UNIVERSITY OF COLOGNE

21st Annual Willem C. Vis

INTERNATIONAL COMMERCIAL ARBITRATION MOOT

2013 – 2014

MEMORANDUM

FOR

INNOVATIVE CANCER TREATMENT LTD.

- CLAIMANT -

DAVID

BÖCKENFÖRDE

MARTIN

BONGARTZ

LAURA

GAUSCHINSKI

JULIAN

LAFERE

UNIVERSITY OF COLOGNE

UNIVERSITY OF COLOGNE II

Memorandum for CLAIMANT | II


CENTER FOR TRANSNATIONAL LAW

(CENTRAL)

TEAM MEMBERS:

DAVID

BÖCKENFÖRDE

MARTIN

BONGARTZ

LAURA

GAUSCHINSKI

JULIAN

LAFERE

21ST ANNUAL

WILLEM C. VIS

INTERNATIONAL

COMMERCIAL ARBITRATION MOOT

2013 – 2014

INSTITUTE OF INTERNATIONAL COMMERCIAL LAW

PACE UNIVERSITY SCHOOL OF LAW

WHITE PLAINS, NEW YORK

U.S.A.

UNIVERSITY OF COLOGNE III

Memorandum for CLAIMANT | III

MOOT CASE NO. 21

LEGAL POSITION

ON BEHALF OF

INNOVATIVE CANCER TREATMENT LTD.

46 COMMERCE ROAD

CAPITAL CITY

MEDITERRANEO (CLAIMANT)

AGAINST

HOPE HOSPITAL

1-3 HOSPITAL ROAD

OCEANSIDE

EQUATORIANA (RESPONDENT)

UNIVERSITY OF COLOGNE IV

Memorandum for CLAIMANT | IV

TABLE OF CONTENTS

TABLE OF AUTHORITIES .............................................................................................. X

INDEX OF COURT CASES ...................................................................................... XXVII

INDEX OF ARBITRAL AWARDS .......................................................................... XXXVII

INDEX OF LEGAL SOURCES ............................................................................ XXXVIII

STATEMENT OF FACTS ................................................................................................... 1

SUMMARY OF ARGUMENT ............................................................................................. 2

FIRST ISSUE: THE ARBITRAL TRIBUNAL HAS JURSIDICTION TO DECIDE

THE DISPUTES .................................................................................................................. 4

A. Art. 23 FASA contains the Parties’ valid agreement on arbitration under the CEPANI Rules .. 4

I. The Parties validly agreed on arbitration under the CEPANI Rules pursuant to

Art. 23(3) FASA ............................................................................................................................... 4

1. Art. 23(4) FASA contains the Parties’ valid agreement on an appeal mechanism ............... 5

a. The appeal and review mechanism is compatible with the CEPANI Rules and the

nature of arbitration ................................................................................................................. 5

aa. The appeal mechanism does not contradict the binding nature of the award ....... 5

bb. The appeal mechanism does not contradict the principle of finality ..................... 7

cc. Party autonomy supports the possibility to include an appeal of arbitral awards . 7

dd. In addition, it is internationally accepted to permit appeal mechanisms ............... 8

b. The Circular No. 265 does not affect RESPONDENT's capacity to validly agree on

arbitration .................................................................................................................................. 9

c. Should the Tribunal consider Art. 23(4) FASA void, this would not affect the validity

of the arbitration agreement in Art. 23(3) FASA ............................................................. 10

2. Art. 23(6) FASA does not violate the principle of equal treatment ..................................... 10

a. Art 23(6) FASA does not lead to unequal treatment of RESPONDENT ...................... 11

b. In any event, Art. 23(6) FASA has become obsolete since CLAIMANT already chose

arbitration ............................................................................................................................... 12

c. The alleged invalidity of Art. 23(6) FASA would not invalidate Art. 23(3) FASA ...... 12

II. Even if Art 23(3) FASA is considered void by the Tribunal, Sec. 21 OST contains a valid

arbitration clause in favor of CEPANI arbitration .................................................................. 13

UNIVERSITY OF COLOGNE V

Memorandum for CLAIMANT | V

1. Sec. 21 OST is applicable if Art. 23 FASA were to be considered void ............................. 13

2. Sec. 21 OST is acceptable to RESPONDENT even without an appeal clause .................. 14

B. The Tribunal has jurisdiction to rule on the dispute arising under the SALA .......................... 14

I. Disputes arising under the SALA are also governed by the arbitration agreement in

Art 23(3) FASA ............................................................................................................................. 14

1. Art. 23(3) FASA applies to the SALA pursuant to Art. 45 FASA ....................................... 14

2. Art. 23 SALA has not replaced Art. 23(3) FASA by virtue of Art. 45 FASA .................... 15

3. Consequently, the arbitration clause in Art. 23(3) FASA also governs the SALA ............ 15

II. Alternatively, the Tribunal has jurisdiction pursuant to Sec. 21 NST .................................. 16

SECOND ISSUE: BOTH CLAIMS SHALL BE HEARD IN A SINGLE

ARBITRATION ................................................................................................................. 16

A. The Parties agreed on single arbitration pursuant to Sec. 1 Art. 10 CEPANI ......................... 17

I. The Parties agreed on arbitration under the CEPANI Rules pursuant to

Sec. 1 Art. 10(1)(a) CEPANI ....................................................................................................... 17

II. The Parties implicitly agreed on a single set of proceedings pursuant to

Sec. 1 Art. 10(1)(b) CEPANI ...................................................................................................... 17

1. The presumption that identical arbitration clauses contain an agreement on single

arbitration applies to the dispute at hand ............................................................................... 18

2. Even if Art. 23(3) FASA is considered void, Sec. 21 OST and Sec. 21 NST are suggested

identical ........................................................................................................................................ 18

III. Since the matters in dispute are related, Sec. 1 Art. 10(3) CEPANI does not apply ........ 19

B. Alternatively, the Arbitral Tribunal shall order single arbitration pursuant to

Sec. 1 Art. 12 CEPANI ..................................................................................................................... 20

I. The Tribunal has jurisdiction to order single arbitration pursuant to

Sec. 1 Art. 12(1) CEPANI ........................................................................................................... 20

II. The Tribunal shall decide in favor of single arbitration according to

Sec. 1 Art. 12 CEPANI ................................................................................................................ 20

C. Alternatively, the Arbitral Tribunal shall request the Appointments Committee or the

President of CEPANI to consolidate the arbitrations pursuant to Sec. 1 Art. 13 CEPANI . 21

I. The Arbitral Tribunal is authorized to request for consolidation pursuant to

Sec. 1 Art. 13(1) CEPANI ........................................................................................................... 22

II. The circumstanes call for consolidation pursuant to Sec. 1 Art. 13(2) CEPANI ............... 22

UNIVERSITY OF COLOGNE VI

Memorandum for CLAIMANT | VI

1. The Parties did not exclude consolidation pursuant to Sec. 1 Art. 13(2)(a) CEPANI ..... 22

2. The claims are compatible and arise from the same legal relationship pursuant to

Sec. 1 Art. 13(2)(c) CEPANI .................................................................................................... 23

D. Any award rendered by the Arbitral Tribunal in a single arbitration is enforceable under the

DAL and the New York Convention ................................................................................................ 23

THIRD ISSUE: THE CISG GOVERNS THE CLAIMS ARISING UNDER THE SALA

....................................................................................................................................................................... 24

A. The CISG is applicable to the SALA, since the latter is a sale of goods contract ...................... 24

I. The SALA’s subject matters are goods in the sense of Art. 1(1) CISG ................................. 24

1. The Active Scanning Technology’s hardware is a good pursuant to Art. 1(1) CISG ....... 24

2. The Active Scanning Technology’s software is a good pursuant to Art. 1(1) CISG ........ 24

a. The CISG applies to all kinds of software, including the Active Scanning

Technology’s software .......................................................................................................... 25

b. Because the Active Scanning Technology’s software is standard software, the CISG

still applies, even if the Tribunal considers a distinction between individual and

standard software .................................................................................................................. 25

II. The SALA is a sales contract with respect to Art. 3(2) CISG ................................................ 26

1. The exception in Art. 3(2) CISG is not applicable, since the SALA’s preponderant part is

not on service or labor so that the SALA is treated as a sales contract ............................. 26

a. The SALA’s price composition indicates that it is a sales contract ................................ 27

b. The Parties’ intention also indicates, that the SALA is a sales contract ........................ 28

2. Even if the SALA is to be considered a licensing agreement, the CISG still applies ....... 28

B. The Parties agreed on the application of the CISG by incorporating the NST into the SALA 29

I. The Parties incorporated the NST into the SALA pursuant to Art. 46 SALA ..................... 29

1. CLAIMANT’s proposal refers to the incorporation of the NST in the sense of Art. 8(2)

CISG ............................................................................................................................................. 29

a. CLAIMANT clarified its intention to incorporate the NST on two occasions ............. 30

b. RESPONDENT had reasonable opportunity to take notice of the NST ...................... 30

2. RESPONDENT agreed on the incorporation of the NST pursuant to Art. 18 CISG .... 32

II. The NST provide for the application of the CISG to the SALA .......................................... 32

III. Even if the NST were not incorporated, the CISG is still applicable to the SALA ......... 33

UNIVERSITY OF COLOGNE VII

Memorandum for CLAIMANT | VII

1. The Parties did not choose a specific law in any other way ............................................ 34

2. Since there is no choice of law in terms of the SALA, the CISG is applicable ............ 34

REQUEST FOR RELIEF .................................................................................................. 35

UNIVERSITY OF COLOGNE VIII

Memorandum for CLAIMANT | VIII

INDEX OF ABBREVIATIONS

& and Art. Article Artt. Articles BGB Bürgerliches Gesetzbuch

(German Civil Code) BGH Bundesgerichtshof

(Federal Supreme Court, Germany) B.V. Besloten Vennootschap met beperkte

Aansprakelijkheid (Dutch company with limited liability)

CEPANI The Belgian Centre for Arbitration and Mediation

cf. confer (compare) CISG United Nations Convention on Contracts for

the International Sale of Goods of 11 April 1980

Cl. Ex. Claimant’s Exhibit

DAL Danubian Arbitration Law (adoption of the UNCITRAL Model Law)

EAL Equatorianean Arbitration Law (adoption of the UNCITRAL Model Law)

ed. Edition etc. et cetera (and so on)

FASA Framework and Sales Agreement fn. Footnote

ibid. ibidem (the same) ICC International Chamber of Commerce Inc. Incorporated

GmbH Gesellschaft mit beschränkter Haftung (German company with limited liability)

LG Landgericht (Regional Court, Germany)

11. Ltd. Limited

UNIVERSITY OF COLOGNE IX

Memorandum for CLAIMANT | IX

MüKo Münchener Kommentar zum Bürgerlichen Gesetzbuch (Commentary on the German Civil Code)

No. Number NST Claimant’s July 2011 Standard Terms and

Conditions for Sale (“New Standard Terms”)

OGH Oberster Gerichtshof (Federal Supreme Court, Austria)

OLG Oberlandesgericht (Court of Appeals, Germany)

OST Claimant’s November 2000 Standard Terms and Conditions for Sale (“Old Standard Terms”)

p. Page para. Paragraph paras. Paragraphs pp. P.O.

Pages Procedural Order

Resp. Ex. Respondent’s Exhibit

SALA Sales and Licensing Agreement Sec. Section sent. Sentence St. of Def. Statement of Defense

(Answer to Request for Arbitration) St. of Claim Statement of Claim

(Request for Arbitration)

UNCITRAL United Nations Commission on International Trade Law

UNIDROIT International Institute for the Unification of Private Law

USD US-Dollar

v. versus (against)

UNIVERSITY OF COLOGNE X

Memorandum for CLAIMANT |

X

TABLE OF AUTHORITIES

BERGER, KLAUS PETER

Die Einbeziehung von AGB in internationale Kaufverträge

In: Festschrift für Norbert Horn zum siebzigsten

Geburtstag, pp. 3-20

Berlin 2006

CITED IN: para. 177

CITED AS: Berger, FS Horn

Trans-Lex, Principles with Commentary, 2nd ed.

Cologne 2012

CITED IN: paras. 46, 50

CITED AS: www.Trans-Lex.org/

BORN, GARY B. International Arbitration and Forum Selection Agreements:

Drafting and Enforcing, 4th ed.

Alphen aan den Rijn 2013


CITED AS: Born

International Arbitration: Law and Practice


CITED IN: para. 126

CITED AS: Born, Law

International Commercial Arbitration


CITED IN: para. 89

CITED AS: Born, International Commercial Arbitration

UNIVERSITY OF COLOGNE XI


XI

BOURAS, EUGENIA To Appeal or Not to Appeal in International Arbitration

In: The Globetrotter: International Law Section 2012,

Volume 16, No. 2, pp. 1-3

available at:

http://www.oba.org/en/pdf/sec_news_int_jun12_bou_ar

b.pdf

(last visited: December 12th 2013)

CITED IN: para. 30

CITED AS: Bouras

BOYD, STEWART C.

MUSTILL, MICHAEL J.

Commercial Arbitration: 2001 Companion Volume

London 2001


CITED AS: Boyd/Mustill

BROWNE, OLIVER

CLIFFORD, PHILIP

Avoiding Pitfalls in Drafting and Using Unilateral Option

Clauses

In: International Arbitration – News in Brief, July 2013,

pp. 1-3

available at:

http://www.lw.com/thoughtLeadership/IA-News-in-

Brief-Unilateral-Option-Clauses


CITED IN: para. 57

CITED AS: Browne/Clifford

UNIVERSITY OF COLOGNE XII


XII

BÜHLER, MICHAEL W.

WEBSTER, THOMAS H.

Handbook of ICC Arbitration: Commentary, Precedents,

Materials, 2nd ed.

London 2008

CITED IN: para. 111

CITED AS: Bühler/Webster

CHIU, JULIE C.

Consolidation of Arbitral Proceeding and International

Arbitration

In: Journal of International Arbitration 1990, Volume 7,

Issue 2, pp. 53-76

CITED IN: paras. 104, 126, 129

CITED AS: Chiu

DE MEULEMEESTER, DIRK

VERBIST, HERMAN

Arbitrage in de Praktijk – Op basis van het CEPANI-

Arbitragereglement van 1 januari 2013 en met

verzwijzingen naar deel VI van het Gerechtelijk Wetboek

Brussels 2013

CITED IN: para. 122

CITED AS: De Meulemeester/Verbist

DIEDRICH, FRANK Anwendbarkeit des Wiener Kaufrechts auf

Softwareüberlassungsverträge

In: Recht der internationalen Wirtschaft 1993, pp. 441-452

CITED IN: para. 151

CITED AS: Diedrich, Anwendbarkeit

UNIVERSITY OF COLOGNE XIII


XIII

Maintaining Uniformity in International Uniform Law via

Autonomous Interpretation: Software Contracts and the

CISG

In: Pace International Law Review 1996, Volume 8,

pp. 303-338


CITED AS: Diedrich, Maintaining

The CISG and Computer Software Revisited

In: Vindobona Journal of International Commercial Law

and Arbitration 2002, Volume 6, Issue 2 pp. 55-75

CITED IN: para. 154

CITED AS: Diedrich, Revisited

EISELEN, SIEG CISG Advisory Council Opinion No. 13, Inclusion of

Standard Terms under the CISG

Pretoria 2013

available at:

http://www.cisg.law.pace.edu/cisg/CISG-AC-op13.html



CITED AS: Eiselen

ERMAN, WALTER

Kommentar zum Bürgerlichen Gesetzbuch 13th ed.,

Volume 1

Cologne 2011

CITED IN: para. 70

CITED AS: author in Erman

UNIVERSITY OF COLOGNE XIV


XIV

FERRARI, FRANCO

KIENINGER, EVA-MARIA

MANKOWSKI, PETER

OTTE, KARSTEN

SAENGER, INGO

SCHULZE, GÖTZ

STAUDINGER, ANSGAR

Internationales Vertragsrecht, 2nd ed.

