I.
THE RESPONDENT DID NOT LAWFULLY AVOID THE CONTRACT BECAUSE THE CLAIMANT DID NOT
BREACH, AND THEREFORE DID NOT FUNDAMENTALLY BREACH THE CONTRACT.
A. There was no valid avoidance on 7 July 2014 [R. 13, Cl. Ex. No. 7]
1. The Claimant did not breach the contract.
a. Claimant issued a letter of credit as per the amended
contract on 27 June 2014.
i. The amount of the 27 June letter of credit was
in compliance with the contract.
Claimant performed its obligations under the contract and therefore there
was no breach and could not been a valid avoidance by the Respondent on 7 July
2014. Article 4 of the contract required that the Claimant provide a letter of
credit in the amount of 1,350,000 USD, within fourteen days after the Claimant
received the Notice of Transport [R. 7, Cl. Ex. C1, Art. 4]. Claimant issued a letter
of credit on 4 July 2014 [R. 11]. That letter of credit fully conformed to the
contract requirements.
The 4 July 2014 letter of credit was issued in the amount of 4,500,000
USD. Because the Respondent could have submitted documents that would draw
on the letter of credit for the required amount of 1,350,000 USD, the letter of
credit clearly complied with the contract requirement. Letter of credit law clearly
provides that the beneficiary may submit documents requiring payment in
amount less than the fully authorized amount under the letter of credit [citation].
Claimant’s provision of a letter of credit in an amount far in excess of that
required by the contract clearly demonstrates the Claimant’s good faith
compliance with the contract.
[**Further optional language** As shown in (R34,P4,answer to request for
arbitration) in the respondent own words . When taking about the previous conduct
between the parties "there always had Been on several occasions last minute requests"
by my client and the respondent acted to fulfill. These requests in the case in hand my
client send a letter to the respondent to amend the 28 of March contract on the 27 June
2014 (R10,claimants EX.NO4) and waited for 8 days before issuing the first letter of
credit as shown in (R11,claimant EX.NO5) now according to the article " 8(3) CISG the
course of dealing between the parties created a duty on the part of the [seller] to
object promptly and that is delay in objecting constituted acceptance of the [buyer's]
offer." (Filanto v. Chilewich) Similar to the case in hand where my client provided the
offer and the respondent none objection so it would be responsible for my client to
have the impression that the contract has been amended And that the letter of credit
of the 4 of July is not a breach of contract farther more Even if the arbitral. Tribunal
finds that the article 8(3) don't apply to the case in hand.]
ii. The contract was amended to provide for
delivery of 100 metric tons of coltan.
a. [Claimant’s offer/Respondent’s
acceptance]
b. Respondent’s offer/Claimant’s
acceptance]
iii. The letter of credit of 4 July 2014 clearly
complied with the amended contract terms.
b. Even if the contract was not amended, the letter of
credit complied with the original contract.
(Placeholder: provision of a letter of credit in amount
exceeding what is required under the contract
complies with the contract).
c. Respondent specifically requested the CIP price
delivery terms in the notice of transport, which
Claimant provided in the letter of credit issued on 4
July 2014.
2. Even if the Claimant breached the contract, that breach
was not a fundamental breach as defined in CISG Art. 25.
B. The Respondent’s declaration on 9 July 2014 did not constitute a
rightful avoidance of the contract of 28 March 2014, as the
Claimant did not breach the contract.
1. Respondent did not rightfully avoid the contract on 7 July
2014, therefore the letter of credit on 8 July 2014 could not
have been received too late.
2. Claimant provided the second letter of credit within the
time provided for in the contract.
a. The letter of credit conformed exactly to the
specifications on the original contract of 28 March
2014.
b. The Claimant issued the letter of credit on 8 July 2014,
which was within the agreed deadline.
C. The requirement that Respondent present a commercial invoice
does not amount to a breach of contract.
1. Providing a commercial invoice is a standard element of
international commercial transactions and does not
constitute any additional obligations on the Respondent.
