MEMORIAL INTERNATIONAL MOOT COURT COMPETITION, 2018

Transcription

1 THE 3 RD NLIU JUSTICE R.K. TANKHA MEMORIAL INTERNATIONAL MOOT COURT COMPETITION, 2018 ORGANISED BY THE OFFICE OF SENIOR ADVOCATE, MR. VIVEK TANKHA 23 rd to 25 th February, 2018 CASE RECORD NATIONAL LAW INSTITUTE UNIVERSITY, BHOPAL 1

2 About Late Justice R.K. Tankha Born on 29th May 1926, Shri Tankha did his schooling at Allahabad and graduated in law from the Allahabad University. Further, he practiced as a junior counsel, to Shri. Gopal Saroop Pathak, Sr. Advocate, who later became the Vice President of India. Late Shri R.K. Tankha, in the year , shifted to Rewa, M.P., commencing his legal practice, and at a young age, he received professional acclaim. Subsequently, on 1st November 1956, a new state of Madhya Pradesh, was formed with Jabalpur as the principle seat of Hon ble High Court. Accordingly, Shri R.K. Tankha, in January 1957, shifted to Jabalpur and within a short period of time, became a prominent lawyer in Hon ble High Court. Further, he also became the President of the High Court Bar at Jabalpur. In 1972, he was elevated as a Judge in the Hon ble High Court. At the bench, he delivered prestigious judgments, but one of the most legally acclaimed judgment delivered by him was with Justice A.P. Sen during the time of emergency. In Shivkant Shukla v. ADM Jabalpur, the High Court held that "Right to life is inalienable and cannot be denied without due process even during emergency". However, the aforesaid judgment was set-aside by Constitutional Bench of the Hon ble Supreme Court headed by Justice Y.V. Chandrachud, the then Chief Justice of India. Many eminent jurists have construed the aforesaid judgment of the Supreme Court as one of the regrettable decisions it has delivered. Justice R.K. Tankha passed away at a young age of 52 on 13th December This competition was found by his son Shri Vivek Tankha, Member of Rajya Sabha and Senior Advocate, in memory of his father Justice R.K. Tankha, to motivate and encourage young students of law from different Universities to accomplish their endeavour in law. Shri Vivek Tankha came into practice in 1979 and presently, is one of the eminent Senior Advocates in practice before the Supreme Court of India. He was the Advocate General of State of Madhya Pradesh from 1999 to Further, he was also the Additional Solicitor General of India before the Supreme Court from 2009 to He is known for his humanitarian work by supporting hundreds of specially-abled children across the State of Madhya Pradesh and Chhattisgarh. He has also facilitated the opening of various Rotary Cross Blood Banks in tribal areas and has also set up five schools for specially-abled children in five towns in the State of Madhya Pradesh and Chhattisgarh. 2

3 At the outset, we would like to extend our sincere gratitude to Mr. Vivek Tankha for his constant support towards successful organisation of this Moot. By the continued association of NLIU and the Office of Mr. Vivek Tankha, we believe that this Moot will be able to reach great heights, the beginning of which has already taken place. In addition to Mr. Vivek Tankha, we are also obliged to the members of the Office of Mr. Tankha Mr. Varun Chopra, Mr. Prashant Sivarajan and also to Mr. Rishabh Sancheti for their valuable insights towards drafting this Record and guidance at every step of difficulty. Moot Court Association National Law Institute University, Bhopal 3

4 The 3 rd NLIU Justice R.K. Tankha Memorial International Moot Court Competition, 2018 Institutional Partner Knowledge Partner In association with the Office of Senior Advocate, Mr. Vivek Tankha 4

5 ACKNOWLEDGMENT TO THE CONTRIBUTORS OF THE CASE RECORD This Record for the Competition was authored by Mr. Rijoy Bhaumik (Former Senior Associate, Luthra and Luthra Law Offices; NLIU Batch of 2012). It was subsequently edited by Mr. Akshay Sapre (Advocate; NLIU Batch of 2009), Mr. Abhinav Bhushan (Director, South Asia, ICC Arbitration and ADR, ICC) and Mr. Prashant Mishra (Partner, Luthra and Luthra Law Offices; NLIU Batch of 2005). The NLIU Moot Court Association would like to express their deepest appreciation for their selfless efforts in drafting this truly extraordinary Record for the competition. We do hope teams make full use of the exciting areas of law addressed. We reserve special thanks to Mr. Bhaumik, not only for being creator and author of the Record, but for his continuous and unwavering support to the MCA. Note: Teams are forbidden from making any attempt to contact either the authors, or the editors for the purpose of this Competition. They have been requested to notify the Administrators of any such attempt, and the Administrators shall take penalising action, extending up to disqualification, of teams found guilty of such. 5

6 Mojo Pojo, Esq. Advocate at the Court 75 Arb Street, Capitol City, Antaria T: (0) F: (0) E: 02 August 2017 The Secretariat of the International Court of Arbitration International Chamber of Commerce avenue du Président Wilson Paris France Subject: Request for Arbitration Dear Sir/Ma am: I represent Antaria International Inc., which, pursuant to Article 4 of the ICC Arbitration Rules (hereafter Rules ), hereby submits its arbitral claim against Raconian Defence Technologies Ltd. in five copies. I enclose a copy of my power of attorney to represent Antaria International Inc. in this arbitration. A copy of the arbitral claim has been sent to the respondent. A copy of the receipt from the courier service is attached. The total amount claimed is US$ 2,680,000. The advance payments of US$ 5,000 for administrative expenses (Article 4(4)(b) ICC Arbitration Rules and Article 1(1) of Appendix III), have been made. The relevant bank confirmations are attached. As per the arbitration clause, the parties have nominated Mr. Duke Nukem as arbitrator in this dispute. His curriculum vitae is attached. The place of arbitration is Lake City, Central Province which I understand to be acceptable under Article 18 of the Rules. Sincerely yours, (Signed) Mojo Pojo, Esq. Counsel for Antaria International Inc. Encl: Power of Attorney Arbitral Claim Duke Nukem curriculum vitae Receipt from courier service Bank confirmation on advance payments 6

