I T A T, P

I
Team Code: 1929A
I N T HE A RBITRAL T RIBUNAL , REPUBLIC OF P INDIA
IN THE CASE CONCERNING CALIBRATED DISPLAYS OF INSTAWASH WASHING MACHINES
WASH-O-MATICS PVT. LTD

(CLAIMANT)
Versus
ALIABABWA ELECTRONICS
(RESPONDENT)
MEMORANDUM for CLAIMANT
2019
II
TABLE OF CONTENTS
Table of Contents .......................................................................................................................... II
Table of Abbreviations ................................................................................................................... V
Index of Authorities ....................................................................................................................VII
Statement of Jurisdiction ............................................................................................................XII
Statement of Facts..................................................................................................................... XIII
Issues Raised ............................................................................................................................. XVI
Summary of Arguments ........................................................................................................... XVII
Arguments Advanced ..................................................................................................................... 1
ISSUE 1: The Tribunal has jurisdiction to decide the present matter................................. 1

I. ‘Smart contracts’ are recognised under the lex loci arbitri .............................................. 1
A. The arbitration is governed by UNIDROIT ................................................................. 1
B. ‘Smart Contracts’ are recognised under UNIDROIT ................................................... 2
II. The arbitration is valid under UNCITRAL Model Law .................................................. 2
A. The parties agreed to refer all disputes to arbitration ................................................... 3
B. The dispute arises out of the contract entered into ....................................................... 3
III. The arbitration is valid under Arbitration and Conciliation Act, 1996 of India ........... 5
A. The dispute relates to a right in personam .................................................................... 5
B. ‘Smart contracts’ are not prohibited from being arbitrable under the Arbitration and
Conciliation Act, 1996 ......................................................................................................... 6
IV. The matter does not fall within the domain of Intellectual Property Rights ................ 7
A. The right in question is a subordinate right in personam derived from right in rem .... 7
B. Dispute relates to verification of authenticity and not the authenticity itself ............... 8
ISSUE 2: The Tribunal should not grant the interim measure requested by the
respondent. ................................................................................................................................. 8
I. Interim measure is not required ........................................................................................ 8
A. The ‘smart contracts’ will not place any new orders .................................................... 9
~ Memorandum on behalf of the Claimant ~

III
B. The interim measure goes against Article 9 of the Model Law.................................... 9

II. The interim measure requested does not satisfy the conditions laid down under the
UNCITRAL Arbitration Rules ................................................................................................ 9
A. It does not satisfy the criteria laid down in Article 26(3) of UNCITRAL Rules ....... 10
B. It is not in consonance with Article 26 of the UNCITRAL Rules ............................. 10
C. The requested interim measure is moot ...................................................................... 11
III. Interim measure sought is unenforceable ................................................................... 11
A. The application for interim measure is made under Article 26 of the UNCITRAL
Rules .................................................................................................................................. 12
B. The interim measure is not qualified for enforcement under the Arbitration and
Conciliation Act ................................................................................................................. 12
ISSUE 3: The Smart Contracts are binding on the parties. ................................................ 13

I. A valid contract was concluded between the parties...................................................... 13
A. There was a valid offer ............................................................................................... 14
i. The offer was definite ............................................................................................. 14
ii. The contract indicated the Claimant’s intention to be bound ................................. 14
B. There was a valid acceptance ..................................................................................... 15
II. The ‘smart contracts’ were validly incorporated............................................................ 15
A. The ‘smart contracts’ are standard terms and can be incorporated by reference ....... 16
B. There was an express intent to be bound by the ‘smart contracts’ ............................. 17
C. The ‘smart contracts’ were clearly identified and the purpose for inclusion was clear
17
D. The ‘smart contracts’ were incorporated in their entirety .......................................... 18
E. The Respondents had reasonable opportunity to access the incorporated contracts .. 18
III. The ‘smart contracts’ are binding ............................................................................... 18
A. The Respondent is bound even if the agreements were not read nor signed .............. 19
B. There were no surprising terms .................................................................................. 19
ISSUE 4: The Claimant is entitled to the payment of USD 420,000. .................................. 20

I. The Claimant has a right to specific performance.......................................................... 21
A. The Claimant performed the obligation to deliver calibrated displays ...................... 21
B. The price determined is valid ..................................................................................... 22
IV
C. Non-payment would be a violation of Article 1.8 of UNIDROIT Principle .............. 23

II. Alternatively, the principle of unjust enrichment applies .............................................. 23
Prayer ........................................................................................................................................... 25

V
TABLE OF ABBREVIATIONS
AIR All India Reporter

Anr. Another
Arb. Arbitration
Art. Article
BGH Bundesgerichtshof
Bom LR Bombay Law Reporter
CISG Convention on Contracts for International Sale of Goods
Cir. Circuit
Cl. Clause
Co. Company
Del. Delhi
Ed. Edition
ICC International Chamber of Commerce
i.e. That is
Id. Ibid
Inc. Incorporated
Int’nl International
J. Journal
Ltd. Limited
No. Number
OLG Oberlandesgericht
Ors. Others
p. Page
PCA Permanent Court of Arbitration
PECL Principles of European Contract Law
Rev. Review
SCC Stockholm Chamber of Commerce
SCC Supreme Court Cases

VI
Supp. Supplement
U.K. United Kingdom
UN United Nations Organization
UNCITRAL United Nations Commission on International Trade Law
UNIDROIT International Institute for the Unification of Private Law
UPICC Another
US United States
USD United States Dollar
¶ Paragraph
§ Section

VII
INDEX OF AUTHORITIES
CONVENTIONS
Principles of European Contract Law, 2002 ................................................................................. 21

The Convention on the Recognition and Enforcement of Foreign Arbitral Awards (1958) .......... 3
UNCITRAL Arbitration Rules (as revised in 2010) ............................................................... 10, 11
UNCITRAL Model Law on Electronic Commerce, 1996 ...................................................... 15, 16
UNCITRAL Model Law on Electronic Signatures, 2001 ............................................................ 15
UNCITRAL Model Law on International Commercial Arbitration, 1985 (as amended in 2006) 1,
3, 9
UNIDROIT Principles of International Commercial Contracts, 2016 .... 2, 4, 6, 13, 14, 15, 16, 17,
19, 20, 21, 22, 23
BOOKS
Ali Yesilirmak, International Arbitration, 190 (3rd ed. 2006) ....................................................... 11

Christian Koller, Die Schiedsvereinbarung, Schiedsverfahrensrecht (2012) ................................. 4
Gary B. Born , International Commercial Arbitration (Second Edition), 2nd edition (Kluwer Law
International 2014) .......................................................................................................... 3, 4, 5, 9
Goff and Jones on the Law of Unjust Enrichment, Sweet & Maxwell, (9th Ed., 2016) ............... 24
Jill Poole, Casebook on Contract, 433 (5th ed. 2001) .................................................................. 24
Joseph Chitty, Chitty on Contracts, 28th Ed., Sweet & Maxwell, 1999 ........................................ 24
Karl Heinz Schwab & Gerhard Walter, Schiedsgerichtsbarkeit, 25 (7th ed. 2005) ....................... 4
Liebscher & Oberhammer & Rechberger, Schiedsverfahrensrecht , 3rd ed. (2012) ....................... 4
Mustill & Boyd, Commercial Arbitration, 73 (2nd ed., 2001)......................................................... 7
Nigel Blackaby, Constantine Partasides, et al., Redfern and Hunter on International Arbitration
(Sixth Edition), 6th edition (Kluwer Law International; Oxford University Press 2015)........... 3
Richard Stone & Ralph Cunnington, Text, Cases and Materials on Contract Law, 1183 (2007) 24
Vol. 13, Arthur L. Corbin, Corbin on Contracts (1960) ............................................................... 19
ARTICLES AND ESSAYS
Allison E. Butler, A Practical Guide to the CISG: Negotiations Through Litigations (Aspen
Publishers 2007 Supp. 2)........................................................................................................... 21
VIII
Artemio Espinosa Rojas, The Influence of UNIDROIT Principles in the Vienna Convention for
the International Sale of Goods ................................................................................................ 13
Arthad Kurlekar, A False Start: Uncertainty in the Determination of Arbitrability in India,
Kluwer Arbitration Blog (June 16, 2016 9:26AM)
http://arbitrationblog.kluwerarbitration.com/2016/06/16/a-false-start-uncertainty-in-the-
determination-of-arbitrability-in-india/. ...................................................................................... 6
Ibrahim Mohamed Nour Shehata, ‘Arbitration of Smart Contracts Part 1 – Introduction to Smart
Contracts’, Kluwer Arbitration Blog, August 23 2018.
http://arbitrationblog.kluwerarbitration.com/2018/08/23/arbitration-smart-contracts-part-1/. ... 2
Ibrahim Mohamed, Nour Shehata, Arbitration of Smart Contracts Part 1 – Introduction to Smart
Contracts, Kluwer Arbitration Blog, August 23 2018 .............................................................. 10
Ingeborg Schwenzer, Specific Performance and Damages According to the 1994 UNIDROIT
Principles of International Commercial Contracts, 289, 303,1 European Journal of Law
Reform (Kluwer), No. 3 (1999). ............................................................................................... 21
Markuu Lindblad, Arbitration is a fast method to resolve disputes, Lindblad, (9th May 2016,
6:54PM) https://lindblad.fi/en/arbitration-is-a-fast-method-to-resolve-disputes/. ...................... 9
Michael Joachim Bonell, The UNIDROIT Principles of International Commercial Contracts and
the Principles of European Contract Law: Similar Rules for the Same Purposes, 26 Uniform
Law Review 229,246 (1996). .................................................................................................... 17
Nick Szabo, Smart Contracts: Building Blocks for Digital Markets (1996) .................................. 2
Robert Briner, The Arbitrability of Intellectual Property Disputes with particular emphasis on
the situation in Switzerland, 34 American Rev. of Intl. Arb., Vol. 5, 1994 ................................ 7
Robert Whitman, Incorporation by Reference in Commercial Contracts, 21 Maryland Law
Review, 46 (1961) ..................................................................................................................... 16
Sonja A. Kruisinga, Incorporation of Standard Terms under the CISG and Electronic
Communication I. Schwenzer & L. Spagnolo, Towards Uniformity: The 2nd Annual MAA
Schlechtriem CISG Conference (2011)............................................................................... 16, 18
Vijay Singh, India: Certain Categories Of Disputes To Be Non-Arbitrable, Mondaq, 28 Feb,
2017 ............................................................................................................................................. 6
US CASES

