SYNOPSIS OF SUBMISSIONS

2nd Place Memoranda for Respondent



 

 

Case No. Moot 5

 

INTERNATIONAL ARBITRATION CENTRE OF DANUBIA

 

Between


SPECULATIVE DRILLING, CO. Claimant


and


DEEP WELL DRILLING, INC. Respondent


Memorandum for the Respondent


Counsel for the Respondent:

 

Daniel Kalderimis

Christopher Holland

Michael Preston




LIST OF AUTHORITIES

LIST OF ABBREVIATIONS

SYNOPSIS OF SUBMISSIONS




PART ONE: NO CONTRACT WAS FORMED

I SPECULATIVE REJECTED DEEP WELL’S OFFER

II DEEP WELL REVOKED ITS OFFER

A The offer contained no fixed date for acceptance

B The offer did not indicate that it was irrevocable

a) How article 16(2)(a) works

b) As a question of law, the offer was revocable

c) The facts do not indicate an irrevocable offer

III CONCLUSION

PART TWO: DEEP WELL HAD A RIGHT TO AVOID

I DEEP WELL HAD A RIGHT TO AVOID DUE TO LATE PAYMENT OF DEPOSIT

A Article 54 is not the full extent of Speculative’s payment obligations

B A reasonable attempt to pay does not of itself constitute payment

C Speculative at any rate did not take all reasonable steps

D The payment period cannot be extended by analogy with article 20(2)

II DEEP WELL HAD A RIGHT TO AVOID DUE TO LATE ESTABLISHMENT OF THE GUARANTEE

III CONCLUSION

PART THREE: THE TRIBUNAL SHOULD NOT ORDER PERFORMANCE

I NO JURISDICTION TO ORDER PERFORMANCE

A The Tribunal can only award performance in accordance with article 45

B Performance requires a breach of obligations

a) Deep Well has not breached its obligations

b) Conclusion

C Any breach is anticipatory for which performance is unavailable

a) Any breach is anticipatory

b) Performance is not available for an anticipatory breach

II AN ORDER REQUIRING PERFORMANCE WOULD BE INAPPROPRIATE

A Article 28 applies

B International arbitral tribunals should rarely order performance

C If a breach is found, damages are the only appropriate remedy




LIST OF AUTHORITIES

 

Beale H Remedies for Breach of Contract (Sweet & Maxwell, London, 1980).

 

Bernstein R, Tackaberry J, and Marriott A (eds) Handbook of Arbitration Practice (4ed, Sweet & Maxwell, London, 1998).

 

Bianca CM and Bonell MJ (eds) Commentary on the International Sales Law - the 1980 Vienna Sales Convention (Giuffre, Milan, 1987).

 

Bishop W "The Choice for Breach of Contract" (1985) 14 Journal of Legal Studies 299.

 

Bonell MJ An International Restatement of Contract Law: The UNIDROIT Principles of International Commercial Contracts (Transnational Juris Publications Inc, Irvington, 1994).

 

Carbonneau TE "Rendering Arbitral Awards With Reasons: The Elaboration of a Common Law of International Transactions" (1985) 23 Columbia Journal of Transnational Law 579.

 

Cheng C Clive M Schmitthoff’s Select Essays on International Trade Law (Martinus Nijhoff Publishers, Dordrecht, 1988).

 

David R Arbitration in International Trade (Kluwer Law and Taxation Publishers, Deventer, 1985).

 

Dawson JP "Specific Performance in France and Germany" (1959) 57 Michigan Law Review 495.

 

Durfee E "Mutuality in Specific Performance" (1922) 20 Michigan Law Review 289.

 

Elder TE "The Case Against Arbitral Awards of Specific Performance in Transnational Commercial Disputes" (1997) 13 Arbitration International 1.

 

Enderlein F and Maskow D International Sales Law: United Nations Convention on Contracts for the International Sale of Goods (Oceana Publications, New York, 1992).

 

Eorsi G "A Propos the 1980 Vienna Convention on Contracts for the International Sale of Goods" (1983) 31 American Journal of Comparative Law 333.

 

Farnsworth EA "Legal Remedies for Breach of Contract" (1970) 70 Columbia Law Review 1145.

 

Farnsworth EA La Vendita Internazionale (Congress at S Marghita Ligure, 1980).

 

Feltham "The UN Convention on Contracts for the International Sale of Goods" [1981] Journal of Business Law 346.

 

Fox WF Jr International Commercial Agreements (Kluwer Law and Taxation Publishers, Deventer, 1987).

 

Fry E Specific Performance of Contracts (Stevens and Sons Ltd, London, 1911).

 

Galston NM and Smit H International Sales: The United Nations Convention on Contracts for the International Sale of Goods (Matthew Bender, New York, 1984).

 

Halsbury’s Laws of England (4ed Reissue Butterworths, London, 1995).

 

van Hof JJ Commentary on the UNCITRAL Arbitration Rules (Kluwer Law and Taxation Publishers, Deventer, 1991).

 

Holtzmann HM and Neuhaus JE UNCITRAL Model Law on International Commercial Arbitration: Legislative History and Commentary (Kluwer Law and Taxation Publishers, Deventer, 1989).

 

Honnold JO Documentary History of the Uniform Law for International Sales (Kluwer Law and Taxation Publishers, Deventer, 1989). ("Documentary History")

 

Honnold JO Uniform Law For International Sales Under the 1980 United Nations Convention
(2ed, Kluwer Law and Taxation Publishers, Deventer, 1991). ("Honnold")

 

Jones G and Goodhart W Specific Performance (Butterworths, London, 1986).

 

Kritzer AH Guide to Practical Applications of the United Nations Convention on the International Sale of Goods (Kluwer Law and Taxation Publishers, Deventer, 1989).

 

Kronman AT "Specific Performance" (1978) 45 University of Chicago Law Review 351.

 

Lafili L, Gevurtz F and Campbell D (eds) Survey of the International Sale of Goods (Kluwer Law and Taxation Publishers, Deventer, 1986).

 

Mustill MJ and Boyd SC The Law and Practice of Commercial Arbitration in England (2ed, Butterworths, London, 1989).

 

O’Donovan J and Phillips J The Modern Contract of Guarantee (LBC Information Services, Sydney, 1996).

 

Redfern A and Hunter M Law and Practice of International Commercial Arbitration (Sweet & Maxwell, London, 1989).

 

Rubino-Sammartano M International Arbitration Law (Kluwer Law and Taxation Publishers, Deventer, 1990).