7 Mojo Pojo, Esq. Advocate at the Court 75 Arb Street, Capitol City, Antaria T: (0) F: (0) E: 02 August 2017 The Secretariat of the International Court of Arbitration International Chamber of Commerce avenue du Président Wilson Paris France Antaria International Inc. Claimant v. Raconian Defence Technologies Ltd. Respondent REQUEST FOR ARBITRATION AND STATEMENT OF CLAIM (Pursuant to Rule 4 of the ICC Arbitration Rules) I. Parties 1. Antaria International Inc. is incorporated under the laws of the country of Antaria. Antaria International Inc. (hereafter AI ) has legal personality and can bring legal actions in its own name. It has its principal office at 322 Boulevard Road, Capital City, Antaria. The telephone number is (0) and the fax number is (0) The general address is ai@ai.an. It is represented in this arbitration by Mojo Pojo, Esq., 75 Arb Street, Capitol City, Antaria, Tel. (0) , Telefax (0) , mojo@pojo.an. 2. AI is an Antarian multinational conglomerate company that produces a variety of commercial and consumer products, engineering services and aerospace systems for a wide variety of customers, from private consumers to major corporations and governments. AI s primary product in the aerospace and defence markets is the AI Optra which is a ballistic composite material used for soft and hard armor, manufactured using AI proprietary technology. 3. Raconian Defence Technologies Ltd. is a company where the Government of Raconia is the majority shareholder and is incorporated under the laws of Raconia. It has its principal office at 245 Under Water Park, Oceanside, Raconia. The telephone number is (0) The telefax is (0) and the general address is raconia@def.ra. 4. Raconian Defence Technologies Ltd. (hereafter RDT ) is primary supplier of defence equipment to the Government of Raconia. Raconia being a developing nation, undertakes 90% of all procurements through RDT, either through import of finished products or raw materials. RDT undertakes manufacture of various items such as ballistic vests and other ballistic gear using materials imported from abroad. There is no production of essential raw materials in 7

8 Raconia, therefore RDT imports most of the raw materials from various suppliers and the Government of Raconia subsidises the procurement of the same. II. Facts 5. AI has been supplying AI Optra to RDT since 2007 on an ad-hoc basis. In June, 2016 owing to increase in demand in Raconia due to recent civil unrest, Mr. Fitzgerald Udeshwar, the Chief Executive Officer of RDT required a large order supply of AI Optra within a small timeframe which was promptly accepted by RDT. (Claimant s Exhibit No. 1-2) Accordingly, after finalizing the typical discounts available to RDT, Mr. Udeshwar sent an order for 8000 rolls of 45.8 kg roll weight, of 63 inches minimum width AI Optra at a price of US$ per roll of material. The rolls were to be shipped from Capital City CFR to Oceanside Port in two (2) equal shipments on or prior to the 10 th of the months of February, 2017 and March, The total contract price was US$ 2,680,000. Payment for each installment was due 30 days after shipment. (Claimant s Exhibit No. 3) 6. Subsequently, on February 8, 2017 the first shipment was dispatched from Capital City and arrived at Oceanside Port on February 10, As per the terms of the contract, RDT was required to complete port and customs formalities. On February 15, 2017, AI received communication from RDT seeking assistance in customs clearance due to unprecedented requirements. According to RDT, due to the civil unrest, import of specified materials required a procedural clearance signed by the manager of the exporting firm. Mr. Udeshwar highlighted the importance of this requirement, otherwise the goods would be rendered useless for the purposes of RDT if continuing in the possession of Raconian Customs. (Claimant s Exhibit No. 4). 7. AI promptly sent the contact details of Mr. Antony Martyr, the authorised representative of AI in Raconia who would be happy to do the needful. (Claimant s Exhibit No. 5) However, on February 25, 2017 AI was informed by RDT that the customs officials would not accept the clearance from an authorised person and would only accept the same signed off in the presence of the manager of the exporter s business. Further, since the goods have been lying unclaimed for fifteen (15) days, and the goods being specified for clearance formalities, would now stand confiscated by the Raconian authorities. In these circumstances, RDT would not be able to claim the goods until legal proceedings in the matter could be resolved. Accordingly, owing to the urgency of the requirements of RDT and the fact that RDT would require the materials immediately, RDT has already placed an order with a competitor and would avoid the present contract due to circumstances due to failure of AI to complete procedural formalities. (Claimant s Exhibit No. 6) 8. Immediately, AI responded to the avoidance of contract by stating that the Claimant was not informed in advance of the requirements of Raconian customs, and the responsibility to clear the goods was the buyer s alone in light of paragraph 13 (c) of the contract between the parties. In any case, the goods were now the property of RDT, and payment for the same and the remaining shipment needs to be made. However, in the meantime without prejudice to the seller s rights in this regard, RDT is obligated to assist AI in returning the goods to origin, since the Raconian Customs authority will deal with the importer of the goods and not the foreign exporter. (Claimant s Exhibit No. 7). RDT, however responded only by stating that the avoidance of the contract was valid and RDT has no responsibility under law to assist AI in clearance of the goods. Further, RDT states that clearance of the goods would require RDT to 8

