CODE- P 35

Before

THE ARBITRAL TRIBUNAL

AT

NUJS, KOLKATA

DUNDER MIFFLIN PAPER COMPANY INC. …CLAIMANT

SABRE INDIA PVT. LTD. …DEFENDANT

MEMORANDUM FOR THE CLAIMANT

DUNDER MIFFLIN PAPER COMPANY INC.,

 -Table of Contents-

TABLE OF CONTENTS

TABLE OF CONTENTS ........................................................................................................ I

LIST OF ABBREVIATIONS ................................................................................................ II

INDEX OF AUTHORITIES ................................................................................................ III

STATEMENT OF JURISDICTION ................................................................................... IV

STATEMENT OF FACTS ..................................................................................................... V

QUESTIONS PRESENTED ............................................................................................. VIII

SUMMARY OF ARGUMENTS .......................................................................................... IX

ARGUMENTS ADVANCED .................................................................................................. 1

1.THE TRIBUNAL SHOULD NOT REFER THE PARTIES TO SETTLE THEIR

DISPUTE THROUGH NEGOTIATION .............................................................................. 1

1.1 IT IS NOT MANDATORY TO BEGIN PRE-ARBITRATION STEPS TO INVOKE ARBITRATION 1

1.2The Parties did not share an amicable relationship to initiate negotiations ......... 2

2.THROUGH THE FACTS AND CIRCUMSTANCES OF THE CASE, THE PARTIES

INTENDED DEFENDANT TO BEAR THE TRANSACTION FEES. .............................. 3

3.THE DEFENDANT CANNOT CLAIM THE DAMAGES FOR THE LOSS OF

ANTICIPATED BUSINESS FROM PROSPECTIVE CUSTOMERS AS THE SAME
WAS NOT FORESEEABLE AND THUS REMOTE .......................................................... 6

PRAYER ................................................................................................................................... 9

MEMORIAL for THE CLAIMANT

- (i) -
 -List of Abbreviations-

LIST OF ABBREVIATIONS

MEMORIAL for THE CLAIMANT

- (ii) -
 -Index of Authorities-

INDEX OF AUTHORITIES

Cases

Compensation Scheme Ltd. v West Bromwich Building Society, (1997) UKHL 284. ............ 4
Hadley v. Baxendale, (1854) EWHC J70. ................................................................................. 6
Ravindra Kumar v. M/S. Bptp Ltd. & Another, 2014 SCC Online Del 6602 ........................... 1
Saraswati Construction Company v. Central Board of Trustees, AIR 2004 Delhi 412, 2004... 2
Sun Security Services vs Babasaheb Bhimrao Ambedkar University, (2015) 1 ADJ 319. ....... 2
Victoria Laundry Ltd. v. Newman Industries Ltd., (1949) 2 KB 528 ....................................... 7
Visa International Ltd v. Continental Resources (USA) Ltd., (2009) 1 SCC 379. .................... 2

Statutes

The Arbitration and Conciliation Act,1996 ............................................................................... 1

The Indian Contract Act, 1872................................................................................................... 6
The Limitation Act,1963 ............................................................................................................ 2
Unidroit Principles, 2016 ........................................................................................................... 3

BOOKS

POLLOCK & MULLA, THE INDIAN CONTRACT AND SPECIFIC RELIEF ACTS, Vol. 2 1182 (14th
ed., 2012). .............................................................................................................................. 6

MEMORIAL for THE CLAIMANT

- (iii) -
 -Statement of Jurisdiction-

STATEMENT OF JURISDICTION

THE CAUSE OF ACTION ARISES WITHIN THE JURISDICTION OF THIS

ARBITRAL TRIBUNAL WHICH HAS JURISDICTION UNDER SECTION 21 OF
THE SALE AND PURCHASE AGREEMENT. THE COUNSEL FOR THE
CLAIMANT HEREBY SUBMITS THE MEMORANDUM TO THE TRIBUNAL.

