2 ND J USTICE R.K.

TANKHA M EMORIAL INTERNATIONAL ARBITRATION M OOT COURT C OMPETITION , 2017

19A

IN THE MATTER OF ARBITRATION BEFORE THE

AD-HOC ARBITRAL TRIBUNAL

AT THE HAGUE

M/S BUSINESS SOLVABLES CLAIMANT

AGAINST

REPUBLIC OF BATH-LA RESPONDENT-I

M/S NAKSHA AND TRASAN RESPONDENT-II

MEMORIAL FOR CLAIMANT

-TABLE OF CONTENTS- -CLAIMANT -

TABLE OF CONTENTS

TABLE OF ABBREVIATIONS ....................................................................................................iii

INDEX OF AUTHORITIES .......................................................................................................... v
STATEMENT OF JURISDICTION ............................................................................................. xiv
STATEMENT OF FACTS ........................................................................................................... xv
ISSUES RAISED ...................................................................................................................... xvii
SUMMARY OF ARGUMENTS ................................................................................................ xviii
PLEADINGS ................................................................................................................................ 1
I.THE TRIBUNAL HAS THE REQUISITE JURISDICTION ...................................... 1

[I-A]The arbitration agreement has not been rendered null, void and inoperable. ............ 1

i.The jurisdiction is not barred by the non-compliance of the contractual time limit. .. 1

ii.The Claimant has not submitted to the National Court of Bath-La............................ 3

[I-B]The arbitral tribunal has jurisdiction over the said dispute. ....................................... 4

[I-C]The two arbitration agreement can be arbitrated together. ........................................ 5

II.THERE IS A VALID CONTRACT BETWEEN THE PARTIES FOR THE

LICENSE NUMBER 1983/11/21. M/S NAKSHA IS RESPONSIBLE FOR MISUSE
OF THE SAME .................................................................................................................... 5

[II-A]The claimant submits that the contract of sale of goods between the parties will be
governed by CISG.............................................................................................................. 6

i.There is complementarity and link between the two agreements. ............................... 6

ii.The parties to the contract have opted-in CISG as the applicable law. ..................... 7

iii.The sale of software comes under the ambit of Goods in CISG. ............................ 7

[II-B]There exists a valid contract between the party for the License No. 1983/11/21..... 8

[II-C]M/s NakSha is responsible for misuse of License No.- 1983/11/21. ....................... 9

[II-D]There is a fundamental breach of the contract by the respondents. ....................... 10

III. DEMONETIZATION BY THE RESPONDENT-I CAN BE CONSTRUED AS

EXPROPRIATION............................................................................................................ 11

MEMORIAL for THE CLAIMANT

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[III-A]The Arbitral Tribunal has the jurisdiction to decide on the matter of expropriation
11

[III-B]The actions of the respondent herein question can be construed as expropriation for
which the latter is liable to pay damages to the former ................................................... 12

i.The act of the Respondent amounts to Indirect Expropriation .................................. 12

ii.The Respondent cannot justify their acts by stating that they were non-
discriminatory regulatory actions: .............................................................................. 13

PRAYER ................................................................................................................................... 15

MEMORIAL for THE CLAIMANT

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-TABLE OF ABBREVIATIONS- -CLAIMANT -

TABLE OF ABBREVIATIONS

ABBREVIATIONS WORDS

Art./Arts. Article/Articles
A.C. Appeal Cases
Anr. Another
Arb. Arbitration
App. Appeal
Assocs. Associates
Co. Company
Ct. Court
Ed./Eds. Edition/Editions
F. Supp. Federal Supplement
F.2d Federal Reporter Second
F.3d Federal Reporter Third
HK Hong Kong
Honble Honourable
i.e. Id est [that is]
ICC International Chamber of Commerce
ICSID International Centre for Settlement of Investment Disputes
I.L.R. International Law Reports
Infra. See [below]
Id Idem [the same]
Intl International
Ltd. Limited
L.J.R. Law Journal Reports
No. Number
N.S.W.L.R New South Wales Law Reporter
Ors. Others
Pvt. Private
p. Page
/ Paragraph(s)
MEMORIAL for THE CLAIMANT
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-TABLE OF ABBREVIATIONS- -CLAIMANT -

Rep. Reporter
S.Ct. Supreme Court
Supp. Supplement
Supra See [above]
/ Section/Sections
UNCITRAL United Nations Commission on International Trade Law
U.S. United States
U.S.D. United States Dollar
U.K.S.C. United Kingdom Supreme Court
UNCISG United Nations Convention on Contracts for the International
Sale of Goods
v. versus
Vol. Volume
Y.B. C. A. Yearbook Commercial Arbitration
Y.B.W.A. Yearbook of World Affairs

MEMORIAL for THE CLAIMANT

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-STATEMENT OF J URISDICTION - -CLAIMANT -

INDEX OF AUTHORITIES

STATUTES AND CONVENTIONS

BIBLIOGRAPHICAL INFORMATION REFERRED TO IN :

1. CISG: UN CONVENTION ON CONTRACTS FOR 6,7,8,10,11

INTERNATIONAL SALE OF GOODS, 1980

2. NEW YORK CONVENTION, 1958. xv

3. UNCITRAL MODEL LAW, 2006 3

ICC CASES

BIBLIOGRAPHICAL INFORMATION REFERRED TO IN :

Award in I.C.C. case no. 7154, 121 (Clunet) 1059 (1994). 7

ICSID CASES

BIBLIOGRAPHICAL INFORMATION REFERRED TO IN :

A.D.C. Affiliate Limited and A.D.C & A.D.M.C. Management 14

Limited v. Hungary, Award, I.C.S.I.D. Case No. ARB/03/16, IIC 1
(2006).

Award in I.C.S.I.D. Case No. ARB. (AF)/00/2, 43 I.L.M. 133 [2004]. 13

Biwater Gauff v. Tanzania (n 25) 343. 3

Metalclad Corp. v. Mexico, Award, I.C.S.I.D. Case No. 12

ARB(AF)/97/1, 5 I.C.S.I.D. Reports (2002) 209 (August 30, 2000).

Tcnicas Medioambientales Tecmed, S.A. v. The United Mexican 13

States, Award, I.C.S.I.D. Case No. ARB (AF)/00/2, 115, 43 I.L.M.
(2004) 133(May 29, 2003).

MEMORIAL for THE CLAIMANT

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NAFTA CASES

BIBLIOGRAPHICAL INFORMATION REFERRED TO IN :

Methanex Corporation v. United States of America, Award, 44 I.L.M. 13

(2005) 1345 (August 3, 2005) (Ad Hoc Tribunal UNCITRAL).

AUSTRALIA CASES

BIBLIOGRAPHICAL INFORMATION REFERRED TO IN :

Multiplex Construction Pty. Ltd. v. Suscindy Management Pty. Ltd., 2

[2000] N.S.W.S.C. 484 (Supreme Court New South Wales).

AUSTRIA CASES

BIBLIOGRAPHICAL INFORMATION REFERRED TO IN :

[2011] 1R 181/10h. 11

[2011] 3 R 227/11v. 12

[2012] 3 R 192/12y. 11

[2013] 5 R 62/13x 11

CANADA CASES

BIBLIOGRAPHICAL INFORMATION REFERRED TO IN :

Thyssen Canada Ltd. v. Mariana, [2000] 3 F.C. 398 (Canadian Fed. 2

Ct. App).