9 pay customs duties, which they are no more obligated to pay since the contract has been legally avoided. Therefore, AI can be free to claim the goods from customs as owner of the goods. (Claimant s Exhibit No. 8) 9. AI would, thereafter in communication with the Raconian Customs authorities, request for the release of the goods that have been confiscated by them multiple times (Claimant s Exhibit No. 9-10). However, the Customs authorities would not respond to any such communication. In July 14, 2017, RDT forwarded a communication from the Customs department stating that the unclaimed confiscated goods would now stand to be disposed of / sold / destroyed in accordance with Raconian law owing to no claim by the importer-on-record and storage costs of US$ 5,000 is liable to be paid by the importer-on-record. As per RDT, this amount is liable to be paid by AI for breach of contract and the same is recoverable from AI. (Claimant Exhibit No. 11) 10. An amount of 4000 rolls of AI Optra remains unsold in addition to the 4000 rolls that belong to RDT that were confiscated by the Customs Authorities. III. Arbitration clause, applicable law 11. The contract has no choice of law clause. Both Antaria and Raconia are parties to the United Nations Convention on Contracts for the International Sale of Goods ( CISG ). 12. The arbitration clause is found in paragraph 15 of the contract. It provides as follows: All disputes arising out of or in connection with the present contract shall be finally settled under the Rules of Arbitration of the International Chamber of Commerce subject to application of the Expedited Procedure Provisions. The tribunal will consist of a sole arbitrator as specified under Schedule I of this contract. The seat of the arbitration will be Lake City, Central Province. The language to be used in the arbitral proceedings will be English. Judgment upon the award rendered by the arbitrator may be entered by any court having jurisdiction thereof. 13. The parties have already opted for Expedited Procedure Provisions under Article 30 of the ICC Arbitration Rules as per the terms of the arbitration clause, and the same should be applied in this case. 14. Central Province has adopted the 1985 text of the UNCITRAL Model Law on International Commercial Arbitration without amendment. Antaria, Raconia and Central Province are all party to the Convention on the Recognition and Enforcement of Foreign Arbitral Awards 1958 ( New York Convention ). IV. Legal Conclusions 15. A tribunal formed in accordance with the Expedited Procedure Provisions of the ICC Arbitration Rules would have jurisdiction over the dispute. 16. RDT has contracted with AI to purchase 8000 rolls of 45.8 kg roll weight, of 63 inches minimum width AI Optra at a price of US$ per roll of material for a total contract price of US$ 2,680,000. 9

10 17. Storage costs of US$ 5000 is not liable to be paid by AI since as per contract, the same is the responsibility of RDT. 18. RDT has refused to take delivery of the goods and perform its duties as a buyer and has avoided the contract without any legal basis, contrary to CISG, Article 53. V. Appointment of Arbitrator 19. The parties have jointly noimnated the following individual as the sole arbitrator: Mr. Duke Nukem 14 Advocate Way, Lake City, Central Province Tel: (0) Fax: (0) dukenukem@lawyers.cp VI. Relief 20. AI requests the Tribunal to find: that the Tribunal has jurisdiction to consider the dispute between AI and RDT; that contract between AI and RDT cannot be avoided by RDT on the basis of lack of participation of AI during the clearance formalities; that RDT has refused to take delivery of the goods in violation of CISG, Article 53; that RDT has refused to complete Customs formalities which it is obligated to do under the contract and; that RDT has not paid the purchase price of US$ 2,680, Consequently, AI requests the Tribunal to order RDT: to pay AI the purchase price of US$ 2,680,000; to clear the goods from Raconian Customs and return the same to AI, who is an unpaid seller in this case; to pay interest at the prevailing market rate in Antaria on the said sum from the date of breach to the date of payment; to pay all costs of arbitration, including costs incurred by the parties. August 02, 2017 Counsel for the Claimant Drafted by: Mojo Pojo, Esq. Advocate at the Court 75 Arb Street, Capitol City, Antaria T: (0) F: (0) E: mojo@pojo.an 10

11 Claimant s Exhibit No. 1 RACONIAN DEFENCE TECHNOLOGIES LTD. 245 Under Water Park Oceanside Raconia June 21, 2016 Mr. Prash Jory Head Strategic Business Unit ANTARIA INTERNATIONAL INC. 322 Boulevard Road, Capital City, Antaria Dear Mr. Jory In terms of our long-standing business relationship I would like to place a request for AI Optra material. As you are aware, Raconia has been under civil unrest in various parts of the country owing to the recent municipal elections. In this regard, the Government of Raconia has placed large orders for manufacture of ballistic garments. Therefore, in furtherance of the same we would require 8000 rolls of 45.8 kg roll weight, of 63 inches minimum width AI Optra. We understand from our continuing relationship that such large orders are required on a prior order of a minimum of 10 months, however we would appreciate if you could send out half the shipment by the beginning of February, 2017 and the remaining shipment by March, Post your acceptance, please send a formal contract for our signature as per our continuing agreed price list. Sincerely, (Signed) F. Udeshwar Chief Executive Officer 11

12 Claimant s Exhibit No. 2 ANTARIA INTERNATIONAL INC. 322 Boulevard Road, Capital City, Antaria June 23, 2016 Mr. Fitzgerald Udeshwar Chief Executive Officer RACONIAN DEFENCE TECHNOLOGIES LTD. 245 Under Water Park Oceanside Raconia Dear Mr. Udeshwar: Thank you for your mail requesting the latest shipment of our proprietary AI Optra material. It would be possible for us to supply 4000 rolls of 45.8 kg roll weight, of 63 inches minimum width AI Optra material by February 10, 2017 at the earliest. Further, the balance shipment will be dispatched on March 10, 2017, as per your request. Please find attached to this mail, the contract as per our standard terms of business. The total contract price is US$ 2,680,000. Payment is to be made within 30 days of despatch of the goods. It is always a pleasure doing business with you. Sincerely, (Signed) Prash Jory Head Strategic Business Unit 12

13 Claimant s Exhibit No. 3 Contract (Excerpts) ANTARIA INTERNATIONAL INC. ( AI or Seller ) agrees to sell and RACONIAN DEFENCE TECHNOLOGIES LTD. ( RDT or Buyer ) agrees to buy 8000 rolls of 45.8 kg roll weight, of 63 inches minimum width AI Optra material ( Goods ) at $335 per roll plus CFR charges. 1. Price is $2,680,000 CFR Capital City to Oceanside Port. 2. Shipment to be in two equal installments of 4000 rolls each. The first shipment to be made on or before February 10, 2017 with subsequent shipment one month interval on or before March 10, Payment is to be made in installments by transfer to the account Antaria International Inc., account number in the Antaria Commercial Bank, Capital City Branch. Payment is due 30 days after notification by Antaria International Inc. of delivery to the port for shipment. * * * 13. Obligations of the Buyer (c) The Buyer is responsible for all procedural formalities in the port of import including but not limited to clearance of the Goods. 14. Obligations of the Seller (b) The Seller shall reasonably assist the Buyer in regard to any procedural requirements that may arise during the delivery of the Goods. 15. Arbitration. All disputes arising out of or in connection with the present contract shall be finally settled under the Rules of Arbitration of the International Chamber of Commerce subject to application of the Expedited Procedure Provisions. The tribunal will consist of a sole arbitrator as specified under Schedule I of this contract. The seat of the arbitration will be Lake City, Central Province. The language to be used in the arbitral proceedings will be English. Judgment upon the award rendered by the arbitrator may be entered by any court having jurisdiction thereof. * * * 13

