Luong Le Ngoc Bich-Writing sample_Request for Arbitration

IN THE MATTER OF AN ARBITRATION AT VIETNAM INTERNATIONAL ARBITRATION CENTRE (VIAC) UNDER VIAC’S RULES OF ARBITRATION between BUYER'S COMPANY - Claimant - and SELLER'S COMPANY - Respondent - REQUEST FOR ARBITRATION1 Brisbane , 23 May, 2008 1 This form is for reference only and not mandatory. The structure and wordings are free to be modified by Parties to fit the nature and the development of a particular dispute and to suit the desire of Parties. Direct contact with the Secretariat is recommended if a Party needs further instructions. 1

Issues LIST OF LEGAL SOURCES Legal ground 1. Fundamental breach -The CISG: quantity and quality of the respondent: Lack +Date: 22-03-2007 Country: Spain Number: 244/2007 Court: of conformity of goods Audiencia Provincial de Madrid Parties: Lamina System AB v. Coelian Asesoramiento y Servicios, S.A. +Date: 03-10-2002; Country: Spain; Number: AC 20021851; Court: Audiencia Provincial de Pontevedra; Parties: Jabsheh Trading Est. vs. IBERCONS -Fundamental breach +Deprivation of what was expected under the contract +“Foreseeability\" -Vietnamese law: Seriously violation of the obligations of the respondent: Art. 423 of the Civil Code 2015; Substantial breach of the respondent: Art. 3.13 of the Commercial law -The CISG: Usual or adequate packaging +Date: 29-04-1996 Country: Mexico Number: M/21/95 Court: COMPROMEX, Comisión para la Protección del Comercio Exterior de Mexico Parties: Conservas la Costena S.A. de C.V. v. Lanis San Luis S.A. & Agro- industrial Santa Adela S.A. +Date: 14-12-2006 Country: Germany Number: 2 U 923/06 Court: Oberlandesgericht Koblenz Parties:-- -The CISG: Fit for ordinary purposes +Contract and subparagraph (1)(a) [draft counterpart of CISG subparagraph (2)(a)] +Topic 43 Viac’s book for entrepreneurs: Resolving Contract Dispute: Case law of Lao 2

-Determine goods’s quality: So-called “Independent\" Inspection Company A and its invalidity of the inspection assessment and its invalidity of the inspection assessment Topic 92: Viac’s book for entrepreneurs: Resolving Contract Dispute Case law of Inspection Company Q 2. The respondent's -CISG: Art. 7, Art. 68 (good faith in risk transfer) violation of the +Date: 30-11-1998 Country: Mexico Number: M/115/97 Court: principle of goodwill COMPROMEX. Comisión para la Protección del Comercio Exterior de Mexico. Parties: Dulces Luisi, S.A. de C.V. v. Seoul International Co. Ltd. , Seoulia Confectionery Co. +Date: 09-05-2016 Country: Paraguay. Number: 36 Court: Tribunal de Apelación en lo Civil y Comercial de Asunción Parties: COMPAÑÍA DE PETROLEO Y ASFALTO (COMPASA) C/ PETROBRAS DISTRIBUIDORA S.A. S/ INDEMNIZACIÓN DE DAÑOS Y PERJUICIOS”. +C​ omments on Article 68 from seminal 1986 text by Peter Schlechtriem [Germany]​, pace law -Cases of Vietnamese law (Do Van Dai): Art. 3. Civil Code 2015, Art 443 Civil Code 2015: The respondent's violation of the obligation to provide information, Art 14.1 Commercial law 2005: The respondent's violation of Principle of protection of legitimate interests of consumers -The CISG: Art. 38 and 39 Obligation of examination and notice requirements concerning the conformity of the goods Date: 00-00-1989; Country: Arbitral Award; Number:m5713/1989; Court: ICC Court of Arbitration - Paris; Parties: Unknown 3

