VIII. CLAIMANT IS ENTITLED TO FULL DAMAGES UNDER ART. 74 CISG AS IT ACTED REASONABLY

TABLE OF CONTENTS

Index of Authorities................................................................................................................. i

Index of Cases & Awards..................................................................................................... v

Abbreviations....................................................................................................................... x

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

SUMMARY OF ARGUMENT............................................................................................ 3

Argument.............................................................................................................................. 5

ARGUMENT ON PROCEDURE

I. THE NATURE OF THE RELATIONSHIP BETWEEN DR. MERCADO AND THE PRESIDING ARBITRATOR DOES NOT GIVE RISE TO A CONFLICT OF INTEREST AND NEEDS NOT DISMISS FROM THIS ARBITRATION

A. The Presiding Arbitrator and Dr. Mercado’s teaching at the same university do not constitute a conflict of interest that gives rise to a justifiable doubt

B. The Presiding Arbitrator and Dr. Mercado’s encounters in previous arbitrations does not constitute a conflict of interest that gives rise to a justifiable doubt

C. The alleged relationship between Dr. Mercado and the Presiding Arbitrator’s wife and children does not constitute a conflict of interest that gives rise to a justifiable doubt

II. THE TRIBUNAL LACKS EITHER EXPRESS OR IMPLIED AUTHORITY TO REMOVE COUNSEL FROM THIS ARBITRATION

A. The Tribunal has no express authority, under the parties’ agreement, the Model Law and CIETAC Rules

B. The Tribunal has no implied authority to remove counsel in the absence of compelling and extraordinary circumstances

III. INSTEAD OF CIRCUMVENTING THE PROPER PROCEDURE

BY CHALLENGING DR. MERCADO, RESPONDENT SHOULD

HAVE CHALLENGED THE PRESIDING ARBITRATOR BEFORE

THE CHAIRMAN OF CIETAC ARGUMENT ON LIABILITY

ARGUMENT ON LIABILITY

IV. RESPONDENT FUNDAMENTALLY BREACHED ITS OBLIGATION TO DELIVER THE GOODS BY THE DATE SPECIFIED IN THE CONTRACT

A. Respondent had a contractual obligation to meet the delivery date of 12 November, 2010 under Art. 33(a) CISG, and was not granted any extension of the delivery date

B. Respondent’s failure to deliver by the contractual date amounted to a fundamental breach of contract under Art. 25 and Art. 45(1) of the CISG.

V. RESPONDENT CANNOT BE EXCUSED FROM ITS BREACH OF CONTRACT BY ART. 79 CISG DUE TO ANY IMPEDIMENT BY SPECIALTY DEVICES

A. Specialty Devices is not a “third-person” that exempts Respondent from liability through impracticability under Art. 79(2) CISG

B. Alternatively, Respondent is not entitled to exemption under Art. 79(2) CISG, because Specialty Devices could have foreseen or avoided the impediment

1. Specialty Devices should and could have avoided the impediment by insisting that High Performance allocate the D-28 chips to Specialty Devices

2. Specialty Devices failed to overcome the impediment by having High Performance supply the D-28 chips before the fire occurred

VI. RESPONDENT CANNOT BE EXCUSED FROM ITS LIABILITY UNDER ART. 79 CISG DUE TO ITS OWN FAILURE TO OVERCOME THE IMPEDIMENT

VII. IN ABSENCE OF EXCUSE FOR NONPERFORMANCE, RESPONDENT IS STRICTLY LIABLE FOR FAILURE TO PERFORM BY THE CONTRACTED DATE

ARGUMENT ON DAMAGES

VIII. CLAIMANT IS ENTITLED TO FULL DAMAGES UNDER ART. 74 CISG AS IT ACTED REASONABLY

A. Claimant is entitled to USD 448,000 as charter hire of a substitute vessel because it is a reasonable compensatory damage

B. Claimant is entitled to recover USD 60,600 for the standard yacht broker commission of 15 % of the rental cost of the M/S Pacifica Star and USD 50,000 for the yacht broker’s success fee which Elite paid on the top of commission because they are reasonable incidental damages

C. Claimant is entitled to USD 112,000 paid to Corporate Executives to make a partial refund of the conference fee paid by its members because it is reasonable consequential damage

IX. CLAIMANT’S DAMAGES ARE NOT TAINTED BY THE BROKER’S CONDUCT BRIBING THE ASSISTANCE OF THE OWNER OF SUBSTITUTE VESSEL AS THE CLAIM HAS NO LEGAL BASIS

A. CIETAC does have jurisdiction to decide the effects of bribery as it arose in connection with the contract

B. Claimant has not violated Article 1453, and no one else’s violations are imputable to it, and its damages are all compensable.

Date: 2016-01-14; view: 831