Chuo University​Red’s preliminary Memorandum

List of Abbreviation
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“P. ”
“¶”
“Ex.”
“Art.”“UPICC”: Page: Paragraph: Exhibit: Article: Unidroit Principles of International Commercial Contract 2016

CRAB CASE
Red hereby seeks the following arbitral awards:

Blue shall pay US$2 million to Red andBlue’s claim, insisting Red shall pay US$500,000 to Blue,shall be dismissed

Red submits that:
Issue 1
A. Sale and purchase agreement for 10,000 Nego crabs was effectively concluded
between Red and Blue;
B. The price of Nego crab per crab is US$200;
C. Blue cannot cancel SUPPLY AGREEMENT[​Ex.4​] concluded between Red and Blue;
Issue 2
D. There is no factual and legal basis based on which the amount to be paid by Blue to
Red should be reduced, Blue is obligated to pay US$2 million;
Issue 3
E. Red is not obligated to pay US$500,000 to Blue, for the sale of Nego crabs from Blue
to Green.

1Chuo University​Red’s preliminary Memorandum
Issue 1
Blue is obligated to pay US$2 million for purchase of 10,000 Nego crabs under SUPPLYAGREEMENT concluded in December 1998[​Ex.4​]. Blue placed an order with Red throughRB Link for crabs worth US$2 million (10,000 Nego crabs per US$200) under Ex.4[​¶13​].
However, Blue did not pay US$2 million, by refusing payment based on the invoice which
Red sent via e-mail. Therefore, Blue is obligated to pay US$2 million to Red under UPICC
7.2.1.
A. Sale and purchase agreement for 10,000 Nego crabs was effectively concluded
between Red and BlueA contract may be concluded either by the acceptance of an offer or by conduct of theparties that is sufficient to show agreement[​UPICC 2.1.1​]. However, Red and Blueagreed to change the way of offer and acceptance under Ex.4 by Memorandum ofUnderstanding[​Ex.6​].
Smart Blue automatically places order through the account management system of RB
Link system[​Ex.6, Art.4 and Ex.7​]. The system automatically processes orders made byBlue and provides instructions for the shipment of relevant products[​Ex.4, Art.2(3) andEx.6.2]​. In this case, Smart Blue’s AI placed an order for 10,000 crabs with Red around1:00 am on March 4, 2019[​¶14]​. In response to this order, the computer system of Red
automatically processed shipment, and immediately after receiving the order, gave theinstruction to Red’s warehouse to ship 10,000 Nego crabs to Blue[​¶14​]. Important thingis that acceptance required under Ex.4 (written as “acknowledgement” in Article 1(3)) is
no more required under the new system of Ex.6. Therefore, sale and purchase agreementfor 10,000 Nego crabs was effectively concluded between Red and Blue. In addition, Red
and Blue agreed to use RB Link and Smart Blue’s AI that is automated system “capableof setting in motion self-executing electoronic actions leading to the conclusion of acontract without the intervention of a natural person”[UPICC 2.1.1 COMMENT 3]
under Ex.6 and Ex.7. Even though the offer and acceptance was conducted without theintervention of a natural person, sale and purchase agreement for 10,000 Nego crabs was
effectively concluded between Red and Blue.
B. The price of Nego crab per crab is US$200
The account management system of Red processed the order for 10,000 Nego crabs madeby Blue based on the regular price of US$200 per crab, and the screen of RB Dashboardthat shows the information of the account management system also showed this after2

