MEMORIAL FOR RESPONDENT | 1911

HCMULAW MOOT COMMUNITY TRYOUT COMPETITION 2019

Ho Chi Minh City Arbitration Center

MEMORIAL FOR RESPONDENT

ON BEHALF OF AGAINST

ALOHA VIETNAM CO., LTD ROBINSON VINA CO., LTD

RESPONDENT CLAIMANT
 TABLE OF CONTENTS

STATEMENT OF JURISDICTION ........................................................................................... 1

STATEMENT OF FACTS ........................................................................................................... 2

ARGUMENTS............................................................................................................................... 4

ISSUE 1: THE DISTRIBUTION AGREEMENT BETWEEN CLAIMANT AND

RESPONDENT IS AN AGENCY CONTRACT ....................................................................... 4

A. THE DISTRIBUTION AGREEMENT MUST MEET FUNDAMENTAL

REQUIREMENTS TO BE CONSIDERED A LEGAL AGENCY CONTRACT .............. 4

(I) The Parties are legitimate subjects of Vietnamese Law ..................................................... 4

(II) The form of the agreement must comply with Vietnamese Law, especially Vietnam
Commercial Law ..................................................................................................................... 5

B. THE TERMS AGREED IN THE CONTRACT BY TWO PARTIES MEET THE

BASIC TERMS OF AN AGENCY CONTRACT SPECIFIED IN THE VCL. .................. 5

(I) RESPONDENT’s performance of the contract is under CLAIMANT’s supervision in

accordance with Art. 172(5) and Art. 175(6) VCL ................................................................. 5

(II) Agency remuneration shall be paid to RESPONDENT in the form of price margin
according to Art. 171(1) VCL: ................................................................................................ 6

(III) RESPONDENT is an off-take agent pursuant to Art. (174.4) ......................................... 6

C. THE SALES OF GOODS WHICH ARE DELIVERED FROM CLAIMANT ARE

CONDUCTED BY RESPONDENT ON ITS OWN NAME ................................................. 7

D. EVEN THOUGH THE GOODS ARE DELIVERED TO RESPONDENT,

CLAIMANT REMAINS THE OWNER OF THE GOODS ................................................. 7

CONCLUSION TO ISSUE 1 ....................................................................................................... 8

ISSUE 2: THE AGREEMENT BETWEEN ROBERT AND DAVIDE ON 21 JULY 2018

CONSTITUTES AN AMENDMENT TO THE DISTRIBUTION AGREEMENT ............... 9
 A. CONTRACT PARTIES ARE ENTITLED TO ADJUST THE CONTRACT:.............. 9

B. THE PARTIES AGREED TO AMEND THE CONTRACT ON THEIR OWN WILL

................................................................................................................................................... 11

C. THE MINUTES OF MEETING IS LEGALLY BINDING AS A PART OF

CONTRACT DOCUMENTS. ................................................................................................ 11

(I) Subjects participating in the contract amendment are authorized: ................................... 12

(II) The minutes shall point out the reasons and purposes of the meeting ............................ 12

(III) The minutes of meeting complies with the formalities of the initial contract under
Art.421(3) CC ........................................................................................................................ 12

(IV) Minutes of meetings was signed by both contract parties ............................................. 13

CONCLUSION TO ISSUE 2 ......................................................................................................13

ISSUE 3: CLAIMANT IS NOT ENTITLED TO REPAYMENT OF THE DEBTS OWED

BY RESPONDENT ..................................................................................................................... 14

A. PAYMENT OBLIGATION IS NOT YET DUE ............................................................. 14

B. PAYMENT OBLIGATION WILL BE ARISE ON CONDITION THAT

RESPONDENT COULD CLEAR ALL ITS INVENTORIES ........................................... 14

C. CLAIMANT HAS THE OBLIGATION TO CREATE THE BEST OPPORTUNITIES

FOR RESPONDENT TO PERFORM THE CONTRACT ................................................. 15

CONCLUSION TO ISSUE 3 ..................................................................................................... 16

REQUEST FOR RELIEF .......................................................................................................... 17

 STATEMENT OF JURISDICTION

The Ho Chi Minh Arbitration Center (“HAC”) has jurisdiction to adjudicate this case, since
Robinson Vina Company Limited (“CLAIMANT”) and Aloha Vietnam Company Limited
(“RESPONDENT”) agreed in the Distribution Agreement for all claims and disputes arising out
of or connected with this agreement. In accordance with the agreement, the arbitration award shall
be final and the parties shall bound and act accordingly.