FRANCE CASES

BIBLIOGRAPHICAL INFORMATION REFERRED TO IN :

[2014] 12-27188 10

Socit Sorvia v Weinstein International Disc Corp. [1983] Rev. Arb. 11

363 (1984) 365

MEMORIAL for THE CLAIMANT

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Socinter v. Wallace Corporation Ltd., [2013] 12-23998 7

UNI-KOD Sarl v. Quralkali, XXVI Y.B.C.A. 1136 (2001) 1138 7

GERMANY CASES

BIBLIOGRAPHICAL INFORMATION REFERRED TO IN :

[1996] 8 Z.R. 306/95. 8

[2006] 85 O 200/05. 10

[2009] 32 O 102/07. 9

[2012] VIII ZR 337/11. 12

[2014] VIII ZR 410/12. 11

[2015] 7 U 26/15. 8

HONG KONG CASES

BIBLIOGRAPHICAL INFORMATION REFERRED TO IN :

[1995] 8 H.K.O 24667/93. 8

Astel-Peiniger Joint Venture v. Argos Engineering & Heavy Indus Co. 2

Ltd. [1994] H.K. C.F.I. 276 (Hong Kong Ct. First Inst).

Fai Tak Engineering Co. Ltd. v. Sui Chong Construction & 2

Engineering Co. Ltd. [2009] H.K.D.C. 141 (H.K. Dist. Ct).

Hercules Data Communications Co. Ltd. v. Koywa Communications 2

Ltd. [2001] H.K. C.F.I. 71 (Hong Kong Ct. First Inst.).

THE NETHERLANDS CASES

BIBLIOGRAPHICAL INFORMATION REFERRED TO IN :

[1996] Princen Automatisering Oss B.V. v. Internationale Container 8

Transport GmbH, 770/95/HE.

[2013] C/10/409349 / HA ZA 12-830 11

MEMORIAL for THE CLAIMANT

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-STATEMENT OF J URISDICTION - -CLAIMANT -

[2014] H.D. 200.091.830/01 11

[2015] 200.141.228/01. 11

[2015] TNO v. ZygoLOT GmbH, C/09 471 317/ H.A. Z.A. 14-934. 9

Corporate Web Solutions Ltd. V. Vendorlink B.V., HA ZA 14-217 2015 11

M-Trade LTD v. Europa B.V., [2014] H.D. 200.063.486/01 11

Powergen SRL v. Unknown, [2012] 384833/ H.A. Z.A. 11-1801 12

Scheldebouw B.V. v. Hero GlasGmBH, [2014] C/03/173844/ H.A. Z.A. 12

12-325

Unknown v. Herotec Flachenheizung GmbH, [2012] 200 086 453/01 12

Vadagro B.V.B.A. v. Clean Mat Trucks B.V., C/05/253028/HA Z.A. 11

13-723 2015.

RUSSIA CASES

BIBLIOGRAPHICAL INFORMATION REFERRED TO IN :

[2004] 39/2003. 11

[1996] 378/1995. 9

[2005] 75/2004. 10

[1994] 200/1994 10

SPAIN CASES

BIBLIOGRAPHICAL INFORMATION REFERRED TO IN :

[2014] 262306/2014. 9

Hoogendik Import/ Export B.V. v. Blue Marine Fish International, SL 10

[2014] 336058/2013

SWITZERLAND CASES

MEMORIAL for THE CLAIMANT

[viii]
-STATEMENT OF J URISDICTION - -CLAIMANT -

BIBLIOGRAPHICAL INFORMATION REFERRED TO IN :

[2015] 4A_614/2014. 11

[2011] 29 A.S.A Bull 643, 651 et seq (Swiss Federal Tribunal). 2

Judgment of 15 March 1999, (2002) 20 A.S.A. Bull 373, 374 2

(Kassationsgericht Zrich).

UNITED STATES OF AMERICA CASES

BIBLIOGRAPHICAL INFORMATION REFERRED TO IN :

[2000] 19 October 2000, 16 Sch1/2000. 6

424 West 33rd Street L.L.C v. Planned Parenthood Federation of 2

America [2010] 78 A.D.3d 484 (2010) 911 N.Y.S.2d 46

Certain underwriters at Lloyds et al. v. Bristol-Myers Squibb Co et al., 4

XXV Y.B.C.A. 968 (2000) 22-41 (9th District, Texas Court of
Appeals).

Commerce Park at D.F.W. Freeport v. Mardian Constr. Co., 729 F.2d 3

334, 339 n.5 (5th Cir. 1984).

Consorcio Rive S.A. de C.V. v. Briggs of Cancun Inc et al., 16(5) 2

Mealey's I.A.R. C. 1 (2001) C. 5-6 (District Court for the Eastern
District of Louisiana).

County of Durham v. Richards & Association [1984] 742 F.2d 811, 815 3
(4th Cir. 1984).

D & G Group, S.R.I. v. H.A. Import USA, et al., [2015] 14-CV-2850 12

(T.P.G.)

Doctors Assocs., Inc. v. Distajo [1995] 66 F.3d 438 (2d. Cir. 1995). 3

Ehleiter v. Grapetree Shores, Inc., 482 F.3d 207 (3d Cir. 2007). 3

In re Eimco Corporation [1957], 163 N.Y.S.2d 273, 282 (N.Y. 1957).

MEMORIAL for THE CLAIMANT

[ix]
-STATEMENT OF J URISDICTION - -CLAIMANT -

JJ Ryan & Sons, Inc v. Rhne Poulenc Textile S.A. et al. [1988], 863 F 7
2d 315, XV Y.B.C.A. 543 (1990) 547 et seq (4th Cir 1988).

John Wiley & Sons. Inc v. David Livingston, etc. [1964] 376 U.S. 543 1
(84 S. Ct. 909, 11 L.Ed.2d 898).

Khan v. Parsons Global Servs., Ltd., 480 F.Supp.2d 327, 332 (D.D.C. 3
2009).

Moses H. Cone Mem. Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24- 5
25 (1983).

Pasta Zara S.p.A. v. United States, American Italian Pasta Company, et 9

al., [2010] 09-00001.

U.K. CASES

BIBLIOGRAPHICAL INFORMATION REFERRED TO IN :

Marc Rich & Co. A.G. v. Societa Italiana Impianti P.A. (The Atlantic 11
Emperor No 2), [1992] 1 Lloyds Rep 624 (C.A.).

BOOKS

BIBLIOGRAPHICAL INFORMATION REFERRED TO IN :

BERNARD HANOTIAU, COMPLEX ARBITRATIONS: MULTIPARTY, MULTI- 5

CONTRACT, MULTI-ISSUE AND CLASS ACTIONS 281 (Kluwer Law
International, 2006).

CAMILLA B. ANDERSEN & ULRICH G. SCHROETER eds., SHARING 8

INTERNATIONAL COMMERCIAL LAW ACROSS NATIONAL BOUNDARIES:
FESTSCHRIFT FOR ALBERT H. KRITZER ON THE OCCASION OF HIS

EIGHTIETH BIRTHDAY 512-526 (Wildy, Simmonds & Hill Publishing,

2008)

HILMAR RAESCHKE-KESSLER AND KLAUS PETER BERGER, RECHT UND 7

PRAXIS 277 (R.W.S.B.L.G. Communication Forum, 4th ed. 2012).

MEMORIAL for THE CLAIMANT

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-STATEMENT OF J URISDICTION - -CLAIMANT -

ISAAK MEIER, SWISS CIVIL PROCEDURE LAW (Schulthess 2010) 598. 2

IV KRITZER AND EISELEN, INTERNATIONAL CONTRACT MANUAL, 6

81:48, (Thomson Reuters/West 2013).

JULIAN D.M. LEW, LOUKAS A. MISTELIS AND STEPHEN MICHAEL 4

KRLL, Comparative International Commercial Arbitration, 161,
(Kluwer Law International, 2003).

RENE DAVID, ARBITRATION IN INTERNATIONAL TRADE, 227 (Springer 7

Netherlands, 1985).

