MEMORIAL FOR THE RESPONDENT Team Code: Silver-R

XITH NLIU- JUSTICE R.K. TANKHA MEMORIAL INTERNATIONAL

ARBITRATION MOOT, 2026

BEFORE THE HON’BLE SINGAPORE INTERNATIONAL ARBITRATION

CENTRE

IN THE MATTER OF ARBITRATION UNDER:

THE ARBITRATION RULES OF THE SINGAPORE INTERNATIONAL ARBITRATION CENTRE

(7THEDITION, 1ST JANUARY 2025) (SIAC ARBITRATION RULES, 2025)

AEROION TECHNOLOGIES LTD. CLAIMANT

V.

EMPRESA DE NEGOCIOS EN RECURSOS EVAPORÍTICO RESPONDENT

MEMORIAL FOR THE RESPONDENT

WRITTEN SUBMISSION ON BEHALF OF THE RESPONDENT

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XITH NLIU- JUSTICE R.K. TANKHA MEMORIAL INTERNATIONAL ARBITRATION MOOT, 2025
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TABLE OF CONTENTS

TABLE OF ABBREVIATIONS ................................................................................................... 4

INDEX OF AUTHORITIES........................................................................................................ 5
STATEMENT OF FACTS ............................................................................................. 11

ISSUES RAISED .................................................................................................................... 13

SUMMARY OF ARGUMENTS ................................................................................................. 14
ARGUMENTS ADVANCED ................................................................................................. 16

ISSUE 1: THE TRIBUNAL LACKS JURISDICTION OVER THE DISPUTE ............................... 16

[1.] The Claimant waived its right to arbitrate by taking steps in court proceedings
inconsistent with an intention to arbitrate. .................................................................... 16

[2.] The Claimant Failed to Fulfil the Mandatory pre-condition Under Article 22.2 of the
MBSA. ........................................................................................................................ 19

[3.] The Unilateral Option Clause Under Article 22.3(b) is Void as a Potestative Condition
Under the Governing Laws of Bolana. ......................................................................... 22

ISSUE 2: THE LITHIUMLEAKS IS INADMISSIBLE BEFORE THIS TRIBUNAL ...................... 26

ISSUE 3: RESPONDENT DID NOT BREACH ARTICLE 35 CISG AS THE SUPPLIED BRINE

CONFORMED TO THE MBSA. .......................................................................................... 32

[1.] The Respondent supplied brine in conformity with the MBSA’s Industrial Grade
Standard ...................................................................................................................... 32

[2.] The Claimant cannot attribute the plant failure to the Respondent’s brine .............. 34

[3.] The Claimant is estopped from alleging brine incompatibility due to non-disclosure
of technological limitation ........................................................................................... 36

ISSUE 4: ENVIRONMENTAL COMPENSATION AND REHABILITATION SCHEME AND

PRINCIPLES SHAPING THE SCHEME ................................................................................. 37

[1.] Decree 774 satisfies all requirements for force majeure under bolanese law and cisg
article 79 ..................................................................................................................... 38

[2.] Aeroion's catastrophic containment failure constitutes a novus actus interveniens . 39

[3.] Enre's blending activities were conducted in good faith pursuant to contractual
obligations, negating any finding of negligence or wilful misconduct .......................... 41
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[4.] Cisg article 80 bars aeroion from claiming damages for consequences of its own
operational negligence and toxic discharge .................................................................. 43

[5.] Enre complied with all procedural requirements for force majeure invocation and
termination under article 25.2 of the mbsa and cisg article 79 ...................................... 43

PRAYER FOR RELIEF .......................................................................................................... 45

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XITH NLIU- JUSTICE R.K. TANKHA MEMORIAL INTERNATIONAL ARBITRATION MOOT, 2025
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TABLE OF ABBREVIATIONS

ABBREVIATIONS DEFINITION
& And.

% Percentage

AIR All India Reporter

Arb Arbitration

¶ Paragraph

§ Section

Art. Article

cl Clause

Claimant AeroIon Technologies Ltd

FDI Foreign Direct Investment

v. Versus

Hon’ble Honourable
.
ICSID International Centre for Settlement
of Investment Disputes
JPC Jute Production Cntract

Ltd. Limited

No. Number

SEZ Special Economic Zone

SIAC Singapore International Arbitration

Centre
TWA Time-Weighted Average

LoA Letter of Assurance

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XITH NLIU- JUSTICE R.K. TANKHA MEMORIAL INTERNATIONAL ARBITRATION MOOT, 2025
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DLE Direct Lithium Extraction

INDEX OF AUTHORITIES
I HHI H

ARBITRAL AWARDS P. NO

Final Award in ICC Case No 1507, in Sigvard Jarvin and Yves Derains (eds),
Collection of ICC Arbitral Awards 1974–1985 (Kluwer Law International 1990) 23
215–216

Interim Award in ICC Case No 4131, (1984) IX YB Comm Arb 131 23

Final Award in ICC Case No 3572 (1989) XIV YB Comm Arb 111 23

Final Award in ICC Case No 5294 (1989) XIV YB Comm Arb 137, 140–141 23

Final Award in ICC Case No 6379 (1992) XVII YB Comm Arb 212, 215 23

Final Award in ICC Case No 6752 (1993) XVIII YB Comm Arb 54, 55–56 23

Final Award in ICC Case No 6850 (1998) XXIII YB Comm Arb 37 23

ICC Award No 6363 (1991) 42

China, 23 December 2002, CIETAC Arbitration proceeding (Hydraulic Press

case)

t4ttw

CASES P. NO

CARONA HOLDINGS PTE LTD V GO GO DELICACY PTE LTD [2008] 4 SLR(R) 460 16, 17

BELTRAN, GAN AND OTHERS V TERRAFORM LABS PTE LTD AND OTHERS [2023] SGHC 17, 18, 23
340

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TJONG VERY SUMITO AND OTHERS V ANTIG INVESTMENTS PTE LTD [2009] SGCA 41, 18
[2009] 4 SLR(R) 732

REPUTATION ADMINISTRATION SERVICE PTE LTD V SPAMHAUS TECHNOLOGY LTD

[2021] 2 SLR 342; SHANGHAI TURBO ENTERPRISES LTD V LIU MING [2019] 1 SLR 19
779; ZOOM COMMUNICATIONS LTD V BROADCAST SOLUTIONS PTE LTD [2014] 4 SLR
500

INTERNATIONAL RESEARCH CORP PLC V LUFTHANSA SYSTEMS ASIA PACIFIC PTE LTD 19
AND ANOTHER [2013] SGCA 55

M X V M Y (Cour de cassation, ch mixte, 14 February 2003, Case No 00-19.423) 28

CZQ AND ANOTHER V CZS [2023] SGHC(I) 16 29

DEVALK LINCOLN MERCURY, INC V FORD MOTOR COMPANY 811 F 2d 326 (7th Cir, 32
1987)

HSBC INSTITUTIONAL TRUST SERVICES (SINGAPORE) LTD V TOSHIN DEVELOPMENT 21

SINGAPORE PTE LTD [2012] 4 SLR 738

MME D V M HGC (Cour de cassation, Civ 1, 1 February 2023, Case No 21-25.024) 21

BCY V BCZ [2016] SGHC 249; BNA V BNB [2019] SGCA 84; ANUPAM MITTAL V 22, 23
WESTBRIDGE VENTURES II [2023] SGCA 1

SULAMÉRICA CIA NACIONAL DE SEGUROS SA V ENESA ENGENHARIA SA [2012] EWCA 22

Civ 638

JULIAN MORENO BELTRAN AND OTHERS V TERRAFORM LABS PTE LTD AND OTHERS 23
[2023] SGHC 340

HABAS SINAI VE TIBBI GAZLAR ISTIHSAL ENDUSTRISI AS V VSC STEEL COY LTD 23
[2013] EWHC 4071 (Comm) [101]

BNA V BNB [2019] SGCA 84 24

ENKA INSAAT VE SANAYI AS V OOO INSURANCE COMPANY CHUBB [2020] UKSC 38 24

UBER TECHNOLOGIES INC V HELLER [2020] SCC 16 26

SILVERTHORNE LUMBER CO V UNITED STATES 251 US 385 (1920); WONG SUN V 27

UNITED STATES 371 US 471 (1963)

METHANEX CORPORATION V UNITED STATES OF AMERICA (Final Award, 29

NAFTA/UNCITRAL, 3 August 2005) Pt II, Ch C [54]

LIBANANCO HOLDINGS CO LTD V REPUBLIC OF TURKEY (Award, ICSID Case No 29

ARB/06/8, 2 September 2011)

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EDF (SERVICES) LTD V ROMANIA (Award, ICSID Case No ARB/05/13, 8 October 2009) 29
[221]

PLAMA CONSORTIUM LTD V REPUBLIC OF BULGARIA (Award, ICSID Case No 30

ARB/03/24, 27 August 2008)

WORLD DUTY FREE COMPANY LTD V REPUBLIC OF KENYA (Award, ICSID Case No
ARB/00/7, 4 October 2006); METAL-TECH LTD V REPUBLIC OF UZBEKISTAN (Award, 30
ICSID Case No ARB/10/3, 4 October 2013)

CARATUBE INTERNATIONAL OIL COMPANY LLP AND DEVINCCI SALAH HOURANI V 32

REPUBLIC OF KAZAKHSTAN (Award, ICSID Case No ARB/13/13, 22 May 2017)

GLOBAL TELECOM HOLDING SAE V CANADA (ICSID Case No ARB/16/16) 32

GOLSHANI V GOVERNMENT OF THE ISLAMIC REPUBLIC OF IRAN (6 July 2005, Cour de 40

cassation) JDI (2006)

THE WESTERN COMPANY OF NORTH AMERICA V OIL AND NATURAL GAS COMMISSION
(ONGC), Interim Award, 17 October 1988, ICCA YB Comm Arb 1988, vol XIII; 40
(ICSID Case No ARB/07/3, 28 December 2009)

RAW MATERIALS INC V MANFRED FORBERICH GMBH & CO KG (US District Court, ND 42
Illinois, 2004)

OBERSTER GERICHTSHOF, Austria, 10 November 1994, 2 Ob 547/93 35

(Chinchilla Fur case)

Switzerland, 28 October 1997, Appellate Court Valais (Second Hand Bulldozer 38

case)

Germany, 5 April 1995, District Court Landshut (Sport Clothing case) 38

Germany, 21 May 1996, Appellate Court Köln (Used Car case) 38

Hof Beroep Gent, Belgium, 15 May 2002 39

Bundesgerichtshof, Germany, 9 January 2002, Internationales Handelsrecht 39

2002, 17
Pinsent Masons, ‘Singapore Confirms Position on Admissibility v Jurisdiction in Multi‑Tier
Dispute Resolution Clauses’ (Out‑Law, 6 January 2026).