The parties have agreed that the applicable law shall be the laws of Vietnam. Both CLAIMANT
and RESPONDENT are Vietnamese traders, established and conducted in Vietnam, therefore, the
laws applied shall be the laws in where the dispute happen. In reality, the dispute in this case
happens in Vietnam. Hence, the applicable law shall be any laws of Vietnam if they are appropriate
for the case.

1
 STATEMENT OF FACTS

RESPONDENT is a company established in Vietnam and active in distributing Birdman-related

toys in Vietnam. CLAIMANT is wholly owned by CLAIMANT USA, Inc. (“ROBINSON US”),
whose business in Vietnam importing toys from CLAIMANT US and resell to a Vietnamese
distributor, so the Vietnamese distributor could sell the toys to the customers.

On 20 December 2010, CLAIMANT entered into a Distribution Agreement with RESPONDENT,

a Vietnamese company specializing in distributing toys in the South of Vietnam. RESPONDENT
will distribute the product under the codename ALPHA-100 in the territory of Vietnam.
RESPONDENT is prohibited to sell ALPHA-100 outside the territory of Vietnam. Every 6
months, RESPONDENT shall pay CLAIMANT with the purchase price of the products.

On 1 June 2016, CLAIMANT entered into another Distribution Agreement with a Vietnamese
company called Quynh Quynh Trading Company (“Quynh Quynh”). Quynh Quynh shall only
distribute ALPHA-100 in the territory of Cambodia.

During the spring of 2018, there was a significant change in the market condition that makes the
sales of ALPHA-100 in Vietnam extremely difficult. The total sales of the product dropped for
around 25%. On the other hand, the business in Cambodia is still stable.

On 20 July 2018, RESPONDENT’s CEO Robert Wilson sent an email to Davide Russotto to
inform the bad business in Vietnam and that they cannot fulfil the sales target of that year.

On 21 July 2018, Davide met with Robert at RESPONDENT’s HQ. Robert and Davide agreed
verbally that CLAIMANT would not make any sales of new products to the market until
RESPONDENT could clear all their inventories of ALPHA-100. RESPONDENT was owing
CLAIMANT around USD800,000 as late payment for the year 2018 and RESPONDENT shall
repay CLAIMANT no later than 5 December 2018. Commitments and acknowledgment were
recorded in the Minutes of Meeting.

On 10 October 2018, Robert received a letter from CLAIMANT, which demanded that
RESPONDENT must repay USD800,000 owed to CLAIMANT immediately and warned that
CLAIMANT would initiate a lawsuit against RESPONDENT should it fail to comply.

2
On 1 November 2018, CLAIMANT referred the dispute to the Ho Chi Minh City Arbitration
Center (“HAC”) for resolution. RESPONDENT sent a notice on 2 November 2018 to HAC
confirming their acceptance of jurisdiction of HAC.

On 3 November 2018, both parties appointed the arbitrators and president of the tribunal.

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 ARGUMENTS

ISSUE 1: THE DISTRIBUTION AGREEMENT BETWEEN CLAIMANT AND

RESPONDENT IS AN AGENCY CONTRACT

The distribution agreement between two parties is an agency contract. Firstly, such agreement
fulfills the fundamental conditions in respect of a legal agency contract [A]. Secondly, the terms
agreed in the contract by two parties meet the basic terms of an agency contract specified in the
VCL [B]; thirdly, the sales of goods delivered from CLAIMANT are conducted by
RESPONDENT on its own name and [C]; lastly, even though the goods are delivered to
RESPONDENT, CLAIMANT remains the owner of them [D].