14 SCHEDULE I Duke Nukem 14 Advocate Way Lake City, Central Province Tel: (0) Fax: (0) dukenukem@lawyers.cp * * * (Signed) Prash Jory Head Strategic Business Unit ANTARIA INTERNATIONAL INC. Date: July 20, 2016 (Signed) Fitzgerald Udeshwar Chief Executive Officer RACONIAN DEFENCE TECHNOLOGIES LTD. Date: July 20,

15 Claimant s Exhibit No. 4 RACONIAN DEFENCE TECHNOLOGIES LTD. 245 Under Water Park Oceanside, Raconia February 15, 2017 Mr. Prash Jory Head Strategic Business Unit ANTARIA INTERNATIONAL INC. 322 Boulevard Road, Capital City, Antaria Dear Mr. Jory As you are aware that the goods supplied by your company in pursuance of contract dated July 20, 2016 have arrived on Oceanside port on February 10, We have filed Bill of Entry No. OCN dated February 11, 2017 with the Raconian Customs Authorities for payment of customs duty and clearance of the goods for home consumption. However, we received the following communication from the Customs Authorities on February 13, 2017: Please refer to Bill of Entry No. OCN dated February 11, 2017 filed by your good company containing goods of description 4000 rolls of 45.8 kg roll weight, of 63 inches minimum width AI Optra material from port of export Capital City, Antaria. In accordance with Notification No. 14/2017-Customs dated January 20, 2017 importers of Scheduled Goods are required to file Exporter Certificate signed by manager of foreign exporter entity with Raconian Customs along with Bill of Entry due to the sensitive nature of the goods. Be advised that if Exporter s Certificate is not filed within 15 days of import, the goods shall be treated in accordance with the customs law of Raconia. We would kindly require you to the do the needful and send across a signed and stamped copy of the Exporter Certificate (Notification No. 14/2017-Customs dated January 20, 2017 containing Exporter Certificate attached to this mail) by the authorised signatory, so that the requisite formalities may be completed at the earliest. Please bear in mind the urgency of the matter, since the goods are required to be cleared from customs to be of any use to RDT. Looking forward to a prompt response. Sincerely, (Signed) F. Udeshwar Chief Executive Officer Encl. Copy of Notification No. 14/2017-Customs dated January 20, 2017 containing Exporter Certificate 15

16 Claimant s Exhibit No. 5 ANTARIA INTERNATIONAL INC. 322 Boulevard Road, Capital City, Antaria February 17, 2017 Mr. Fitzgerald Udeshwar Chief Executive Officer RACONIAN DEFENCE TECHNOLOGIES LTD. 245 Under Water Park Oceanside Raconia Dear Mr. Udeshwar: Kindly refer to your mail dated February 15, We have appointed Mr. Antony Martyr as our authorised representative to assist you in this matter (authorization letter enclosed). He has filed the completed Exporter Certificate with Raconian Customs yesterday (copy of filed Exporter Certificate enclosed). He would be happy to assist you in any other manner if so required in relation to the shipment. Please find below his contact coordinates: ANTONY MARTYR Consultant 233 Clownfish Lane, Nemo Way Oceanside, Raconia Tel. (0) Telefax (0) a.martyr@con.ra Kindly do let us know if there are any other requirements from our end. Sincerely, (Signed) Prash Jory Head Strategic Business Unit Copy To. Antony Martyr Encl. Authorisation Letter Antony Martyr Filed Exporter Certificate dated February 16,

17 Claimant s Exhibit No. 6 RACONIAN DEFENCE TECHNOLOGIES LTD. 245 Under Water Park Oceanside, Raconia February 25, 2017 Mr. Prash Jory Head Strategic Business Unit ANTARIA INTERNATIONAL INC. 322 Boulevard Road, Capital City, Antaria Dear Mr. Jory Please refer to our contract dated July 20, 2016 and Bill of Entry No. OCN dated February 11, 2017 with the Raconian Customs Authorities for payment of customs duty and clearance of the goods for home consumption. We have received the following communication from the Customs authorities today: Refer to Bill of Entry No. OCN dated February 11, 2017 filed by your good company containing goods of description 4000 rolls of 45.8 kg roll weight, of 63 inches minimum width AI Optra material from port of export Capital City, Antaria. In accordance with Notification No. 14/2017-Customs dated January 20, 2017 you have filed Exporter Certificate signed by one Antony Martyr, authorised representative of the merchant exporter. However, Mr. Martyr is not a manager of the business of the merchant exporter and accordingly the Exporter Certificate is rejected due to procedural irregularities. Further, since the goods are in the nature of Scheduled Goods, the same are liable to be confiscated forthwith in terms of Notification No. 14/2017-Customs dated January 20, 2017, after 15 days of import. Accordingly, the same have been confiscated and is now the property of the Government of Raconia. Please note that due to the fact that you refused to have the manager of your business sign the Exporter Certificate, the Certificate has been rejected. In these circumstances, the goods are now the property of the Government of Raconia, pending appeal to be filed by the importer on record. You are aware of the urgency of RDT s requirements in this case, and we cannot wait for legal proceedings to be initiated and goods be cleared. Accordingly, we would opt to avoid the contract owing to failure on your part to complete the requisite formalities as required by the Customs authorities in Raconia. We have already placed a similar order on another party who has promised to deliver goods as soon as possible, Owing to requirements of confidentiality, I am not at liberty to discuss the price of this purchase, but might I add here that due to your actions, we have to settle for substantially inferior grade of material owing to immediacy of the requirement. Sincerely, (Signed) F. Udeshwar Chief Executive Officer 17