CLOUT CASES P. NO

CLOUT case No 123 [Bundesgerichtshof, Germany, 8 March 1995] 23

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CLOUT case No 107 [Oberlandesgericht Innsbruck, Austria, 1 July 1994] 37

CLOUT case No 360 [Amtsgericht Duisburg, Germany, 13 April 2000] 37

CLOUT Case No 302 (Zurich Chamber of Commerce, 1994) 39, 43

CLOUT case 445 [Bundesgerichtshof, Germany, 31 October 2001] 39

CLOUT case No 277 [Oberlandesgericht Hamburg, Germany, 28 February 39

1997]

CLOUT case No 154 [Cour d'appel Grenoble, France, 22 February 1995] 39

BOOKS P. NO

GARY BORN, International Commercial Arbitration (3rd edn, Kluwer Law 21, 22, 23
International 2021)

MARC BLESSING, 'The Law Applicable to the Arbitration Clause' in ICCA 22

Congress Series No 9 (Kluwer Law International 1999) 169–179

MARGRET L MOSES, The Principles and Practice of International Commercial 24

Arbitration (Cambridge University Press 2008) 172

TOBIAS ZUBERBÜHLER AND OTHERS, IBA Rules of Evidence: Commentary 31, 32

(Schulthess 2012) 206

OXFORD UNIVERSITY PRESS, A Guide to the IBA Rules on the Taking of 32, 33
Evidence in International Arbitration (OUP)

JOURNAL ARTICLES P. NO

MO ZHANG, 'Party Autonomy and Beyond: An International Perspective of 32

Contractual Choice of Law' (2006) 20 Emory International Law Review 511

EDGAR H AILES, 'Substance and Procedure in the Conflict of Laws' (1941) 39 24

Michigan Law Review 392, 402

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XITH NLIU- JUSTICE R.K. TANKHA MEMORIAL INTERNATIONAL ARBITRATION MOOT, 2025
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VIVEK KRISHNANI, 'Confidentiality of Already Disclosed Documents:

Admissibility of Improperly Obtained "Privileged" Evidence' (Kluwer 81
Arbitration Blog, 24 May 2019)

UNITED NATIONS OFFICE ON DRUGS AND CRIME, E4J Cybercrime Module 2:

Offences against the Confidentiality, Integrity and Availability of Computer Data 28
and Systems (UNODC 2018)

'Admissibility of Hacked Evidence in International Arbitration' (Kluwer 29

Arbitration Blog, 6 July 2021

FABIEN V RUTZ, 'Admissibility of Unlawfully Obtained Evidence in 27

International Arbitration' (LLM thesis, University of Zurich, 2020)

SERGE GUINCHARD, 'La règle "Nul ne peut invoquer sa propre turpitude" en droit 30
public français' (2010) Revue du droit public

MARCO AMIANTO, 'The Role of Unclean Hands Defences in International 30

Investment Arbitration' (2019) MJDR

MARK VILLIGER AND OTHERS, 'Corruption and the (Un)Clean Hands Doctrine in 30
Investor-State Arbitration' (2024) 39(1) ICSID Review 61

CHRISTOPHER KEE AND OTHERS, 'Approach of Investment Treaty Tribunals to 32

Evidentiary Privileges' (2016) 31(3) ICSID Review 670

LUCY REED, 'Drawing Adverse Inferences from the Non-Production of Evidence' 34

(2005) 20 ICSID Review

WOLFGANG ALSCHNER AND OTHERS, 'Illegally Obtained Evidence: Shaping

Perspectives on Admissibility in Arbitration' (VIA Mediation Centre, 9 33
September 2024)

DANIEL SUSSMAN, 'Cybersecurity in International Arbitration' (ICCA Congress 33

paper, 2018)

STATUTES AND RULES P. NO

International Arbitration Act 1994 (Singapore, 2020 Rev Ed), s 6(1) 3, 12, 16

International Arbitration Act 1994 (Singapore, 2020 Rev Ed), s 6(2)

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SIAC Rules (7th edn, 2025), r 19.2 21

SIAC Rules (7th edn, 2025), r 31.1 18

77, 80, 98,

IBA Rules, Art 9(2)(b)
102, 105

IBA Rules, Art 9(1)

IBA Rules, Art 9(2)(e)

IBA Rules, Art 9(2)(g)

IBA Rules, Art 9(3),

IBA Rules, Art 9(7),

UNCITRAL Model Law on International Commercial Arbitration, art 19(2) 76

UNCITRAL Digest of Case Law on the United Nations Convention on Contracts for the 107, 112
International Sale of Goods 2016, arts 35, 36

62, 63, 67,

Code civil (France) art. 1137
123

Code civil (France) art. 1170.

Code civil (France) art. 1174.

Code civil (France) art. 1304-2.

Council of Europe, Convention on Cybercrime (Budapest Convention) (2001), arts 2–6 83

Personal Data Protection Act (Cap 26, 2012 Rev Ed) (Singapore), s 13 100

Law No 71-1130 of 31 December 1971 (France), art 66-5; art 2, Règlement Intérieur 98
National (RIN)

UNIDROIT Principles of International Commercial Contracts (PICC), arts 7.1.7, 124, 125
7.1.7(4)

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STATEMENT OF FACTS

I – Parties:
1. The Claimant, AeroIon Technologies Ltd. (“AeroIon”), is a private company
incorporated under the laws of Singapore in 2015. The Claimant holds proprietary rights
over the Ion-Sieve Nanofiltration (“ISN”) system used for lithium extraction.
2. The Respondent, Empresa de Negocios en Recursos Evaporíticos (“ENRE”), is a
private entity incorporated under the laws of the Republic of Bolana in 2010. ENRE holds
a fifty-year lease granted by the Government of Bolana to manage, exploit and industrialize
the evaporitic resources of the Salar Sagrado salt flat.

22 January 2021 CLAIMANT and RESPONDENT executed the Master Brine

Supply Agreement (MBSA) in Dampoli, Bolana.

10 January 2025 Internal ENRE Memorandum, “PROJECT VOID.” Internal

geological assessments reportedly identified high magnesium
concentrations in the Northern Reserve brine.

2 February 2025 RESPONDENT issued a Formal Letter of Assurance to

CLAIMANT confirming that the Northern Reserve brine
complied with the specifications under Article 6.2 of the MBSA.

1 March 2025 RESPONDENT formally switched brine supply from the

Southern Sector to the Northern Reserve.

15 March 2025 Trans-Membrane Pressure (TMP) spiked from 15 bar to 55 bar in

CLAIMANT’s facility.

15 March 2025 Rupture discs on Membrane Banks A and B triggered, indicating

severe system instability.

15 April 2025 Catastrophic system failure (“Magnesium Wall” event) occurred;

approximately 40% of ceramic membrane banks ruptured.

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20 April 2025 The Bolanan Ministry issued Decree 774, ordering the immediate
cessation of operations and revocation of RESPONDENT’s
license in the Northern Sector.

March 2025 A message appeared on the dark web forum SaltEarth: “Soliciting
verified internal geological data regarding ENRE Northern
Reserve. Specifically seeking evidence of high-magnesium
masking. Bounty: $500k USD equivalent in BTC. Escrow
available.”

20 June 2025 The “LithiumLeaks” Data Breach occurred, releasing internal

ENRE geological and operational documents.

21 June 2025 Payment of 12.5 Bitcoin (~USD 500,000) was executed. Sender
wallet was linked to AeroIon’s treasury wallet, and the receiver
wallet to the SaltEarth hacker group.

Cyber-Forensic Report: “The LithiumLeaks Bounty” identified

the transaction trail and the alleged link between AeroIon and the
hacker group.

1 July 2025 RESPONDENT issued a Notice of Termination of the MBSA

citing Force Majeure following Decree 774.

15 July 2025 CLAIMANT filed a Notice of Arbitration before the Singapore

International Arbitration Centre (SIAC) pursuant to Article 22.3
of the MBSA.

15 August 2025 RESPONDENT submitted its Response to the Notice of

Arbitration, contesting jurisdiction and raising objections to the
admissibility of the LithiumLeaks evidence.

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ISSUES RAISED

ISSUE 1

Does the Tribunal have jurisdiction over the dispute?

ISSUE 2

Are the LithiumLeaks documents admissible before the Tribunal?

ISSUE 3

Whether the goods supplied by the Respondent non-conforming to the MBSA read with CISG
Article 35?

ISSUE 4

Does Decree 774 constitute force majeure under Article 25 of the MBSA?

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SUMMARY OF ARGUMENTS

ISSUE 1: THE TRIBUNAL DOES NOT HAVE JURISDICTION OVER THE DISPUTE
The Respondent submits that this Tribunal lacks jurisdiction to hear the present dispute. The
submissions are presented in a three-fold manner. First, the Claimant waived it’s right to
arbitrate by taking steps in Singapore court proceedings that were inconsistent with an intention
to arbitrate. Secondly, the Claimant failed to comply with the mandatory condition precedent
of a CTO-to-CTO meeting under Article 22.2 of the MBSA, which is a pre-condition to the
invocation of arbitration that goes to the admissibility of the claim before this Tribunal. Thirdly,
the unilateral option clause under Article 22.3(b) of the MBSA is void as a prohibited condition
potestative under the governing substantive law of Bolana, which is pari materia with French
law, and this invalidity survives the conflict of laws analysis because Bolanan law governs the
arbitration agreement under the applicable choice of law rules. The Respondent raised these
objections in its Response to the Notice of Arbitration pursuant to Rule 7.1(d) and Rule 8.1 of
the SIAC Rules 2025, and now particularises them in accordance with Rule 31.2.

ISSUE 2: THE LITHIUMLEAKS DOCUMENTS ARE NOT ADMISSIBLE BEFORE THE TRIBUNAL

The Respondent respectfully submits that Exhibit C5, the “Project Void” memorandum forming
part of the LithiumLeaks, is inadmissible before this Tribunal. The submissions are presented
in five parts. First, arbitral tribunals determine admissibility through a discretionary balancing
framework under Article 9 of the IBA Rules on the Taking of Evidence rather than strict
exclusionary doctrines such as the “fruit of the poisonous tree.” Secondly, the evidence must
be excluded because the Claimant directly participated in its illegal procurement by soliciting
and financing the cyber intrusion into ENRE’s servers, thereby violating principles of good
faith and the doctrine of unclean hands. Thirdly, Exhibit C5 contains commercially
confidential and proprietary geological and strategic data belonging to ENRE, and Article
9(2)(e) of the IBA Rules requires exclusion where compelling grounds of commercial
confidentiality exist. Fourthly, even if admitted, the document should be afforded negligible
probative value because hacked digital evidence lacks a reliable chain of custody and may be
altered, selectively extracted, or taken out of context. Finally, the Tribunal should draw adverse
inferences and impose cost sanctions against the Claimant under Article 9(7) of the IBA Rules
for its bad-faith conduct in procuring evidence through illegal means.

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ISSUE 3: THE GOODS SUPPLIED BY THE RESPONDENT ARE NOT NON-CONFORMING TO THE

MBSA READ WITH CISG.

The Respondent respectfully submits that it did not breach Article 35 of the CISG as the brine
supplied conformed to the MBSA. The submissions are presented in three parts. First, the
Respondent supplied brine in conformity with the MBSA’s Industrial Grade standard under
Article 35(1) CISG. The contract required an Mg/Li ratio of “approximately 19:1,” allowing
reasonable industrial variation, and the supplied brine remained within the operational capacity
of modern Direct Lithium Extraction technologies. Secondly, the Claimant cannot attribute the
plant failure to the Respondent’s brine because the failure resulted from the Claimant’s
undisclosed proprietary extraction technology. Under Article 36 CISG, seller liability arises
only for non-conformity existing when risk passed, and the Claimant assumed the risk by
operating a confidential “black box” system without disclosing its technical limitations.
Thirdly, the Claimant is estopped from alleging brine incompatibility due to its prior assurances
that its technology could process brine with varying impurity levels, on which the Respondent
relied in good faith.

ISSUE 4: The DECREE 774 CONSTITUTES AS FORCE MAJEURE UNDER ARTICLE 25 OF THE
MBSA

The Respondent respectfully submits that its invocation of Force Majeure was legally justified
and that it bears no liability for the Claimant’s alleged losses. The submissions are presented
in five parts. First, Decree 774 satisfies the requirements of Force Majeure under Bolanese law
and Article 79 CISG, as it was a sovereign governmental act that was external to ENRE,
unforeseeable at the time of contracting, and irresistible once issued. Secondly, the Claimant’s
catastrophic equipment failure constitutes a novus actus interveniens that breaks any causal
link between ENRE’s conduct and the governmental shutdown, as the Ministry identified the
toxic ammonium discharge from the Claimant’s facility as the decisive cause of the decree.
Thirdly, ENRE’s blending activities were conducted in good faith pursuant to its contractual
obligation to maintain homogeneity, negating any finding of negligence or wilful misconduct.
Fourthly, Article 80 CISG bars the Claimant from claiming damages because the losses resulted
from its own operational failure and toxic discharge. Finally, ENRE complied with the
procedural requirements for invoking Force Majeure, including timely notice and the
contractual waiting period, rendering the termination lawful and without liability.