A. THE DISTRIBUTION AGREEMENT MUST MEET FUNDAMENTAL

REQUIREMENTS TO BE CONSIDERED A LEGAL AGENCY CONTRACT

1. That a contract is considered a legal agency contract must meet two requirements. First, the
Parties are legitimate subjects of Vietnamese Law (I). Second, the form of the agreement
must comply with Vietnamese Law, especially Vietnam Commercial Law (II).

(I) The Parties are legitimate subjects of Vietnamese Law

2. Pursuant to Art.1 167(1) and Art. 167(2) Vietnamese Commercial Law2, Parties concluding
the contract must be traders. Art. 6(1) Vietnam Commercial Law states that a trader must be
legally established, conduct commercial activities in an independent and regular manner and
have business registration. Thus, the legitimate subject, who is a party to a commercial
contract, is a trader. In addition, the requirements for a legitimate trader are their legal
establishment in respect of an organization, their independent and regular conduct of
commercial activities and the acquisition of business registration. In this case,
RESPONDENT is a Vietnamese trader as it is legally established in Vietnam with Enterprise
Registration Certificate No. 1 510201803193, and it independently and regularly distributes

1
Hereinafter “Art.”.
2
Hereinafter “VCL”
3
Moot problem, exhibit 1, p. 4

4
 toys in the South of Vietnam. CLAIMANT is a Vietnamese trader as it is established with
Investment Certificate No. 2012199820054 and independently distributes Birdman-related
toys in Vietnam. Therefore, RESPONDENT and CLAIMANT are legitimate parties to the
Distribution Agreement.

(II) The form of the agreement must comply with Vietnamese Law, especially Vietnam
Commercial Law

3. Art. 168 VCL states that the form of a commercial contract must be made in writing or any
other forms of equivalent legal validity. In this case, the Distribution Agreement is concluded
in the form of writing. Thus, it fulfills the requirement of a commercial contract in terms of
the formality.

B. THE TERMS AGREED IN THE CONTRACT BY TWO PARTIES MEET THE

BASIC TERMS OF AN AGENCY CONTRACT SPECIFIED IN THE VCL.

(I) RESPONDENT’s performance of the contract is under CLAIMANT’s supervision in

accordance with Art. 172(5) and Art. 175(6) VCL

4. Art 172(5) and Art. 175(6) VCL granted principal the right to inspect and supervise
agent’s performance of contract. Agent is obliged to report to principals on their
activities.
5. Robinson reserves the right to inspect and supervise Aloha’s commercial activities of
their products for the purpose of sale reporting and tracking. Vice versa, Aloha must
frequently submit its sales reports to Aloha and
- Robinson will assign a sales target for Aloha for that financial year.5
- Aloha will maintain complete and accurate records of all transactions related to
Products and ensure that all data submitted by Aloha.6

4
Moot problem, exhibit 1, p. 4
5
Moot problem, Uncontested facts, para. 2
6
Moot problem, exhibit 1, para. 9

5
 - Aloha shall allow Robinson to inspect and conduct regular audits of Distributor’s books
and records and activities and to carry out periodic business reviews during the term of
this Agreement and for a period of one (1) year thereafter7

(II) Agency remuneration shall be paid to RESPONDENT in the form of price margin
according to Art. 171(1) VCL:8

(i) If principals do not fix goods sale prices but fix only agency prices, agents shall enjoy
price margins9.
6. CLAIMANT will charge RESPONDENT the then-applicable Distributor List Price for
the Products (which may be expressed as a Suggested Retail Price less applicable current
Distributor discounts) 10. The term “Distributor List Price” can also be understood as
agency price. In addition, by the term “will charge the then-applicable Distributor list
price for the products”, it can be inferred that RESPONDENT is only obliged to pay the
CLAIMANT the purchase price of the products.11

(ii) Price margin is determined to be the difference between sale price and the price fixed
by the principals for the agent.12
7. RESPONDENT’s remuneration is price margin, which is determined by the difference
between agency price and the RESPONDENT's retail price.13 Therefore, any profits from
RESPONDENT’s retail trade is under his ownership.