RUDOLPH DOLZER AND CHRISTOPH SCHREUER, PRINCIPLES O F 13

INTERNATIONAL LAW 92 (2008).

STEFAN MICHAEL KRLL, JULIAN D. M. LEW, LOUKAS A. MISTELIS, 6

COMPARATIVE INTERNATIONAL COMMERCIAL ARBITRATION 7-44 to 45
(Wolters Kluwer, 2003).

ARTICLES

BIBLIOGRAPHICAL INFORMATION REFERRED TO IN :

C. Schreuer, Non-Pecuniary Remedies in I.C.S.I.D. Arbitration, 20 14

ARBITRATION INTERNATIONAL 325 (2004).

Doug Jones, Dealing with multi-tiered dispute resolution process, 75(2) 2

Arbitration: The International Journal of Arbitration, Mediation and
Dispute Management 188-198 (2009).

Frank Diederich, The CISG and Computer Software Revisited, 6 8

Vindobona J. Intl Com. L. & Arb. Supp. 55-57 (2002).

Frank Diedrich, Maintaining Uniformity in International Uniform Law 7

via Autonomous Interpretation: Software Contracts and the CISG,
8 Pace International Law Review 303 at 336, (1996).

Gary Born, Marija eki, Pre-Arbitration Procedural Requirements A 2

Dismal Swamp in David D. Caron Practising Virtue: Inside

MEMORIAL for THE CLAIMANT

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-STATEMENT OF J URISDICTION - -CLAIMANT -

International Arbitration Oxford University Press, p. 228, 234-235

(2015).

Geoffrey Thomas, U.N. Convention on the International Sale of Goods 7

(CISG) (2nd ed. translated by} Oxford: Clarendon Press 23.

L.B. Sohn and R.R. Baxter, Responsibility of States for Injuries to the 13
Economic Interests of the Aliens, 55 AMERICAN JOURNAL OF
INTERNATIONAL LAW 545, 553 (1961).

Luca G. Castellani, Promoting the adoption of the United Nations 8

Convention in CISG, 13 Vinobona Journal of Intl Comm. Arb. 241-248
(2009).

TREATIES

BIBLIOGRAPHICAL INFORMATION REFERRED TO IN :

Malaysia U.K. BIT (1981). 12,14

MISCELLANEOUS

BIBLIOGRAPHICAL INFORMATION REFERRED

TO IN:

United Nations Convention on Contract for The International Sale of Goods 6

(Vienna, 1980) (CISG)
Available at
http://www.uncitral.org/uncitral/en/uncitral_texts/sale_goods/1980CISG.html
(last visited Feb. 7, 2017).

Zhejiang Henghao Garment Co. Ltd. v. Trio Selection Inc. [2008] 9

M.A.L.E.V. Hungarian Airlines v. United Technologies International Inc. 8

Pratt & Whitney Commercial Engine Business [1992] 3.G.50.289/1991/32.

[2008] T-8/07 (Serbia). 9

[2010] T-10/09 (Serbia) 11

MEMORIAL for THE CLAIMANT

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Castel Electronics Pty. Ltd. v. Toshiba Singapore Pte. Ltd., [2010] V.I.D. 141 11
of 2008 (Singapore).

[2008] 1Cpg 951/2006 (Slovenia). 8

MEMORIAL for THE CLAIMANT

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-STATEMENT OF J URISDICTION - -CLAIMANT -

STATEMENT OF JURISDICTION

M/s Business Solvables, the Claimant has the honour to submit the present dispute and its
memorandum before this Honble Ad- hoc Arbitral Tribunal having its seat at The Hague, The
Claimant further invokes the jurisdiction of this tribunal as per the contract entered into by the
Claimant and Bath-La and M/s NakSha and TraSan.

The agreement posited Ad-hoc Arbitration before an international tribunal as the sole
dispute resolution mechanism, and accepted the UNCITRAL as the applicable putative law1

The Claimant has invoked the arbitration pursuant to the above cited arbitration agreement
arising out of misuse of License No. 1983/11/21 by the Respondent-II and violation of the
investment treaty by the Respondent-I.

1
Moot Proposition, p. 2 ( 7).
MEMORIAL for THE CLAIMANT
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-STATEMENT OF FACTS- -CLAIMANT -

STATEMENT OF FACTS

BACKGROUND

NakSha and TraSan, citizens of the Commonwealth of Bath-La entered into a partnership
named M/s NakSha & TraSan on 24.1.2015. The Firm had bought a server and deployed their
applications on the Sumner Notes (similar to Kubernetes).

CONTRACT I

This contract is between M/s Business Solvables and NakSha & TraSan wherein Business
Solvables made a huge investment for 25 years. The agreement posited Ad-hoc Arbitration,
and accepted the UNCITRAL as the applicable law. The seat of the Tribunal was contemplated
at The Hague and both parties assented to resorting to the New York convention for all
purposes.

CONTRACT II

Bath-La entered into a tri-partite sovereign support agreement with M/s Business Solvables
and the Firm for TRally software which had investment protection clauses as per the Malaysia-
UK BIT (1981). It had a limitation clause, which required invocation of dispute resolution
mechanisms in no case later than 189 days.

DISPUTE

Container was opened by the Customs officials of Bath-La; Mr. Sha got hold of a package
which was printed in Mandarin unlike the others which were in English. He took out the CD,
ran it on his handheld Linux notebook computer, which had no anti-virus software or licensed
Operating System. It reached the EULA page and asked for an internet connection. He
connected to the internet, and again kept on clicking OK in rapid pace. Ultimately, he reached
the ERP front face of the software, and was very pleased to operate it. In the meanwhile, the
Customs officials sounded an alert that the container contained some boxes which were pirated.
Mr. NakSha immediately decided to send the consignment back to M/s Business Solvables.

INVOCATION OF ARBITRATION

MEMORIAL for THE CLAIMANT

[xv]
-STATEMENT OF FACTS- -CLAIMANT -

On or about 23rd February 2016, Mr. NakSha received a notice from the office of Kahn,
Bachh & Puch, law firm invoking Arbitration and nominating Ms Adma Riya as their
Arbitrator. A similar notice was issued to Bath-La, raising a grievance against the denial of
Return-of-Investment as per the Sovereign Support Agreement which was demanded by M/s
Business Solvables on 21.9.2015 and rejected by Bath-La on 10.1.2016. In response, M/s
NakSha & TraSan nominated Ms. San Cheti as their Arbitrator. The two arbitrators met in last
week of February 2016 and decided on Ms. Al Uma as the third and presiding arbitrator

INTERIM MEASURES

The Firm, instituted a suit in the original side of the Link High Court, in Bath-La; making Bath-
La and M/s Business Solvables as the 1st and the 2nd Defendant respectively praying for
declaration that no contract exists for License Number-1983/11/21 between the parties and to
pass an anti-suit injunction against Defendant no. 2, including a prohibition to invoke any
BIT/WTO/Arbitral proceedings. Bath-La was allowed to delete its name from the defendant.
Further, as an interim measure, the Court ordered M/s NakSha & TraSan to pay the amount
claimed in cash. M/s NakSha & TraSan delivered the requisite amount in cash. However, on
the night of 8.11.2016 at 8 pm, demonetization was imposed by Bath-La, which resulted in all
currency given to M/s Business Solvables ceasing to be legal tender. M/s Business Solvables
prayed that as there exists Arbitration as the sole dispute resolution mechanism, the court may
refuse jurisdiction. In the alternative, they asked to uphold the validity of contract for the said
License number and grant damages to the tune of the cumulative price of the exact number of
copies pirated. The High Court rejected the first prayer of M/s Business Solvables, and decided
to proceed with the merits of the case.