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ARGUMENTS ADVANCED

ISSUE 1: THE TRIBUNAL LACKS JURISDICTION OVER THE DISPUTE

(¶ 1.) It is humbly contended on behalf of the RESPONDENTS that this Tribunal lacks
jurisdiction to hear the present dispute. The submissions are presented in a three-fold
manner. First, the Claimant waived its right to arbitrate by taking steps in Singapore
court proceedings that were inconsistent with an intention to arbitrate [1.] Second, the
Claimant failed to comply with the mandatory condition precedent meeting under
Article 22.2 of the MBSA, which is a pre-condition to the invocation of arbitration that
goes to the admissibility of the claim before this Tribunal, [2.] Third, the unilateral
option clause under Article 22.3(b) of the MBSA is void as a prohibited condition
potestative under the governing substantive law of Bolana [3.] The Respondent raised
these objections in its Response to the Notice of Arbitration pursuant to Rule 7.1(d) and
Rule 8.1 of the SIAC Rules 2025, and now particularises them in accordance with Rule
31.2.

[1.] THE CLAIMANT WAIVED ITS RIGHT TO ARBITRATE BY TAKING STEPS IN COURT
PROCEEDINGS INCONSISTENT WITH AN INTENTION TO ARBITRATE.

(¶ 2.) It is the Respondent's primary submission that Claimant irrevocably elected the
jurisdiction of the Singapore courts when, on 1 June 2025, it filed a Summons for
Interrogatories1 seeking production of RESPONDENT's blending logs, freshwater
diversion volumes, and the CTO's prior knowledge of Northern Reserve specifications
evidence going directly to the merits of the alleged contractual breach. 2 Under Section
6(1) of IAA, a party loses its entitlement to a mandatory stay and by extension, its right
to invoke arbitration if it takes "any other step in the proceedings" before seeking a
stay. 3 The governing test, as established in Carona Holdings v Go Go Delicacy Pte Ltd,
is whether the act "cannot be explained except on the assumption that the accepts that
the court should be given jurisdiction", and more specifically, whether the party has

1
Case Record, Respondent’s Exhibit R3, 33.
2
Case Record, RESPONSE TO THE NOTICE OF ARBITRATION, 27, ¶ 17.
3
International Arbitration Act 1994 (Singapore, 2020 Rev Ed), s 6(1).

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"employed court procedures to enable him to defeat or defend the proceedings on their
merits."4 This test has been confirmed and applied in Beltran5, Gan and others v
Terraform Labs Pte Ltd, where the court emphasised that the inquiry focuses on the
nature and timing of the acts taken, not on subsequent procedural manoeuvres. 6
(¶ 3.) The three Interrogatories filed by Claimant were unambiguously directed towards a
merits submission.7 They sought to establish: (i) whether RESPONDENT knowingly
blended brine exceeding 40:1 with freshwater between 1 March and 15 April 2025; (ii)
the precise volume of freshwater diverted from the Northern Aquifer on 14 April 2025;
and (iii) whether Respondent's CTO had prior knowledge that the Northern Reserve
was chemically incompatible with Article 6.2 specifications. 8 Each interrogatory was
calibrated to prove the factual substratum of Claimant's breach claim under Article 35
CISG, not to challenge the court's jurisdiction or to explore whether arbitration was
appropriate. As confirmed in Beltran applying Carona, while document production or
interrogatories directed solely at testing jurisdiction do not constitute a step in the
proceedings, the determinative question is whether the party "uses court procedures to
enable him to defeat or defend the proceedings on their merits." 9
(¶ 4.) It is submitted that the interrogatories fall within the latter category. The Carona court
further confirmed that "requiring disclosure of documents" is a recognised category of
act that can constitute a step in the proceedings, and the present interrogatories. 10 which
extracted Respondent’'s blending logs by the coercive machinery of the Court are
precisely that.
(¶ 5.) It is further submitted that Claimant's subsequent discontinuance on 15 June 2025 does
not cure the waiver already initiated the moment the interrogatories were filed. 11 The
text of Section 6(1) IAA12 closes at the moment of the step, not at the conclusion of the
proceedings. A party cannot simultaneously "run two contradictory courses of action". 13

4
Carona Holdings Pte Ltd v Go Go Delicacy Pte Ltd [2008] 4 SLR(R) 460.
5
Beltran, Gan and others v Terraform Labs Pte Ltd and others [2023] SGHC 340.
6
Gan and others v Terraform Labs Pte Ltd and others [2023] SGHC 340.
7
Case Record, Respondent’s Exhibit R3, 33.
8
Case Record, Claimant Exhibit C1, 13, MBSA, Art.6.2, 13.
9
Beltran, Gan and others v Terraform Labs Pte Ltd and others [2023] SGHC 340.
10
Carona Holdings Pte Ltd v Go Go Delicacy Pte Ltd [2008] 4 SLR(R) 460.
11
Case Record, RESPONSE TO THE NOTICE OF ARBITRATION, 33, ¶ 15.
12
International Arbitration Act 1994 (Singapore, 2020 Rev Ed), s 6(1).
13
Beltran, Gan and others v Terraform Labs Pte Ltd and others [2023] SGHC 340.
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having elected the court's merits-resolving machinery. Claimant cannot retroactively

recant that election by discontinuing the court action.
(¶ 6.) It is submitted that an approach that permits parties to use discontinuance strategically
and to escape the consequences of having already litigated would undermine the entire
architecture of the waiver doctrine. 14 The bell, once rung, cannot be un-rung. 15
(¶ 7.) The mandatory stay under Section 6(2) IAA16 is available only where the arbitration
agreement is not rendered "null and void, inoperative or incapable of being performed"
but once a party has taken a step that evinces submission to the court's jurisdiction, it
has itself rendered the arbitration agreement inoperative for the purposes of that
dispute.17
(¶ 8.) The Claimant used the contractual nature of the MBSA to seek the blending logs of the
Respondent in the Singapore High Court which were otherwise inadmissible. 18 On
receiving that evidence, the Claimant then moved to arbitrate the dispute. 19 The
blending logs extracted via the interrogatories now form part of the evidentiary
foundation of the very merits case Claimant advances before this Tribunal. 20 This is the
paradigmatic "riding two horses" that the waiver doctrine exists to prevent. Under Rule
31.1 of the SIAC Rules 202521 this Tribunal has power to rule on challenges to the
existence and applicability of the arbitration agreement. It should decline to permit its
process to be used to launder the fruits of court proceedings that Claimant itself
commenced on the merits.
(¶ 9.) The Respondent submits that Article 22.3(e) of the MBSA provides that the option to
elect arbitration may be exercised only "provided that the Buyer has not taken any step
in those proceedings to submit a statement on merits."22 The filing of interrogatories is
a submission on the merits of the breach claim. In Reputation Administration Service
Pte Ltd v Spamhaus Technology Ltd, an act will be taken to be a "step in the
proceedings" where it cannot be explained except on the assumption that the defendant

14
‘Introduction – Beltran v Terraform Labs and the Discontinuance Approach’ (Singapore Academy of Law,
Christopher Bathurst Prize 2024 Winning Essay, 2024).
15
Case Record, RESPONSE TO THE NOTICE OF ARBITRATION, 27, ¶ 17.
16
International Arbitration Act 1994 (Singapore, 2020 Rev Ed), s 6(2).
17
Tjong Very Sumito and others v Antig Investments Pte Ltd [2009] SGCA 41, [2009] 4 SLR(R) 732.
18
Case Record, Claimant Exhibit C1, 13, MBSA, Art.22.3,14.
19
Case Record, RESPONSE TO THE NOTICE OF ARBITRATION, 27, ¶ 15, 17.
20
Case Record, THE NOTICE OF ARBITRATION, 11, ¶ 25-26.
21
SIAC Rules (7th edn, 2025), r 31.1.
22
Case Record, Claimant Exhibit C1, 13, MBSA, Art.22.3(e), 15.
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accepts that the court should be given jurisdiction. 23 Therefore, the Claimant is
contractually and legally precluded from invoking arbitration under this very clause.

[2.] THE CLAIMANT FAILED TO FULFIL THE MANDATORY PRE-CONDITION UNDER ARTICLE
22.2 OF THE MBSA.

(¶ 10.) It is the Respondent's submission that Article 22.2 of the MBSA constitutes a
mandatory multi-tier dispute resolution mechanism, compliance with which is a
condition precedent to the invocation of arbitration under Article 22.3.24 Article 22.2 is
expressed in unequivocal mandatory language. It states that the Parties shall refer the
matter to their respective Chief Technical Officers, who shall meet in person in
Singapore within 30 days of a Notice of Dispute. 25
(¶ 11.) It is submitted that where a dispute resolution clause sets out in mandatory fashion and
with specificity the personnel and procedure required as preconditions to arbitration,
those preconditions must be strictly fulfilled, and the party invoking arbitration bears
the burden of proving compliance. 26 The Court of Appeal in Lufthansa further
confirmed that "substantial compliance" such as meetings involving some personnel
from the respective organisations discussing some variety of matters is insufficient
where the clause designates specific individuals. 27 Importantly, under the governing
substantive law of Bolana, the non-satisfaction of a clearly drafted conciliation or
negotiation clause constitutes a fin de non-recevoir, an admissibility bar that the judge
or tribunal is obliged to apply if invoked by a party.28 This French procedural principle
aligns with the modern Singapore position, which confirmed that non-compliance with
pre-arbitral steps is properly treated as a question of admissibility. 29

23
Reputation Administration Service Pte Ltd v Spamhaus Technology Ltd [2021] 2 SLR 342; Shanghai Turbo
Enterprises Ltd v Liu Ming [2019] 1 SLR 779; Zoom Communications Ltd v Broadcast Solutions Pte Ltd [2014]
4 SLR 500.
24
Case Record, Claimant Exhibit C1, 13, MBSA, Art.22.2, 14; Case Record, Claimant Exhibit C1, 13, MBSA,
Art.22.3, 15.
25
Id.
26
International Research Corp PLC v Lufthansa Systems Asia Pacific Pte Ltd and another [2013] SGCA 55 [54].
27
Id At [57]-[58].
28
M X v M Y (Cour de cassation, ch mixte, 14 February 2003, Case No 00-19.423).
29
CZQ and another v CZS [2023] SGHC(I) 16; Pinsent Masons, ‘Singapore Confirms Position on Admissibility
v Jurisdiction in Multi‑Tier Dispute Resolution Clauses’ (Out‑Law, 6 January 2026).
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(¶ 12.) In the present case, the CTO meeting of 10 June 2025 failed entirely to satisfy Article
22.2. Claimant's CTO, Dr. Aris Thorne was absent. In his place, Claimant dispatched
its General Counsel, Mr. Harvey Specter, and its Commercial Manager, Ms. Sarah Lim
neither of whom holds the office of Chief Technical Officer, as recorded in the Minutes
of the Failed CTO Meeting.30 A Power of Attorney cannot transform a lawyer into a
CTO. The purpose of Article 22.2 is manifest from its design. It is a technical dispute
resolution mechanism intended to enable peer-to-peer engineering dialogue between
the parties' most senior technical minds before disputes are escalated to formal
proceedings.31
(¶ 13.) As Respondents’s CTO, Dr. Elena Vasquez, noted at the meeting, Article 22.2
establishes a technical dispute resolution mechanism requiring a peer-to-peer
engineering review between the Parties’ CTOs before legal escalation. In the present
case, the dispute is concerned with respect to the struvite crystallisation chemistry,
magnesium slug behaviour, and the performance of a central blending manifold. This
is purely a technical matter the CTO meeting was called to address. Substituting legal
counsel for engineering expertise defeats the clause's entire object and purpose.
(¶ 14.) The Claimant may argue substantial compliance or constructive satisfaction. This
argument is contended as a party cannot satisfy a specifically prescribed condition
precedent by pointing to the general purpose of the clause. The specific procedure must
be followed. 32 The designated personnel in the clause, the CTOs are specifically
identified in Article 22.2. They did not meet. Hence, the condition precedent was not
satisfied.
(¶ 15.) The Claimant may further argue that Respomdent waived strict compliance or acted in
bad faith by refusing to engage with Claimant's proxies. 33 This argument fails on
multiple grounds. First, as a threshold matter, it is clarified that no steps whatsoever
were taken under Article 22.2 prior to Claimant filing its Writ of Summons on 15 May
2025.34 The CTO meeting was not attempted until 10 June 2025, after Claimant had
already commenced court proceedings on the merits. 35 It was therefore the Claimant,