 

Sarcevic P and Volken P (eds) International Sale of Goods: Dubrovnik Lectures (Oceana Publications Inc, New York, 1986).

 

Schlechtriem P Uniform Sales Law: The UN-Convention on Contracts for the International Sale of Goods (Manzsche Verlags- und Universitätsbuchhandlung, Vienna, 1986).

 

Schmitthof C Schmitthof’s Export Trade (9ed, Steven & Sons, London, 1990).

 

Sharpe RJ Injunctions and Specific Performance (2ed, Canada Law Book Inc, Toronto, 1992).

 

Sharkey JJA and Dorter JB Commercial Arbitration (Sweet & Maxwell, London, 1986).

 

Sono K "Restoration of the Rules of Reason in Contract Formation: has there been Civil and Common Law Disparity" (1988) 21 Cornell International Law Journal 477.

 

Spry ICF The Principles of Equitable Remedies (5ed, LBC Information Services, Sydney, 1997).

 

Treitel GH Remedies for Breach of Contract: A Comparative Account (Clarendon Press, Oxford, 1988).

 

Ulen TS "The Efficiency of Specific Performance: Toward a Unified Theory of Contract Remedies" (1984) 83 Michigan Law Review 341.

 

Varma A "Petroleum Concessions in International Arbitration: Texaco Overseas Petroleum Company v Libyan Arab Republic" (1979) 18 Columbia Journal of Transnational Law 259.

 

Winship "Formation of International Sales Contracts under the 1980 Vienna Convention" (1983) 17 International Lawyer 1.

 

World Resources Institute World Resources 1992-1993: A Report by the World Resources Institute (New York, Oxford University Press, 1992).

 

Yorio E Contract Enforcement: Specific Performance and Injunctions (Little, Brown and Co, Boston, 1989).

 




LIST OF ABBREVIATIONS

 

Active #1 and #2 Oil fields designated by the Government of Polarity

CISG United Nations Convention on Contracts for the International Sale of Goods (1980)

Clarifications Procedural Order #2: the clarifications to the dispute

CLOUT Case Law on United Nations Texts

Deep Well Deep Well Drilling, Incorporated ("the Respondent")

Diplomatic Conference 1980 UNCITRAL Diplomatic Conference

Documentary History Documentary History of the Uniform Law for International Sales

Draft Convention 1978 Draft of the CISG

European Principles Draft Principles of European Contract Law (1997) [as yet unofficial]

E$ Equatorian dollars

ICC Rules International Chamber of Commerce Rules of Conciliation and Arbitration (as in force from 1988)

MLICT UNCITRAL Model Law on International Credit Transfers (1992)

Model Law UNCITRAL Model Law on International Commercial Arbitration (1985)

New York Convention New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards (1958)

Oceania Oil Oceania Oil Company

Rig #23, the Rig Drilling rig #23: the subject of the dispute

Secretariat Commentary UNCITRAL Secretariat’s Commentary on the 1978 Draft Convention

Speculative Speculative Drilling Company ("the Claimant")

ULIS Uniform Law on the International Sales of Goods (1964)

UNCITRAL United Nations Commission on International Trade Law

UNCITRAL Rules UNCITRAL Arbitration Rules (1976)

UNCITRAL Working Group UNCITRAL’s Working Group, established in 1969 to prepare the Draft Convention

UNIDROIT Principles UNIDROIT Principles of International Commercial Contracts

Working Group Draft Draft produced by the UNCITRAL Working Group. This is distinct from the Draft Convention.




SYNOPSIS OF SUBMISSIONS

 

  1. May it please the Tribunal, the Respondent submits that the Tribunal cannot and should not make any of the orders sought by the Claimant.
  2.  

  3. In support of this the Respondent advances three submissions. Its primary submission is that it never entered into a contract with the Claimant. The Respondent accepts the Claimant’s submission that, because the CISG is a part of the law of both Equatoriana and Mediterraneo, it applies to all issues of contract formation. The Respondent contends that the application of the CISG leads to the conclusion that no contract ever existed. Accordingly, submitting to the jurisdiction of this Tribunal is a gesture of good faith by the Respondent to resolve this dispute: it is not a concession of the validity of the arbitration clause of the contract.
  4.  

    Submission One: There is no contract between the two parties

     

  5. The Respondent accepts that on 13 May 1997 it made an offer to sell Rig #23 to the Claimant. However for two reasons this offer was never accepted. The first is that Speculative rejected this offer by its letter of 21 May 1997. The Claimant’s argument that this letter was merely a "request for further information" is refuted by the facts. Secondly, even though the offer was already terminated, Deep Well clearly revoked it on 3 June 1997 – two days before Speculative purported to accept it on 5 June 1997. It was entitled to do this because the offer was revocable pursuant to article 16 of the CISG.
  6.  

    Submission Two: If there was a contract, Deep Well avoided it

     

  7. If the Tribunal does not accept this submission and concludes that a binding contract was formed, the Respondent submits that the Claimant breached this contract on two separate occasions. First, its credit transfer of E$3,000,000 was made two days late. Secondly, it failed to open a bank guarantee for the remainder of the price until three days after it was due. Under clause 3 of the contract, Deep Well possessed a right to avoid the contract for both breaches. It exercised this right by rejecting the credit transfer and by its letter of 24 June 1997. Thus if there ever was a contract between Deep Well and Speculative, this contract was over by 24 June.
  8.  

    Submission Three: The Tribunal should not order performance

     

  9. Finally, the Respondent makes two submissions as to remedies. Again, the Respondent’s submissions on this point are advanced only in the event that neither of its earlier submissions are accepted. The Respondent vehemently contends that there is no valid contract between itself and the Claimant.
  10.  

  11. The Claimant seeks orders requiring the Respondent to perform the contract. These should not be granted for two reasons. The first is that in any event the Tribunal has no jurisdiction to make an order of performance. This is because, under the CISG, a breach of the contract or the Convention is a prerequisite for the Tribunal to make such an order. The Claimant has failed to show that Deep Well has breached any of its obligations. Therefore, no remedy lies.
  12.  

  13. In the alternative the Respondent submits that, pursuant to article 28 of the CISG, the Tribunal has a discretion as to whether to award the remedy. For a number of reasons, specific performance is an entirely inappropriate award. It should therefore not be ordered.