Munich 2012

CITED IN: para. 188

CITED AS: author in Ferrari

GAILLARD, EMMANUEL

SAVAGE, JOHN

Fouchard Gaillard Goldman on International Commercial

Arbitration – Part I

The Hague 1999

CITED IN: para. 104

CITED AS: Gaillard/Savage

GREEN, SARAH

SAIDOV, DJAKHONGIR

Software as Goods

In: Journal of Business Law 2007, pp. 161-181

available at:

http://www.cisg.law.pace.edu/cisg/biblio/green-

saidov.html



CITED AS: Green/Saidov

HONNOLD, JOHN O.

Uniform Law for International Sales under the 1980 United

Nations Convention, 4th ed.


CITED IN: para. 159

CITED AS: Honnold

UNIVERSITY OF COLOGNE XV


XV

HUBER, PETER

MULLIS, ALASTAIR

The CISG: A New Textbook for Students and Practitioners

Munich 2007


CITED AS: Huber/Mullis

HUBER, PETER Standard Terms under the CISG

In: Vindobona Journal of International Commercial Law &

Arbitration 2009, Volume 13, pp. 123-134

available at:

http:// www.cisg.law.pace.edu/cisg/biblio/huber2.html



CITED AS: Huber

KNULL, WILLIAM H.

RUBINS, NOAH D.

Betting the Farm on International Arbitration: Is it Time to

Offer an Appeal Option?

In: Eleventh American Review of International Arbitration

2000, Volume 11, No. 4, pp. 531-577

available at:

http://www.mayerbrown.com/Files/Publication/b336c5b

0-0d49-4b80-94c3-edf5e1cadf90/Presentation/Publication

Attachment/008a397d-7ac9-4eb4-8303-f7e074fe4246/ART

_INTARB_00_BETTHEFARM.pdf


CITED IN: para. 30

CITED AS: Knull/Rubins

UNIVERSITY OF COLOGNE XVI


XVI

KRÖLL, STEFAN M.

MISTELIS, LOUKAS

PERALES VISCASILLAS, PILAR

UN Convention on Contracts for the International Sale of

Goods (CISG)

Munich 2011

CITED IN: para. 159

CITED AS: author in Kröll/Mistelis/Perales Viscasillas

LANDOLT, PHILLIP LOUIS Modernised EC Competition Law in International

Arbitration

The Hague 2006


CITED AS: Landolt

LANGE, SOPHIA

SCHERER, MAXI

The French Rothschild Case – A Threat For Unilateral

Dispute Resolution Clauses

available at:

http://kluwerarbitrationblog.com/blog/2013/07/18/the-f

rench-rothschild-case-a-threat-for-unilateral-dispute-resolut

ion-clauses


CITED IN: para. 59

CITED AS: Lange/Scherer

UNIVERSITY OF COLOGNE XVII


XVII

LOOKOFSKY, JOSEPH In Dubio pro Conventione? Some Thoughts about Opt-

Outs, Computer Programs and Preemption under the 1980

Vienna Sales Convention (CISG)

In: Duke Journal of Comparative & International

Law 2003, Volume 13, No. 3, pp. 263-289

available at:

http://scholarship.law.duke.edu/cgi/viewcontent.cgi?articl

e=1145&context=djcil


CITED IN: para. 151

CITED AS: Lookofsky

MAGNUS, ULRICH

Incorporation of Standard Contract Terms under the CISG

In: Festschrift for Albert H. Kritzer on the Occasion of his

Eightieth Birthday, pp. 303-325

London 2008

available at:

http://www.cisg.law.pace.edu/cisg/biblio/magnus3.html


CITED IN: para. 175

CITED AS: Magnus

MISTELIS, LOUKAS A. Concise International Arbitration


CITED IN: para. 52

CITED AS: author in Mistelis

UNIVERSITY OF COLOGNE XVIII


XVIII

MOSES, MARGARET L. The Principles and Practice of International Commercial

Arbitration, 2nd ed.

New York 2012

CITED IN: para. 104

CITED AS: Moses

PAIR, LARA M.

FRANKENSTEIN, PAUL

The New ICC Rule on Consolidation: Progress or Change?

In: Emory International Law Review 2011, Volume 25,

pp. 1061-1085

available at:

http://www.law.emory.edu/fileadmin/journals/eilr/25/25.

3/Pair_Frankenstein.pdf


CITED IN: para. 140

CITED AS: Pair/Frankenstein

PILTZ, BURGHARD AGB in UN-Kaufverträgen

In: Internationales Handelsrecht 2004, Volume 4,

pp. 133-138

available at:

http://www.cisg-library.org/pdf/piltz_agb_ihr2004heft4.p

df



CITED AS: Piltz

UNIVERSITY OF COLOGNE XIX


XIX

POLEBAUM, ELLIOT E. Unilateral Jurisdiction Clauses Undermined in

Russia, France

In: Fried Frank International Arbitration Newsletter,

December 2012

available at:

http://www.mondaq.com/unitedstates/x/212956/Arbitrat

ion+Dispute+Resolution/Fried+Frank+International+Arb

itration+Newsletter+December+2012



CITED AS: Polebaum

PRIMAK, SCOTT Computer Software: Should the U.N. Convention on

Contracts for the International Sale of Goods Apply? A

Contextual Approach to the Question

In: The John Marshall Journal of Information Technology

& Privacy Law 1991, Volume 11, Issue 2 Computer/Law

Journal, pp. 197-231

available at:

http://repository.jmls.edu/cgi/viewcontent.cgi?article=139

5&context=jitpl



CITED AS: Primak

REDFERN, ALAN

HUNTER, MARTIN

BLACKABY, NIGEL

PARTASIDES, CONSTANTINE

Law and Practice of International Commercial Arbitration,

4th ed.

London 2004

CITED IN: para. 144

CITED AS: Redfern/Hunter, Law

UNIVERSITY OF COLOGNE XX


XX

REDFERN, ALAN

HUNTER, MARTIN

BLACKABY, NIGEL

PARTASIDES, CONSTANTINE

Redfern and Hunter on International Arbitration, 5th ed.

London 2009


CITED AS: Redfern/Hunter

REIFNER, CLAIRE Stillschweigender Ausschluss des UN-Kaufrechts im

Prozess?

In: Internationales Handelsrecht 2002, Volume 2, pp. 52-59

CITED IN: para. 189

CITED AS: Reifner

RUBINS, NOAH The Enforcement and Annulment of International

Arbitration Awards in Indonesia

In: American University International Law Review 2005,

Volume 20, Issue 2, Article 3, pp. 359-401

CITED IN: para. 144

CITED AS: Rubins

SÄCKER, JÜRGEN

RIXECKER, ROLAND

Münchener Kommentar zum BGB, 6th ed., Volume 3

Munich 2012

CITED IN: para. 70

CITED AS: author in MüKo

SCHLECHTRIEM, PETER

SCHWENZER, INGEBORG

Kommentar zum Einheitlichen UN-Kaufrecht-CISG,

6th ed.

Basel 2013


CITED AS: author in Schlechtriem/Schwenzer (German)

UNIVERSITY OF COLOGNE XXI


XXI

Commentary on the UN Convention on the International

Sale of Goods (CISG), 3rd ed.

Oxford 2010

CITED IN: paras. 159, 171, 172, 182, 188, 189

CITED AS: author in Schlechtriem/Schwenzer

SCHLECHTRIEM, PETER

SCHROETER, ULRICH G.

Internationales UN-Kaufrecht, 5th ed.

Tübingen 2013


CITED AS: Schlechtriem/Schroeter

SCHLOSSER, PETER Das Recht der internationalen Schiedsgerichtsbarkeit,

2nd ed.

Tübingen 1989

CITED IN: para. 29

CITED AS: Schlosser

SCHMIDT-KESSEL, MARTIN Einbeziehung von Allgemeinen Geschäftsbedingungen

unter UN-Kaufrecht

In: Neue Juristische Wochenschrift 2002, pp. 3444-3446

CITED IN: para. 171

CITED AS: Schmidt-Kessel

SCHÖPFLIN, MARTIN International Sales Law under the CISG

In: Juristische Arbeitsblätter 2005, pp. 77-80

CITED IN: para. 159

CITED AS: Schöpflin

UNIVERSITY OF COLOGNE XXII


XXII

STACEY, JAMES

TAYLOR, ANGELA

Unilateral jurisdiction clauses in the UK

available at:

http://www.iflr.com/Article/3258087/Search/Results/Un

ilateral-jurisdiction-clauses-in-the-UK.html?PageId=201716

&Keywords=stacey+taylor&OrderType=1



CITED AS: Stacey/Taylor

V. STAUDINGER, JULIUS J. von Staudingers Kommentar zum Bürgerlichen

Gesetzbuch mit Einführungsgesetz und Nebengesetzen.

Wiener UN-Kaufrecht (CISG), 16th ed., Volume 2

Berlin 2013

CITED IN: para. 155

CITED AS: author in Staudinger

TEN CATE, IRENE M. International Arbitration and the Ends of Appelate Review

In: New York University Journal of International Law and

Politics (JILP) 2012, Volume 44, pp. 1109-1204

available at:

http://nyujilp.org/wp-content/uploads/2012/04/44.4-Ten

-Cate.pdf


CITED IN: para. 30

CITED AS: Ten Cate

UNIVERSITY OF COLOGNE XXIII


XXIII

ULMER, PETER

BRANDNER, HANS E.

HENSEN, HORST-DIETHER

AGB-Recht: Kommentar zu den §§ 305-310 BGB und zum

UKlaG, 11th ed.

Cologne 2011

CITED IN: para. 70

CITED AS: author in Ulmer/Brandner/Hensen

VAN GINKEL, ERIC Reframing the Dilemma of Contractually Expanded Judicial

Review: Arbitral Appeal v. Vacatur

In: Pepperdine Dispute Resolution Law Journal 2003,

Volume 3, Issue 2, Art. 2, pp. 157-220

available at:

http://digitalcommons.pepperdine.edu/cgi/viewcontent.cg

i?article=1162&context=drlj


CITED IN: para. 30

CITED AS: van Ginkel

WEIGAND, FRANK BERND Practitioner’s Handbook On International Commercial

Arbitration, 2nd ed.

New York 2002

CITED IN: para. 88

CITED AS: Weigand

UNIVERSITY OF COLOGNE XXIV


XXIV

YANNACA-SMALL, CATHERINE Consolidation of Claims: A Promising Avenue for

Investment Arbitration?

In: International Investment Perspectives, 2006 ed.,

pp. 225-259

available at:

http://www.oecd.org/investment/internationalinvestment

agreements/40079691.pdf



CITED AS: Yannaca-Small

UNIVERSITY OF COLOGNE XXV


XXV

INDEX OF COURT CASES

AUSTRIA

21.06.2005 Oberster Gerichtshof

5 Ob 45/05m

available at:

http://www.globalsaleslaw.org/content/api/cisg/urteile/10

47.pdf


CITED IN: para. 52

CITED AS: OGH, 21.06.2005

31.08.2005 Oberster Gerichtshof

7 Ob 175/05v

available at:

http://cisgw3.law.pace.edu/cases/050831a3.html


CITED IN: para. 179

CITED AS: OGH, 31.08.2005

ENGLAND

01.01.1986 Court of Appeal

Pittalis v. Sherefettin

No.1986 1 QB 868

available at:

http://swarb.co.uk/pittalis-v-sherefettin-ca-1986/


CITED IN: para. 57

CITED AS: Pittalis v. Sherefettin

UNIVERSITY OF COLOGNE XXVI


XXVI

13.10.2004 High Court of Justice Queen’s Bench Division Commercial

Court

NB Three Shipping Limited v. Harebell Shipping Limited

2004 EWHC 2001

available at:

http://www.nadr.co.uk/articles/published/ArbitLawReports

/NB%20Three%20v%20Hare%202004.pdf


CITED IN: para. 57

CITED AS: NB Three Shipping Ltd. v. Harebell Shipping Ltd.

01.07.2005 High Court of Justice Chancery Division

The Law Debenture Trust Corporation PLC v. Elektrim

Finance BV and Others

2005 EWHC 1412

availabe at:

http://www.bailii.org/ew/cases/EWHC/Ch/2005/1412.ht

ml


CITED IN: para. 62

CITED AS: The Law Debenture Trust Corporation PLC v.

Elektrim Finance BV and Others

UNIVERSITY OF COLOGNE XXVII


XXVII


Court

Shell Egypt West Manzala GmbH and Shell Egypt West

Qantara GmbH v. Dana Gas Egypt Limited

2009 EWHC 2097

availabe at:

http://www.bailii.org/ew/cases/EWHC/Comm/2009/209

7.rtf


CITED IN: para. 28

CITED AS: Shell v. Dana Gas


Court

Mauritius Commercial Bank Limited v. Hestia Holdings

Limited

2013 EWHC 1328

available at:

http://www.bailii.org/cgi-

bin/markup.cgi?doc=/ew/cases/EWHC/Comm/2013/132

8.html&query=2013+and+EWHC+and+1328&method=bo

olean


CITED IN: para. 57

CITED AS: Mauritius Commercial Bank Ltd. v. Hestia

Holdings Ltd.

UNIVERSITY OF COLOGNE XXVIII


XXVIII

FRANCE

26.11.2012 Cour de Cassation

La société Banque privée Edmond de Rothschild Europe v.

Mme X

No. 11-26.022

available at:

http://www.courdecassation.fr/jurisprudence_2/premiere_c

hambre_civile_568/983_26_24187.html#



CITED AS: Mme X

GERMANY

26.01.1989 Bundesgerichtshof

X ZR 23/87

available at:

http://www.juris.de/jportal/portal/t/174t/page/jurisw.psml

?pid=Dokumentanzeige&showdoccase=1&js_peid=Trefferli

ste&documentnumber=1&numberofresults=1&fromdoctod

oc=yes&doc.id=KORE301998901&doc.part=L&doc.price=

0.0&doc.hl=1#focuspoint


CITED IN: para. 57

CITED AS: BGH, 26.01.1989

UNIVERSITY OF COLOGNE XXIX


XXIX

26.08.1994 Oberlandesgericht Köln

19 U 282/93

available at:


2.htm


CITED IN: para. 152

CITED AS: OLG Köln, 26.08.1994

08.02.1995 Oberlandesgericht Hamm

11 U 206/93

available at:


1.htm


CITED IN: para. 182

CITED AS: OLG HAMM, 08.02.1995

08.02.1995 Landgericht München

8 HKO 24667/93

available at:

http://www.globalsaleslaw.com/content/api/cisg/urteile/20

3.htm


CITED IN: para. 152

CITED AS: LG München, 08.02.1995

UNIVERSITY OF COLOGNE XXX


XXX

26.11.1998 Landgericht Mainz

12 HK.O 70/97

available at:


3.html


CITED IN: para. 164

CITED AS: LG Mainz, 26.11.1998

27.12.1999 Oberlandesgericht Dresden

2 U 2723/99

available at:

http://www.unilex.info/case.cfm?pid=1&do=case&id=441

&step=FullText


CITED IN: para. 191

CITED AS: OLG Dresden, 27.12.1999

24.09.1998 Bundesgerichtshof

III ZR 133/97

available at:

http://www.juris.de/jportal/portal/t/16l4/page/jurisw.psml

?pid=Dokumentanzeige&showdoccase=1&js_peid=Trefferli

ste&documentnumber=1&numberofresults=1&fromdoctod

oc=yes&doc.id=KORE607289800&doc.part=L&doc.price=

0.0&doc.hl=1#focuspoint


CITED IN: para. 57

CITED AS: BGH, 24.09.1998

UNIVERSITY OF COLOGNE XXXI


XXXI

21.04.2004 Oberlandesgericht Düsseldorf

I-15 U 88/03

available at:

http://openjur.de/u/102991.html


CITED IN: para. 180

CITED AS: OLG Düsseldorf, 21.04.2004

THE NETHERLANDS

28.06.2006 Arrondissementsrechtbank Arnhem

Silicon Biomedical Instruments B.V. v. Erich Jaeger GmbH

HA ZA 02-105

available at:

http://cisgw3.law.pace.edu/cases/060628n1.html


CITED IN: para. 152

CITED AS: Silicon Biomedical Instruments BV v. Erich Jaeger GmbH

SWITZERLAND

14.12.2009 Kantonsgericht Kanton Zug

A2 2001 105

available at:

http://www.globalsaleslaw.com/content/api/cisg/urteile/20

26.pdf


CITED IN: para. 164

CITED AS: Kantonsgericht Zug, 14.12.2009

UNIVERSITY OF COLOGNE XXXII


XXXII

21.02.1989 Court of Appeals of the State of New York

Thomas Sablosky v. Edward S. Gordon Company

Incorporated

73 N.Y.2d 133

available at:

http://www.leagle.com/decision/198920673NY2d133_1196


CITED IN: para. 57

CITED AS: Sablosky v. Gordon Company Inc.