APPEAL TO SUPREME COURT

The Claimant prayed that the Ad-Hoc Tribunal is competent to rule on its jurisdiction and
therefore the proceedings before the High Court must be stayed. Leave was granted to
Claimant to appeal, and this prayer was accepted by the Supreme Court granting a stay for
twenty weeks, for the Ad Hoc Tribunal to rule on its jurisdiction.

MEMORIAL for THE CLAIMANT

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-ISSUES RAISED- -CLAIMANT -

ISSUES RAISED

I. Whether the Ad-Hoc Tribunal has the Requisite Jurisdiction?

II. Whether There Exists Any Contractual Obligation for The License Number 1983/11/21?

III. Whether Demonetization has amounted to Expropriation?

MEMORIAL for THE CLAIMANT

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-SUMMARY OF ARGUMENTS - -CLAIMANT-

SUMMARY OF ARGUMENTS

I. THE TRIBUNAL HAS THE JURISDICTION OVER THE SAID DISPUTE

It is submitted before this honourable Arbitral Tribunal that the Tribunal has jurisdiction over
the said dispute because, the arbitration agreement has not been rendered null and void and
inoperable of being performed.
Firstly, the parties cannot be barred from arbitration on the grounds of mere non-compliance
with a procedural requirement of the contractual time limit. It has been decided in various cases
that the non-compliance with the pre-arbitral procedural requirements does not bar the claimant
from proceeding with the arbitration.
Secondly, the Claimant has not submitted to the national courts of Bath-La, hence no question
of waiver arises before this Arbitral Tribunal. It was the Respondents who initiated the
litigation. The Claimants had only prayed for grant of interim relief. Moreover, even if the
claimants have waived off the right to arbitrate, the requisite and forum for deciding the same
does not rest with the Arbitration Tribunal.

II. THERE EXISTS A VALID CONTRACTUAL OBLIGATION FOR THE

LICENSE NUMBER 1983/11/21

There is a valid contract between the parties for license number 1983/11/21 and M/s NakSha
is responsible for the misuse of the same license number.
Firstly, The Claimant submits that the contract of sale of goods of the party will be governed
by CISG as there is complementarity and link between the two agreements as the parties to the
contract are same and because of the investment agreement between the parties, the import in
the country take place. The parties to the contract opt- in CISG as an applicable law as they
have agreed to UNCITRAL law as the applicable putative law.
Secondly, the sale of Software comes under the definition of goods under CISG as it is
established that despite of non- physical existence and different appearance it cannot be ruled
out from the ambit of CISG.

MEMORIAL for THE CLAIMANT

[xviii]
-SUMMARY OF ARGUMENTS - -CLAIMANT-

Lastly, there is a Fundamental Breach of the Contract by the Respondents as because of their
rash & negligent act, there caused a very huge loss in the revenue of the Claimants and also it
led to their legitimate business coming to a halt and their revenue dipped by 90%.

III. DEMONETIZATION HAS AMOUNTED TO EXPROPRIATION.

The Claimant submits that the Arbitral Tribunal has the jurisdiction to decide the matter of
expropriation. Demonetization by the Respondent-I amounts to expropriation for which the
latter is liable to pay damages to the former.

Firstly, since there is a valid contract between the claimants and the Respondent-I under which
both the parties decided to solve all disputes by way of international arbitration.

Secondly, the act of Respondent amounts to Indirect Expropriation, taking of property includes
not only an outright taking of property but also actions such as unreasonable interference with
the use, enjoyment or disposal of property as to justify an interference that the owner thereof
will not be able to use, enjoy or dispose of the property within a reasonable period of time after
the inception of such interference.

MEMORIAL for THE CLAIMANT

[xix]
-PLEADINGS- -CLAIMANT -

PLEADINGS

I. THE TRIBUNAL HAS THE REQUISITE JURISDICTION

1. It is humbly submitted before this honourable Arbitral Tribunal that the Tribunal has
jurisdiction over the said dispute because, the arbitration agreement has not been
rendered null and void and inoperable of being performed (A), because the parties cannot
be barred from arbitration on the grounds of mere non-compliance with a procedural
requirement of the contractual time limit. Moreover, the Claimant has not submitted to
the national courts of Bath-La. In addition to this, it is necessary to club the two
arbitration (B).

[I-A] THE ARBITRATION AGREEMENT HAS NOT BEEN RENDERED NULL, VOID AND

INOPERABLE.

2. It is submitted before the Arbitral Tribunal the Claimants may have not complied with
the procedural requirement of the time limit of 189 days 2 as entered into by the parties3
but that does not bar the Claimant from proceeding with the arbitration. Moreover, the
Claimant has not submitted before the High Court in Bath-La and thereby they have not
at all waived their right to arbitrate.

i. The jurisdiction is not barred by the non-compliance of the contractual time

limit.

3. The Arbitral Tribunal has the requisite jurisdiction to decide on objections based on non-
compliance with pre-arbitral procedural requirements.4 A parties failure to commence
an arbitration within a contractual time period for doing so cannot result in barring it
from pursuing that claim, for non-compliance with the procedural requirements of the
arbitration agreement, which were mere contractual obligation,5 constitutes only a breach

2
Moot Proposition p. 2 ( 7).
3
Id.
4
John Wiley & Sons. Inc v. David Livingston, etc. [1964] 376 U.S. 543 (84 S. Ct. 909, 11
L.Ed.2d 898).
5
Hercules Data Communications Co. Ltd. v. Koywa Communications Ltd. [2001] H.K. C.F.I.
71 (Hong Kong Ct. First Inst.); See also: Astel-Peiniger Joint Venture v. Argos Engineering
& Heavy Indus Co. Ltd. [1994] H.K. C.F.I. 276 (Hong Kong Ct. First Inst); Doug Jones,

MEMORIAL for THE CLAIMANT

[1]
-PLEADINGS- -CLAIMANT -

of such contractual obligation6 and the parties could be held liable only to the extent of a
breach of such procedural requirements.7 This breach, however, can make the
Respondent-I entitled for damages,8 but cannot preclude a party from commencing
arbitration.9 In general, however, the mere inaction or delay of a party in commencing
the arbitration is not sufficient to be considered as a waiver of the right to arbitrate.10
4. The breach of contract by the Respondent-I was of a continuous nature and the Claimant
could not have apprehended that the continuous loss of revenue was because of the
activities of the Respondent-I. Since, the actions in question are of making copies of a
copyrighted software and uploading it online, the breach of contract cannot be said to be
limited to one event. Hence, the Claimant cannot be said to have overlooked the
limitation period from the date of dispute.
5. It is humbly submitted before the Honourable Arbitral Tribunal that in order to determine
the character of the pre-arbitral procedural requirements as entered into between the
parties, it is the intention of the parties which has to be gauged.11 In order to gauge the
intention of the parties, it is the language of the agreement which has to be seen.12 It is
submitted that the agreement does not specifically provide that the pre-arbitration step of
periodic invocation is a condition precedent or condition, it is less likely to be
characterized as foreclosing access to arbitration if the same is breached.13

Dealing with multi-tiered dispute resolution process, 75(2) Arbitration: The International
Journal of Arbitration, Mediation and Dispute Management 188-198 (2009); ISAAK MEIER,
SWISS CIVIL PROCEDURE LAW (Schulthess 2010) 598.
6
[2011] 29 A.S.A Bull 643, 651 et seq. (Swiss Federal Tribunal).
7
Thyssen Canada Ltd. v. Mariana, [2000] 3 F.C. 398 (Canadian Fed. Ct. App).
8
Fai Tak Engineering Co. Ltd. v. Sui Chong Construction & Engineering Co. Ltd. [2009]
H.K.D.C. 141 (H.K. Dist. Ct).
9
Judgment of 15 March 1999, (2002) 20 A.S.A. Bull 373, 374 (Kassationsgericht Zrich).
10
See Multiplex Construction Pty. Ltd. v. Suscindy Management Pty. Ltd., [2000] N.S.W.S.C.
484 (Supreme Court New South Wales); Consorcio Rive S.A. de C.V. v. Briggs of Cancun
Inc et al., 16(5) Mealey's I.A.R. C. 1 (2001) C. 5-6 (District Court for the Eastern District
of Louisiana).
11
Gary Born, Marija eki, Pre-Arbitration Procedural Requirements A Dismal Swamp in
David D. Caron Practising Virtue: Inside International Arbitration Oxford University
Press, p. 228, 234-235 (2015).
12
Id.
13
In re Eimco Corporation [1957], 163 N.Y.S.2d 273, 282 (N.Y. 1957); 424 West 33rd Street
L.L.C v. Planned Parenthood Federation of America [2010] 78 A.D.3d 484 (2010) 911
N.Y.S.2d 46.

