws would never have to be produced. This
solution ensures that the expectations of all parties are complied with and avoids any unequal
treatment between the parties [Zuberbühler, Hofmann]. This also corresponds with the underlying
principle of Art. 26.2 of FAI Rules that the arbitral tribunal shall ensure that the parties are treated
with equality.

30
 32ND ANNUAL WILLEM C. VIS INTERNATIONAL COMMERCIAL
ARBITRATION MOOT 11 APRIL – 17 APRIL 2025, VIENNA
65. In case this tribunal considers that laws in Mediterraneo and Danubia do not provide for the same
scope of privilege as Equatoriana, Claimant for that very reason advocates for a universal “most
favorable privilege rule” since applying different standards on the matters of privilege could affect
the balance which could result in documents originating from in house counsel on the side of
Claimant while the same type of documents would not have to be produced by Respondent.
Therefore, the Claimant appeals to this Tribunal to conclude that the Parties should be bound by
the standard that affords the broadest protection and that protects the expectations of both parties
in international arbitration [Poštová banka v. Hellenic Republic, ¶ 16].
66. Disregarding privileges and other rules while admitting privileged documents is simply not right
as a matter of principle.

2.2.4. Admitting Exhibit R3 would risk setting aside the award under DAL and endanger
enforceability of the award under NYC

67. Respondent's request for the admission of evidence Exhibit R3 would expose the arbitral award
to the risk of being set aside under Art. 34 [2] [b] [ii] of the DAL. For a violation of procedural
fairness to lead to non-recognition or non-enforcement of an award, there must be a causal nexus
between the violation and the outcome of the arbitration. In other words, a violation of fair arbitral
procedural standards constitutes grounds for refusal of recognition or enforcement of an award,
only if the award would have likely been decided differently, had the procedural irregularity not
occurred.
68. If the Arbitration Tribunal admits Exhibit R3 that would violate the rule of equality of parties from
DAL Art. 18, as previously elaborated [MfC,¶48]. If Exhibit R3 is considered, it may influence
the outcome of the arbitration and constitute grounds for setting aside the award as it would
present a violation of procedural fairness. [MünchKommZPO, NYC, Art. V ¶ 32; Delvolvé/Pointon, p.
253] Additionally, Article V [1] [d] of the NYC prescribes that “recognition and enforcement of
the award may be refused, at the request of the party against whom it is invoked, only if that party
furnishes to the competent authority where the recognition and enforcement is sought, proof that
the arbitral procedure was not in accordance with the agreement of the parties, or, failing such
agreement, was not in accordance with the law of the country where the arbitration took place.”
69. Recognition and enforcement of an arbitral award under NYC may also be refused if the
competent authority in the country where recognition and enforcement is sought finds that “the
recognition or enforcement of the award would be contrary to the public policy of that country.”
Since the admission of Exhibit R3 would go against public policy of any country taking into

31
 32ND ANNUAL WILLEM C. VIS INTERNATIONAL COMMERCIAL
ARBITRATION MOOT 11 APRIL – 17 APRIL 2025, VIENNA
account violations of due process and the nature of evidence i.e. its illegality, this means that the
arbitral award is exposed to the risk of being refused.
3. Art. 9.3. of the IBA rules allows Tribunal to exclude evidence that was obtained illegally
or in violation of ethical standards
70. The IBA Rules of Evidence reflect procedures in use in many different legal systems, and they
may be particularly useful when the parties come from different legal cultures. These rules are one
of the most widely used soft law instruments in international arbitration practice [IBA Arbitration
Guidelines and Rules Subcommittee, ‘Report on the Reception of IBA Arbitration Soft Law Products’ [2016
Subcommittee Report] ¶ 12–18, 2016]. While not binding in this case, for the tribunal to decide on the
admissibility of illegally obtained evidence, Tribunals may use these rules as guidelines in
developing their own procedures [Preamble of IBA Rules, ¶2]. According to the IBA rules, each party
has the right to contest evidence that has been obtained illegally and can demand its exclusion.
71. Article 9.3 of the IBA rules clearly states: “The Arbitral Tribunal may, at the request of a Party or
on its motion, exclude evidence obtained illegally.” Since IBA Rules were adopted for an
international use, it is needless to say that it is widely recognized on an international level that no
illegally obtained evidence should be allowed. This view is supported also by many Tribunals in
many arbitrations so far.
72. In the already mentioned Methanex case, the Claimant trespassed into the office of a lobbying
organization on multiple occasions and obtained private correspondence and privileged material
through ‘dumpster diving’. The Tribunal excluded the illegally obtained evidence, noting that it
would be ‘wrong for Methanex to introduce evidential materials obtained by Methanex unlawfully’,
and that the ‘conduct offended basic principles of justice and fairness required by all parties in
every international arbitration’. Similarly, in EDF [Services] Ltd v Romania, the Tribunal excluded
a copy of an illegal audio recording, which captured confidential commercial discussions and the
offer of a bribe. The Tribunal emphasized that the principles relating to the admissibility of
unlawfully obtained evidence ‘are to be found in public international law, not in municipal law’
[EDF case, ¶ 48-49].
73. Consequently, the only right and lawful choice would be to not let Respondent introduce Exhibit
R3 into this arbitration as it is clear that inclusion of such evidence would violate core principles
of international as well as domestic law. There is no country in the world which allows use of
illegally obtained evidence in any proceeding. While this is the case of international arbitration, this
Tribunal has to bear in mind that this award will have to be recognized and enforced in a domestic
setting.
I. THE CISG IS APPLICABLE TO THE PSA
32
 32ND ANNUAL WILLEM C. VIS INTERNATIONAL COMMERCIAL
ARBITRATION MOOT 11 APRIL – 17 APRIL 2025, VIENNA
74. On 3 January 2023, Respondent invited bids for the delivery and construction of a plant for the
production of green hydrogen and potential derivatives. Following the bidding process,
Respondent entered into further negotiations with the two highest-ranked bidders, including
Claimant. As a result of these negotiations, the Parties concluded the Purchase and Service
Agreement [PSA] on 17 July 2023 [RfA, p. 3, ¶ 2].
75. One of the key factors in awarding the contract to Claimant was its ability to provide the amount
of local content prescribed by Respondent in the RfQ, which was a minimum of 25% [C1, p. 9,
¶ 9]. Claimant fulfilled this requirement by entering into a contract with VT, a company based in
Equatoriana. VT already owned a transformer for green hydrogen production from a previous,
failed contract with Claimant. Additionally, VT, through its subsidiary VE, agreed to supply 40%
of the electrolyzer stacks for the transformer. These stacks were manufactured under Claimant’s
license, ensuring compatibility with Claimant’s technology. [C5, p. 11 & 16, ¶ 8-9; RfA, p. 4, ¶
11].
76. Notably, during this period, Claimant was offered the opportunity to acquire VT. However, this
acquisition was finalized only in November 2023, several months after the PSA was signed. [C8,
p. 36, ¶ 2].
77. Respondent challenges the qualification of the PSA as an international sale of goods contract
under Articles 1-3 of the CISG, presenting the following objections:

1) Place of Dispatch: Respondent asserts that “most of the actual deliveries of goods” under the PSA
were carried out by VT, which it alleges to be Claimant’s place of business in Equatoriana [ARfA, p.
28, ¶ 20].
2) Reverse Auction: The contract was concluded through a reverse auction, which Respondent argues
falls under the exclusion stipulated in Article 2[b] CISG, thus exempting the PSA from the scope of
the CISG [ARfA, p. 28, ¶ 20].
3) Preponderance of Services: Respondent contends that the application of the CISG is excluded under
Article 3[2], claiming that “a considerable part of the Agreement consisted of planning and engineering
work to be performed by Claimant.” [ARfA, p. 28, ¶ 20].

78. However, contrary to Respondent's assertions, Claimant will prove that the PSA qualifies as an
international sale of goods contract under Articles 1-3 of the CISG. Specifically, Claimant will
show that:

1) The CISG applies to the PSA as an “international” sales contract within the meaning of Article 1[1][a]
CISG [1.].
33
 32ND ANNUAL WILLEM C. VIS INTERNATIONAL COMMERCIAL
ARBITRATION MOOT 11 APRIL – 17 APRIL 2025, VIENNA
2) The PSA does not fall under the exclusion in Article 2[b] CISG, as it is not a “sale by auction” [2.].
3) Although the PSA includes both sales and service elements, the sales element constitutes the
preponderant part of Claimant’s obligations, as demonstrated by the economic value test. This
conclusion is further supported by the Parties’ intent, which prioritize the sale of goods as the primary
objective of the Agreement. Therefore, the CISG is not excluded under Article 3[2] CISG [3.].

1. PSA is an international sales contract under Art. 1[1][a] of the CISG

79. It is undisputed that Claimant has a place of business in Mediterraneo, as evidenced by

its place of registration and the fact that its administrative center is located there [C2, p.
10; PO2, p. 52, ¶ 1]. Contrary to Respondent's assertions, Claimant will demonstrate
that it had only one place of business, located in Mediterraneo. VT operated as an
independent legal entity before its acquisition by Claimant and continued to function as
such even after the acquisition [PO2, p. 52, ¶ 1 & 8]. This independence negates
Respondent’s characterization of VT as Claimant's additional place of business.
80. Respondent contends that VT, which had a place of business in Equatoriana, should be
considered Claimant's place of business in Equatoriana, even prior to its acquisition by
Claimant [ARfA, p. 28, ¶ 20]. Respondent bases this argument on the claim that “VT
was producing almost exclusively for Claimant “between July and November 2023 and
then in November became acquired by Claimant [ARfA, p. 28, ¶ 20]. By asserting that
Equatoriana, seat of VT, functioned as Claimant’s de facto place of business, Respondent
argues that the PSA fails to meet the requirement of “internationality” under Art. 1[1] of
the CISG. If this argument were correct, the parties’ places of business would both be
located in Equatoriana, and the CISG would not apply to the PSA.
81. In contrast to these assertions, Claimant will prove that the PSA meets the definition of
an international sale of goods contract under Art. 1[1][a] of the CISG, as the Parties
respective places of business are in different contracting States [1.1.].

1.1. The Parties’ respective places of business are in different contracting states

82. It is undisputed that Claimant has a place of business in Mediterraneo, as evidenced by

its place of registration and the fact that its administrative center is located there [C2, p.
10; PO2, p. 52, ¶ 1]. Contrary to Respondent's assertions, Claimant will demonstrate
that it had only one place of business, located in Mediterraneo. VT operated as an
independent legal entity before its acquisition by Claimant and continued to function as