18 Claimant s Exhibit No. 7 ANTARIA INTERNATIONAL INC. 322 Boulevard Road, Capital City, Antaria February 27, 2017 Mr. Fitzgerald Udeshwar Chief Executive Officer RACONIAN DEFENCE TECHNOLOGIES LTD. 245 Under Water Park Oceanside Raconia Dear Mr. Udeshwar: At the outset, we would like to state that the responsibility for completion of Customs formalities was yours alone as per the contract under paragraph 13 (c). Therefore, AI can in no way be held liable for the same, and resultantly the avoidance of the contract by RDT is illegal under the law for the time being in force. Further, assuming and not conceding the above, the transfer of title in goods has already taken place, and the goods are now the property of RDT, even at the time of the avoidance of the contract. Accordingly, the payment for the shipment cannot be withheld. Further, without prejudice to the above, we would further like to reiterate that since the Bill of Entry has been filed by RDT as the importer on record, only RDT can clear the goods for Customs. Therefore, in case RDT are abandoning their goods, they should forthwith clear the goods and allow AI to claim the goods as an unpaid seller. We would assure you of our best cooperation at all times owing to our long standing relationship. Sincerely, (Signed) Prash Jory Head Strategic Business Unit 18

19 Claimant s Exhibit No. 8 RACONIAN DEFENCE TECHNOLOGIES LTD. 245 Under Water Park Oceanside Raconia March 13, 2017 Mr. Prash Jory Head Strategic Business Unit ANTARIA INTERNATIONAL INC. 322 Boulevard Road, Capital City, Antaria Dear Mr. Jory: We are unable to agree with your assertions as per mail dated February 27, The avoidance of the contract is legally valid since you as a seller have not performed your obligations under the contract. Accordingly, we are unable to make payment for the goods for the same. Further, the transfer of title in goods has not happened yet as the goods are yet to be cleared from Customs. Therefore, owing to the avoidance of the contract by RDT, RDT is under no obligation to complete customs formalities in this case. In any case, any clearance of the goods would require RDT to make payment of customs duties, which RDT is no longer legally obliged to pay since the contract has been legally avoided. Accordingly, AI is free to claim the goods from the customs authorities. Sincerely, (Signed) F. Udeshwar Chief Executive Officer 19

20 Claimant s Exhibit No. 9 ANTARIA INTERNATIONAL INC. 322 Boulevard Road, Capital City, Antaria March 20, 2017 The Controller Raconia Customs Department Port Fishy, Oceanside Raconia Dear Sir: Sub: Bill of Entry No. Bill of Entry No. OCN dated February 11, 2017 Kindly refer to the captioned Bill of Entry. The undersigned is the manager of the business of Antaria International Inc. ( AI ), the foreign exporter of the goods imported in the subject Bill of Entry. Accordingly, please allow the re-export of the goods to origin, since the importer-on-record for the said Bill of Entry has refused to take delivery of the goods. (Copies of communication from importer is attached and annexed to this letter). Accordingly, as the unpaid seller, AI is the rightful owner of the goods, once the importer has abandoned the same. Therefore, we would request you to kindly allow us to reclaim the goods as an unpaid seller. We have attached remedied Exporter Certificate signed by the undersigned as required by you. Sincerely, (Signed) Prash Jory Head Strategic Business Unit Encl: Communications dated February 25, 2017 and March 13, 2017 Amended Exporter Certificate signed by Prash Jory, manager of AI s business 20

21 Claimant s Exhibit No. 10 ANTARIA INTERNATIONAL INC. 322 Boulevard Road, Capital City, Antaria May 15, 2017 The Controller Raconia Customs Department Port Fishy, Oceanside Raconia Dear Sir: Sub: (1) Bill of Entry No. Bill of Entry No. OCN dated February 11, 2017 (2) Letter dated March 20, 2017 Please refer to the captioned Bill of Entry and captioned letter. We would reiterate that you should allow us to re-export the goods to origin, since the importer-on-record for the said Bill of Entry has refused to take delivery of the goods. We would, in any case, advise you that the goods in question are highly sensitive to the defence sector, and under no circumstances should the goods be subject to deterioration and disposal while under your care. Legal consequences may follow. Sincerely, (Signed) Prash Jory Head Strategic Business Unit 21

22 Claimant s Exhibit No. 11 RACONIAN DEFENCE TECHNOLOGIES LTD. 245 Under Water Park Oceanside Raconia July 14, 2017 Mr. Prash Jory Head Strategic Business Unit ANTARIA INTERNATIONAL INC. 322 Boulevard Road, Capital City, Antaria Dear Mr. Jory Please refer to avoided contract dated July 20, 2016 and Bill of Entry No. OCN dated February 11, We have received the following communication from the Customs authorities today: Refer to Bill of Entry No. OCN dated February 11, 2017 filed by your good company containing goods of description 4000 rolls of 45.8 kg roll weight, of 63 inches minimum width AI Optra material from port of export Capital City, Antaria. In accordance with Notification No. 14/2017-Customs dated January 20, 2017 any scheduled goods confiscated by the Customs authorities is liable to be disposed of / auctioned / destroyed after six months from the date of import. Accordingly, you have been notified that the said goods shall be disposed of in accordance with law. Kindly pay US$ 5000 as storage fees to Customs warehouse for the period of storage in Customs warehouse. Please note that this US$ 5000 is recoverable from AI, since the contract has been avoided by RDT. Accordingly, RDT shall make payment to the statutory authorities and require payment of storage fees for your goods in Customs warehouse. Sincerely, (Signed) F. Udeshwar Chief Executive Officer 22

23 /AC August 05, /AC Antaria International Inc. (Antaria) v. Raconian Defence Technologies Ltd. (Raconia) Mojo Pojo, Esq. Advocate at the Court 75 Arb Street Capitol City, Antaria By DHL Raconian Defence Technologies Ltd. 245 Under Water Park, Oceanside, Raconia By DHL Dear Sir/Ma am, The Secretariat of the International Court of Arbitration of the International Chamber of Commerce ( Secretariat ) draws your attention to the following: I. REQUEST FOR ARBITRATION ( REQUEST) (1) Request The Secretariat notifies Raconian Defence Technologies Ltd. that on 02 August 2017, it received a Request for Arbitration ( Request ) from Antaria International Inc. ( Claimant ) represented by Mojo Pojo, Esq. that names it as Respondent. Pursuant to Article 4(2) of the ICC Rules of Arbitration ( Rules ), this arbitration commenced on 02 August We enclose a copy of the Request and the documents annexed thereto (Article 4(5)). (2) Answer to the Request Respondent s Answer to the Request ( Answer ) is due within 30 days from the day following receipt of this correspondence (Article 5(1)). Please send us 5 copies of the Answer, together with an electronic version. Respondent may apply for an extension of time for submitting its Answer (Article 5(2)). Please note that as per the arbitration agreement, the arbitrator has already been appointed by the parties in this case. If any of the parties refuses or fails to take part in the arbitration or any stage thereof, the arbitration will proceed notwithstanding such refusal or failure (Article 6(8)). (3) Joinder of Additional Parties No Additional Party may be joined to this arbitration after the confirmation or appointment of any arbitrator, unless all parties including the Additional Party otherwise agree (Article 7(1)). Therefore, if 23