IX
Am. Recovery Corp. v. Computerized Thermal Imaging, 96 F.3d 88, 93 (4th Cir. 1996)............. 5
Berke Moore Co. Inc. v. Phoenix Bridge Co., 98 N.H. 261, 98 A. 2d 150 (1953)....................... 18
Circle Freight International Limited v. Medast Gulf Exports Limited, 2 Lloyds Rep 427 (1988)20
Enochs v. Christie, 137 Cal. App. 2d 887, 291 P. 2d 200 (1955) ................................................. 16
Fleck v. E.F. Hutton Group, Inc., 891 F.2d 1047 (2d Cir. 1989).................................................... 4
Frommeyer v. L. R. Construction Co., 261 F. 2d 879 (3rd Cir. 1958) ......................................... 18
Helm v. Speith, 298 Ky. 225, 182 S.W. 2d 635 (1944) ................................................................ 18
Hill & Combs v. First National Bank of San Angelo, 139 F. 2d 740 (5th Cir. 1944) .................. 18
In re Kinoshita & Co., 287 F.2d 951, 953 (2d Cir. 1961) ............................................................... 5
Le Marinel v. 'Bach, 114 Wash. 651, 196 P. 22 (1921) ................................................................ 18
Love v. Damper, 159 Miss. 430, 132 So. 439 (1931) ................................................................... 18
Moses H. Cone Memorial Hospital v. Mercury Construction Corp., 460 U.S. 1 (1983) ............... 3
Nokia Corp. v. AU Optronics Corp. (In re TFT–LCD) (Flat Panel) (Antitrust Lit.), 2011 WL
2650689, ¶ 5 (N.D. Cal.) ............................................................................................................. 5
Pennzoil Exploration & Prod. Co. v. Ramco Energy Ltd, 139 F.3d 1061, 1068 (5th Cir. 1998)... 5
PPG Indus., Inc. v. Pilkington plc, 825 F. Supp. 1465 (D. Ariz. 1993).......................................... 5
Re Med. Eng’g Corp., 1992 WL 217763 (Fed. Cir.) ...................................................................... 7
Rhone-Poulenc Specialities Chiniques v. SCM Corp., 769 F.2d 1569 (Fed. Cir. 1985) ................ 7
Spence v. Central Acc. Ins. Co., 86 N.E. 104 (1908) ................................................................... 17
Stanley v. New, 56 N.M. 756, 250 P. 2d 893 (1952).................................................................... 16
Swensen’s Ice Cream Co. v. Corsair Corp., 942 F.2d, p. 1307, 1309 (8th Cir. 1991) ................... 5
Tigra Tech. v. Techsport Ltd, 2011 WL 2710678, ¶ 2 (C.D. Cal.) ................................................. 5
United States Fire Ins. Co. v. Nat’l Gypsum Co., 101 F.3d 813, 816 (2d Cir. 1996)..................... 4
Vance v. Ingram, 16 Wn. 2d. 399, 133 (1938) ............................................................................. 20
White v. McLaren, 151 Mass. 553, 24 N.E. 911 (1890) ............................................................... 19
UK CASES
Fibrosa Spolka Akcyjna v. Fairbairn Lawson, A.C. 32, 61 (H.L.) (1943) ................................... 24
Harris v Great Western Railway Co, 1 QBD 515, 530 (1876) ..................................................... 19
Lipkin Gorman v. Karpnale Ltd., (1991) 2 A.C. 548, 549, 578 ................................................... 24
McCutcheon v David MacBrayne Ltd, 1 All ER 430 at 436 (1964) ............................................ 19

X
Moses v. Macferlen, (1760) 2 Burr, 1005, 1007 ........................................................................... 24

Overseas Union Ltd v. AA Mut. Int’l Ins. Co. Ltd [1988] 1 FTLR 421 (QB) ............................... 5
Westdeutsche Landesbank Girozentrale v. Islington London Borough Council, 1 W.L.R. 938
(C.A.) (1994) ............................................................................................................................. 24
Woolwich Equitable B.S. v. I.R.C. (1993) A.C. 669 .................................................................... 24
INDIAN CASES
Best Sellers Retail v. Aditya Birla, (2012) 6 S.C.C. 792 .............................................................. 12

Booz Allen Hamilton v. SBI Home Finance, (2011) 5 SCC 532 ............................................... 6, 7
Dorab Cawasji Warden v. Coomi Sorab Warden and Ors, (1990) 2 S.C.C. 117 ......................... 12
Eros International Media Limited v. Telemax Links India Pvt Limited, 2016 (6) ARBLR 121
(BOM) ..................................................................................................................................... 6, 8
Kingfisher Airlines Limited v. Prithvi Malhotra Instructor, [2013] (7) Bom CR 738 ................... 7
Kishoresinh Ratansinh Jadeja v. Maruti Corporation, (2009) 11 S.C.C. 229 ............................... 12
Sundaram Finance Ltd. v. M/s Mepc India Ltd., A.I.R 1999 SC 564 .......................................... 11
CANADIAN CASES
Easier to Read Tel. Directory Inc. v. Sun Media Corp., [2010] ONSC 3492 (Ontario S. Ct.) ....... 5
Editions Chouette Inc. v. Desputeaux, 2003 SCC 17, ¶46 (Canadian S. Ct.)................................. 7
Woolcock v. Bushert, (2004) 50 B.L.R.3d 85, (Ontario Ct. App.) ................................................. 5
OTHER CASES
Case no. 8 U 46/97, Vine wax case, OLG Zweibrücken, (1998). ................................................ 17
Case no.: T-2/00, Aluminum, Foreign Trade Court of Arbitration attached to the Yugoslav
Chamber of Commerce, (2002) ................................................................................................. 21
Chevron Corporation and Anr. v. Republic of Ecuador, PCA Case No. 2009-23(2011) ............. 12
Cox, Cowie and Sutcliffe v. Coughlan and Wilson, Case 1568: MLEC 7, New Zealand: High
Court of New Zealand Auckland Registry (2014) NZHC 164. ................................................ 15
GE Capital (Thailand) Co. Ltd. v. Noppadol Manorotpanich, Thailand: Supreme Court.
8089/2556 (2013) ...................................................................................................................... 15
ICC Award no. 2321, Zurich Chamber of Commerce, 25 Nov 1994 ....................................... 3, 12
McDonnell Douglas Corp. v. Kingdom of Denmark, 607 F.Supp. 1016, 1019 (E.D. Mo. 1985) .. 5
XI
Nea Commerce S.A. vs. SKY Argentina SCA, Argentina. Court of Appeal of Buenos Aires
(2009) ........................................................................................................................................ 19
OTHER AUTHORITIES
Arbitration and Conciliation Act, 1996 ........................................................................................ 12

Black’s Law Dictionary (9th ed. 2009).......................................................................................... 22
Fali Sam Nariman, 'National Report for India (2015)', in Jan Paulsson and Lise Bosman (eds) 6, 8
ICCA International Handbook on Commercial Arbitration, (© Kluwer Law International;
Kluwer Law International 1984, Supplement No. 84, May 2015) .......................................... 6, 8
Jay Cassano, What Are Smart Contract? Bitcoin’s Killer App, Fast Company,
http://fastcolabs.com/3035723/app-economy/smart-contracts-could-be-crytocurrencys-killer-
app. .............................................................................................................................................. 2
Procedures for Cases under the UNCITRAL Arbitration RULES, (15 Sep, 2005 9:25PM) ,
https://www.adr.org/sites/default/files/Procedures%20for%20Cases%20under%20the%20UN
CITRAL%20Arbitration%20RULES.pdf#page18. .................................................................. 11
Professor Sieg Eiselen, CISG-AC Opinion No. 13 Inclusion of Standard Terms under the CISG
................................................................................................................................................... 20
Software Techniques, Ethereum Smart Contract Best Practices, https://consensys.github.io/smart-
contract-best-practices/software_engineering/ .......................................................................... 10

XII
STATEMENT OF JURISDICTION
Wash-o-Matics Pvt. Ltd., the Claimant in the present case, has the honor of submitting the
present dispute and the memorandum before Prof. Kuku Parulkar, the presiding arbitrator, and
the other two arbitrators, Mr. Kartaj King and Mr. Nastik Trivedi at Bengaluru, Pindia. Wash-o-
matics Pvt. Ltd. has invoked the Jurisdiction of the present tribunal pursuant to
Clause 45 of the Contract entered into between Wash-o-matics Pvt. Ltd. and Aliababwa
Electronics which states that:
“Any dispute, controversy or claim arising out of or relating to this contract, or the breach,
termination or invalidity thereof shall be settled by arbitration in accordance with the
UNCITRAL Arbitration Rules. The number of arbitrators shall be 3, one to be appointed by each
party and the presiding arbitrator to be appointed by the partyappointed arbitrators or by
agreement of the Parties.
The seat of arbitration shall be Pindia and the language to be used in the arbitral proceedings
shall be English.”

XIII
STATEMENT OF FACTS
The Parties
1. The Claimant, Wash-o-matics Pvt. Ltd., is a private limited company, having its registered
office located at New Pehli, represented through its Director, Mr. Ramesh Gaitonde. The
Respondent, Aliababwa Electronics, is a sole proprietorship business owned by Mr. Ali
Ababwa.
The Background
1. In January 2018, Wash-o-matics launched Instawash, a new brand of washing machines. It

had the ability to automatically communicate with the servers of Wash-o-matics’ service
department and initiate a ‘service request’ on behalf of the consumer whenever service was
due, a part needed replacement, or the warranty was about to expire. Further, Wash-o-
matics, as a company, had the capability to provide genuine and authentic spare parts using
blockchain technology and smart contracts. The machine would not accept spare parts which
could not be verified as authentic and genuine. The Claimant applied to patent Instawash
which was granted in March 2018.
2. On 1 April 2018, Mr. Gaitonde, the CEO of the Claimant, went to Dhina to promote
Instawash at the Dhina Expo of Innovative Technologies 2018. There he met the
Respondent. Mr. Gaitonde told the Respondent that, based on the new technology, there
would no longer be any need to order spare parts. They exchanged visiting cards and
discussed the possibility of Wash-o- matics exporting Instawash for sale in Dhina.
The Contract
1. A week later, the Respondent wrote an email to Mr. Gaitonde for importing 1000 machines
after going through the website of the Claimant. The email sent by the Respondent was
marked as a “Business Query” by the mailbox filter of the Claimant and an automated

XIV
response was sent to the Respondent. Subsequently, the Respondent completed and
submitted the business enquiry form.
2. On 15 April 2018, the Claimant sent an email to the Respondent accepting the business
proposal of the Respondent and giving instructions for the completion of the contract. These
steps included creating a “Signature Key” which is a 6-digit signature code and linking the
Respondent’s bank account to the app. Subsequently, the Respondent complied with all the
requirements and a shipment of 1000 machines was delivered to the Respondent on 30 May
2018.
The Event
1. In the last week of June 2018, the servers of the Claimant received responses from the
machines that the display of the machines was showing an error. The displays had not been
calibrated to the voltage requirements of Dhina, which led to short circuits. Voltage
fluctuations and short circuits were not covered within the warranty provided by the
Claimant. On 2 July 2018, the Claimant shipped the calibrated displays to the Respondent
and the account of the Respondent was automatically debited by USD 420,000.
2. Unfortunately, the shipment of spare parts got held up at customs in Dhina for 16 hours
because a bug in the software failed to verify the calibrated displays as genuine and instead
flagged them as counterfeits. Kulian Basange, the Head of IT of the Claimant, traced the
entire blockchain and sent it to Dhina customs after which the goods were released.
3. The calibrated displays were supposed to reach the Respondent within 15 days of shipment.
This clause was contained in a “smart contract” within the parent contract. The contract was
programmed to automatically debit money from the Respondent’s bank account on the date
of sending the shipment of spare parts. However, there was a refund provision if the goods
were not delivered within 15 days. Therefore, at 12:01 a.m. on 18 July 2018, an amount of
USD 420,000 was refunded to the account of the Respondent.
4. At about 4 p.m. on the same day, the Respondent received the shipment of the calibrated
displays. The Claimant’s servers received confirmation that the goods had reached the
Respondent and, accordingly, the Claimant sent an email the very same day requesting the
Respondent to use his “Signature Keys” to authorize a debit of USD 420,000. The

XV
Respondent neither replied to this email nor authorized the payment. Mr. Gaitonde tried
calling the Respondent as well, but he could not be reached.
The Interim Order
1. On 22 July 2018, the Claimant filed an application under Section 9 of the Arbitration Act of
Pindia before the Courts in Pindia praying that the Respondent be restrained from using the
calibrated displays. The Court ultimately decided the application in favour of the Claimant
on 12 September 2018.
The Arbitration Proceedings
1. In light of the dispute, the Claimant initiated arbitration proceedings on 10th October 2018.