(III) RESPONDENT is an off-take agent14 pursuant to Art. (174.4)

8. RESPONDENT is an off-take agent according to Art.174(4) because he is entitled to

determine the actual retail price to his customer in its own discretion in accordance with
applicable laws and regulations, and may differ from the Suggested Retail Price published

7
Ibid.
8
See Art. 171(1) VCL
9
Art. 171(3) VCL
10
Moot problem, exhibit 1, para. 11, line 1-4
11
Moot problem, Uncontested facts, para. 2
12
See Art. 171(3)
13
Ibid.
14
Art. 169(1) VCL

6
 by CLAIMANT.15 Because Suggested Retail Price published by CLAIMANT is only for
the purpose of reference and not compulsory to RESPONDENT.

C. THE SALES OF GOODS WHICH ARE DELIVERED FROM CLAIMANT ARE

CONDUCTED BY RESPONDENT ON ITS OWN NAME

9. Paragraph 24 in Distribution Agreement states that Distributor shall not, and is not authorized
to, make any promises, representations, or warranties concerning CLAIMANT or any
Products.16 Therefore, Distributor has the obligation of not making any representations in
connection with CLAIMANT. Furthermore, Paragraph 24 also indicates that CLAIMANT
is not a party in the agreement of Distributor and its customers. Because RESPONDENT
directly sells the products to its customers, in the event of any claims upon the products,
RESPONDENT must be held responsible for its conduct.

D. EVEN THOUGH THE GOODS ARE DELIVERED TO RESPONDENT, CLAIMANT

REMAINS THE OWNER OF THE GOODS

10. According to Art. 170 VCL, the Principal is the owner of goods or money delivered to the
agent(s). Art. 62 VCL refers to the time of transferring ownership of goods, specifically
“Unless otherwise provided for by law or agreed upon by the parties, ownership of goods
shall be passed from the seller to the purchaser as from the time of handover of the goods.”
From the two articles, it can be seen that the principal is still in charge of the goods although
they were delivered to the agent. In addition, in the relationship of selling and buying, a
buyer has the ownership, including the right to dispose of the property, when he receives the
property and finishes his duty to the seller. Thus, the right to own the goods of CLAIMANT
is determined on CLAIMANT’s discretion to alter the products and the limit of
RESPONDENT’s right in terms of changing the labels, making promises or warranties.

15
Moot problem, exhibit 1, para. 17, line 2-4
16
Moot problem, exhibit 1, para. 24

7
11. CLAIMANT has the discretion to alter the specifications of the products after the delivery
of goods. Specifically, the term “From time to time” indicates no specific time during the
performance of Agreement can limit CLAIMANT’s right to change the specifications of the
products. The term “in its sole discretion” states that after the receipt of goods,
RESPONDENT does not have the right to interfere with CLAIMANT’s demand to change
the specifications of the products.
12. RESPONDENT does not have the right to interfere with CLAIMANT’s demand to change
the specifications of the products. RESPONDENT is not allowed to change the label on the
products without CLAIMANT’s consent17, after its receipt of the goods. The term “prior
consent” indicates the condition for RESPONDENT to make alterations to products is the
beforehand consent of CLAIMANT.
13. In addition, RESPONDENT is not allowed to make promises or warranties concerning
CLAIMANT or the products18. Although RESPONDENT paid the price for the product,
RESPONDENT can not make promises or warranties pertaining to the products. Therefore,
RESPONDENT does not have the right to renounce or transfer the ownership to another
person. This means RESPONDENT has yet to be the owner of the goods.

CONCLUSION TO ISSUE 1

14. The Distribution Agreement between Parties is an agency contract because it satisfies the
fundamental requirements of a legal agency contract; its terms meet the basic terms of an
agency contract specified in the VCL; the sales of goods are conducted by RESPONDENT
on its own name and CLAIMANT remains the owner of goods even after the delivery.