  14. PART ONE: NO CONTRACT WAS FORMED

     

  15. The Respondent submits that no contract was formed for two reasons. The first is that the Claimant rejected Deep Well’s offer of 13 May 1997 by its letter of 21 May 1997. The second is that the Respondent revoked the offer in its letter of 3 June. Therefore no offer was open for the Claimant to accept on 5 June 1997.
  16.  

    I SPECULATIVE REJECTED DEEP WELL’S OFFER

     

  17. The Respondent agrees with the Claimant that its letter of 13 May constituted an offer under the CISG. However, it submits that the Claimant rejected this offer by its response of 21 May. The offer was extinguished at this point.
  18.  

  19. Article 17 states that "[a]n offer, even if it is irrevocable, is terminated when a rejection reaches the offeror." This provision enables an offeror to negotiate with other parties after receiving a rejection, confident that it can enter into a new contract free from belated acceptances from previous offerees. Offers can be rejected "either expressly or by implication".
  20.  

  21. The Respondent submits that the Claimant’s letter of 21 May was an implied rejection and counter-offer which terminated the Respondent’s offer of 13 May. The Respondent submits that the letter conveys a clear intent to reject. The relevant parts of the letter are as follows:
  22.  

    Your letter of 13 May 1997 and the draft contract ... were a major disappointment to us. The price of E$30,000,000 is the same price that we rejected in our meeting with you on 9 May 1997. It is just too much. A fairer price for the rig would be the E$28,000,000 that we have already offered you, and we would ask you again to consider it.

     

  23. The Claimant incorrectly submits that "Deep Well relies on Article 19 of the CISG which states that a reply to an offer that purports to be an acceptance but changes the terms of the offer materially is a rejection of the offer and constitutes a counter-offer". The Respondent makes this argument under article 17, not article 19. The Respondent agrees that this situation is not one of purported acceptance.
  24.  

  25. However the Respondent disagrees with the Claimant’s later contention that Speculative’s letter of 21 May was a "request for information". It was no such thing. Quite patently, Speculative was not asking for further information about the contract. It did not want any ambiguous terms clarified or any gaps filled. It simply did not like one of the clear terms of the offer. When a party refuses to accept a material term of an offer, it rejects that offer.
  26.  

  27. The only other possible argument for the Claimant is that Speculative’s letter suggested a different price which, in the context of the negotiations, did not reject Deep Well’s offer. The Respondent agrees with the Claimant that it is sometimes difficult to determine when a response to an offer containing a new term is a rejection and counter-offer, or merely a suggestion of an alternative term which keeps the offer on foot. This is because both responses do the same thing: they suggest a new term which is not a part of the original offer.
  28.  

  29. The Claimant is however wrong to state that "[t]he ultimate test [for differentiating the two]…is the actual intention of the offeree". Pursuant to article 8(1), this is only the case where the offeror is aware of this intent. If Speculative merely intended to suggest a new term while considering itself free to later accept Deep Well’s offer, Deep Well was certainly not aware of this intent. Instead, the Respondent submits that the two similar responses should be distinguished by analogy with article 19(3). Although, as already noted, the 21 May letter does not fall within the scope of article 19(1), the definitions provided within article 19(3) are of assistance in determining when an offer has been rejected under article 17.
  30.  

  31. Article 19(3) provides a list of terms which, if included in a purported acceptance, are considered to materially alter the offer and convert the acceptance to a counter-offer. The first of these is price. Article 19 is relevant because it emphasises the differing importance of contractual terms, separating material terms from their less crucial counterparts. This provision can be read as an express indication of the terms considered material to the formation of contracts under the CISG.
  32.  

  33. The Respondent submits that the application of article 19(3) to article 17 creates a presumption that where a response to an offer contains an alteration of a material term it is a rejection and counter-offer. Thus just as the inclusion of a material term in a purported acceptance creates a counter-offer and rejection; the inclusion of a material term in a response which does not purport to be an acceptance strongly indicates that it is a rejection and counter-offer. This presumption can of course be displaced, but clear words would have to be used to indicate that, despite materially changing it, the offeree considers the offer still alive.
  34.  

  35. In this case, Speculative’s response was clearly a rejection. This can be seen from the contents of its letter. The new price is linked to a previous offer: "the E$28,000,000 that we have already offered you, and we would ask you again to consider it". Deep Well’s offered price is described as a "major disappointment", "the same price that we rejected in our meeting with you ... [i]t is just too much". This is not the language of a mild suggestion. These are the words of a party rejecting an offer with which they are clearly unhappy.
  36.  

  37. The letter can also be seen to form a counter-offer under article 14. It is a definite invitation to contract on certain terms. All terms of purchase are agreed and a price is named. A reasonable party in the position of the Respondent would believe that were it to respond with a letter stating "E$28,000,000 is an appropriate price and we will accept it", the Claimant would gladly hold a binding contract to be formed.
  38.  

  39. For these reasons, the Respondent submits that the Claimant impliedly rejected its offer by insisting on a different price of E$28,000,000. As a result, pursuant to article 17 of the CISG, the Respondent’s offer was extinguished.
  40.  

    II DEEP WELL REVOKED ITS OFFER

     

  41. As stated in paragraph 8, there are two separate reasons why the Claimant could not accept the offer of 13 May by its letter of 5 June. The second of these is that the Respondent revoked the offer on 3 June.
  42.  

  43. The Claimant concedes that Deep Well’s revocation of 3 June would have been valid provided that it was entitled at this date to revoke its offer. Thus the sole issue in dispute is whether Deep Well’s offer was revocable.
  44.  

  45. The Claimant contends that the Respondent’s phrase "we expect to hear from you by 10 June" is "an integral part of the offer", and provides a fixed date for acceptance. Accordingly, the Claimant argues that under article 16(2)(a) the offer is irrevocable as "it indicates ... by stating a fixed time for acceptance ... that it is irrevocable". The Respondent submits that this analysis is incorrect. It submits first that the phrase did not set a fixed time for acceptance. In addition, even if it did, this did not indicate an irrevocable offer.
  46.  

    A The offer contained no fixed date for acceptance

     

  47. The Claimant’s assertion that the letter of 13 May provides a fixed date for acceptance is not supported by the facts. Fixing a date for acceptance specifies that, regardless of whether or not the offer is revocable, it will lapse after this date. Thus a fixed date is a final date.
  48.  