30
Case Record, Respondent’s Exhibit R4, 34.
31
Case Record, Claimant Exhibit C1, 13, MBSA, Art.22.2, 14; Case Record, Respondent’s Exhibit R4, 34.
32
DeValk Lincoln Mercury, Inc v Ford Motor Company 811 F.2d 326 (7th Cir, 1987).
33
Case Record, Claimant Exhibit C6, 20.
34
Procedural Order No. 1, Clarification 1, pg.2.
35
Case Record, Respondent’s Exhibit R3, 33.
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not the Respondent that caused the failure of the condition precedent. The respondent
submits that this tribunal should not excuse a pre-condition where the party resisting
jurisdiction was partially or entirely responsible for the failure or non-exhaustion of a
negotiating process.36 Here, the party entirely responsible for non-compliance is the
Claimant.
(¶ 16.) Second, Respondent's insistence on the strict composition of the meeting cannot be
termed as bad faith. It was a legitimate exercise of its contractual right to a genuine
technical peer review. Under Singapore law, the obligation to negotiate in good faith,
requires authentic engagement with the agreed process. It insists that non-disclosure or
deliberate substitution of inferior counterparts to frustrate the purpose of a negotiation
clause can itself constitute bad faith. 37 Claimant's conduct, sending a General Counsel38
to a technical engineering meeting, was precisely such a frustration of the clause's
purpose.
(¶ 17.) The Respondent submits that the waiver of the right to invoke non-compliance with a
pre-arbitral step operates against a party who "knowingly and without just cause fails
to raise an irregularity before the arbitral tribunal in good time." 39 Respondent raised
its objection immediately and consistently, at the meeting itself on 10 June 2025,40 in
its Response to the Notice of Arbitration on 15 August 2025, and before this Tribunal.
It has not waived anything.
(¶ 18.) As the condition precedent remains unfulfilled, Claimant's claims before this Tribunal
are inadmissible. The Tribunal should decline jurisdiction ratione temporis.41
Alternatively, if it treats the issue as one of admissibility, then the respondent requests
to stay these proceedings and direct genuine compliance with Article 22.2, with
Claimant's actual CTO present, before any further step is taken in this arbitration.

36
Gary Born, International Commercial Arbitration (3rd edn, Kluwer Law International 2021).
37
HSBC Institutional Trust Services (Singapore) Ltd v Toshin Development Singapore Pte Ltd [2012] 4 SLR 738.
38
Case Record, Claimant Exhibit C6, 20.
39
Mme D v M HGC (Cour de cassation, Civ 1, 1 February 2023, Case No 21-25.024).
40
Case Record, Respondent’s Exhibit R4, 34.
41
Pinsent Masons, ‘Singapore Confirms Position on Admissibility v Jurisdiction in Multi‑Tier Dispute Resolution
Clauses’ (Out‑Law, 6 January 2026).
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[3.] THE UNILATERAL OPTION CLAUSE UNDER ARTICLE 22.3(B) IS VOID AS A POTESTATIVE
CONDITION UNDER THE GOVERNING LAWS OF BOLANA.

(¶ 19.) It is submitted that Article 22.3(b) is void under the applicable governing law. 42 The
unilateral option clause is void under the laws of Bolona. 43 The claimant cannot invoke
Singapore law to validate the unilateral option clause. The Respondent submits that this
conflict of laws argument fails, and that Bolanan law governs the arbitration agreement
and renders it void.

[A.] Bolonese law governs the arbitration agreement

(¶ 20.) The governing law of the arbitration agreement is determined by a three-stage

hierarchy, as established by the Singapore High Court.44 First, any express choice of
law for the arbitration agreement. Second, an implied choice inferred from the
governing law of the main contract. Third, in the absence of any choice, the law with
the closest and most real connection to the arbitration agreement, usually the seat. 45
(¶ 21.) Applying this hierarchy to the present case. At the first stage, there is no express choice
of a separate governing law for the arbitration agreement.46 Article 22.3(d) provides
that the arbitration agreement "shall be treated as an agreement independent of this
Agreement"47 Separability does not insulate the arbitration clause from defects intrinsic
to the arbitration agreement itself. Separability is a doctrine about validity and effect.
An arbitration clause can be separate yet still governed by the same substantive law
chosen for the main contract. 48
(¶ 22.) The doctrine of separability does not, in itself, require that the arbitration clause be
governed by a different law49 from the MBSA. Rather, it recognises the possibility that

42
Case Record, Claimant Exhibit C1, 13, MBSA, Art.22.3(b), 15.
43
Procedural Order No. 1, Clarification 15, 15.
44
BCY v BCZ [2016] SGHC 249; BNA v BNB [2019] SGCA 84; Anupam Mittal v Westbridge Ventures II [2023]
SGCA 1; Marc Blessing, The Law Applicable to the Arbitration Clause (ICCA Congress Series no 9, Kluwer Law
International 1999) 169–79.
45
Sulamérica Cia Nacional de Seguros SA v Enesa Engenharia SA [2012] EWCA Civ 638, [9], [25]; Gary Born,
International Commercial Arbitration (3rd edn, Kluwer Law International 2021).
46
Case Record, Claimant Exhibit C1, 13, MBSA, Art.21.1, 14.
47
Case Record, Claimant Exhibit C1, 13, MBSA, Art.22.3(d), 15.
48
Gary Born, International Commercial Arbitration (3rd edn, Kluwer Law International 2021).
49
Final Award in ICC Case No 1507, in Sigvard Jarvin and Yves Derains (eds), Collection of ICC Arbitral Awards
1974–1985 (Kluwer Law International 1990) 215–216
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different laws may apply to the main contract and to the arbitration agreement; in
practice, the same law frequently governs both. 50
(¶ 23.) Further, the governing law of the arbitration agreement is primarily determined by the
principle of party autonomy. 51 Where the parties have expressly designated a governing
law for the contract, such choice ordinarily extends to the arbitration clause, unless
there is clear evidence of a contrary intention.52
(¶ 24.) At Stage 2, Article 22.1 of the MBSA expressly provides that "This Agreement,
including its interpretation and validity, shall be governed by the substantive laws of
the Republic of Bolana." The governing law of the main contract is also the implied
governing law of the arbitration agreement. 53
Nothing in the MBSA displaces this
presumption.54 In Habas, the tribunal held that the choice of a different country for the
law of the seat “may not in itself be sufficient to displace the indication of choice
implicit in the express choice of law to govern the matrix contract”.55 Thus, im absence
of any exclusion, it can be concluded Bolanese law is the implied and expressed
governing law of the arbitration agreement. 56
(¶ 25.) At stage 3, The Respondent submits that application of Singapore law is invalid as the
Court of Appeal demonstrated that it is prepared to accept the chosen main contract law
may invalidate the arbitration agreement and deliberately declined to re-characterise
the governing law purely to save the clause. 57 The validation principle is a residual
consideration at the closest-connection stage, not a free-standing right to override the
parties' implied choice. 58
(¶ 26.) It is submitted that the procedural law concerns the methods and processes by which
rights are enforced and disputes are resolved. Substantive law, on the other hand,
defines rights and obligations of individuals and sets the actual legal standards and

50
Final Award in ICC Case No 3572 (1989) XIV YB Comm Arb 111; Final Award in ICC Case No 5294 (1989)
XIV YB Comm Arb 137, 140–141
51
Julian Moreno Beltran and Douglas Gan Yi Dong v Terraform Labs Pte Ltd, Kwon Do Hyeong, Nikolaos
Alexandros Platias and Luna Foundation Guard Ltd [2023] SGHC 340., [180].
52
Mo Zhang, ‘Party Autonomy and Beyond: An International Perspective of Contractual Choice of Law’ (2006)
20 Emory International Law Review 511.
53
BCY v BCZ [2016] SGHC 249; BNA v BNB [2019] SGCA 84.
54
Case Record, Claimant Exhibit C1, 13, MBSA, Art.22, 14-15.
55
Habas Sinai Ve Tibbi Gazlar Istihsal Endustrisi AS v VSC Steel Coy Ltd [2013] EWHC 4071 (Comm) [101].
56
Case Record, Claimant Exhibit C1, 13, MBSA, Art.22.1, 13.
57
BNA v BNB [2019] SGCA 84
58
Enka Insaat Ve Sanayi AS v OOO Insurance Company Chubb [2020] UKSC 38.
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principles that determine the outcome of legal dispute59 Thus, the law of the seat
governs the procedural framework of the arbitration, whereas issues concerning the
validity and substantive enforceability of the arbitration agreement remain governed by
the law chosen by the parties.60
(¶ 27.) The parties expressly chose Bolanan law to govern the MBSA in Article 22.1, and
nothing in the contract indicates an intention to apply a different law to the arbitration
clause. The mere choice of Singapore as the seat does not displace this implied choice.
Further averments will submit that Bolanan law strictly prohibits potestative conditions
and the unilateral option in Article 22.3(b) is void.

[B.] Article 22.3(b) is a Void Condition Potestative

(¶ 28.) It is submitted that the laws of Bolana are the applicable law on the potestative clause.61
This term is an obligation whose performance depends entirely on the will of the obligor
is struck down as a condition potestative.
(¶ 29.) Under former Article 1174 of the French Civil Code62, an obligation was void where its
performance depended solely on the will of the obligor. The 2016 reform preserved this
rule in Article 1304-263 which invalidates obligations dependent exclusively on the
debtor’s will. 64 Since Bolanan law expressly prohibits potestative conditions, this
principle equally applies in the present case.
(¶ 30.) Article 22.3(b) of the MBSA grants only the Claimant the "exclusive option" to refer
any dispute to arbitration.65 The RESPONDENT has no corresponding right to elect
arbitration. The Respondent is submitted to the default jurisdiction of the Singapore
courts under Article 22.3(a).66 The choice to arbitrate in SIAC is entirely dependent
solely on the will of the Claimant.

