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OUR
SAMPLE WORK
| Memorandum
for Respondent |
May It Please the Tribunal
1. Thompson Pty Ltd., herein referred to as the Respondent,
submits our reply to the request for an arbitration proceeding
submitted by Schmitt GmbH, herein referred to as the Claimant.
Summary of Argument
2. Herein Respondent acknowledged the fact that for purposes
of law and the merits of the case:
- The Victorian Supreme Court will have the authority
to hear and determine the merits of the case and to challenge
the award previously rendered by the tribunal.
Concerning the Contract between the Claimant and the Respondent:
- Respondent should not beheld liable for any form of
non-conformity to the contract under Article 35 (2) and
(3) CISG.
- Under Article 45 (1), the Claimant is not entitled to
recover any form of damages as there is no breach contract
between the parties to the case.
Concerning the Jurisdiction of the German Arbitral Tribunal:
- The jurisdiction of the German Arbitral Tribunal is
not being questioned by the Respondent. However, the jurisdiction
of the Victorian Court to conduct certiorari litigation
is acknowledged by the Respondent.
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Argument
A. The Victorian Court has the Sole Authority to
Challenge the Arbitral Award Rendered by the German Arbitral
Tribunal in Consideration to the Merits of the Case.
3. It is a known fact that for every cases being solved
and awarded by the German Arbitral Tribunal or any arbitration
committee for that matter, the Respondent or the loosing
party has also every right to seek remedy to the court where
an appeal can be submitted and have the result or the award
reheard in accordance to the merits of the case as stated
in Section 15 of the Arbitration Rules of the German Maritime
Arbitration Association. Although it can be said that an
arbitration proceeding provides a more speedy settlement
and resolutions of disputes as compared to a regular court,
it is also less costly as compared to having a real dispute
resolution conducted in the court.
4. It must be noted that an appeal is a court proceeding
wherein the loosing party is petitioning in a formal manner
to have an official decision rendered by any court altered
or change by looking upon the pertinent pieces of evidence.
If the loosing party thinks that there is a grave abuse
of discretion committed by the judge or an arbiter, it is
but necessary to file an appeal to a higher court. This
is to ensure that the rights of the loosing party are not
being abused or misrepresented.
5. Hence, it is in this regard that good faith is required
to among the CISG arbiters. The appeal made for purposes
of questioning relevant and applicable laws is granted by
the court and the constitution. For a more detailed review
of the records of the case and of the award actually rendered,
a writ of certiorari is issued by the Supreme Court. This
will strengthen the claims and the arguments of the parties
to the case as well as the decision of the arbiter that
handled the case. Moreover, a fair and good standing among
the arbiters is also being considered during the certiorari
proceeding. In this regard, the case will pose as an example
for the succeeding cases in such a way that the practice
of law which covers a wide range of activities characteristics
of the legal profession, including the pursuit and defense
of client’s rights and interests before the courts will
transgress the sets of governing rules to limit the parameters
and tame the exercise of the profession. Hence, the Victorian
Court is granted by the Constitution to determine the appeal
of the herein Respondent concerning the award given by the
German Arbitral Tribunal.
B. The Respondent is Held Liable for Non-Conformity of the
Contract Stipulated under Article 35 Section 1 Due to the
Delivery of Diamonds Not Stipulated in the Contract.
6. Herein Respondent denied the accusation that there is
non-conformity to what has been stipulated under the contract
entered into between Schmitt GmbH, herein Claimant, and
Thompson Pty Ltd., the Respondent. The law on obligations
and contracts defined contract to be a meeting of the minds
of the parties to the contract whereby one binds himself,
with respect to the other to give something or to render
some services. Meaning to say, it is a juridical convention
manifested in legal form, by virtue of which, one or more
persons (or parties) bind themselves in favor of another
or others, or reciprocally, to the fulfillment of a prestation
to give, to do or not to do. In other words, it is the agreement
of two or more persons (or parties) for the purpose of creating,
modifying, or extinguishing a juridical relation between
them.