Chuo University​Red’s preliminary Memorandum
1:00 am on March 4[​¶15​]. ​Staff of Blue could have been able to see the information at
RB Dashboard, but none of them checked the information about the transaction of 10,000
Nego crabs[​¶16]​. Holiday at Arbiria is not an excuse because system is working 24
hours. Therefore, Blue has obligation to pay US$2 million for 10,000 Nego crabs per
US$200 to Red.
C. Blue cannot cancel SUPPLY AGREEMENT[​Ex.4]​ concluded between Red and Blue
1) None of the items of UPICC 3.2.2(1)(a) applies
Red did not make the same mistake as Blue because Red did not make incorrect
assumption in light of the fact that the accounting system of Red processed the order for
10,000 Nego crabs made by Blue based on the regular price for Nego crab (a-1)[​¶15​].
Furthermore, there is no fact shown that Red caused Blue’s mistake because theinaccurate information had been entered into the system by some outsider, not byRed[​¶15​]. In this connection, original cause that Red system was hacked and thisinaccurate information was entered is that e-mail sent from Red to Blue was infected by avirus. This means that Blue by itself caused its mistake (a-2). In addition, Red did notknow or ought not to have known of Blue’s mistake (a-3). In this case, Red did not know
the inaccurate information was entered when the contract was concluded between Red
and Blue. Red could not have known of Blue’s mistake because the inaccurate
information was entered around 10:00 p.m. which is during non-business hour[​¶14​].
2) Blue was grossly negligent in committing the mistake[​UPICC 3.2.2(2)(a)​]The screen of RB Dashboard that shows the information of the account management
system showed the regular price for Nego crab, which was US$200 per crab[​¶15​]. Staff
of Blue could have been able to see the information at RB Dashboard, but none of themchecked the information until 9:30 am on March 5[​¶15]​. In addition, since “Smart Blue”
works 24 hours a day, 365 days a year[​Ex.7]​, staff of Blue could have been checked RB
Dashboard outside business hours. If staff of Blue checked the information when Blueplaced an order, Blue could immediately cancel the order to Red for crabs worth US$2
million. Therefore, Blue has grossly negligent in committing the mistake.
3) Blue has assumed the risk of mistake[​UPICC 3.2.2(2)(b)]​Red and Blue agreed that Red is not responsible for the accuracy of information
concerning weather, production volume and market prices of agricultural and marine
products in Negoland, and other relevant information provided by third parties under the
mail on November 15 and 17, 2017[​Ex.7, UPICC 2.1.1​]. This agreement was made in3

Chuo University​Red’s preliminary Memorandum
order to allocate the responsibilities about the accuracy of the information entered into the
RB Link by means of gathering information. The inaccurate information was related to
production volume and market prices of marine products, which was provided by third
parties. This is because it was entered by an unauthorized access by some outsider andnot by Red[​¶15​]. The inaccurate information was entered into the system of RB Link asobtained by Red through its own research[​¶14]​, but Red did not obtain the information by
itself. In short, Red is not responsible for this. Therefore, Blue cannot avoid the contract
as Blue has assumed the risk of mistake by the inaccurate information.
Issue 2

D. There is no factual and legal basis on which the amount to be paid by Blue to Red
should be reduced, Blue is obligated to pay US$2 million
Red is obligated to provide the information concerning weather, production volume andprices of agricultural and marine products in Negoland and other relevant information
stored in the Red’s IT system, through RB Link[​Ex.7 and UPICC 3.1.2]​. In this case, theinaccurate information was provided by an unauthorized outsider[​¶15​]. In light of thisfact, Red did not breach any obligation under the contract.
Red did not notify Blue that there had been an unauthorized access to its system and thatthe inaccurate information had been entered into the system at 8:00 am on March 4,
2019[​¶15]​. However, after 1:00 am on March 4, the screen of RB Dashboard that shows
the information of the account management system also showed regular price for Negocrab, which was US$200 per crab, and staff of Blue could have been able to see theinformation at RB Dashboard[​¶15​]. Blue could have cancelled immediately andwithdrawn the order before the agreement was concluded.
In light of this fact, the harm is not due in part to an omission of Red, and US$2million
which Blue is obligated to pay to Red shall not be reduced[​UPICC 7.4.7​].
Issue 3
E. Red is not obligated to pay US$500,000 to Blue, for the sale of Nego crabs from Blue
to Green
1) Red is not the party of the Contract[​Ex.8​]
The agreement was concluded between Blue and Green, Red is not the party of suchagreement. It is clearly stipulated that the “​Seller​” is “​Blue Inc​.” and “​Cost:
Transportation cost and custom duties shall be paid by Seller”​[​Ex.8, Art.7]​. Based on this4