XVI
ISSUES RAISED
THE FOLLOWING ISSUES HAVE BEEN RAISED FOR CONSIDERATION BEFORE THE
HONORABLE TRIBUNAL IN THE PRESENT ORAL HEARING:
1. DOES THE TRIBUNAL HAVE JURISDICTION TO DECIDE THE PRESENT DISPUTE OR IS
THE PRESENT DISPUTE NON-ARBITRABLE?
2. SHOULD THE TRIBUNAL GRANT THE INTERIM MEASURE REQUESTED BY THE
RESPONDENT?
3. ARE THE SMART CONTRACTS BINDING ON THE PARTIES?
4. IS THE CLAIMANT ENTITLED TO THE PAYMENT OF USD 420,000?

XVII
SUMMARY OF ARGUMENTS
Issue 1: The Tribunal has jurisdiction to decide the present matter.
The Claimants contend that the dispute is arbitrable as ‘smart contracts’ are recognized under
UNIDROIT Principles of International Commercial Contracts which is the law of the seat and
both the parties had agreed to submit all disputes arising out of the contract to arbitration by way
of clause 45 of the Contract and the present issue arises out of the contract, making it fall within
the ambit of clause 45. Further, the arbitration is valid under the Arbitration and Conciliation
Act, 1996 which is pari materia with the Arbitration Act of Pindia, making it the law of the seat,
as the dispute does not fall within the domain of Intellectual Property rights and arises out of a
right in personam.
Issue 2: The Tribunal should not grant the interim measure requested by the respondent.
The Claimants contend that the Tribunal should not grant the interim measure requested by the
Respondent as the same is not required due to the ‘smart contracts’ not placing any orders in the
first place as the washing machines will no longer be in use due to the non- functionality of the
display and the request for the interim measure goes against Article 9 of the UNCITRAL Model
Law. Furthermore, the interim relief requested is not in consonance with the UNCITRAL
Arbitration Rules as it does not satisfy the criteria laid down in Article 26(3) and takes the form
of substantial relief. Finally, the interim measure requested is unenforceable because it is
requested under Article 26 and if granted it will in the form of an order. It is also unenforceable
under the Arbitration and Conciliation Act, 1996.
Issue 3: The Smart contracts are binding on the parties.
The Claimant submits that the smart contracts are binding on the parties. The parent contract
concluded between the parties was validly concluded through a valid offer and a valid
acceptance. Clause 27 of the same incorporated by reference the three smart contracts that are in
dispute. There was a valid incorporation of the same. There was an express intent to incorporate
the smart contracts. The smart contracts were clearly identified and the purpose for the inclusion
was the clear. Further, the smart contracts were incorporated in their entirety and the Respondent

XVIII
had a reasonable opportunity to access and go through the smart contracts. Further, the Claimant
submits that the smart contracts are binding even if the Respondent did not read or understand
the same. The Claimant submits that the smart contracts cannot be invalidated on the ground that
they had surprising terms.
Issue 4: The Claimant is entitled to the payment of USD 420,000.
The Claimant submits that the Claimant is entitled to USD 420,000 pursuant to the delivery of
1000 calibrated displays according to the spare part agreement that was concluded between the
parties. The Claimant has a right to specific performance of the contract under Article 7.2.1 of
the UNIDROIT Principles. The Claimant fulfilled the obligation to deliver the spare parts
according to the smart contract concluded. Further, the price determined unilaterally by the
Claimant was valid. Moreover, non-payment of USD 420,000 would amount to a violation of
Article 1.8 of the UNIDROIT Principles. Alternatively, if the ‘smart contracts’ are not binding,
the Claimant submits that the Respondent still has an obligation to pay the Claimant USD
420,000 due to the principle of restitution of unjust enrichment.

1
ARGUMENTS ADVANCED
ISSUE 1: The Tribunal has jurisdiction to decide the present matter.

The jurisdiction of the tribunal has been challenged on the grounds that the matter relates to the
verification of the authenticity of calibrated displays which are part of a patented product and
within the domain of Intellectual Property Rights. The Claimant submits that the tribunal has the
authority to decide on its own jurisdiction in accordance with the principle of Kopetenz-
Kompetenz which is recognized under the UNCITRAL Model Law on International Commercial
Arbitration 1 (“Model Law”) which the procedural law governing the present arbitration is
making it the lex arbitri. Further, Pindia, the seat of the arbitration2 has adopted the Model Law3,
UNIDROIT Principles on International Commercial Contracts (“UNIDROIT”) and the
Arbitration Act of Pindia which is pari materia to the Arbitration and Conciliation Act of India.4
The claimant submits that the tribunal has the jurisdiction to hear the present dispute for the
following reasons: [A] ‘smart contracts’ are recognized under the lex arbitri; [B] the parties have
agreed to arbitrate the present dispute; [C] the arbitration is valid under the Arbitration and
Conciliation Act of India; [D] even though the matter involves a patented product, the dispute is
still arbitrable, contrary to Respondent’s contention.5
I. ‘Smart contracts’ are recognised under the lex loci arbitri
In the present matter, the dispute arises out of the ‘smart contracts’ which are contained within
the Parent Contract6 and since UNIDROIT is the law governing the contracts of both the parties7
it should be applied as to the recognition of ‘smart contracts.’ ‘Smart Contracts’ are recognized
under the lex loci arbitri as (1) the arbitration is governed by UNIDROIT; and further (2) ‘Smart
Contracts’ are recognized under UNIDROIT.
A. The arbitration is governed by UNIDROIT
1
UNCITRAL Model Law on International Commercial Arbitration, 1985 (as amended in 2006), Article XVI.
2
ibid.
3
Procedural Order No.1, Moot Problem, p. 22 ¶3.4.
4
Clarification No. 58.
5
Response to the Notice of Arbitration, p. 15, ¶6.
6
Exhibit C6, Moot Problem, p. 12.
7
Supra at 3.

2
In the present case, the parties have agreed that their contract will be governed by UNIDROIT8
and the contract law of the seat of arbitration is a verbatim adoption of UNIDROIT9, making it
the lex loci arbitri. The principles under UNIDROIT are set forth as rules for international
commercial contracts.10 The principles shall be applied to an international commercial contract
when the parties have agreed that their contract be governed by it. 11 The dispute before the
arbitral tribunal arises out of the ‘smart contracts’ contained within the Ricardian Contract
(“Parent Contract”) and are a part of the Parent Contract by being contained within Clause
no.27. 12 Therefore, they become subject to the same principles. Hence, it is evident that the
‘smart contracts’ are governed by UNIDROIT.
B. ‘Smart Contracts’ are recognised under UNIDROIT
In the present case, the ‘smart contracts’ debited money from the Respondent’s account for the
conclusion of the contract and then refunded the amount on delay of shipment by the Claimant.
Cases of automated contracting, that is, where the parties agree to use a system capable of setting
in motion self-executing electronic actions leading to the conclusion of a contract without the
intervention of a natural person, are recognised under UNIDROIT.13 ‘Smart contracts’ are a set
of promises, specified in digital form, including protocols within which the parties perform the
other promises.14 The protocols are usually implemented with programs on a computer network,
or in the form of digital electronics. 15 ‘Smart contracts’ are computer programs that can
automatically execute the terms of a contract.16 Thus, based on a comparison of the definitions of
automated contracts and ‘smart contracts’, the latter falls within the ambit of the former, which is
recognized under the UNIDROIT.
II. The arbitration is valid under UNCITRAL Model Law
8
ibid.
9
Supra at 5.
10
UNIDROIT Principles of International Commercial Contracts, 2016, Preamble
11
Exhibit C6, Moot Problem, p.12.
12
13
UNIDROIT Principles of International Commercial Contracts, 2016, art.2.2.1, comment 3.
14
Nick Szabo, Smart Contracts: Building Blocks for Digital Markets (1996); Ibrahim Mohamed Nour Shehata,
‘Arbitration of Smart Contracts Part 1 – Introduction to Smart Contracts’, Kluwer Arbitration Blog, August 23
2018. http://arbitrationblog.kluwerarbitration.com/2018/08/23/arbitration-smart-contracts-part-1/.
15
ibid.
16
Jay Cassano, What Are Smart Contract? Bitcoin’s Killer App Fast Company, http://fastcolabs.com/3035723/app-
economy/smart-contracts-could-be-crytocurrencys-killer-app.