MEMORIAL for THE CLAIMANT

- (iv) -
 -Statement of Facts-

STATEMENT OF FACTS Commented [D1]: You need to reduce this to 1 and a half
pages
I

The Claimant, DUNDER MIFFLIN PAPER COMPANY, INC., (DMPC) is an industry

leader based in Slough, England which specializes in the sales of office supplies and
technology through business-to-business transactions. DMPC underwent a change of
ownership in 2018 when the parent company MICHAEL SCOTT PLC., sold all its shares due
to a dispute. The Defendants, SABRE INDIA PVT. LTD., (SIPL) is a start-up company
involved in the manufacture of print machines which is based in Mumbai, India. SIPL also
provides personal services for the regular servicing and free repair for minor malfunctions.

II

In 2016, Mr. Nard Dog, COO & Regional Manager of SIPL and Mrs. Big Tuna, head of sales
of DMPC enter into an agreement whereby Claimant was to share their technology and
export print products customized for use in the ATHLEAD 2016 & ATHLEAD 2018 printer
models of the Defendant.

III

Due to the resounding success of ATHLEAD 2016 and ATHLEAD 2018 printer model, the
defendant now planned to expand its business to the industrial sector. On 1 January 2019,
Defendant contacted Claimant for customized products and develop technologies for
manufacturing of new series of industrial printers under the name of “WUPHF”. During pre-
contractual negotiations, Mr. Kevin Malone, the chief financial strategist of DMPC suggested
Mr. Nard Dog against investing in large amounts in the WUPHF early on because this will
lead to a liquidity crunch after production. However, Mr. Nard Dog went ahead and signed
the long term ‘Sale and Purchase Agreement on 1 February, 2019’.

IV

On 1 July 2019, DMPC delivered the agreed products of the first printer model as under the
contract to SIPL and attached an invoice totalling 9,986,000USD exclusive of taxes. On 2
July 2019, SIPL accepted the delivery and discharged payment of the invoice price from BOB
VANCE’S BANK, MUMBAI [BVM] TO BOB VANCE’S BANK, SLOUGH [BVS]. On 16 July 2019,
DMPC notified SIPL that only 9,286,000USD was credited in DMPC’s account due to the

MEMORIAL for THE CLAIMANT

- (v) -
 -Statement of Facts-

7% deduction on the transferred amount for international transaction fees. DMPC requested
SIPL for paying the remaining sum “ASAP as possible”.

On 16 July 2019, SIPL replied by claiming that it had fully discharged its payment obligation
and owed no outstanding dues to DMPC. On 17 July, 2019 DMPC responded claiming it was
instead agreed that it had completely discharged all its payment obligation and owed no dues.
On 17 July 2019 DMPC responded that it was agreed that the transaction fees were to be
borne by SIPL. They also claimed that such process was to be followed not only because of
commercial feasibility and business intent but also added an illegally recovered telephonic
conversation between Dwight K. Schrute, Assistant to the Regional Manager of SIPL and
Angela Schrute, head of party planning committee and head of innovations in DMPC to
substantiate the same. SIPL did not reply to this so DMPC sent another remind on 23 July
2019.

VI

On 29 July 2019, SIPL replied by attaching evidence showing that twice on previous
circumstances it was DMPC who covered the payment and instead claimed from facts and
circumstances surrounding the contract, it was evident that DMPC was to bear the transaction
fees. During this Mr. Nard Dog sent an email to Big Tuna saying he feels betrayed and his
trust on her stands broken. Big Tuna replies to this email claiming that “you’re gonna be
surprised by how ugly it gets”.

VII

On 29 July 2019, DMPC called back Mrs. Angela Schrute from India under Clause 18 of
SPA immediately to England. This led to the delayed sharing of technical know-how and the
training of SIPL’s employees so as to allow them to deal with installation, malfunctions and
repair. This prevented SIPL to deliver the first batch of products to its customers on time as it
was unable to provide the accompanying services of free installation and demonstration.