MEMORIAL for THE CLAIMANT

[2]
-PLEADINGS- -CLAIMANT -

6. In one tribunals words, In the Tribunals view, properly construed, this six-month
period is procedural and directory in nature, rather than jurisdictional and mandatory. Its
underlying purpose is to facilitate opportunities for amicable settlement. Its purpose is
not to impede or obstruct arbitration proceedings, where such settlement is not possible.
Non-compliance with the six-month period, therefore, does not prevent this Arbitral
Tribunal from proceeding.14

ii. The Claimant has not submitted to the National Court of Bath-La.

7. It is humbly contended that the Claimant did not ever submit to the jurisdiction of the
Courts. It was actually the Respondent-I who had initiated court proceedings in their
country.15 Moreover, the tribunal does not have the jurisdiction to decide waiver claims.16
The jurisdiction to decide cases of waiver rest with the judiciary17 and not the
arbitrators.18
8. Even if the Tribunal does assume jurisdiction, the Claimant had only asked for interim
relief because of the loss incurred due to the negligence and misuse of the software. It is
submitted that the Claimant was already in a bad financial state19 that the company
(Claimant) were earnestly in need of interim relief. It is pleaded that mere request of
interim reliefs cannot be considered a waiver of the right to arbitrate.20
9. The Claimant had, in their very first counter claim, duly objected to the assumption of
jurisdiction by the Link High Court.21 The Claimant prayed to the High Court to refuse
to assume jurisdiction for there existed another dispute resolution mechanism. Moreover,
when the High Court rejected the first prayer of the Claimant22 and assumed jurisdiction,
it was the Claimant who had appealed to the Supreme Court23 in order to grant a stay in

14
Biwater Gauff v. Tanzania (n 25) 343.
15
Moot Proposition, p. 4 ( 14).
16
County of Durham v. Richards & Association [1984] 742 F.2d 811, 815 (4th Cir. 1984).
17
Doctors Assocs., Inc. v. Distajo [1995] 66 F.3d 438 (2d. Cir. 1995); See also: Ehleiter v.
Grapetree Shores, Inc., 482 F.3d 207 (3d Cir. 2007); Khan v. Parsons Global Servs., Ltd.,
480 F.Supp.2d 327, 332 (D.D.C. 2009).
18
Commerce Park at D.F.W. Freeport v. Mardian Constr. Co., 729 F.2d 334, 339 n.5 (5th Cir.
1984).
19
Moot Proposition, p. 2 ( 6).
20
Art. 9 UNCITRAL Model Law.
21
Moot Proposition, p. 4 ( 17).
22
Moot Proposition, p. 5 ( 18).
23
Id.

MEMORIAL for THE CLAIMANT

[3]
-PLEADINGS- -CLAIMANT -

order to proceed with the arbitral proceedings. It is humbly submitted that the Claimant
did not ever intend to submit to the jurisdiction of the national courts in Bath-La and
abandon the right to arbitration and hence their application for interim measures, et al.
cannot be treated as a waiver of right to arbitrate.24
10. The right to rely on arbitration is lost once the party has taken the first step in the court
proceedings.25 This should be inferred from the conduct of the party which can indicate
its intention to abandon its right to arbitration i.e. when the party defends itself on the
merits of the case.26 The Claimant had explicitly refused the jurisdiction of National
Courts of Bath-La. They prayed to the Courts for refusing to assume jurisdiction27 and
only if the Court refused to consider this prayer, the Claimant prayed for further
proceeding on the merits of the case and thereby declare for the validity of contract, grant
of damages, rearrangement of interim measures in new currency.
11. An explicit step in the proceedings or a statement on the substance of the dispute
towards the proceedings in the court act as requisite parameters for gauging the intention
of the parties.28 For proving a waiver, substantial invocation of the judicial process is a
requisite.29 The Claimant had only demanded interim measures and did nothing that
would amount to invocation of judicial process. Even if there still exist doubts concerning
the scope of arbitrable issues, it should favour the Claimant because any such doubts
should be resolved in favour of arbitration.30

[I-B] THE ARBITRAL TRIBUNAL HAS JURISDICTION OVER THE SAID DISPUTE.

12. It is submitted that the parties, Bath-La, The Firm and M/s Business Solvables have
entered into an agreement which are to be governed by the investment protection clauses
of the Malaysian-UK B.I.T (1981). However, the arbitration clauses provide only for the
investment-protection clauses.31

24
JULIAN D.M. LEW, LOUKAS A. MISTELIS AND STEPHEN MICHAEL KRLL, Comparative
International Commercial Arbitration, 161, (Kluwer Law International, 2003).
25
Id.
26
Marc Rich & Co. A.G. v. Societa Italiana Impianti P.A. (The Atlantic Emperor No 2),
[1992] 1 Lloyds Rep 624 (C.A.).
27
Moot Proposition, (p. 4 17).
28
Supra note. 23.
29
Certain underwriters at Lloyds et al. v. Bristol-Myers Squibb Co et al., XXV Y.B.C.A. 968
(2000) 22-41 (9th District, Texas Court of Appeals).
30
Moses H. Cone Mem. Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24-25 (1983).
31
Moot Proposition, p. 2 ( 7).
MEMORIAL for THE CLAIMANT
[4]
-PLEADINGS- -CLAIMANT -

13. It is contended before this Arbitral tribunal that the agreement entered into between the
parties posits its sole dispute resolution mechanism through ICSID. It is humbly
submitted before this tribunal that the tribunal has jurisdiction over the said dispute.

[I-C] THE TWO ARBITRATION AGREEMENT CAN BE ARBITRATED TOGETHER.

14. It is submitted before this honourable Arbitral tribunal that the two arbitration agreements
have been entered into between the same three parties and there exists undeniable
complementarity and link between the two agreements. However, there is an
unintentional omission of the arbitration agreement in the tri-partite agreement. The
import of software, as postulated in the tri-partite agreement, is based on the agreement
under which M/s Business Solvables agreed for investment.32
15. There are multiple agreements which are closely connected and one can find the origin
of an agreement in the other. Hence, the absence of an arbitration clause in one of the
contracts does not prevent disputes arising from second agreement from being submitted
to an Arbitral Tribunal and decided together.33
16. It is an honest intention of the Claimant to minimize the costs that would be incurred by
the parties. It would certainly prove very costly for both the parties if the different
Respondents tend to adopt different dispute resolution mechanism for disputes which are
closely related and have arisen out of common set of actions taking place in the same
country.