UNITED STATES OF

AMERICA

12.12.1975 United States Court of Appeals, Second Circuit

Compania Espanola Petróleos S.A. v. Nereus Shipping S.A.

527 F. 2d. 966

available at:

http://openjurist.org/527/f2d/966/compania-espanola-petr

oleos-sa-v-nereus-shipping-sa-hidrocarburos-derivados-ca


CITED IN: para. 135

CITED AS: Compania Espanola de Petróleos v. Nereus Shipping

UNIVERSITY OF COLOGNE XXXIII


XXXIII

18.03.1991 United States Court of Appeals, Third Circuit

Advent Systems Limited v. Unisys Corporation

925 F.2d 670

available at:

http://www.leagle.com/decision/19911595925F2d670_1146

2


CITED IN: para. 151

CITED AS: Advent Systems Ltd. v. Unisys Corp.

01.06.1999 United States Court of Appeals, Third Circuit

Harris v. Green Tree Financial Corporation

183 F.3d 173

available at:

http://www.leagle.com/decision/1999356183F3d173_1335

(last visited: December 12th2013)

CITED IN: para. 57

CITED AS: Harris v. Green Tree Financial Corp.

27.07.2001 Federal District Court of California

Asante Technologies, Inc. v. PMC-Sierra, Inc.

C 01-20230 JW

available at:

http://www.cisg.law.pace.edu/cases/010727u1.html


CITED IN: para. 189

CITED AS: Asante Technologies v. PMC-Sierra

UNIVERSITY OF COLOGNE XXXIV


XXXIV

23.03.2004 United States Court of Appeals, Fifth Circuit

Karaha Bodas Co., L.L.C. v. Perusahaan Pertambangan

Minyak Dan Gas Bumi Negara

364 F.3d 274

available at:

https://law.resource.org/pub/us/case/reporter/F3/364/36

4.F3d.274.02-20042.03-20602.html


CITED IN: para. 143

CITED AS: Karaha Bodas v. Perusahaan Pertambangan Minyak

UNIVERSITY OF COLOGNE XXXV


XXXV

INDEX OF ARBITRAL AWARDS

DEUTSCHE INSTITUTION FÜR

SCHIEDSGERICHTSBARKEIT

2005

Interim award of DIS-SV-438/04

In: SchiedsVZ 2005, pp. 166-168

CITED IN: para. 88

CITED AS: SchiedsVZ 2005

INTERNATIONAL CHAMBER OF

COMMERCE

1989

Award No. 5989

In: Yearbook Commercial Arbitration 1990, Volume XV,

p. 74

CITED IN: para. 105

CITED AS: ICC No. 5989

1994

Award No. 7184

In: ICC Bulletin, Volume 8, No. 2, p. 63

CITED IN: para. 104


2002

Award No. 11333

available at:

www.unilex.info/case.cfm?id=1163

(last visited: December 12th2013)

CITED IN: para. 188


UNIVERSITY OF COLOGNE XXXVI


XXXVI

INDEX OF LEGAL SOURCES

ARBITRATION RULES OF CEPANI – THE BELGIAN CENTRE FOR ARBITRATION AND MEDIATION

OF JANUARY 1ST 2013

CITED AS: CEPANI

AUSTRALIAN COMMERCIAL ARBITRATION ACT OF AUGUST 212TH2012

CITED AS: ACAA

BELGIAN JUDICIAL CODE OF SEPTEMBER 1ST

2013

CITED AS: BJC

ENGLISH ARBITRATION ACT OF JUNE 17TH

1996

CITED AS: EAA

NEW YORK CONVENTION ON THE RECOGNITION AND ENFORCEMENT OF FOREIGN ARBITRAL AWARDS OF JUNE 7TH 1959

CITED AS: NY CONVENTION

12. UNCITRAL MODEL LAW ON INTERNATIONAL COMMERCIAL ARBITRATION OF JULY 7TH

2006

CITED AS: DAL

UNIDROIT PRINCIPLES OF INTERNATIONAL COMMERCIAL CONTRACTS 2010

CITED AS: UNIDROIT PRINCIPLES

UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS

(CISG) OF APRIL 11TH 1980

CITED AS: CISG

VIENNA CONVENTION ON THE LAW OF TREATIES OF MAY 23RD

1969

CITED AS: VIENNA CONVENTION



1

1

STATEMENT OF FACTS

1. The Parties to this arbitration are Innovative Cancer Treatment Ltd., Mediterraneo

(hereinafter “CLAIMANT” ) and Hope Hospital, Equatoriana (hereinafter “RESPONDENT” ).

2. CLAIMANT is one of the few manufacturers of particle therapy equipment. It specializes in proton

therapy and is the market leader for facilities using a passive beam scattering technique. It has

developed a cancer treatment method called Active Scanning Technology.

3. RESPONDENT is a university teaching hospital. It is extensively state funded and the national center

for cancer research and treatment in Equatoriana.

4. On January 13th 2008, the Parties concluded a Framework and Sales Agreement (hereinafter “FASA” ).

Its subject matter is the sale of the Proton Therapy Facility to RESPONDENT for a price of

USD 50 million. At the same time the FASA provides the legal framework for any further extension

of the Proton Therapy Facility according to Art. 45 FASA. Pursuant to the choice of law clause in the

Old Standard Terms (hereinafter “OST” ), the national law of Mediterraneo is applicable to all claims

arising under this agreement.

5. On March 6th 2011, RESPONDENT approached CLAIMANT signaling interest in purchasing

CLAIMANT’s newly developed Active Scanning Technology. The Active Scanning Technology

consists of a third treatment room and the necessary hard- and software.

6. Concurrently, CLAIMANT revised its Standard Terms and informed RESPONDENT in this regard on

two occasions. First, on June 2nd 2011, during their final meeting of the negotiation of the SALA and

second, in Dr. Vis’ Letter of July 5th 2011. The New Standard Terms (hereinafter “NST” ) are applicable

to all contracts concluded after July 1st 2011.

7. CLAIMANT’s NST were available on its servers in Mediterranean from July 5th 2011 , the latest,

onwards. RESPONDENT’s assistant is able to understand this language. An English version of the

NST was online from July 1st to 4th 2011 and was then shortly removed from their servers for

maintenance.

8. On July 20th 2011, the Parties concluded the Sales and Licensing Agreement (hereinafter “SALA” ).

8. Since the purchase price had been a concern for RESPONDENT during the negotiations, CLAIMANT

agreed to grant a price reduction of USD 6 million in exchange for RESPONDENT’s cooperation in

the development and approval of the Active Scanning Technology. The final purchase price was

USD 3.5 million.

9. On August 15th 2012, RESPONDENT, after having paid all other installments, informed CLAIMANT

that it would not pay the outstanding USD 11.5 million.



2

2

10. On June 6th 2013, CLAIMANT submitted a request for arbitration to the Belgian Centre for

Arbitration and Mediation (hereinafter “CEPANI” ) based on the arbitration clause in Art. 23(3) FASA

and to have the case decided in a single arbitration.

ISSUES

1. The Arbitral Tribunal has jurisdiction to decide the case. [FIRST ISSUE]

2. The case is to be decided in a single arbitration. [SECOND ISSUE]

3. The SALA constitutes a sales contract in the sense of the CISG and CLAIMANT’s NST have been incorporated into this contract. As a result, the CISG applies to it. [THIRD ISSUE]

No further questions going to the merits of the claims should be addressed at this point of the

proceedings. [P.O. No. 1, para. 3.1; P.O. No. 2, para. 1 ].

SUMMARY OF ARGUMENT

11. I. The Arbitral Tribunal has jurisdiction to decide the disputes. The Tribunal has jurisdiction over

the disputes arising out of the FASA and the SALA. RESPONDENT has no grounds to challenge the

jurisdiction of the Arbitral Tribunal. The appeal and review mechanism of Art. 23(4) FASA does not

invalidate the Parties’ agreement to CEPANI arbitration. RESPONDENT’s allegations that the appeal

mechanism is contrary to the nature of arbitration are without merits. By drafting the arbitration

agreement, the Parties exercised their party autonomy, which is one of the most important principles of

international arbitration.Further, the unilateral jurisdiction clause in Art. 23(6) FASA does not violate the

principle of equal treatment. Art. 23(6) FASA has become obsolete after the CLAIMANT already chose

arbitration, as litigation pursuant to Art. 23(6) FASA and arbitration pursuant to Art. 23(3) FASA are

mutually exclusive options. The Tribunal also has jurisdiction to rule on the disputes arising under the

SALA pursuant to Art. 23(3) FASA, since Art. 23 SALA does not constitute a “provision to the

contrary” by virtue of Art. 45 FASA and, therefore, has not replaced Art. 23 FASA in its entirety. This

legal relationship is illustrated by the following diagram (FIRST ISSUE).



3

3

12. II. Both claims shall be heard in a single arbitration. The Arbitral Tribunal shall decide that it has

jurisdiction to hear both claims in a single arbitration. Art. 23(3) FASA is used as a Master Dispute

Resolution Clause which has been incorporated into Art. 23 SALA by the reference of Art. 45 FASA [cf.

diagram above ]. Thereby, the Parties implicitly agreed on a single set of proceedings pursuant to Sec. 1

Art. 10 CEPANI. Even if the Tribunal were to find that the Parties did not agree on single arbitration it

is authorized to determine its own jurisdiction pursuant to Sec. 1 Art. 12 CEPANI and order single

arbitration. Alternatively, if the Tribunal still has doubts whether to hear both disputes in a single

arbitration, the Arbitral Tribunal shall request the Appointments Committee or the President of

CEPANI to consolidate the proceedings pursuant to Sec. 1 Art. 13 CEPANI. The circumstance call for

consolidation, as the claims arising under the FASA and the SALA are compatible and arise from the

same legal relationship. Thus, single arbitration is the desirable and flexible remedy to decide the

disputes without the need of a, time and cost intensive, second procedure (SECOND ISSUE).

13. III. The CISG governs the claims arising under the SALA. The SALA constitutes a sale of goods

contract. Its subject matter is the Active Scanning Technology, which consists of hardware (third

treatment room, magnets, etc.) and the standard software necessary to operate the hardware [cf. diagram

above]. Both are goods in the sense of the CISG. If the SALA were to be seen as a licensing agreement,

the SALA would still be an economic equivalent of sales and the CISG would still govern the SALA.



4

4

Further, the Parties agreed on the application of the CISG in Sec. 22 NST through Art. 46 SALA. The

NST were incorporated, as CLAIMANT referred to the NST in its proposal. RESPONDENT had

sufficient opportunity to obtain knowledge and agreed on the incorporation of the NST. The choice of

law clause in Sec. 22 NST includes the CISG, contrary to Sec. 22 OST with regard to the FASA. Even if

the NST were not incorporated into the SALA, the OST cannot be taken into account in order to

determine the Parties’ choice of law. Therefore, the claims arisng under the SALA would still be

governed by the CISG (THIRD ISSUE).

FIRST ISSUE: THE ARBITRAL TRIBUNAL HAS JURISDICTION TO DECIDE THE

DISPUTES

15. The Tribunal has jurisdiction to decide the disputes between the Parties under the Arbitration Rules of

CEPANI pursuant to Art. 23(3) FASA which is the arbitration agreement contained in the dispute

resolution clause Art. 23 FASA. As the seat of arbitration is Danubia, and Danubia has adopted the

UNCITRAL Model Law on International Commercial Arbitration with the 2006 amendments

(Danubian Law on International Commercial Arbitration, hereinafter “DAL” ) [P.O. No. 2, para. 13 ], the

DAL is the lex arbitri applicable to these proceedings [cf. Redfern/Hunter, para. 1.07 ]. According to

Art. 16(1) DAL and the widely accepted principle of “competence-competence”, an arbitral tribunal has the

authority to rule on its own jurisdiction [Redfern/Hunter, para. 5.99 ]. Thus, the Tribunal is competent to

determine whether the Parties validly agreed on arbitration under the CEPANI Rules.

16. CLAIMANT requests the Tribunal to confirm its jurisdiction under the CEPANI Rules. In the

following, CLAIMANT will demonstrate that, contrary to RESPONDENT’s assertions, Art. 23(3) FASA

contains a valid arbitration clause in favor of CEPANI arbitration (A.) and that pursuant to Art. 45

FASA, disputes arising under the SALA are also governed by the arbitration agreement made in

Art. 23(3) FASA (B.).

A. Art. 23(3) FASA contains the Parties’ valid agreement on arbitration under the CEPANI

Rules

17. Contrary to RESPONDENT’s submissions [St. of Def., paras. 5-11 ], CLAIMANT will show that the

Parties validly agreed on arbitration under the CEPANI Rules in Art. 23(3) FASA (I.). Even if

Art. 23 FASA should be considered void due to unequal treatment of RESPONDENT, the Tribunal still

has jurisdiction under the CEPANI Rules pursuant to Art. 21 OST (II.).

I. The Parties validly agreed on arbitration under the CEPANI Rules pursuant to Art. 23(3)

FASA

18. CLAIMANT and RESPONDENT have validly concluded an arbitration agreement. The arbitration

clause in Art. 23(3) FASA states:



5

5

“If the matter in dispute is not resolved through such mediation […] such dispute

shall become subject to arbitration, to be finally settled under the CEPANI Rules of

Arbitration before CEPANI […].

The arbitration shall be conducted before three arbitrators, in the English language

and shall be held in Vindobona, Danubia.”

19. Contrary to RESPONDENT’s submission, the Parties validly agreed on arbitration subject to appeal

pursuant to Art. 23(4) FASA (1.) and the Parties are treated equally despite of Art. 23(6) FASA (2.).

1. Art. 23(4) FASA contains the Parties’ valid agreement on an appeal mechanism

20. RESPONDENT is of the view that the appeal mechanism in Art. 23(4) FASA would contradict the

characteristic feature of arbitration, which is the binding and final nature of the award, and would render

the entire arbitration agreement void [St. of Def., paras. 7, 8 ].

21. This is an assertion without substance. The appeal and review mechanism in Art. 23(4) FASA does not

render the arbitration clause in Art. 23(3) FASA void.

22. Art. 23(4) FASA states:

“The award shall be final and binding upon the Parties. Each Party has, however, the

right within three months after it has received the award to refer the case to the

applicable state courts if it considers the award to be obviously wrong in fact or in

law. The state courts shall then have jurisdiction to review the case and to decide the

issue in accordance with the applicable law.”

23. CLAIMANT requests the Tribunal to find firstly, that the agreed appeal and review mechanism does not

invalidate the arbitration agreement (a.), secondly, that the Circular No. 265 does not affect

RESPONDENT’s ability to agree on arbitration, with or without an appeal (b.), and, thirdly, that even if

the Tribunal should find that Art. 23(4) FASA is void, this does not affect the validity of the arbitration

agreement contained in Art. 23(3) FASA (c.).

a. The appeal and review mechanism is compatible with the CEPANI Rules and the nature of

arbitration

24. RESPONDENT argues that Art. 23(4) FASA contradicts the nature of arbitration [St. of. Def., para. 7 ].

CLAIMANT rejects this notion since the appeal mechanism is entirely in line with the nature of

arbitration. CLAIMANT will demonstrate, that the appeal and review mechanism in Art. 23(4) FASA

neither contradicts the binding (aa.), nor the final nature of the award (bb.). To the contrary, the

principle of party autonomy supports the inclusion of an appeal (cc.) and appeals against arbitral awards

are internationally permitted (dd.).

aa. The appeal mechanism does not contradict the binding nature of the award

25. The appeal and review mechanism in Art. 23(4) FASA does not violate the binding nature of any future



6

6

award.