59
Ailes, Edgar H. “Substance and Procedure in the Conflict of Laws.” Michigan Law Review, vol. 39, no. 3, 1941,
pp. 392–418. JSTOR, [Link] Accessed 6 Mar. 2026, pg.402.
60
Margret L Moses, THE PRINCIPLES AND PRACTICE OF INTERNATIONAL COMMERCIAL ARBITRATION 68, 172
(Cambridge University Press, 2008).
61
Procedural Order No. 1, Clarification No. 15, pg. 5.
62
Code civil (France) arts 1174.
63
Code civil (France) arts 1304-2.
64
Article 1304‑2 of the French Civil Code’ (French Business Law, 1 December 2023).
65
Case Record, Claimant Exhibit C1, 13, MBSA, Art.22.3(b), 15.
66
Case Record, Claimant Exhibit C1, 13, MBSA, Art.22.3(a), 14.
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(¶ 31.) Article 1170 provides that any clause which deprives the essential obligation of its
substance is deemed unwritten.67 Here, the unilateral option renders the Respondent’s
submission to arbitration entirely illusory, thereby depriving the arbitration agreement
of any genuine substantive content.
(¶ 32.) The Respondent submits that a dispute resolution clause becomes invalid where it
confers upon one party an unfettered and indeterminate discretion to determine the
forum of dispute resolution, thereby depriving the counterparty of legal certainty and
predictability. 68
(¶ 33.) First, in Rothschild, held that clauses giving one party an unconstrained, floating choice
of forum are incompatible with the predictability that contract law demands. 69 The
respondent submits that this applies with equal force to an asymmetric arbitration
option. 70
(¶ 34.) A clause that confers on Claimant the right to elect between two entirely different
dispute resolution regimes, each with materially different procedural rules, evidentiary
standards, cost structures, and enforcement mechanisms, denies Respondent the legal
certainty to which it is entitled. French courts' application of the potestative analysis is
particularly rigorous where the clause was inserted by the party with dominant
bargaining power.
(¶ 35.) The potestative character of Article 22.3(b) is compounded by the conditions of gross
inequality under which it was extracted. The Salar Sagrado's metallurgical hostility
rendered the resource economically worthless without Claimant's ISN technology. At
the time of contracting, no alternative technology capable of processing the brine was
commercially available71, and no competing technology partner existed.72 Claimant
held a de facto technological monopoly that translated directly into monopolistic
bargaining power. Respondent had no realistic alternative but to accept Article 22.3(b)
on Claimant's terms. This structural inequality is closely analogous to the conditions

67
Code civil (France) arts 1170.
68
‘The French Rothschild Case: A Threat for Unilateral Dispute Resolution Clauses?’ (Kluwer Arbitration Blog,
17 July 2013); Mme X v Banque privée Edmond de Rothschild Europe Cass civ 1re, 26 septembre 2012, n°
11‑26.022; ICH v Crédit Suisse Cass civ 1re, 25 mars 2015, n° 13‑27.264.
69
Id.
70
French Court of Cassation Confirms Invalidity of Unilateral Asymmetrical Jurisdiction Clauses’ (Kluwer
Arbitration Blog, 20 May 2015); French Supreme Court Refers Validity of Asymmetrical Clauses to CJEU’
(EAPIL Blog, 3 May 2023).
71
Procedural Order No. 1, Clarification No. 11.
72
Procedural Order No. 1, Clarification No. 8.
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recognised as giving rise to unenforceability in Uber Technologies Inc v Heller, where

the Supreme Court of Canada held an arbitration agreement unenforceable because of
inequality of bargaining power, undue advantage to the stronger party, and deprivation
of the weaker party's reasonable expectations of remedy. 73
(¶ 36.) The Respondent submits that even if this Tribunal were to apply Singapore law as the
lex arbitri and uphold the arbitration agreement's validity for jurisdictional purposes,
the potestative invalidity under Bolanan law would retain residual force. Accordingly,
Article 22.3(b) being void under the governing law of the arbitration agreement, the
default mutual jurisdiction of the Singapore courts under Article 22.3(a) must prevail,
and this Tribunal lacks jurisdiction to proceed.

ISSUE 2: THE LITHIUMLEAKS IS INADMISSIBLE BEFORE THIS TRIBUNAL

(¶ 37.) It is most humbly submitted on behalf of the Respondent, ENRE, that Exhibit C5, the
"Project Void" internal memorandum is inadmissible before this Tribunal. The
submissions are presented in five parts: First, that the Tribunal must apply a broad
discretionary balancing framework under the IBA Rules rather than any strict
exclusionary rule [1.] Second, that under this framework the evidence must nonetheless
be excluded on account of the Claimant's direct complicity in criminal cyber-espionage,
rendering it tainted by the doctrine of unclean hands [2.] Third, that Exhibit C5 Violates
Commercial Confidentiality, Trade Secret Protections, and Data Protection Laws, [3.]
Fourth, that even if admitted, the document must be afforded negligible probative
weight on account of the inherent unreliability of hacked evidence [4.]

[1.] The Tribunal Must Apply a Balancing Framework in Determining Admissibility.

(¶ 38.) As a preliminary matter, the Respondent submits that the “fruit of the poisonous tree”
doctrine does not bind this Tribunal as a fixed legal rule.74 The accepted practice in civil
and common law traditions confirms that the doctrine is "greatly appreciated"
domestically but "not applied directly in international arbitrations" because of

73
Uber Technologies Inc v Heller [2020] SCC 16.
74
Silverthorne Lumber Co v United States 251 US 385 (1920); Wong Sun v United States 371 US 471 (1963);
‘Rethinking the Fruits of the Poisonous Tree Doctrine’ (SCC Online, 14 June 2020).
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procedural autonomy and the absence of constitutional exclusionary rules in the arbitral
context.75 Thus, the claimant should not be permitted to rely on the same.
(¶ 39.) It is submitted that arbitral tribunals have procedural discretion in determining the
admissibility, relevance, and weight of evidence under Article 19(2) of the UNCITRAL
Model Law 76, IBA rules on the Taking of Evidence 77, as well as under Rule 19.2 of the
SIAC Rules78. It further provides that the tribunal is not required to apply strict rules of
evidence.79
(¶ 40.) Article 9(3) goes further, providing that the "Tribunal may … exclude evidence
obtained illegally. Independently and compellingly, Article 9(2)(b), (e) and (g) compel
exclusion upon findings of legal privilege, commercial confidentiality, and
considerations of fairness or equality of arms respectively. 80
(¶ 41.) Under Bolanese law6 , practice has been to nullify judgments in which the record has
been tainted by illegality.7 This normative benchmark, combined with the principle of
equal treatment and the right to be heard recognised across major arbitration rules, 8 The
absence of a rigid exclusionary rule does not diminish the Respondent's case, it merely
confirms that the Tribunal must weigh the considerations enumerated in IBA Article 9
with care and rigour.81
(¶ 42.) Furthermore, the cyber-attack on ENRE's servers was not a private wrong in isolation.82
The Council of Europe's Budapest Convention on Cybercrime criminalises in Articles
2–6 the intentional unauthorised access to computer systems, interception of non-public
data, interference with system integrity, and possession of hacking tools. 83
(¶ 43.) The confession that was obtained as a result of actions that do not comply with this
international consensus would be an offense to ordre public under both the Singaporean

75
Fabien V Rutz, 'Admissibility of Unlawfully Obtained Evidence in International Arbitration' (LLM thesis,
University of Zurich, 2020); King's Student Law Review, 'Admissibility of Illegally Obtained Evidence in
International Arbitration' (Abraham, 2023); NLIU Law Review, 'Admissibility of Unlawfully Obtained Evidence
in International Arbitration' (2022) vol XI issue II, 97; Kluwer Arbitration Blog, 'Same Proposition, Different
Outcome? Need for Harmonisation' (12 September 2022).
76
UNCITRAL Model Law, art.19(12).
77
IBA Rules.
78
SIAC Rules, r.19.2.
79
Procedural Order No. 1, Clarification 9, pg.4.
80
IBA Rules, art. 9.3.
81
Vivek Krishnani, 'Confidentiality of Already Disclosed Documents: Admissibility of Improperly Obtained
“Privileged” Evidence' (Kluwer Arbitration Blog, 24 May 2019)
82
Case Record, RESPONSE TO THE NOTICE OF ARBITRATION, 25, ¶ 3.
83
Council of Europe, Convention on Cybercrime (Budapest Convention) (2001) arts 2–6; United Nations Office
on Drugs and Crime, E4J Cybercrime Module 2 (2018).
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and Bolanese law. The UNODC has established that these crimes, the confidentiality,
integrity and availability triad of computer data, are the cornerstones of the global
cybercrime statute.84 The seriousness of such violation is increased significantly where
the victim is a state concessionaire handling sovereign natural resource information on
behalf of the Republic of Bolana.85

[2.] Exhibit C5 is Inadmissible Due to the Claimant’s Direct Involvement in its Illegal
Procurement.
(¶ 44.) In the balancing structure above, the final weight should be laid on the extent of the
participation of the Claimant in the illegality. The international arbitral jurisprudence
has made a clear and workable distinction that in case the adducing party was a direct
actor in the illegal procurement of the evidence the evidence should not be admitted. It
can be taken into consideration in the case where a third party, which was wholly
disinterested procured the evidence alone and the adducing party had nothing to do with
it at all. 86
(¶ 45.) In Methanex Corporation v United States of America, the tribunal held that it would be
"wrong" for the claimant to introduce documents obtained unlawfully from a lobbyist's
office and excluded them on grounds of good faith and equality of arms. 87 In Libananco
Holdings Co. v Republic of Turkey where the state had intercepted approximately 2,000
privileged communications, the tribunal took protective measures and excluded the
materials, holding that their use would violate procedural fairness88 In EDF (Services)
Ltd. v Romania, the tribunal held that the governing principle most clearly: "whether
evidence illegally obtained by a party is admissible depends on the particular
circumstances of the case," but direct or indirect involvement in illegal procurement
consistently leads to exclusion.89

84
United Nations Office on Drugs and Crime, E4J Cybercrime Module 2: Offences against the Confidentiality,
Integrity and Availability of Computer Data and Systems (2018).
85
Case Record, Claimant Exhibit C5, 19.
86
EDF (Services) Ltd v Romania (Award, ICSID Case No ARB/05/13, 8 October 2009) [221]; ‘Admissibility of
Hacked Evidence in International Arbitration’ (Kluwer Arbitration Blog, 6 July 2021).
87
Methanex Corporation v United States of America (Final Award, NAFTA/UNCITRAL, 3 August 2005) Pt II,
Ch C [54]; Hacked E-Evidence in Arbitration’ (2019) 3(1) ITA in Review.
88
Libananco Holdings Co Ltd v Republic of Turkey (Award, ICSID Case No ARB/06/8, 2 September 2011);
‘Admissibility of Hacked Emails as Evidence in Arbitration’ (NYU Transnational Notes, 13 May 2018).
89
EDF (Services) Ltd v Romania (Award, ICSID Case No ARB/05/13, 8 October 2009 [221].
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(¶ 46.) It is submitted that the cyber-forensic report of ChainTrace Analytics establishes that
the Claimant solicited the exfiltration by posting a targeted bounty on 15 March 2025
on the dark web forum "Dread," specifying precisely the category of evidence sought
"evidence of high-magnesium masking". Secondly, financed the attack through a
payment of 12.5 Bitcoin (approx. USD 500,000) from its identified corporate treasury
wallet90; and Thirdly received the document in late June 2025 91 knowing it had been
procured by criminal intrusion. The fact that the bounty was announced on 15 March
2025, the same day as the Claimant was said to have experienced the rupture disc
failure92, is further evidence of the fact that the Claimant was attempting to construct a
factual narrative by criminal means in advance of this very arbitration.
(¶ 47.) Beyond the evidentiary analysis, the Respondent invokes the doctrine of unclean hands
and, under Bolanese law, the maxim nemo auditur propriam turpitudinem allegans as
a substantive bar to relief. French doctrinal accounts confirm that this maxim means
that "a person cannot rely on a situation created by his own wrongful conduct to obtain
relief." 93
(¶ 48.) Its most pointed application is to prevent individuals from benefiting from their own
crimes. In Plama Consortium Ltd. v Bulgaria, the tribunal, relying on ex turpi causa
non oritur actio and nemo auditur, found that fraudulent misrepresentation in the
acquisition process rendered the investor's claims inadmissible on the merits, even
though jurisdiction technically existed.94
(¶ 49.) It is submitted that this Tribunal must apply the same rationale. The Claimant has made
its own factual case by hacking of sovereign resource-management servers of a state
concessionaire is not just providing tainted evidence to this Tribunal, it is bringing
before this Tribunal by way of criminal means. To permit it to obtain relief on this basis
would be to reward precisely the conduct that nemo auditur and the international clean
hands doctrine exist to prevent.