II. THERE IS A VALID CONTRACT BETWEEN THE PARTIES FOR THE

LICENSE NUMBER 1983/11/21. M/S NAKSHA IS RESPONSIBLE FOR MISUSE
OF THE SAME

17. The Claimant submits that the contract of sale of goods of the party will be governed by
CISG as (A.) there is complementarity and link between the two agreements since the
parties to the contract opt- in CISG as an applicable law. The sale of Software comes
under the definition of goods under CISG. There is a valid contract between the parties
for license number 1983/11/21 (B.) and M/s NakSha is responsible for the misuse of the

32
Id.
33
BERNARD HANOTIAU, COMPLEX ARBITRATIONS: MULTIPARTY, MULTI-CONTRACT, MULTI-
ISSUE AND CLASS ACTIONS 281 (Kluwer Law International, 2006)
MEMORIAL for THE CLAIMANT
[5]
-PLEADINGS- -CLAIMANT -

same license number (C.) There is a Fundamental Breach of the Contract by the
Respondents (D.)

[II-A] THE CLAIMANT SUBMITS THAT THE CONTRACT OF SALE OF GOODS BETWEEN
THE PARTIES WILL BE GOVERNED BY CISG

18. The Claimant submits that the contract of sales of goods of the party will be governed by
CISG as the parties to the contract accepted the UNCITRAL as applicable putative law34
in the contract. CISG may apply to a contract for international sale of goods when the
rules of private international law point at the law of a Contracting State as the applicable
one,35 or by virtue of the choice of the contractual parties,36 regardless of whether their
relevant places of business is located in a Contracting State. In this latter case CISG
provides a neutral body of rules that can be easily accepted in light of its transnational
nature and of the wide availability of interpretative materials.37

i. There is complementarity and link between the two agreements.

19. It is submitted that the agreements between the same parties are closely connected and
one finds its origin in the other, or one is the complement38 or the implementation of the
other,39 the absence of an arbitration clause in one of the contracts does not prevent
dispute arising out of two agreements being submitted to an Arbitral Tribunal and
decided together.40
20. There exist a complementarity and link between the two agreements as the first
agreement between Claimant and Respondent-I is related to investment for the
customization of software according to the requirement of the Bath-La and the other i.e.

34
Moot Proposition p.2 ( 7).
35
Article 1 (1) (b), CISG.
36
IV KRITZER AND EISELEN, INTERNATIONAL CONTRACT MANUAL, 81:48, (Thomson
Reuters/West 2013).
37
United Nations Convention on Contract for The International Sale of Goods (Vienna, 1980)
(CISG)
available at http://www.uncitral.org/uncitral/en/uncitral_texts/sale_goods/1980CISG.html
(last visited Feb. 7, 2017).
38
Supra Note 32.
39
STEFAN MICHAEL KRLL, JULIAN D. M. LEW, LOUKAS A. MISTELIS, COMPARATIVE
INTERNATIONAL COMMERCIAL ARBITRATION 7-44 to 45 (Wolters Kluwer, 2003).
40
UNI-KOD Sarl v. Quralkali, XXVI Y.B.C.A. 1136 (2001) 1138; See also: JJ Ryan & Sons,
Inc v. Rhne Poulenc Textile S.A. et al. [1988], 863 F 2d 315, XV Y.B.C.A. 543 (1990) 547
et seq (4th Cir 1988); [2000] 19 October 2000, 16 Sch1/2000.

MEMORIAL for THE CLAIMANT

[6]
-PLEADINGS- -CLAIMANT -

tri-partite sovereign support which is between the Claimant and the Respondents is
related to import of software,41 which was based on the former agreement.42 The import
of the software into the Bath-La was on the Investment agreement signed between the
Claimant and Respondent-I.43

ii. The parties to the contract have opted-in CISG as the applicable law.

21. It is submitted in the previous issue that the contract of the second party will also be
governed by the contractual clauses of the first agreement. Since, in the first agreement,
the parties had agreed to UNCITRAL, the same set of clauses will apply to other
agreement as well. The CISG also applies where the parties in their agreement have so
provided, even though it would not otherwise be applicable under the place of business
or private international law-conflict of laws. If the parties include in their contract a
provision to make the CISG applicable,44 it will be applicable.

iii. The Sale of Software Comes Under the Ambit Of Goods in CISG.

22. Under the general consensus among commentators that the CISG applies to contracts to
supply 'standard software' on a tangible medium such as a disk.45 The same applies to
software supplied online.46A computer software is generally a good under the ambit of
Article1,47 despite its non-physical existence. In CISG, no limitation can be found to

41
Moot Proposition, p. 2, ( 6-7).
42
RENE DAVID, ARBITRATION IN INTERNATIONAL TRADE, 227 (Springer Netherlands, 1985);
See also: HILMAR RAESCHKE-KESSLER AND KLAUS PETER BERGER, RECHT UND PRAXIS
277 (R.W.S.B.L.G. Communication Forum, 4th ed. 2012); Socit Sorvia v Weinstein
International Disc Corp. [1983] Rev. Arb. 363 (1984) 365; Award in I.C.C. case no. 7154,
121 (Clunet) 1059 (1994).
43
Moot Proposition, p. 2, ( 6).
44
MALEV Hungarian Airlines v. United Technologies International Inc. Pratt & Whitney
Commercial Engine Business [1992] 3.G.50.289/1991/32.
45
Geoffrey Thomas, U.N. Convention on the International Sale of Goods (CISG) (2nd ed.
translated by} Oxford: Clarendon Press 23; See also: Frank Diedrich, Maintaining
Uniformity in International Uniform Law via Autonomous Interpretation: Software
Contracts and the CISG, 8 Pace International Law Review 303 at 336, (1996).
46
CAMILLA B. ANDERSEN & ULRICH G. SCHROETER eds., SHARING INTERNATIONAL
COMMERCIAL LAW ACROSS NATIONAL BOUNDARIES: FESTSCHRIFT FOR ALBERT H. KRITZER
ON THE OCCASION OF HIS EIGHTIETH BIRTHDAY 512-526 (Wildy, Simmonds & Hill
Publishing, 2008); See also, Frank Diederich, The CISG and Computer Software Revisited,
6 Vindobona J. Intl Com. L. & Arb. Supp. 55-57 (2002).
47
Art. 1, CISG.

MEMORIAL for THE CLAIMANT

[7]
-PLEADINGS- -CLAIMANT -

physical items forming the subject matter of the transaction.48 The definition of goods
under CISG is interpreted differently by the commentators and court decisions in
different factual circumstances.49

[II-B] THERE EXISTS A VALID CONTRACT BETWEEN THE PARTY FOR THE LICENSE
NO. 1983/11/21

23. It is humbly submitted that the Box bearing License No. 1983/11/21 was the part of the
consignment for which the Claimant and Respondents contracted and hence there exist a
contract for the same. According to CISG,50 if by virtue of the offer or as a result of
practices, the offeree may indicate assent by performing an act,51 like delivery of goods
or payment of the price, there exists a contract for the same.52
24. There is a proper contract for the consignment which was delivered on March 201553,
and the Box of License no. 1983/11/21 was a part of that particular consignment. The
conduct of broking of shrink wrap, accepting click wrap and browse wrap54shows the use
of the CD which was a part of the consignment. This reflects that there is full acceptance
of the contract by the Respondent-II.
25. In Arguendo, it is submitted that even if the box of License No. 1983/11/21 was not a
part of the consignment and Claimant delivered it in excess, there is a valid contract
between the parties. When anything in excess delivered to buyer by the seller, it is up to
buyer to accept or reject the same.55 In the dispute arisen, the conduct of the Respondent-
I implies the acceptance towards that said excess box of CDs as Respondent-I raised no
contention and simply accepted and used the same which establish a contract between

48
Luca G. Castellani, Promoting the adoption of the United Nations Convention in CISG, 13
Vinobona Journal of Intl Comm. Arb. 241-248 (2009).
49
Princen Automatisering Oss B.V. v. Internationale Container Transport GmbH, [1996]
770/95/HE; See also: [1995] 8 H.K.O 24667/93; [1996] 8 Z.R. 306/95.
50
Art. 18(3), CISG.
51
TNO v. ZygoLOT GmbH, [2015] C/09 471 317/ H.A. Z.A. 14-934; See also: [2014]
262306/2014; [2015] 7 U 26/15.
52
Pasta Zara S.p.A. v. United States, American Italian Pasta Company, et al., [2010] 09-
00001; See also: [2009] 32 O 102/07; Zhejiang Henghao Garment Co. Ltd. v. Trio Selection
Inc. [2008]; [2008] 1Cpg 951/2006.
53
Moot Proposition, p. 1, ( 4).
54
Moot Proposition, p. 2, ( 9).
55
Art. 52 (2), CISG.