17
Moot problem, exhibit 1, para.24
18
Moot problem, exhibit 1, para. 25

8
ISSUE 2: THE AGREEMENT BETWEEN ROBERT AND DAVIDE ON 21 JULY 2018
CONSTITUTES AN AMENDMENT TO THE DISTRIBUTION AGREEMENT

15. CLAIMANT and RESPONDENT ’s mutual agreement on 21 July 2018 may be considered
as an amendment to the initial distribution agreement if it meets these following criteria:
[A] parties are entitled to adjust the contract under Art 401(2) VCC and as specified in the
agreement; [B] the parties agreed to amend to contract on their own will and [C] the
minutes of meeting is legally binding as a part of contract documents.

A. CONTRACT PARTIES ARE ENTITLED TO ADJUST THE CONTRACT:

16. According to Art. 401(2), CLAIMANT and RESPONDENT have the right to modify the
contract as agreed. They come to an agreement of amending the contract in paragraph 4119,
whose requirements which will be precisely analyzed in [C].

17. RESPONDENT Has the right to amend the contract due to the fundamental change under
Art. 420 (1) VCC because the situation occurred has met the conditions listed below:

(i) The circumstances change due to objective reasons occurred after the conclusion of the
contract;

18. During the spring of 2018, in the process of the contract, a significant change in the market
condition makes the sales of ALPHA-100 difficult. This event is due to objective factors,
completely not in control of any party.

(ii) At the time of concluding the contract, the parties could not foresee a change in
circumstances;

19
Moot problem, exhibit 1, para. 41, line 7-11

9
19. As mentioned above, the change in the market condition occurred in 2018, which is nearly
8 years after entering the contract. The time distance is so significant that by no means
could RESPONDENT foresee the change in market condition.

(iii) The circumstances change such greatly that if the parties know in advance, the contract
has not been concluded or are concluded, but with completely different content;

20. The change in the market condition made the sales of the products dropped for around
25% at that time. Many distributors in Vietnam decided to terminate their business
relationships with CLAIMANT4.
21. It is easy to inferred from the above information that if RESPONDENT and CLAIMANT
had known the significant change in economy, they would not have entered the contract
because CLAIMANT may change the distributed market. The business in Cambodia is
more stable in the time of the event.20
22. Otherwise, the content of the contract would have been different, such as CLAIMANT
will not distribute the product for RESPONDENT in this year and the distribution
agreement will continue after this difficult time.

(iv) The continuation of the contract without the change in the contract would cause serious
damage to one party;

23. The situation was getting bad everyday and RESPONDENT could not fulfil the sales
target. According to the contract between RESPONDENT and CLAIMANT, every 6
months RESPONDENT is obliged to pay CLAIMANT with the purchase price of the
products. Nevertheless, the market situation is getting worse and worse that
RESPONDENT cannot sell the products and pay for CLAIMANT. Every 6 months,
RESPONDENT still has to send CLAIMANT money. However, the market situation was
getting worse and worse so that RESPONDENT could not goods and had money to pay
for CLAIMANT. The continuation of agreed payment terms in the contract may affect the
financial viability of RESPONDENT, which can result in serious losses later.

20
Moot Problem, para. 5, para. 6

10
 (v) The party having interests adversely affected has adopted all the necessary measures in its
ability, in accordance with the nature of the contract, cannot prevent or minimize the extent of
effect.

24. Having noticed the significant sales drop, RESPONDENT immediately wrote to
CLAIMANT to present their current situation and capabilities of fulfil the target to prevent
further damage as much as possible. In addition, RESPONDENT proposed a meeting
figure out resolutions to the problem. Thus, it can be deduced that RESPONDENT was
extremely willing in adopting any possible measures in his ability to minimize the extent
of effect.

B. THE PARTIES AGREED TO AMEND THE CONTRACT ON THEIR OWN WILL

25. The term “will” is constituted of their freedom of will and their act of will. The first element
is their wishing to amend the contract terms in accordance with the interests of their own.
The latter indicates their actively conducting the meeting and negotiating.21
26. The acknowledge of contract amendments and signing of the minutes from CLAIMANT
and RESPONDENT were completely voluntary and without being forced by any party.
The willingness is expressed by the fact that RESPONDENT’s writing to CLAIMANT,
informing the business situation and proposing to conduct a general meeting to amend the
contract for their own good.

C. THE MINUTES OF MEETING IS LEGALLY BINDING AS A PART OF CONTRACT

DOCUMENTS.

