Good Morning/Evening Mr/Mrs President and members of the Tribunal!

My name is Muhammad Irfan and I Represent RESPONDENT, BLACK BEAUTY

EQUESTRIAN , Along with me is my Co-Counsel, Syafira Nadia

I Will be addressing the Procedural Issues of the Dispute, and my Co-Counsel will address
the Substantive Issues.

We are here before the Tribunal today because the CLAIMANT (PHARLAP
ALLEVEMENTO) has ENTITLED of the additional payment the contract about Selling
semen horse.

Mr. President and the members of the Tribunal, on behalf of RESPONDENT I will be
speaking first for 20 minutes, while my Co-counsel will speak second for another 20 minutes,
and we would like to request 5 minute for rebuttal.

Turning into my 1st argument: We have submitted that, “Does the tribunal have the
jurisdiction and/or the powers under the arbitration agreement to adapt the contract?” in this
proceeding,. THE ARBITRAL TRIBUNAL DOESN’T HAVE THE JURISDICTION
TO PERTAIN TO THE PRESENT CASE”

The reasons for our statement are as following:

First Submission
Law Governs The Arbitration Agreement Shall Governed by the Danubia Law
(Law govern)

It is confirmed that PARTIES has agreed to have the Arbitration Seat will be
conducted Danubia in order to resolve any dispute arisen regarding the contract
RESPONDENT submit that Danubian law governs interpretation of the Arbitration
Agreement. This Arbitral Tribunal also has authority to rule with its jurisdiction, including
finding that there is no jurisdiction applies. In addition, it should be recognized that
arbitration itself is governed by the law where the seat of that arbitration is conducted ,
therefore Danubian Arbitration Law shall be applied.
In this case, there is not stated the express of choice of law for the arbitration clause.
In 10 April 2017 Black beauty propose the arbitration clause which one is included the
arbitration agreement which was governed by the law of the place of arbitration, not by the
law of the contract. In fact in the 11 April 2017 Claimant had not objected to respondent
proposal that the law of the place of arbitration should govern the arbitration agreement. In
the end that the parties has agreed to have the arbitration seat in Danubia. However there is
not stated the choice of law so that we submitted that the law of arbitration follow the seat
arbitration. Based on the the english High Court case between Shagang South-Asia ( Hong
Kong) Trading Co. Ltd and Daewoo Logistics in 2015. Shagang goes one step further that
previous case law with the suggestion that the express seat of arbitration is a very strong
presumption that the law of arbitration will follow the law of the seat of arbitration.
RESPONDENT show consent to arbitrate as good faith by also drafting the arbitration
clause in the Contract [Resp. Ex. R1] In conformity with the present case, unfortunately,
prior negotiators between the PARTIES had an car accident while to negotiating the main
contract [Cl. Ex. C8]. In the end,the successors who finalizing the contract and not expressed
the law of arbitration in the contract [Cl. Ex. C5 p.15]. Further, from the relevant email when
the negotiators discuss the contract, the PARTIES have been agreed if the seat of arbitration
in Danubia In fact,the negotiators had not discuss about lex arbitri until the contract reach
agreement.the arbitration has a lack of jurisdiction and between the Parties not reach an
agreement in lex arbitri so the parties cant to adapt the contract.

Danubian Arbitration Law Recocgnize the Doctrine of Separability

We know that the danubian arbitration law is acknowledge the doctrine of

separability. And the CLAIMANT has misapplied the separability doctrine. In the first the
respondent request for use of HKIAC Model clause, that includes a separate choice of law of
the arbitration agreement which follows the law of the seat. It is seen that the respondent
intend to seprate the arbitration agreement with the main contract itself. In Response that
claimant only propose the seat of arbitration. based on the facts above itself that the claimant
did not reject the separation of the contract.
Beside the wording of sales agreement futher separates the arbitration agreement from
the contract ueder clause 14 does not immediately extend to clause 15 First, the wording
“Sales Agreement” further separates the Arbitration Agreement from the Contract. The email
correspondences clearly show that “Sales Agreement” only refers to the sales part of the
Contract [Res. Ex. 1]. Thus, the choice of law under Clause 14 cannot extend to govern the
Arbitration Agreement. Further, Clause 14 is only intended for the substantive part of the
Contract.
 THE TRIBUNAL DOES NOT HAVE THE AUTHORITY TO ADAPT THE
CONTRACT UNDER DANUBIAN LAW (Express Empowerment)

CLAIMANT asserts that the Tribunal has the authority to adapt the contract.
However, this conclusion can only be reached if, in interpreting the Arbitration Clause, one
takes a broader view by also looking at the intention of the parties and not simply the words
of the clause [CLA’s Memo, pp. 10-11]. This clearly goes against the Lex Loci Arbitri.
Under Danubian arbitration law, adaptation of a contract by an arbitral tribunal requires an
express empowerment to that effect from the parties [Art. 28(3) of the UNCITRAL Model
Law]. Such express empowerment is lacking in this Case.