90
Case Record, Respondent’s Exhibit R5, 35.
91
Procedural Order No. 1, Clarification 20, pg.5.
92
Case Record, Claimant’s Exhibit C4, 18.
93
Serge Guinchard, ‘La règle “Nul ne peut invoquer sa propre turpitude” en droit public français’ (2010) Revue
du droit public.; ‘Defences 7.3: Illegality’ in Tort Law (EU Casebooks Project)
94
Plama Consortium Ltd v Republic of Bulgaria (Award, ICSID Case No ARB/03/24, 27 August 2008); Marco
Amianto, ‘The Role of Unclean Hands Defences in International Investment Arbitration’ (2019) MJDR.
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[3.] Exhibit C5 Violates Commercial Confidentiality, Trade Secret Protections,

and Data Protection Laws.
(¶ 50.) The Respondent submits a threshold observation that the Claimant's case entirely rests
on the "Project Void" memorandum dated 10 January 2025,95 sent by Respondent’s
Head of Geology and addressed to ENRE's CEO. It is a purely internal corporate
communication between two non-lawyers, bearing the express marking "INTERNAL /
CONFIDENTIAL" on its face. It contains RESPONDENT's proprietary geological
assessment of the Northern Reserve, specifically the internal modelling of magnesium
concentration spikes, blending simulations and freshwater diversion calculations that
constitute the core technical and strategic knowledge of a state concessionaire
managing sovereign resource infrastructure. This document is ENRE's operational
strategy for the Salar Sagrado.96
(¶ 51.) The Respondent submits that the grounds here are compelling in the clearest possible
sense for exclusion of exhibit C5 evidence under Article 9(2)€ 97. Exhibit C5 discloses
sensitive information whose disclosure gives any competitor or counterparty an undue
advantage in commercial negotiations and litigation alike. The Caratube International
Oil Company v Kazakhstan proceedings confirm that even in cases involving mass
leaks of state-linked data, tribunals have distinguished privileged and confidential
materials from non-confidential ones, admitting only the latter. 98
Exhibit C5 falls
firmly in the former category.
(¶ 52.) The Respondent further submits that the Claimant's possession and use of Exhibit C5
constitutes an independent and ongoing violation of Singapore's Personal Data
Protection Act99 and equivalent data protection legislation, which applies to the
Claimant as a Singapore-incorporated entity. 100 The unlawful exfiltration of ENRE's
internal data from its protected servers, followed by the Claimant's receipt, retention

95
Case Record, Claimant’s Exhibit C5, 19.
96
Id.
97
IBA Rules, Art 9(2)(b),
98
Caratube International Oil Company LLP and Devincci Salah Hourani v Republic of Kazakhstan (Award, ICSID
Case No ARB/13/13, 22 May 2017) [126].; IBA Rules, Art 9(2)(b), 9(3)(a); Tobias Zuberbühler et al., IBA Rules
of Evidence: Commentary (Schulthess, 2012), 206.
99
Personal Data Protection Act (Cap 26, 2012 Rev Ed) (Singapore) s 13.
100
Global Telecom Holding SAE v Canada (ICSID Case No ARB/16/16); Christopher Kee and others, ‘Approach
of Investment Treaty Tribunals to Evidentiary Privileges’ (2016) 31(3) ICSID Review 670.
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and adduction of that data in these proceedings, constitutes a chain of unlawful

processing that this Tribunal should not be seen to endorse.
(¶ 53.) It is submitted that admitting such data into evidence would render the arbitral process
an instrument for laundering the proceeds of a data crime, contrary to the fundamental
principles of good faith, equality of arms and procedural ordre public that underpin the
entire international arbitral framework. The Claimant's conduct is thus tainted at every
stage: in the procurement, in the retention, and now in the attempted use of stolen
proprietary data.

[4.] In the Alternative, Exhibit C5 Carries Negligible Probative Value.

(¶ 54.) In case the Tribunal is persuaded to admit Exhibit C5 despite the above submissions,
the Respondent is submitting in the alternative that the same should be given negligible
probative weight. Article 9(1) of the IBA Rules does not merely confer a power of
exclusion; it expressly tasks the Tribunal with assessing the "weight" of any evidence
it receives. This empowers tribunals to admit evidence while giving it little or no
probative value where reliability is doubtful. 101
(¶ 55.) Digital documents procured by targeted hacking are inherently susceptible to alteration,
deletion of metadata, selective extraction, and loss of context. The exfiltrated dataset
may represent only a curated subset of ENRE's internal communications, raising serious
concerns about selection bias and completeness.
(¶ 56.) It is submitted that tribunals have rejected illegally acquired audio and digital
recordings where expert evidence had shown that only a forensic search of the original
would prove authenticity; any admission of a copy in such a situation was considered
to be against good faith and fair dealing. 102
(¶ 57.) The Respondent, as the victim of the cyber-attack, is uniquely disabled from confirming
or contesting the integrity of Exhibit C5 precisely because its servers were
compromised. Its inability to verify completeness should not operate to the Claimant's
advantage. Further, in dealing with hacked evidence, the tribunal should require proof
of chain of custody, consider whether the dataset appears selective or incomplete, and

101
IBA Rules, Art 9(1); Oxford University Press, A Guide to the IBA Rules on the Taking of Evidence in
International Arbitration (OUP) ch on art 9.
102
Admissibility of Hacked Evidence in International Arbitration’ (Kluwer Arbitration Blog, 6 July 2021);
CAS/Swiss Federal Tribunal jurisprudence as discussed in Rutz (n 2); Wolfgang Alschner and others, ‘Illegally
Obtained Evidence: Shaping Perspectives on Admissibility in Arbitration’ (VIA Mediation Centre, 9 September
2024).
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examine whether key exculpatory communications are missing or redacted. 103

In the
absence of such verification, Exhibit C5, if admitted at all, should carry no independent
probative weight and cannot discharge any burden of proof.

ISSUE 3: RESPONDENT DID NOT BREACH ARTICLE 35 CISG AS THE SUPPLIED BRINE
CONFORMED TO THE MBSA.

(¶ 58.) It is humbly submitted that the Respondent has not breached Article 35 of the CISG as
the brine supplied conformed with the MBSA. This argument shall be further
substantiated through three subissues, namely, [1.] The Respondent supplied brine in
conformity with the MBSA’s Industrial Grade standard, [2.] The Claimant cannot
attribute the plant failure to the Respondent’s brine, [3.] The Claimant is estopped from
alleging brine incompatibility due to non-disclosure of technological limitations.
(¶ 59.) Article 35 CISG 104sets out the standards for determining whether the goods delivered
conform to the contract. It includes the legal standard for conformity of goods and
defines the seller’s obligations regarding quantity, quality, description, and
packaging. 105 Minor differences in quantity or contractual specifications do not
automatically amount to non-conforming goods unless they reach a certain threshold of
significance.106

[1.] THE RESPONDENT SUPPLIED BRINE IN CONFORMITY WITH THE MBSA’S INDUSTRIAL
GRADE STANDARD
(¶ 60.) It is submitted that the Respondent supplied brine in conformity with the MBSA’s
Industrial Grade standards. It has been performed in accordance with Article 35(1) of
CISG107 which states that the seller is obliged to deliver goods that fulfil the

103
ITA in Review, 'Hacked E-Evidence in Arbitration' (2019) vol 3 issue 1; Daniel Sussman, 'Cybersecurity in
International Arbitration' (ICCA Congress paper, 2018); Kluwer Arbitration Blog, 'Admissibility of Improperly
Obtained Data as Evidence in International Arbitration' (27 September 2016); Steven Finizio et al.,
'Confidentiality of Already Disclosed Documents' (Kluwer Arbitration Blog, 23 May 2019).
104
CISG, Art. 35.
105
UNCITRAL, UNCITRAL Digest of Case Law on the United Nations Convention on Contracts for the
International Sale of Goods 2016, art. 35 (2016).
106
Oberlandesgericht Düsseldorf, Germany, 21 April 2004, available on the Internet at [Link].
107
CISG, Art. 35(1).
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specification requirements as per the contract in terms of description, quality, quantity

and packaging.
(¶ 61.) It lists out the types of discrepancies, namely, in quantity, quality, nature and containers
or packaging. Discrepancy in quality refers not only to the physical condition of the
goods but also to the factual and legal characteristics relating to the goods and their
relationship to their surroundings. This includes aspects such as chemical composition,
origin, manufacturing standards, and compliance with legal or ethical requirements.
(¶ 62.) In the New Zealand Musssels case 108, the seller was not liable under Article 35(1) of
CISG, when he supplied shellfish containing a high level of cadmium level as the
parties had not specified a maximum cadmium level in their agreement. In the matter
of quality, the existence of minor discrepancies that are commonly accepted within a
particular trade sector do not amount to non-conformity, as such variations are
considered normal in that industry109. In the Chinchilla Fur Case110, the court held that
if a contract uses general terms, like "a larger number" or "approximately", the seller
has discretion to determine the exact quantity/quality within a reasonable range.
(¶ 63.) This principle applies in the current matter as Article 6.3 of MBSA states that the
chemical parameter for the Mg/Li ratio must be approximately 19:1. The usage of the
word, “approximately.” In the present matter, the brine supplied by the Respondents is
in conformity with the quality as per the Industrial Grade Standards. The Report of
Independent Expert states that the 19:1 ratio is the theoretical limit for traditional solar
evaporation to prevent magnesium salt precipitation, it does not constitute a strict limit
for modern DLE technologies.111
(¶ 64.) The Respondent diluted the raw brine with freshwater through a central mixing
manifold, resulting in a TWA Mg/Li ratio of 24.5:1 during March 2025.112Although this
slightly exceeded the 19:1 target, it remained within the operational capacity of standard
DLE technologies, which can typically process ratios of up to 40:1. 113 The fluctuations
(“slugs”) 114 highlighted by the Claimant are inherent characteristics of brine aquifers,

108
CLOUT case no. 123 [Bundesgerichtshof, Germany, 8 March 1995] compliance with does
109
Cf Kircher, p 163.
110
Oberster Gerichtshof, Austria, 10 November 1994, 2 Ob 547/93.
111
Case Record, Respondent’s Exhibit R2, 32, para 3.
112
Case Record, RESPONSE TO THE NOTICE OF ARBITRATION, 26, ¶ 9.
113
Case Record, Respondent’s Exhibit R1, 31.
114
Procedural Order No. 1, Clarification No. 6.
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and a robust system as claimed by the Claimant should reasonably be expected to

manage such variations.

[2.] THE CLAIMANT CANNOT ATTRIBUTE THE PLANT FAILURE TO THE RESPONDENT’S BRINE
(¶ 65.) It is submitted that the Claimant cannot attribute the plant failure to the Respondent’s
brine supply as it resulted from the Claimant’s defective and undisclosed ISN
technology. The seller’s liability is governed under Article 36 of CISG and states two
instances where the seller can be held liable for non-conformity.