27. Currently, there are no specific provisions on the legal effect of a memorandum, as well as
a minutes of meeting. However, based on practical application, a minutes of meeting will
be legal binding as a contract document on condition that it meet these following
requirements: (I) Subjects participating in the contract amendment are authorized; (II) the

21
See issue 1

11
 minutes shall point out the reasons and purposes of the meeting; (III) complies with the
formalities of the initial contract and (IV) was signed by both contract parties.

(I) Subjects participating in the contract amendment are authorized:

28. The term “parties” in Are.21(1) VCC 2015 is understood as legal entities or persons. Two
parties of this contract are legal entities.22 Therefore, subjects participates in commercial
contracts as well as amendments to it shall be established on behalf of the legal entity. In
this case, the persons directly involved in signing the minutes to amend the contract are
RESPONDENT’s CEO and CLAIMANT’s CEO[4], who are legal representative of the
two legal entities.23 The signatures of two representatives give rise to the binding rights
and obligations of both parties recorded in the minutes.

(II) The minutes shall point out the reasons and purposes of the meeting

29. The mutual agreement was made between CLAIMANT and RESPONDENT with the
purpose of changing the payment terms and products delivery. In particular, they agreed to
postpone the due date of payment to 5 December 2018 and RESPONDENT must clear all
its inventories.24
30. Above changes are based on the wishes of both parties, for their own legitimate interests.
These changes are reasonable, does not violate regulations of law and is not contrary to
social ethics. 25

(III) The minutes of meeting complies with the formalities of the initial contract under
Art.421(3) CC

31. The contract between CLAIMANT and RESPONDENT is commercial contract, which
must be made in writing pursuant to Art. (168) VCL. As a result, in order to become a
contract document, the agreement on 21 July 2018 must be made in writing to conform

22
Moot Problem, para 6
23
Art.13(1), Law on Enterprises 2014 and Art. 137(1)(b), Vietnam Civil Code 2015
24
Moot problem, para 6
25
Art.3(2) and Art.117(1)(c), Vietnam Civil Code 2015

12
 with the initial contract. Their commitments and acknowledgment were recorded in the
Minutes of Meeting.

(IV) Minutes of meetings was signed by both contract parties

32. As a matter of fact, amendments are valid when recognized and signed by both parties. The
signature shows the acknowledgment of the legal value of the record and confirms the facts
recorded in the minutes are true.
33. The contract was made in writing and signed by Davide Russotto (RESPONDENT’s legal
representative) and Robert Wilson (CLAIMANT’s representative), who are authorized by
the parties to act on their behalf.26
34. Besides, CLAIMANT and RESPONDENT stated in the contract one of the conditions for
the effective amendment agreement by the clause “No conditions, usage of trade, course
of dealing or performance, understanding or agreement purporting to modify, vary, explain
or supplement the terms or conditions of this Agreement shall be binding unless hereafter
made in writing and signed by the party to be bound”.27

CONCLUSION TO ISSUE 2:

35. The agreement between Mr. Davide and Mr. Robert is considered an amendment to the
initial distribution contract because contract parties are entitled to adjust it under Art 401(2)
VCC and as provided in the contract itself; the parties agreed to amend to contract on their
own will and the minutes of meeting is legally binding as a part of contract documents.

26
See issue 2.[B].(i)
27
Moot problem, exhibit 1, para. 41

13
ISSUE 3: CLAIMANT IS NOT ENTITLED TO REPAYMENT OF THE DEBTS OWED
BY RESPONDENT

36. CLAIMANT is not granted the repayment of debts from RESPONDENT because [A] the
payment of obligation is not yet due; [B] Payment obligation will arise on condition that
RESPONDENT could clear all its inventories and [C] CLAIMANT has the obligation to
create the best opportunities for RESPONDENT to perform the contract.