Pertanyaan
1. kenapa arbitration clause di main contract itu dianggap doctrine separibilty?
doctrine separability tidak memisahkan arbitrase clause, tapi memisahkan
choice of law. bahwa jika klausula nomor 15 menyebutkan danubia, maka
pasal 15 merupakan klausula spesial/terpisah walaupun ada di main contract.
2. Mandatory Rules? rules yg tidak bisa mengesampingkan agreemnt
3. Seat arbitration ? governing the procedural law of the arbitration and
foreseeability of the award

Moving into my 2nd argument: We have submitted that EVIDENCE SOUGHT TO

BE SUBMITTED BY CLAIMANT, INCLUDING AN ARBITRAL AWARD AND
SUBMISSIONS, ARE INADMISSIBLE

2.1 The evidence sought to be submitted by CLAIMANT is irrelevant and immaterial

1. Article 22.2 of HKIAC Rules (2018) provides that “[t]he arbitral tribunal shall
determine the admissibility, relevance, materiality and weight of the evidence,
including whether to apply strict rules of evidence”.
2. In this connection, Article 9 (2) (a) of IBA Rules on the Taking of Evidence in
International Arbitration (the “IBA Rules”) provides grounds for the Tribunal to
 exclude evidence that lacks sufficient relevance to the case or materiality to its
outcome.
3. Although the Parties do not expressly agree to adopt the IBA Rules, the Tribunal
may still be guided by the IBA Rules, as they reflect international norms.
4. In order for the evidence to be admitted, CLAIMANT must show that the
evidence that it seeks to introduce is both relevant to this case and material to its
outcome. In this regard, the award and submissions from an independent and
unrelated arbitration (“Arbitration 2”) cannot be admitted as evidence in this
proceeding since they are neither relevant nor material to the outcome of this case.

(i) The evidence submitted by CLAIMANT is irrelevant

1. Evidence is relevant if it reasonably tends to prove or disprove “the fact at issue or
facts closely related to the point at issue”
2. RESPONDENT submits that neither the award nor submissions from Arbitration 2
can prove the fact at issue or closely related issues in this case. This is because the
award and submissions from the Arbitration 2 contains significant difference from
that of this case as developed below.
3. Moreover, the tariff threshold in Arbitration 2 is by itself irrelevant to the
determination of hardship in this case. CLAIMANT alleges it is contradictory that in
Arbitration 2, an additional tariff of 25% was sufficient to justify a request for
adaptation while an even less-predictable retaliatory tariff of 30% does not justify an
adaptation in the instant case [Record at p.50]. However, the numerical percentage of
a tariff by itself is irrelevant since hardship will depend on the various additional
circumstances including the assumption of risks between parties to a contract. In this
case, the Parties agreed to apply Incoterms to allocate the risk of tariff to
CLAIMANT. On this basis, a difference in tariff percentages between the arbitrations
is has no relevance to the resolution of this case
4. The only purpose of the evidence is to impeach RESPONDENT. CLAIMANT is
acting deceitfully when they claim that their desire to submit evidence of
RESPONDENT’s prior arbitration is anything but an attempt to impeach
RESPONDENT’s reputation. Yet where the evidence’s sole value is to discredit
RESPONDENT, and has no probative value, CLAIMANT cannot argue that the
evidence is relevant. Rather than presenting a legal argument as to why they should
 prevail, CLAIMANT has resorted to cheap tactics meant to prejudice Tribunal against
RESPONDENT.

(ii) The evidence CLAIMANT seeks to admit is immaterial

1. Materiality refers to the impact that a piece of evidence will have on the outcome of a
case. [Redfern and Hunter at p. 393]. RESPONDENT submits that neither the award
nor submissions from Arbitration 2 has any impact on the outcome of a case for the
following reasons.
2. CLAIMANT’s evidence cannot assist in determining the truth of a fact at issue that is
dispositive to this case [Tennille at p.12] because there are significant factual
differences between the instant case and Arbitration 2. The parties, commercial
transaction, applicable laws and contractual provisions are all different. Trying to
derive common factual elements in these circumstances would only complicate these
proceedings without assisting this tribunal.

