IN THE KUALA LUMPUR REGIONAL CENTRE FOR ARBITRATION KUALA LUMPUR, MALAYSIA BETWEEN THE NEPALESE GOVERNMENT (CLAIMANT) AND

Transcription

1 A1502-R THE 10 TH LAWASIA INTERNATIONAL MOOT IN THE KUALA LUMPUR REGIONAL CENTRE FOR ARBITRATION KUALA LUMPUR, MALAYSIA 2015 BETWEEN THE NEPALESE GOVERNMENT (CLAIMANT) AND THE AUSTRALIAN NATIONAL MUSEUM THE NATIONAL MUSEUM (MALAYSIA) DR. JOHN THOMAS SMITH, JR (RESPONDENTS) MEMORIAL FOR RESPONDENTS

2 TABLE OF CONTENTS QUESTIONS PRESENTED... iii INDEX OF AUTHORITIES... iv STATEMENT OF JURISDICTION... 1 STATEMENT OF FACTS... 2 SUMMARY OF PLEADINGS... 4 RESPONDENTS PLEADINGS... 5 A. NEPALESE LAW ESTABLISHES RESPONDENTS RIGHT TO RETAIN THE STATUE... 5 B. IF THERE IS A CONFLICT, NEPALESE LAW SHOULD BE APPLIED TO THIS DISPUTE... 6 I. NEPALESE LAW IS THE APPLICABLE LAW TO THE DISPUTE UNDER THE KLRCA I- ARBITRATION RULES Nepalese law is the appropriate law under the closest connection test Alternatively, Nepalese law is the appropriate law through the cumulative application of conflict of laws rules... 7 II. NEPALESE LAW IS THE APPLICABLE LAW TO THE DISPUTE UNDER THE LAW OF THE ARBITRAL SEAT Malaysia is the seat of arbitration, and Nepalese law applies under the Malaysian Arbitration Act Alternatively, a seat in Nepal is more appropriate and Nepalese law applies under the Arbitrational Act of Nepal C. UNDER NEPALESE LAW, CLAIMANT HAS NO RIGHT TO ASK FOR THE RETURN OF THE STATUE I. RESPONDENTS HAVE THE RIGHT TO RETAIN THE STATUE II. CLAIMANT HAS NO RIGHT TO DEMAND THE RETURN OF THE STATUE Claimant is not the rightful owner of the Statue a. Claimant does not have ownership of the Statue under the AMPA b. Alternatively, Claimant has lost its ownership rights by virtue of a gift under No. 1, Ch. 19, General Code i

3 2. Should the Tribunal find that the Claimant is the owner of the Statue, Respondent did not act with mala fide intentions (bad faith) D. FAILURE TO COMPLY WITH NEPALESE LAW BY RESPONDENTS IS IRRELEVANT PRAYER OF RELIEF ii

4 QUESTIONS PRESENTED A. What laws or legal principles establish Nepal s (a) right to demand the return of the statue and/or (b) the National Museum s right to retain it? B. If there is a conflict between them, which law and/or Convention should be applied to this dispute? C. To what extent, if any, would the final outcome of this dispute (i.e. which party prevails) be affected by the determination as to which law should be applied? D. What is the effect on this dispute of the failure to comply with Nepalese law? iii

5 INDEX OF AUTHORITIES Statutes and Treaties Ancient Monument Preservation Act (2013) of Nepal 11, 12, 13, 17 i-arbitration Rules of the Kuala Lumpur Regional Centre for Arbitration (KLRCA), , 5, 9 UK Cases Attorney-General of New Zealand v Ortiz [1984] AC1 Dubai Islamic Bank PJSC v Paymentech Merchant Services Inc [2000] EWHC 228 (Comm), [2001] 1 LLR 65 US Cases Government of Peru v. Johnson 720 F.Supp. 810 (1989) 13 United States v. McClain, 545 F.2d 988, 1002 (5th Cir.1977) 13 Scholarly Work and Articles Australian Museum, About The Museum, 16 Sep, 2015 < 1 Born, Gary, International Commercial Arbitration, (Kluwer Law International 2014) 5, 6, 7, 8, 10 iv

