22ND INTERCOLLEGIATE NEGOTIATION COMPETITIONMEMORANDUM FOR BLUE
On Behalf Of:

Against:Blue Inc. (“BLUE”)
Arbitria

Red Corp. (“RED”)
NegolandSophia University
English Team

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MEMO FOR BLUE

Common Abbreviations
PARTIESTRIBUNAL
Exh
Art
BLACK
¶

RED and BLUE
Arbitral tribunal
Exhibit
ArticleBlack Company
Paragraph

Relevant Materials
UPICC
UNCITRALIBA Guidelines

UNIDROIT Principles of International Commercial Contract 2016
UNCITRAL Arbitration Rules 2021
IBA Guidelines on Conflicts of Interest in International Arbitration

MOON CASE
ISSUE 1 (MOON CASE)
Issue 1: “Does Blue Inc. have the obligation to transfer half of Materials extracted and acomplete copy of the data records obtained from Area β to Red Corp.? If Blue is obliged tohand over half of the substance, how should the arbitral tribunal divide and determine whichhalf to hand over?”＜Materials＞
I. As the AGREEMENT ON DISTRIBUTION OF LUNAR DATA AND MATERIALS(Exh 6) (“Exh 6 Distribution Agreement”) does not contain a clause regarding thetransfer of the materials collected in Area β (“Materials”), the only legal basis withwhich RED could request the delivery of the Materials is through their ownershipright. Since RED can no longer acquire ownership to half of the Materials due to theSpace Resources Act of Negoland (Exh 11) (“Negoland Act”), the TRIBUNAL
should not oblige BLUE to deliver the Materials.
II. Without prejudice to the previous submission, even if the TRIBUNAL determinesthat delivery of the Materials is not predicated on the transfer of ownership, BLUEcannot deliver the Materials since such act violates the legislative purpose of the
Negoland Act.
＜Data＞
III. Since BLUE is legally obliged to withhold the complete copy of the data collected in
Area β (“Data”) from RED under the Order concerning handling of data pertaining
to the Moon (Exh 13) (“Arbitrian Order”), the TRIBUNAL should not oblige BLUEto transfer the Data.
IV. Without prejudice to the previous submission, even if BLUE is not legally obliged towithhold the Data under the Arbitrian Order, as it is unreasonably burdensome forBLUE to be required to transfer the Data, RED cannot require the transfer pursuant
Art 7.2.2 (b) of UPICC.

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＜Division of the Materials＞
V. If BLUE has the obligation to transfer half of the Materials, the TRIBUNAL should
equally divide the Materials based on its weight while considering the researchvalue of the 10 kg rock.
＜Materials＞
I. As Exh 6 Distribution Agreement does not contain a clause regarding the transferof the Materials, the only legal basis with which RED could request the delivery of
the Materials is through their ownership right. Since RED can no longer acquireownership to half of the Materials due to the Negoland Act, the TRIBUNAL should
not oblige BLUE to deliver the Materials.
1 Arts 2.1 and 2.3 of Exh 6 Distribution Agreement should be interpreted as setting out thedivision of the Materials and the ownership of each of the PARTIES to their respective
share. The reasons for this interpretation are as follows.
1.1 Art 2.1 of Exh 6 Distribution Agreement states “All materials collected from thelunar surface or subsurface and brought back to Earth shall be divided equally
between Red Corp. and Blue Inc.”, and Art 2.3 states “Both parties shall haveequal rights to access, use, distribute, sell, or otherwise benefit from thesematerials.”
1.2 At the time of signing on May 10th, 2020 the PARTIES agreed for each to haveownership over their respective share of the Materials. However, due to a lack ofclear legal guidance on the ownership of space materials, there was a need for the
PARTIES to specifically describe the rights afforded to them under ownership.
Hence, the PARTIES agreed to include Art 2.1 for the division of the Materials, andArt 2.3 which specified ownership.
2 Subsequently, in February 2021, the Act on the Promotion of Business Activities for the
Exploration and Development of Space Resources of Arbitria (Exh 8) (“Arbitrian Act”)
came into force (¶13). BLUE acquired ownership of the Materials under this Act, thereasons for which are as follows.
2.1 Art 5 of the Arbitrian Act states “A person who conducts business activities related
to the exploration and development of space resources shall acquire the ownershipof space resources that have been mined, etc. in accordance with the businessactivity plan for the exploration and development of space resources that the
government has approved in advance, by possessing said space resources with
the intention to own.”
2.2 In this case, since BLUE’s business activity plan has been approved by theGovernment of Arbitria (¶14), the Arbitrian Act applies to BLUE. And since BLUEpossessed the Materials with the intention to own them, BLUE acquired ownership.
2.3 It should be noted that since the Arbitrian Act is a space policy law enacted inorder to encourage investment in space by Arbitria’s domestic companies (¶13), it
only applies to operators of Arbitria. Hence, RED cannot acquire ownership of theMaterial under the Arbitrian Act.
3 Thus, it should be understood that BLUE had acquired ownership of the Materials in its
entirety, and the ownership of half of the Materials were to transfer to RED, pursuant Art
2.1 and Art 2.3 of Exh 6 Distribution Agreement.
4 Although this was the expectation between the PARTIES, in this case, with the entry into
force of the Negoland Act on May 1st, 2023 (¶17), RED is no longer able to acquire2