A. PAYMENT OBLIGATION IS NOT YET DUE

37. Payment clause has been changed due to the amendments on 21st July 2018. The debts
$800.000 RESPONDENT owed to CLAIMANT will be due until 5th December 2018 as
agreed on 21st July 201828.
38. The two parties who accepted RESPONDENT’s late payment, particularly $800,000.
RESPONDENT will pay this debt no later than 5th December 2018 with RESPONDENT
could clear all of its inventories as agreed on 21st July 201829. In other words, if it is not
possible to clear all of its inventories until 5th December 2018, the payment obligation is
not yet due.

B. PAYMENT OBLIGATION WILL BE ARISE ON CONDITION THAT RESPONDENT

COULD CLEAR ALL ITS INVENTORIES

39. As the parties have agreed on 20th July 2018, CLAIMANT and RESPONDENT will
together find the solutions to get through the crisis happen in that moment and the deadline
for RESPONDENT to meet the sales target of CLAIMANT will not be meet30.
40. On 21st July 2018, the parties have verbally agreed to each other that the sales target for
RESPONDENT should be adjusted31. Under Art.385 Vietnam Civil Code 2015, contract
is the agreement between parties that establishes, modifies and terminates each other civil
rights. There is no formality binding to this contract, therefore, verbal contract is accepted

28
Moot Problem, Uncontested Facts, para. 6
29
Moot Problem, Uncontested Facts, para. 6
30
Moot Problem, Uncontested Facts, para. 5
31
Moot Problem, Uncontested Facts, para, 6

14
 in this situation and RESPONDENT must keep their promise and will not charge
RESPONDENT until they have cleared all of their inventories as agreed.
41. CLAIMANT's delay in addressing the problem of a distributorship has led to difficulties
of RESPONDENT in selling to customers. CLAIMANT acknowledged that
RESPONDENT was exclusive distributor of ALPHA-100. However, the fact that another
dealer in Tra Vinh (Mr. Long) selling the products at a much more discounted price than
Respondent, did has greatly impacted on Respondent’s sales competency. Thus, affecting
Respondent’s ability to clear its inventories. Regarding the nature of the agency contract,
the agent's obligation to pay does not necessarily arise when the principal fulfills his
obligation to deliver the goods but only as a result of the act of selling the goods to a third
party32. Therefore, Respondent will not have the payment obligations on the due time 5
December due to its difficulties in selling to the customer and clearing the inventories

C. CLAIMANT HAS THE OBLIGATION TO CREATE THE BEST OPPORTUNITIES

FOR RESPONDENT TO PERFORM THE CONTRACT

42. Under Art.173 Vietnam Commercial Law 2005, principles (CLAIMANT) have the
obligation to guide, supply information to, and facilitate agents (RESPONDENT) to
perform agency contract. In this case, CLAIMENT has not performed fully their obligation
when they do not inform RESPONDENT about the upcoming economic event when they
have full ability to foresee that event. In every company there is a division to do a given job
called risk management. This division helps the company predict and foresee the upcoming
economic events of the upcoming years so that the other divisions of the company can bring up the
best solutions to overcome these kinds of crisis.33
43. Although CLAIMANT has agreed to assist RESPONDENT by adjusting the sales target
as agreed upon 21st July 2018, they do not keep their promise and result in the dispute both
of the parties have today.

32
Nguyen Thi Kim Tuyen (2015), Law on Commercial Agency Contract, p.37.
33
Hubbard, Douglas (2009), The Failure of Risk Management: Why It's Broken and How to Fix It, John Wiley &
Sons, p. 46.

15
 CONCLUSION TO ISSUE 3

44. CLAIMANT is not granted the repayment of debts from RESPONDENT because [A] the
payment of obligation is not yet due; [B] Payment obligation will arise on condition that
RESPONDENT could clear all its inventories and [C] CLAIMANT has the obligation to
create the best opportunities for RESPONDENT to perform the contract.

16
REQUEST FOR RELIEF

RESPONDENT respectfully request the Tribunal to find that:

1. Ho Chi Minh Arbitration Center has jurisdiction to resolve this dispute;

2. The applicable laws are the laws of Vietnam;

3. The established agreement between CLAIMANT and RESPONDENT is agency contract;

4. The minutes of meeting made on 21 July 2018 is legally binding;

5. RESPONDENT is not obliged to repay his debts to CLAIMANT.

17