With the permission of the member of the tribunal, I would like to start with the first issue i.e.

whether the claimant can invoke summary procedure to request dismissal of the respondents
counterclaim.

The respondents counterclaim is based on two merits that the claimant has breached the
contract and secondly that respondents have no obligation to accept the goods, the counsel
submits that such claim raised by respondents are manifestly without legal merit and
frivolous in nature and hence summary procedure must be invoked under rule 29 of SIAC
rules 2016.

Rule 29 talks only about “legal merit”, but tribunal have held in Trans global petroleum case
that it is rarely possible to assess the legal merits without examining the factual premises.

In the present case the state of Raconia suffered from unusual heavy rain and thus causing
impediment in the process of manufacturing of MSPP’s which has been acknowledged by the
respondents themselves in exhibit C3(page 15) and Exhibit c6(page 18) of the case record.

The impediment caused is unforeseeable as well as beyond the control of claimant since the
claimant could not have predicted a rainy season of 7 months starting from September till the
last shower i.e. in April. Also the manufacturing of photovoltaic panels involved testing of
the panels for a continuous period of 8 hours in benchmark solar radiation on a clear day and
since there is no substitute for the solar radiation making such impediment was unavoidable.

Hence it is humbly submitted that there is no breach on the part of the claimant under Article
79(1) of the CISG.

Now moving to the next merit of counterclaim that the respondents have no obligation to
accept the goods, the counsels submits that’s in accordance with the Article 6.1.3 of the
UNIDRIOTS principle, it allows the seller for partial performance if such partial performance
has no significant harm to the party.

And Since, the claimant was ready to start phase II of the contract i.e. installation of the
MSPP’s which did not require all 10,000 MSPP’s rather could have easily started with the
manufactured 6,300 MSPP’s, and thus there no significant harm to the respondent by
accepting partial goods.

Further, the counsel submits that the counterclaim is frivolous in nature which is manifestly
ill founded and in bad faith, since the respondents counterclaim was based on untrue facts
regarding the deadline of the contract and that the buyer is obligated to buy MSPP’s only
when 10000 MSPPS were completed.

With the permission of the members of the tribunal the counsel would like to move to the 2nd
issue that whether the Central Ministry for New and Renewable Energy of the state of raconia
may be joined as a party to the [resent arbitral proceeding.
It is most humbly submitted that CMNRE must be denied to become a party to the arbitral
proceeding since it is (1) not prima facie bound by the arbitration agreement (2) joinder of
cmnre will breach contractual privity and lastly (3) joinder of cmnre will breaxh
confidentiality

The counsel would to throw light on page 12 of the case record, to Dispute Resolution
Clause, the language of which clearly shows that nothing was mentioned so as to assume that
CMNRE was prima facie bound by the arbitration agreement, also there was lack of any other
agreement from which the same could be assumed.

Secondly, the joinder of CMNRE would be in a clear breach of contractual privity i.e. rights
and obligations cannot be conferred on third parties and since respondent being a separate
legal entity will be in clear breach of contractual privity if CMNRE indemnifies claimant on
behalf of the respondent.

Lastly, Joinder of CMNRE will also result in breach of confidentiality as CMNRE is a

government entity is governed by the Section 57 of the Raconia Freedom of Information Act,
2009, whereby all the details of the proceeding between claimant and respondent would be
publicly available, providing no safe guard to the claimant to protect any price sensitive
information.

Hence, it is most humbly submitted that CMNRE should not be joined as a party to the
present proceeding.

With the permission of the members of the tribunal the counsel would like to proceed with
the 3rd issue that whether the joinder of Central Ministry for New and Renewable Energy
infringes the confidentiality obligation under Rule 39 of SIAC rules 2016

It is most humbly submitted that the joinder of CMNRE infringes the confidentiality
obligation as (1) it does not fall under any exception under rule 39.2 (2) breach of duty of
good faith and lastly breach of clause 17 of the MSPP agreement.

According to SIAC Rule 39.1, all matters relating to proceeding must be kept confidential.

But In The Present Case CMNRE is a government entity governed by the Section 57 of the
Raconia Freedom of Information Act, 2009, according to which all the information must be
made public, and such act does not fall under any of the exception laid under Rule 39.2
thereby infringing the confidential obligation placed on the respondent.

In A.I. Trade Finance Inc. v. Bulgarian Foreign Trade Bank Ltd it was stated that the
disclosure of the fact of the arbitration is much different than disclosure of a party’s trade
secrets and great importance should be attached to what kind of information is made public.

Thus the present arbitral proceeding involves greater sensitivity since the information which
will be made public involves trade secrets, price sensitive information. Also there are claims
of inability to work on time and Confidentiality is meant to protect such claims and data from
becoming public and respondents intends to disclose this thereby tarnishing the reputation of
the claimants and hence breaching the duty of good faith to placed on the respondent

Moreover, the arbitration clauses are separable from the contract in which they are included,
even if CMNRE is joined it would become a party to the arbitration and not a party to the
agreement, consequently, not governed by the exception laid under Clause XVII of the
agreement.

Thus , it is humbly submitted that if CMNRE is joined as a party to the arbitration there will
be infringement of confidentiality obligation.

which will only prejudice the claimants business relationship and will not affect the people of
raconia in anyway whatsoever.

A.I. Trade Finance Inc. v. Bulgarian Foreign Trade Bank Ltd it was stated that the
disclosure of the fact of the arbitration is much different than disclosure of a party’s trade
secrets. In this assessment, great importance should be attached to what
kind of information is made public.
In commonwealth of Australia v John Fairfox Ltd, it was seen that disclosure of Govermental
information should be seen through different spectacles, and type of information to be
disclosed is a pivotal factor in deciding whether an exception applies.