24 /AC Respondent intends to join an Additional Party and seeks an extension of time for submitting its Answer, it must inform us in its request for such extension. (4) Constitution of the Arbitral Tribunal The arbitration agreement provides for the sole arbitrator. The parties agree that Mr. Duke Nukem act as sole arbitrator in this case. We will accordingly invite the prospective sole arbitrator to complete a Statement of Acceptance, Availability, Impartiality and Independence, which we will send to all parties. (5) Place of Arbitration The arbitration agreement provides for Lake City, Central Province as the place of arbitration. (6) Language The arbitration agreement provides for English as the language of arbitration. (7) Provisional Advance The Secretary General fixed a provisional advance of US$ 40,000 to cover the costs of arbitration until the Terms of Reference are established (Article 37(1)), based on an amount in dispute quantified at US$ 2,680,000 and one arbitrator. (8) Efficient Conduct of the Arbitration The Rules require the parties and the arbitral tribunal to make every effort to conduct the arbitration in an expeditious and cost-effective manner having regard to the complexity and value of the dispute (Article 22(1)). In making decisions as to costs, the arbitral tribunal may take into account such circumstances as it considers relevant, including the extent to which each party has conducted the arbitration in an expeditious and cost-effective manner (Article 37(5)). II. GENERAL INFORMATION (1) Caption The caption and the reference of this case are indicated above. Please ensure that the caption is accurate and include the reference /AC in all future correspondence in the arbitration proceedings. (2) Reference to the Rules In all future correspondence, any capitalised term not otherwise defined will have the meaning ascribed to it in the Rules and references to Articles of the Rules generally will appear as: (Article ***). (3) Communications with the Secretariat Please provide your fax number and/or address as we may transmit notifications and communications by fax and/or . (4) Amicable Settlement 24

25 /AC Parties are free to settle their dispute amicably at any time during arbitration. The parties may wish to consider conducting an amicable dispute resolution procedure pursuant to the ICC Mediation Rules, which, in addition to mediation, also allow for the use of other amicable settlement procedures. ICC can assist the parties in finding a suitable mediator. Further information is available from the ICC International Centre for ADR at or adr@iccwbo.org or (5) Your Case Management Team Mr Counsel...(direct dial number: ) Ms Deputy Counsel...(direct dial number: ) Mr Deputy Counsel...(direct dial number: ) Ms Deputy Counsel...(direct dial number: ) Ms Assistant...(direct dial number: ) Ms Assistant...(direct dial number: ) Mr Assistant...(direct dial number: ) Sincerely, Counsel Secretariat of the ICC International Court of Arbitration Encl. - Request for Arbitration with documents annexed thereto - Note to the Parties in Proceedings under the 2012 Rules - Note on Administrative Issues - ICC Rules of Arbitration (see also - ICC Dispute Resolution Brochure (see also - Financial Table - Payment Request for the provisional advance (The attachments are not provided for the purposes of the Moot problem) (The Notes are available on the ICC electronic Dispute Resolution Library at: 25

26 /AC August 16, /AC Antaria International Inc. (Antaria) v. Raconian Defence Technologies Ltd. (Raconia) Mojo Pojo, Esq. Advocate at the Court 75 Arb Street Capitol City, Antaria By Raconian Defence Technologies Ltd. 245 Under Water Park, Oceanside, Raconia By Dear Sirs, The Secretariat encloses a copy of the Statement of Acceptance, Availability, Impartiality and Independence ( Statement ), as well as the curriculum vitae of Mr. Duke Nukem jointly nominated by Claimant and the Respondent as sole arbitrator in the arbitration agreement. Yours faithfully, Counsel Secretariat of the ICC International Court of Arbitration Encl. Statement and Curriculum Vitae of Mr. Duke Nukem (The attachments are not provided for the purposes of the Moot problem) 26

27 Juno Temple, Adv. 146 Court Street Oceanside, Raconia Tel. (0) Telefax (0) August 20, 2017 The Secretariat of the International Court of Arbitration International Chamber of Commerce avenue du Président Wilson Paris France Re: /AC - Antaria International Inc. (Antaria) v. Raconian Defence Technologies Ltd. (Raconia) Dear Sir/Ma am: Your letter of August 05, 2017 with enclosures, and particularly the Request for Arbitration and Statement of Claim ( Request ) by ANTARIA INTERNATIONAL INC. against my client, RACONIAN DEFENCE TECHNOLOGIES LTD., has been referred to me by ANTARIA INTERNATIONAL INC. I should like to inform you that we will contest the applicability of Expedited Procedure Provisions under Article 30 of ICC Arbitration Rules since the parties have not agreed to the application of the Expedited Procedure Provisions in this case. I would also like to acknowledge the appointment of Mr. Duke Nukem as arbitrator in the captioned dispute on behalf of the Respondent. Sincerely yours, (Signed) Juno Temple Encl: Power of Attorney Statement of Defense 27