6 Department of Museums Malaysia, The National Museum, 16 Sep, 2015 < parent=mengenai_kami_2> 1, Greenberg, Simon /Kee, Christopher /Weeramantry, J. Romesh, International Commercial Arbitration: An Aisa-Pacific Perspective, (Cambridge University Press 2011) 5, 6, 7, 9 Notarius International, World Map: Conflict of Laws in Successions, 16 Sep, < Rajoo, Sundra/Davidson, W. S. W., Dato, The Arbitration Act 2005: UNCITRAL Model Law as Applied in Malaysia, (Sweet & Maxwell Asia 2007) 9 Regmi, Srijana, Grey Area, myrepublica, 27 Jan 2014, 17 Sep, 2015 < s&news_id=68638> 7 v

7 STATEMENT OF JURISDICTION The Nepalese Government ( Claimant ) and the Australian National Museum, National Museum (Malaysia) and Dr. John Thomas Smith Jr ( Respondents ) have agreed to submit this dispute to binding arbitration pursuant to Rule 1(1) of the Kuala Lumpur Regional Centre for Arbitration ( KLRCA ) Rules before the KLRCA. This dispute does not include the challenges on the propriety and validity of the arbitration agreement between the Parties. 1

8 STATEMENT OF FACTS 1. The Nepalese Government ( Claimant ) is the executive body of the Federal Democratic Republic of Nepal. 2. Australian National Museum ( First Respondent ) is a state-owned museum in Sydney, Australia National Museum (Malaysia) ( Second Respondent ) is a state-owned museum in Kuala Lumpur, Malaysia Dr. John Thomas Smith Jr ( Third Respondent ) is an Australian anthropologist who is known to have discovered many antiques in the Asia-Pacific region. He has donated antiques to local museums on several occasions in the past. 5. First Respondent, Second Respondent and Third Respondent are collectively referred to as the Respondents. 6. In 2010, the stone statue of Lord Vishnu ( the Statue ) was discovered in Nepal. 3 It is at least 300 years old. 4 It was not officially registered under applicable Nepalese legislation In 2014, Third Respondent was invited to present lectures at Tribhuvan University ( the University ) by the University s Dean of the Central Department of 1 Australian Museum, About The Museum, 16 Sep, 2015 < 2 Department of Museums Malaysia, The National Museum, 16 Sep, 2015 < 3 C6, Page 3, Further Clarifications 4 Footnote 3, Page 2, Moot Problem 5 B5, Page 2, Further Clarifications 2

9 Sociology/Anthropology ( the Dean ). 6 He received no remuneration for his visit and lectures, but instead the Statue from the Dean. 7 The Dean made a representation that the Statue was a gift for his services In March 2014, under the belief that the Statue was a replica, Third Respondent returned to Australia with it. 9 Third Respondent subsequently donated the Statue to First Respondent In July 2014, First Respondent loaned the Statue to Second Respondent. 11 The Statue is currently on display at the premises of Second Respondent In 2015, through a Nepalese tourist in Malaysia, Claimant first became aware of the Statue being with Second Respondent. 13 Claimant unexpectedly demanded the Statue to be returned. 14 The Respondents contest Claimant s right to demand the return of the object and have thus refused such request The Parties agreed to submit the dispute to arbitration under the auspices of the KLRCA Page 1, Moot Problem 7 Page 2, Moot Problem 8 Page 2, Moot Problem; B2, Page 2, Clarifications 9 Footnote 4, Page 2, Moot Problem 10 H3, Page 5, Third Clarifications 11 H3, Page 5, Third Clarifications 12 H3, Page 5, Third Clarifications 13 C3, Page 1, Third Clarifications 14 Page 2, Moot Problem 15 Page 2, Moot Problem 16 Page 3, Moot Problem 3