3. Damage and fine -CISG: Loss of resale profit; Wasted expenses; Legal cost; Loss of customers and loss of goodwills; Calculation of damages -The Vietnam Maritime Code - ​Fine for breach of the respondent: Art 300 Commercial law and Art 418 Civil code 2015 Parties to the dispute2 1. The Claimant is Buyer's Company with the following information: Address A​ nn St Brisbane, QLD, Australia 4000 Legal representative ID Tax code Telephone 2. The Claimant in this arbitration is represented by [……….] in accordance with the Power of Attorney No [……….] dated [……….]. 3. The Respondent is Seller's Company with the following information: Address 132 Le Chan, Hai Phong Legal representative Telephone Fax Email I. Factual background3 2 It is recommended that the Claimant provides VIAC with the exact address of both the Claimant and the Respondent which are registered in the respective Business Registration Certificate or Investment Certificate. In addition to the postal address for document delivery, provision of other means of communication such as telephone number, fax number, email address, etc. shall facilitate faster and more efficient communication between VIAC and the Parties during the arbitral proceedings. 3 In this section, the Claimant briefly submits the main facts and circumstances of the dispute. 4

Date Facts Source 1/4/1989 CISG entried into force in Australia Pacelaw 1/1/2017 CISG entried into force in Vietnam Pacelaw 5/5/2017 - Claimant (as buyer) signed a sales contract (buy 1000 metric tons of bitumen with USD 500,000) with Respondent (as seller) General facts - The goods were shipped by boat from the loading port in Hai Phong (Vietnam) to the discharge port in Brisbane (Australia). Claimant paid 20% contract price in accordance with the terms of the sales contract. The goods were handed over to the carrier. Company A inspection report at loading port. Exhibit A Respondent stored the bitumen in 5000 drums.: 27/7/2017 - Almost all the drums were already damaged prior to loading due to the manner in which they were handled which were almost all deformed severe difficulties. - Respondent loaded the deformed drums in the vessel’s hold. Early The risk of loss or damage to the goods was Contractual August transferred from the Seller to the Buyer upon receipt Provisions of full payment (Art.7; Art.13) 24/8/2017 Letter from the captain of the vessel stated that Exhibit B heavy weather was encountered during the sea voyage 5

25/8/2017 Company B inspection report at discharge port: Exhibit C - Several drums were crushed or perforated during the voyage from Hai Phong to Brisbane. - The bitumen contained in those drums had leaked out in the vessel’s hold. - The value of the lost cargo was estimated at USD 175,000. - The deformed drums could not be lashed and stowed properly. As a result, the drums were crushed or perforated during the sea voyage. Compilation of invoices and receipts showing that Exhibit D Claimant paid USD 150,000 for the cleanup and treatment costs of the leaked bitumen 1/10/2017 Claimant sent the Respondent a letter. In that letter, Exhibit E claimant requested Respondent to reimburse the value of the lost cargo and the cleanup costs Respondent did not reply to this letter. II. Legal basis for the Claimant’s claims4 - Viac has the jurisdiction under the arbitration rule In the Arbitration Agreement No... of the Contract dated 25 May 2017/ Article 17 on dispute settlement, the Parties agreed as follows: “Valid arbitration clause which provides that all disputes arising from the Contract shall be referred to VIAC arbitration under Vietnamese law”.​ Since a dispute arises between Parties, pursuant to the above-mentioned provision, the Claimant submits this Request for Arbitration to VIAC. 4 In this section, the Claimant submits contractual basis and legal grounds that the Claimant has relied on to submit its claims, with reference to appropriate analysis and evidence. 6