Chuo University​Red’s preliminary Memorandum
provision, Red is not obligated to pay transportation cost and custom duties, whereas
Blue is obligated to pay that costs.
2) Red did not grant the agent’s authority to Blue“An authority is granted to an agent when an agent may be express or implied.”[​​UPICC
2.2.2(1)​]. However, explicit authority was not granted to Blue, because there is no factthat Red expressly gave Blue a power of attorney, nor both parties entered into agency
agreement.
In the conversation over telephone about the sale of Nego crab to Green on March
7[​¶17]​, ​both parties refused to be the party of an agreement with Green. However, ​Blue
offered to Red that Blue will conclude an agreement between Blue and Green, and Blueand Red discuss what to do regarding the cost and loss later. After that, Red responded
that “We agree”​, and accepted that Blue entered into an agreement with Green. Fromthese facts, this conversation shows Blue is not representing Red when concluding theagreement with Green.
In addition, Blue did not recognize itself or act as an agent. Blue made a decision by itself
and shipped 10,000 Nego crabs to Green, when it became clear that there was a sudden
increase in the fare for air transportation of the Nego crabs to Meditoria, and a decision
was made by the Meditrian customs which imposed additional customs duties on theimport of the Nego crabs into Meditria[​¶18]​. Regarding these facts, it is apparent thatBlue was not granted its agent’s authority from Red. Therefore, there is no fact that Red
expressly and impliedly gave Blue a power of attorney, nor both parties concluded
agency agreement.
3) Red did not ratify Blue’s act“An act by an agent that acts without authority or exceeds its authority may be ratified by
the principal. On ratification the act produces the same effects as if it had initially been
carried out with authority”[​​UPICC 2.2.9(1)​]. However, there is no fact that Red
indicated its intention to ratify Blue’s act. In addition, though Blue sent a copy of Ex.8 to
Red, there is no provision to show that Blue is an agent of Red. After that, there was no
particular comment from Red[​¶18​]. Therefore, it is clear that Red did not ratify Blue’sact.
4) Even if Blue was granted the authority, the acts of the agent shall affect only the
relations between the agent and the third party5

Chuo University​Red’s preliminary Memorandum“​
The acts of the agent shall affect only the relationship between the agent and the third
party where an agent acts within the scope of its authority and the third party neither
knew nor ought to have known that the agent was acting as an agent”​[​UPICC 2.2.4​].
As mentioned above, there is no provision in Ex.8 to stipulate that Blue is an agent ofRed. Considering this fact, Green did not know that Blue is an agent of Red.
In addition, Blue entered into Ex.8 with Green, even though Red could directly enter into
an agreement with Green. Since Green is a purchaser which Red found, and Red hadlearned that Green was willing to purchase 10,000 Nego crabs for US$100 per crab on
March 3, 2019[​¶17]​, Red could directly conclude the agreement with Green. In thecircumstance that Red could enter into an agreement with Green, and there is no fact that
Red would get benefit if Blue becomes Red’s agent, Green may not think that Red asked
Blue to be Red’s agent. Therefore, it is clear that the acts of Blue shall affect only the
relations between Blue and Green.

BLUE HOT CASE
Red hereby seeks the following arbitral awards:

Blue shall not supply “Blue Hot” series
to any third party that sells them in Negoland
and Blue shall pay US$400,000 to Red.

Red submits that:
Issue 1
A. Sales of ​“Blue Hot” at the stores of Brown Trading Corp. (“Brown”) in Negoland
constitute a breach of obligation by Blue under the Joint Venture Agreement[Ex.10];
Issue 2
B. The Arbitral Tribunal should render an arbitral award that Blue shall not supply “BlueHot” series to any third party that sells them in Negoland[​UPICC 7.2.2]​;
Issue 3
C. Blue shall pay US$400,000 for damages to Red for the decrease of profit of Yellow in
Negoland in 2018.

6

Chuo University​Red’s preliminary Memorandum
Issue 1
A. Sales of ​“Blue Hot” at the stores of Brown Trading Corp. (“Brown”) in Negoland
constitute a breach of obligation by Blue under the Joint Venture Agreement[​Ex.10​]
1) Blue breached the obligation not to engage in the business that competes with thebusiness of Yellow[​Ex.10, Art.14.3]​.
a) Blue breached its obligation[​Ex.10, Art.14.3​] by performing its business of “BlueHot” in Negolandi)

The business of Yellow
The objects of Yellow are “​i) producing Products and ii) other business relating or
incidental to the foregoing”​[​Ex.10, 2.1]​. It shall be determined by Red and Blue throughfaithful negotiation of consideration of marketing[​Ex.9, Art.2(7) and Ex.10, Art.7.1]​. Thatmeans, “Yellow Quick” and “Blue Noodle” correspond to the objects of Yellow.

ii)