[A.] The Respondent is not liable under Article 36

(¶ 66.) Article 36 115
addresses the seller's liability when a defect or lack of conformity in the
goods must occur for the seller to be held liable. Article 36(1) states that the seller can
be held liable for any lack of conformity that exists when the risk of loss passes to the
buyer and Article 36(2) states that the seller can be held liable or the defects that arise
after the risk has passed due to a breach in the obligations by the seller including a
guarantee regarding the future performance or quality of the goods.116
(¶ 67.) Neither of these liabilities can be held against the Respondent in the present case, as
firstly, the Respondent supplied the brine in accordance with the MBSA and Industrial
Grade Standards conforming to Article 35 of CISG, and secondly, even when the brine
exceeded the approximate ratio it remained well within the processing capabilities of
the DLE technologies as the Claimant had reassured that the technology was a “robust”
and “invincible” system. 117
[B.] The Claimant bore the risk by relying on undisclosed proprietary extraction
technology.
(¶ 68.) It is humbly submitted that the Respondent bears no liability for failures caused by the
Claimant’s undisclosed proprietary extraction technology.

(i) The Claimant cannot rely on Article 35(2)(b) of the CISG

115
CISG, Art. 36.
116
UNCITRAL, UNCITRAL Digest of Case Law on the United Nations Convention on Contracts for the
International Sale of Goods 2016, art. 36 (2016).
117
CLOUT case No. 107 [Oberlandesgericht Innsbruck, Austria, 1 July 1994]; CLOUT case No. 360 [Amtsgericht
Duisburg, Germany, 13 April 2000].

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(¶ 69.) Article 35(2)(b) 118of the CISG states that a seller is liable for goods that are unfit for a
particular purpose only where the buyer relied on the seller’s skill or judgment.
However, such reliance cannot be presumed where the buyer possesses greater expertise
or actively participates in determining the goods' characteristics or intended use. Here,
the Claimant possesses superior expertise as a global leader in hydrometallurgical
technologies, like DLE, and holds multiple patents for its ISN technology using lithium-
manganese-oxide (LMO) sorbents to extract lithium from complex brine sources.
(¶ 70.) In the Second Hand Bulldozer 119case, the buyer was considered to have accepted the
risk of defects after conducting an inspection and test of the bulldozer before finalising
the purchase, the Claimant employed its own proprietary extraction technology and
independently determined how the brine would be processed.
(ii) The Respondent is protected under Article 35(3)

(¶ 71.) In case reliance is placed on Article 35(2)(b), the Respondent can avail protection under
Article 35(3). Article 35(3) states that a seller is not responsible for non-conforming
goods if, at the time the contract was concluded, the buyer knew or could not reasonably
have been unaware of the defect.
(¶ 72.) In the Hydraulic Press Case120, the tribunal held that where a buyer knew about defects
from prior experience but still entered the contract, the buyer implicitly accepted the
risk, exempting the seller from liability. The Claimant represented its system as a robust
“Black Box” capable of handling variations in impurities, the Claimant possessed
superior technical knowledge of brine variability and the associated operational risks.
Given this knowledge and control, the Claimant was fully aware of the technical risks
and uncertainties associated with its own extraction method. By choosing to employ
this undisclosed system, the Claimant effectively assumed the risk of the volatility of
the brine by claiming its technology could handle such variations

118
CISG, Art. 35(2)(b).
119
Switzerland 28 October 1997 Appellate Court Valais (Second Hand Bulldozer case) [cited from:
[Link] (last accessed on 8.9.2015).
120
China 23 December 2002 CIETAC Arbitration proceeding (Hydraulic Press case) [cited from
[Link] accessed on 8.9.2015); Germany 5 April 1995 District
Court Landshut (Sport Clothing case) [cited from: [Link] (last
accessed on 8.9.2015); Germany 21 May 1996 Appellate Court Köln (Used Car case)
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[3.] THE CLAIMANT IS ESTOPPED FROM ALLEGING BRINE INCOMPATIBILITY DUE TO NON-
DISCLOSURE OF TECHNOLOGICAL LIMITATION

(¶ 73.) It is submitted that the Claimant is estopped from alleging brine incompatibility on the
basis of non-disclosure of technological limitations. The general principles of the
Convention can be applied here.

[A.] The principle of good faith

(¶ 74.) Article 7 CISG 121

says the Convention should be interpreted with regard to its
international nature and good faith in trade, and that issues not directly covered should
be settled using its general principles or, if none exist, applicable domestic law.122
Article 1104 of the French Civil Code 123
requires contracts to be negotiated, formed,
and performed in good faith, which French courts use to prevent contradictory conduct.
(¶ 75.) In this case, the Claimant failed to disclose critical aspects of its proprietary extraction
technology, including risks of brine incompatibility. Such non-disclosure violates the
principle of good faith, as it deprives the Respondent of information essential for
performance and fair dealing.

[B.] The doctrine of estoppel applies

(¶ 76.) Estoppel is a legal principle that prevents a person from asserting a claim or right that
contradicts their previous words, actions, or conduct if someone else has relied on them.
It is connected to good faith, as it ensures parties act honestly and fairly in dealings.124
(¶ 77.) Under French arbitration law, the principle of estoppel prevents a party from adopting
a position inconsistent with its earlier conduct where the opposite party has relied upon
such conduct to its detriment. In the Golshani125 decision of the French Court of
Cassation, inconsistent procedural conduct before an arbitral tribunal may render such

121
CISG, Art. 7.
122
Hof Beroep Gent, Belgium, 15 May 2002, published on the Internet at
[Link] html; Bundesgerichtshof, Germany, 9 January 2002,
Internationales Handelsrecht, 2002, 17; CLOUT case 445 [Bundesgerichtshof, Germany, 31 October 2001], also
in Internationales Handelsrecht, 2002, 14 ff; CLOUT case No. 277 [Oberlandesgericht hamburg, Germany, 28
February 1997]; CLOUT case No. 154 [Cour d’appel Grenoble, France, 22 February 1995].
123
Article 1104, French Civil Code
124
Tribunal of International Commercial Arbitration at the Russian Federation Chamber of Commerce and
Industry, Russian Federa tion, award in case No. 302/1996 of 27 July 1999, published in English on the Internet
at [Link] Html.
125
Golshani v. Government of the Islamic Republic of Iran (2005), 6 Jul. 2005, The French Court of Cassation,
JDI (2006),
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claims inadmissible. In Government of the Province of East Kalimantan v. PT Kaltim

Prima Coal126, the arbitral tribunal explained that estoppel prevents a party from
denying a statement or representation it made if the other party relied on it to their
disadvantage or if the first party gained some benefit from it.
(¶ 78.) The Claimant is estopped from contradicting its prior representations regarding the
capabilities of its “Black Box” technology. They have represented that its proprietary
“Black Box” technology was capable of processing brine with varying impurity levels.
The Respondent relied on these assurances when entering into the agreement.
Consequently, the Claimant cannot now argue that the brine composition rendered
performance impossible, as such a claim directly contradicts its earlier representations.

ISSUE 4: ENVIRONMENTAL COMPENSATION AND REHABILITATION SCHEME AND

PRINCIPLES SHAPING THE SCHEME

(¶ 79.) It is respectfully submitted that the Respondent's invocation of Force Majeure is legally
sound, factually justified, and procedurally impeccable. ENRE did not manufacture this
dispute, it was the victim of a catastrophic failure of the Claimant's own experimental
technology, a failure that released toxic ammonium slurry into the Bolanan environment
and compelled the sovereign intervention of the Ministry of Mines. The Claimant now
seeks to recover USD 650,000,000 for losses that flow entirely from the inadequacy of
its own "Black Box" technology and its negligent failure to contain the consequences
of that inadequacy.
(¶ 80.) The Respondent will demonstrate that: [1.] Decree 774 satisfies all requirements for
Force Majeure under Bolanese civil law and CISG Article 79, [2.] AeroIon's
catastrophic containment failure constitutes a novus actus interveniens that breaks the
causal chain between ENRE's blending activities and Decree 774, [3.] ENRE's blending
activities were conducted in good faith pursuant to its contractual obligations, negating
any finding of negligence or wilful misconduct, [4.] CISG Article 80 bars AeroIon from
claiming damages for consequences of its own toxic discharge and [5.] ENRE complied
with all procedural requirements for Force Majeure invocation and termination under
Article 25.2.

The Western Company of North America v. Oil and Natural Gas Commission (ONGC), Interim Award, 17 Oct.
126

1988, ICCA Yearbook Commercial Arbitration 1988, vol. XIII; (ICSID Case No. ARB/07/3), 28 Dec. 2009.
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[1.] DECREE 774 SATISFIES ALL REQUIREMENTS FOR FORCE MAJEURE UNDER BOLANESE
LAW AND CISG ARTICLE 79

(¶ 81.) The Respondent submits that Decree 774 satisfies all three requirements of Article 1218
[A.] externality, [B.] unforeseeability, and [C.] irresistibility and constitutes a qualifying
impediment under Article 79(1) CISG.

[A.] Decree 774 Satisfies the Requirement of Extériorité / Externality

(¶ 82.) The requirement of extériorité is concerned with whether the event originates within or
outside the debtor's sphere of legal and operational control. A sovereign governmental
decree issued by a Ministry of State in the exercise of puissance publique is
paradigmatically external to a private commercial operator. ENRE, as a private entity
incorporated under Bolanese law, has no legal capacity to prevent, override, or
circumvent a ministerial decree.
(¶ 83.) The Claimant's argument that Decree 774 is not external because ENRE's blending
activities contributed to the regulatory environment conflates the concept of externality
with the concept of causation. Externality is assessed by reference to the nature of the
event, a sovereign governmental act, not by reference to whether the party's prior
conduct may have influenced the governmental decision. This distinction is confirmed
by the Conseil d'État in Société Grenobloise d'Electricité v. Ville de Grenoble (1932),
which held that sovereign regulatory acts are inherently beyond the control of private
commercial operators.

[B.] Decree 774 Satisfies the Requirement of Imprévisibilité / Unforeseeability

(¶ 84.) ENRE could not have foreseen at the time of contracting in January 2021 that: (i) a new
presidential administration would come to power in late 2024 on a resource nationalism
platform; (ii) that administration would issue Decree 4999, reclassifying lithium as a
strategic resource and mandating reallocation of the Southern Sector; (iii) AeroIon's
experimental ceramic membrane technology would suffer catastrophic failure within
six weeks of the Northern Reserve switchover; (iv) that failure would release toxic
ammonium slurry into the environment; and (v) the Ministry of Mines would respond

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with an emergency license revocation. Therefore, it is submitted that thw precise

sequence of events was not unforeseeable.
(¶ 85.) Applying CISG Article 79, the relevant inquiry is whether the specific governmental
act was foreseeable at contract formation, not whether governmental intervention in
general was possible. 127 This principle is equally applicable to Bolanese civil law, where
the Cour de cassation in Cass. civ. 1ère, 10 février 1998 confirmed that unforeseeability
must be assessed in relation to the specific event in its particular form.
[C.] Decree 774 Satisfies the Requirement of Irrésistibilité / Irresistibility
(¶ 86.) A sovereign governmental decree revoking an extraction license is by its very nature
irresistible. ENRE has no legal mechanism to resist, appeal, or circumvent a ministerial
decree issued under the Republic of Bolana's mining regulatory framework. The decree
ordered immediate cessation of all industrial activities at the Northern Reserve.
Compliance was mandatory under Bolanese public law.
(¶ 87.) Under Article 1218 of the French Civil Code128, irresistibility requires that the effects
of the event cannot be avoided by appropriate measures. The license revocation was
immediate and permanent ENRE was legally prohibited from pumping, blending, or
delivering any brine from the Northern Reserve from 20 April 2025 onwards.
(¶ 88.) The Claimant's suggestion that ENRE could have avoided Decree 774 by supplying
conforming brine is both factually incorrect and legally irrelevant. The irresistibility
inquiry concerns the period after the Force Majeure event occurs, not whether different
pre-event conduct might have prevented the event. Once the decree was issued,
performance was legally impossible, and legal impossibility is the paradigm case of
irresistibility. 129

[2.] AEROION'S CATASTROPHIC CONTAINMENT FAILURE CONSTITUTES A NOVUS ACTUS

INTERVENIENS

[A.] The Doctrine of Novus Actus Interveniens Under French Civil Law

(¶ 89.) Even if this Tribunal were to accept that ENRE's blending activities created some risk
of regulatory intervention, that risk was not the operative cause of Decree 774. Under

127
Raw Materials Inc. v. Manfred Forberich GmbH & Co. KG (U.S. District Court, N.D. Illinois, 2004)
128
Article 1218, French Civil Code
129
CLOUT Case No. 302 (Zurich Chamber of Commerce, 1994).
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French civil law, the doctrine of rupture du lien de causalité (equivalent to novus actus
interveniens) provides that where an intervening act of a third party or the victim is the
dominant and proximate cause of the harm, the causal connection between the
defendant's antecedent conduct and the final harm is severed.
(¶ 90.) The Cour de cassation, Chambre commerciale, in 15 mars 2011 confirmed that where
an intervening act of a third party is the dominant proximate cause of contractual
impossibility, the original contracting party cannot be held liable, and the Force
Majeure claim of that party is not defeated by its antecedent conduct.