10 SUMMARY OF PLEADINGS 12. Nepalese law is the substantive law governing the dispute. Under the KLRCA i- Arbitration Rules, Nepalese law is the appropriate law. Nepal is the jurisdiction with the closest connection to the dispute, and the cumulative application of conflict of laws rules converge upon Nepalese law. Nepalese law is also applicable under the law of the arbitral seat, regardless of whether the arbitral seat is in Kuala Lumpur, Malaysia or Nepal. 13. The Statue should remain in the Respondents custody. The Statue is not subject to confiscation as Nepalese cultural property law has not been contravened. Respondents have the right to retain the Statue because Claimant cannot prove itself as the rightful owner. Claimant can therefore not allege theft and demand the return of the Statue. 4

11 RESPONDENTS PLEADINGS A. NEPALESE LAW ESTABLISHES RESPONDENTS RIGHT TO RETAIN THE STATUE 14. Respondents have a right to retain the Statue under Nepalese law. 17 Claimant does not have a right to demand the return of the Statue under Nepalese law infra infra

12 B. IF THERE IS A CONFLICT, NEPALESE LAW SHOULD BE APPLIED TO THIS DISPUTE 15. If there is a conflict between Nepalese law and Australian law, the Tribunal should apply Nepalese law to the merits of the Parties dispute. In the absence of a choice of applicable law as agreed by the parties to the substance of the dispute, the Tribunal can determine the applicable substantive law by applying the choice-of-law formula contained either in the institutional rules or in the law of the arbitral seat. 19 The Parties have chosen the KLRCA i-arbitration Rules ( KLRCA Rules ) as the institutional rules of the arbitration but have not expressly agreed on the seat of arbitration. 20 Nepalese law is the applicable law to the dispute under both the KLRCA i-arbitration Rules [I] and the law of all the potential arbitral seats [II]. I. NEPALESE LAW IS THE APPLICABLE LAW TO THE DISPUTE UNDER THE KLRCA I- ARBITRATION RULES 16. Nepalese law is the applicable substantive law under the KLRCA Rules. Under Art. 35(1) KLRCA Rules, in the absence of a choice of law as applicable to the substance of the dispute, the Tribunal should apply the law which it determines to be appropriate. This does not warrant a direct application of any substantive law at whim, but rather should involve a form of analysis logically based on general conflict of laws considerations. 21 One of the most widely recognised conflict of laws principles is to apply the substantive law of the State with the closest connection to the dispute. 22 Alternatively, in determining which law is appropriate, the Tribunal should cumulatively 19 Born, page Page 3, Moot Problem; C1, Page 4, Clarifications 21 Born, page ; Greenberg/Kee/Weeramantry, page Born, page 2631: numerous countries endorse this approach as their statutory formula (e.g. Switzerland, Germany, Japan, Italy, Mexico, Syria etc.); Greenberg/Kee/Weeramantry: this approach is also adopted by international conventions (e.g. Rome Convention) 6

13 apply the domestic conflict of laws rules connected to the dispute, as this method is regarded as the most rigorous and acceptable approach to arrive at a suitable substantive law. 23 By virtue of the closest connection test, the Tribunal should reach a conclusion that Nepalese law to be appropriate [1]. Alternatively, Nepalese law is appropriate through the cumulative application of conflict of laws rules [2]. 1. Nepalese law is the appropriate law under the closest connection test 17. Nepalese law is the appropriate law to the substance of the dispute under the closest connection test. Nepal has the closest connection to the dispute. Claimant alleges that the Statue always belongs to the People of Nepal. 24 Therefore, regarding the dispute at hand, the crux lies in whether the ownership of the Statue is vested in Claimant and if yes, whether Third Respondent acquired the ownership from Claimant. All the relevant events occurred in Nepal. Therefore, the State with the closest connection to the dispute at hand is Nepal 25, and Nepalese law should be applied. 2. Alternatively, Nepalese law is the appropriate law through the cumulative application of conflict of laws rules 18. Nepalese law is the applicable law through the cumulative application of all of the relevant conflict of laws rules connected to the dispute. By cumulatively applying the conflict of laws rules of all states with meaningful connection to the Parties dispute, the 23 Born, page , 2658; Greenberg/Kee/Weeramantry, pages 108, B5, Page 3, Clarifications, 25 infra [25] 7