7. Pursuance to the case at bar, the Claimant submitted
evidence annexed as Exhibit 1. Exonerating the evidence,
it can be seen that as per the telephone conversation made
between the Claimant and the Respondent, there has been
a verbal contract existed wherein the Claimant would purchase
500 uncut diamonds inspected at the factory of the Respondent
on the 14th of July 2002. In some of the cases established
by the court, it has been rendered that even an oral contract
is binding on the parties unless form is essential for its
validity and enforceability. Hence, in the case at bar,
it is apparent that there is a perfected contract between
the parties to the case. The Respondent is then obliged
to render the delivery of the 500 uncut diamonds ordered
by herein Claimant. Clearly, the elements of a contract
exist between the two parties. There is consent, subject
matter, and cause or consideration. The Claimant consented
on the delivery of the 500 uncut diamonds from South Africa
for a consideration of a total amount of $US 140,000.00
as stated in Exhibit 2.
8. Under Article 35 Section 1, it is stated that the seller
has an obligation to deliver the goods ordered by the buyer
in such a quantity, description and quality stipulated under
the contract. Hence, the stages of a contract must be fulfilled
in relation to the product specified. Here, the parties
are progressing with their negotiation; they have not yet
arrived at any definite agreement, although there may be
having been a preliminary offer and bargaining. But then
again, it must be noted that the parties have at long last
came to a definite agreement, the elements of definite subject
matter and valid cause have been accepted by mutual consent
and the terms of the contract are performed, and the contract
may be said to gave been fully executed. The law speaks
of a meeting of minds between two persons. The meeting of
the minds really refers to two parties. If at a time of
supposed perfection, one of the parties had already previously
died, there can be no meeting of the minds; hence, no contract.
But it can be seen from the case at bar that there is a
perfection of the contract upon delivery of the diamonds
stated by the Claimant in which the latter saw and inspected
at the factory of the Respondent.
9. Even if it is said that a contract is in existence between
the parties to the case, it does not necessarily follows
that a tort will be barred from being filed in such a case
that the completion of everything stipulated in the contract
has not been fulfilled. A case wherein the Claimant can
file for a recovery of the damages incurred is granted.
The same principle applies in the case at bar. It is alleged
that a tort has been committed by the Respondent and that
the Claimant is entitled to whatever damages are there in
order to protect the rights of the same. But then again,
the non-conformity of the Respondent as stated by the Claimant
can be rebutted by the fact that the actual diamonds sent
and delivered to them are the same diamonds that have been
inspected and saw by the Claimant when the latter visited
the factory of the Respondent on the 14th of July 2002.
C. Conformity to the Stipulations of the Verbal
Contract between the Respondent and the Claimant
10. It cannot be denied that the Respondent in this case
is under the obligation to fulfill the juridical necessity
to the Claimant to give what has been ordered and to do
what has been obligated. The court has noted that a prestation
is an obligation. More specifically, it is the subject matter
of an obligation and may consist of giving a thing, doing
or not doing a certain act. To reiterate, the law speaks
of an obligation as a juridical necessity to comply with
a prestation. There is a juridical necessity, for non-compliance
can result in juridical or legal sanction. Hence, there
is an admission that whenever a person failed to comply
with what has been stipulated in the contract, a recovery
for damages can be filed before the right court. Pertinent
records of the case revealed that Schmitt GmbH agreed to
buy diamonds from Thompson Pty Ltd. The purchased products
were delivered to the buyer on the specified time. However,
problem arise when the Claimant complained that the diamonds
purchased with the Respondents are not the diamonds they
needed and because of this, they needed to claim recovery
of damages as a result of fact that they cannot, in any
way, use the diamonds; hence, the cancellation of the contract.
11. Pursuant to Article 35 of CISG, the non-conformity of
the Respondent to what has been stipulated in the contract
can be avoided when the products delivered can still be
used by the Claimant. Meaning to say, if the products delivered
are of the same description, of the same value and usage,
claim to recover damages can be avoided. In the case at
bar, the diamonds are the ones that have been ordered by
the Claimant. The diamonds are not even a different product
purchased. Those are the same diamonds seen and inspected
at the factory. There is no basis for the Claimant to say
that the products delivered are different from the ones
ordered.
12. The diamonds that are being sold by the Thompsons Pty
Ltd are from South Africa. Meaning to say, Thompsons Pty
Ltd is not the ones producing the diamonds. They are merely
a reseller of the diamonds imported from South Africa. With
this, what Thompsons Pty Ltd is doing is that they are importing
diamonds. They make an order, purchased it through payment
and then resell it to other people or companies that are
in line with the diamond business. Hence, it is true that
all the diamonds that are being sold by Thompsons Pty Ltd
are coming from the South Africa. Proof of purchases and
records of transaction will prove this claim. In this regard,
it is undoubtedly that the diamonds delivered to Schmitt
GmbH. There is no way that Thompsons Pty Ltd will deliver
diamonds to Schmitt GmbH that is not from South Africa because
the only major distributor or producer of Thompsons Pty
Ltd is in Africa. As stated in the conversation made between
the parties to the case, there is a clear showing that the
Respondent assured the Claimant that diamonds from South
Africa will be delivered. True to its word, Respondent shipped
and delivered what has been ordered by the Claimant.