  49. The date given in the letter of 13 May did not fix a final date for acceptance. It merely set a loose time frame for a response. Deep Well stated simply that "[w]e expect to hear from you by 10 June". This indicates not a requirement to respond, but a structure for the continuing negotiations. The letter bears this out: 10 June is a round four weeks after the date of the offer. It has no other special significance.
  50.  

  51. Further, the Respondent indicates not that it must receive a reply by 10 June, but that four weeks should provide Speculative with "sufficient time to make the necessary financial arrangements". It also reiterates its desire to "bring this negotiation to a close" so that the parties can "go forward with this deal". This flexible, negotiating language is consistent with the theory that 10 June was merely an indication of an appropriate time for response and not a date at which the offer would lapse. Therefore, as there is no fixed date for acceptance, Deep Well’s offer was not irrevocable.
  52.  

    B The offer did not indicate that it was irrevocable

     

  53. Even if the offer is held to have contained a fixed date for acceptance, this does not in itself create an irrevocable offer. Article 16(2)(a) provides that an offer is only irrevocable if the statement of a fixed time "indicates that it is irrevocable". This requirement is not met.
  54.  

     

    a) How article 16(2)(a) works

     

  55. Article 16(2)(a) was drafted to bridge a major divide between the common law and the civil law. In the common law a fixed date for acceptance represents a time for lapse; in the civil law it represents an irrevocable offer. This difference was widely debated during the drafting of the formation provisions of the CISG. Article 16(2)(a) is the resulting compromise.
  56.  

  57. The Claimant asserts that article 16(2)(a) provides that "an offer with a fixed time for acceptance cannot be revoked". This is clearly wrong. The provision is carefully worded to ensure that stating a fixed time for acceptance does not in itself indicate irrevocability or otherwise. It is a necessarily equivocal act. In the words of Enderlein and Maskow: "the fixing of a time limit for acceptance does not alone suffice".
  58.  

  59. In support of its conclusion the Claimant refers to the 1978 Draft of the UNCITRAL Working Group, which provided that offers stating a fixed time for acceptance were irrevocable. The Claimant asserts that "this proposal was accepted and formed part 2(a) of article 16 of the ... CISG". It argues that this creates a presumption that a fixed time indicates irrevocability. Again, this argument is erroneous. An important change was made to this provision in the Draft Convention and was carried through to the CISG. This change removed any express consequences of stating a fixed time for acceptance. As a result, article 16(2)(a) "lost its independent standing and its distinctly civil law character opposed by the common law delegations".
  60.  

  61. The unique feature of article 16(2)(a) then is that the question of whether the statement of a fixed time indicates irrevocability depends on something other than the statement itself. This could indicate either lapse or irrevocability.
  62.  

    b) As a question of law, the offer was revocable

     

  63. The Respondent’s submission is that whether its offer is irrevocable is purely a question of law. This is because the issue is the legal effect and not the factual meaning of the date given in its letter of 13 May. It is not a question about the true meaning of an ambiguous statement which is resolved through article 8 and the reasonable understanding of a person in the position of the other party.
  64.  

  65. This is because the statement at issue is not ambiguous. It means precisely what it says: "we expect to hear from you by 10 June". The question is not what it means, but the legal effect of what it means. Therefore article 8, which applies only to the interpretation of ambiguous factual statements, is not applicable. This is supported by the circular structure of article 16(2)(a). The question it poses - whether a fixed date indicates "by stating a fixed time for acceptance" that it is irrevocable - cannot logically be resolved by any particular factual situation. Statements of fixed time do not inherently indicate irrevocability over lapse or vice versa. If other factors, such as the manner in which the offer is presented or the context surrounding the date, are what indicate irrevocability, then it is the "or otherwise" clause of article 16(2)(a) that is being relied upon, and not the actual statement of a fixed date.
  66.  

  67. Therefore, this issue is a matter for legal determination by the Tribunal, and not for factual determination by the Claimant. The Respondent submits that the legal answer is simple. Article 16(2)(a) was drafted to preserve the autonomy of both major legal systems from the legal rules of the other. Specifically, it allows common law parties to fix times for acceptance free from the civil law presumption of irrevocability. This is what has happened here. Deep Well is from a country which does not presume irrevocability from a statement of fixed time. Therefore Deep Well’s reference to 10 June 1997 should be read without this presumption. If its offer of 10 May did state a fixed time for acceptance, this could not indicate irrevocability under the CISG.
  68.  

    c) The facts do not indicate an irrevocable offer

     

  69. In the alternative, even if this question is one of fact, the Respondent submits that the facts do not support a conclusion of irrevocability. This issue must of course be resolved under article 8. Any factual analysis faces an initial problem: as a date for acceptance alone cannot indicate irrevocability, what does? Eorsi suggests such statements as "[o]ur offer is at any rate good till May 13" or "I stand by my offer until I get your answer" are sufficient. This is because both statements clearly indicate the offeror’s intent which, it is submitted, is the determinative issue. They are easily distinguishable from the present case.
  70.  

  71. Aside from the bare statement of a time for acceptance, there is nothing at all in Deep Well’s letter of 13 May to indicate irrevocability. In fact the evidence points to the contrary conclusion - that the time limit did not indicate irrevocability at all. Two factors are particularly relevant. The first is that, as mentioned above, Deep Well is from a jurisdiction where a fixed date for acceptance indicates a time for lapse, not irrevocability. A person’s origin is obviously relevant in interpreting their statements.
  72. Secondly, a revocable offer is much easier to reconcile with the wider context of the transaction. At the time Deep Well sent its offer, although they agreed on all other issues, the parties were deadlocked as to the price. Therefore, whilst the Respondent wished to bring the negotiations to a close, matters had not advanced to the point where an irrevocable offer of the price already rejected by the Claimant would be a feasible strategy. An irrevocable offer could not provide any significant incentive for Speculative to make such a major about-turn. On the contrary, its effect would be more likely to inflame the tension over this issue by presenting an inflexible front and could potentially jeopardise the prolonged (and substantially completed) negotiations.
  73.  

  74. Furthermore, the oil market is extremely volatile. World oil supplies, and thus prices, can be quickly and dramatically affected by an unpredictable range of events. This in turn affects the prices for oil-related capital goods such as oil rigs. The more volatile a given market, the less likely it is that offerors will make irrevocable offers. If Deep Well’s offer was irrevocable, it would have committed Deep Well to a fixed position for a month. It is highly unlikely that an experienced oil company would deliberately leave itself so exposed.
  75.  