VIII

This further led to customers cancelling the orders that had been placed with SIPL and also
went on to lose a number of prospective customers who were interested in SIPL’s upcoming
products. SIPL claimed that DMPC had caused them huge losses by failing to comply with

MEMORIAL for THE CLAIMANT

- (vi) -
 -Statement of Facts-

the obligations mentioned in SPA. SIPL also wrote an email blaming DMPC for the lack of
cooperation and sincerity on their end and mentioned: “You will be held responsible for all
these losses, including the loss of anticipated profits.”

IX

On 30th August 2019, DMPC initiated arbitration proceedings against SIPL under Clause 21
of the SPA. On 1 September 2019, SIPL contended that DMPC has not followed the multi-
tiered dispute resolution mechanism which was expressly provided for in Clause 21 of the
SPA and also owes damages to SIPL due to losses in anticipated business.

MEMORIAL for THE CLAIMANT

- (vii) -
 -Questions Presented-

QUESTIONS PRESENTED

1. Whether the Tribunal should refer the parties to first settle their dispute through
negotiation?
2. If it was intended through facts and circumstances of the case that the Parties intended
Defendant to bear the transaction fees?
3. If the defendant can claim the damages for the loss of anticipated business from
prospective customers as the same was not foreseeable and remote?

MEMORIAL for THE CLAIMANT

- (viii) -
 -Summary of Arguments-

SUMMARY OF ARGUMENTS

1. The Tribunal should not refer the Parties to first settle their dispute through
negotiation.
It is submitted that the Tribunal that it should not refer the parties to settle the issue
through negotiation process due to the reason that the pre-arbitration steps and clauses
are not necessary to be followed before invoking arbitration. There was also lack of
amicability between the parties concerned making it impossible to refer the parties to
mutual discussion to invoke arbitration.

2. According to the circumstances it was intended by the Parties that the Defendant
was supposed to bear the international transaction fees.
It is submitted before the Tribunal that according to prevailing circumstances and facts,
the Defendant was aware that the international transaction fees was intended to be borne
by the Defendant and the parties also agreed to do so. The Defendant was at fault for
not accounting for international transaction fees in their selling price and was trying the
shift the burden on the claimant showing lack of good faith and fair dealing.

3. The Defendant cannot claim the damages for the loss of anticipated business from
prospective customers as the same was not foreseeable and thus, remote.
It is submitted before the Tribunal that the Defendant cannot claim the damages for the
loss of anticipated business because the same was not reasonably foreseeable and remote.
The Defendant was new in the industrial sector and did not have a large customer base
to begin with and it was thus not possible to determine the exact quantum of damages
and loss suffered by the Defendant. The special circumstances of the Defendant were
also not communicated to the Claimant thus preventing the leeway of possibly avoiding
damages by way of breach of contracts.

MEMORIAL for THE CLAIMANT

- (ix) -
 -Arguments Advanced-

ARGUMENTS ADVANCED Commented [D2]: Check formatting. All your text should
be 12 and texts should be justified. I’ve justified your text
for now.

1.THE TRIBUNAL SHOULD NOT REFER THE PARTIES TO SETTLE THEIR DISPUTE THROUGH
NEGOTIATION

The Respondent contends that the Claimant cannot invoke arbitration under Clause 21 of the Formatted: Justified

SPA 1as it has not fulfilled the requirement of pre-arbitration negotiation that was required to
be followed under the said clause.

The Claimant submits that it is not mandatory to follow the pre-arbitration steps in order to
invoke arbitration as and therefore is not at fault for invoking arbitration without starting the
pre-arbitral steps. [1.1]. In arguendo, the Claimant submits that both the parties did not share
an amicable relationship with each other to begin the negotiations in the first place. [1.2]

1.1 IT IS NOT MANDATORY TO BEGIN PRE-ARBITRATION STEPS TO INVOKE ARBITRATION

It is submitted that the negotiation clause mentioned in Clause 21 of The SPA is not binding Formatted: Justified
2
or necessary in order to invoke the arbitration clause.