The purpose of the agreement[​Ex.10​]
The purpose of the agreement[​Ex.10]​ is to prevent Red and Blue from runningcompetitive business of Yellow. This is because, Red and Blue may wish cooperating togain the profit of Yellow. In 2014, before Yellow was established, Blue thought thedemand for ready-to-eat foods would further grow and increase the sales in Negoland. Atthat time, Red was also considering to further diversify its business, and wished to start a
new food business[​¶20​]. From this fact, it was clear that both parties wished to gain the
profit of Yellow.
Therefore, Red and Blue have common intention that the obligation of both parties[​Ex.10,
Art.14.3]​ is not to carry on or be engaged in any business that competes with Yellow, by
scrambling for consumers between “Yellow Quick” and “Blue Noodle” as mentioned
above (a)i~ii[​UPICC 4.1(1)]​.

iii)

Blue carried on or engaged in a business that competes with the business of
Yellow
Based on the above (i~ii), however, Blue started supplying “Blue Hot” series thatcompetes with “Yellow Quick” series to Brown. ​Blue knew that Brown intended to sell it
not only in Arbitria, but also in Negoland when Blue started the transaction with Brown
in January 2018[​Ex.13​]. That act of Blue has the same effect as that Blue directly sells“Blue Hot” series in Negoland, and corresponds to “​carry on nor be engaged in any

7Chuo University​Red’s preliminary Memorandum
business that competes the business of Yellow”​[​Ex.10, Art.14.3]​. ​As a result, sales of the“Yellow Quick” series from January to December 2018 decreased by half compared to2017, amounting to US$10 million. Expert, Mr. Bob Orange, who Red and Blue agree on
his reliability as an expert, said “​Sales of “Blue Hot” in Negoland have been affecting
sales on Yellow Quick in Negoland. Especially for beef stew and aqua pazza, it is evident
that people tend to choose “Blue Hot”​”[​Ex.12]​. Therefore, it is clear that “Blue Hot”
competes with “Yellow Quick” and in fact significant decrease of sales of “Yellow
Quick” was caused by beginning supply of “Blue Hot”. From these reasons, Sales of“Blue Hot” at the stores of Brown in Negoland constitute a breach of obligation by Blue
under the Joint Venture Agreement[​Ex.10, Art.14.3​].
Furthermore, ​Blue accessed to the market and made the situation of unnecessarycompetition even though Blue knew ​that“Yellow Quick” series were a big hit in

Negoland, Arbitria and other foreign countries[¶21].
b) Even if “Blue Hot” series was manufactured using Blue’s technology, such products
also falls into the category of non-compete obligation
Even if Blue manufactures “Blue Hot” series with Blue’s patent using a special
technology, such products shall also correspond to its obligation not to compete withbusiness of Yellow[​Ex.10, Art.14.3]​. This is because customers in Negoland would notcompare and distinguish “Blue Hot” and “Yellow Quick” by those technology.
Furthermore, there is no article that excludes the business developed by its own
technology from the non-compete obligation[​Ex.10, Art.14.3]​. There is a foreseeability
that Blue continues to build new technology by itself when Yellow was establishedbecause it stipulates that “​Although manufacturing of other ready-to-eat foods that are
produced by Blue (for example, frozen foods) in the future is not excluded​”[​Ex.9,
Art.2(7)​]. Both parties did not include such article as an exception to non-compete
provision in the Joint Venture Agreement. It means that there is the common intention not
to sell and supply in Negoland such ready-to-eat food developed by own technology.
2) Blue did not perform the best effort for the business of Yellow under the Joint
Venture Agreement[​Ex.10, Art.14.1​]
Blue was obligated to use the best efforts and cooperate with each other in good faith to
make the business of Yellow successful[​Ex.10, Art.14.1]​. However, Blue continued
supplying the “Blue Hot” series to Brown even though Blue knew that Brown intended tosell in Negoland[​Ex.13]​. In light of this fact, ​Blue made it possible for Brown to sell8