  76. It follows that even if irrevocability is a question of fact, Deep Well’s offer was still revocable. In context, a reasonable person of the same kind as Speculative would understand the date in Deep Well’s offer to indicate no more than a final date for acceptance.
  77.  

    III CONCLUSION

     

  78. Deep Well’s offer was certainly terminated: if not by Speculative’s rejection on 21 May, then by Deep Well’s revocation on 3 June. Either way, there was no offer open to be accepted on 5 June 1997. Therefore no contract could have been formed.



  79. PART TWO: DEEP WELL HAD A RIGHT TO AVOID

     

  80. As no contract could have been formed, this submission is advanced solely in the alternative. It assumes that a contract did exist. If this is the case, the Respondent submits that Speculative breached its obligations under clauses 1 and 2 of the contract. This gave Deep Well a right to avoid the contract pursuant to clause 3.
  81.  

  82. Clause 3 provides that "[i]f either payment is not made or the bank guarantee is not established in the manner and by the date provided in this contract, Seller shall have the right to avoid the contract." The Claimant concedes both that this clause is valid and that it "effectively imposes strict liability on the buyer". Therefore whether any of the Claimant’s actions amount to a fundamental breach under article 25 of the CISG is irrelevant. Although a fundamental breach would be required for the Respondent to avoid under article 64(1), both parties agree that the broader right to avoid in clause 3 of the contract overrides article 64(1).
  83.  

  84. Accordingly the main issue is whether the right in clause 3 was triggered. The Respondent submits that it was triggered by two separate events: Speculative’s late payment of the deposit; and its late establishment of the guarantee.
  85.  

    I DEEP WELL HAD A RIGHT TO AVOID DUE TO LATE PAYMENT OF DEPOSIT

     

  86. Under clause 1 of the contract a payment of E$3,000,000 was required within 10 days of acceptance. The Claimant purported to accept the offer on 5 June, and so had until 15 June to make the payment. However, the credit transfer was not completed until 17 June, two days after the deadline.
  87.  

  88. Despite this, the Claimant argues that the payment should be considered timely. It appears to make this submission on three fronts. First, that Speculative complied with article 54 of the CISG, and that this is sufficient to perform its obligations to pay the deposit. Secondly, that Speculative took reasonable steps to ensure that payment was made on time. Accordingly, payment should be deemed timely. Thirdly, that by analogy with article 20(2), the actual date for payment should be deemed to be 17 June instead of 15 June. Payment was thus made on time. Each argument is addressed in turn.
  89.  

    A Article 54 is not the full extent of Speculative’s payment obligations

     

  90. Article 54 provides that the buyer’s obligation to pay the price includes taking all steps necessary to ensure successful payment. The Claimant argues that it took all reasonable steps to fulfil its obligations and thus complied with article 54. It did this by instructing its bank to make the transfer to Deep Well’s account.
  91.  

  92. Article 54 is not the full extent of Speculative’s payment obligations. Speculative’s primary obligation is to pay the price. This is required both by article 53 of the CISG and by clause 1 of the contract. The article 54 obligations are merely a subset of that primary obligation. If this were not so, then in any given situation a buyer could escape its ultimate obligation to pay the price by pointing to steps taken in furtherance of payment.
  93.  

  94. Speculative’s primary obligation was to pay E$3,000,000 by 15 June 1997. That it took steps to do so is insufficient in light of the fact that this primary obligation was not satisfied.
  95.  

    B A reasonable attempt to pay does not of itself constitute payment

     

  96. The Claimant contends that Speculative acted as would any reasonable buyer. It claims that, having initiated the credit transfer, "[t]here was nothing further Speculative could have done to ensure payment by the agreed date". Therefore, Speculative should not "bear any responsibility" for circumstances beyond its control. This seems to be an argument that, provided a buyer does all it reasonably can, then even if it does not actually complete its obligations, it should nevertheless be deemed to have been performed. This argument is seriously flawed.
  97.  

  98. Although notions of good faith and reasonableness are highly relevant in interpreting contractual obligations, they cannot replace these obligations. The Claimant has not addressed this difficult issue. It has not explained how the reasonableness of Speculative’s conduct actually works to displace its contractual obligation. This is because no such explanation is plausible. If the obligation is to pay the price, a reasonable attempt to pay cannot logically suffice. The contractual requirement for performance of a specific obligation by a specific date should not give way to vague notions of reasonableness.
  99.  

    C Speculative at any rate did not take all reasonable steps

     

  100. The Claimant’s ‘reasonableness’ argument also fails on the facts. Speculative could easily have ensured that the payment was made on time. The Claimant contends that Speculative discharged its responsibilities by ordering payment "five days prior to the expiration of the agreed ten day period". However the deadline fell on a Sunday: when Speculative began arranging payment, there were fewer than three working days left. The effective deadline was thus Friday 13 June. As the payment was only ordered on Wednesday 11 June at 10.45 am and needed to be completed by Friday at 1.00 pm, the banks involved had barely 48 hours to perform the transfer. Far from acting reasonably, Speculative left this important obligation until the very last minute.
  101.  

  102. The importance of the terms of payment must be emphasised. The Claimant dismisses its breach as a "minor occurrence". The Respondent disagrees and submits that it would be a mistake to view the time requirement as a technicality. Clause 1 clearly stated that the deposit had to be paid within 10 days of acceptance. Clause 3 gave Deep Well the right to avoid the contract if payment was late. It must be assumed that Deep Well had important reasons for insisting so strongly on prompt payment. The contract was the result of extensive negotiations. The parties’ obligations and precise penalties for their breach were worked out by both sides. It must be remembered that Deep Well is a major oil drilling company which operates in a capital intensive industry. The deadline for payment undoubtedly reflected its need to manage its substantial ingoings and outgoings effectively. Only this can explain its significant derogation from the rules that would ordinarily apply.
  103.  

  104. In conclusion, Speculative knew about both the deadline and its consequences from at least 16 May 1997. Thus when it accepted the offer on 5 June, it should have been well prepared to organise payment promptly. The fact that it waited until it had fewer than three days to make payment reveals a cavalier attitude which is the antithesis of reasonableness.
  105.  

    D The payment period cannot be extended by analogy with article 20(2)

     

  106. The Claimant alleges that even if it is responsible for the credit transfer, the payment was timely. The Claimant submits that as the deadline for payment falls on a weekend, the period should be extended to the first following business day. This submission is based on an analogy with article 20(2) which provides that if the date for an acceptance falls on a non-working day, this date shall be extended to the first working day which follows. The Claimant submits that as no corresponding provision extends to time periods generally, article 20(2) "seems to be the only justified way to supplement contractual stipulations as to the payment time". Therefore, it is appropriate to make an analogy with that provision.
  107.  