In Ravindra Kumar Verma vs M/S. Bptp Ltd. & Another3 it was mentioned under one of the
clauses of the agreement that all or any dispute that arise out of the contractual obligation must
first be settled amicably by mutual discussion failing which the same shall be settled by
arbitration. In this case, it was held that according to Section 77 of The Arbitration and
Conciliation Act,1996 4(‘Act’), it is necessary to preserve the rights of the parties involved for
initiating arbitration due to the bar of limitation. The existence of conciliation or mutual
discussion should not be a bar to enforce the rights of arbitration either by filing a petition
under Section 115 or filing to dismiss the suit by filing under Section 86 of the Act, as such
proceedings are necessary to preserve rights by the process of arbitration. It was also held that
if the pre- arbitration clause is read in a mandatory manner in order to invoke arbitration it
would cause grave injustice to the party seeking to begin arbitration as the proceedings under
conciliation before the invocation of arbitration is not exempted under the Limitation Act

1
Moot Proposition, Annex- II [SPA].
2
Id.
3
Ravindra Kumar v. M/S. Bptp Ltd. & Another, 2014 SCC Online Del 6602.
4
The Arbitration and Conciliation Act,1996, §77.
5
The Arbitration and Conciliation Act,1996, §11.
6
The Arbitration and Conciliation Act,1996, §8.

MEMORIAL for THE CLAIMANT

- (1) -
 -Arguments Advanced-

1963.7 To illustrate the idea with an example, if on the last day of the limitation period of three
years wants to invoke an arbitration clause and the clause requires the invocation of mutual
discussion before the arbitral proceedings begin, the clause of mutual discussion cannot take
place the day before the expiration of the limitation period and can seriously jeopardize the
rights of getting a matter decide by arbitration.

In Saraswati Construction Company vs Central Board of Trustees8 it was held that that a prior
requirement to be complied with before seeking reference of disputes to the arbitration is
only directory and not mandatory.

Similarly, in Sun Security Services vs Babasaheb Bhimrao Ambedkar University9 there was a
clause where any dispute between the parties was supposed to be settled by the Vice Chancellor
before one can invoke arbitration. It was held that it was only a pre- arbitration dispute
settlement to prevent the case reaching the arbitrator. The mechanism cannot be treated as an
absolute bar and that the decision of the Vice Chancellor itself was arbitrable.

It is submitted that in the present case the negotiation clause can be bypassed as part of the
pre-arbitration process because it is not mandatory and cannot act as an absolute bar to invoke
arbitration. Since the pre-arbitration mutual discussion period is not exempted from the
limitation period, the same can prevent the Claimant from enforcing their rights of getting the
case decided by arbitration. It is also submitted that the negotiation in the present case is only
a dispute settlement clause to prevent the invocation of arbitration, is non-binding and the
agreement reached in the negotiation itself is arbitrable, thus making the whole process a mere
formality.

Therefore, it is submitted that the tribunal should not refer the parties to first settle their dispute
through negotiation.

1.2The Parties did not share an amicable relationship to initiate negotiations

It is submitted that in the present case the parties did not share an amicable and healthy
relationship to begin the mutual discussion and therefore, it was not possible to settle the matter
in an amicable way.

In the case of Visa International Ltd v. Continental Resources (USA) Ltd.10, an article in the Commented [D3]: Should not be in capitals and the ‘v’ in
the middle should not be italicised. So write it as Visa
agreement between the parties provided that any dispute arising out of the agreement should International Ltd. v. Continental Resources (USA)

first be settled amicably failing which it should be settled through arbitration. Visa
International(‘VISA’) sent a letter to Continental Resources(‘CRL’) saying that the agreement

7
The Limitation Act,1963.
8
Saraswati Construction Company v. Central Board of Trustees, AIR 2004 Delhi 412, 2004.
9
Sun Security Services vs Babasaheb Bhimrao Ambedkar University, (2015) 1 ADJ 319.
10
Visa International Ltd v. Continental Resources (USA) Ltd., (2009) 1 SCC 379.

MEMORIAL for THE CLAIMANT

- (2) -
 -Arguments Advanced-

reached earlier between the parties was obsolete and did not incorporate changes for
restructuring the company. CRL alleged in a letter that in spite of repeated requests there was
no reply from VISA. It was finally held that there was no scope of amicable settlement between
the parties which was manifested in the exchange of letters. Thus, the court decided to allow
the bypass of pre-arbitration discussion and invoked arbitration.