3
The Model Law is the law governing the procedure of the arbitration as well as the law of the
seat.17 The arbitration is governed by the procedural law chosen and agreed upon by both the
parties.18 Further, the arbitration is governed by the law of the seat of arbitration tribunal19 and so
the Model Law applies20 and the current arbitration procedure is valid under the same because
(1) the parties agreed to refer all disputes to arbitration; and (2) the dispute arises out of the
contract entered into.
A. The parties agreed to refer all disputes to arbitration
In the instant case, the Parent Contract incorporated a specific arbitration clause to resolve
disputes arising out of the contract:
“Any dispute, controversy or claim arising out of or relating to this contract, or the breach,
termination or invalidity thereof shall be settled by arbitration in accordance with the
UNCITRAL Arbitration Rules...”
The primary source of the jurisdiction of the arbitral tribunal is the arbitration agreement entered
into by the parties.21 Thus, by entering into a contract containing an arbitration clause, the parties
to that contract are deemed to have agreed to refer disputes arising out of that contract to
arbitration 22 and are precluded from submitting any disputes arising out of that contract
containing the arbitration clause to any state court.23 It is clearly evident from Clause 45 that the
parties intended to resolve any disputes arising out of the Parent Contract to be settled by way of
arbitration. An unequivocal decision of the parties in favor of arbitration has to be upheld under
any circumstances. 24 Thus, by signing the contract containing the aforementioned arbitration
clause the Respondents clearly agreed to arbitrate any disputes that arose out of or in connection
to that contract.
B. The dispute arises out of the contract entered into
17
Supra at 3
18
Gary B. Born , International Commercial Arbitration (Second Edition), 2nd edition (Kluwer Law International
2014), p. 573.
19
ibid.
20
UNCITRAL Model Law on International Commercial Arbitration, (1985) (as amended in 2006) , Article XVI.
21
Nigel Blackaby, Constantine Partasides, et al., Redfern and Hunter on International Arbitration (Sixth Edition),
6th edition (Kluwer Law International; Oxford University Press 2015) p.144, ¶ 1-13.
22
ICC Award no. 2321, Zurich Chamber of Commerce, 25 Nov 1994, https://www.trans-lex.org/250700.
23
The Convention on the Recognition and Enforcement of Foreign Arbitral Awards (1958), Article II.
24
Moses H. Cone Memorial Hospital v. Mercury Construction Corp., 460 U.S. 1 (1983)

4
Clause 45 of the Parent Contract clearly highlights the intention of the parties to refer disputes
arising out of the Parent Contract to arbitration. The Claimant contends that the present dispute
arises out of clause 27 of the Parent Contract25 which lays down the other agreements that the
Respondent consents to by way of entering into the Parent Contract. The same was also
confirmed by the Pindian Court in its order:26
“ ...the dispute relates to verification of the authenticity and genuineness of the calibrated
displays and a problem with the code relating to the blockchain verification, the same are the
cause of the dispute leading to arbitration…”
Arbitration clauses may refer to either specific, or general disputes, arising out of a contractual or
other legal relationship, to arbitration.27 On an international level, courts tend to apply a broad28
and pro-arbitration interpretation29 to the scope of arbitration agreements. The prevailing opinion
favors a wide interpretation of broadly-worded arbitration clauses that creates an all-
encompassing jurisdiction of the arbitral tribunal. 30 Arbitration clauses dealing with future
contractual disputes are therefore generally believed to also encompass the disputes arising from
the non-contractual obligations of the parties, insofar as these relate to the execution of the
contract. 31 Furthermore, the present arbitration clause uses the phrase “relating to this
contract” 32 , which extends the scope of the arbitration agreement to cover a broad range of
disputes33, and therefore, shall bring within its ambit the present dispute. The Respondent has
contended that it entered into the contract for Instawash but did not contract for spare parts.34
Even assuming this contention to be true, the phrase “relating to” encompasses contractual as
well as non-contractual claims and “that it reaches any disputes that ‘touch’ or have a factual
25
Supra at 6.
26
¶15, Notice of Arbitration, Moot Problem, p. 4-5.
27
Karl Heinz Schwab & Gerhard Walter, Schiedsgerichtsbarkeit, 25 (7th ed. 2005).
28
Christian Koller, Die Schiedsvereinbarung, Schiedsverfahrensrecht (2012), p.91 ¶3/260; Liebscher &
Oberhammer & Rechberger, Schiedsverfahrensrecht , 3rd ed. (2012), p. 174, ¶3.
29
Moses H. Cone Memorial Hosp. v. Mercury Constr. Corp., 460 U.S. 1, ¶24-25 (U.S. S. Ct. 1983); United States
Fire Ins. Co. v. Nat’l Gypsum Co., 101 F.3d 813, 816 (2d Cir. 1996); Fleck v. E.F. Hutton Group, Inc., 891 F.2d
1047 (2d Cir. 1989); Gary B. Born , International Commercial Arbitration (Second Edition), 2nd edition (Kluwer
Law International 2014) pp. 1317 – 1403.
30
ibid, ¶ 3/259.
31
Supra at 13.
32
Notice of Arbitration, Moot Problem, p. 5, ¶16.
33
2014), p. 1349.
34
Response to the Notice of Arbitration, Moot Problem, p.16, ¶ 11.

5
relationship to the parties’ contract.”35 The same has been repeatedly affirmed in Common Law
jurisdictions.36
The authenticity and genuineness of the calibrated displays is an issue that falls under clause
27.2, the agreement for spare parts and hence forms a part of clause 27 of the Parent Contract.37
The use of ‘smart contracts’ for placing orders for spare parts being a unique selling proposition
of Instawash, 38 it forms a significant part of the parties’ underlying contract regardless of
whether the claims with respect to the same implicated the terms of the consulting agreement.39
Therefore, it is evident that the arbitration clause contained in clause 45 of the Parent Contract is
applicable to the current dispute as it arises out of the contract entered into.
III. The arbitration is valid under Arbitration and Conciliation Act, 1996 of India
The law applicable to the arbitration agreement is governed by the law of the seat of arbitration
tribunal40 and therefore governed by the Arbitration and Conciliation Act. The present arbitration
is valid under the Arbitration and Conciliation Act because the dispute relates to a right in
personam (A) and the subject matter is not prohibited from being arbitrated upon. (B)
A. The dispute relates to a right in personam
In the present mater, both the parties have entered into the contract in the furtherance of their
trade or in order to fulfill the requirements of the trade as both the parties are sellers of goods.
The Respondent purchased the goods with intention of selling them in Dhina41 and the Claimant
sold the goods in the furtherance of their trade as they are the makers of ‘Instawash’. 42
Commercial transactions are to exclude “consumer transactions” which are aimed at protecting
the consumer, i.e. a party who enters into the contract otherwise than in the course of its trade or
35
Pennzoil Exploration & Prod. Co. v. Ramco Energy Ltd, 139 F.3d 1061, 1068 (5th Cir. 1998); Nokia Corp. v. AU
Optronics Corp. (In re TFT–LCD) (Flat Panel) (Antitrust Lit.), 2011 WL 2650689, ¶ 5 (N.D. Cal.).
36
Swensen’s Ice Cream Co. v. Corsair Corp., 942 F.2d, p. 1307, 1309 (8th Cir. 1991); In re Kinoshita & Co., 287
F.2d 951, 953 (2d Cir. 1961); Tigra Tech. v. Techsport Ltd, 2011 WL 2710678, ¶ 2 (C.D. Cal.); McDonnell Douglas
Corp. v. Kingdom of Denmark, 607 F.Supp. 1016, 1019 (E.D. Mo. 1985);Overseas Union Ltd v. AA Mut. Int’l Ins.
Co. Ltd [1988] 1 FTLR 421 (QB) (English High Ct.); PPG Indus., Inc. v. Pilkington plc, 825 F. Supp. 1465 (D.
Ariz. 1993); Easier to Read Tel. Directory Inc. v. Sun Media Corp., [2010] ONSC 3492 (Ontario S. Ct.); Woolcock
v. Bushert, (2004) 50 B.L.R.3d 85, (Ontario Ct. App.).
37
Supra at 6.
38
39
Am. Recovery Corp. v. Computerized Thermal Imaging, 96 F.3d 88, 93 (4th Cir. 1996); Supra at 33.
40
Supra at 5.
41
Exhibit C1, Moot Problem, p. 7, ¶ 1.
42
Notice of Arbitration, Moot Problem, p. 2, ¶ 2.

6
profession.43 Therefore, the contract entered into was commercial in nature as it was entered into
by both parties in the course of their trade or profession. The Arbitration and Conciliation Act,
1996 is silent on the categories of disputes that are capable of being resolved through arbitration.
Instead, the nature of the claims involved determines whether or not a dispute is arbitrable.44
Claims in the nature of a right in rem are not arbitrable under the Arbitration and Conciliation
Act, 1996.45 However, where the claim is characterized as a right in personam, such a claim may
be arbitrable.46 Matters of commercial disputes are always actions in personam, where one party
seeks a specific relief against another particular party.47 Further, the claims sought by both the
parties can be enforced only against each other as they relate to the breach of contract by each
party respectively in their respective claims and the result of this arbitration will be enforceable
only against each other and not any other party that was not privy to that contract. Therefore, the
claims sought are in the nature of a right in personam and hence arbitrable under the Arbitration
and Conciliation Act,1996.
B. ‘Smart contracts’ are not prohibited from being arbitrable under the Arbitration
and Conciliation Act, 1996
In the present matter, Pindia does not have any law restricting, regulating or invalidating the use
of smart contract or their arbitrability.48 The courts in certain category of disputes refuse to refer
the parties to arbitration under the Arbitration and Conciliation Act. They have clearly specified
certain matters which cannot be arbitrated upon.49 Evidently, the Act does not exclude category
of commercial disputes from arbitrability. 50 Since the dispute relates to verification of
authenticity of the calibrated displays 51 and payment of the spare parts shipped, the same is
arbitrable within the meaning of the Act. The test to decide on the arbitrability of a dispute is
43
UNIDROIT Principles of International Commercial Contracts, 2016, Preamble, Comment -2.
44
Arthad Kurlekar, A False Start: Uncertainty in the Determination of Arbitrability in India, Kluwer Arbitration
Blog (June 16, 2016 9:26AM) http://arbitrationblog.kluwerarbitration.com/2016/06/16/a-false-start-uncertainty-in-
the-determination-of-arbitrability-in-india/.
45
Booz Allen Hamilton v. SBI Home Finance, (2011) 5 SCC 532.
46
ibid.
47
Eros International Media Limited v. Telemax Links India Pvt Limited, 2016 (6) ARBLR 121 (BOM).
48
Procedural Order, Moot Problem, p. 21, ¶ 1.2; Clarification No. 58.
49
Fali Sam Nariman, 'National Report for India (2015)', in Jan Paulsson and Lise Bosman (eds), ICCA International
Handbook on Commercial Arbitration, (© Kluwer Law International; Kluwer Law International 1984, Supplement
No. 84, May 2015) p. 17.
50
Vijay Singh, India: Certain Categories Of Disputes To Be Non-Arbitrable, Mondaq, 28 Feb, 2017,
http://www.mondaq.com/india/x/572050/Arbitration+Dispute+Resolution/CERTAIN+CATEGORIES+OF+DISPU
TES+TO+BE+NONARBITRABLE.
51

7
whether adjudication of such disputes is reserved by the legislature exclusively for the public for
as a matter of public policy. 52 Disputes would be considered non-arbitrable only where a
particular enactment creates special rights and obligations and gives special powers to the
Tribunals that are not enjoyed by civil courts.53 Since Pindia does not have any law restricting,
regulating or invalidating the use of smart contract or their arbitrability54, the smart contracts are
arbitrable within the meaning of the Act because if the legislature had intended to exclude
arbitration in matters of smart contracts, it would have categorically done so.55
IV. The matter does not fall within the domain of Intellectual Property Rights
The Respondent has claimed that the issue falls within the domain of IPR because calibrated
displays are a part of patented product56, without taking into account the fact that blockchain
being unalterable, the blockchain of calibrated displays could not have matched those of
uncalibrated ones at Dhina Customs. The matter does not fall within the domain of Intellectual
Property Rights as (1) the right involved is a right in personam; (2) dispute relates to verification
of authenticity and not the authenticity itself.
A. The right in question is a subordinate right in personam derived from right in rem
The present dispute relates to the washing machine that was duly patented. 57 The scope of
arbitrability is to be adjudicated from the yardstick of the nature of rights involved in the dispute.
If the rights are in nature of rights in personam, i.e. Personal rights based on a contract or tort
then the dispute is arbitrable.58 However, subordinate rights in personam derived from the real
rights may be ruled upon by arbitrators. For instance, rights under a patent license may be
arbitrated upon, but the validity of the underlying patent may not.59 Such actions are always
actions in personam, one party seeking a specific particularized relief against a particular defined
party, not against the world at large. In the present dispute, the patent involved imposes a
subordinate right in personam derived from a right in rem. Since any finding whether of
52
Kingfisher Airlines Limited v. Prithvi Malhotra Instructor, [2013] (7) Bom CR 738.
53
ibid.
54
Supra at 48.
55
Robert Briner, The Arbitrability of Intellectual Property Disputes with particular emphasis on the situation in
Switzerland, 34 American Rev. of Intl. Arb., Vol. 5, 1994, p. 35.; Editions Chouette Inc. v. Desputeaux, 2003 SCC
17, ¶46 (Canadian S. Ct.).
56
Response to the Notice of Arbitration, Moot Problem, p.15, ¶ 6.
57
ibid.
58
Supra at 45, ¶ 9, 14.
59
Mustill & Boyd, Commercial Arbitration, 73 (2nd ed., 2001); Re Med. Eng’g Corp., 1992 WL 217763 (Fed. Cir.);
Rhone-Poulenc Specialities Chiniques v. SCM Corp., 769 F.2d 1569 (Fed. Cir. 1985).