34
 32ND ANNUAL WILLEM C. VIS INTERNATIONAL COMMERCIAL
ARBITRATION MOOT 11 APRIL – 17 APRIL 2025, VIENNA
such even after the acquisition [PO2, p. 52, ¶ 1 & 8]. This independence negates
Respondent’s characterization of VT as Claimant's additional place of business.
83. The PSA is an international sale of goods contract as the Parties have places of business
in different contracting states of the CISG: Respondent in Equatoriana and Claimant in
Mediterraneo [C2, p. 10]. Contrary to Respondent`s assertions, Claimant has only one
place of business, which is in Mediterraneo. Claimant will demonstrate that VT operated
as an independent entity prior to its acquisition by Claimant and continued to function as
an independent legal entity even after the acquisition, thereby negating its characterization
as Claimant's place of business [PO2, p. 52, ¶ 1 & 8].
84. The CISG does not define the term "place of business" but provides guidance on
determining the relevant place of business in cases where a party has multiple places of
business or none. Since this issue is not explicitly addressed by the CISG, its interpretation
should follow Article 7[2], which outlines how matters governed by the Convention but
not expressly settled are to be interpreted based on the general principles underlying the
Convention [Schwenzer/Hachem, Schwenzer/Schlechtriem commentary, p. 198 & 119, ¶ 2-3; ¶ 5].
85. Therefore, to interpret the term “place of business”, one must rely on the “customary
practice in international law “which generally refers to the location where the main center
of business activity occurs, resulting from external involvement in commercial
transactions. It denotes a place where business activities are conducted on a more
permanent and stable basis, with a degree of independence. [Mertens/Rehbinder,
Internationales Kaufrecht, part 1/2, note no. 28]. Thus, when applying these principles, it is
evident that VT, as an independent legal entity, does not satisfy the criteria to be considered
Claimant's place of business. VT’s activities were not conducted under Claimant’s
control or with the degree of permanence and stability required to establish it as
Claimant’s place of business. Therefore, the customary interpretation of "place of
business" supports the conclusion that Claimant’s sole place of business is in
Mediterraneo.
86. As previously mentioned, under Art. 10 [a] CISG there is an objective test to determine
the Party's place of business in case of multiple places of business based on its closest
connection to the contract and its performance. The determination of the “closest
connection” is based on objective factors, which include and are not limited to contract
negotiations, payment, delivery, place responsible for the receipt of complaints and so on
[CISG Digest, CLOUT Case No. 1021, p. 69, ¶ 4]. The determination should also take into
account “the circumstances known to or contemplated by both parties at any time before
35
 32ND ANNUAL WILLEM C. VIS INTERNATIONAL COMMERCIAL
ARBITRATION MOOT 11 APRIL – 17 APRIL 2025, VIENNA
or at the conclusion of the contract. Consequently, facts that are known only to one of the
parties or of which the parties became aware only after the conclusion of the contract
cannot be taken into consideration” [Buttler, “Place of Business”: Comparison between Provisions
of the CISG [Article 10] and Counterpart Provisions of UNIDROIT [Article 1.10], p. 59-62, ¶13].
This means that there has to be knowledge of those circumstances or assumptions that
they could exist and that both parties must have had the knowledge or made the
assumption. However, it will usually depend on the knowledge of the party who has
entered into negotiations with the party which has several places of business, because the
latter will be aware of the internal organization [Schwenzer/Hachem, Schwenzer/Schlechtriem
commentary, p. 201, ¶ 9; Brekoulakis, Kroll commentary, p. 189, ¶ 38].
87. Although Respondent does not explicitly refer to Art. 10 [a] of the CISG, it obviously
relies on the economic and functional connection between Claimant and VT as a basis
for asserting that Claimant also has a place of business in Equatoriana, in addition to its
place of business in Mediterraneo. Claimant will prove that neither the delivery of goods
by VT nor its later acquisition by Claimant can affect the international character of the
contract [1.1.1.]. Additionally, the location from where the goods were sent also does not
affect Claimant’s place of business [1.1.2.].

1.1.1. The delivery of goods by Volta Transformer nor its acquisition by Claimant does
not affect the international character of the PSA

88. Respondent’s argument that VT was producing "almost exclusively" for Claimant is
factually and legally unfounded. VT had the capacity to produce two transformers of the
size required by Claimant at a time. The allocation of workforce and resources depended
on existing deadlines and contractual obligations, demonstrating that VT's production was
not exclusively tied to Claimant. VT prioritized Claimant's project starting in June 2023,
but this prioritization was circumstantial and did not establish an exclusive relationship.
The prioritization stemmed from contractual commitments, not from an overarching
business connection. The Agreement with Green Hydro represented 70% of VT's
production capacity is factually inaccurate. It overstates the significance of Claimant's role
in VT's operations, as this figure applied only to a limited time-frame and does not reflect
an ongoing or structural dependency [C8, p. 36, ¶ 2]. Thus, while the agreement with
Claimant was significant, this does not establish exclusivity or a long-term dependence
that would convert VT into Claimant’s place of business. VT was ergonomically

36
 32ND ANNUAL WILLEM C. VIS INTERNATIONAL COMMERCIAL
ARBITRATION MOOT 11 APRIL – 17 APRIL 2025, VIENNA
independent, and it produced for multiple projects and clients, not exclusively for
Claimant. VT’s prioritization of Claimant’s project after June 2023 does not reflect an
inherent operational dependency, but rather a commercial decision based on contractual
commitments [PO2, p. 52, ¶ 5].
89. Moreover, before the acquisition in November 2023, there were no formal or informal
agreements which guaranteed Claimant any control or operational influence on VT [PO2,
p. 52, ¶ 8] Thus, before the acquisition, VT was not under Claimant’s control and
operated independently. This period is the relevant timeframe for determining the "place
of business" under Art. 10 [a]. Events occurring after the conclusion of the PSA, such as
the acquisition, are legally irrelevant for assessing the applicability of the CISG at the time
of contracting [MfC, p. 26, ¶ 82].

1.1.2. The place of dispatch of goods does not affect Claimant’s place of business

90. Respondent argues that the involvement of VT/VE, based in Equatoriana, in delivering
40% of the goods changes the character of the PSA, asserting that it should be treated as
a domestic contract governed by Equatorianian law rather than an international contract
under the CISG [ARfA, p. 28, ¶ 20]. However, this argument is flawed, as the fact that
both the place of dispatch and the place of delivery were within Equatoriana does not alter
the international character of the PSA, as these logistical details, in and of themselves, do
not affect the determination of the Claimant's place of business under the CISG.
91. To determine the relevant place of business under Article 10 CISG, numerous scholars
emphasize the importance of considering factors such as the location of contract
negotiations, the place of signing, payment obligations, and the parties’ awareness of these
factors at the time of contracting [MfC, p. 26, ¶ 82]. In this case, VT/VE’s delivery
constitutes 42% of the total obligation under the PSA, while Claimant fulfills the remaining
58%, underscoring Claimant’s predominant role in the contract. Moreover, Respondent
explicitly required at least 25% local Equatorian content in its RfQ, which Claimant
complied with by subcontracting VT/VE. This was not an independent choice by
Claimant but rather a direct result of Respondent’s contractual requirements.
Consequently, the involvement of VT/VE, based in Equatoriana, cannot now serve as a
basis for challenging the international nature of the PSA under the CISG, as it does not
affect Claimant’s place of business.