The problem of live issue was also discussed. Live Issue means when the parties are in
contention with each other about due in performance or that a particular issue is subsisting and
the parties stand their ground one party may suffer an irrevocable financial loss.11This can be
prevented by speedy and effective arbitration so that the parties can know their true position in
the contract before expiration of the performance of contract.

It is submitted that in the given case there was a loss of amicability between the parties which
can be seen by the lack of cooperation shown by the Defendant. The Defendant replied Commented [D4]: Please cite all the facts and the law

substantially late to all the notifications of the Claimant. In one case the Defendant replied only
after repeated reminders. The further loss of amicability is best manifested in the email that the
Defendant sent to the Claimant saying, “You will be held responsible for all these losses,
including the loss of anticipated profits.”12 After this the Claimant seeing no possible grounds
of negotiation, initiated arbitration on 30th August 2019 under Clause 21 of the SPA.13

Therefore, it is submitted that the tribunal should not refer the parties to settle their dispute
through negotiations.

2.THROUGH THE FACTS AND CIRCUMSTANCES OF THE CASE, THE PARTIES INTENDED
DEFENDANT TO BEAR THE TRANSACTION FEES.

The Respondent contends that the facts and circumstances demanded that it was the Claimant
who was supposed to bear the international transaction fees.

The Claimant submits that the international transaction fees was instead intended to be borne
by the Defendant considering the prevailing circumstances.

Unidroit Principles- ARTICLE 4.114 states that a contract shall be interpreted according to
common intention and if such an intention cannot be established then the contract is to be

11
Visa International Ltd v. Continental Resources (USA) Ltd., (2009) 1 SCC 379.
12
¶ 11, Statement of Facts, Moot Proposition.
13
Moot Proposition, Annex-II [SPA].
14
Unidroit Principles, 2016, Art. 4.1.

MEMORIAL for THE CLAIMANT

- (3) -
 -Arguments Advanced-

interpreted according to the meaning that the reasonable persons as the parties would give to
it in similar circumstances.

Unidroit Principles- ARTICLE 4.8 15states that if the parties in a contract have not agreed to
an important term regarding the determination of rights and duties of the parties present in the
contract, the term appropriate in the contract shall be applied.

It is also stated that in determining what is an appropriate term regard shall be had, among
other factors, to

“(a) the intention of the parties;

(b) the nature and purpose of the contract;

(c) good faith and fair dealing;

(d) reasonableness.”16

In Investors Compensation Scheme Ltd. v West Bromwich Building Society17, it was held
that a contextual approach must be taken for interpretation of contracts.

Lord Hoffman set out five principles18, it is stated that for interpreting a contract one must
take into consideration first, what a reasonable man having all background knowledge would
have understood. Second, any relevant information of the background including the matrix of
fact that affect the languages’ meaning. Third, prior negotiations must be excluded for the
purpose of reducing litigation. Fourth, the meaning of words must be understood not literally
but contextually. Fifth, the presumption that people generally do not commit linguistic
mistakes.

The Defendant contends by attaching a set of emails exchanged between the parties post
success of Athlead 2016 and Athlead 2018 that the transaction fee was on previous occasions
borne by Claimant and even now the same was expected to happen. However, even on both
these occasions the international transaction fees was intended to be borne by the Defendant
and the same can be inferred from the contextual meaning of the emails. On 21 March, 2019
an email was sent by the Claimant to the Defendant pointing out, “the entire invoice price
was not deposited into our account as there was a deduction for international transaction

15
Unidroit Principles, 2016, Art. 4.8.
16
Id.
17
Compensation Scheme Ltd. v West Bromwich Building Society, (1997) UKHL 284.
18
Id.

MEMORIAL for THE CLAIMANT

- (4) -
 -Arguments Advanced-

fees.”19On this occasion however the burden of the fees was borne by the then parent
company Michael Scott Plc. Similarly, on 19 March 2018 the Claimant sent an email to the
Defendant saying, “As a token of appreciation, you need not worry about the deducted
transaction fees, we will bear it.”20All these conducts of the Claimant were clearly done as a
one-time payment and done to show gratitude to preserve business relations. The Claimant
never intended to set a trend or create an image that the international transaction fees on all
occasions would be borne by the Claimant.