Chuo University​Red’s preliminary Memorandum“Blue Hot” series that is competitive products with “Yellow Quick” in Negoland andaccordingly the sales of “Yellow Quick” decreased[​Ex.13]​. Furthermore, during themeeting on May 15, 2014, Red and Blue decided that “​Although manufacturing of otherready-to-eat foods in the future is not excluded, it shall be determined by Red Corp. andBlue Corp. and Blue, Inc. through faithful negotiation in consideration of market trends,
manufacturing technologies and other relevant factors​”[​Ex.9, Art.2(7)]​. Blue started to
manufacture and sell “Blue Hot” series in Arbitria in 2017[​¶22]​. Red proposed to Blue tomanufacture “Blue Hot” series by Yellow in Negoland[​¶23]​. However, Blue refused this
proposal by e-mail[​Ex.11]​. In light of this fact, Blue did not do the faithful negotiation
with Red. Therefore, Blue did not perform the best effort for the business of Yellow
under the Joint Venture Agreement[​Ex.10, Art.14.1​].
Issue 2
B. The Arbitral Tribunal should render an arbitral award that Blue shall not supply“Blue Hot” series to any third party that sells them in Negoland[​UPICC 7.2.2]​
1) Blue shall stop supplying “Blue Hot” series to Brown under UPICC 7.2.2
Blue was obligated not to supply “Blue Hot” series to any third party that sells themcompeting with the business of Yellow.
“The other party may require performance when a party who owes an obligation otherthan one to pay money does not perform”​[​UPICC 7.2.2]​.
Blue was obligated to perform the duty of non-competition under the Joint Venture
Agreement[​Ex.10, Art.14.3​]. However, Blue breached its obligation because Blue
continues supplying “Blue Hot” series that competes with “Yellow Quick” series toBrown in Negoland(refer to A).
2) There is no fact which corresponds to the exceptions to the right to require
performance[​UPICC 7.2.2(a)~(e)​]a) Performance or, where relevant, enforcement of Blue’s obligation is notunreasonably burdensome or expensive[​UPICC 7.2.2(b)]​Owing to the enforcement of performance, the party which Blue can supply “Blue Hot”
series may be restricted and it may cause loss of profit. However, it does not correspondto UPICC 7.2.2(b). The party which Blue shall not supply “Blue Hot” series is the party
which wants to sell “Blue Hot” series in Negoland. It is not prohibited that Blue supplies“Blue Hot” series to the third party which sells it to other countries than Negoland. Thus,

9Chuo University​Red’s preliminary Memorandum
it is not unreasonably burdensome or expensive for Blue to stop selling “Blue Hot” to theparty which in turn resells them in Negoland or enter into an supply agreement with suchthird party, prohibiting them to sell “Blue Hot” series in Negoland.
b) Red claimed that Blue stop selling “Blue Hot” series within a reasonable
time[​
UPICC 7.2.2(e)]​On February 1, 2019, Red required Blue to stop selling the “Blue Hot” series thatcompetes with “Yellow Quick” by the mail[​Ex.13​]. Therefore, Red claimed against Bluein February, 2019 ​within a reasonable time since the sales of “Yellow Quick” decreased
after a few month of “Blue Hot” series being sold out.
Issue 3
C. Blue shall pay US$400,000 for damages to Red for the decrease of profit of Yellow in
Negoland in 2018
Blue shall pay US$400,000 for damages to Red under UPICC7.4.1〜UPICC7.4.4.
​
In this case, Blue had an obligation not to engage in the business that competes with thebusiness of Yellow[​Ex.10, Art.14.3]​. However, Blue did the business which competes
with the business of Yellow by supplying the “Blue Hot” series to Brown knowing that
Brown resells them in Negoland. As a result, sales of the “Yellow Quick” series fromJanuary to December 2018 decreased by half compared to 2017, and Yellow accordingly
lost US$1million[​¶24]​. In each fiscal year, the net profit of Yellow shall be distributed to
Red and Blue as dividends in accordance with the shareholdings ratio[​Ex.10, Art.8.1]​.
The parties do not dispute that if Blue is legally liable for the decrease of profit of
Yellow, Red’s damage is 40% (which is Red’s shareholding ratio) of Yellow’s reduced
amount of revenue[​Ex.14​]. From these facts, Red suffered US$400,000 out of
US$1million in sales decrease.
Therefore, Blue shall pay US$400,000 for damages to Red on the ground that profit of
Yellow in Negoland decreased in 2018.​
1) There is a causal relationship between the selling of “Blue Hot” series
and the decline in sales of “Yellow Quick” series
In the beginning of 2018, the “Blue Hot” series including beef stew and aqua pazza
launched in Negoland and became a huge hit. On the other hand, sales of “Yellow Quick”
series from January to December 2018 decreased by half compared to 2017[​¶24]​.