14 objective is to see whether they converge and point towards one substantive law. 26 This approach is regarded as befitting the transnational nature of international arbitration The conflict of laws rules of the connected states converge upon Nepalese law. The states involved in this dispute are Nepal, Australia and Malaysia. Nepal is closely connected to the current dispute 28, and its conflict of laws rules are currently not codified. 29 However, the draft Civil Code of Nepal reveals the conflict of laws rule regarding the validity of gift, which is to apply the law of the country of citizenship of the donor at the time of gift 30. The Dean, who gave Third Respondent the Statue as a gift, is a Nepalese 31. Therefore, Nepal s conflict of laws rule points towards Nepalese law. 20. Australia and Malaysia are connected to the dispute not only as the countries of origin of the Respondents, namely Dr. Smith and the Australian National Museum, as well as the National Museum (Malaysia) respectively. 32 Malaysia s connection also stems from the fact that the Statue is currently located in Malaysia, being in the National Museum (Malaysia) s possession. 33 That is due to a loan agreement with the Australian National Museum, to whom the Statue was donated by Third Respondent 34, further implicating Australia. The conflict of laws rules in Australia and Malaysia regarding movable property are identical, that is to apply the lex situs, the law of the jurisdiction where the 26 Born, page ; Greenberg/Kee/Weeramantry, page ibid 28 supra [17]; infra [25] 29 Regmi; Notarius International 30 The Civil Code of Nepal (draft), s Page 2, Moot Problem 33 ibid 34 Page 2, Moot Problem; B11, Page 4, Clarifications; B4, Page 2, Further Clarifications 8

15 property is located at the time of the transfer. 35 The lex situs is Nepalese law 36, thus the cumulative application of the conflict of laws rules of Nepal, Australia and Malaysia all converge upon Nepalese law as the substantive law of the dispute. II. NEPALESE LAW IS THE APPLICABLE LAW TO THE DISPUTE UNDER THE LAW OF THE ARBITRAL SEAT 21. The law of the arbitral seat (lex arbitri) also leads to the conclusion that Nepalese law is the applicable substantive law. The determination of which substantive law to apply is a procedural issue covered by the lex arbitri, and requires the consideration of the seat s arbitration legislation. 37 The Parties only agreed that the arbitration would take place in Kuala Lumpur, but not on a seat of arbitration. 38 The seat of arbitration is Kuala Lumpur, Malaysia by default under KLRCA Rules and Nepalese law applies under the Malaysian Arbitration Act [1]. Alternatively, a seat in Nepal is more appropriate and Nepalese law also applies under the Nepalese Arbitration Act [2]. 1. Malaysia is the seat of arbitration, and Nepalese law applies under the Malaysian Arbitration Act 22. Kuala Lumpur, Malaysia is the seat of arbitration by default. Under Rule 6(1) KLRCA Rules, in the absence of any agreement upon a specific arbitral seat, Kuala Lumpur, Malaysia is the arbitral seat by default. Since the Parties have not expressly agreed on the seat of arbitration 39, Malaysia is arbitral seat by default. Accordingly, the Malaysian Arbitration Act is the law of the arbitral seat. 35 infra footnote 41; Davies/Bell/Brereton page supra [23] 37 Born, pages 1531, 1580, C2, Page 4, Clarifications 39 C2, Page 4, Clarifications 9