37
 32ND ANNUAL WILLEM C. VIS INTERNATIONAL COMMERCIAL
ARBITRATION MOOT 11 APRIL – 17 APRIL 2025, VIENNA
92. This conclusion is further supported by CLOUT Case No. 1021, where the tribunal
examined whether a contract constituted an international sales contract under the CISG.
In that case, certain aspects of the contract—such as the use of the Serbian language, the
place of performance in Serbia, and the role of the seller’s Serbian branch—indicated a
connection to Serbia, where the buyer was based. However, the tribunal found that the
seller’s headquarters in Switzerland was most closely connected to the contract and its
performance, as the Swiss headquarters conducted the negotiations, signed the contract,
delivered the goods, and received payment. Thus, all of those circumstances were
considered as a whole rather than individually, which made the court conclude the relevant
places of business were in different contracting states [CLOUT Case No. 1021, p. 69, ¶ 4].
93. Based on all of the aforementioned, the PSA is an international sales contract under Art.
1 [1] of the CISG, as Claimant clearly has only one place of business in Mediterraneo.
This means that the fact that VT, in the time-frame between the conclusion and
termination of the contract, prioritized production for Claimant does not affect its
internationality. Additionally, neither the delivery of the goods nor the latter acquisition of
VT by Claimant, does not affect the international character of the PSA. Furthermore, the
fact that the transformer and 40 % of the electrolyzer stacks were sent out to Respondent
from Equatoriana also does not affect the internationality of the contract.
2. The PSA is not a sale by auction under Art. 2[b] of the CISG
94. Respondent claims that the contract was concluded through an auction process, therefore
excluding the application of the CISG, as contracts for the sale of goods concluded
through auctions do not fall under the scope of the CISG, according to Art. 2[b] [ARfA,
p. 28, ¶ 20].
95. Contrary to these assertions, Claimant will show that the “reverse auction”, conducted
through a public procurement process, based on which the PSA was concluded, does not
fall within the meaning of “auction” under Art. 2[b] of the CISG, therefore making it
applicable to the PSA [2.1.].

2.1. Reverse auction conducted through public procurement does not fall under the term
“auction” in Art. 2[b] of the CISG

96. Respondent argues that the PSA was concluded through a reverse auction which allegedly
falls outside the scope of the CISG under Art. 2[b]. However, this argument is unfounded,
as a reverse auction conducted through public procurement does not meet the definition

38
 32ND ANNUAL WILLEM C. VIS INTERNATIONAL COMMERCIAL
ARBITRATION MOOT 11 APRIL – 17 APRIL 2025, VIENNA
of an “auction” under Art. 2[b] [ARfA, p. 28, ¶ 20]. During the formation of CISG it was
argued that it would be uncertain whether it is a national or an international sales
transaction until the acceptance of the bid was made. Since the seller should not be
unexpectedly confronted with the application of the CISG to a sales contract, it was seen
to be more favorable to exclude auctions from the Convention's sphere of application. In
addition, it was the general understanding in the deliberations of the Convention that an
auction is usually held in one place, governed by the law and usages of that place and that
the parties are normally aware of the fact that they have their places of business in different
states [Spohnheimer, Kroll commentary, p. 47, ¶ 27].
97. According to the prevalent view, an auction is a sale in which buyers or sellers place bids
and the contract is then awarded to the highest or the lowest bidder, without subsequent
negotiation. “Public procurement reverse auctions”, however, differ significantly.
98. In case that an auction is conducted through a public procurement process, it falls under
the application of the CISG if the economic operator is aware of the other party to the
contract and, therefore, aware of the CISG application. If the Party inviting the bids does
not exclude the application of the CISG on the contract in the invitation for bids, it cannot
rely on its later exclusion [Brunner, Streich, Maier, Brunner/Gottlieb commentary, p. 4, ¶ 35;
Spohnheimer, Kroll commentary, p. 47, ¶28 & 30].
99. This distinction is reinforced by the Electronic Electricity Meters Case, where a Swiss
court held that contracts concluded through public procurement processes do not fall
under any of the exceptions in Art. 2 of the CISG. In its decision the court stated that
"according to doctrine, obtaining several offers, for example in international tenders, in
order to accept the cheapest one, is not an auction and is therefore covered by the CISG”
[Electronic Electricity Meters Case, p. 5, ¶ 24].
100. In the present case, the reverse auction process was conducted through public
procurement, with Respondent failing to exclude the CISG in the invitation for bids.
Moreover, the reverse auction was merely a step in the public procurement process to
gather bids, after which Respondent negotiated with the two lowest bidders, including
Claimant [RfA, p. 4, ¶10]. This demonstrates that the PSA was not concluded solely based
on the reverse auction but through negotiation, further distinguishing it from an “auction”
under Art. 2[b].
101. Based on the aforementioned, the CISG should apply to the PSA, as it does not fall under
the exceptions in Art. 2[b] CISG. The reverse auction was conducted through a public