  108. The Respondent submits that this analogy is not permissible because there is no reason to supplement the terms of the contract. There is no "gap" to be filled. Article 7(2) of the CISG provides that questions which are not settled by the CISG are to be answered in conformity with its general principles. However, this question is settled by the CISG. The lack of a rule relating to time periods generally creates a rule in itself. Where a specific instance is singled out for a separate rule, this implies that the rule does not apply in other situations. Time periods are usually unambiguous. Ten days from 5 June has only one interpretation: 15 June.
  109.  

  110. Article 20(2) is a deeming provision which is specifically limited to acceptances. Where a deadline does not relate to an acceptance, the CISG does not alter it. The CISG does not arbitrarily interfere with parties’ freedom to contract: unless qualified by an express provision, clear terms mean what they say.
  111.  

  112. The legislative history demonstrates this point. Article 20(2) is derived from article 2(2) of the UNCITRAL Model Arbitration Rules. Article 2(2) uses the formula adopted in article 20(2) of the CISG to calculate any period of time under the Rules. The drafters of the CISG deliberately decided to limit its role in the Convention to acceptances only.
  113.  

  114. Furthermore, it is unclear whether article 20(2) would have applied even if Speculative’s letter had been an acceptance. This is because the contract clearly distinguishes between "days" and "working days". The deadline for the payment of the deposit was calculated in "days". This is in contrast to the deadline for the payment of the balance, which was calculated in "working days". If article 20(2) did apply, the contract expressly derogates from it with respect to the deposit payment - all days (working days or not) are to be included in the calculation of the time period.
  115.  

    II DEEP WELL HAD A RIGHT TO AVOID DUE TO LATE ESTABLISHMENT OF THE GUARANTEE

     

  116. The Claimant observes that Speculative instructed its bank (the Farmers and Merchants Bank of Mediterraneo) to establish a bank guarantee and argues that "[f]or the purposes of Article 8.1 of the CISG actions taken by Speculative ... clearly demonstrate its intent to comply with guarantee related contract provisions well ahead of time". The Respondent accepts that Speculative intended to comply with the requirement to issue a bank guarantee, but submits that this is not enough.
  117.  

  118. The Claimant then submits, repeating its argument regarding the credit transfer, that this attempt complied with the requirements of article 54. Again, performance of obligations under article 54 is insufficient. The Respondent repeats that Speculative’s primary obligation under the contract was to issue the bank guarantee, not to take steps to do so.
  119.  

  120. The Claimant finally alleges that it relied on its reasonable expectations that the transaction should not have taken more than ten days. Essentially, this submission is that it was entitled to rely on its bank to issue the guarantee on time, or at least inform the Claimant that it would be unable to do so. This is misguided for two reasons. First, these assumptions are not relevant to the dispute. The relationship between Speculative and its bank is independent of the relationship between Speculative and Deep Well. Whether the bank is at fault is an issue that does not concern Deep Well or this Tribunal. Speculative’s obligation to open the bank guarantee within ten days is, in the words of the Claimant, one of "strict liability".
  121.  

  122. Secondly, even if a party could be excused by "[doing] its best in the circumstances", the Respondent submits that the Claimant did not do this. This was the first time that the Claimant had attempted to set up a bank guarantee in Equatoriana. It was unreasonable for Speculative to rely on its own estimate of how long the guarantee would take to establish. Speculative failed to tell its bank the crucial detail of the date by which the guarantee was required. It would have been a simple matter to inform its bank of the importance of prompt action or even inquire as to how long the transaction would take. It did neither.
  123.  

  124. The Respondent reiterates the point made above at paragraph 52, that the deadline for the guarantee was included for a reason. If a contract was formed, the sale was concluded when Speculative accepted the offer. Thus between this time, and the time Speculative finally opened the guarantee, Deep Well faced a period of exposure in which it was bound to deliver the rig but had no security of payment.
  125.  

    III CONCLUSION

     

  126. For these reasons, the Respondent submits that even if a contract did exist, Deep Well avoided it. None of the Claimant’s actions prevent Deep Well from exercising its clause 3 right. Importantly, the Claimant contests only the Respondent’s right to avoid; it does not contest that Deep Well exercised this right. Therefore, if the Respondent’s submissions on this point are correct, any contract ceased to exist by no later than 24 June.



  127. PART THREE: THE TRIBUNAL SHOULD NOT ORDER PERFORMANCE

     

    I NO JURISDICTION TO ORDER PERFORMANCE

     

  128. The Claimant has requested the Tribunal to make two orders if it finds that a contract was formed between the parties. These are:
  129.  

    a) an order that Deep Well deliver the rig to Speculative should Speculative decide to take it; and

     

    b) an order that Deep Well not sell the rig to any third party prior to Speculative’s determination.

     

  130. The Claimant states that these orders are a request for performance of the contract based on article 46 of the CISG. The Respondent submits that the Tribunal has no jurisdiction to make these orders based on this article, nor on any other. This argument is in three parts. First, articles 45 and 46 strictly define the only circumstances in which specific performance can be awarded. Second, for the Tribunal to make an order under article 46, the Respondent must have breached its obligations. It has not done this. Third, even if there was a breach, this breach could only be anticipatory. Under the CISG, the Tribunal has no power to award performance in the case of an anticipatory breach.
  131.  

    A The Tribunal can only award performance in accordance with article 45

     

  132. Article 45 is the gateway to the buyer’s remedies section of the CISG. A buyer must satisfy its requirements in order to gain relief. The Claimant has not explicitly argued that this Tribunal has any right to award performance otherwise than in accordance with article 45. However, the Respondent wishes to place this matter beyond doubt.
  133.  

  134. It is trite law that an arbitral tribunal’s jurisdiction is limited by the law that the parties have chosen to govern the substance of any dispute. This applies equally to the content of any award. The Respondent submits that the form of the award - interim or final; injunction or specific performance - is irrelevant; the Tribunal’s jurisdiction is limited to the same extent. This Tribunal may award specific performance only if it is authorised to do so by the CISG.
  135.  

