Madame/ Mister presiding arbitrator, members of the
tribunal.
Good Afternoon,
My Name is Mahendra Danny Setyoko
Today, I will Represent my client as Claimant
“never Idealize others. They will never live up to your
expectation”, a reflection of of my Client’s 150 years of hard work through generations serving the royal family, conglomerates and celebrities gets obliterated by the action from respondents.
Members of the tribunal,
In the next 14 minutes I will adress procedural and merits issue, each divided into 7 minutes.
The two main submussions are, first on the jprocedural
issue, Second Respondent is bound by the arbitration agreement. Second on the merits issue, There is a breach of contract made by First Respondent, thus it also liable to pay the damages.
In the end, I will spare the last minute for my rebuttle
For the procedural issue,
Firstly, article 27 HKIAC that is the choice of arbitration
rule provides that quote” the tribunal have the power to allow an additional party to be joined to the arbitration provided that, prima facie, the additional party is bound by an arbitration agreement under these rules giving rise to the arbitration.”
Arbitration agreement is contractual in nature, however,
it doesn’t mean that the obligation only follows the one who sign the arbitration agreement. This notion is supported by Option II of article 7 UNCITRAL Model law that has been adopted by Danubia, which is the seat of this arbitration, this provision provides that an arbitration agreement doesn’t need to be contractual. This implies that consent is the main foundation of an arbitration.
Second Respondent’s conduct was an expression of
impled consent to be bound by the arbitration agreement.
Second respondent intentionally participated in the
performance of the contract by producing and carrying the goods, and implicitly consented to the arbitration Societe V 2000 against Societe Project agreement. XJ 220 ITD, (1996)
Second Respondent acts as a mediator between My Court declined jurisdiction to hear a
client and First Respondent, showing significance in the suit brought by the French purchaser conclusion of the contract. If there is no Direction from of a car from an English company, Second Respondent, there will be no contract of sale where the purchaser was also suing between my client and First Respondent. the French distributor. There was an arbitration agreement in the Furthermore,Second Respondent was directly involved in purchase agreement between the the performance of the sale contract, not only as the English company and the purchaser, original manufacturer of the Dinner jackets but also by but the French distributor was not a agreeing to undertake the reproduction of the dinner signatory. However, both before and jackets when it got destroyed. after signing the contract the purchaser had dealt with the French Members of the tribunal, distributor as intermediary in the transaction. The Court held that the May I direct you to page 11, claimants exhibit number 4, effects of the arbitration clause extend to parties directly involved in Inside this notice of the incident, Mr Ferry Baiynd shows the performance of the contract, the complete reliance of performance to Second provided that the actions and Respondent, quote “ we are, as a sign of good faith surrounding circumstances raise the willing to coordinate with TKH in order to reproduce the presumption that they were aware of goods exatly for you”. the existence and scope of the From this series of facts, a reasonable observer would arbitration clause. interpret that Second Respondent is the one who have bigger significance in the contract rather than First Similarities: Second Respondent is a Respondent. non-signatory Second respondent was also the It is important to note that Second Respondent had been intermediary in the transaction involved in the sale of the dinner jackets from its Second respondent was also directly beginning. In fact, Second Respondent was directly and involved in the performance of the significantly involved in the contract, and this contract of sale. involvement was undertaken in full knowledge of the arbitration agreement. Obviously, Second Respondent Difference: non-signatory in this case Viewed itself as being engaged in a commercial is the one who apply for joinder relationship with Claimant framed by the contract of sale that contains the arbitration agreement. Thus, Second Significance: the indication of implied Respondent must be considered to be bound by the consent to be bound by the agreement to arbitrate arbitration is from the significant involvement of the non-signatory in the contract, provided that nthey were aware of the existence and scope of the arbitration clause. Moving on the merits issue,
Opposing council claims that the Lost-In-Hole provision is
not a valid waiver of article 79, and also if it is applicable then the condition precedent is not fulfilled thus it is exempted from article 79 CISG.