8
infringement or its lack thereof by Claimant of Instawash’s patent would be valid only against
Respondent and not any third party60 hence, the present dispute does not fall within the domain
of IPR and is arbitrable.
B. Dispute relates to verification of authenticity and not the authenticity itself
Nowhere in the present dispute has the validity of the patent of Instawash itself been challenged.
The Respondent’s main contention for claiming that the dispute falls within the domain of IPR is
based on the fact that the product in question is a patented one.61 However, for the dispute to
become inarbitrable by virtue of it falling within the domain of IPR, the validity of patents under
the Patents Act 1970 itself must be in question.62 Contrary to this position, it is the failure of
Dhina customs’ software’s failure to recognize and verify the calibrated displays as authentic
that has led to the dispute. The same has been affirmed by the Court Order.63 Since the displays
were calibrated as per voltage requirements of Dhina, the software used by the Customs was not
able to take account of the same.
ISSUE 2: The Tribunal should not grant the interim measure requested by the respondent.
An interim measure has been sought by the Respondent to prevent the purported harm that might
be caused due to the operation of ‘smart contracts’.64 The Claimant contends that the tribunal
should not grant the interim measure requested on the grounds that, the interim measure is not
required (I), the interim measure requested for does not satisfy the conditions laid down under
the UNCITRAL Arbitration Rules (II), and interim measure sought is unenforceable (III).
I. Interim measure is not required
The Respondent has requested for an interim measure seeking the suspension of the ‘smart
contracts’ during the pendency of the present arbitration.65 However, the present interim measure
sought by the Respondent should not be granted by the Tribunal as (1) The ‘smart contracts’ will
not place any new orders and further (2) the interim measure goes against Article 9 of the Model
Law.
60
Supra at 47, ¶ 11.
61
Reply to the Notice of Arbitration, Moot Problem, p. 15, ¶6.
62
Supra at 49.
63
Notice of Arbitration, Moot Problem, p.4-5, ¶15.
64
Moot Problem, p. 20.
65
ibid.

9
A. The ‘smart contracts’ will not place any new orders

The Respondent seeks an interim measure to suspend the ‘smart contracts’ during the pendency
of this arbitration as they believe that the ‘smart contracts’ will continue to place orders and their
account will keep getting debited.66 However, the Claimant submits that the ‘smart contracts’
will not place orders for new spare parts as the washing machine cannot work without a well-
functioning display67 and all the 1000 washing machines sold, registered damage in the displays
and placed orders for their replacement68 so, the use of these products would be suspended at
least until the spare parts are installed. Since the use of the products would be suspended there is
no possibility of manual or technical damage being caused to the machine as it will not be used
at all and further since the arbitral proceedings will not take a long amount of time due to it being
a faster alternative court proceedings69 there is a minimal chance of the machine being subjected
to usual wear and tear. Therefore, the interim measure should not be granted since the reason for
seeking the same is erroneous.
B. The interim measure goes against Article 9 of the Model Law
The Respondent states that it cannot approach the courts for interim measure as the Pindian law
does not allow it. However, the law governing the arbitration proceedings is the Model Law and
under the Model Law, either party can approach the court seeking interim measures before or
during the arbitration process and doing so will not be incompatible with the arbitration
agreement.70 Therefore, the arbitration tribunal should not grant the interim measure sought by
the Respondent as the same may be granted by a court and for the Respondent to seek interim
relief on the ground that it cannot approach the Courts is incorrect and thus not maintainable.
II. The interim measure requested does not satisfy the conditions laid down under the
UNCITRAL Arbitration Rules
The Respondent’s request for an interim measure should be denied on the grounds that it does
not satisfy the criteria laid down in Article 26(3) of UNCITRAL Arbitration Rules (hereinafter
66
ibid.
67
Clarification no. 24.
68
69
2014) p.76; Markuu Lindblad, Arbitration is a fast method to resolve disputes, Lindblad, (9th May 2016, 6:54PM)
https://lindblad.fi/en/arbitration-is-a-fast-method-to-resolve-disputes/.
70
UNCITRAL Model Law on International Commercial Arbitration, 1985 (as amended in 2006), Article IX.

10
“UNCITRAL Rules”) (A) and further, contravenes Article 9 of the Model Law (B) and finally,
the requested interim measure is moot (C).
A. It does not satisfy the criteria laid down in Article 26(3) of UNCITRAL Rules
The Respondent requests the arbitral tribunal for an interim measure under Article 26 of the
UNCITRAL Rules71 and so the request for interim measure should satisfy all conditions laid
down in the UNCITRAL Rules. In the present matter the interim measure sought is under Article
26 and so it must satisfy the criteria laid down in Article 26(3)(a) and Article 26(3)(b)72, which is
that harm not adequately repairable by an award of damages is likely to result if the measure is
not ordered, and such harm substantially outweighs the harm that is likely to result to the party
against whom the measure is directed if the measure is granted 73 and there is a reasonable
possibility that the requesting party will succeed on the merits of the claim.74 However in the
present matter, there will be no harm caused to the Respondent if the measure is not granted as
the ‘smart contracts’ will not place orders for the spare parts again when the machines
themselves are not in use.75 Further, by granting the interim measure, the harm will be caused to
the Claimants as they will have to suspend the ‘smart contracts’ which will diminish the value of
their product and will put unnecessary burden on the Claimants due to the technical process of
suspending the ‘smart contracts’. 76 Due to the reasons stated above, it is clear that the
Respondents cannot succeed on the merits of the claim77 and so they do not satisfy the criteria
laid down under Article 26(3)(b). Since the present request meets none of the criteria laid down
under the UNCITRAL Rules, the same should not be granted. Therefore, in the present matter
the interim measure requested by the Respondents cannot be granted as it is not in conformity
with the Model Law.
B. It is not in consonance with Article 26 of the UNCITRAL Rules
71
Supra at 1.
72
UNCITRAL Arbitration Rules (as revised in 2010), Article XXVI.
73
UNCITRAL Arbitration Rules (as revised in 2010), Article XXVI (III)(a).
74
UNCITRAL Arbitration Rules (as revised in 2010), Article XXVI(III)(b).
75
76
Software Techniques, Ethereum Smart Contract Best Practices, https://consensys.github.io/smart-contract-best-
practices/software_engineering/; Ibrahim Mohamed, Nour Shehata, Arbitration of Smart Contracts Part 1 –
Introduction to Smart Contracts, Kluwer Arbitration Blog, August 23 2018,
http://arbitrationblog.kluwerarbitration.com/2018/08/23/arbitration-smart-contracts-part-1/.
77
UNCITRAL Arbitration Rules (as revised in 2010), Article XXVI(III)(b).

11
The Respondent states that it cannot approach the Courts once the Tribunal has been constituted
under the Pindian laws 78 but the application for interim measure has been made under the
UNCITRAL Rules 79 and thus the request for interim measure should be governed by the
UNCITRAL Rules. A substantial part of the final relief sought by the Respondent is in relation
to the ‘smart contracts’ 80 and the interim relief sought is for the suspension of these ‘smart
contracts’.81 However, an interim relief cannot take the form of a substantial relief sought by the
party. 82 Suspending the ‘smart contracts’ would result in removal of the data that may be
available to determine whether the ‘smart contracts’ are binding or not. The same cannot be done
and further, under Article 26 of the UNCITRAL Rules, a request for interim measures addressed
by any party to a judicial authority shall not be deemed incompatible with the agreement to
arbitrate or as a waiver of that agreement.83 Therefore, the Respondent is not forced to seek
interim measures from this Tribunal and can approach the court to do the same. Further, since the
Respondent has challenged the jurisdiction of this Tribunal, it would be advisable to seek the
interim relief from the Court.84
C. The requested interim measure is moot
The requested interim measure brings no new legal obligation on either parties and only
questions the binding value of the ‘smart contracts’ again, which is already being considered
before this arbitral tribunal.85 The request if granted would only lead to further deliberation on an
already existing issue before the tribunal. Consequently, the request is moot and therefore, the
interim measure should not be granted.86
III. Interim measure sought is unenforceable
The Respondent has made an application under Article 26 of the UNCITRAL Arbitration Rules
(hereinafter “UNCITRAL Rules”)for grant of interim measure. The Claimant respectfully
submits that the interim measure sought by the Respondent, even if granted by the Tribunal, shall
78
Supra at 1.
79
ibid.
80
81
Supra at 1.
82
Sundaram Finance Ltd. v. M/s Mepc India Ltd., A.I.R 1999 SC 564.
83
UNCITRAL Arbitration Rules (as revised in 2010), Article XXVI(IX).
84
Procedures for Cases under the UNCITRAL Arbitration RULES, (15 Sep, 2005 9:25PM) ,
https://www.adr.org/sites/default/files/Procedures%20for%20Cases%20under%20the%20UNCITRAL%20Arbitrati
on%20RULES.pdf#page18.
85
Procedural Order No.1, Moot Problem, p.3, ¶ 1.3.
86
Ali Yesilirmak, International Arbitration, 190 (3rd ed. 2006).