In arguendo, it was also explicitly mentioned in the Sale and Purchase Agreement (‘SPA’)
that “the rights and obligations of the parties are to be in accordance with the interpretation
and practices followed in this contract.”21 Therefore, there was no question of bringing trends
or practices followed in previous contracts into the new one.

In the telephonic conversation22 the Defendant clearly mentions that they had missed to
account for the international transaction fees in their selling price and were clearly at fault. It
also shows that the Defendant was aware of its liability to pay the international transaction
fees but decided to back out trying to unjustly benefit. It is also evident from the conversation
between the parties that the Defendant was trying to impose its duty of payment of the
international transaction fees on the Claimant which shows lack of good faith and fair on the
part of the Defendant according to the above-mentioned laws.

From looking at the facts in question in the present case we can deduce that it was the
Defendant that was supposed to bear the international transaction fees. However, applying the
second principle laid down Lord Hoffman we can use relevant background information as
apart of matrix of facts to interpret the contract. In Kevin Malone’s Diary23, it is clearly stated
that during pre-contractual negotiations after the Claimant suggested unlike the previous
contracts, both the drawee and drawer was to be picked from the same company in order to
minimize the foreign transaction fees the Defendant agreed to this proposition and thanked
the Claimant for the same. From the given context we can clearly understand that it was only
because that the Defendant was expected to bear the international transactional fees and the

19
Moot Proposition, Annex-IV [Email Correspondence].
20
Id.
21
Moot Proposition, Annex-II [SPA].
22
Moot Proposition, Annex-III [Telephonic Conversation].
23
Moot Proposition, Annex-I [Diary of Kevin Malone].

MEMORIAL for THE CLAIMANT

- (5) -
 -Arguments Advanced-

new proposition reduced the burden somewhat on the payee and that is the reason why the
Defendant went on to thank the Claimant.

It is therefore submitted that according to the prevailing facts and circumstances it was
intended that the Defendant will bear the international transaction fees.

1. 3.THE DEFENDANT CANNOT CLAIM THE DAMAGES FOR THE LOSS OF Formatted: Heading 1

ANTICIPATED BUSINESS FROM PROSPECTIVE CUSTOMERS AS THE SAME WAS NOT

FORESEEABLE AND THUS REMOTE

The Respondent claims that the Claimant refused to perform the contract and as a result of
which they suffered a loss in reputation and anticipated profits.

The Claimant submits that the anticipated loss in the profits was not foreseeable and very
remote in nature. Further, the fact that the product was a new expansion by the Defendant in
the industrial sector of printers and special circumstances of the agreement was not
communicated to the Claimant.

Section 73 of The Indian Contract Act 187224 provides that when there is a breach of contract
the suffering party is entitled to receive damages that arose naturally in the usual course from
such breach, or which the parties knew while making the contract would arise from such breach
from the party that breached the contract. However, such damages were not to be awarded if
the damages that occurred was very remote and unforeseeable.

In the case of Hadley v. Baxendale25, the Plaintiff’s mill had come to a standstill due to
breakage of their only crankshaft. The defendant failed to deliver the crankshaft within the
stipulated time. Due to this there was a delay in restarting the mill and the plaintiff sued for
damages and loss of anticipated profits. The Court rejected the claim of the plaintiff on the
ground that it was not reasonably foreseeable for the defendant to anticipate that the mill may
suffer from losses if there was delay in the delivery of the crankshaft. The principle laid down
in the case was that the parties can only be held to be responsible for such consequences that
are reasonably foreseeable or contemplated by the parties. If special damages were wholly
unknown to the other party then only general damages from such breach is liable to be paid.26

24
The Indian Contract Act, 1872, § 73.
25
Hadley v. Baxendale, (1854) EWHC J70.
26
POLLOCK & MULLA, THE INDIAN CONTRACT AND SPECIFIC RELIEF ACTS, Vol. 2 1182 (14th ed., 2012).