28 August 20, 2017 Antaria International Inc. Claimant v. Raconian Defence Technologies Ltd. Respondent /AC - Antaria International Inc. (Antaria) v. Raconian Defence Technologies Ltd. (Raconia) Statement of Defense and Counter-claim I. Facts 1. Raconian Defence Technologies Ltd. (Respondent) does not contest the basic narrative set forth in the Statement of Claim and Request for Arbitration (Request). However, it will bring to the attention of the tribunal several elements in the correspondence between the two parties set forth in Claimant s Exhibits that have not been pointed out by the claimant, Antaria International Inc. (Claimant) along with oral evidence of Mr. Antony Martyr which would show that Claimant was aware of the procedure required for clearance of goods in Raconia and therefore Claimant should be held at a higher standard of care than that has been set forth in the Request. Further, the Claimant cannot unilaterally apply for application of Expedited Procedure under Article 30 of the ICC Arbitration Rules (Rules) especially when the expedited Rules did not exist at the time of entering into the Contract.= and they do not apply in this case. Lastly, the Respondent has correctly repudiated the contract between the Claimant and itself after failure of the Claimant to responsibly act within the statutory timeframe. II. Applicable Laws of Procedure 2. Claimant has unilaterally claimed that the Expedited Procedure Provisions under the Rules shall be applied in this case. However, procedurally the Expedited Procedure Provisions cannot be applied where the amount in the dispute exceeds US$ 2,000,000 and that the expedited Rules did not exist at the time of entering into the Contract. In this case, the claim has exceeded the said amount and therefore, the Expedited Procedure Provisions cannot apply. 3. Further, the Respondent at no point of time has indicated that it is agreeable for Expedited Procedure Provisions of arbitration under the Rules can apply. Specifically because in this case the Respondent wishes to rely on oral evidence of Mr. Antony Martyr, which will show that the Claimant has in the past filed Exporter Certificate signed by the manager of their business, and in this case, allowing Mr. Martyr to sign is gross negligence on their part. 4. In any case, the oral evidence of Mr. Martyr should be considered in light of the peculiar facts and circumstances of this case, even if Expedited Procedures of arbitration are applied, since it brings to light relevant prior conduct of the Claimant, relevant to the circumstances of this case. 28

29 III. Respondent has correctly avoided the Contract 5. At the outset, it is important to mention that the Claimant has been exporting to Raconia for a while now. However, recently they have exported similar materials to private defence contractors in the recent past as well and is well aware of the requirements under Notification No. 14/2017-Customs dated January 20, 2017 (Customs Notification). In this regard, a reputed national newspaper in Raconia has identified that the Claimant shall be dealing with private defence contractors in Raconia in supplying ballistic materials. (Respondent Exhibit No. 1) Here, it is important to note that all ballistic materials are covered under the Customs Notification, therefore to export to Raconia, the Claimant will be required to comply with Exporter Certificate compliance. Further, oral evidence from Mr. Antony Martyr will demonstrate that the Claimant has exported ballistic materials to other contractors post January 20, 2017 and was well aware of Exporter Certificate compliance. Accordingly, the negligence in allowing a person who is merely an authorized signatory to sign the Exporter Certificate is attributable to the Claimant in light of these facts. 6. Further, the Claimant has very conveniently not attached the Customs Notification to the Request, however the same has been provided to the Claimant vide mail dated February 15, 2017 (as per Claimant Exhibit No. 4). The Customs Notification is very clear as to who is liable to sign the Exporter Certificate, and the Claimant was aware of the same from February 15, 2017 at least. (Respondent Exhibit No. 2) Therefore, thereafter assigning Mr. Martyr to sign and file the Exporter Certificate at that stage was gross negligence on part of the Claimant and accordingly the contract was rightly avoided by the Respondent. IV. Claimant has acted unreasonably causing Fundamental Breach of Contract 7. In any case, the contract itself under paragraph 14 (b) of the contract between the parties mandates the Claimant to reasonably assist the Buyer in regard to any procedural requirements that may arise during the delivery of the Goods.. In this case, not only has the Claimant not reasonably assisted the Respondent, their negligence has caused confiscation of the goods. Accordingly, the contract has been rightfully avoided. Omission of the Claimant has caused fundamental breach of the contract under Article 25 of the United Nations Convention on Contracts for the International Sale of Goods (CISG) and Respondent is entitled to avoid the contract pursuant to Article 49 (1) (a) of the CISG. V. Respondent can recover storage costs payable to Raconian Customs authorities from the Claimant 8. Further, Respondent being the importer-on-record for the Raconian Customs authorities is liable to pay storage of the goods under the contract to the Customs authorities. In this regard, this storage cost is payable due to storage of the goods in customs warehouse since the goods had been abandoned by the Respondent. Since these costs are reasonably associated to the negligence caused by the Claimant in not completing procedural formalities, the same is liable to be paid by the Claimant. 29

30 VI. Respondent is entitled to damages 9. The Claimant acted arbitrarily and in breach of its obligation under the contract, wherein Claimant was required to cooperate and ensure clearance of goods from the Port. Having failed to do so, Respondent could not get immediate delivery of the goods and had to arrange for it from other manufacturers at short notice. Respondent is therefore entitled for compensatory damages from the Claimant. By way of Counter Claim, Respondent claims a total us US$ 150,000 as compensatory damages for the wrongful acts of Claimant. VII. Legal Conclusions 10. The Tribunal should not apply the Expedited Procedures under the Rules post appointment of arbitrator. 11. Oral testimony of Mr. Antony Martyr should be allowed to be recorded by the Tribunal as relevant to the facts and circumstances of the present case. 12. Respondent had contracted with Claimant to purchase 8000 rolls of 45.8 kg roll weight, of 63 inches minimum width AI Optra at a price of US$ per roll of material for a total contract price of US$ 2,680,000, which was rightly avoided by the Respondent due to fundamental breach of the contract. 13. Storage costs of US$ 5000 is to be recovered from the Claimant. 14. Respondent is entitled for compensatory damages of US$ 150,000 from the Claimant. VIII. Appointment of Arbitrator 15. The parties have agreed that the following individual as the sole arbitrator under the contract: Mr. Duke Nukem 14 Advocate Way Lake City, Central Province Tel: (0) Fax: (0) dukenukem@lawyers.cp IX. Relief 16. Respondent requests the Tribunal to: find that the Expedited Procedure Provisions under the Rules does not apply; find that oral testimony of Mr. Antony Martyr should be allowed to be recorded; find that the Claimant has fundamentally breached the contract under Article 25 of CISG; 30