13. The basis, however, of the claim of Schmitt GmbH that
the diamonds are not from South Africa is probably its observation
that the diamonds are from Sierra Leone. There is a showing
that the Respondent had informed the Claimant that they
are purchasing the diamonds in South Africa but the products
are being cleansed in Melbourne. The final processing of
the diamonds so as for it to appear even more elegant and
conducive for selling is the cleansing of the stones conducted
not in Africa but in Melbourne. Hence, the diamonds that
are purchased from South Africa is being handled by a certain
team in Melbourne and they do the final process of cleaning
the diamonds. This made an effect to the diamonds. The labeling
is done in Melbourne but the actual diamonds are from South
Africa. There might have been confusion between Sierra Leone
and South Africa. Because the diamonds are cleansed, they
presumed it came from Sierra Leone.
D. Claimant’s Obtained Information on the Process
Done to the Diamonds
14. It is true that an obligation is being defined as a
juridical relation who enabled a person to demand something
that is stipulated in the contract from another person for
the complete observance and manifestation of a determinative
conduct and in case of a non-fulfillment of a contract or
a breach, may demand satisfaction from the assets of the
latter. It is important to consider that all obligations
arising from a contract are being regarded to have the same
force and effect of law between the contracting parties;
it does not mean that the contract would render the law
as inferior. The parties to the contract, in any way they
want, may establish and enter such stipulations, terms and
conditions and clauses as they may deem convenient to both
of them. However, law, public policy, morals, public order
and good customs must be taken into great consideration.
The contract entered into between Schmitt GmbH and Thompsons
Pty Ltd is a valid contract. But the case of the Claimant
cannot proceed from here. Under the articles of arbitration
particularly under Article 35 Section3, if the buyer knows
of the real condition of the products and still proceed
with the sale, the seller will not be held liable. Failure
to establish the liability of the seller will not entitle
the buyer from any recovery of damages.
15. Elucidating the article further, it can be seen that
the Claimant was already informed that the raw appearance
of the diamonds will be altered because it will be processed
in Melbourne for the purposes of cleansing, the physical
appearance and the quality much changed as well, which actually
happened in the case at bar. The Claimant is aware that
the diamonds to be delivered to them has undergone a process
already, although it is not yet cut. Because of the existence
of this requisite, the Claimant is not entitled to recover
any damages from the Respondent since there is no liability
on the part of the Respondent having been able to inform
the Claimant of the process being done to the diamonds.
E. Claimant is Not Entitled for Recovery of Damages
16. It must be understood that the Claimant is asking for
a set-off claim against herein Respondent. The set-off claim
is a form of recovery of damages wherein the Claimant is
asking the Respondent to pay for whatever loss has been
incurred due to the failure of the full execution and commencement
of the contract. But then again, because of the fact that
the liability of the Respondent is not fully established
by reason of the non-completion and non-fulfillment of the
requisites or requirement needed to establish the guilt
of the respondent, the latter is moving to have the case
quashed and allow the Claimant to pay, instead, to the loss
of the Respondent by virtue of the immature filing of the
case. Under the articles on the Rules of Arbitration Proceeding,
the buyer needs to inform the seller first of the non-conformity
to the stipulations in the contract. The buyer must inform
first the seller in order to grant a remedy or a repair
to whatever problem has occurred. But looking at the scenario
of the case, such right of the seller has been violated
when the buyer immediately filed a case against the Respondent
without giving an ample time to explain that would eventually
lead to the settlement of the problem without going through
arbitration proceeding.
F. Request for Relief
- With all the foregoing and the submission of the exhibits
containing the pieces of evidence, Respondent prays that
the latter be excused from any liability arising from the
alleged non-conformity to the stipulations made in the contract.
- Respondent also prays that the Claimant’s argument that
they are entitled to a recovery of damages be set aside
and the set-off claim be quashed at the same time.
- Respondent is likewise praying for a relief of damages
that the latter experienced due to the filing of this case.
Bibliography
Dimsey, M. (2006). International Sales Law. UK: Routledge. |
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