39
 32ND ANNUAL WILLEM C. VIS INTERNATIONAL COMMERCIAL
ARBITRATION MOOT 11 APRIL – 17 APRIL 2025, VIENNA
procurement process and included negotiations, aligning the PSA with contracts governed
by the CISG.
3. The CISG is not excluded under Art. 3[2] CISG
102. Respondent argues that the PSA does not constitute an international sale of goods
transaction, as a considerable part of the PSAt consists of planning and engineering work
to be performed by Claimant. If Respondent's assertion were accurate, it would imply
that, pursuant to Article 3[2] of the CISG, the Convention would not apply to the PSA.
According to this provision, the CISG “does not apply to contracts in which the
preponderant part of the obligations of the party who furnishes the goods consists in the
supply of labor or other services”. Conversely, the CISG applies if service and sale
obligations are included in one uniform contract whose preponderant part is the sale. [AC
Opinion no. 4, ¶ 1.1.; UNCITRAL Yearbook III, p. 79]. Claimant will show that the PSA is
such a uniform contract whose preponderant part is the sale obligation.
103. PSA provides for the construction and delivery of a plant for the production of green
hydrogen and other derivatives [RfA, p. 3, ¶ 2]. The central obligations under the PSA are
the delivery of the plant by Claimant and the payment for it by Respondent [C2, p. 11,
art. 2, ¶ 1]. The preponderant part under Art. 3[2] CISG is determined by assessing the
most valuable part of the contract [CISG Case 1156, ¶ 24; Huber, Munich Commentary, ¶ 13;
Schlechtriem/Schwenzer, Art. 3, ¶ 18]. Based on economic analysis, Claimant will prove that
the sale of the hydrogen plant constitutes the preponderant part of the PSA [3.1.].
Furthermore, even if the Tribunal were to consider the Parties’ intentions in addition to
the economic analysis, the sale would still represent the preponderant part of the PSA
[3.2.].

3.1. The sale of the hydrogen plant constitutes the preponderant part of the PSA
104. Respondent seeks to exclude the CISG by arguing that the PSA is not a contract for the
sale of goods, as the preponderant part of Claimants obligation is the construction of the
hydrogen plant and other EPC work [ARfA, p. 28, ¶ 20]. However, the relevant test for
preponderance does not support such an argument.
105. To establish the preponderance of obligations in mixed contracts, the prevalent test used
is the economic value test. This test compares the value of the sale with the value of the
service obligations. Their value can be determined either by the prices from the contract
or by market prices [Mistelis/Raymond, Kroll commentary, p. 59, ¶ 17-19; Schwenzer/Hachem,

40
 32ND ANNUAL WILLEM C. VIS INTERNATIONAL COMMERCIAL
ARBITRATION MOOT 11 APRIL – 17 APRIL 2025, VIENNA
Schwenzer/Schlechtriem commentary, p. 69, ¶ 18; Mankowski, Mankowski commentary, p. 26, ¶ 8].
The prices from the PSA lead to a clear preponderance of the sale obligations.
106. Additionally, there has to be an analysis of the contract in accordance with the party’s
intent. It should focus on the parties' intent at the time of its conclusion, in accordance
with Art. 8 of the CISG. According to Art. 8 [1] “statements made by and other conduct
of a party are to be interpreted according to his intent where the other party knew or could
not have been unaware what that intent was” [Mankowski, Mankowski commentary, p. 43, ¶
2].
107. The initially agreed price for the PSA was 460 million €, including the optional extension.
This is based on the fact that the value of the base contract, without the options, is 300
million €. Adding to this is the sum of option 1 which is 100 million € and option 2 which
is 60 million € [C5, p. 16-17, ¶ 9]. Subsequently, Claimant offered an additional 5% price
reduction [C5, p. 17, ¶ 10]. This resulted in an adjusted total contract value of 437 million
€. The price for the base obligation—the delivery and construction of the hydrogen
plant—was set at 285 million € with the aforementioned reduction [PO2, p. 56, ¶ 35[b]].
The following division of the obligations has to be presented as such, by analyzing the
table given [C5, p. 17, ¶ 11]:

SALE SERVICE PERCENTAGE

OBLIGATIONS OBLIGATIONS WITHOUT
VALUE VALUE REDUCTION
Core system 100 mil € / 33.3%
Transformer and 40 mil € / 13.4%
electrical equipment
Packaging / 20 mil € 6.7%
Project management and / 15 mil € 5%
engineering
Site works / 15 mil € 5%
Training and / 10 mil € 3.3%
maintenance
Compressor, pipes, cable 50 mil € / 16.7%
installation,
41
 32ND ANNUAL WILLEM C. VIS INTERNATIONAL COMMERCIAL
ARBITRATION MOOT 11 APRIL – 17 APRIL 2025, VIENNA

connections and other

equipment
Buildings and / 25 mil € 8.3%
foundations for the
facility
Remaining “EPC” / 25 mil € 8.3%
services for constructing
the turnkey facility
TOTAL VALUE 190 mil € 110 mil € 100%
WITHOUT
REDUCTION
TOTAL 63.3% 36.7% 100%
PERCENTAGE OF
OBLIGATIONS

108. In the first table the Tribunal can see allocation of cost between the sale and service
obligations in the contract, with the value of the contract without the aforementioned 5%
reduction in price [MfC, p. , ¶ 107].
SALE SERVICE PERCENTAGE
OBLIGATIONS OBLIGATIONS WITH
VALUE VALUE REDUCTION
Core system 95 mil € / 33,3%
Transformer and 38 mil € / 13,4%
electrical equipment
Packaging / 19 mil € 6,7%
Project management and / 14,25 mil € 5%
engineering
Site works / 14,25 mil € 5%
Training and / 9,5 mil € 3,3%
maintenance
Compressor, pipes, cable 47,5mil € / 16,7%
installation,

42
 32ND ANNUAL WILLEM C. VIS INTERNATIONAL COMMERCIAL
ARBITRATION MOOT 11 APRIL – 17 APRIL 2025, VIENNA

connections and other

equipment
Buildings and / 23,75 mil € 8,3%
foundations for the
facility
Remaining “EPC” / 23,75 mil € 8,3%
services for constructing
the turnkey facility
TOTAL VALUE WITH 180,5 mil € 104,5 mil € 100%
REDUCTION
TOTAL PERCENTAGE 63.3% 36.7% 100%
OF OBLIGATIONS