MEMORIAL for THE CLAIMANT

[8]
-PLEADINGS- -CLAIMANT -

the two parties on the basis of their conduct.56The Respondent-I conduct of running the
CD in his handheld Linux Notebook, driven by curiosity is a clear indication of his
acceptance.57 In case of an excess supply of any good, the Buyer has to pay the amount
in proportion to the contracted goods, as in the present case no amount was paid towards
the said licence number58 the buyer is obligated to pay the amount.59

[II-C] M/S NAKSHA IS RESPONSIBLE FOR MISUSE OF LICENSE NUMBER- 1983/11/21.

26. The Respondent-II after receiving the consignment acted very negligently, as the
software in question is of strict anti-piracy protocol60 and hence it should be dealt with
full awareness and care. The running of the software CD on a handheld Linux Notebook
computer which had no anti-virus software or Licensed Operating system61 amounts to
breach of the duty of care which the Respondent-II owed.
27. The act of clicking OK was something not acceptable from the one who gave tough
competition to CEH hackers and has extensive knowledge of software. It is submitted
that the software is front end and back end accounting software which is meant for both
seller and customers, but because the act of Respondent-II lead him to the ERP front face
of the software62 which is basically for the customers use, reflect the negligence of the
Respondent-II.
28. The Respondent-II sell the software like any other brick and mortar63 business and hence
he has nothing to do with front face of the software and hence the act of pleasingly
operating the same64 shows the negligence of the Respondent-II.
29. M/s NakSha is responsible for the misuse of the License Number 1983/11/21 as the
Respondent-II has full knowledge to accept the said box which can be justified by his act
of curiously opening a box printed in mandarin and leaving the user manual and other
paper inside the box.65

56
[2008] T-8/07; See also: [1996] 378/1995.
57
Moot Proposition, p. 2, ( 9).
58
Moot Proposition, p. 3, ( 12).
59
[1995] 200/1994; See also: [2006] 85 O 200/05.
60
Moot Proposition, p. 1, ( 5).
61
Id at p. 2, ( 9).
62
Id.
63
Id at p.1, ( 2).
64
Id at p. 3, ( 9)
65
Id.

MEMORIAL for THE CLAIMANT

[9]
-PLEADINGS- -CLAIMANT -

30. The Claimant had taken proper precaution and care while sending the consignment, they
have delivered everything related to goods including relevant documents66 required by
the contract.67 Further, the Claimant has provided every description68 related to the box
as required by the contract, which comes under his obligation.69

[II-D] THERE IS A FUNDAMENTAL BREACH OF THE CONTRACT BY THE

RESPONDENTS.

31. It is humbly submitted that the Respondent-II has misused the License Number-
1983/11/21 for which there is a proper contract and because of which huge loss
occurred70 to the Claimant. The breach of contract committed by one of the parties is
fundamental if it results in such detriment to the other party as substantially to deprive71
him of what he is entitled for.72 The act of negligence of Respondent-II led to their
revenue to dip by 90%.73
32. The pirated copies of TRally were available and downloadable only from a server
showing characteristics of use of SumerNotes,74 which is bought by Respondent-II. The
location of server is not traceable and the copies are downloadable only via Darknet from
Tor browser which is not commonly available or known to everyone but because
Respondent-II were known to be one of the greatest tech lawyers of his time and also
gave tough competition to CEH hackers.75 Thus, the connection between these two facts
clearly reflect that the misuse is caused by the act of Respondent-II.

66
Art. 30, CISG.
67
[2005] 75/2004; See also: [2004] 39/2003.
68
Article 35, CISG; See also: Vadagro B.V.B.A. v. Clean Mat Trucks B.V., [2015]
C/05/253028/HA Z.A. 13-723; Hoogendik Import/ Export B.V. v. Blue Marine Fish
International, SL [2014] 336058/2013; [2014] 12-27188; [2013] 5R62/13x.
69
Corporate Web Solutions Ltd. V. Vendorlink B.V., [2015] HA ZA 14-217; See also: [2013]
C/10/409349/ H.A. Z.A. 12-830; [2014] VIII ZR 410/12; [2015] 4A_614/2014.
70
Moot Proposition, p. 3, ( 12).
71
Art. 25, CISG.
72
Socinter v. Wallace Corporation Ltd., [2013] 12-23998; See also: [2015] 200.141.228/01;
[2011] 1R 181/10h; [2010] T-10/09.
73
Moot Proposition, p. 3, ( 11).
74
Id.
75
Id.

MEMORIAL for THE CLAIMANT

[10]
-PLEADINGS- -CLAIMANT -

33. The act of Respondent-II was not beyond foreseeability,76 and any reasonable person in
the same circumstances would not have done such a careless act. Claimant is, hence,
eligible to receive damages77 for the breach of contract, for a sum equal to the loss,
including loss of profit, suffered by them as a consequence of the breach.78
34. In Arguendo, it is submitted that even if there is lack of conformity of the goods
recognised by the buyer, he has a duty to give a notice to the seller specifying the nature
of lack of conformity as soon as possible after he has discovered it.79It is further
submitted that the buyer loses the right to rely on a lack of conformity of the goods if he
does not give notice to the seller specifying the nature of the lack of conformity within a
reasonable time,80 it is submitted that because there is no notice received by the
Respondent-II about the lack of conformity of the goods and hence they have lost the
right to raise any contention of the same.81

III. DEMONETIZATION BY THE RESPONDENT-I CAN BE CONSTRUED AS

EXPROPRIATION

35. The Claimant submits that the Arbitral Tribunal has the jurisdiction to decide the matter
of expropriation(A.). Demonetization by the Respondent-I amounts to expropriation for
which the latter is liable to pay damages to the former (B.)

[III-A] THE ARBITRAL TRIBUNAL HAS THE JURISDICTION TO DECIDE ON THE MATTER
OF EXPROPRIATION

36. The Arbitral Tribunal has the jurisdiction to decide on the matter of expropriation since
there is valid contract between the Claimant and the Respondent-I under which both

76
Castel Electronics Pty. Ltd. v. Toshiba Singapore Pte. Ltd., [2010] V.I.D. 141 of 2008; See
also: [2011] 4Sch 3/10; [2011] 3 R 227/11v.
77
D & G Group, S.R.I. v. H.A. Import USA, et al., [2015] 14-CV-2850 (T.P.G.); See also:
Scheldebouw B.V. v. Hero GlasGmBH, [2014] C/03/173844/ H.A. Z.A. 12-325; Powergen
SRL v. Unknown, [2012] 384833/ H.A. Z.A. 11-1801; [2012] VIII ZR 337/11; Unknown v.
Herotec Flachenheizung GmbH, [2012] 200 086 453/01.
78
Art. 74, CISG.
79
Art. 39 (1), CISG.
80
Art. 39 (2), CISG.
81
M-Trade LTD v. Europa B.V., [2014] H.D. 200.063.486/01; See also: [2015] H.D.
200.134.009_01; [2014] H.D. 200.091.830/01; [2012] 3 R 192/12y.