- The tribunal has the authority to adapt this contract under CISG, case law, trade usage and Vietnamese law The appropriate law is C​ ISG​. The CISG took effect in Vietnam on 1st January 2017 and took effect in Australia on 1 April 1989. Pursuant to Art 1b CISG “This Convention applies to contracts of sale of goods between parties whose places of business are in different States: (b) when the rules of private international law lead to the application of the law of a Contracting State.” The Arbitral Tribunal shall and may apply the most appropriate law, case law, trade usage (tập quán) for disputes with a foreign element and if the parties do not have any agreement on the applicable law pursuant to Art. 24 Applicable law of The Rules of Arbitration of VIAC. The Agreement is governed by ​Vietnamese law pursuant to Art. 683 of the Vietnamese Civil Code, which provides as follows “I​ n case the contracting parties fail to agree the applied law, the law of the country with which such contract closely associates shall apply.” and “The laws of any of the following countries shall be treated as the law of the country with which such contract closely associates: The law of the country where the seller being natural person resides or the seller being juridical person is established in terms of sale contracts”. The seller’s natural person or juridical person is Vietnam. - The respondent’s violations of its legal obligations The respondent breached its contractual obligation under CISG concerning the conformity of the goods + The respondent breached the contract for non-conformity of goods (contractual quantity/quality) under Art. 35.1 CISG In terms of quantity, drums had leaked out and the cargo was lost (Exhibit C) and in terms of quality, drums were damaged ...were almost all deformed severe difficulties (Exhibit A). An argument was followed in (Topic 101 VIAC’s book for entrepreneurs: Resolving Contract Dispute) a China company vs. a Vietnamese company. The tribunal held that “The seller is the one who put the goods into containers and when receiving the containers, the goods were missing so the seller is responsible for the missing goods”. Consequently, the responsibility for the lost cargos in this case falls on the respondent. 7

This nonconformity of the respondent violated the Arts. 35.1 CISG regardless of risk transfer time. Art. Contractual Provisions 13. Risks: the risk of loss or damage to the goods is transferred from the Seller to the Buyer when the ownership of the cargo is transferred to Buyer upon receipt of full payment by Seller. (Art. Contractual Provisions 7) Full payment is satisfied in Early August. In, Jabsheh Trading Est. vs. IBERCONSA, the tribunal found that “according to Arts. 30 and 35 CISG, the passing of risk on shipment does not exclude the seller’s obligation to deliver goods in conformity with the agreed terms of the contract.” Therefore, after the time of risk transfer, the Seller must satisfy the requirement of conformity. - The respondent's breach for non-conformity was a fundamental breach under Art. 25 CISG Respondent's failure to sell bitumen of the quality required by the contract amounted to a fundamental breach. Respondent’s breach resulted in detriment that substantially deprived Claimant of what Claimant was entitled to expect under the contract (i). Claimant is not precluded from asserting the breach was fundamental as Respondent foresaw and a reasonable person would have foreseen the detriment suffered by Claimant as a result of such a breach (ii) (i) Respondent’s breach substantially depriving Claimant of what was expected under the contract Claimant was entitled to expect bitumen that complied with Art. 4 of the contract so that Claimant could fulfil its subsequent contract with other contracting parties. Respondent failed to supply bitumen that conformed with Art. 4 of the contract. As a result of Respondent’s breach of contract. This detriment substantially deprived Claimant of the expectation that the bitumen would conform with the contract so that the goods could be resold to other contracting parties. In Lamina System AB v. Coelian Asesoramiento y Servicios, S.A., the tribunal noted that the seller had breached its obligations set forth in Arts. 25 and 35 CISG, reasoning that the buyer was deprived of what he was entitled to expect under the contract since... ​qualities did not conform to those agreed upon.​ 8

Respondent’s breach of contract for non-conformity of goods resulted in such detriment as to substantially deprive Claimant of what Claimant was entitled to expect under the contract (Art. 25 CISG). ‘Detriment’ is not confined to material loss or damage. (ii) The detriment suffered by Claimant as a result of such a breach was foreseeable In this transaction, the claimant expected under the contract that the drums are in a better state. However, almost all the drums were a​ lready damaged ​... a​ ll deformed severe ​difficulties (Exhibit A). At discharge port, respondent foresaw or ought to have foreseen that the delivery of bitumen inappropriate for delivery during the long sea voyage. At the time that the contract was concluded, the respondent knew the low standard of goods. Given Respondent’s knowledge and commercial experience, a reasonable merchant in the position of Respondent would have foreseen that the use of damaged and deformed drums in its delivery processes would have rendered the bitumen crushed and leaked out. -The certificate issued by Company A inspection has its questionable legal validity pursuant to Art. 262 Commercial Law 2005. That provides as follows “​Article 262.- Legal validity of assessment certificates 1​ . Where contracting parties agree on the use of an assessment certificate ...shall be legally binding on all the parties if they cannot prove that the assessment results are n​ on-objective, untruthful or obtained with technical or professional errors.” In fact, the company A Inspection may be paid by the respondent and the provision 10 of the contract is in favor of the respondent who may draft this contract and insert into the contract contents which are disadvantageous to the claimant. The tribunal could cast doubt on company A's credibility, expertise, unbiased methods and when interpret this provision, the tribunal protects the weaker position, the complaint. (Cases of Topic 15 and 92, VIAC’s book for entrepreneurs: Resolving Contract Dispute). The circumstances at hand give rise to justifiable doubts as to Company A’s independence and impartiality. - The respondent violated its obligation of packaging as required by the Art. 4 of the contract “in black new steel drums” and Arts. 35 and 36 CISG. In Conservas la Costena S.A. de C.V. v. Lanis San Luis S.A. & Agro- industrial Santa Adela S.A, the Commission held that also the packaging of goods should have been in conformity with the agreement, according to Arts. 35 and 36 CISG. The Commission found 9