  136. Through articles 45 and 46, the CISG very clearly sets out the circumstances in which specific performance is available. The drafters of the CISG gave careful consideration to the appropriate restrictions on the availability of particular remedies. The right to performance was drafted subject to at least two limitations within article 46 and two limitations external to 46. By implication, specific performance is not available in any other situation. To order specific performance in instances where the CISG excludes recovery is to ignore rules obviously designed to regulate its availability.
  137.  

  138. Therefore although this Tribunal has powers under article 26 of the UNCITRAL Rules to make an interim injunction, where - as in this case - the injunction would amount to specific performance, article 45 must first be satisfied. Unless the Claimant shows that article 45 is triggered, this Tribunal has no power to award specific performance.
  139.  

    B Performance requires a breach of obligations

     

  140. Article 45 is triggered where "the seller fails to perform any of his obligations under the contract or this Convention". This article is directed at breaches which have already occurred. Where the seller has not breached any obligations, the rights referred to in article 45 are not available. Article 45 rights are thus not available where the buyer merely suspects that there will be a breach in the future.
  141.  

    a) Deep Well has not breached its obligations

     

  142. The Claimant does not identify any breach. Although it refers to Deep Well’s obligation under article 30 to "transfer property" in Rig #23 to Speculative, the Claimant does not appear to submit that Deep Well has breached it. It could hardly do so: the Respondent is not obliged to deliver the rig to Speculative until 30 September 1998. Until its obligation becomes due, it cannot be breached.
  143.  

  144. Speculative merely contends that:
  145. …the seller has been taking actions to evade the fulfilment of its contractual obligations [to the] buyer and has in bad faith purported to avoid the contract with the buyer…

     

  146. This is simply untrue. The allegation obviously refers to the Respondent’s contract with Oceania Oil. But this contract is a "back-up contract" that will be effective only if its primary contract with Speculative is not. Deep Well’s obligation to Oceania is conditional on Deep Well being "free to deliver" Rig #23 by 30 April 1998. If this Tribunal rules that Deep Well has contracted to sell the rig to Speculative, Deep Well will not be "free to deliver" it to Oceania Oil. The Respondent emphasises that "free to deliver" means just this – legally and factually free to deliver the rig.
  147.  

  148. The practice of making contingent arrangements in the commercial world is very common. Deep Well’s management would be irresponsible if, in light of their strongly held view that no contract exists, they failed to make alternative arrangements for the disposition of a valuable asset. For the Tribunal to hold that the making of this contract breaches obligations to Speculative would be to ignore established prudent business practice. The Respondent has not purported to avoid its contract with Speculative, nor acted with bad faith in any other respect.
  149.  

    b) Conclusion

     

  150. The rights outlined in article 45, and specifically the right to performance in article 46, arise only upon a breach of the seller’s obligations. Because Deep Well has not breached any of its obligations, the Tribunal does not have the authority under the CISG to order performance.
  151.  

    C Any breach is anticipatory for which performance is unavailable

     

  152. If the Tribunal is unable to accept the Respondent’s submission that no breach of contract has occurred, the Respondent submits in the alternative that any breach is an anticipatory breach, for which there is no right to performance.
  153.  

    a) Any breach is anticipatory

     

  154. Articles 71 and 72 provide for situations where it becomes apparent to one party that the other party will not perform its obligations. The situation that originally concerned the drafters of the CISG was where one party is insolvent and appears unable to perform. However, the final version of the CISG defined anticipatory breach much more widely. An anticipatory breach can result from a deficiency in the seller’s ability to perform; the conduct of the seller; or the seller’s declaration that it will not perform. The common connection is that in none of these situations has the seller actually breached its obligations - the anticipatory breach arises from the buyer’s apprehension that a breach will occur in the future.
  155.  

  156. If the Tribunal is unable to accept that there is no breach, the Respondent submits that the only possible conclusion is that any breach is an anticipatory breach. As noted above, Deep Well’s sole obligation to deliver the rig does not fall due until 30 September 1998. This obligation cannot be breached unless and until Deep Well fails to deliver the rig to Speculative on that date. If the Tribunal finds Deep Well to be in breach of its obligations, it must be because there is concern about the possibility of it not delivering the rig on the delivery date; not because a breach has already occurred.
  157.  

    b) Performance is not available for an anticipatory breach

     

  158. The Respondent submits that the only remedies the Tribunal is authorised to award for an anticipatory breach are found in articles 71 to 72. These allow the innocent party to an anticipatory breach to suspend or avoid the contract. The innocent party may also claim damages as a result of the anticipatory breach.
  159.  

  160. The drafters of the CISG clearly turned their minds to the range of remedies available in the case of an anticipatory breach. Articles 71 and 72 were the result - very detailed sections which are located in a separate part of the CISG than remedies for an actual breach. Although the remedies of avoidance and damages are allowed, specific performance is not. This distinction between remedies for a breach and anticipatory breach makes it clear that specific performance is not available where the breach is only anticipatory.
  161.  

  162. Therefore, the Tribunal may not order specific performance to remedy an anticipatory breach of contract. As any breach in this case could only be anticipatory, the Tribunal has no jurisdiction to make the orders sought.
  163.  

    II AN ORDER REQUIRING PERFORMANCE WOULD BE INAPPROPRIATE

     

  164. The Respondent continues to contend that this Tribunal has no jurisdiction to order performance. However, in the event that it does, the Respondent submits that it should not make the order sought. There are three reasons for this:
  165.  

    a) Pursuant to article 28, where there is a breach, the Tribunal has discretion whether or not to order performance.

     

    b) The international arbitral process is uniquely ill-suited to the making of effective awards of performance. Performance should, if at all, only be ordered in rare and deserving cases.

     

    c) This case is not deserving. An order of performance would heavily distort the contract in favour of Speculative. Not only would it cause Deep Well considerable hardship, but Deep Well would be unable to secure Speculative’s performance in return. Damages are thus a more appropriate remedy.

     

    A Article 28 applies

     

  166. Although the buyer is entitled to require article 46 performance following a breach by the seller, this principle is limited by article 28. Article 28 provides that, notwithstanding article 46, a court is not bound to order performance "unless it would do so under its own law in respect of similar contracts of sale not governed by this Convention".
  167.  

  168. Thus, on a practical level, the Claimant overstates the effect of article 46 when it asserts that "the aggrieved party may require performance of its obligations". A caveat should be added that the adjudicating body need not order performance unless it "would" do so in similar situations. The Respondent submits that article 28 applies to arbitral tribunals and that it gives this Tribunal a discretion to select an appropriate remedy.
  169.  