109. The second table contains the allocation of the sale and service obligations in the PSA with
the aforementioned reduction of 5% in price [MfC, p. 31, ¶ 107]. Based on these tables it
is evident that the reduction in price does not affect the preponderant economic value of
the sale obligations from the PSA.
110. Based on the analysis of the aforementioned tables, it is evident that the sale obligations
represent 63.3% of the total amount of obligations in the PSA or 190 million €. Adding to
this, the service obligations consist of only 36.7% or 110 million € of the total obligation
dispersion in the contract. From this analysis, the Tribunal can see that the sales part of
the obligation is substantially higher than the services part. Taking all of the presented
evidence into account, the PSAs preponderant part is the sale obligation, therefore making
the CISG applicable under Art. 3 [2].
111. It is also important to mention that the Parties within the PSA intended the eAmmonia
extension [Option 1] and the expansion of the hydrogen plant [Option 2] to be optional
elements of the contract, which could be exercised at the discretion of Respondent or left
unrealized [C2, p. 11, Art. 2, ¶ 2 & 3]. Thus, the mere fact that Respondent left these two
expansions as just options indicated to Claimant the possibility of not exercising them.
112. While the details of the options under the PSA were agreed in advance their facultative
nature remains crucial [PO2, p. 54, ¶ 18]. Respondent’s ability to decide whether to
exercise the options in full, partially, or not at all distinguishes the options from the main
obligation. This facultative nature underscores that the options are supplementary to the

43
 32ND ANNUAL WILLEM C. VIS INTERNATIONAL COMMERCIAL
ARBITRATION MOOT 11 APRIL – 17 APRIL 2025, VIENNA
primary obligation and contingent on future decisions, rather than an integral part of the
PSA’s main scope. The proportional price adjustments and additional handling fees in case
of exercising options only in part [PO2, p. 54, ¶ 18] demonstrate that the options were
designed as flexible extensions, contingent on the Respondent’s decision to exercise them
in full or in part or not at all. These mechanisms ensure that the Claimant is compensated
for potential inefficiencies caused by a reduced scope, further distinguishing the options
from the main obligation. Consequently, the facultative nature of the options supports the
argument that they should not be considered when determining whether the contract
qualifies as a mixed contract under Art. 3[2] CISG.
113. As already explained, at the time of the contract’s conclusion, there were no explicit
indications that the extensions would necessarily be exercised, leaving their realization
contingent upon Respondent’s discretion. Respondent argues that it had “internally”
always planned to add the eAmmonia production facilities to the plant, explaining that the
inclusion of this as an option was primarily for financial and fiscal reasons [ARfA, p. 26,
¶ 5]. However, this “internal” reasoning is irrelevant for the purposes of interpreting the
PSA, as it was not communicated to Claimant. As already explained, under Art. 8[1] of the
CISG, statements and conduct are to be interpreted according to the intent of a party “only
if the other party knew or could not have been unaware of that intent”. In this case,
Respondent’s internal plans and considerations were neither articulated to Claimant nor
reflected in the PSA itself. Thus, they cannot influence the interpretation of the optional
nature of the extensions.
114. Respondent further stated that at the time of contracting, the necessary funding had not
yet been authorized by the Ministry, preventing it from entering into a binding agreement
until the authorization in the next fiscal year [ARfA, p. 26, ¶ 5]. While Respondent uses
this argument to suggest certainty regarding the realization of the eAmmonia option, it
instead underscores the uncertainty surrounding its implementation. The lack of approved
funding at the time of contracting highlights the financial and budgetary uncertainties tied
to the option. Consequently, the realization of these options remained speculative and
contingent on external financial and political factors, further underscoring their facultative
nature.
115. Besides the fact that the Parties left the two extensions as simply options, the political
situation in Equatoriana must also be taken into account to fully understand the overall
context of the PSA and the facultative nature of the options. Namely, several months after
the conclusion of the PSA, changes in government policy directly impacted Claimant, as
44
 32ND ANNUAL WILLEM C. VIS INTERNATIONAL COMMERCIAL
ARBITRATION MOOT 11 APRIL – 17 APRIL 2025, VIENNA
revisions were implemented to reduce the implementation of the “Green Energy Strategy,”
which the ENP, the ruling political party, deemed unsustainable [RfA, p. 5, ¶ 17-18]. Given
that Respondent is a state-owned entity and that its new CEO is aligned with the ruling
party, it became increasingly unlikely that these options would be exercised.
116. Although these events occurred after the contract’s conclusion and ultimately contributed
to the contract’s termination, they underscore that the optional extensions were never
guaranteed to be implemented. This reinforces the argument that the PSA’s primary
obligations should be the focus of analysis, as the extensions were supplementary and
subject to external contingencies.
117. In accordance with the presented information, the preponderant part of the obligations
under the PSA are sales in nature. This is evident from the fact that the primary obligations
under the contract, valued at 285 million €, consist predominantly of the delivery of goods,
valued at 108,5 million €, which corresponds to 63.3% of the contract's overall value [MfC,
p. 32, ¶ 108]. Consequently, the sales obligations constitute the preponderant part of the
contract, as the optional extensions were explicitly defined as facultative and
supplementary elements, rather than integral components of the PSA.