that the goods reached the buyer in bad conditions due to lack of adequate packaging, and considered that both firms knowing that the goods were to be shipped were obliged to ship the goods with adequate packaging in order to store and protect the goods during carriage. The COMPROMEX held the Argentine firm liable since it had not supervised the packaging of the goods, and this had caused the deterioration of goods due to inadequate packaging. In fact, the packing is not good enough to meet the contract’s requirement that leads to deteriorate the quality and quantity of goods. Similar conclusions were reached by the tribunals in such cases dated on 14-12-2006 in Germany with Number: 2 U 923/06. The Court held that the seller had breached the contract by packing inappropriately according to Art. 35(2)(d) CISG and therefore, although the risk should have passed to the buyer when the goods were handed over to the buyer's carrier, the seller was liable for damage because lack of conformity of the goods already existed at the time the risk had passed to the buyer under the contract (Art. 36 CISG) - The respondent violated its obligation of examination and notice requirements concerning the conformity of the goods under the Art. 38 and 39 CISG In a case in 1989 numbered :m5713/1989, the ICC Court of Arbitration at Paris held that referring to Art. 38(1) CISG, the court found that the buyer had examined the goods within as short a time as practicable, in this case before shipment, and had given notice of the lack of conformity to the seller within a reasonable time (8 days after publication of the expert's report of the examination) (Art. 39(1) CISG). Further the court held that the seller was not entitled to rely on the provisions of Arts. 38 and 39 CISG as it knew or it could not have been unaware of the lack of conformity and did not disclose the lack of conformity to the buyer (Art. 40 CISG). In fact, there is no information that the respondent had examined the goods and notified the claimant by the event of the signature of the contract and the 1st inspection. At the loading port in Hai Phong, bitumen was damaged but the respondent did not foresee a particular loss. They should inform the Respondent, have taken the problem into account and acted accordingly by excluding or reducing its potential liability, procuring insurance, increasing the amount of benefit to be obtained from the contract, or even refusing to enter into the contract from the initial day of cooperation. 10

-The Respondent committed a violation of the general duty to act in good faith In Dulces Luisi, S.A. de C.V. v. Seoul International Co. Ltd. , Seoulia Confectionery Co., the Court observed that Art. 7 CISG indicated good faith as one of the basic principles regulating the contractual relations between the parties and specified that the standard of good faith was not to be determined according to domestic law concepts, but according to the standard of good faith which is common in international trade. The Court held that the buyer(s) acted in bad faith, causing damages to the seller, by grossly violating the basic principle of good faith that should be observed in international trade. In fact, on 1 October 2017, Claimant requested Respondent to reimburse the value of the lost cargo and the cleanup costs. The Respondent did not reply to this letter in contrast with the principle of good faith (Art. 7(1) CISG) as they did not communicate in good faith. They did not follow from the general principle of good faith in international trade and the parties' duty to cooperate. The similar argument can be seen in C​ OMPASA vs. PETROBRAS S.A. The claimant complied with its duty of cooperation whereas COMPASA did not; it acted in bad faith. Under the Art. 68 CISG, if at the time of the conclusion of the contract of sale the seller knew or ought to have known that the goods had been lost or damaged and did not disclose this to the buyer, the loss or damage is at the risk of the seller. The retroactive effect of the transfer of risk to the date of shipment operates only to the advantage of the good faith seller (Article 68 sentence 3) (C​ omments on Article 68 from seminal 1986 text by Peter Schlechtriem [Germany]​). T​ herefore, it does not matter when the risk transfer from the seller pursuant to Provision 13 of the contract, the respondent is responsible for the lost and damaged cargo. -The Respondent cannot rely on the heavy weather as an exemption to avoid liability under Art. 79 CISG The respondent can not prove that the heavy weather was an impediment beyond his control and that he could not reasonably be expected to have taken the impediment into account at the time of the conclusion of the contract or to have avoided or overcome it or its consequences. ​The captain (carrier) and the respondent can not consider the heavy weather as 11