12
not be enforceable. As (1) the application for interim measure is made under Article 26 of the
UNCITRAL Rules and (2) the interim measure is not qualified for enforcement under the
Arbitration and Conciliation Act.
A. The application for interim measure is made under Article 26 of the UNCITRAL
Rules
In the present matter, the application for interim measure is made under Article 26 of the
UNCITRAL Rules.87 Article 26 of the UNCITRAL Rules permits a tribunal, at the request of a
party, to take interim measures which are established in the form of an order or award in respect
of the subject-matter of the parties’ dispute.88 Article 32(1) of the UNCITRAL Rules permits a
tribunal to make an award in the form of a final, partial or interim award and Article 32(2) of the
UNCITRAL Rules provides that any award is final and binding on the parties, with the parties
undertaking to carry out such award without delay. 89 Decisions under Article 26 of the
UNCITRAL Rules are made in the form of an order and not an interim award.90 Therefore, the
interim measure cannot be enforced against both the parties as the application is made under
Article 26 and a decision under the same will be in the form of an order which cannot be binding
on the parties under Article 32(2) of the UNCITRAL Rules.
B. The interim measure is not qualified for enforcement under the Arbitration and
Conciliation Act
In the present matter, Pindian laws are pari materia to Indian laws91 and so the Arbitration and
Conciliation Act (hereinafter “the Act”) shall find application with regard to the enforcement of
the interim measure. The Act states that an interim measure will be enforceable under the Code
of Civil Procedure92 (hereinafter “CPC”). The three pillars on the basis of which a determination
of grant of interim relief is contingent upon are- Whether the plaintiff has a prima facie case?
Whether the plaintiff would suffer irreparable injury if injunction is not granted? Whether the
balance of convenience is in plaintiff‘s favour?93 In the present matter, the Respondent may have
87
88
Chevron Corporation and Anr. v. Republic of Ecuador, PCA Case No. 2009-23(2011), 2009, Arb. Intl. 190, ¶ 4.
89
Supra at 22.
90
ibid.
91
92
Arbitration and Conciliation Act, 1996, § 36.
93
Dorab Cawasji Warden v. Coomi Sorab Warden and Ors, (1990) 2 S.C.C. 117; Best Sellers Retail v. Aditya Birla,
(2012) 6 S.C.C. 792; Kishoresinh Ratansinh Jadeja v. Maruti Corporation, (2009) 11 S.C.C. 229.

13
a Prima facie case but they will not suffer irreparable injury if the injunction is not granted as the
damage caused will be in way of more orders placed by the ‘smart contracts’ which can easily be
paid back by way of monetary relief and in regards to the goodwill of the Respondent, it will not
hurt the Respondent because the same goodwill may be restored if an award for damages is made
in their favour, restoring their customers faith in them. Further, the balance of convenience is in
favour of the Claimants and not the Respondents as the Claimants will suffer major monetary
loss as Instawash will become defunct and stop placing orders for spare parts and the same will
greatly affect the reputation of the Claimants which cannot be repaired by way of monetary
relief. The damage caused to the Respondents if the measure is not granted can be restored by
way of monetary relief and therefore, the interim measure will not be granted by the Court as the
same does not pass the ‘three pillar’ test.
ISSUE 3: The Smart Contracts are binding on the parties.

The Parent Contract concluded between the Claimant and the Respondent for the sale of 1000
Instawash machines contained a clause for the incorporation of the three ‘smart contracts’ that
are in dispute at hand.94 The Respondent challenges the binding character of the three ‘smart
contracts’ on the grounds that the agreements were never read, signed or agreed to. Article 1.3 of
the UNIDROIT Principles95 recognizes the principle of pacta sunt servada which means that any
contract validly entered into is binding for the parties.96 A contract is said to be binding when it
has actually been concluded by the parties and it is not affected by any ground of invalidity.97 As
such the Claimant submits that the three smart contracts were validly incorporated by reference
[II] into a binding contract that was validly concluded between the parties.[I] The Claimant
therefore submits that the Smart Contracts are binding on the parties.[III]
I. A valid contract was concluded between the parties
The parties validly concluded a contract for the sale of 1000 Instawash washing machines. The
Claimant submits that it made a valid offer [A] to which the Respondent gave a valid
acceptance.[B] Therefore, the Claimant submits that the parent contract is binding on the
94
Supra at 6.
95
UNIDROIT Principles of International Commercial Contracts, 2016, Article 1.3.
96
Artemio Espinosa Rojas, The Influence of UNIDROIT Principles in the Vienna Convention for the International
Sale of Goods, http://cisgw3.law.pace.edu/cisg/biblio/rojas-eng.pdf.
97
UNIDROIT Principles of International Commercial Contracts, 2016, Article 1.3, comment 1.

14
Respondent. Consequently, the Claimant submits that Clause 27 of the parent contract is binding
on the Respondent.[C]
A. There was a valid offer
With the email dated 15th April 2018, the Claimant made a valid offer for the sale of 1000
Instawash washing machines to the Respondent.98The email informed the Respondent that once
the parent contract was signed using the 6 digit “Signature Key” the Claimant would ship the
goods.99 Therefore, the email categorically proposed the conclusion of a contract. Pursuant to
Article 2.1.2 of UNIDROIT Principles, a statement forms an offer if it proposes the conclusion
of a contract, is sufficiently definite [1] and indicates the intention to be bound in case of
acceptance.[2]100
i. The offer was definite
The Claimant via the email addressed to the Respondent accepted the Respondent’s business
proposal. The email mentioned the amount of Instawash machines to be sold i.e. 1000; the price
at which they were to be sold i.e. USD 1500; and the delivery date of the same i.e. 02 June 2018.
Whether a given offer meets the requirement of definiteness cannot be established in general
terms.101 It all depends on whether or not the offeror making the offer intend to enter into a
binding agreement, and whether or not the missing terms can be determined by interpreting the
language of the agreement in accordance with articles 4.1 et seq., or supplied in accordance with
articles 4.8 or 5.1.2.102 The Claimant submits that the requirement of definiteness of terms was
met in the instant matter.
ii. The contract indicated the Claimant’s intention to be bound
The Claimant had already automatically signed the parent contract using the ‘Signature Key’
before sending the email dated 15th April 2018.103 The Signature Key was a 6 digit signature
code that acted similar to a personal identification number.104 Pursuant to Article 7 of the Model
Law on Electronic Commerce, electronic signatures adequately signify an intention to be
98
99
Id.
100
UNIDROIT Principles of International Commercial Contracts, 2016, Article 2.1.2.
101
Comments to Article 2.1.2 of UNIDROIT Principles of International Commercial Contracts, 2016.
102
ibid.
103
Supra at 100.
104
ibid.

15
bound. 105 An electronic signature according to Article 2 of the Model Law on Electronic
Signature is defined “as data in electronic form in, affixed to or logically associated with, a data
message, which may be used to identify the signatory in relation to the data message and to
indicate the signatory’s approval of the information contained in the data message.”106 As such
the Claimant submits that the Signature Key used by the parties to conclude the contract is a
valid electronic signature that can identify the identity of the parties using them and indicates the
parties’ approval of the information contained in the Parent Contract. Therefore, the Claimant
submits that the usage of the Signature Keys by the Claimant adequately signified the Claimant’s
intentions to be bound by the parent contract.
B. There was a valid acceptance
Subsequent to the mail sent on 15th April 2018, the Respondent validly accepted the Claimant’s
offer by signing the contract using the generated Signature Key after linking the bank account to
the app.107 Pursuant to Article 2.1.6 of the UNIDROIT Principles a statement or other conduct of
the offeree indicating assent to an offer is an acceptance. 108 The Respondent expressed his
acceptance of the parent contract and consequently of the Smart Contracts by signing the parent
contract with his Signature Key. The Claimant further submits that the use of Signature Key is a
valid mode of communication of acceptance.109
II. The ‘smart contracts’ were validly incorporated
The Respondent is bound by the contents of the parent contract and therefore by Clause 27
contained in the same. Clause 27 states that:
27. The Parties hereby consent to entering into the following ‘smart
contracts’:
27.1 Service Agreement;
27.2 Agreement for Spare Parts;
27.3 Renewal of Warranty Agreement.110
105
Cox, Cowie and Sutcliffe v. Coughlan and Wilson, Case 1568: MLEC 7, New Zealand: High Court of New
Zealand Auckland Registry (2014) NZHC 164.
106
UNCITRAL Model Law on Electronic Signatures, 2001, Article II.
107
108
109
UNCITRAL Model Law on Electronic Commerce, 1996, Article XII, V, VI, VII; GE Capital (Thailand) Co. Ltd.
v. Noppadol Manorotpanich, Thailand: Supreme Court. 8089/2556 (2013).
110
Supra at 6.

16
It thereby incorporates by the reference the three ‘smart contracts’ whose binding character is
being challenged by the Respondent. The doctrine of incorporation by reference allows and
facilitates a reference to incorporate into the parent contract extrinsic materials which are given
equal weight as the provisions contained by the parent contract itself.111 Article 5 bis. of the
UNCITRAL Model Law on Electronic Commerce (hereinafter referred to as “MLEC”) enshrines
this doctrine by providing recognition to the legality, validity and enforceability of terms and
conditions that have been incorporated by reference into parent contracts. 112 Pursuant to the
same, the expression “incorporation by reference” is described as “a concise means of describing
situations where a document refers generically to provisions which are detailed elsewhere, rather
than reproducing them in full.”113 For a valid incorporation by reference, along with an expressed
intent to incorporate, the parties must clearly identify which materials they are incorporating,
how much of them are being referred to, and the purpose for which the reference is made.114
Moreover, there is no general duty to transmit the text of the incorporated standard terms to the
receiving party, a mere reference is sufficient to validly conclude the same.115
The Claimant contends that the ‘smart contracts’ were validly incorporated in the parent contract.
The Claimant submits that the ‘smart contracts’ are standard terms and can be incorporated by
reference (A). Their incorporation by reference was valid as there was an express intent on
behalf of both the parties to incorporate the Smart Contracts(B). The Smart Contracts were
clearly identified and the purpose for which the reference was made was also clear (C). Further,
they were incorporated in their entirety (D). The Claimant also submits that the Respondents had
a reasonable opportunity to access the incorporated contracts. (E)
A. The ‘smart contracts’ are standard terms and can be incorporated by reference
The ‘smart contracts’ were prepared by the Claimant in advance for a general and repeated use116
i.e. whenever the Instawash servers contacted the Claimant’s servers, the ‘smart contracts’ would
be enforced by the blockchain technology that they used. Further, there was no negotiation with
111
Enochs v. Christie, 137 Cal. App. 2d 887, 291 P. 2d 200 (1955); Stanley v. New, 56 N.M. 756, 250 P. 2d 893
(1952).
112
UNCITRAL Model Law on Electronic Commerce, 1996 , Article V.
113
UNCITRAL Model Law on Electronic Commerce, 1996 , Comment 46-1.
114
Robert Whitman, Incorporation by Reference in Commercial Contracts, 21 Maryland Law Review, 46 (1961).
115
Sonja A. Kruisinga, Incorporation of Standard Terms under the CISG and Electronic Communication I.
Schwenzer & L. Spagnolo, Towards Uniformity: The 2nd Annual MAA Schlechtriem CISG Conference (2011).
116
UNIDROIT Principles of International Commercial Contracts, 2016, Comment to Article 2.1.19(2).