II.
THE EMERGENCY ARBITRATOR’S ORDER [“THE ORDER”] COMPELLING THE
RESPONDENT NOT TO DISPOSE OF THE THIRTY TONS OF COLTAN IN DISPUTE UNDER
THE CONTRACT WAS PROPER AND THEREFORE SHOULD NOT BE LIFTED BY THE
ARBITRAL TRIBUNAL.
The order to retain the coltan necessary to satisfy Respondent’s contract
obligations should be continued so that those obligations may be fulfilled
consistent with the final award in this case. This Tribunal may modify, terminate,
or annul the order made by the Emergency Arbitrator [ICC Art. 29930].
Respondent continues to be obligated to deliver 30 tons of coltan because the
contract has not been avoided. The burden of proof is on the Respondent to
demonstrate why the Order should be lifted [A]. The substantive requirements
for the granting of interim relief were met: irreparable harm will continue if the
order is not maintained, and the facts demonstrate that the Claimant will
succeed on the merits of the claim [B]. Article 21 of the contract does not prevent
interim relief granted in arbitration under ICC Art. 29 [C].
A. Respondent has the burden of demonstrating that the Emergency
Arbitrator’s order should be lifted.
1. The substantive test applied by the Emergency Arbitrator
was applied in accordance with Art. 17A of the Danubian
Arbitration law.
a. Article 17A of the Danubian Arbitration law provides
conditions for granting interim measures, which were
applied by the Emergency Arbitrator as a substantive
test in determining the Emergency Order.
b. Respondent cannot meet its burden of demonstrating
that the substantive test was not properly applied.
B. The substantive requirements for granting interim relief were met.
1. Lifting the remaining part of the Emergency Order would
cause irreparable harm to the Claimant.
a. Irreparable harm to the Claimant was an imminent
result had the Emergency Arbitrator not granted the
requested Order on 26 July 2014.
b. Lifting the emergency order by the Arbitral Tribunal
and leaving the Respondent free to dispose the 30
metric tons of coltan would cause yet more
impending harm to the Claimant.
2. The facts demonstrate that the Claimant is likely to
succeed on the merits of the claim, and lifting the
emergency order will consequently frustrate those claims.
C. Art. 21 of the contract does not exclude the right of a party to apply
to either an Emergency Arbitrator or this Tribunal for interim
measures.
1. Article 21 authorizes the parties to go to court for the
purpose of interim measures.
a. The Emergency Arbitrator appropriately ruled that
Article 21 does not prevent the issuance of interim
measures by other than a court (the law of this case).
i. Under Art 8 CISG it is appropriate to look
beyond the simple language of the contract for
the intent of the parties, and here the record
clearly discloses that the intent of the parties
was to allow concurrent jurisdiction of the
court and the Arbitral Tribunal for interim
measures.
ii. ICC Arbitration Rules Art. 29(7) clearly provide
for concurrent jurisdiction between courts and
the Arbitral Tribunal for the issuance of interim
measures, and Art. 21 is simply consistent with
the choice of such concurrent jurisdiction in Art.
20 of the contract.
III.
RESPONDENT CANNOT DEMONSTRATE THAT GLOBAL MINERALS EVER CONSENTED TO
BEING A PARTY TO THIS ARBITRATION AND THEREFORE GLOBAL MINERALS SHOULD
NOT BE JOINED IN THE PROCEEDINGS.
A. Global Minerals is not a party to the contract between Claimant and
Respondent, and therefore, is not a party to the arbitration.
B. Global Minerals is clearly a legal entity wholly separate from
Claimant, and has not separately consented to arbitration.
1. Global Minerals is not liable for Respondent’s claim under
the Group of Company Doctrine.
2. Global Minerals is not liable for Respondent’s claims under
any other applicable legal doctrine.
C. Good faith considerations do not justify the joinder of Global
Minerals as a party to this arbitration.