26. A comparison between court decisions and arbitral awards shows that an appeal mechanism is

compatible with the binding nature of the award. Even though appeals against court decisions are

universally accepted, nobody would question the binding nature of a court decision on that basis. Since

it is internationally recognized that an arbitral award has the same legal effect as a court decision in the

relationship between the parties [cf. Art. 1713 § 9 Belgian Judicial Code; Sec. 66(1) English Arbitration Act of

1996; § 1055 German Code of Civil Procedure ], appeals against arbitral awards do also not contradict their

binding nature.

27. Even within most arbitration rules it is acknowledged that an award may be, at least partially, reviewed

without questioning the binding nature of that award. This review takes place when a request is filed to

set an award aside. The grounds to have an award set aside are strictly limited and the award may only

be set aside if one party files a request within three months after it has received the award

[cf. Art. 34(3) DAL; Art. 1717 § 4 Belgian Judical Code ]. The appeal mechanism in Art. 23(4) FASA is

comparable, since it only applies if the award is considered to be “obviously wrong in fact or law” and

the Parties may only make use of the appeal within three months after they have received the award.

Art. 23(4) FASA is, therefore, just as strictly limited as the procedure to have an award set aside. Thus, if

the possibility to have an award set aside does not affect the binding nature of an award, neither can the

strictly limited appeal mechanism in Art. 23(4) FASA.

28. This reasoning is further demonstrated in the Shell v. Dana Gas Case. Here the High Court upheld its

jurisdiction to hear the appeal against the arbitral award, even though the arbitration agreement stated

that the award “[…]shall be final, conclusive and binding on the parties, […]” [emphasis added ]. The court

held that “ 'final and binding', in the context of arbitration, and arbitration agreements, has long been used

to state the well-recognised rule in relation to arbitration, namely that an award is final and binding in

the traditional sense and creates a res judicata between the parties” [emphasis added ] and that those terms

do not suffice to exclude an appeal. Res judicata means that the award is not a mere expression by the

arbitrator of his view as to the referred dispute, which a party is at liberty to disregard [Boyd/Mustill, p.

413 ].

29. If the terms final and binding do not suffice to exclude an appeal, such an appeal cannot contradict the

binding nature of the award. Consequently, the fact “[t]hat the award is 'final and binding' merely

restates the established principle that an award rendered by an international tribunal is res judicata […]”

[Caron/Caplan/Pellonpää, p. 797 ]. It does not, however, mean that an appeal mechanism is incompatible

with the binding nature of the award, let alone the nature of arbitration. Hence, the binding force of the

award in the present case will set in, just like in any other arbitration, when the last arbitrator signs the

award [cf. Schlosser, p. 573 ].



7

7

bb. The appeal mechanism does not contradict the principle of finality

30. Further, the fact that the Parties included an appeal mechanism does not contradict the principle of

finality of the award. CLAIMANT acknowledges that the finality of the award, which leads to speedy

and efficient proceedings, is a principle inherent in every arbitration. In the context of international

commercial disputes, however, finality takes a backseat to the parties’ interest in diligent adjudication

[Ten Cate, p. 1133 ]. Although manifest errors of law and inconsistent decisions are not common,

arbitrators, just like judges, are human and not always errorless [Bouras, p. 3 ]. Therefore, the parties have

a strong interest in an avenue for recourse, if they believe that the award contains errors, as faults can be

expensive [van Ginkel, p. 194 ]. Finality is a desirable advantage of arbitration, but only if due process

rights are not being sacrificed [Knull/Rubins, p. 563 ].

31. The fact that Art. 23(4) FASA is compatible with the principle of finality is also demonstrated by the

legislative history of Art. 58 English Arbitration Act of 1996. This article states:

“(1) Unless otherwise agreed by the parties, an award made by the tribunal pursuant

to an arbitration agreement is final and binding both on the parties and on any

persons claiming through or under them.

(2) This does not affect the right of a person to challenge the award by any available arbitral

process of appeal or review or in accordance with the provisions of this Part. ”

[emphasis added ]

32. Art. 58(2) English Arbitration Act of 1996 “was inserted because the reference to finality in section 16 of

the Arbitration Act 1950 was sometimes assumed 'wrongly' to exclude the possibility of challenging an

award“ [emphasis added ] [Boyd/Mustill, p. 342 ].

33. In conclusion, the appeal mechanism in Art. 23(4) FASA is compatible with the principle of finality.

cc. Party autonomy supports the possibility to include an appeal of arbitral awards

34. Moreover, the principle of party autonomy supports the idea that the parties ought to be empowered to

choose whether or not to opt for an appeal against the award made by their chosen arbitrators. Party

autonomy is the guiding principle in determining the procedure to be followed in an international

arbitration. The principle is endorsed in national laws, by international arbitral institutions worldwide

and by international instruments such as the New Yorkv Convention on the Recognition and

Enforcement of Foreign Arbitral Awards (1958) ( hereinafter “NY Convention”) and the Model Law

[Redfern/Hunter, para. 6.08 ]. Thus, when RESPONDENT mentions “principles of arbitration”, it also has

to acknowledge party autonomy as one of the most important principles in international arbitration,

which allows the parties to determine their own procedure. In the present case, the Parties exercised

their party autonomy by including Art. 23(4) FASA.



8

8

35. Although appeals are compatible with the principle of finality of the award, RESPONDENT might

argue that in CEPANI arbitration the autonomy of the parties to include an appeal mechanism is

restricted by Sec. 1 Art. 32 CEPANI, which states that “[…] [t]he Award is final and not subject to

appeal.[…]”.

36. However, under the CEPANI Rules recourse against the award is not only recognized, but the parties

are free to choose whether they want to opt for an appeal or not. This is demonstrated in the Model

Clause Section [CEPANI Rules, p. 9 ] which states:

“If the parties wish to exclude recourse against the arbitral award that may be available

under the applicable law, they may add a provision to that effect [...]”.

37. In the present case, the Parties did not add a provision to that effect, but rather chose to allow recourse

against the arbitral award by including the appeal mechanism in Art. 23(4) FASA. If, pursuant to the

Model Clause Section, the right to recourse is only excluded if the parties explicitly waive this right, the

explicit choice of the parties to include such recourse has to be respected. Sec. 1 Art. 32 CEPANI can

only apply if the parties explicitly waive their right to any form of recourse. Consequently, the Parties

were free to deviate from Sec. 1 Art. 32 CEPANI by including Art. 23(4) FASA.

38. RESPONDENT’s submission, that Art. 23(3) FASA should be considered void, even though it did not

only agree to the appeal clause in Art. 23(4) FASA but demanded its inclusion, is just an attempt to

avoid its contractual obligation to engage in the arbitration. This conduct should not be rewarded by the

Tribunal.

39. Since Sec. 1 Art. 32 CEPANI is not mandatory, the fact that the Parties deviated from it cannot

invalidate the arbitration agreement in Art. 23(3) FASA.

dd. In addition, it is internationally accepted to permit appeal mechanisms

40. Additionally, provisions in the arbitration laws of many jurisdictions show that it is common to permit

an appeal mechanism without affecting the validity of the arbitration agreement. CLAIMANT is aware

that these provisions are not applicable to the case at hand and that the Tribunal is not bound by them.

They should, however, be taken into consideration as they represent the existing legal practice. The

arbitration laws of Mediterraneo, Equatoriana and Danubia for domestic arbitration contain a provision

concerning appeal on the merits. They are nearly identical and only differ in the questions of law, which

may be appealed [P.O. No. 2, para. 14 ]. This shows that an appeal does not contradict the nature of

arbitration, which is also true for the seat of arbitration, Danubia.

41. Furthermore, a number of other jurisdictions across the globe permit appeals against arbitral awards.

The extent of court intervention permitted by different states may be viewed as a spectrum

[Redfern/Hunter, para. 10.65 ]. On the one end of this spectrum are states like France, which exercise a

minimum control over international arbitral awards [ibid., para. 10.67 ], and Switzerland, which allows



9

9

non-domestic parties to contract entirely out of court control [ibid., para. 10.71 ]. In between are a few

states that have adopted, either in full or with some modifications, the grounds of recourse laid down in

the Model Law [ibid., para. 10.65 ]. On the other end of the spectrum are countries like England and

Australia, which operate a range of controls, including a limited right of appeal on questions of law.

Section 69 of the English Arbitration Act of 1996, allows for an appeal. It is only available on questions

of English law, when the decision of the tribunal is “obviously wrong” and the parties did not waive the

right to appeal [ibid., para. 10.68 ]. A similar provision, which allows a limited appeal can be found in

Art. 34(A) of the Australian Commercial Arbitration Act.

42. Art. 23(4) FASA provides for such a limited appeal, since it only applies if one Party “considers the

award to be obviously wrong in fact or in law”. Furthermore, the Party who wants to appeal has to

request for the appeal within a limited period of three months. This ensures that the appeal is not

misused to delay the enforcement of the award.

43. In light of the above, CLAIMANT requests the Tribunal to find that the appeal mechanism is valid and

that it, therefore, has jurisdiction to decide the dispute arising under the FASA.

b. The Circular No. 265 does not affect RESPONDENT’s capacity to validly agree on

arbitration

44. RESPONDENT may allege that Circular No. 265 restricts its capacity to agree on arbitration. It is

CLAIMANT’s submission ,that RESPONDENT was able to enter into an arbitration agreement with or

without the appeal mechanism, because the Circular No. 265 does not affect RESPONDENT’s

capability to enter into an arbitration agreement.

45. The Circular No. 265 is an internal administrative guideline for governmental entitities and not directly

applicable to RESPONDENT [P.O. No. 2, para. 9 ]. RESPONDENT was not legally banned from

entering into an arbitration without an appeal and review mechanism. This is confirmed by

RESPONDENT’s conduct. It had already deviated from the Circular No. 265 in another case by

agreeing on arbitration without any appeal and review mechanism [P.O. No. 2, para. 9 ]. CLAIMANT was

not aware of this fact during the negotiations [ibid. ]. In the present case, RESPONDENT merely wanted

to avoid another unfavorable award [ibid. ] and, therefore insisted on the inclusion of Art. 23(4) FASA.

46. RESPONDENT sets itself in contradiction to its previous conduct, by now insisting that the agreed

appeal and review mechanism invalidates the arbitration agreement. RESPONDENT thereby violates

the principle of venire contra factum proprium [cf. http://www.trans-lex.org/907000 ].

47. During the contract negotiations, RESPONDENT demanded the inclusion of an appeal mechanism.

CLAIMANT respected this demand [Cl. Ex. No. 3 ]. At the time of the conclusion of the contract,

CLAIMANT wrongly assumed that RESPONDENT is a government entity and would, therefore, only

be able to enter into an arbitration by including such mechanism pursuant to the Circular No. 265



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[Resp. Ex. No. 1 ]. CLAIMANT acted in RESPONDENT’s interest, as CLAIMANT was eager to

cooperate with RESPONDENT. CLAIMANT did everything in its power to satisfy RESPONDENT’s

needs and even deviated from Sec. 21 OST, which excluded the right to appeal [Annex 4 to FASA ].

48. In conclusion, the Ciruclar No. 265 does not affect RESPONDENT’s capacity to arbitrate, as

RESPONDENT is also able to agree on arbitration without the inclusion of an appeal and review

mechanism.

c. Should the Tribunal consider Art. 23(4) FASA void, this would not affect the validity of the

arbitration agreement in Art. 23(3) FASA

49. Even if the Tribunal should find that Art. 23(4) FASA is void, Art 23(3) FASA remains valid, since the

invalidity of the appeal and review mechanism would not affect the arbitration agreement. This is due to

the fact that the appeal and review mechanism is drafted as a self-contained and independent agreement

in Art. 23(4) FASA. The wording of paragraph 4 has no special context and reference to the remaining

paragraphs. It could, therefore, be excluded without affecting the validity of the arbitration agreement in

Art. 23(3) FASA.

50. According to the generally acknowledged principle of “in favorem validitatis”, which must be applied to the

interpretation of an international arbitration agreement [http://www.trans-lex.org/968902 ], an arbitration

agreement should be interpreted in favor of arbitration. In light of this principle,CLAIMANT requests

the Arbitral Tribunal to uphold the validity of Art. 23(3) FASA, even if it should consider the appeal

mechanism in Art. 23(4) FASA void.

51. Even if the tribunal were to find that Art. 23(4) FASA is not a self-contained agreement, the validity of

Art. 23(3) FASA has to be upheld pursuant to the socalled “blue pencil“ test [cf. Landolt, para. 10.26],

because one can delete Art. 23(4) FASA without causing the necessity to rewrite Art. 23(3) FASA.

2. Art. 23(6) FASA does not violate the principle of equal treatment

52. RESPONDENT argues that Art. 23(6) FASA violates the principle of equal treatment, by giving

CLAIMANT a unilateral choice between arbitration and litigation [St. of Def., para. 9 ]. The principle that

the parties shall be treated with equality and given full opportunity to present their case is laid down in

Art. 18 DAL. The provision is a reflection of international due process [cf. Brekoulakis/Shore in Mistelis, p.

623 ] and sets out the only limitations of procedural party autonomy. Art. 18 DAL protects a party from

egregious and injudicious conduct by an arbitral tribunal and not from its own failures or strategic

choices [ibid. ].

53. CLAIMANT will demonstrate that Art. 23(6) FASA does not lead to unequal treatment of

RESPONDENT (a.) and even if the Arbitral Tribunal should find that RESPONDENT is not treated

equally, Art. 23(6) FASA has become obsolete with regard to these proceedings, since CLAIMANT



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already chose arbitration (b.). Alternatively, the invalidity of Art. 23(6) FASA would not affect

Art. 23(3) FASA (c.).

a. Art. 23(6) FASA does not lead to unequal treatment of the RESPONDENT

54. Art. 23(6) FASA is a unilateral jurisdiction clause, which by definition is a dispute resolution clause that

gives one party a jurisdictional option that the other party does not have [cf. Polebaum, p. 1 ]. CLAIMANT

will demonstrate that the principle of party equality is not violated, since unilateral jurisdiction clauses

are internationally recognized as flexible remedies.

55. Art. 23(6) FASA states:

“In addition, the Seller has the right to bring any and all claims relating to payments

in the courts of Mediterraneo. The Buyer herewith submits to the jurisdiction of

the courts of Mediterraneo.”

56. When reaching its decision, the Tribunal should bear in mind that in international financing agreements

unilateral clauses are commonly used, where the lenders wish to have flexibility to select the dispute

resolution method most appropriate to the case at hand [cf. Polebaum, p. 1 ]. This situation is comparable

to the transaction in the case at hand. CLAIMANT wanted to minimize the risk in case RESPONDENT

refused to pay the purchase price. By drafting Art. 23(6) FASA, CLAIMANT only wanted flexibility to

select the dispute resolution method most appropriate in the event that RESPONDENT would not

pay.Thus, Art. 23(6) FASA merely gives CLAIMANT more flexibility in regard to payment claims.

It does not treat RESPONDENT unequally with regard to the arbitral procedure. To the contrary,

by not paying the owed amount RESPONDENT is in violation of its contractual obligation.

Which shows that CLAIMANT’s concerns were justified.

57. Furthermore, unilateral jurisdiction clauses are very common and recognized as valid in many

jurisdictions across the globe. Courts in common and civil law jurisdictions have upheld their validity

[BGH, 24.09.1998; BGH, 26.01.1989; Sablosky v. Gordon Company Inc., p. 646; Harris v. Green Tree Financial

Corp.; Pittalis v. Sherefettin; NB Three Shipping Ltd. v. Harebell Shipping Ltd.; Mauritius Commercial Bank Ltd. v.