[B.] AeroIon's Containment Failure is the Dominant Cause of Decree 774

(¶ 91.) Decree 774 (Exhibit R6) is explicit about its operative rationale. The Ministry of Mines
states: "while the Ministry notes the heavy utilization of freshwater resources, it is the
contamination of said resources by the toxic ammonium discharge that renders
the continued operation untenable." This is a definitive ministerial finding that the
immediate, decisive cause of the license revocation was the ammonium contamination.
On 15 April 2025, AeroIon's ceramic membrane banks suffered catastrophic rupture,
releasing over 15,000 litres of ammonium-laced slurry into the containment zone,
which then seeped into the local water table. The Ministry's emergency response was
directed at this contamination event, not at ENRE's blending activities, which had been
ongoing for weeks without triggering regulatory action.
(¶ 92.) Therefore, it is submitted that the causal sequence is, AeroIon's equipment failure, the
toxic discharge into the environment, the Ministry of Mines emergency response, and
the Decree 774. ENRE's blending activities, while a background operational matter,
were not the trigger for the decree. AeroIon's toxic discharge is the novus actus
interveniens that breaks any causal chain between ENRE's blending and the
governmental intervention.

[C.] AeroIon Cannot Invoke Consequences of its Own Toxic Discharge

(¶ 93.) The novus actus analysis is reinforced by CISG Article 80, which provides that a party
may not rely on a failure of the other party to the extent that such failure was caused by
the first party's own act or omission. In the present case, it was AeroIon's own
operational negligence and its failure to contain the ammonium slurry released by its

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ruptured membranes that caused the environmental contamination that triggered Decree
774. AeroIon cannot rely on Decree 774 as evidence of ENRE's "self-induced" Force
Majeure when the decree was triggered by AeroIon's own toxic discharge.
(¶ 94.) Furthermore, AeroIon's use of an ammonium-based elution buffer, a chemical agent
uniquely intolerant to magnesium, was a secret operational choice that AeroIon made
without disclosing to ENRE. As confirmed in Exhibit R1, AeroIon's CTO Dr. Aris
Thorne expressly refused to disclose the composition of the elution buffer, citing trade
secrets. ENRE could not have known that the brine it supplied even if it contained some
variance from the 19:1 target would react catastrophically with an undisclosed
ammonium-based chemical process to produce a toxic discharge.

[3.] ENRE'S BLENDING ACTIVITIES WERE CONDUCTED IN GOOD FAITH PURSUANT TO

CONTRACTUAL OBLIGATIONS, NEGATING ANY FINDING OF NEGLIGENCE OR WILFUL

MISCONDUCT

[A.] ENRE's Blending Was a Contractual Obligation, Not Culpable Conduct

(¶ 95.) Article 25.1 of the MBSA carves out Government Acts "caused by the negligence or
wilful misconduct of the claiming Party." It is submitted that ENRE's blending activities
cannot be characterized as negligent or wilfully misconduct because they were
expressly required by Article 6.3 of the MBSA, which obligated ENRE to "use
commercially reasonable efforts to blend the Product to maintain homogeneity."
ENRE's utilization of its central mixing manifold to dilute the Northern Reserve's raw
brine was performance of a contractual obligation, not a culpable deviation from the
standard of care.
(¶ 96.) The standard of negligence under Bolanese law derived from the French civil law
concept of the bon père de famille130 requires a departure from the conduct of a
reasonably prudent person in similar circumstances. Respondent conducted extensive
bore-hole analysis of the Northern Reserve, issued a formal LoA based on that analysis,
utilized established blending technology, and achieved a TWA Mg/Li ratio of 24.5:1.
These are the actions of a diligent operator, not a negligent one.

130
Article 1137, French Civil Code

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[B.] The "Project Void" Memorandum Does Not Establish Wilful Misconduct

(¶ 97.) The Claimant places great weight on the "Project Void" memorandum (Exhibit C5) as
evidence of wilful misconduct. It is submitted that this characterization is
unsustainable.
(¶ 98.) This is not the language of deliberate misconduct. This is the language of a party relying
in good faith on its counterparty's contractual representations. AeroIon had expressly
represented in Exhibit R1 that its ISN system was "engineered to handle impurity spikes
consistent with standard industrial parameters in the Lithium Triangle." ENRE was
entitled to rely on this representation when formulating its blending strategy. A party
that relies on its counterparty's assurances cannot be said to have acted with wilful
disregard for that counterparty's interests.
(¶ 99.) Under Article 1104 of the French Civil Code, good faith is assessed objectively.
ENRE's reliance on AeroIon's "Black Box" assurances reflects good faith commercial
conduct. Wilful misconduct (faute dolosive) under French law, as confirmed by the
Cour de cassation in Cass. civ. 1ère, 4 février 1969, requires intentional harm a
conscious desire to cause damage to the other party.
[C.] The Freshwater Diversion Was Conducted Under Lawful Authorization
(¶ 100.) The Claimant characterizes ENRE's freshwater diversion as "unauthorized and
aggressive." This characterization is incorrect. The "Project Void" memorandum
(Exhibit C5) itself states that the diversion would utilize "the dormant agricultural
pumping permits acquired in 2012." ENRE's use of lawfully acquired permits to
perform a contractually mandated blending obligation cannot constitute negligence or
wilful misconduct within the meaning of Article 25.1.
(¶ 101.) Partial operational contribution to the circumstances leading to an impediment does
not automatically defeat the Force Majeure exemption. The Claimant must establish
deliberate fault, not merely operational involvement.131

131
UNIDROIT Principles of International Commercial Contracts (PICC), Article 7.1.7, Official Comment 2
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[4.] CISG ARTICLE 80 BARS AEROION FROM CLAIMING DAMAGES FOR CONSEQUENCES OF ITS
OWN OPERATIONAL NEGLIGENCE AND TOXIC DISCHARGE

(¶ 102.) It is respectfully submitted that Article 80 of the CISG 132is directly applicable to bar
AeroIon's damages claim in its entirety, or alternatively to substantially reduce it.
Article 80 provides that "a party may not rely on a failure of the other party to the extent
that such failure was caused by the first party's own act or omission."
(¶ 103.) AeroIon's equipment failure at the Magnesium Wall event of 15 April 2025 was the
direct cause of the toxic discharge that triggered Decree 774. AeroIon's failure was
caused by its own choice to use an ammonium-based elution buffer in a high-
magnesium environment without disclosing this chemical sensitivity to ENRE or
engineering adequate containment for the resulting toxic byproducts. As the
independent expert. Dr. Chen Wei confirms in Exhibit R2, "using an ammonium buffer
in a high-magnesium environment is chemically reckless unless the feed is pre-treated
to remove 99.9% of the magnesium."
(¶ 104.) Furthermore, AeroIon failed to discharge its duty to mitigate under Article 77 of the
CISG133. Article 77 requires the aggrieved party to take reasonable measures to mitigate
the loss. AeroIon, upon receiving the first telemetry anomalies in mid-March 2025, took
no effective steps to halt operations, modify its chemical process, or prevent the
catastrophic rupture that followed on 15 April 2025.
[5.] Enre complied with all procedural requirements for force majeure
invocation and termination under article 25.2 of the mbsa and cisg article 79

[A.] Notice was Timely and Adequate

(¶ 105.) CISG Article 79(4) requires that the party relying on the exemption give notice of the
impediment and its effect on its ability to perform, within a reasonable time after it
knew or ought to have known of the impediment. Decree 774 was issued on 20 April
2025. ENRE communicated the existence of the governmental shutdown immediately
and filed its formal Force Majeure notice on 1 July 2025 after the contractually
prescribed 60-day period had elapsed. The notice identified the operative governmental

132
CISG, Art.80.
133
CISG, Art.77.
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decree, invoked the correct contractual provision, and formally declared termination
pursuant to Article 25.2.

[B.] The 60-Day Period Was Properly Observed

(¶ 106.) Article 25.2 of the MBSA provides that if a Force Majeure event continues for more
than 60 days, either party may terminate without liability. The period between the
issuance of Decree 774 (20 April 2025) and ENRE's Notice of Termination (1 July
2025) is 72 days plainly in excess of the 60-day threshold. ENRE did not precipitously
invoke termination; it waited the full contractually prescribed period before exercising
its termination right, demonstrating procedural good faith.
(¶ 107.) Under CISG Article 79(3), 134the exemption has effect for the period during which the
impediment exists. Since Decree 774 permanently revoked the extraction license, the
impediment is indefinite in duration. ENRE was accordingly entitled to terminate the
MBSA, AeroIon's damages claim therefore fails entirely.

[C.] The UNIDROIT PICC Confirms the Validity of ENRE's Termination

(¶ 108.) The party relying on Force Majeure may terminate the contract if the impediment is of
a permanent nature.135 The permanent revocation of the extraction license by Decree
774 constitutes a permanent impediment, entitling ENRE to terminate the MBSA under
both the contractual mechanism in Article 25.2 and the framework of internationally
recognized principles of contract law.
(¶ 109.) It is respectfully submitted that: (i) Decree 774 satisfies all three requirements of Force
Majeure under Article 1218 of the French Civil Code and Article 79(1) CISG; (ii)
AeroIon's catastrophic containment failure constitutes a novus actus interveniens (iii)
ENRE's blending activities were conducted in good faith pursuant to contractual
obligations (iv) CISG Article 80 and the duty to mitigate under Article 77 independently
bar AeroIon's damages claim; and (v) ENRE complied with all procedural requirements
for Force Majeure invocation and termination.

134
CISG, Art.79(3).
135
UNIDROIT Principles of International Commercial Contracts (PICC), Article 7.1.7(4)

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PRAYER FOR RELIEF

Wherefore, in the light of issue raised, arguments advanced and authorities cited, the Counsel
for the RESPONDENT respectfully prays that this Hon’ble Tribunal may ADJUDGE and
DECLARE that:

1. The Tribunal does not have jurisdiction over the dispute.

2. The LithiumLeaks documents are inadmissible before the Tribunal.
3. The goods supplied by the Respondent are conforming to the MBSA read with CISG
Article 35.
4. The Decree 774 does constitutes as force majeure under Article 25 of the MBSA.

AND/OR

Pass any such order or issue such directions or grant such relief that it may deem fit in light
of justice, equity and good conscience.

**For this act of kindness, the Respondent, as is duty bound, shall humbly pray**

Date: 07/03/2026

Place: Bhopal

Sd/-

(COUNSELS APPEARING FOR THE RESPONDENT)

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