Firstly, Article 6 CISG provides that the parties in the
contract may not apply a part or all of the provision in CISG. Moreover, Article 11 of CISG provides that “a contract of sale need not be concluded in or evidenced by writing and is not subject to any other requirement as to form. It may be proved by any means”
By that, the agreed intention of the parties is the
essential consideration of this issue.
My client requires that if First Respondent is going to ship
and carry the goods themself, then they are required to agree on the Lost-In-Hole provision. This is a form of offer pursuant to article 14 CISG.
This requirement is offered to First Respondent due to
the need of flawless transaction as my Client’s reputation is on the stake.
First Respondent then agree to the the Lost-In-Hole
provision by signing the contract and this shows acceptance pursuant to article 18 CISG.
The Lost-In-Hole itself contains the phrase “irres pective
of cause and negligence”. A reasonable third party would understand the meaning of that phrase also includes unavoidable impediment that is being exemption in article 79 CISG. By this, there are agreed intention of the parties to waive article 79 CISG. Thus, the Lost-In-Hole provision is a valid waiver of article 79 CISG.
Moving on,
The condition precedent is fulfilled and thus, Lost-In-Hole
provision applies.
The nature of The LIH Provision is about allocation of risk
from the seller to the buyer. Article 67 regulates contract of sales that involve carriage, in which is the present case.
Yes, there is no particular place that First Respondent
bound to deliver thus, making the passing of risk to my client is when the seller hand over the goods to the first carrier.
However, article 67 paragraph 2 states “nevertheless, the
risk does not pass to the buyer until the goods are clearly identified to the contract, whether by markings of the goods, by shipping documents, by notice given to the byuer or otherwise.” Meaning that the risk passes the moment the seller send the buyer a notice of the consignment which specified the goods. [Secretariat Commentary; Guide to CISG Article 67].
In this present case, there is no notice of consigment
given by First Respondent to my client, therefore the risk has not pass to my client and is still on first respondent.
This means that, the condition precedent of the LIH
provision that state “..while in the wellbore, in transport, or in the care of TKE..” has been fulfilled, as the risk is still on first respondent. This implies that the goods are still in the wellbore, in transport, or in the care of First Respondent. Thus First Respondent is liable to pay for the damages.
Alternatively,
Even if LIH Provision do not apply, First Respondent
cannot be exempted from liability under article 79 CISG.
First Respondent obliged to deliver the goods to claimant
but failed to do so by the incident that happens to the vessel that carries the goods. Therefore, it can be considered that First Respondent is a non-performance party.
To be exempted from liaility, respondent must prove all
elements in article 79 CISG. Including the existence of impediment beyond his control, the unforeseeability of the impediment at the time of conclusion of the contract.
In this case, Respondent failed to make a reasonable
effort to avoid or overcome the impediment.
Respondent have been given the geographical and
weather report before the RORO Vessel departed.
Moreover, in the accident report, it shows that
alternative route is possible, however time inefficient and the anticipation posibbility rate is 65%, a relatively high possibility to overcome the impediment. Thus, this means that Respondent did not reasonably overcome the impediment with all its power.
This argument is supported by the rejected insurance
claim that is alleged by Respondent to BJSP that states “they found that it was human error which caused the incident which could foresee the explosion of the volcano”.
By that, Respondent does not exempted from article 79
meaning that it is liable to pay for the damages.
From those two arguments, My client respecfully request
the tribunal to find that:
First, Second respondent is bound by the arbitration
agreement contained in the contract of sale;
Second, The Lost-In-Hole provision inside the contract
binds first respondent and is liable to pay for the damages.
Alternatively,there is a breach of contract by respondent
and thus not exempted from its liability under article 79 CISG
Third Division January 10, 2018 G.R. No. 225735 PEOPLE OF THE PHILIPPINES, Plaintiff-Appelle BELEN MEJARES Y VALENCIA, Accused-Appellant Decision Leonen, J.