2.2 Introducing the evidence submitted by CLAIMANT would increase costs and time
to resolution of this dispute

1. The amendments introduced by HKIAC Rules (2018) improve user friendliness,

efficiency, and reflect international best practice [Paul Teo and Philipp Hanusch].
There were three key objectives behind the amendments in essence: time and cost
saving measures, efficiency in complex arbitrations and relevance to developments in
international arbitration [Kwan, Ng and Tang]. Article 13.5 of HKIAC Rules (2018)
provides, “[t]he arbitral tribunal and the parties shall do everything necessary to
ensure the fair and efficient conduct of the arbitration.” This provision was included
for the first time in HKIAC Rules (2018) to serve the important function of assuring
efficiency in arbitral proceedings, a longstanding concern of the international
arbitration community.
2. This principle is further enshrined in Article 9 (2) (g) of the IBA Rules, according to
which the Tribunal shall exclude from evidence that is against the procedural
economy, as well as commentary.
3. Should the award or submissions from the Arbitration 2 be admitted, RESPONDENT
would be obligated to comment on the evidence and likely adduce evidence in
response. This could involve costly disclosure of documents, complicated by
 confidentiality concerns, and possibly witness testimony. CLAIMANT has also
suggested that the respondent from Arbitration 2 may need to be joined to these
proceedings by application of Articles 27 and 28 of HKIAC Rules (2018) [Record at
p.50]. If this were permitted, it would add significant costs and time to resolution in
these proceeding without no benefit to the outcome of this case for the reasons
explained above.

2.3 Illegally-obtained evidence must not be admitted in these proceedings

(i) The admission of illegally-obtained evidence would be unfair

1. Article 13. 5 of HKIAC Rules (2018) obligates tribunals and parties to conduct
arbitral proceedings fairly. This principle is also enshrined in Article 9 (2) (g) of the
IBA Rules, which empowers tribunals to exclude evidence based on considerations of
fairness. By extension, commentators recognize fairness to be part of a broader duty
of good faith including the “obligation to act with fairness, reasonableness, and
decency in the formation and performance” of arbitration agreements.
2. These principles are also well-established in arbitral practice. In [Methanex v. United
States of America case], documents obtained by a trespasser on private property were
declared inadmissible because it was considered that the party acted with reckless
disregard even though the party did not intend to violate the law. The tribunal stated
that “the Disputing Parties each owed in this arbitration a general legal duty to the
other and to the Tribunal to conduct themselves in good faith during these arbitration
proceedings and to respect the equality of arms between them, the principles of ‘equal
treatment’ and procedural fairness”
3. For the foregoing reasons, the tribunal should deny the admissibility of the evidence
because it was obtained by hacking RESPONDENT’s computer illegally, which is
contrary to the principles of good faith and procedural fairness. Even if CLAIMANT
were to claim that it was not directly involved with the illegal hacking, CLAIMANT is aware
that the evidence it seeks to introduce was obtained illegally, which meets the
“reckless disregard” standard in Methanex v. United States of America and otherwise
violates general notions of fairness.

(ii) If the illegally obtained-evidence is admitted, the award in this arbitration

will be endangered
 1. Under Article V (2) (b) of New York Convention, enforcement of an arbitral
award may be refused if it would be contrary to the public policy of the country
where the award is being enforced.
2. Several jurisdictions justifiably exclude illegally-obtained evidence from court
proceedings e.g. Article 16.77, Section 138 (1) of Uniform Evidence Law in
Australia. If the tribunal were to admit illegally-attained evidence, the award in
this arbitration could be endangered, which would undermine the imperative that
“[t]he ultimate purpose of an arbitration tribunal is to render an enforceable
award”

CONCLUSION OF ISSUE 2
In conclusion, the evidence put forward by CLAIMANT is inadmissible because it is
irreverent, immaterial, contrary to procedural economy and contrary to procedural
fairness, and the Tribunal should exclude it on these bases.

If there are no further inquiries that shall conclude the claimant;s submissions

Pertanyaan
1. kalo buktinya claimant sama tapi respondent tdak terlibat, apakah boleh? boleh kalo
dapetinnya legal, nama companynya disamarkan.
2. di subab konsekuensi tambahin article 45 hkiac 2018
3. Lex loci arbitri : choice of law following seat of the arbitration

APA YANG HARUS DIPRINT

1. Script
2. Cvis Case and PO2
3. HKIAC Rules 2018
4. Shagang south asia (Hongkong) trading co. ltd and daewoo logistics in 2015
5. pengertian doctrine separability, four corner rules, express empowerment, lex
loci arbitri
6. UNCITRAL Model Law
7. IBA Rules on taking of Evidence in International Arbitration (the IBA Rules)
8. Methanex v United States of America Case
9. New York Convention
10. Uniform Evidence Law in Australia