Hestia Holdings Ltd.; Stacey/Taylor, p. 1; Browne/Clifford, p. 3 ]. CLAIMANT is aware that the Arbitral

Tribunal is not bound by these decisions, but they should be taken into account as they reflect existing

international practice.

58. Even in the Mme X Case where the court applied a strict standard and ruled that in this case that

particular unilateral jurisdiction clause was invalid, should not be taken into account here, because the

factual scenario is not comparable to the case at hand.

59. The court in the Mme X Case acknowledged that unilateral clauses are in principle valid. It ruled that

only such unilateral clauses are invalid where the party benefiting from the option has an unlimited

choice of fori [Stacey/Taylor, p. 2 ]. Unilateral clauses arguably remain valid if the unilateral choice is



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restricted to a limited number of precisely defined jurisdictions [Lange/Scherer, p. 1 ]. Art. 23(6) FASA

designates “the courts of Mediterraneo”, which limits CLAIMANT’s options solely to the courts of

Mediterraneo.

60. The court in the Mme X Case further based its ruling, that the particular clause was void, on the fact that

the clause was conditional on an event, which the party benefiting from the clause had full control of

[Stacey/Taylor, p. 2 ]. In the present case, however, Art. 23(6) FASA only regards payment claims. The

clause is conditional on the refusal of RESPONDENT to pay the purchase price and not on an event

which CLAIMANT is in control of. Hence, the unilateral jurisdiction clause in Art. 23(6) FASA is valid,

even by the standards set in the Mme X Case.

61. Consequently, the Tribunal should find that the unilateral jurisdiction clause in Art. 23(6) FASA is valid,

because unilateral jurisdiction clauses are internationally recognized as flexible remedies.

b. In any event, Art. 23(6) FASA has become obsolete since CLAIMANT already chose

arbitration

62. After CLAIMANT initiated the arbitration proceedings, Art. 23(6) FASA is not releveant anymore. The

options of choosing arbitration or litigation pursuant to Art. 23(6) FASA are mutually exclusive. In the

ongoing arbitration proceedings CLAIMANT can, therefore, no longer exercise its option to choose

litigation and, thus, cannot act contrary to the principle of equal treatment. In other words, CLAIMANT

waived its right to opt for litigation, by requesting for arbitration

[cf. The Law Debenture Trust Corporation PLC v. Elektrim Finance BV and Others ].

c. The alleged invalidity of Art. 23(6) FASA would not invalidate Art. 23(3) FASA

63. Furthermore, Art. 23(6) FASA could be struck out entirely, if the Tribunal were to consider it void,

without affecting the validity of Art. 23(3) FASA.

64. Paragraph 6 of Art. 23 FASA does not depend on the rest of Art. 23 FASA. It is a self-contained

provision relating only to payment claims. This is also underlined by the wording of the paragraph, as it

states “in addition”. It signifies that paragraph 6 is related to paragraph 5. It does not signify “in addition

to arbitration” and, therefore, is not connected to the arbitration agreement in Art. 23(3) FASA.

65. Even if the tribunal were to find that Art. 23(6) FASA is not a self-contained agreement, the validity of

Art. 23(3) FASA has to be upheld pursuant to the so called “blue pencil“ test [cf. Landolt, para. 10.26 ],

because one can delete Art. 23(6) FASA without causing the necessity to rewrite Art. 23(3) FASA.

66. Hence, the invalidity of Art. 23(6) FASA would not affect Art. 23(3) FASA, and the Tribunal would

have jurisdiction to decide the case.



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II. Even if Art. 23(3) FASA is considered void by the Tribunal, Sec. 21 OST contains a valid

arbitration clause in favor of CEPANI arbitration

67. Should the Tribunal find that Art. 23(3) FASA is void due to unequal treatment of the Parties, there is

no doubt that the Parties agreed to arbitrate under the CEPANI Rules, as Sec. 21 OST fills the gap in

favor of CEPANI arbitration.

68. CLAIMANT will show that the arbitration clause in Sec. 21 OST would still apply and would not have

been replaced (1.) and that Sec. 21 OST was acceptable to RESPONDENT even without an appeal

mechanism (2.).

1. Sec. 21 OST is applicable if Art. 23(3) FASA were to be considered void

69. Contrary to RESPONDENT’s submission [St. of Def., para. 10 ], Sec. 21 OST has not been replaced by

Art. 23(3) FASA if Art. 23(3) FASA were considered to be void.

70. Pursuant to Art. 2.1.21 Mediterranean Contract Law, which is the applicable contract law to the FASA,

the non-standard term takes precedence over the standard term if there is a conflict between them.

There must, however, be one important exception to this rule. It cannot apply where the individually

negotiated term is void. This is due to the fact that the non-standard term only takes precedence over

the standard term in the case of a conflict between them. Such conflict does not arise if the non-

standard term is invalid [cf. Ulmer/Schäfer in Ulmer/Brandner/Hensen § 305b BGB, para. 11;

Basedow in MüKo § 305b BGB, para. 5; Roloff in Erman §305b BGB, para. 5 ].

71. The dispute resolution clause in Sec. 21 OST provides for CEPANI arbitration. It states:

“(1) Any dispute arising out of or in connection with this Agreement shall be finally

settled under the Arbitration Rules of CEPANI –The Belgian Centre for

Arbitration and Mediation by one or more arbitrators appointed in accordance

with the said Rules.

(2) The place of the arbitration shall be Capital City, Mediterraneo.

(3) The arbitration shall be conducted in English.

(4) Any right of appeal shall be excluded.“

72. Assuming, but not conceding, that Art. 23(3) FASA is considered void, it could not take precedence

over Sec. 21 OST. Therefore, Sec. 21 OST has not been replaced and still applies, as the OST have

undisputedly been incorporated into the FASA.

73. Sec. 21 OST has not been replaced and provides for CEPANI arbitration, the Tribunal has jurisdiction,

even if it were to consider Art. 23(3) FASA void.



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2. Sec. 21 OST is acceptable to RESPONDENT even without an appeal clause

74. As laid out above [supra, para. 41 ], RESPONDENT was not bound by the Circular No. 265 and could,

therefore, have agreed on arbitration without appeal. Hence, Sec. 21 OST was acceptable to

RESPONDENT even without an appeal mechanism.

75. In conclusion, when assuming, but not conceding, that Art. 23(3) FASA is considered void due to

unequal treatment, the Parties still agreed on CEPANI arbitration pursuant to Sec. 21 OST.

B. The Tribunal has jurisdiction to rule on the dispute arising under the SALA

76. CLAIMANT requests the Tribunal to find that it has jurisdiction to rule on the disputes arising under the

SALA.

77. The Tribunal’s jurisdiction to rule on the claims arising out of the SALA follows from Art. 23(3) FASA,

which also governs the SALA (I.). Alternatively, if the Tribunal were to consider Art. 23(3) FASA void

due to unequal treatment, the Parties still agreed on CEPANI arbitration pursuant to Art. 21 NST (II.).

I. Disputes arising under the SALA are governed by the arbitration agreement in Art. 23(3)

FASA

78. The arbitration clause in Art. 23(3) FASA also governs the claims arising under the SALA and grants

the Tribunal jurisdiction to rule on the dispute arising under the SALA.

79. CLAIMANT will show, firstly, that Art. 23(3) FASA applies to the SALA (1.), secondly, that Art. 23(3)

FASA has not been replaced by Art. 23 SALA, as the latter does not constitute “a specific provision to

the contray” by virtue of Art. 45 FASA (2.), and, finally, that the SALA is also governed by the

arbitration clause in Art. 23(3) FASA (3.).

1. Art. 23(3) FASA applies to the SALA pursuant to Art. 45 FASA

80. The arbitration clause also applies to the SALA pursuant to Art. 45 FASA.

81. Art. 45 FASA expresses the clear intention of the Parties to extend the application of the FASA to

future contracts such as the SALA, as it states that:

“The provisions of this Agreement shall also govern all further and future contracts

between the Parties in relation to the Proton Therapy Facility purchased where such

contracts do not contain a specific provision to the contrary.”

82. The SALA is “in relation to the Proton Therapy Facility” because Art. 2 SALA obliges CLAIMANT to

add a third treatment room to the Proton Therapy Facility.

83. Thus, the Parties agreed that the provisions in the FASA would apply to the SALA, as long as the

SALA does not contain “a specific provision to the contrary”.



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2. Art. 23 SALA has not replaced Art. 23(3) FASA, by virtue of Art. 45 FASA

84. In contrast to RESPONDENT’s submission [St. of Def., para. 11 ], Art. 23 SALA does not constitute

such “a specific provision to the contrary”, since it only replaces Art. 23(5), (6) FASA and does not

affect the arbitration agreement in Art. 23(3) FASA. Art. 23 SALA states:

“(1) The Parties hereby agree that for interim and provisional urgent measures

application may be made to the courts of Mediterraneo or Equatoriania as

applicable.

(2) In addition, both Parties shall have the right to bring any and all claims in the

courts of Mediterraneo or Equatoriania to the jurisdiction of which they hereby

submit.”

85. Both Art. 23(1), (2) SALA and Art. 23(5), (6) FASA regard additional rights such as interim and

provisional measures and possible litigation. Art. 23(5), (6) FASA are merely modified by Art. 23 SALA

in a way that benefits RESPONDENT. Art. 23(1) SALA extends the national courts’ jurisdiction

regarding provisional and urgent measures to the courts of Equatoriana. Art. 23(2) SALA is a sign of

CLAIMANT’s good will towards RESPONDENT. It modifies the unilateral jurisdiction clause in Art.

23(6) FASA, by also granting RESPONDENT the option to opt for litigation.

86. Art. 23 SALA neither provides a dispute resolution clause in favor of arbitration, nor is arbitration

explicitly excluded. This provision is silent on arbitration. If the Parties had wanted to exclude

arbitration, they should have included an explicit provision to this effect, as required by Art. 45 FASA.

87. It follows, that the Parties did not draft Art. 23 SALA to replace Art. 23 FASA entirely. They merely

modified the provisions in Art 23(5), (6) FASA as an indication of CLAIMANT’s good will. The

arbitration agreement in Art. 23(3) FASA is not affected at all by Art. 23 SALA. Therefore, Art. 23

SALA cannot be viewed as “a specific provision to the contrary” pursuant to Art. 45 SALA.

3. Consequently, the arbitration clause in Art. 23(3) FASA also governs the SALA

88. The clear wording of Art. 45 FASA in combination with the generally accepted rule that arbitration

clauses, especially those contained in framework agreements, should be interpreted broadly [SchiedsVZ

2005, p. 166; Weigand, p. 481, para. 7.16 ], leaves no doubt that the Parties extended the application of the

arbitration clause in Art. 23(3) FASA to the SALA.

89. Art. 23(3) FASA is used as a Master Dispute Resolution Clause which applies to the SALA pursuant to

Art. 45 FASA. Such clauses are frequently used remedies to provide a single dispute resolution

mechanism where multiple contracts exist [cf. Born, p. 108 ]. Since the Parties incorporated Art. 23(3)

FASA as a Master Dispute Resolution Clause, there is no reason why Art. 23(3) FASA cannot

encompass disputes arising under the SALA [cf. Born, International Commercial Arbitration, p. 1110 ].



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90. Furthermore, Art. 23(3) FASA is valid regarding the jurisdiction over the SALA, even if the Tribunal

considers Art. 23(3) FASA void due to unequal treatment. As already demonstrated [supra, para. 85 ],

Art. 23(6) FASA, which according to RESPONDENT’s submission violates the principle of equal

treatment, has been replaced by Art. 23(2) SALA. Art. 23(2) SALA also allows RESPONDENT to bring

claims to the state courts of Mediterraneo and Equatoriana. Consequently, there is not even the

possibility of breaching the principle of equal treatment.

91. In conclusion, the Tribunal also has jurisdiction to decide the disputes arising under the SALA pursuant

to Art. 23(3) FASA.

II. Alternatively, the Tribunal has jurisdiction pursuant to Sec. 21 NST

92. Even if the Tribunal were to find that Art. 23(3) FASA is not applicable to the SALA, the Tribunal still

has jurisdiction to rule on the disputes arising under the SALA pursuant to Sec. 21 NST.

93. As will be shown in the following, the NST were incorporated into the SALA [Issue III B].

94. Art. 23 SALA has not replaced Sec. 21 NST, since it is silent on arbitration. Consequently, it cannot be

viewed as a conflicting individually negotiated clause and cannot take precedence over Sec. 21 NST.

94. Which states:

“Any dispute arising out of or in connection with this Agreement shall be finally

settled under the CEPANI Rules of Arbitration by one or more arbitrators

appointed in accordance with the said Rules.

The place of the arbitration shall be Capital City, Mediterraneo.

The arbitration shall be conducted in English.”

95. Hence, the Tribunal has jurisdiction to decide the dispute arising under the SALA pursuant to Sec. 21

NST, if the Tribunal were to find that Art. 23(3) FASA is void due to unequal treatment.

* * * *

96. In conclusion, the Arbitral Tribunal has jurisdiction to decide the disputes arising under both the SALA

and the FASA pursuant to the Master Dispute Resolution Clause in Art. 23(3) FASA. Alternatively, if

the Tribunal were to consider Art. 23(3) FASA void, it would still have jurisdiction with regard to the

FASA pursuant to Sec. 21 OST and with regard to the SALA according to Sec. 21 NST.

SECOND ISSUE: BOTH CLAIMS SHALL BE HEARD IN A SINGLE ARBITRATION

97. Contrary to RESPONDENT’s submission, the Arbitral Tribunal has jurisdiction to hear the disputes

arising under the FASA and the SALA in a single arbitration.

98. CLAIMANT requests the Arbitral Tribunal to hear both claims in a single arbitration pursuant to

Sec. 1 Art. 10 CEPANI (A.). Even if the Tribunal found that the Parties did not agree on a single

arbitration, CLAIMANT will demonstrate that the Arbitral Tribunal has jurisdiction to order single

arbitration according Sec. 1 Art. 12(1) CEPANI and that the Tribunal shall decide in favor of single



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arbitration (B.). Alternatively, if the Tribunal still has doubts to hear both claims in a single arbitration,

the Arbitral Tribunal shall request the Appointments Committee or the President of CEPANI for

consolidation pursuant to Sec. 1 Art. 13 CEPANI (C.). Moreover, any award rendered by the Arbitral

Tribunal in a single arbitration is enforceable under the DAL and the New York Convention (D.).

A. The Parties agreed on single arbitration pursuant to Sec. 1 Art. 10 CEPANI

99. Pursuant to Sec. 1 Art. 10 CEPANI, the disputes can be heard in a single arbitration. The Arbitral

Tribunal shall hear the disputes in a single arbitration, since the prerequisities of Sec. 1 Art. 10 CEPANI

are met. The Parties have agreed on arbitration under the CEPANI Rules pursuant to

Sec. 1 Art. 10(1)(a) CEPANI (I.) and the Parties have implicitly agreed on a single set of proceedings

pursuant to Sec. 1 Art. 10(1)(b) CEPANI (II.). Finally, the matters of both claims are related to one

another pursuant to Sec. 1 Art. 10(3) CEPANI (III.).

I. The Parties agreed on arbitration under the CEPANI Rules pursuant to

Sec. 1 Art. 10(1)(a) CEPANI

100. Sec. 1 Art. 10(1)(a) CEPANI requires that the parties have agreed to have recourse to arbitration under

the CEPANI Rules when the claims are made pursuant to various arbitration agreements. Consistent

with CLAIMANT’s submissions and the assumption raised by P.O. No. 1, para. 3(1)(b) both contracts

contain a valid CEPANI arbitration clause.

101. Since Art. 23(3) FASA is used as a Master Dispute Resolution Clause and also applies to the SALA

[supra, para. ], the Parties agreed to have recourse to arbitraton under the CEPANI Rules.