16 23. Nepalese law applies under the Malaysian Arbitration Act. Under s. 30(4) Malaysia Arbitration Act, the Tribunal should apply the law determined by the conflict of laws rules failing any agreement of the law applicable to the substance of the dispute. By using the word the before conflict of laws rules, s. 30(4) refers to the Malaysian conflict of laws rules. 40 Under the Malaysian conflict of laws rules, the validity of a transfer of movable property is governed by the lex situs, the law of the place where the property is at the time of the transfer. 41 The Statue was situated in Nepal when it was transferred by the Nepalese Government to Chhauni Museum. 42 As Nepalese law is the lex situs, it shall apply to decide the merits of the dispute. 24. An alternative interpretation of s. 30(4) Malaysia Arbitration Act is that the Tribunal should apply the substantive law of the jurisdiction with the closest connection to the dispute. 43 The state with the closest connection is Nepal 44, thus Nepalese law applies. 2. Alternatively, a seat in Nepal is more appropriate and Nepalese law applies under the Arbitrational Act of Nepal 25. Alternatively, Nepal shall be the arbitral seat for this dispute. Under Rule 6(1) KLRCA Rules, the Tribunal may select another arbitral seat if it finds another seat is more appropriate. In determining whether there is a more appropriate seat than the default seat of Kuala Lumpur, Malaysia, the Tribunal should have regard to all the circumstances of the case. 45 That is to consider if there are any connections of particular jurisdictions 40 Greenberg/Kee/Weeramantry, page Cammell v. Sewell; Hickling/Wu, Page A1, Page 1, Further Clarifications 43 Rajoo/Davidson, page supra [17]; infra [25] 45 KLRCA i-arbitration Rules, Rule 6(1). 10

17 with the parties and the parties dispute. 46 The current dispute revolves around the ownership of the Statue and whether the Nepalese Government relinquished its title. The Statue was first discovered in Nepal. 47 The ownership of the Statue was vested in Chhauni Museum before Third Respondent received the Statue. Third Respondent came into possession of the Statue in Nepal. 48 The jurisdiction of Nepal therefore has the closest connection with the dispute. Accordingly, if the Tribunal is to depart from the default seat, the Tribunal should regard Nepal as the more appropriate seat of arbitration. Accordingly, the Arbitration Act of Nepal is the law of the arbitral seat. 26. Nepalese law applies under the Arbitration Act of Nepal. Under No. 18(1), Ch. 1 the Arbitration Act of Nepal, in the absence of an agreed choice-of-law applicable to the substance, the substantive law of the dispute shall be Nepalese law. Therefore, under the Arbitration Act of Nepal, Nepalese law is the applicable law to the dispute. 46 Born, page 2097; Dubai Islamic Bank PJSC v Paymentech Merchant Services Inc. 47 C6, Page 3, Further Clarifications 48 Page 1, Moot Problem 11

18 C. UNDER NEPALESE LAW, CLAIMANT HAS NO RIGHT TO ASK FOR THE RETURN OF THE STATUE 27. The final outcome of this dispute will be affected by the determination as to which law should be applied. Under Nepalese law, Respondents have the right to retain the Statue [I] and Claimant has no right to demand the return of the Statue [II]. I. RESPONDENTS HAVE THE RIGHT TO RETAIN THE STATUE 28. Respondents have the right to retain the Statue because the Ancient Monuments Preservation Act of Nepal ( AMPA ) has not been breached. Although the Statue is an archeological object under s. 2(b) AMPA, the export of the Statue has not contravened s. 13(1) AMPA. Additionally, the confiscation provided for under s.13(5) AMPA cannot have an extraterritorial effect. It has been held that a State s powers of confiscation applies only within the State s jurisdiction. 49 For this reason, the Statue is not subject to confiscation. 29. In accordance with s. 13(1) AMPA, the restriction on export of archaeological objects only apply to those prescribed by Claimant in a Notification published in the Nepal Gazette. Only objects that can be found in the Gazette require approval from Claimant to be exported from Nepal. Under Art. 6(a) UNESCO Convention, State Parties undertake to introduce appropriate export certificates. The exporting State would use the certificate to specify that the export of the cultural property in question is authorised. This undertaking is introduced into Nepalese law through s. 13(1) AMPA. 49 Attorney-General of New Zealand v Ortiz 12