  170. There is no reason why article 28 should not apply to arbitral tribunals and the Claimant does not appear to dispute that it does. Arbitration plays a major part in applying the CISG. There are clear indications in the legislative history that arbitral tribunals were intended to fall within the scope of article 28. More importantly, if article 28 were held not to apply to arbitral tribunals, then they would have no discretion as to whether to award performance for breach. This would be contrary to the pragmatic, commercially responsive character of international arbitration. As the CISG is the foremost set of international contract rules, it would be disastrous to interpret it to inhibit this flexibility.
  171.  

  172. Applying article 28 to this Tribunal compels the conclusion that it is not required to award performance at the buyer’s behest. Article 28 provides that a court is only bound to award performance under article 46 where it routinely does so in respect of similar contracts not governed by the CISG. The crucial word in article 28 is "would". It was altered from "could" at the Diplomatic Conference to prevent the court’s discretion to award performance from being fettered simply because it had wide powers to do so. The Claimant’s submissions overlook this crucial point. The Claimant argues that article 28 does not apply because:
  173. …the courts of four countries relating to the dispute at hand (Danubia, Equatoriana, Mediterraneo and Polarity) "can and do issue orders of specific performance".

     

  174. The fact that the tribunal "can" order performance is insufficient – it must be shown that it "would" do so in respect of similar sales contracts not governed by the Convention. This cannot be shown. Absent the CISG, there is nothing to displace this Tribunal’s inherent remedial flexibility. Therefore this Tribunal falls within article 28 and, in the event of a breach, has discretion as to the appropriate remedy.
  175.  

    B International arbitral tribunals should rarely order performance

     

  176. The Respondent submits that in exercising this discretion, the Tribunal must consider the unique problems created by international arbitral orders of performance. Arbitral tribunals rely on domestic courts to enforce their awards. Without this enforcement, arbitral awards are meaningless. More than this, non-enforcement erodes confidence in the arbitral process and is damaging to the system as a whole. In this context, it is particularly important that international commercial arbitrators draft enforceable awards.
  177.  

  178. The Respondent’s argument is that awards of specific performance carry a risk of non-enforcement. This is on two related grounds: such awards are time-consuming and complicated to enforce; and they involve the enforcing courts too deeply in what should ideally be a largely mechanical task.
  179.  

  180. The process of enforcing an arbitral award is much more complicated when it involves the performance of acts instead of the payment of money. Damages awards can be enforced by translation into a domestic money judgment which is enforceable by a single body within the bounds of one country. Conversely, orders of performance require supervision by the courts of often multiple jurisdictions and thus potentially require closely co-ordinated efforts from separate enforcement mechanisms. There is no set of rules detailing how this is to be achieved. In addition, it cannot be overlooked that many countries have firm rules as to when specific performance is an appropriate remedy. The fact that these states might have to play an active role in supervising, co-ordinating, and deciding which part of a complicated award to enforce, places this award in jeopardy.
  181.  

  182. There is little precedent for arbitral tribunals to order performance. In the few instances where awards have been made, substantial criticism has followed. Clearly, the award of performance by an arbitral tribunal is a controversial matter. There is therefore a danger that, in light of these problems, states may take advantage of the public policy exception in the New York Convention to refuse to enforce such awards. This real risk must be considered.
  183.  

  184. For these reasons, awards of performance, if made at all, should be made sparingly. The threshold for ordering performance instead of a conventional award of damages must be very high.
  185.  

    C If a breach is found, damages are the only appropriate remedy

     

  186. The Respondent argues that this high threshold is not met in this case. An award of performance is not justified. There are two reasons for this.
  187.  

  188. The first is that it would cause Deep Well considerable hardship. Oil rig prices have risen dramatically since 13 May 1997. Rig #23 is now worth significantly more than its contract price. Conversely, since the initial negotiations Speculative has become extremely unlikely to actually take the rig. The recent press statement from the Government of Polarity is a thinly veiled preliminary to a wholesale withdrawal from major public works projects. Clearly it is specifically targeted at the new, controversial and highly expensive Active #2 development. If that field is not developed, Speculative will have no need for an oil rig.
  189.  

  190. The potential cost to Deep Well is high. An order of performance would require it to mothball an idle rig during an market boom. In the context of an almost inevitable withdrawal from Speculative, this far outweighs the potential cost to Speculative of having to make fresh arrangements. An order of performance thus would be economically inefficient. The Claimant has failed to present convincing reasons for the order. Its argument is founded on dubious assertions such as the claims that, should Speculative not succeed, it will "be forced out of business"; and "Speculative as a buyer can not go out into the market and contract with another seller". No evidence is provided (or available) to support either exaggeration.
  191.  

  192. More importantly, ordering Deep Well to perform would heavily distort the contract in favour of Speculative. Fundamentally, it is unfair to grant a remedy to one party that is unavailable to the other. The reasons for this are twofold: the breaching party would not be sufficiently protected in view of the unenforceable obligations of the other party; and the adjudicating body is no longer neutral - it is requiring one party to do that which it could not require the other. In British and North American law, this situation is said to display a ‘want of mutuality’ and performance is considered an inappropriate remedy.
  193.  

  194. This is the case here. Although Speculative is presently bound to take the rig, pursuant to clause 6 of the contract it retains the right to cancel the contract at any time before 15 May 1998. Therefore Deep Well can receive no guarantee of corresponding performance. Speculative simply cannot be required to perform its side of the bargain. In light of this, it would be manifestly unfair to greatly increase the sanctions for Deep Well breaching its contract.
  195.  

  196. As a final point, the Respondent wishes to clarify that it does not oppose this order because it actively intends to sell the rig in breach of any contract with Speculative. It genuinely does not intend any breach of contract whatsoever. Although it disputes the existence of a contract, this in itself does not justify the draconian measures the Claimant wishes to impose.
  197.  

  198. The Respondent opposes the order because the order unjustly imposes far heavier penalties upon its conduct that did its freely bargained contract. The fact that a party intends to carry out a contract does not mean that it is then immaterial what the costs of not carrying it out will be. The penalties for breach of contract are a part of the contract itself. Coercing Deep Well to either perform or be held in contempt of court in multiple jurisdictions is unjust and distorts the equilibrium of the contract. As such it is an inappropriate remedy.


This concludes the Submissions for the Respondent.

Daniel Kalderimis Christopher Holland Michael Preston

 

Counsel for the Respondent