3.2. The sale of the hydrogen plant also constitutes the preponderant part of the PSA according
to the Parties intent

118. The Tribunal has the power to decide to supplement the economic assessment by including
the circumstances surrounding the Agreement, including its wording and structure
[Window production plant case, ¶ 17; Mistelis/Raymond, Kroll commentary, p. 59, ¶ 19]. In this case
the Tribunal should take into the consideration the intent of the Parties regarding the
nature of the PSA. Therefore, the Tribunal should apply Art. 8[2] of CISG i.e. the objective
test. According to Art. 8[2] CISG, statements made by and other conduct of a party are to
be interpreted according to the understanding that a reasonable person of the same kind
as the other party would have had under the same circumstances [Art. 8[2], CISG].
119. Firstly, the PSA`s primary aim was the delivery and acquisition of the hydrogen plant. As
presented in its RfQ, Respondents' main interest was to acquire a power plant of 100
MW for the production of green hydrogen [C2, p. 11, art. 2 [1]]. It is also important to
note that Respondent was tasked with implementing the Green Energy Strategy in the
area of energy production and building up an infrastructure for the production of green
hydrogen to decarbonize the country. As it did not possess the proper technology it had

45
 32ND ANNUAL WILLEM C. VIS INTERNATIONAL COMMERCIAL
ARBITRATION MOOT 11 APRIL – 17 APRIL 2025, VIENNA
to outsource the aforementioned delivery of the power plant [C2, p. 10, preamble].
Additionally, the term which refers to the Parties, “Contractor” for Claimant and
especially “Customer” for Respondent, indicates that even Respondent was aware of the
fact that the PSA was mainly a sales contract [C2, p. 10, preamble]. It is also important to
note that the price” for the delivery of the Plant and additional maintenance and training
services…” is referred to as the “Contract Price”, as well as the fact that the terms to
determine the services are defined as “additional” [C2, p. 11, art. 7].
120. Furthermore, this is also supported by the fact that Claimant was to provide services only
after and if the delivery was successful, in accordance with the agreed upon test run, which
was to be conducted only on 1 October 2025 [C2, p. 12, art. 18]. Additionally, when
analyzing the payment dates from the contract, even though the preponderant part of the
obligation would only be due after the construction, which includes the aforementioned
60% for sales, the intent of the Parties was clear that any further payments, especially those
regarding the payment of services in the PSA would result from the success of the
aforementioned test run [C2, p. 12, art. 7 & 18]. This is in line with the dispersion of costs
presented in the table above [MfC, p. 31, ¶ 107]. Finally, in the PSA under art. 3 it is stated
that the “Contractor” i.e. Claimant “…agrees to deliver the Plant…”, which additionally
indicates the nature of the contract [C2, p. 11, art. 3]. Based on all of these facts, it is clear
that the Parties intent was to characterize this contract as mainly a contract for the sale of
goods.
121. Having regard to the economic value test and the intent of the Parties in the PSA it is
evident that, even though being a mixed contract, Claimants main obligation was the
delivery of the plant to Respondent and that the services it would provide were of
supplementary nature.
IV. THE PARTIES HAVE NO EXCLUDED THE APPLICATION OF THE
CISG UNDER ART. 6
122. The parties referred to the “law of Equatoriana” as the applicable law in the PSA [C2, p.
12, art. 29]. Since Equatoriana is a CISG Contracting State [PO1, p. 50, ¶ 4], the CISG
applies to the PSA as an integral part of Equatorianian law under Art. 1[1][a] of the CISG
[1.]. While Art. 6 of the CISG allows parties to exclude the Convention’s application
entirely, such exclusion must be explicit or implied through their conduct. In this case, the
Parties have not excluded the CISG. There is no express [2.] or implied [3.] intention by
the Parties to exclude the application of the CISG to the PSA within the meaning of Art.
6 of the CISG.
46
 32ND ANNUAL WILLEM C. VIS INTERNATIONAL COMMERCIAL
ARBITRATION MOOT 11 APRIL – 17 APRIL 2025, VIENNA
1. The CISG applies to the PSA, as an integral part of Equatorianian law

123. When concluding the PSA, the Parties chose the law of Equatoriana, a Contracting State
of the CISG [C2, p. 12, art. 29]. Thus, the CISG applies by choice of law.
124. Arbitral tribunals have jurisdiction to decide on the applicable law, in accordance with the
conflict of law rules that they are bound by. They can be found either in the arbitration
law or in arbitration rules the parties agreed upon in the contract. Art. 29.1 FAI Rules
provides that “the parties may agree upon the law or rules of law to be applied by the
tribunal to the substance of the dispute”. Additionally, art. 28 of DAL prescribes that the
arbitral tribunal shall decide the dispute in accordance with such rules of law, as are chosen
by the parties as applicable to the substance of the dispute. Any designation of the law or
legal system of a given State, shall be construed, unless otherwise expressed, as directly
referring to the substantive law of that State and not to its conflict of laws rules”.
125. In the present case, Parties agreed in art. 29 of the PSA on the law of Equatoriana, to the
exclusion of its conflict of law principles, to govern the substance of the PSA. Since
Equatoriana is a contracting State of the CISG, the agreement on Equatorianian law
includes the CISG as part of this law [Facade Panels for Mountain Lodge Case]. Based on the
aforementioned statements, the exclusion of conflict of laws principle, set forth in art. 29
of the PSA, does not encompass the CISG, as it is clearly only a part of the substantive
law of Equatoriana, which governs the contract [C2, p. 12, art. 29].