force majeure to get around its responsibility and the adverse weather can not result in “perforated” drums (Exhibit C). There is doubt that drums are “perforated” by somebody in an intentional and direct way. -Respondents’s breach of the provision 2 of “fitness for ordinary purposes\" under Art. CISG 35 and violation of provision 12 of the contract. Within the context of international trade, resale must be considered an 'ordinary' use (​Secretariat's Commentary​ to Article 33 of the 1978 Draft Convention.) Regarding to Fit for ordinary purposes, subparagraph (1)(a) [draft counterpart of CISG subparagraph (2)(a)] is as follows: In particular, the obligation to furnish goods which are fit for all the purposes for which goods of the contract description are ordinarily used also covers a buyer who has purchased the goods for resale rather than use. For goods to be fit for ordinary purposes, they must be honestly resalable in the ordinary course of business. According to Topic 43 VIAC’s book for entrepreneurs: Resolving Contract Dispute, in a Vietnamse buyer vs. a Laos company, the tribunal held that a contract will demonstrate that the Claimant sold the goods from the Respondent to the third party. Therefore, the respondent violated the Warranty clause of the contract because the goods does not satisfy the requirement of resalability with the third party. A similar argument of a case in P​ araguaya i​ s that an ​obligation to maintain a permanent stock of asphalt products sufficient to satisfy the demand in the market. The same argument is in a Vietnamese company vs. a Chinese company, there was no raw materials used immediately for the factory, no production materials for customers, many customers delayed orders, lost many customers ... can not achieve the purpose of concluding contracts Article 3 paragraph 12 Commercial law 2005. -Claimant is entitled to damages for respondent's breach of contract Claimant wholly performed their obligations under the contract and therefore may claim restitution of the full purchase price. In accordance with the principle of full compensation under Art. 74 CISG, the Claimant is entitled to damages for consequential loss (CISG Advisory Council Opinion No. 6). Damages for breach of contract consist of a sum equal to the loss, including loss of profit. The Claimant is entitled to additional costs 12

reasonably incurred as a result of the breach and of measures taken to mitigate the loss (150.000 USD cleanup and treatment cost of the leaked bitumen) The Claimant took reasonable measures to mitigate their loss resulting from respondent's breach. Claimant may sell the remaining goods to X, enter into a substitute transaction to mitigate the loss, contracte with the third party to provide substitute bitumen. The Claimant requires delivery of substitute goods as the lack of conformity constitutes a fundamental breach of contract under Art. 46 CISG and additional costs for transportation, storage and insurance; the loss of clients resulting from the damaged bitumen. According to CISG Advisory Council Opinion No. 6, The aggrieved party is entitled to non-performance damages, which is typically measured by the market value of the benefit of which the aggrieved party has been deprived through the breach, or the costs of reasonable measures to bring about the situation that would have existed had the contract been properly performed. It took into account damages for pecuniary loss resulting from claims by third parties, the difference between the contract price and the substitute transaction.. Viac’s book for entrepreneurs: Resolving Contract Dispute mentioned these issues with some cases (Topic 44, topic 42, topic 43, topic 100). Contract price:$500,000 Value the bitumen would have had if the contracted had been duly performed: $550,000 Value of bitumen as delivered: $410,000 =>$140,000 Extra expenses of cleanup and treatment costs (Wasted expense): $ 150,000 Loss arising out of the breach (lost volume sales…): $ 175,000 Exchange rate losses: $ The loss of chance or opportunity to earn a profit and a loss of business reputation: $ Loss of resale profit: $ Loss of production: If production in the buyer’s factory is interrupted or stopped as a result of the seller’s breach ( suspend further construct projects- case numbered 03/2018/KDTM-PT) 13