MEMORIAL for THE CLAIMANT

[11]
-PLEADINGS- -CLAIMANT -

parties agreed to solve all disputes emanating there from to be resolved by way of
International Arbitration.
37. As per the contract, the Respondent-I had signed a sovereign support agreement.82 This
agreement had investment protection clause as per the Malaysia- UK BIT (1981).83 Since
this clause of UK-BIT treaty provides for protection and security of investment of the
contacting party,84 Bath-La is under an obligation to safeguard the interests of M/s
Business Solvables. However, the Respondent-I actions herein question amounted to
expropriation which were in breach of all the assurances that they had made under the
contract. It is because of this breach that the Claimant has approached the Arbitral
Tribunal to decide on the matter of expropriation and award damages to the Claimant for
the loss incurred to them because of the actions of the Respondent-I.

[III-B] THE ACTIONS OF THE RESPONDENT HEREIN QUESTION CAN BE CONSTRUED AS

EXPROPRIATION FOR WHICH THE LATTER IS LIABLE TO PAY DAMAGES TO THE

FORMER

38. It is submitted that one of the commonly and widely accepted definitions of
expropriation can be found in the case of Metalclad v. Mexico,85 in which one of the
NAFTA Tribunal opined that the concept of expropriation includes not only outright
seizure or formal obligatory transfer of title in favour of the host state, but also covert or
incidental interference with the use of property which has the effect of direct or indirect
benefits of the host state. Thus, going by this definition, the acts of the Respondent
herein question can be construed as expropriation.

i. The act of the Respondent amounts to Indirect Expropriation

39. An indirect expropriation leaves the investors title untouched but derives him of the
possibility to utilize the investment in a meaningful way. A typical feature of indirect

82
Moot Proposition, p. 2, ( 7).
83
Id.
84
Art. 2, Malaysia U.K. BIT (1981).
85
Metalclad Corp. v. Mexico, Award, I.C.S.I.D. Case No. ARB(AF)/97/1, 5 I.C.S.I.D. Reports
(2002) 209 (August 30, 2000) (Intl Ct. for Settlement of Investment Dispute).

MEMORIAL for THE CLAIMANT

[12]
-PLEADINGS- -CLAIMANT -

expropriation is that the state will deny the existence of an expropriation and will not
contemplate the payment of compensation.86
40. Taking of property includes not only an outright taking of property but also actions such
as unreasonable interference with the use, enjoyment or disposal of property as to justify
an interference that the owner will not be able to use, enjoy or dispose of the property
within a reasonable period of time after the inception of such interference.87
41. Through demonetization, the Claimant is put in a position where all the cash which he
has received as interim measure becomes useless. Moreover, Demonetization restricted
the Claimant to operate in the territory of Bath-La and thereby denied them of all the
benefits they are entitled out of the investment that they had put in the country. Thus,
these actions of the Respondent-I can be construed as indirect expropriation. In TECMED
v. Mexico,88 where the Tribunal decided that indirect expropriation exist if the measure
constituted a deprivation of the economic use and enjoyment, as if the rights related
thereto-such as income or benefits had ceased to exist,89 or whether the use or enjoyment
of benefits related thereto is exacted or interfered with to a similar extent.90

ii. The Respondent cannot justify their acts by stating that they were non-
discriminatory regulatory actions:

42. In Methanex v. USA,91 the Tribunal was of the view that a non-discriminatory regulation
is one which is done for a public purpose and is not deemed expropriatory and
compensable unless specific commitments had been given by the regulating government
to refrain from such regulation.92
43. Respondent-I cannot justify their actions to be non-discriminatory regulatory actions
since they had made special commitment to the Claimant in the form of sovereign support

86
RUDOLPH DOLZER AND CHRISTOPH SCHREUER, PRINCIPLES OF INTERNATIONAL LAW
92 (2008).
87
L.B. Sohn and R.R. Baxter, Responsibility of States for Injuries to the Economic Interests
of the Aliens, 55 AMERICAN JOURNAL OF INTERNATIONAL LAW 545, 553 (1961).
88
Award in I.C.S.I.D. Case No. ARB. (AF)/00/2, 43 I.L.M. 133 [2004].
89
TcnicasMedioambientalesTecmed, S.A. v. The United Mexican States, Award, I.C.S.I.D.
Case No. ARB (AF)/00/2, 115, 43 I.L.M. (2004) 133(May 29, 2003) (International Centre
for Settlement of Investment Disputes).
90
Id.
91
Methanex Corporation v. United States of America, Award, 44 I.L.M. (2005) 1345 (August
3, 2005) (Ad Hoc Tribunal UNCITRAL).
92
Id.

MEMORIAL for THE CLAIMANT

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-PLEADINGS- -CLAIMANT -

agreement93 and guarantee in their favour to secure their investment.94 Thus, the
Respondent-I was bound to comply with the assurances they had given in the contract
and since they did not, they simply cannot turn their back by justifying their actions
amounting to indirect expropriation as non-discriminatory regulation action. In A.D.C
Affiliate Limited v. Hungary95, the Arbitral Tribunal stated that the Respondent-I cannot
justify their actions to be merely an exercise to regulate its domestic and legal affairs.
The rule of law, which includes treaty obligation, herein the contractual obligation, acts
as a boundary to their right to regulate.
44. When the state has entered into an obligation under the contract, and has made some
assurances related to investment protection, in this case by, then it is bound by that
obligation and the same cannot be ignored by taking the defence of the argument of
regulatory action Therefore, in absence of any valid justification for the actions taken by
Respondent-I amounting to expropriation, the Claimant are entitled to the damages for
the same. In issues related to Investment arbitration, the remedy nearly always consists
of monetary compensation and mere satisfaction does not play a practical role in
investment law.96

93
Moot Proposition, p. 2, ( 7).
94
Art. 2, Malaysia UK BIT (1981).
95
A.D.C. Affiliate Limited and A.D.C & A.D.M.C. Management Limited v. Hungary, Award,
I.C.S.I.D. Case No. ARB/03/16, IIC 1 (2006) (September 27, 2006) (The International
Centre for
Settlement of Investment Disputes).
96
C. Schreuer, Non-Pecuniary Remedies in I.C.S.I.D. Arbitration, 20 ARBITRATION
INTERNATIONAL 325 (2004).
MEMORIAL for THE CLAIMANT
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-PRAYER- -CLAIMANT -

PRAYER

In the light of the facts stated, issues raised, authorities cited and arguments advanced, the
Counsel, for the Claimant respectfully requests and prays before the Honble Arbitral tribunal
to adjudge and declare that:

I. Arbitral Tribunal has jurisdiction; and direction by Bath-La Supreme Court to decide in
twenty weeks takes away the autonomy of the Ad Hoc Tribunal and is invalid in
international law.
II. There is a valid contract between the parties for License Number- 1983/11/21 and M/s
NakSha is responsible for misuse of License Number- 1983/11/21.
III. M/s NakSha & TraSan and Bath-La are required to grant damages to the tune of the exact
number of copies pirated, till the date of judgment multiplied by the unit price for each
licensed copy; and Bath-La must make good the investment made by M/s Business
Solvables.
IV. Demonetization has resulted in expropriation. Monetary Damages as the Arbitral tribunal
deems fit.

AND/OR

Pass such other order or orders as the Honble Arbitral Tribunal may deem fit in the interest
of justice, equity and good conscience.

All of which is most humbly prayed

Sd/-

Counsel for the Claimant

M/s Business Solvables.

Memorial for THE CLAIMANT

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