17
regards to the ‘smart contracts’ as the Respondent was informed of the same in the parent
contract at the time of conclusion of the same. Pursuant to Article 2.1.19(2) of the UNIDROIT
Principles, standard terms are provisions which are prepared in advance for general and repeated
use by one party and which are actually used without negotiation with the other party.117 The
Claimant therefore submits that the ‘smart contracts’ mentioned in Clause 27 of the parent
contract are standard terms.
Pursuant to Article 2.1.19, standard terms contained in a separate document or electronic file can
be incorporated if referred to expressly by the party intending to use them.118 The UNIDROIT
Principles subject the incorporation of standard terms to the general rules on formation with the
result that a mere reference to the standard terms will normally suffice to incorporate them in the
119
contract. The Claimant therefore, submits that the ‘smart contracts’ can be validly
incorporated by reference.
B. There was an express intent to be bound by the ‘smart contracts’
Clause 27 of the parent contract expressly mentioned the parties’ intention to ‘enter into’ the
‘smart contracts.’120 The text of the clause categorically expresses the intent for the parties to
enter into the three agreements and thereby be bound to the same. An effective inclusion of the
‘smart contracts’ required that the Claimant’s intention to incorporate is apparent to the
Respondent.121 The rule is that a reference to terms and conditions which are not attached to the
offer has to be sufficiently clear that a reasonable party understands it.122 It has been observed
that the preliminary question of intent should be answered from the body of the contract itself.123
Therefore, the Claimant submits that there was an express intent to be bound by the ‘smart
contracts’.
C. The ‘smart contracts’ were clearly identified and the purpose for inclusion was clear
The incorporation clause in the parent contract clearly identified three ‘smart contracts’ and
mentioned that the agreements were for spare parts, renewal of warranty and for service. For an
117
UNIDROIT Principles of International Commercial Contracts, 2016, Art. 2.1.19(2).
118
ibid.
119
Michael Joachim Bonell, The UNIDROIT Principles of International Commercial Contracts and the Principles
of European Contract Law: Similar Rules for the Same Purposes, 26 Uniform Law Review 229,246 (1996).
120
Supra at 6.
121
Supra at 116.
122
Case no. 8 U 46/97, Vine wax case, OLG Zweibrücken, (1998).
123
Spence v. Central Acc. Ins. Co., 86 N.E. 104 (1908).

18
incorporation to be valid it is essential that the purpose for which the reference is being made be
clear.124 The purpose for which the reference was made is clear from a bare reading of the text,
the reference was made to conclude the three ‘smart contracts.’ The Claimant submits that the
requirement of clearly identifying which material was being incorporated125 was also met within
Clause 27.
D. The ‘smart contracts’ were incorporated in their entirety
The Claimant submits that there was no evidence that showed any intent to limit the extent to
which the ‘smart contracts’ are to be incorporated at the time of conclusion of the parent
contract. If extrinsic documents are referred to without limiting words, in the absence of
evidence of a contrary intent, it will be presumed that the parties meant to incorporate all these
materials without restriction. 126 The three ‘smart contracts’ were incorporated entirely and
wholly without any restriction. The Claimant submits that the ‘smart contracts’ were therefore
valid because the parties had identified how much of the Smart Contracts they would be
incorporating.127
E. The Respondents had reasonable opportunity to access the incorporated contracts
The Claimant had expressed that all the relevant documents including the ‘smart contracts’,
FAQs and explanations relating to smart contracts was available under the tab marked ‘Legal’ on
the website.128 Further, the ‘Legal’ tab was on the home page of the website and easily accessible
by the Respondent.129 The Respondent was further given 7 days before concluding the parent
contract to access and read through all the relevant documents. 130 The Claimant therefore
submits that the Respondent had a reasonable opportunity to access the ‘smart contracts’.
III. The ‘smart contracts’ are binding
The Respondent when he accepted the parent contract was bound by the same. Therefore, the
Respondent was also bound by Clause 27 of the same. Since, Clause 27 validly incorporated the
three ‘smart contracts’ the Respondent is bound by the same. Moreover, standard terms are to be
124
Supra at 115.
125
Helm v. Speith, 298 Ky. 225, 182 S.W. 2d 635 (1944); Love v. Damper, 159 Miss. 430, 132 So. 439 (1931); Le
Marinel v. 'Bach, 114 Wash. 651, 196 P. 22 (1921).
126
Frommeyer v. L. R. Construction Co., 261 F. 2d 879 (3rd Cir. 1958).
127
Hill & Combs v. First National Bank of San Angelo, 139 F. 2d 740 (5th Cir. 1944); Berke Moore Co. Inc. v.
Phoenix Bridge Co., 98 N.H. 261, 98 A. 2d 150 (1953).
128
129
Exhibit C2, Moot Problem, p. 8.
130

19
considered an expression of party autonomy and, at least between business persons, are to be
interpreted basically in the same manner as individually negotiated terms.131 Further, pursuant to
Article 2.1.20 of the UNIDROIT Principles, ‘a party which accepts the other party’s standard
terms is in principle bound by them irrespective of whether or not it actually knows their content
in detail or fully understands their implications.’ 132 Pursuant to the same however,no term
contained by the standard terms which is of such a character that the other party could not
reasonably have expected it, is effective unless it has been expressly accepted by that party.133
The Claimant submits that it is immaterial whether the Respondent has read and signed the
agreements, the Respondent is bound nonetheless.[A]The Claimant further submits that there
were no surprising terms in the ‘smart contracts.’[B]
A. The Respondent is bound even if the agreements were not read nor signed
The Respondent challenged the binding character of the ‘smart contracts’ on the ground that the
agreements were never read, signed or agreed to.134 The Claimant submits that assuming but not
conceding that the Respondent did not read, sign or agree to the ‘smart contracts’, the
Respondent did read, sign and agree to the parent contract which validly incorporated the ‘smart
contracts’. The Claimant, therefore, submits that the general contract law provides that in the
absence of misrepresentation a party is held to the terms of a contract into which he has entered,
whether he has understood them or not135 and whether he has read them or not.136 The general
contract law provides that incorporated material need not be signed by the parties as long as the
parent contract in which they have been incorporated in were validly entered into.137 Therefore,
the Claimant submits that in the instant matter, the Respondent cannot take the defense that the
‘smart contracts’ were not read by nor signed by the Respondent.
B. There were no surprising terms
131
Nea Commerce S.A. vs. SKY Argentina SCA, Argentina. Court of Appeal of Buenos Aires (2009)
http://www.unilex.info/case.cfm?pid=2&do=case&ID=1586.
132
UNIDROIT Principles of International Commercial Contracts, 2016, Article 2.1.20, Comment 2.
133
134
Response to Notice of Arbitration, Moot Problem, p. 2, ¶ 1.
135
Harris v Great Western Railway Co, 1 QBD 515, 530 (1876); McCutcheon v David MacBrayne Ltd, 1 All ER
430 at 436 (1964).
136
Vol. 13, Arthur L. Corbin, Corbin on Contracts (1960) §607, 656.
137
White v. McLaren, 151 Mass. 553, 24 N.E. 911 (1890).

20
The Respondent was well aware that Instawash uses blockchain technology for the sale of spare
parts.138 The Respondent was aware that the machines would order for the spare parts on their
own.139 Moreover, there was a schedule attached to the parent contract with the price of each
spare part listed.140 Standard terms that are so surprising or unusual that a reasonable person of
the same kind as the relevant party could not reasonably have expected such a term in the
agreement, do not form part of the agreement.141 Pursuant to Article 2.1.20, the Respondent is
not bound by those terms which by virtue of their content, language or presentation are of such a
character that it could not reasonably have expected them.142 As such the Respondent could not
have had reason to believe that the Respondent would order the spare parts on behalf of the
consumer. Further, the Respondent could not have been unaware of the price of the calibrated
displays.143 Even though the Respondent intended to negotiate on an agreement for the spare
parts, such an intention cannot be given weightage as the actual unexpressed intentions of the
parties may not be considered to alter the terms of the written document.144 Moreover, it is not
necessary to the incorporation of trading terms into a contract that they are conditions in
common form or usual terms in a relevant business.145 The Claimant, therefore, submits that the
‘smart contracts’ cannot be held to be not binding on the ground that they contained surprising
terms.
ISSUE 4: The Claimant is entitled to the payment of USD 420,000.

In the last week of June 2018, the displays of the Instawash machines were showing an error.
This was because of the differing voltage requirements of Dhina. Consequently, the Claimant
shipped the calibrated displays and there was an automatic debit of USD 420,000 from the
Respondent’s account. This price was predetermined by the price list that was attached to the
parent contract as a schedule. However, since there was a delay in the delivery of the spare parts,
the debit was refunded at 12:01 a.m. on 18 July 2018. Thereafter the goods were delivered at 4
138
139
Id.
140
141
Professor Sieg Eiselen, CISG-AC Opinion No. 13 Inclusion of Standard Terms under the CISG,
http://www.cisg.law.pace.edu/cisg/CISG-AC-op13.html.
142
143
Response to Notice of Arbitration, Moot Problem, p.2, ¶ 1.
144
Vance v. Ingram, 16 Wn. 2d. 399, 133 (1938).
145
Circle Freight International Limited v. Medast Gulf Exports Limited, 2 Lloyds Rep 427 (1988).

21
p.m. on the same day. The Respondent did not reply to the Claimant’s request for payment and
also did not authorize payment of the same.146 The Claimant, therefore, claims entitlement to
USD 420,000 for the spare parts delivered. The Claimant contends that it has a right to specific
performance under the binding ‘smart contracts’[I]. Alternatively, even if the ‘smart contracts’
are not binding, the Claimant is still entitled to ask for USD 420,000[II].
I. The Claimant has a right to specific performance
The Claimant sent the calibrated displays with the understanding that it is bound to do so under
the ‘smart contracts’ entered into by the parties. Following the principle pacta sunt servanda, the
UNIDROIT Principles provide for a right to performance.147 This right extends to monetary
obligations as well. Pursuant to Article 7.2.1 of the UNIDROIT Principles, “Where a party who
is obliged to pay money does not do so, the other may require payment.” 148 The same is
enshrined in Article 9:101(1) of PECL which states that, “The creditor is entitled to recover
money which is due.”149 Further, it is not in the discretion of the court to grant that remedy or
not.150 Moreover, a party who has performed the contract either wholly or in part may claim
restitution from the other party of whatever the first party has supplied or paid under the
contract. 151 The Claimant therefore contends that there exists a right to specific performance
from the Respondent because the Claimant delivered the calibrated displays pursuant to the
Agreement for Spare Parts[A]. 152 The Claimant also contends that the price determined was
valid[B]. Further, the Claimant contends that non-payment would violate Article 1.8 of the
UNIDROIT Principles.
A. The Claimant performed the obligation to deliver calibrated displays
Contracts in commercial trade are usually reciprocal.153 The seller and the buyer have reciprocal
154
obligations towards concluding sales contracts. For reciprocal contracts, the right to
146
Notice of Arbitration, Moot Problem, p.4, ¶ 14.
147
Ingeborg Schwenzer, Specific Performance and Damages According to the 1994 UNIDROIT Principles of
International Commercial Contracts, 289, 303,1 European Journal of Law Reform (Kluwer), No. 3 (1999).
148
149
Principles of European Contract Law, 2002, Article 9:101(1).
150
Supra at 148.
151
Case no.: T-2/00, Aluminum, Foreign Trade Court of Arbitration attached to the Yugoslav Chamber of
Commerce, (2002), http://cisgw3.law.pace.edu/cases/021209sb.html.
152
153
Supra at 148.
154
Allison E. Butler, A Practical Guide to the CISG: Negotiations Through Litigations (Aspen Publishers 2007
Supp. 2).