19 30. The Statue has never been registered in the Nepalese Gazette. 50 In fact, it has never been officially registered with the regulating bodies of Nepal. 51 From this, it is clear that the Statue was never intended to be subject to export regulations. Whilst it is true that First and Second Respondents could have been very easily been aware of the Nepalese export regulations 52, it is irrelevant because the regulations do not apply in this particular case. Even if the parties had been aware of it, the Statue did not fall under the protection of s. 13(1) AMPA 53, and its export from Nepal was not a breach of s. 13(1) AMPA. As such, it cannot be subject to confiscation under s. 13(5) AMPA. 31. Claimant failed in ensuring that the Statue is subject to the export regulations under s. 13(1) AMPA. As a result, the Statue did not require certification and was not illegally exported. Respondents therefore have the right to retain the Statue. II. CLAIMANT HAS NO RIGHT TO DEMAND THE RETURN OF THE STATUE 32. Claimant may argue that the Statue is stolen property and that they are entitled to its recovery under No. 25, Ch. 4, General Code. However, Claimant has no right to demand the return of the Statue because the elements under No. 1, Ch. 4, General Code are not satisfied. Claimant is not the rightful owner of the Statue [1]. Respondents could not have deprived Claimant of possession of the Statue. Should the Tribunal find that Claimant is the rightful owner of the Statue, Respondent did not act with mala fide intentions (bad faith) [2]. Claimant therefore has no right to demand recovery. 50 C4, Page 2, Third Clarifications 51 B5, Page 2, Further Clarifications 52 C3, Page 3, Further Clarifications 53 supra 30 13

20 1. Claimant is not the rightful owner of the Statue 33. Claimant is not the rightful owner of the Statue. The AMPA does not give Claimant ownership of the Statue [a]. Alternatively, Claimant has lost its ownership rights by virtue of a gift under No. 1, Ch. 19, General Code [b]. a. Claimant does not have ownership of the Statue under the AMPA 34. Claimant did not acquire ownership of the Statue under the AMPA. The Statue was discovered within Nepal s geographical borders, and duly turned over by its finders to local government officials. 54 There is no indication that Claimant paid the sheepherders when the Statue was turned over. 55 Claimant was required by s. 4(2) AMPA to register the Statue as a public ancient monument if no value was given for it. The Statue was never registered by Claimant. 56 Claimant has therefore failed to comply with s. 4(2) AMPA. Hence, Claimant cannot allege it owns the Statue by virtue of s. 3A AMPA as the Statue is a public ancient monument. Export regulations alone are incapable of creating ownership in the State. 57 Claimant cannot rightfully use the export prohibitions in s. 13(1) AMPA to assert that it has ownership of the Statue. Therefore, under the AMPA, Claimant never had ownership of the Statue. 54 C6, Page 3, Further Clarifications 55 C6, Page 3, Further Clarifications 56 B5, Page 2, Further Clarifications 57 United States v. McClain; Government of Peru v. Johnson 14

21 b. Alternatively, Claimant has lost its ownership rights by virtue of a gift under No. 1, Ch. 19, General Code 35. Even if Claimant was an owner of the Statue, Claimant no longer has ownership rights over the Statue pursuant to Ch. 19, General Code. Assuming that Claimant was the owner of the Statue when it first came into their custody 58, when the Statue was publicly displayed for the first time in , the Statue was donated as a gift to Chhauni Museum under No. 1, Ch. 19, General Code. 36. When the Statue was moved from Chhauni Museum to the University, Claimant was not a party to the transfer. Only Chhauni Museum and the University were part of the oral agreement for the display of the Statue. 60 It was solely a bilateral agreement between them that the Statue would be returned whenever the Museum wanted it back. 61 There are no facts indicating that Claimant had any power or control over the Statue. Moreover, the lack of official registration by regulating bodies of Nepal 62 also serves as evidence that Claimant never intended to own the Statue. Lastly, Claimant only learnt that the Statue had left Nepal after a Nepalese tourist had reported it. 63 This fact shows that Claimant has long since lost control and interest in the Statue. 37. There is no formal documentation stating that the Statue has been passed to the Museum as a gift. However, in light of the above facts, it can be understood that Claimant intended for the Statue to be donated to Chhauni Museum as a gift under No. 1, Ch. 19, 58 C6, Page 3, Further Clarifications; H3, Page 5, Third Clarifications 59 B1, Page 2, Clarifications; H3, Page 5, Third Clarifications 60 A1, Page 1, Further Clarifications 61 A1, Page 1, Further Clarifications 62 B5, Page 2, Further Clarifications 63 C3, Page 1, Third Clarifications 15