10

Chuo University​Red’s preliminary Memorandum
There are quite a few people in Negoland who think that “Blue Hot” is better than“Yellow Quick” and tend to choose “Blue Hot”, especially for stew and aqua pazza
because it is easier and more quickly served. Mr. Bob Orange also testified that ​the salesof “Blue Hot” in Negoland have a great influence on the sales of “Yellow Quick” in
Negoland​[​Ex.12 and ¶24​]. From these facts, if Blue did not sell “Blue Hot” in Negoland,
it was clear that sales of “Yellow Quick” did not drop significantly[​UPICC 7.4.2 and7.4.3 COMMENT 3​]​.
2) There was a foreseeability that the sales of the “Yellow Quick” series would decline
when the “Blue Hot” series started to be sold in Negoland
It was foreseeable that sales of “Yellow Quick” series would decrease if these twocompeting products were sold in the same region. This is because “Blue Hot ” and“Yellow Quick” are competitive products as mentioned in A(1). In addition to that, Bob
Orange said “​in countries other than Negoland, the tendency of consumers to see “BlueHot” as a product that competes with “Yellow Quick” appears to be not as high as thatof Negoland​”[​Ex.12​]. In light of this fact, “Yellow Quick” and “Blue Hot” are recognized
as a competitive business by consumers in Negoland. Therefore, there was aforeseeability that the sales of the “Yellow Quick” series would decline when the “BlueHot” series started to be sold in Negoland[​UPICC 7.4.4]​.

Response to Blue’s Request Regarding Third Party Funding
The Arbitral Tribunal should deny the petition by Blue
Red admits that Red entered into an agreement concerning third party funding. However,
because 1)“the Fund” is not a party to the arbitral proceedings, 2)Red has no obligation todisclose the contents of the agreement with the Fund and 3)under the third party funding
agreement (the “Funding Agreement”), Red is prohibited from disclosing the identity ofthe other party and the contents of the agreement to any third party, Red requests that the
Arbitral Tribunal deny the petition by Blue.
1) This fund is not a party to the arbitral proceedings
Arbitration proceedings shall not start without an arbitration agreement among the parties
in dispute. This arbitral tribunal was established because Red and Blue agreed to refer the
dispute to the arbitration proceeding[​Ex.4, Art.6.7 and Ex.10, Art.20.2​]. It is clear that the11Chuo University​Red’s preliminary Memorandum
parties to this arbitration are Red and Blue and that the Fund is not a party to thearbitration proceedings.
2) Red has no obligation to disclose the contents of the agreement with the FundThe whole procedures and obligations of both parties as well as arbitrators are governedin accordance with UNCITRAL Arbitration Rules (“UNCITRAL Rules”) which is agoverning rule of this arbitration. There is no provision obligating the party to thearbitration to disclose to any third party including arbitral tribunal the contents of theFunding Agreement it may have executed. It is the arbitrator’s obligation to disclose thecircumstances that may cause the legitimate suspicion about the arbitrator’s unbiased
independence[​UNCITRAL Rules Article 12 Paragraph 1​], but it is not Red’s obligation.
In addition, although it is not a governing law or rule in this case, Arbitration Act inJapan, which is a designated location of this arbitration procedure, has no provisionobligating the party to disclose the Funding Agreement.
In case of the third party funding in an arbitration proceeding, it is totally a matter of theparty to the arbitration whether or not it gets fund for arbitration from third party funder
and what kind of conditions are set up for such funding. These are not at all related tocounterpart or arbitral tribunal. Funding from a third party does not in itself cause theparty’s unfairness or violate good faith and fair dealing in arbitration procedure. There is
not a general doctrine that the party receiving funding must disclose facts about thefunding to counterparty or arbitral tribunal.
In addition, Red has no information on whether the Fund has a vested interest in one of
the arbitrators.
3) Red is prohibited from disclosing the identity of the other party and the contents of
the agreement to any third party
Because there is an agreement between Red and the Fund that the parties must notdisclose the agreement to the third parties, Red cannot disclose the fact about funding as acontractual obligation with the Fund. Furthermore, it is not appropriate for the arbitral
tribunal to force Red by its order to violate the non-disclosure obligation of Red under theFunding Agreement.
Therefore, the Arbitral Tribunal should not order Red to disclose the contents of theFunding Agreement.
End12