22
performance of the creditor of the monetary obligation is only justified if he or she has already
fully performed his or her own obligation to deliver goods or to do some work.155
Under the Agreement for Spare Parts, the Claimant had an obligation to deliver spare parts to the
Respondent as and when the servers of the Claimant received such requests. 156 When the
Claimant’s servers received information that the displays were reporting an error, there arose an
obligation to deliver the spare parts as per the ‘smart contract’ that was validly entered into. The
Claimant contends that the delivery of the calibrated displays157 justifies the Claimant’s right to
ask for the payment of USD 420,000 from the Respondent.
B. The price determined is valid
There was a price list attached to the parent contract in the form of a schedule. 158 This list
mentioned the prices of all the spare parts. 159 A schedule is “a written list or inventory;
especially, a statement that is attached to a document and that gives a detailed showing of the
matters referred to in the document”.160
Contractual interpretation under UNIDROIT is controlled by Article 4.1. Under that rule,
contracts are “interpreted according to the common intention of the parties161” or, if that common
intent cannot be established, the meaning a “reasonable person of the same kind as the parties
would give to it in the same circumstances”.162 Determining the common intent of the parties
requires an examination of their circumstances, particularly those laid out in Article 4.3.163 These
include the preliminary negotiations, practices the parties have established among themselves,
the conduct of the parties subsequent to the conclusion of the contract, the nature and purpose of
the contract, common meaning given to the terms and expressions in the contract, and usages.164
It is submitted that a reasonable man on reading the parent contract would have read the affixed
schedule and would consider it to be the unilaterally determined price for the spare parts.
155
Supra at 148.
156
157
158
159
ibid.
160
Black’s Law Dictionary (9th ed. 2009), available at Westlaw BLACKS.
161
162
ibid.
163
164

23
Therefore, the Claimant contends that the price determined for the calibrated displays, i.e. USD
420,000, is valid.
C. Non-payment would be a violation of Article 1.8 of UNIDROIT Principle
The Respondent has asserted that the Respondent never read, signed or agreed to any contract for
spare parts.165 Furthermore, the Respondent also alleges that the price for spare parts was never
discussed and therefore the Respondent is not liable to pay for anything.166 The Respondent has
stated that he thought the spare parts would be shipped after a request by the
Respondent. 167 Pursuant to Article 1.8 of the UNIDROIT Principles, a party cannot act
inconsistently with an understanding it has caused the other party to have and upon which that
other party reasonably has acted in reliance to its detriment.168 The Claimant contends that the
Respondent could not have not read Clause 27 when reading, signing and agreeing to the parent
contract. Further, the Respondent could not have missed the price list that was attached as a
schedule to the parent contract. The Respondent was aware that the spare parts would be ordered
automatically when the servers of the Claimant received information that spare parts were
required.169 As such, the Claimant submits that the Respondent’s failure and refusal to make the
payment of USD 420,000 is a behaviour inconsistent with the understanding that was reached
between the parties and is violative of Article 1.8 of the UNIDROIT Principles.
II. Alternatively, the principle of unjust enrichment applies
The Claimant, at their own expense, calibrated the displays to meet the voltage requirements of
Dhina.170 The Claimant shipped these goods to the Respondent after it received information of
the displays of the Instawash machines reporting error.171 The Respondent accepted delivery of
the spare parts sent to replace the malfunctioning ones without making payments for the same.172
Further, the Respondent would sell these displays to his customers and earn profit off the
same.173 Assuming but not conceding that the ‘smart contracts’ were not binding on the parties,
the Claimant submits that the principle of unjust enrichment should apply.
165
166
167
Supra at 166.
168
169
Exhibit C5, Moot problem, p.11.
170
171
172
173
Response to the Notice of Arbitration, Moot problem, p. 16, ¶ 11.

24
Any civilized system of law is bound to provide remedies to prevent a man from retaining the
money of, or some benefit derived from, another which it is against one’s conscience.174 It is a
settled principle of contract law that a person who has been unjustly enriched at the expense of
another is required to make restitution to the other.175 The Court has held that where the plaintiff
has transferred benefit to the defendant under a contract which is unenforceable, it is possible to
bring a restitutionary claim since, being an independent legal obligation; the award of a
restitutionary remedy does not involve enforcement of a contract. 176 The principle of unjust
enrichment requires first, that the defendant has been “enriched” by the receipt of a “benefit”,
secondly, that this enrichment is “at the expense of the claimant”, and thirdly that the retention of
the enrichment be “unjust”.177
The receipt of goods constitute a benefit178 and where a title has passed, it would entitle the
claimant to receive a quantum valebat. 179 It is submitted that the proof of enrichment of the
Respondent at the Claimant’s expense is their receipt of 1000 calibrated displays, further, it
would entitle the Respondent to USD 420,000 since the title for the calibrated displays has been
passed onto the Respondent. The Claimant therefore submits that even if the ‘smart contracts’
are binding; the Claimant is still entitled to USD 420,000 as the delivery of the calibrated
displays amounts to an unjust enrichment of the Respondent.
174
Fibrosa Spolka Akcyjna v. Fairbairn Lawson, A.C. 32, 61 (H.L.) (1943); Jill Poole, Casebook on Contract, 433
(5th ed. 2001); Richard Stone & Ralph Cunnington, Text, Cases and Materials on Contract Law, 1183 (2007).
175
Joseph Chitty, Chitty on Contracts, 28th Ed., Sweet & Maxwell, 1999, p. 1466; Lipkin Gorman v. Karpnale Ltd.,
(1991) 2 A.C. 548, 549, 578; Woolwich Equitable B.S. v. I.R.C. (1993) A.C. 669.
176
Westdeutsche Landesbank Girozentrale v. Islington London Borough Council, 1 W.L.R. 938 (C.A.) (1994).
177
Moses v. Macferlen, (1760) 2 Burr, 1005, 1007; Joseph Chitty, Chitty on Contracts, 28th Ed., Sweet & Maxwell,
1999, p.1470
178
Joseph Chitty, Chitty on Contracts, 28th Ed., Sweet & Maxwell, 1999, ¶30-021, p. 1473
179
Goff and Jones on the Law of Unjust Enrichment, Sweet & Maxwell, (9th Ed., 2016) p. 26-27.

25
PRAYER
In light of the above submissions, the Claimant, respectfully request the Tribunal:
1. To find and hold that the Arbitral Tribunal has jurisdiction to hear the present dispute.
2. To find and hold that the Tribunal cannot grant the interim measure requested by the
Respondent.
3. To find and hold that the smart contracts are binding on the Parties.
4. To find and hold that the Claimant is entitled to the payment of USD 420,000.
Based on these findings, the Claimant requests the Tribunal:
1. To order the Respondent to pay to Wash-o-matics Pvt. Ltd. USD 420,000 pursuant to the
delivery of 1000 calibrated displays.
And pass such other order or orders as the Hon’ble Tribunal may deem fit in the interest of
justice, equity and good conscience.
All of which is humbly prayed.
Date: 17th March, 2019 Sd/-
Place: Bengaluru, Republic of Pindia Counsels for the Claimant

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Team Code: 1929A

I N T HE A RBITRAL T RIBUNAL , REPUBLIC OF P INDIA

IN THE CASE CONCERNING CALIBRATED DISPLAYS OF INSTAWASH WASHING MACHINES

WASH-O-MATICS PVT. LTD

MEMORANDUM for CLAIMANT

Table of Contents .......................................................................................................................... II

Table of Abbreviations ................................................................................................................... V

Index of Authorities ....................................................................................................................VII

Statement of Jurisdiction ............................................................................................................XII

Statement of Facts..................................................................................................................... XIII

Issues Raised ............................................................................................................................. XVI

Summary of Arguments ........................................................................................................... XVII

Arguments Advanced ..................................................................................................................... 1

ISSUE 1: The Tribunal has jurisdiction to decide the present matter................................. 1

~ Memorandum on behalf of the Claimant ~

B. The interim measure goes against Article 9 of the Model Law.................................... 9

ISSUE 3: The Smart Contracts are binding on the parties. ................................................ 13

ISSUE 4: The Claimant is entitled to the payment of USD 420,000. .................................. 20

C. Non-payment would be a violation of Article 1.8 of UNIDROIT Principle .............. 23

~ Memorandum on behalf of the Claimant ~

AIR All India Reporter

~ Memorandum on behalf of the Claimant ~

~ Memorandum on behalf of the Claimant ~

Principles of European Contract Law, 2002 ................................................................................. 21

Ali Yesilirmak, International Arbitration, 190 (3rd ed. 2006) ....................................................... 11

ARTICLES AND ESSAYS

~ Memorandum on behalf of the Claimant ~

~ Memorandum on behalf of the Claimant ~

Moses v. Macferlen, (1760) 2 Burr, 1005, 1007 ........................................................................... 24

Best Sellers Retail v. Aditya Birla, (2012) 6 S.C.C. 792 .............................................................. 12

Arbitration and Conciliation Act, 1996 ........................................................................................ 12

~ Memorandum on behalf of the Claimant ~

~ Memorandum on behalf of the Claimant ~

1. In January 2018, Wash-o-matics launched Instawash, a new brand of washing machines. It

~ Memorandum on behalf of the Claimant ~

~ Memorandum on behalf of the Claimant ~

The Interim Order

The Arbitration Proceedings

~ Memorandum on behalf of the Claimant ~

HONORABLE TRIBUNAL IN THE PRESENT ORAL HEARING:

1. DOES THE TRIBUNAL HAVE JURISDICTION TO DECIDE THE PRESENT DISPUTE OR IS

THE PRESENT DISPUTE NON-ARBITRABLE?

2. SHOULD THE TRIBUNAL GRANT THE INTERIM MEASURE REQUESTED BY THE

~ Memorandum on behalf of the Claimant ~

Issue 1: The Tribunal has jurisdiction to decide the present matter.

Issue 3: The Smart contracts are binding on the parties.

~ Memorandum on behalf of the Claimant ~

Issue 4: The Claimant is entitled to the payment of USD 420,000.

~ Memorandum on behalf of the Claimant ~

ISSUE 1: The Tribunal has jurisdiction to decide the present matter.

~ Memorandum on behalf of the Claimant ~

~ Memorandum on behalf of the Claimant ~

~ Memorandum on behalf of the Claimant ~

~ Memorandum on behalf of the Claimant ~

~ Memorandum on behalf of the Claimant ~

~ Memorandum on behalf of the Claimant ~

~ Memorandum on behalf of the Claimant ~

~ Memorandum on behalf of the Claimant ~

A. The ‘smart contracts’ will not place any new orders

~ Memorandum on behalf of the Claimant ~

~ Memorandum on behalf of the Claimant ~

~ Memorandum on behalf of the Claimant ~