II. The Parties implicitly agreed on a single set of proceedings pursuant to

Sec. 1 Art. 10(1)(b) CEPANI

102. Pursuant to Sec. 1 Art. 10(1)(b) CEPANI, claims arising out of various contracts can be decided within

a single arbitration if the parties have agreed to do so. The present situation falls within the scope of

Sec. 1 Art. 10(1)(b) CEPANI, because it is legitimate to presume that parties implicitly agreed on single

arbitration by including one arbitration clause into different contracts.

103. The presumption that identical arbitration clauses contain an agreement on a single arbitration,

particularly applies to the present case, as the arbitration agreement for the FASA and the SALA,

contained in Art. 23(3) FASA, is identical (1.). Even if Art. 23(3) FASA was considered void,

Sec. 21 OST and Sec. 21 NST are sufficiently identical to justify the presumption in favor of single

arbitration (2.).

1. The presumption that identical arbitration clauses contain an agreement on a single

arbitration applies to the dispute at hand

104. It has been established, in commentary and in arbitral case law, that it is legitimate to presume that the

parties implicitly agreed on a single arbitration at the conclusion of various contracts if they chose



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identical arbitration clauses [cf. Gaillard/Savage, para. 521; Pair/Frankenstein, p. 1076; ICC No. 7184 ]. This

is due to the fact that the arbitration clauses represent the parties’ intentions [cf. Moses, p. 18; Chiu,

pp. 56, 57 ].

105. In the Contractor v. Employer A&B Case [ICC No. 5989 ], the Contractor (claimant) brought forth claims

arising out of a series of contracts which were, just like in the case at hand, all governed by a Basic

(framework) Agreement. The tribunal based its decision, to have the claims decided in a single

arbitration, on the aforementioned presumption, even though Employer A&B (respondent) explicitly

requested the claims to be decided in separate proceedings.

106. The Tribunal can therefore legimately presume that the Parties agreed to have their disputes decided in

a single set of proceedings. The Parties choice of a legal frame that contains the arbitration clause for the

contracts in question justifies this result. This presumption even applies where one party explicitly

objects to a single arbitration afterwards.

107. In the dispute at hand, Art. 23(3) FASA stipulates that the arbitration is to be settled under the

CEPANI Rules. It further lays down that the “arbitration shall be conducted before three arbitrators, in

the English language and shall be held in Vindobona, Danubia”. Considering the fact that Art.

23(3) FASA is used as a Master Dispute Resolution Clause, Art. 23(3) FASA applies to the SALA.

108. Since Art. 23(3) FASA is the arbitration agreement of the FASA and the SALA, both arbitration clauses

contain the application of the same Arbitration Rules, the same procedural language, the same number

of arbitrators and the same seat of arbitration. Thus, there is a specified symmetry concerning major

points between the arbitration clauses in the FASA and in the SALA. The fact that, contrary to

RESPONDENT’s submission, the CISG is applicable to the SALA [as will be shown in Issue III ], does

not interfere with CLAIMANT’s request for single arbitration. Pursuant to Sec. 1 Art. 10(2) CEPANI, a

difference in the applicable law does not give rise to a presumption regarding the incompatibility of the

arbitration agreements.

109. Consequently, it can be assumed that the Parties implicitly agreed to have their disputes decided within a

single arbitration according to Sec. 1 Art. 10(1)(b) CEPANI and the Tribunal shall rule in this regard.

2. Even if Art. 23(3) FASA is considered void, Sec. 21 OST and Sec. 21 NST are sufficiently

identical

110. Assuming, but not conceding, that the Arbitral Tribunal considers Art. 23(3) FASA void, the Parties still

agreed on a single arbitration, because the arbitration clauses of Sec. 21 OST regarding the FASA and

Sec. 21 NST regarding the SALA, which would establish the jurisdiction of the Tribunal in this case, are

sufficiently identical.

111. It is not necessary that the arbitration clauses are identical in the sense that they contain identical

invariant wording. They must not, however, be significantly different [cf. Bühler/Webster, p. 63 ]. The



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clauses are not significantly different if they exhibit a specified symmetry concerning major points, such

as the seat of arbitration, the appointment mechanism, the language and procedural rules [Yannaca-Small,

p. 228 ].

112. Both Standard Terms exhibit the required specified symmetry concerning major points for the

presumption to apply. This is due to the fact that both clauses provide for the same Arbitration Rules,

the same procedural language, the same number of arbitrators and the same seat of arbitration.

113. Further, the similarity of both clauses follows from their wording and location in the relevant standard

terms. Both clauses are located in Sec. 21 of the respective Standard Terms and are called “Dispute

Resolution”. Since both clauses use the same structure and choice of words, their regulatory content is

also equivalent. In other words, both contracts contain identically worded arbitration clauses. The only

difference is that paragraph 4 of Sec. 21 OST is not included in Sec. 21 NST.

114. It can, therefore, be concluded that Sec. 21 OST and Sec. 21 NST are sufficiently identical. Thus, the

Arbitral Tribunal shall find that the Parties agreed on a single set of proceedings pursuant to

Sec. 1 Art. 10(1)(b) CEPANI.

II. Since the matters in dispute are related, Sec. 1 Art. 10(3) CEPANI does not apply

115. Sec. Art. 10(3) CEPANI does not change the Parties’ agreement on a single arbitration. Contrary to

Sec. 1 Art. 10(3) CEPANI, which states that “the parties have not agreed to have their claims decided in

a single set of proceedings if the matters in dispute are not related”. In the present case the matters in

dispute are related, since the FASA constitutes the framework for the SALA according to

Art. 45 FASA.

116. It is undisputed between the Parties that both claims concern the Proton Therapy Facility delivered by

CLAIMANT. On the one hand, the Proton Therapy Facility using Passive Scattering Technique and, on

the other hand, the Proton Therapy Facility using Active Scanning Technology. The core elements of

both disputes are closely related, as there is only a difference regarding the technology used.

117. Moreover, both disputes are based on the same contract. Pursuant to Art. 45 FASA, “the FASA shall

govern all further and future contracts concluded by the Parties in relation to the Proton Therapy

Facility purchased where such contracts do not contain a specific provision to the contrary”. Since the

SALA also deals with the purchase of a Proton Therapy Facility and does not contain a provision to the

contrary, the FASA governs the SALA.

118. Hence, the matters of both cases are related and Sec. 1 Art. 10(3) CEPANI does not apply.

Consequently, the Arbitral Tribunal shall hear the claims arising out of FASA and SALA in a single

arbitration, since the Parties agreed on single arbitration according to Sec. 1 Art. 10 CEPANI.



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B. Alternatively, the Arbitral Tribunal shall order single arbitration pursuant to

Sec. 1 Art. 12 CEPANI

119. Even if the Tribunal were to find that the Parties did not agree on a single arbitration under

Sec. 1 Art. 10 CEPANI, it has jurisdiction to order a single arbitration pursuant to

Sec. 1 Art. 12 CEPANI and should proceed accordingly.

120. In the absence of a party agreement, the Arbitral Tribunal’s competence to order a single arbitration

follows from Sec. 1 Art. 12(1) CEPANI (I.). The Tribunal shall make use of its competence in the

present case, and order that both claims be heard in a single set of proceedings (II.).

I. The Tribunal has jurisdiction to order single arbitration pursuant to

Sec. 1 Art. 12(1) CEPANI

121. The Tribunal’s jurisdiction to rule on all issues arising out of Sec. 1 Artt. 9-11 CEPANI is based on the

wording and underlying policy of Sec. 1 Art. 12 CEPANI.

122. Sec. 1 Artt. 9-11 CEPANI, which deal with multiparty constellations in CEPANI arbitration, are all

based on the premise of an underlying party agreement. They do not, however, include provisions in

case such an agreement does not exist or is disputed. To the contrary, the jurisdiction to decide all

multiparty/multicontract issues arising out of Sec. 1 Artt. 9-11 CEPANI is centralized in

Sec. 1 Art. 12 CEPANI. Sec. 1 Art. 12 CEPANI reflects the principle of “competence-competence”, as the

Arbitral Tribunal rules on its own jurisdiction if disputes arise out of Sec. 1 Artt. 9-11 CEPANI

[cf. De Meulemeester/Verbist, para. 243 ]. This follows also from the wording of

Sec. 1 Art. 12(1), (2) CEPANI. Sec. 1 Art. 12(1) CEPANI states:

“The Arbitral Tribunal shall rule on all disputes in connection with Articles 9 to 11 of

the Rules, including disputes as to its own jurisdiction.” [emphasis added ]

123. This power to determine jurisdiction is stressed and repeated in Sec. 1 Art. 12(2) CEPANI:

“[…] the above stated power to determine jurisdiction.”

124. Hence, the Arbitral Tribunal has discretionary power to rule on all disputes in the absence of party

agreements, since Sec. 1 Art. 12 CEPANI centralizes the jurisdiction regarding all issues arising out of

Sec. 1 Artt. 9-11 CEPANI.

II. The Tribunal shall decide in favor of single arbitration according to Sec. 1 Art. 12 CEPANI

125. The Arbitral Tribunal shall make use of its jurisdiction and order that both claims be heard in a single

arbitration pursuant to Sec. 1 Art. 12 CEPANI, because the circumstances call for this result.

126. A decision for a single arbitration generally results in a significant saving of time and money, when the

disputes arise from the same set of facts and, therefore, are connected [cf. Chiu, p. 55 ]. In the present

case, the contract and the claims are closesly related [supra, paras. 116, 117]. Furthermore, the claims are



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both based on RESPONDENT’s refusal to pay the respective purchase price regarding the sale of similar

cancer treatment technologies. By hearing both disputes in a single arbitration, the Arbitral Tribunal

reaches a more complete picture of the facts, which decreases the potential for parallel or overlapping

arbitrations as well as the risk of factual errors. Since the disputes are based on a common set of facts, a

hearing in two separate proceedings would be time consuming, costly and redundant [cf. Born, Law,

p. 221 ].

127. Such a decision of the Tribunal does not violate the principle of party equality with respect to the

selection of arbitrators. Contrary to RESPONDENT’s submission [St. of Def., para. 14 ], the selection of

own arbitrators on the basis of the expertise required for the case can only be found in multiparty

arbitration [cf. Yannaca-Small, p. 236 ]. In contrast, the case at hand is a multicontract case. The Parties to

the single arbitration are each entitled to appoint one arbitrator. Since RESPONDENT nominated Prof.

Bianca Tintin and CLAIMANT nominated Dr. Arbitrator One as co-arbitrators [St. of Def., para. 2;

Fasttrack to CEPANI ], both Parties made use of their appointment right.

128. The fact that both claims concern the Proton Therapy Facility delivered by CLAIMANT [St. of Def.,

para. 12 ] further shows that there is no requirement to nominate two different arbitrators. To

accomodate with RESPONDENT’s submission, CLAIMANT suggests to hear Christina Arrango,

RESPONDENT’s candidate for an arbitrator in a second arbitration [St. of Def., para. 3 ], before the

Tribunal as an expert witness. This would allow RESPONDENT to have recourse to its claimed

expertise without having to bear the cost of two arbitrations.

129. Additionally, RESPONDENT may try to argue that a decision in favor of single arbitration would violate

the freedom of contract, because the Parties did not explicitly agree on single arbitration in their initial

agreement. However, the argument that single arbitration would violate the Parties’ freedom to contract

is inadequate. Single arbitration can be understood as a judicial modification of contracts that did not

include all of the necessary procedural provisions. In light of the Parties’ interest to reach a speedy and

fair resolution of their disputes, the decision in favor of single arbitration is the desirable and flexible

remedy even without an explicit agreement of the Parties [cf. Chiu, p. 56, 57 ].

130. Hence, the Arbitral Tribunal shall decide in favor of single arbitration, as the disputes are closely related,

the contracts are connected and advantages of a single arbitration outweigh RESPONDENT’s

submissions for separate proceedings.

C. Alternatively, the Arbitral Tribunal shall request the Appointments Committee or the

President of CEPANI to consolidate the arbitrations pursuant to Sec. 1 Art. 13 CEPANI

131. If the Tribunal still has doubts whether boths claims shall be heard in a single arbitration, CLAIMANT

respectfully suggests that the Tribunal requests the Appointments Committee or the President of

CEPANI to order consolidation pursuant to Sec. 1 Art. 13 CEPANI. The Tribunal is empowered to



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file such a request pursuant to Sec. 1 Art. 13(1) CEPANI (I.) and the requirements pursuant to

Sec. 1 Art. 13(2) CEPANI are met (II.).

I. The Arbitral Tribunal is authorized to request for consolidation pursuant to

Sec. 1 Art. 13(1) CEPANI

132. Pursuant to Sec. 1 Art. 13(1) CEPANI, the decision to order consolidation is taken either at the request

of the most diligent party or at the request of the Arbitral Tribunal. Thus, the Tribunal is explicitly

authorized to request consolidation.

II. The circumstances call for consolidation pursuant to Sec. 1 Art. 13(2) CEPANI

133. Further, the consolidation of the disputes is appropriate. Sec. 1 Art. 13(2) CEPANI lists a number of

requirements which are to be considered when determining whether the consolidation of disputes is

appropriate or not. In light of the Parties interest, the most appropriate way to solve the disputes is

consolidation.

134. CLAIMANT will demonstrate that these requirements are met in the present case. The Parties have not

excluded consolidation pursuant to Sec. 1 Art. 13(2)(a) CEPANI (1.), the claims are compatible and the

disputes arise from the same legal relationship pursuant to Sec. 1 Art. 13(2)(c) CEPANI (2.).

1. The Parties did not exclude consolidation pursuant to Sec. 1 Art. 13(2)(a) CEPANI

135. RESPONDENT may try to argue that consolidation may be ordered only when the parties’ agreement

explicitly provides for consolidation. Even if the arbitration agreements neither expressly preclude nor

expressly authorize consolidation, there is no reason that an agreement on consolidation cannot be

implied. An implied agreement to consolidation, where the parties’ contract is silent, can be derived

from contractual provisions and structure, as well as from considerations of efficiency [cf. Born, p. 225 ].

In the interest of procedural efficiency and to prevent inconsistent awards, the Arbitral Tribunal shall

therefore follow the above stated rule that consolidation shall be ordered when common questions of

law and fact exist and request the Appointments Committee or the President of CEPANI for

consolidation [cf. Compania Espanola de Petróleos v. Nereus Shipping, para. 6 ].

136. The fact that the Parties did not explicitly exclude consolidation pursuant to

Sec. 1 Art. 13 (2)(a) CEPANI also demonstrates that the Parties wanted to have all options to decide for

the most appropriate way to solve possible future disputes. If RESPONDENT wanted to exclude

consolidation, it should have done so explicitly by requesting the exclusion. Nevertheless,

RESPONDENT did not come up with this suggestion. In accordance with

Sec. 1 Art. 13(2)(a) CEPANI, RESPONDENT should have insisted on an exclusion in the dispute

resolution clause. Any objections raised at this point of the proceedings should not be considered by the

Arbitral Tribunal.



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2. The claims are compatible and arise from the same legal relationship pursuant to

Sec. 1 Art. 13(2)(c) CEPANI

137. Finally, the Arbitral Tribunal should request for consolidation, because the claims are compatible and

arise from the same legal relationship.

138. Pursuant to Sec. 1 Art. 13(2)(c) CEPANI, one of the main indicators to be considered when deciding

on consolidation is the question whether the claims that have been made pursuant to more than one

arbitration agreement are compatible and the disputes arise from the same legal relationship.

139. Compatibility exists where the arbitration agreements are concurring or identical. Since the clauses are

identical [supra, para.], consolidation is appropriate.

140. Moreover, the fact that RESPONDENT requested the appointment of a second arbitrator to decide the

claims under the SALA does not hinder consolidation. A different selection of arbitrators, once the

arbitrations have commenced, does not give rise to a presumption of incompatibility under

Sec. 1 Art. 13(2)(c) CEPANI [cf. Pair/Frankenstein, p. 1077 ].