22 General Code. All subsequent rights of Claimant to bring a suit in relation to the donation of the Statue were relinquished 2 years from the donation, namely This is provided for under No. 5, Ch. 19, General Code. Claimant cannot allege that it still holds ownership of the Statue or that the donation was invalid. 38. Claimant therefore has no ownership rights over the Statue, Respondents could not have interfered nor deprived Claimant of the possession of the Statue. 2. Should the Tribunal find that the Claimant is the owner of the Statue, Respondent did not act with mala fide intentions (bad faith) 39. In accordance with No. 1, Ch. 4, General Code, mala fide intentions (bad faith) must be present in order to establish theft. At the time of the transfer of property, namely when Third Respondent received the Statue from the Dean during the dinner held in his honour for presenting lectures at Tribhuvan University in , bad faith was not present. 40. Third Respondent held the honest belief that the Statue was an excellent replica or otherwise he would not have been presented with such a valuable gift. 65 He genuinely believed that the Statue was presented to him as a gesture of gratitude for his services to the University. 66 He accepted it without the intention of committing theft. 41. Third Respondent is of good character, having donated antiquities to local museums in the past. 67 In the present case, he received no economic benefit from donating the Statue 64 Page 2, Moot Problem 65 Footnote 4, Page 2, Moot Problem 66 Page 2, Moot Problem 67 Page 1, Moot Problem 16

23 to First Respondent. 68 Despites allegations made against Third Respondent over unconfirmed reports that he has sold antiquities to private collectors at very high prices 69, he has never been charged of illegally selling them Additionally, Third Respondent could not have intended to commit the act of theft merely because he did not inform customs in both Nepal and Australia. 71 Moreover, as there was no official registration of the Statue in neither Nepal nor Australia 72, Third Respondent, under the circumstances he was placed under, could not have thought that it was been necessary to verify the authenticity of the Statue. No facts from this case suggest that Third Respondent acted in bad faith when receiving the Statue from the Dean. Claimant cannot show that Respondents committed theft in accordance with No. 1, Ch. 4, General Code. 43. Failing to prove that there was bad faith from Third Respondent, neither First Respondent nor Second Respondent could have committed theft. The right to demand the recovery of the Statue against the Respondents imposed by No. 25, Ch. 4, General Code is therefore inapplicable. Claimant has no right to demand the return of the Statue under the General Code of Nepal. 68 Page 3, Moot Problem. 69 Footnote 2, Page 1, Moot Problem 70 E6, Page 3, Third Clarifications 71 Page 3, Further Clarifications 72 Page 2, Further Clarifications 17

24 D. FAILURE TO COMPLY WITH NEPALESE LAW BY RESPONDENTS IS IRRELEVANT 44. Under the AMPA, Claimant is required to ensure that the Statue is registered by a Notification published in the Nepal Gazette. 73 It has failed to do so. 45. To establish theft under No. 25, Ch. 4, General Code, Claimant must be the owner in order to request the return of the Statue. Claimant cannot do so. 46. Hence failure to comply with Nepalese law by Respondent is irrelevant. The burden of proof is on Claimant to prove its case. Seeing as Claimant failed to prove all elements of its case, Respondents failure does not have any effect on this dispute. 73 s.2(b), AMPA; s.13(1), AMPA 18

25 PRAYER OF RELIEF Based on the above submissions, Respondents respectfully requests this Tribunal to arbitrate and declare as follows on the Questions Presented: A. Nepalese law establishes Respondents right to retain the Staute; B. Nepalese law should be applied to this dispute; C. Under Nepalese law, Respondents have the right to retain the Statue whilst Claimant has no right to demand the return of it; D. Respondents failure to comply with Nepalese law is irrelevant. Counsels on behalf of Respondents 19