Seit der ersten Durchführung 1994 hat sich der Moot stark entwickelt, sei es hinsichtlich der Anzahl Teilnehmer oder auch bezüglich Umfang und Komplexität der Fälle. Die jährlich neu aufgesetzten Fälle behandeln unterschiedlichste Sachverhalte. Ausgangslage für den Fall sind umfassende Unterlagen (Verträge, Vereinbarungen und Korrespondenz zwischen den Parteien), aus denen die Teilnehmer den Sachverhalt feststellen und rechtliche Mittel und Wege finden müssen. Dadurch soll den Studenten die Möglichkeit eröffnet werden, den Fall möglichst praxisnah zu lösen.
In Kürze wird der Fall für die aktuelle Ausgabe des Willem C. Vis Moot veröffentlicht und sodann hier aufgeschaltet.
Dies ist der Fall, den es im Jahr 2014 zu lösen galt:
- Vulcan Coltan Ltd. (“CLAIMANT”) is domiciled in Equatoriana and specializes in trading conflict free coltan. GLOBAL MINERALS, the parent company of CLAIMANT, is located in Ruritania and acts as a broker of rare minerals.
- RESPONDENT is a state-owned enterprise that operates all coltan mines located in Mediterraneo, where it is based. Mediterraneo is the world’s second largest producer of conflict free coltan behind Xanadu. Conflict free coltan is a sparse resource as a majority of coltan mines are located in politically unstable areas.
- On 23 March 2014, CLAIMANT approached RESPONDENT to enquire about the delivery of 100 t of conflict free coltan.
- On 28 March 2014, CLAIMANT and RESPONDENT concluded their purchase contract (“Contract”) for 30 t of coltan for USD 45/kg, totalling USD 1,350,000. GLOBAL MINERALS endorsed the Contract but did not become one of the “Contracting Parties”. Under the Contract, CLAIMANT was to secure payment by having a letter of credit established within fourteen days after receipt of the notice of transport by RESPONDENT.
- On 25 June 2014, RESPONDENT sent the notice of transport (“Notice of Transport”) to CLAIMANT. In the Notice of Transport, RESPONDENT indicated the transportation terms which were different from those stipulated in the Contract, namely CIP instead of CIF. In the e-mail to which the Notice of Transport was attached, RESPONDENT informed CLAIMANT that a surplus of 150 t of coltan was available. CLAIMANT understood this to be an offer to sell more coltan to RESPONDENT.
- On 27 June 2014, CLAIMANT informed RESPONDENT by fax that it accepted the amended transportation terms and that it agreed to buy 100 t at USD 45/kg.
- On 29 June 2014, the Deputy Prime Minister of Xanadu informed the press that his party would leave the government. This created considerable uncertainty in the market for conflict free coltan. If Xanadu could no longer deliver at all, as was expected, prices would double and there would not be sufficient conflict free coltan on the market.
- On 30 June 2014, RESPONDENT read the fax sent on 27 June 2014. It only informed one of CLAIMANT’s former employees the next day about its unwillingness to deliver more than 30 t of coltan. This employee was dismissed the same day and failed to inform other employees of CLAIMANT.
- On 4 July 2014, CLAIMANT, which was unaware of RESPONDENT’s disagreement to sell more than 30 t of coltan, issued a letter of credit for 100 t. Moreover, the First Letter of Credit mirrored the amended delivery terms
- On 7 July 2014, the situation in Xanadu worsened. Consequently, the market for conflict free coltan reacted nervously and the price increased. The same day, RESPONDENT declared the Contract avoided because the First Letter of Credit allegedly did not comply with it in terms of quantity and delivery terms. About the same time, RESPONDENT started to talk to other customers about disposing CLAIMANT’s coltan.
- On 8 July 2014, CLAIMANT, as a precautionary measure, established a new letter of credit (“Second Letter of Credit”). It complied with the original Contract and was no longer linked to the agreement that had as per CLAIMANT’s understanding been reached on 27 June 2014.
- On 9 July 2014, RESPONDENT rejected the Second Letter of Credit and again declared the Contract avoided. RESPONDENT alleged that the Second Letter of Credit was not in line with the Contract and that it was delivered belatedly.
- On 11 July 2014, CLAIMANT filed a Request for Arbitration to pursue its rights. Simultaneously, CLAIMANT applied for emergency arbitrator measures in order to refrain RESPONDENT from disposing the quantities of coltan it had sold to CLAIMANT.
- On 26 July 2014, the emergency arbitrator (“Emergency Arbitrator”) ordered RESPONDENT to refrain from disposing the quantities of conflict free coltan in dispute.
- On 8 August 2014, RESPONDENT filed its Answer to the Request for Arbitration. It requested that CLAIMANT’s claims be dismissed, that GLOBAL MINERALS be joined to this arbitration as an additional party and that the order of the Emergency Arbitrator be lifted.
- On 8 September 2014, GLOBAL MINERALS raised the plea of lack of jurisdiction.
- Subsequently, CLAIMANT, RESPONDENT and GLOBAL MINERALS agreed that CLAIMANT and GLOBAL MINERALS would both be represented by Mr. Fasttrack and would make joint submissions. This was solely made for purposes of facilitating the proceeding and keeping the costs low. Thereby, no inferences can be drawn from this behaviour for the arguments in relation to joinder or contract conclusion. This submission, therefore, is filed for CLAIMANT and GLOBAL MINERALS jointly.