141. Hence, the two arbitration agreements are compatible and the disputes arise from the same legal

relationship pursuant to Sec. 1 Art. 13(2)(c) CEPANI. The Arbitral Tribunal shall, therefore,

adopt CLAIMANT’s suggestion to request the Appointments Committee or the President of

CEPANI for consolidation of the two disputes.

D. Any award rendered by the Arbitral Tribunal in a single arbitration is enforceable under the

DAL and the New York Convention

142. Under Art. 34(2)(a)(iv) DAL and Art. V(1)(d) of the New York Convention, a court may refuse to

enforce an arbitration award if “[t]he composition of the arbitral authority or 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.”

143. RESPONDENT may try to argue that the Tribunal improperly consolidated the disputes in one arbitral

proceeding leading to problems of enforcement according to Art. 34(2)(a)(iv) DAL and

Art. V(1)(d) NY Convention. However, as has been established [supra, para. ], the Tribunal shall not

have concerns that two contracts were integrated such that the Parties contemplated a single arbitration

[cf. Karaha Bodas Company v. Perusahaan Pertambangan ]. This holds, even if the decision of the Arbitral

Tribunal overrides the express choice of the Parties, because Sec. 1 Art. 13(2) sent. 2 CEPANI does not

require the consent of all parties to the dispute [cf. Redfern/Hunter, Law, para. 3-85 ]. The fact that

RESPONDENT objects consolidation now, therefore, does not constitute a threat to the enforcement

of the arbitral award.

144. Additionally, RESPONDENT has to prove that it will suffer a prejudicial loss of contract rights as a

result of the consolidation [cf. Rubins, p. 379, fn. 118 ]. In this regard, CLAIMANT does not have doubts



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that the Tribunal will not fail to distinguish between the claims arising under the SALA and the FASA.

Therefore, any award rendered within a single arbitration is enforceable under the DAL and the NY

Convention.

* * * *

145. In conclusion, the Parties agreed on single arbitration by including the same arbitration clause in both

contracts. If the Arbitral Tribunal should not find that the Parties agreed on single arbitraton, it has the

jurisdiction to hear both claims in a single arbitration pursuant to Sec. 1 Art. 12 CEPANI, since both

claims are closely related to one another in the sense of Sec. 1 Art. 10 CEPANI. If the Arbitral Tribunal

is reluctant to hear both claims in a single arbitration, the Arbitral Tribunal shall follow CLAIMANT’s

suggestion to request for consolidation pursuant to Sec. 1 Art. 13 CEPANI, because there is no threat

regarding the enforceability of an award.

THIRD ISSUE: THE CISG GOVERNS THE CLAIMS ARISING UNDER THE SALA

146. CLAIMANT requests the Arbitral Tribunal to rule that the CISG governs the claims arising under the

SALA. The CISG applies to the SALA, since the SALA constitutes a sale of goods contract (A.) and the

Parties validly agreed on the incorporation of the NST into the SALA. It follows from Sec. 22 NST,

that the CISG is applicable to the SALA (B.).

A. The CISG is applicable to the SALA, since it is a sale of goods contract

147. Pursuant to Art. 1(1) CISG, the CISG applies to sale of goods contracts. As required in

Art. 1(1)(a) CISG, the Parties have their respective place of business in different Contracting States

[St. of Claim; P.O. No. 12 ]. Both the hardware and the software sold under the SALA are goods in terms

of the CISG (I.) and the SALA constitutes a sales contract with respect to Art. 3(2) CISG (II.).

I. The SALA’s subject matters are goods in the sense of Art. 1(1) CISG

148. The Active Scanning Technology, which is the SALA’s subject matter, consists of both the hardware

and software necessary for the treatment of cancer as defined in Art. 1 SALA. Not only the Active

Scanning Technology’s hardware (1.), but also its software (2.) are goods in terms of Art. 1(1) CISG.

1. The Active Scanning Technology’s hardware is a good pursuant to Art. 1(1) CISG

149. Although there is no definition of the term “goods” within the CISG, it is generally acknowledged, that

moveable objects are goods [Diedrich, Anwendbarkeit, p. 451; Schwenzer/Hachem in

Schlechtriem/Schwenzer, Art. 1 para. 16 ]. The Active Scanning Technology’s hardware is moveable and,

therefore, a good in the sense of Art. 1(1) CISG.

2. The Active Scanning Technology’s software is a good pursuant to Art. 1(1) CISG

150. Moreover, the Active Scanning Technology’s software is a good in the sense of Art. 1(1) CISG (a.).

Should the Arbitral Tribunal find that a distinction between standard and individual software is



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necessary to determine whether software is a good in terms of the CISG, the Active Scanning

Technology’s software is still a good, because it is standard software (b.).

a. The CISG applies to all kinds of software, including the Active Scanning Technology’s

software

151. The software of the Active Scanning Technology is a good in the sense of the CISG. Although, the

term “goods” generally refers to tangible objects, intangible objects such as software are not per se

excluded from the CISG [Lookofsky, p. 274 ]. It is generally accepted that software, if saved on disc or

other medium, is moveable and, therefore, a good in the sense of the CISG [Diedrich, Anwendbarkeit, p.

452; Advent Systems Ltd. v. Unisys Corp.; Primak, p. 215; cf. OGH, 21.06.2005 ]. The Active Scanning

Technology’s software was installed on the delivered hardware [P.O. No. 2, para. 23 ]. Consequently, the

software is a tangible object.

152. Further, the CISG applies to all kinds of software. It is not necessary to distinguish between standard

and individual software. The distinction is only prominent in Germany [OLG Köln, 26.08.1994;

LG München, 08.02.1995 ], because, contrary to the CISG, German law distinguishes between

manufacture and sales contracts [Diedrich, Maintaining, p. 334 ]. In light of an autonomous interpretation

under the CISG, a distinction between “goods to be manufactured” (individual software) and “finished

goods” (standard software) is inappropriate [cf. Silicon Biomedical Instruments BV v. Erich Jaeger GmbH ].

Refraining from the jurisdiction of German courts, both individual and standard software, are goods in

terms of the CISG.

153. Hence, the software of the Active Scanning Technology is a good pursuant to Art. 1(1) CISG.

b. Because the Active Scanning Technology’s software is standard software, the CISG still

applies, even if the Tribunal considers a distinction between individual and standard

software

154. In case that the Arbitral Tribunal follows the opinion that only standard software would be a good in

the sense of the CISG, the latter still applies, because the Active Scanning Technology’s software is

standard software. Standard software is characterized as being able to be bought off the shelf

[Diedrich, Revisited, p. 64 ]. CLAIMANT planned to sell the same software worldwide

[St. of Claim, para. 12 ]. CLAIMANT has already concluded contracts regarding the Active Scanning

Technology [P.O. No. 2, paras. 38, 39 ]. Without additional contracts, the heavily reduced price would

not have been economically reasonable. In order to be economically reasonable, the price for individual

software would have been considerably higher. This is the case, since individual software is tailored to

one specific customer, excluding other customers’ needs, which leads to high development expenses.

These expenses have to be transferred to this particular customer, whereas standard software’s expenses



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are transferred to all customers [cf. Primak, p. 218 ]. If development costs are born by a single customer,

such software is much more expensive than standard software.

155. Due to the phrase “particular for your needs” used by CLAIMANT in its letter from 5th July 2011

[Cl. Ex. No. 5 ], RESPONDENT might argue that the Active Scanning Technology’s software is

individual software. CLAIMANT rejects this opinion, as the phrase has to be viewed in its context. The

software of the Active Scanning Technology is not individual. Software is only individual when it is

developed specifically for the needs of the customer [Magnus in Staudinger, Art. 1, para. 44 ]. Though

RESPONDENT is a well-respected hospital in the field of cancer treatment, its patients and their needs

do not differ from other cancer patients. RESPONDENT wants to primarily treat prostate cancer

patients in the third treatment room [P.O. No. 2, para. 8 ]. For this purpose, RESPONDENT benefits

from CLAIMANT’s Active Scanning Technology. This Technology is not restricted to the treatment of

prostate cancer. It is also utilized to treat other types of cancer [P.O. No. 2, para. 8 ]. There is no

specialisation particular to RESPONDENT’s needs, but rather to the particular needs of any cancer

treatment center.

156. To conclude, the software of the Active Scanning Technology is standard software, which is a good in

the sense of Art. 1(1) CISG.

II. The SALA is a sales contract with respect to Art. 3(2) CISG

157. Furthermore, the CISG requires the SALA to be a sales contract in the sense of Art. 1(1) CISG. The

SALA is not solely a sales contract but a mixed contract, containing goods and services. Conversely to

Art. 3(2) CISG, the SALA as a mixed contract is treated like a sales contract, because the service and

labor part is not preponderant (1.). Furthermore, RESPONDENT might argue that the SALA is rather a

licensing agreement, and, therefore, does not constitute a sales contract. CLAIMANT will show that,

even if the Arbitral Tribunal were to find that the SALA is a licensing agreement, the CISG still

applies (2.).

1. The exception in Art. 3(2) CISG is not applicable, since the SALA’s preponderant part is not

on service or labor

158. As a mixed contract the SALA is to be distinguished from contracts, which have their preponderant

part in labor and services offered pursuant to Art. 3(2) CISG. This provision seeks to exclude contracts

from the scope of application of the CISG, which are more akin to contracts supplying services or labor

rather than sales. In order to determine the SALA’s main character its price composition (a.) and the

Parties’ intentions are to be considered (b.) [cf. Schlechtriem/Schroeter, para. 70; Huber/Mullis, para. 47; RRX

Industries, Inc. v. Lab-Con, Inc. ].



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a. The SALA’s price composition indicates that it is a sales contract

159. The CISG does not define the term “preponderant”. To determine the scope of application, at least

mixed contracts are excluded from the CISG, if more than 50% of the purchase price relates to labor

and service [Schöpflin, p. 77; Mistelis/Raymond in Kröll/Mistelis/Perales Viscasillas, Art. 3 para. 18;

Schwenzer/Hachem in Schlechtriem/Schwenzer, Art. 3 para. 20; Honnold, para. 60.1 ]. Thus, a comparison is

necessary to determine the ratio between the SALA’s value of services and labor, as well as the SALA’s

value of goods.

160. The market value of the Active Scanning Technology is USD 9.5 million [Resp. Ex. No. 3 ]. The

software’s development, testing and installation as well as the training of personnel are worth

USD 6 million, approximately 60% of the market value [ibid. ]. The remaining USD 3.5 million

constitute the necessary materials, in particular the magnets and the software itself, making up

approximately 40% of the market value. The left circle in the diagram above illustrates this.

161. The right circle demonstrates the effect of the agreement of the Parties. The Parties agreed in

Art. 10(1) SALA, that RESPONDENT was obliged to provide CLAIMANT with the necessary medical

data for the fine-tuning of the Active Scanning Technology and for testing this technology. CLAIMANT

allocated a value of USD 6 million to this contribution [Resp. Ex. No. 3 ]. This amount represents

approximately 60% of the market value of the SALA. The Parties set this amount off only against

CLAIMANT’s testing, development and installation of the software. The price of the materials, including

the magnets and the software itself, remained unchanged, which were allocated to an amount of

USD 3.5 million [ibid.; P.O. No. 2, para. 27 ]. This represents the final purchase price.

162. The software development, testing, and installation do not contribute to the SALA’s purchase price. In

addition, the Parties did not attribute a separate value to the personnel training [P.O. No. 2, para. 27 ], so

that this service, though part of the SALA’s market value, neither contributes to the above-

demonstrated offset, nor to the SALA’s final purchase price.



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163. The price allocation serves as an indication for determining the character of the SALA

[cf. Schlechtriem/Schroeter, para. 70 ]. The materials make up 100% of the SALA’s purchase price. Thus, the

preponderant, or rather exclusive part of the obligations under the SALA lies on sales and not on its

labor and services.

b. The Parties’ intention also indicates, that the SALA is a sales contract

164. Additionally the Tribunal shall regard the intention of the Parties [cf. Huber/Mullis, p. 47;

Kantonsgericht Zug, 14.12.2009 ]. It was the Parties’ intention to conclude a sales contract. That way, even

a predominant service part of a contract may still be rendered irrelevant if the parties’ intention clearly

was to conclude a sale of goods [Huber/Mullis, p. 47 ]. To determine the parties’ intention, the text of the

contract is to be taken into account [LG Mainz, 26.11.1998 ]. The title of the SALA starts with “Sales”.

This suggests the Parties’ intention to see the SALA as a sale of goods contract. Moreover, the wording

used in the SALA refers to sales. The Parties are defined as “Buyer” and “Seller” [Preamble SALA ]. The

“Buyer” “purchases” and the “Seller” “sells” [Art. 2 SALA ]. The word “licensing” in the title does not

interfere with the rest of the wording. It follows, that the Parties’ intention was to conclude a sale of

goods contract.

165. In accordance with the comparison of the value of the goods and the Parties’ intention, the SALA

constitutes a sales contract in the sense of Art. 1(1) CISG.

2. Even if the SALA is to be considered a licensing agreement, the CISG still applies

166. RESPONDENT might argue that the SALA is a licensing agreement. This, however, does not

contradict CLAIMANT’s submissions concerning the applicability of the CISG.

167. A licensing agreement can be an economic equivalent of a sales contract and thus, still be treated as sale

of goods contracts [Green/Saidov, p. 176 ]. If the license is granted perpetually for a one-off fee, such a

transaction is to be seen as an “economic equivalent” of sales, if there is no realistic chance of returning

the software [ibid.; Primak, p. 221 ]. RESPONDENT bought the Active Scanning Technology without

having to pay royalties in regard to its software [Art. 2 SALA ]. No further payments are required.

Therefore, the SALA’s purchase price is a one-off fee. Moreover, the license is granted perpetually,

because it is granted for the life cycle of the whole Proton Therapy Facility [ibid. ]. Consequently, there is

no chance of returning the software, so that the transaction of the Active Scanning Technology’s

software is perpetual. Hence, even if the SALA were to be seen as a licensing agreement, it would still

be treated as a sales contract in the sense of the CISG.

168. This does not contradict the prerequisites of Art. 30 CISG, which in principle require the seller to

transfer all rights to the object to the buyer [Diedrich, Maintaining, p. 335 ]. A seller of software usually

restricts the copyright to the software to the extent that the buyer has the right to use the software but



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not to sell the intellectual property right [ibid. ]. Such restriction does not necessarily preclude a

transaction of software from being treated as sales [Green/Saidov, p. 176 ]. The Parties to the SALA

agreed upon such a copyright clause in Art. 11 SALA. However, RESPONDENT is able to freely

proceed with its own copy as it wishes [cf. Art. 11 SALA ]. The intellectual property right to the

software remains with CLAIMANT. There are no further restrictions; this is an economic equivalent of

sales. Thus, the property restriction in Art. 11 SALA does not hinder the SALA from being treated as a

sales contract.

B. The Parties agreed on the application of the CISG by incorporating the NST into the SALA

169. The Tribunal is requested to find that the Parties validly incorporated CLAIMANT’s July 2011 Standard

Terms (hereinafter “NST” ) pursuant to Art. 46 SALA into the SALA (I.). CLAIMANT submits that,

pursuant to Sec. 22 NST, the CISG applies to the SALA (II.). Should the Arbitral Tribunal find that the

NST were not included, the CISG is still applicable to the SALA (III.).

I. The Parties incorporated the NST into the SALA pursuant to Art. 46 SALA

170. The Parties concluded the SALA, which includes Art. 46 SALA. Art. 46 SALA provides for the

application of CLAIMANT’s Standard Terms by stating:

“This Agreement is subject to the Seller’s Standard Terms and Conditions for Sale.”