31 order that storage costs of US$ 5000 payable to Raconian Customs authorities is to be recovered from the Claimant. order Claimant to pay a sum of US$ 150,000 to Respondent as compensatory damages. order that all costs of arbitration, including costs incurred by the parties is liable to be paid by the Claimant. August 20, 2017 Counsel for Respondent Drafted by: Juno Temple, Adv. 146 Court Street Oceanside, Raconia Tel. (0) Telefax (0) juno@adv.ra 31

32 Respondent s Exhibit No. 1: Excerpt from the Raconia Times dated January 12, 2017 Billion Dollar Conglomerate Expands Presence in Raconia Oceanside. January 12, Within a few weeks after the Government allowed private players in the defence sector in Raconia, Antaria International Inc. has entered into several strategic partnerships with Oceanside Defence Inc. and Raconnaisance (Pvt.) Ltd., the two largest private players in the burgeoning market. Raconia is fast emerging as an economic powerhouse and is on the way to modernise its defence forces to give it the necessary strategic confidence. Antaria International is already supplying its products to the largest defence equipment manufacturer in Raconia, Raconian Defence Technologies Ltd. Prash Jory, the Head of Strategic Business at Antaria International was buoyant about the future of partnerships in Raconia and believes that the market can only expand post liberalization. Jory said, We are really excited with the scopes of supply with these two new companies. We hope that this will kickstart the defence technology boom in Raconia, which has already swept the Americas and Europe. We believe that our partnerships in Raconia will stand us in good stead in the long term. In fact, I can t wait to ship to our new customers very very soon! In the next ten years, the defence industry in Raconia is anticipated to generate a business opportunity of over $70 billion. Thanks to the Prime Minister s vision and initiative, the Raconian private sector shall have a level playing field for a larger play in this technologically challenging but very lucrative industry. 32

33 Respondent s Exhibit No. 2 GOVERNMENT OF RACONIA MINISTRY OF FINANCE (DEPARTMENT OF REVENUE) NOTIFICATION No. 14 /2017-Customs Raconia, the 20 th January, 2017 G.S.R. (E). In exercise of the powers conferred by sub-section (1) of section 25 of the Customs Act, the Government of Raconia being satisfied that it is necessary in the public interest so to do, hereby passes the following orders, namely:- All importers are directed that for the goods specified in Column (2) of Table No. 14/2017/1 below, the additional procedure specified in Column (3) in the said Table needs to be followed for Bills of Entries filed from the date the of this Notification: TABLE NO. 14/2017/1 Sl. No. Description of Goods Conditions. 42. Ballistic Materials under Chapter 59 of the Harmonized System of Nomenclature Exporter Certificate from foreign exporter needs to be filed along with import documents, duly signed and sealed by the manager of the business of the foreign exporter. (Signed) Under Secretary to the Government of Raconia 33

34 /AC September 20, /AC Antaria International Inc. (Antaria) v. Raconian Defence Technologies Ltd. (Raconia) Mr. Duke Nukem 14 Advocate Way Lake City, Central Province By Mojo Pojo, Esq. Advocate at the Court 75 Arb Street Capitol City, Antaria By Juno Temple, Adv. 146 Court Street Oceanside, Raconia By Dear Sir/Ma am, The Secretariat draws your attention to the following: I. REQUEST FOR ARBITRATION ( REQUEST) On September 14, 2017, the Court: - decided that the arbitral tribunal is free to determine questions on applicability of Expedited Procedure Provisions during the arbitration proceedings subject to applicability of Article 30 (2) 1 ; - confirmed Mr. Duke Nukem as sole arbitrator upon Claimant s and the Respondent s joint nomination (Article 13(2) ); and - fixed the advance on costs at US$ 180,000, subject to later readjustments (Article 37(2)/36(4)) II. ADVANCE ON COSTS The advance on costs is intended to cover the arbitral tribunal s fees and expenses, as well as the ICC administrative expenses (Article 36 and Article 1(4) of Appendix III to the Rules). The Court fixed an advance on costs based on an amount in dispute which is now estimated at US$ 2,835,000 (i.e. claim of US$ 2,680,000 and counter-claim of US$ 155,000), and one arbitrator. Depending on the evolution of the arbitration, the Court may readjust the advance on costs. 1 Ordinarily, under these circumstance, this decision would be taken by the ICC Court and conveyed to the parties and the sole arbitrator. Parties would ordinarily make submissions to the Secretariat on the applicability of the Expedited Procedure, which submissions the Secretariat would present before the ICC Court. However, strictly for the purposes of the Moot, it is assumed that the sole arbitrator would be making the decision on this matter, on behalf of the ICC Court. Participants are free to argue these submissions before the sole arbitrator, as if these were made to the ICC Court. 34

35 /AC The parties are invited to pay the advance on costs as follows (Article 36), within 30 days from the day following receipt of this correspondence: Claimants - US$ 12,550 (US$ 52,550 less US$ 40,000 already paid) Respondent - US$ 40,000 III. TRANSMISSION OF THE FILE TO THE ARBITRAL TRIBUNAL As the provisional advance has been fully paid, we are transmitting the file to the arbitral tribunal today (Article 16). (1) Efficient Conduct of the Arbitration The arbitral tribunal and the parties must make every effort to conduct the arbitration in an expeditious and cost effective manner, having regard to the complexity and value of the dispute (Article 22(1)). We draw your attention to Appendix IV of the Rules, which contains suggested case management techniques. We enclose a Note to the Arbitral Tribunal on the Conduct of Arbitration which sets forth the time limits under the Rules that you must observe and relevant information concerning the conduct of the proceedings. (2) Jurisdiction The Court, being prima facie satisfied that an arbitration agreement under the Rules may exist, decided that this arbitration will proceed. You must decide on your own jurisdiction (Article 6(5)). (3) Communications As from now, the parties should correspond directly with the arbitral tribunal and send copies of their correspondence to the other parties and to us. Please provide us with copies of all your correspondence with the parties in electronic form only. Sincerely, Counsel Secretariat of the ICC International Court of Arbitration Encl. - List of Documents and documents mentioned therein - Case Information - Financial Table - Payment Request - Note to the Arbitral Tribunal on the Conduct of Arbitration - Note on Administrative Issues - ICC Award Checklist (The attachments are not provided for the purposes of the Vis Moot problem) (The Notes are available on the ICC electronic Dispute Resolution Library at: 35