Wasted expenses: Claimant paid USD 150,000 for the cleanup and treatment costs of the leaked bitumen Legal cost Loss of customers and loss of goodwills Calculation of damages as follows: Reduced Price =Value of promised (non-conforming) goods/ Value of promised (conforming) goods x Contract Price= -Claimant is entitled to fine for respondent's breach of contract Under, Vietnamese law, there was a serious violation of the obligations of the respondent: Art. 423 of the Civil Code 2015, a substantial breach of the respondent (Art. 3.13 of the Commercial law), the respondent s​ hall have to pay both the fine for the violation and compensation for damage. The fine level is 8% of the value of the breached contractual obligation portion pursuant to Art. 301 Commercial law 2005 and Art. 422. Civil Code 2015. This fine = 8% * 150.000= ​$ 1​ 2.000 This obligation to pay money can be offset by another obligation (Art. 378 Civil Code 2015) and The Hà Nội People's Court where the VIAC is resolving any dispute, shall be accorded authority to impose an arrest of the vessel (detention or restriction on removal) of the respondent as an interim injunction (Art. 129 and Art. 130) III. Value in dispute and relief sought 4. The total value in dispute is approximately: $ 470.0005. 5. On the basis of the submissions in Section III above, the Claimant would like to seek relief as follows: (i) Find that Respondent breached the contract for non-conformity of goods, that such breach was fundamental and entitled Claimant to reimburse the contract; (ii) Find that Claimant is entitled to be reached warranty as the contractual provision; (iii) Find that Claimant is entitled to be awarded damages and fines in the amount to be determined 5 The total value in dispute is the total monetary value of the Claimant’s claims based on which VIAC shall calculate arbitration costs. 14

IV. Miscellaneous 6. The Claimant selects Mr./Ms. [……….] to act as an Arbitrator/The Claimant request the VIAC to appoint an Arbitrator to resolve the dispute between the Claimant and the Respondent. Mr./Ms. [……….] is an Arbitrator listed in the VIAC’s Arbitrator List.6 7. Please contact Mr./Ms. [……….]7 via the following details: Address Telephone 8. Regarding the language of arbitration, Article [……….] of the Contract provides that [……….]/ the Claimant proposes that English is the language of arbitration.8 9. Regarding the place of arbitration, Article [……….] of the Contract provides that [……….]/ the Claimant proposes that [……….] is the place of arbitration.9 10. Regarding the applicable law, Article [……….] of the Contract/Agreement provides that [……….]/ the Claimant proposes that [……….] law is applied to resolve the dispute.10 On behalf of the Claimant (sign, stamp)11 6 It is recommended that the Claimant on its own initiative do a thorough research on the potential arbitrators to be selected and then select a prominent arbitrator to resolve its case. It is not compulsory that the Claimant (and the Respondent) selects an arbitrator listed in the VIAC’s Arbitrator List. Such List is for the parties’ reference only. 7 If the Claimant selects an unlisted arbitrator, please provide VIAC with the exact and updated contact information including postal address, telephone/mobile phone number, email and fax number (if any). 8 Specify one language, Ex: Vietnamese or English. 9 Specify one place, Ex: Hanoi or Ho Chi Minh City. 10 Specify one country’s or countries’ law, Ex: Vietnamese Law. 11 If the Claimant is an organization, the legal representative or authorized representative (with lawful power of attorney) shall sign the Request for Arbitration. If the Request for Arbitration is signed by the legal representative, it’ll need to be stamped. If the Claimant is an individual, the Claimant or his/her authorized representative (with lawful power of attorney) shall sign the Request for Arbitration. 15