171. Two versions of CLAIMANT’s Standard Terms exist: First, the November 2000 Standard Terms

(hereinafter “OST” ), which were included into the FASA pursuant to Art. 46 FASA

[St. of Claim, para. 23; St. of Def., para. 16 ], and second, the NST which apply to the SALA. The wording

in Art. 46 SALA “Standard Terms and Conditions for Sale” refers to those standard terms, which were

incorporated into the SALA. The CISG itself does not postulate explicit requirements for the

incorporation of standard terms [Schmidt-Kessel, p. 3445 ]. These requirements have to be derived from

the CISG’s general provisions on the formation of contracts [Schlechtriem/Schroeter in

Schlechtriem/Schwenzer (German), Art. 14, paras. 33, 34 ]. The incorporation of standard terms, therefore,

requires an explicit and clear reference to the incorporation of the standard terms by the offeror

[Schlechtriem/Schroeter in Schlechtriem/Schwenzer, Art. 8, para. 52] and the recipient’s consent on it

[Huber/Mullis, p. 31 ]. CLAIMANT’s reference to the NST was explicit and clear in accordance with Art.

8(2) CISG (1.) and RESPONDENT agreed on the incorporation of the NST pursuant to Art. 18 CISG

(2.).

1. CLAIMANT’s proposal refers to the incorporation of the NST in the sense of Art. 8(2) CISG

172. A clear and explicit reference to incorporate standard terms requires that the terms are part of the

proposal [cf. Schlechtriem/Schroeter in Schlechtriem/Schwenzer, Art.14, para. 36; Piltz, p. 134 ]. The SALA

includes Art. 46 SALA, which was drafted by CLAIMANT [Cl. Ex. No. 5 ]. By drafting Art. 46 SALA,

CLAIMANT wanted to incorporate the NST into the SALA. Therefore, the NST were part of the



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SALA’s proposal. Standard terms become part of a proposal pursuant to Art. 8(2) CISG, if

“a reasonable person of the same kind in the same circumstances as the other party”, would have

understood that the terms were supposed to be part of the proposal [Huber, para. 3.1 ]. CLAIMANT’s

intention to incorporate the NST was apparent on two occasions (a.), and RESPONDENT had

reasonable opportunity to take notice of the NST (b.).

a. CLAIMANT clarified its intention to incorporate the NST on two occasions

173. CLAIMANT clarified its intention to incorporate the NST into the SALA to RESPONDENT on two

occasions: First, during their final negotiation meeting, in which Dr. Vis drew attention to the NST

[Resp. Ex. No.2 ]. Second, in Dr. Vis’ letter, in which he explicitly stated that the NST were already

available on CLAIMANT’s website [Cl. Ex. No.5 ]. CLAIMANT printed the website’s address at the

bottom of the letter and included the advice to note the NST. For enhanced emphasis, the reference

“new” was underlined and in italics. Moreover, Dr. Vis pointed out, that the NST would apply from the

beginning of July 2011 onwards. Since the SALA was concluded after the reference on July 5th 2011, the

NST apply.

174. As a result, the NST were part of the SALA’s proposal.

b. RESPONDENT had reasonable opportunity to take notice of the NST

175. The incorporation of standard terms does not require the recipient’s factual knowledge of the terms’

content [Magnus, p. 317]. On the contrary, a reasonable opportunity for the recipient to take notice of

the standard terms is sufficient in order to incorporate standard terms [ibid.]. CLAIMANT made the

NST available for RESPONDENT in such a way, that RESPONDENT could take notice of the NST in

a reasonable manner. Contrary to RESPONDENT’s submission [St. of Def., para. 17 ], RESPONDENT

had the obligation to obtain knowledge about the NST. The risk of taking notice of standard terms is

on the recipient’s side, if the offeror’s reference to these terms is apparent in the sense of Art. 8(2) CISG

and the recipient had reasonable opportunity to take notice of the standard terms [cf. Berger, FS Horn, pp.

17, 18 ].

176. RESPONDENT had the opportunity to take notice of the NST, as CLAIMANT provided these Terms

on its website in Mediterranean and English [Cl. Ex. No. 5; Resp. Ex. No. 2 ].

177. By providing the NST on its website, CLAIMANT performed its duty to make the NST available to

RESPONDENT. The offeror’s duty to make standard terms available does not require a general duty of

transmission. The duty to provide notice rather requires that the offeror makes its terms “otherwise

available” [Schlechtriem/Schroeter in Schlechtriem/Schwenzer (German), Art. 14, para. 43 ]. A reference to the

offeror’s website is a sufficient way to make the standard terms available

[Berger, FS Horn, p. 18; Eiselen, para. 2.5 ]. This is appropriate as nowadays it is common between

contracting international parties to provide their standard terms on their websites [Eiselen, para. 3.4 ]. As



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RESPONDENT and CLAIMANT are contracting international parties, the Tribunal should find that

CLAIMANT fulfilled its duty to make the NST available by providing them on its website.

178. Further, the incorporation of standard terms requires the terms to be available in a language, which the

recipient understands or is at least in the given circumstances required to understand the language used

[Piltz, p. 135; Huber, para. 3.3 ]. CLAIMANT provided a Mediterranean and an English version of the

NST on its website [Cl. Ex. No. 5; Resp. Ex. No. 2 ].

179. RESPONDENT’s assistant speaks Mediterranean [Resp. Ex. No. 3 ]. CLAIMANT was aware of this fact,

as its assistant had communicated with CLAIMANT’s employees in Mediterranean during their meetings

[P.O. No. 2, para. 35 ]. The availability of standard terms in a language, which an assistant of the other

party commands, is sufficient to incorporate standard terms [cf. OGH, 31.08.2005; OLG Düsseldorf,

21.04.2004 ]. RESPONDENT’s assistant was in command of the Mediterranean language and, even

more, participated in the contract negotiations of the SALA [Resp. Ex. No. 2 ]. The assistant’s absence

from July 5th to July 20th 2011 does not affect the incorporation of the NST [Resp. Ex. No. 2 ], because

the non-attendance of RESPONDENT’s employee is to be attributed to RESPONDENT. CLAIMANT

was rather entitled to rely on the assistant’s involvement, since RESPONDENT failed to inform

CLAIMANT about the circumstance that the assistant had been on holiday. The assistant returned to

work on July 20th 2011. On this day, the Parties concluded the SALA [Resp. Ex. No. 2 ]. At least on this

day, the assistant was able to explain the Mediterranean NST to RESPONDENT. Hence,

RESPONDENT had reasonable opportunity to take notice of the NST.

180. Furthermore, CLAIMANT went beyond its obligation to make the terms available by providing also an

English version of the NST. This version was online on CLAIMANT’s website from July 1st to 4th 2011.

RESPONDENT was aware of this fact [Resp. Ex. No. 2 ] and, therefore, the period, in which the English

version was online, does not hinder the incorporation of the NST. Admittedly, the English version was

partially misleading or at least difficult to understand. However, incomprehensible standard terms

cannot be equated with cases, in which the offeror fails to make standard terms available

[OLG Düsseldorf, 21.04.2004 ]. CLAIMANT did provide the English version on its website and,

furthermore, referred to this website. Additionally, CLAIMANT supplied a phone number on its website

from July 5th to July 21st 2011 during the period in which the English version was not online [P.O. No.

2, para. 32 ]. By providing its phone number, CLAIMANT stressed its willingness to answer any

questions regarding the NST. Consequently, RESPONDENT had a multitude of opportunities to fulfill

its duty to obtain knowledge about the NST.

181. It follows that RESPONDENT had the opportunity to take notice of the NST. RESPONDENT was

aware of its duty. In particular, CLAIMANT explicity requested RESPONDENT to note the new Terms

at the bottom of Dr. Vis letter [Cl. Ex. No. 5 ]. This request states:



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“Please note our new Standard terms and Conditions of Sale on www.ictproton.com“

[emphasis added]

182. CLAIMANT requests the Tribunal to confirm, RESPONDENT’s duty to contact CLAIMANT in order

to ask about the English NST’s content, or to state that it could not understand the Mediterranean

version [cf. Schmidt-Kessel in Schlechtriem/Schwenzer, Art. 8 para. 53; OLG Hamm, 08.02.1995 ].

RESPONDENT failed to comply with its duty [P.O. No. 2, para. 33 ]. This cannot be held against

CLAIMANT, as such request would also have been reasonable. RESPONDENT had more than enough

time to contact CLAIMANT in order to challenge the NST’s availability. CLAIMANT referred to its

NST before the contract was concluded on July 20th 2011 [Cl. Ex. No. 5; Cl. Ex No. 6; Resp. Ex. No. 2 ].

RESPONDENT, therefore, had more than six weeks from the first reference and still two weeks from

the second reference onwards to make itself familiar with the NST and to inquire about the NST.

183. It cannot be held, that RESPONDENT was not aware of the NST and their scope of application. Thus,

Art. 46 SALA refers to the application of the NST to the SALA.

2. RESPONDENT agreed on the incorporation of the NST pursuant to Art. 18 CISG

184. By signing the SALA, RESPONDENT agreed on the incorporation of the NST. CLAIMANT’s

intention to incorporate the NST was understandable and clear for RESPONDENT [supra, paras. 173].

In order to avoid the incorporation of standard terms, it is the recipient’s duty to explicitly object to the

incorporation [cf. Eiselen, para. 2.13 ]. RESPONDENT did not challenge the incorporation of the NST

[P.O. No. 2, para. 31 ]. Instead, it concluded the SALA with CLAIMANT and, thereby, agreed to the

inclusion of the NST by means of Art. 46 SALA.

185. In light of the above, the Tribunal shall find that the Parties agreed on the incorporation of the NST

into the SALA and RESPONDENT had reasonable opportunity to take notice of the NST. As a result,

Art. 46 SALA refers to the application of the NST.

II. The NST provide for the application of the CISG to the SALA

186. Since the Parties incorporated the NST into the SALA, Sec. 22 NST is relevant to determine the Parties’

choice of law in regard to diputes arising under the SALA.

Sec. 22 NST constitutes a choice of law clause by stating:

“The contract is governed by the law of Mediterraneo.” [emphasis added]

187. Sec. 22 NST provides for the application of the CISG. This follows from a comparison with Sec. 22

OST, in which the Parties excluded the application of the CISG with regard to disputes arising under

the FASA. Sec. 22 OST states:

“The contract shall be governed by the national law of Mediterraneo as set out in the

statutes of Mediterraneo and developed by its courts.” [emphasis added]



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188. By including Sec. 22 OST into the FASA, the Parties excluded the CISG with regard to disputes arising

under the FASA. Concerning this matter, the Parties agree that the Mediterranean Sale of Goods Act

applies to the FASA [St. of Claim, para. 24; St. of Def., para. 16; P.O. No. 2, para. 20 ]. This complies with

Sec. 22 OST’s wording, since it refers only to “the national law of Mediterraneo”. A reference to “non-

unified” states law is sufficient in order to exclude the CISG [ICC No. 11333, Ferrari in

Schlechtriem/Schwenzer, Art. 6, para. 21 ]. Hence, the Parties excluded the application of the CISG in Sec.

22 OST with regard to disputes arising under the FASA.

189. Rather than adopting this conclusion to Sec. 22 NST, CLAIMANT requests the Tribunal to look at the

specific content of this clause. Compared to the OST’s choice of law clause, the choice of law clause in

the NST refers to Mediterranean law in general, rather than to non-unified (“national” ) Mediterranean

law, as it states: “the law of Mediterraneo”. The wording used is not sufficient to exclude the

applicability of the CISG, as it does not refer specifically to non-unified law

[cf. Asante Technologies v. PMC-Sierra ]. Instead, the choice of law clause referring to the law of a state

generally leads to the applicability of the CISG, if the state is a member state of the CISG [Reifner, p. 56;

Ferrari in Schlechtriem/Schwenzer, Art. 6, para. 22; Drago/Zoccolillo, p. 17 ]. Thus, the Parties did not exclude

the application of the CISG in Sec. 22 NST.

190. Contrary to RESPONDENT’s submission [St. of Def., para. 18 ], Dr. Vis’ statement [Resp. Ex. No. 2 ]

does not impede the conclusion that Sec. 22 NST provides for the application of the CISG. Dr. Vis

expressly stated that he was not a lawyer before he answered RESPONDENT’s questions on the

changes of the OST and the NST [P.O. No. 2, para. 31 ]. As demonstrated, the difference between the

choice of law clauses in Sec. 22 OST and Sec. 22 NST arises from their wording [supra, para. 189 ]. This

is a small but significant difference. Since Dr. Vis, unlike the members of the Arbitral Tribunal, is not a

legal expert, he could not recognize the difference between Sec. 22 OST and Sec. 22 NST. For this

reason, he was not able to inform RESPONDENT about the change in the choice of law clauses. Dr.

Vis’ effort to answer RESPONDENT’s questions does not lead to CLAIMANT being in a less favorable

position, because Dr. Vis’ statement on the Standard Terms’ has no legal consequences. Accordingly,

his statements do not hinder the application of the CISG in terms of the disputes arising under the

SALA.

191. The CISG holds precedence over other national law, as long as the affected state has ratified the CISG

[cf. OLG Dresden, 27.12.1999 ]. Mediterraneo, as a member state of the CISG, has transformed the CISG

into its state law [P.O. No. 2, para. 12 ]. Thus, the CISG applies to the SALA.

III. Even if the NST were not incorporated, the CISG is still applicable to the SALA

192. If the Tribunal were to find that the NST have not been included into the SALA, the CISG still applies.

The Parties did not agree on a choice of law in any other way (1.). Particularly, the OST cannot be taken



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into account to determine the Parties’ choice of law concerning the SALA. In the absence of any

provision to the contrary, the CISG still is applicable to the SALA (2.).

1. The Parties did not choose a specific law in any other way

193. Should the Arbitral Tribunal find, that the NST have not been incorporated into the SALA, the OST

cannot be taken into account in order to determine the Parties’ choice of law.

194. In order to include standard terms into a contract, the parties’ mutual consent is necessary

[supra, para. 163 ]. By referring to the NST, CLAIMANT revealed its intention to incorporate only the

NST into the SALA. Moreover, CLAIMANT referred to the date of effect of the NST [Cl. Ex. No. 5;

Resp. Ex. No. 2 ], indicating that the OST apply only to contracts concluded until June 30th 2011. Since

the SALA was concluded on July 20th 2011 [Cl. Ex. No. 6 ], the OST are no longer applicable to the

SALA. Consequently, the Parties did not intend to incorporate the OST into the SALA with the result

that the OST have no bearing on this contract. As a result, there would be no choice of law clause.

2. In case there is no choice of law concerning disputes arising under the SALA, the CISG is

applicable

195. Lacking a choice of law by the Parties, the CISG is applicable to the SALA. This is due to the fact that

first, the Parties have not excluded the application of the CISG and that second, the Parties have their

place of business in different Contracting States pursuant to Art. 1(1) lit.a) CISG [supra, para. 147].

* * * *

196. In conclusion, CLAIMANT requests the Tribunal to find that the Active Scanning Technology’s hard-

and software are goods and the SALA is a sales contract in the sense of Art. 1(1) CISG with the

consequence that the CISG applies to the SALA. Furthermore, that the Parties incorporated the NST

into the SALA pursuant to Art. 46 SALA. The NST contain the Parties’ choice of law in Sec. 22 NST.

This clause provides for the application of the CISG. Therefore, the Parties agreed to apply the CISG to

the SALA. Finally, the Tribunal shall conclude that the CISG still governs the SALA, even if the NST

were not incorporated into the SALA.

REQUEST FOR RELIEF

In light of the above submissions, counsel for CLAIMANT, respectfully requests the Arbitral Tribunal

to find that

(1) the Arbitral Tribunal has jurisdiction to deal with the payment claims raised by CLAIMANT;

(2) the Arbitral Tribunal shall hear both claims in a single arbitration;

(3) as the SALA constitutes a sales contract in the sense of the CISG and the Parties validly

included the NST into the contract, the CISG governs the disputes arising under the CISG.



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For Mediterraneo

signed __________________________, December 12th 2013

ATTORNEYS

______________________ ______________________

(David Böckenförde) (Martin Bongartz)

_____________________ _____________________

(Laura Gauschinski) (Julian Lafere)

UNIVERSITY OF COLOGNE XXXVIII


XXXVIII

UNIVERSITY OF COLOGNE

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