2. There is no express intention of the Parties to exclude the application of the CISG under
its Art. 6

126. As already explained, since Equatoriana is a Contracting State of the CISG, the Convention
forms an integral part of its national law [PO1, p. 50, ¶ 4; Electricity Meters Case, ¶ 12; Used
Car Case, ¶ 40; Kroll, Kroll commentary, Introduction, ¶ 12]. Therefore, the Parties’ choice of
Equatorianian Law also encompasses a choice of the CISG.
127. While Art. 6 of the CISG allows parties to exclude the application of the Convention, the
Parties have not done so in the present case. For an exclusion to be valid, parties must
express their mutual intent to this effect [AC Opinion no. 16, ¶ 3; Schroeter, ¶ 69]. However,
it is commonly held that such intent cannot be inferred from a mere choice law of a
Contracting State without any further indication that the parties intended the non-
harmonised domestic legal rules to apply [Boiler Case, ¶ 22; AC Opinion no. 16, ¶ 4[b][i];
Ferrari, Art. 6, ¶ 22; Schroeter, ¶ 73].
47
 32ND ANNUAL WILLEM C. VIS INTERNATIONAL COMMERCIAL
ARBITRATION MOOT 11 APRIL – 17 APRIL 2025, VIENNA
128. Contrary to this, Respondent contends that the choice of the “law of Equatoriana” to
govern the PSA refers to the domestic contract law of Equatoriana and not the
international sales law. However, the prevalent view, with certain cases supporting it,
confirms that a general choice of the law of a Contracting State, such as Equatoriana, is
presumed to include the CISG unless the parties clearly indicate otherwise [Johnson, p. 259;
ICC Award No. 7656; AC Opinion no. 6, ¶ 4.5]. At no point of negotiation has Respondent
made Claimant aware that it wanted to exclude the application of the CISG and there is
no indication in the PSA itself. Given that such a clearly and unambiguously expressed
exclusion is not evident from the file, the Parties’ choice of Equatorianian Law does not
qualify as an exclusion of the CISG but rather as the choice of Equatorianian Law as a
whole, thereby including the CISG.
3. There is no implied intention of the Parties to exclude the application of the CISG
129. The Parties’ designation of Equatorianian law in Art. 29 of the PSA, which states that
“...the agreement is governed by the law of Equatoriana...”, does not implicitly exclude the
CISG. To determine if the Parties agreed on an implied exclusion, it is necessary to assess
the surrounding circumstances of the PSA, as required by the CISG’s interpretive rules
[CISG, Art. 8; Lookofsky, p. 27-28].
130. An implicit intent to exclude the CISG must be shown by interpreting statements and
conduct of parties according to the understanding of a reasonable person under Art. 8[2]
CISG, and taking into account all relevant circumstances of the case under Art. 8 [3] [Art.
8[3] CISG; Smythe, p. 8; Chinchilla furs case].
131. At no point did Respondent state that the choice of Equatoriana law was intended to
exclude the CISG. Claimant's acceptance of the choice of law clause, taken directly from
the revised 2022 Model Contract, cannot be interpreted as agreement to exclude the CISG
without explicit communication or negotiation to that effect. Claimant accepted the
choice of law clause, relying on its prior positive experiences with earlier versions of the
Model Contract, which explicitly included the CISG. There is no evidence that Claimant
understood or contemplated the implications of the revisions made in 2022. At no point
did Respondent state or inform Claimant that the choice of Equatoriana law was
intended to exclude the CISG. This omission is critical under Article 8[2], as a reasonable
person in Claimant’s position could not have inferred such intent without clear
communication.
132. The issue of the applicable law was listed for discussion but was not substantively
addressed during negotiations. Mr. Cavendish and Ms. Faraday, neither of whom are
48
 32ND ANNUAL WILLEM C. VIS INTERNATIONAL COMMERCIAL
ARBITRATION MOOT 11 APRIL – 17 APRIL 2025, VIENNA
lawyers, deferred the issue to their legal teams. However, Claimant’s legal support was
disrupted due to the termination of Mr. Law, and no clear communication regarding the
interpretation of the choice of law clause followed, meaning no mutual understanding to
exclude the CISG could have arisen [R1, p. 30, ¶ 11].
133. Mr. Cavendish’s comment that “the CISG is the gold standard for international sales
transactions” indicates that, from Claimant’s perspective, the CISG was presumed
applicable, therefore a reasonable person in Respondent’s position should have clarified
if they intended otherwise, which they did not.
134. The public announcement regarding the changes to the Model Contract was made in a
broad and general context, focusing on promoting Equatorianian law and its role in dispute
resolution. It did not explicitly state that the CISG was excluded as part of the revised
choice of law clause. A reasonable person could not interpret such a broad statement as
an intent to exclude the CISG, particularly in light of Claimant’s reliance on earlier
versions of the Model Contract that included the Convention. Without specific
clarification from Respondent, Claimant could not have been expected to interpret the
revised choice of law clause as an exclusion of the CISG.
135. Additionally, according to one of the basic principles in contract interpretation, the “contra
proferentem”rule, if a contract contains terms, supplied by one party, which contain
ambiguity, there has to be an interpretation aimed against said party [AC Opinion no. 13, ¶
9.2.]. In the contract, the wording of the choice of law clause does not implicitly indicate
that the Parties excluded the CISG, as it is ambiguous and being a model contract, which
are construed by the Equatorianian government, the sole owner of Respondent, this
contract should be interpreted in such a way as to make the CISG applicable to the PSA
[C2, p. 12, Art. 29].
136. Based on all the relevant factors it can be safely deduced that the Parties never intended to
exclude the application of the CISG to the PSA, nor have they validly excluded it implicitly
and especially explicitly.

REQUEST FOR RELIEF

In light of the foregoing submissions, Counsel on behalf of Claimant, respectfully requests the
Arbitral Tribunal to find that:

1. Claimant’s new claim should be added to the pending arbitration.

2. Alternatively, when initiated, the two arbitral proceedings should be consolidated.
49
 32ND ANNUAL WILLEM C. VIS INTERNATIONAL COMMERCIAL
ARBITRATION MOOT 11 APRIL – 17 APRIL 2025, VIENNA
3. The CISG is applicable to the Purchase and Service Agreement.
4. That the Parties did not exclude the application of CISG to the Purchase and Service Agreement.

And to order that:

5. Respondent bears the costs of this arbitration and to pay Claimant for damages due to
the termination for convenience, which was validly excluded.

CERTIFICATE

We hereby confirm that this Memorandum was written only by persons whose names are
listed below

David Rakita Luka Stanar Dejan Stojaković

Banja Luka, 12 December 2024

50