MEMORIAL for THE CLAIMANT

- (6) -
 -Arguments Advanced-

In Victoria Laundry Ltd. (Windsor) v. Newman Industries Ltd., 27the defendant was to deliver
a boiler to the plaintiffs but the same was delayed by five months. As a result, the claimant
suffered a high value loss of contract from ministry of supply. The claimant sued for damages
of loss of profits from customers that could have been served if the boiler was delivered on
time and the loss of the contract of Ministry of Supply. The Court held that the loss of profits Commented [D5]: Always use capital C

was reasonably foreseeable but the loss of contract of Ministry of Supply was unforeseeable
and too remote considering the circumstances. It was also laid that the party committing the
breach must at the inception and at all stages have the knowledge of the special circumstances
prevailing. When a contract is made the parties do not contemplate a breach and the damages
should be natural and probable. This encourages the innocent party to share such special
circumstances and provides greater leeway to the other party to plan ahead and prevent a
possible breach of contract28

UNIDROIT Principles ARTICLE 7.4.329 states that compensation for damages including Commented [D6]: You cant write it like this. You have to
write – Article 7.4.3 of the Unidroit principles state that
future harm needs to be payed only if the harm was reasonably foreseeable, the probability of (paraphrase).

its occurrence and if the damages cannot be ascertained with a certain degree of certainty then
the damages to be awarded is at the discretion of the court.

In the present case it can be deduced from the circumstances that the loss of anticipated profits
claimed by the Defendant were unforeseeable and remote. The product of the Defendant,
WUPHF, was planned to be launched in the industrial sector which was substantially different
from where the Defendant used to carry on business in the business and personal use sector. It
is therefore unreasonable to claim that the Defendant was anticipating profits from the launch
of product which was very new in the industrial sector. The goodwill that the Defendant had
created for itself in the personal and business sector with Athlead 2016 and Athlead 2018
printer models, the same could not be extended to the industrial sector.

Also, the Defendant did not have a large customer base to begin with and only ‘a few’ Commented [D7]: Please maintain consistency

customers had cancelled the order on learning about the delay. Hence the probability of loss in
anticipated profits was negligible.

That the Defendant had entered into contracts with other parties and was in the process of
negotiations with some was not intimated to the Claimant, as a result precautionary safeguards

27
Victoria Laundry Ltd. v. Newman Industries Ltd., (1949) 2 KB 528.
28
POLLOCK & MULLA, THE INDIAN CONTRACT AND SPECIFIC RELIEF ACTS, Vol. 2 1184 (14th ed., 2012).
29
Unidroit Principles, 2016, Art. 7.4.3.

MEMORIAL for THE CLAIMANT

- (7) -
 -Arguments Advanced-

were not placed to prevent the breach and thus the claim of loss of anticipated business is too
remote in the present case. It can also be argued that since the Defendant was new in the
industrial sector and did not have a past record of sales, calculating the anticipated profits
becomes increasingly difficult and cannot be made certain. Commented [D8]: First you cannot suddenly write law in
between facts. Second- general damages you don’t need to
write about as it is not an issue in this case.
Thus, the Claimant submits therefore that the Tribunal should not award damages for the loss
of anticipated business from prospective customers as it was unforeseeable and remote.

MEMORIAL for THE CLAIMANT

- (8) -
 -Prayer-

PRAYER

In the light of the issues raised, arguments advanced and authorities cited, the Counsel for
the Claimant humbly prays before this Arbitration Tribunal to kindly adjudge, hold and
declare:

1. The Claimant has the right to file arbitration proceedings directly without
invoking the pre-arbitration proceedings, and Clause 21 of The SPA is only
directory in nature.
2. The Defendants should be held liable to pay the foreign transaction fees, under
the contract.
3. The Defendant is not entitled to damages for loss of anticipated business as it is
not reasonably foreseeable and thus, remote.

And for this act of kindness, the Claimant as in duty bound, shall forever pray.

MEMORIAL for THE CLAIMANT

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