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MEMO FOR BLUEownership rights over the Materials. This made it impossible for BLUE to transfer
ownership of half of the Materials. The reasons are as follows.
4.1 Art 5.1 of the Negoland Act states “The ownership in the space resources mined,
etc. by a person who engages in business activities related to the exploration anddevelopment of space resources with permission of the state shall belong to thestate.” Further, Art 5.2 states “Unless ownership has been transferred by the state,
no person other than the state may own space resources.”
4.2 In this case, since RED obtained the necessary permits for the project from theGovernment of Negoland (¶14), the Negoland Act applies to RED. Hence, REDcannot have ownership over the half of the Materials.
4.3 In addition, the Negoland Act is applicable to RED, regardless of the place ofdelivery. This is because the purpose of the Negoland Act was to ensure that all
space resources are collectively managed by the State (see ¶6 below). In light ofthis purpose, it should be interpreted that the Negoland Act applies to all citizens
and entities of Negoland, regardless of the location it is operating. This isevidenced by the fact that Art 5.1 of the Negoland Act stipulates its scope of
application to “Negoland citizens.”Thus, since RED cannot acquire ownership of the Materials, there is no basis for RED torequest delivery of the Materials. As such, the TRIBUNAL should not order BLUE todeliver half of the Materials.

II. Without prejudice to the previous submission, even if the TRIBUNAL determinesthat delivery of the Materials is not predicated on the transfer of ownership, BLUEcannot deliver the Materials since such act violates the legislative purpose of the
Negoland Act.
6 Without prejudice to the previous submission, even if the TRIBUNAL determines thatdelivery of the Materials is not predicated on the transfer of ownership, BLUE cannot
realize the state of affairs provided for by Art 2.3 of Exh 6 Distribution Agreement byvirtue of the Negoland Act. This is because the legislative purpose of the Negoland Act
was to avoid the use of space and space resources for the benefit of only a limited few(¶17) and to ensure that all space resources are collectively occupied, owned, and usedby the State. This is evidenced by Art 1 of the Negoland Act, which states “The purposeof this Act is to appropriately manage the exploration and development of spaceresources by determining issues such as the ownership of space resources and othernecessary matters.” In light of this legislative purpose, it should be interpreted that even
if the ownership itself is not transferred, the exercise of rights that would fall within thepurview of ownership is gained solely by the State of Negoland. Since allowing RED to
exercise such rights stipulated in Art 2.3 of Exh 6 Distribution Agreement would haveconstituted abetting, or being complicit in, RED violating the aforementioned legislative
purpose of the Negoland Act, BLUE cannot deliver half of the Materials.
＜Data＞
III. Since BLUE is legally obliged to withhold the complete copy of the Data from RED
under the Arbitrian Order, the TRIBUNAL should not oblige BLUE to transfer theData.
7 Art 1.3 of Exh 6 Distribution Agreement states that “Neither Party shall withhold any
portion of the data from the other Party for any reason, other than as expressly provided

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9MEMO FOR BLUEfor under the terms of this Agreement or as required by applicable law.” In other words,
BLUE may withhold the Data where required by applicable law.
In this case, the Arbitrian Order requires BLUE to withhold the Data from RED.
8.1 Art 1 of the Arbitrian Order states “data pertaining to the condition of the Moonshall not be transferred to any person unless…the permission of the state has
been obtained in advance. (The state may add necessary conditions on thepermission).”
8.2 In other words, in the absence of permission from the Government of Arbitria,
BLUE is required by this Order to withhold the Data.
8.3 In this case, the Government of Arbitria is undecided whether to permit BLUE to
hand over the Data to RED (¶20). And since BLUE was required to submit adocument that poses a significant risk to BLUE stating that “Blue guarantees to theGovernment of Arbitria that Red will never use the data in a manner that is contrary
to the national security of Arbitria” (¶20) as a condition for permission, it should beconsidered that the Government of Arbitria does not expect BLUE to hand over the
Data to RED, and that it effectively requires BLUE to withhold the Data by the
Arbitrian Order.
Thus, BLUE is legally obliged to withhold the Data from RED under the Arbitrian Order,
the TRIBUNAL should not oblige BLUE to transfer the Data.

IV. Without prejudice to the previous submission, even if BLUE is not legally obliged towithhold the Data under the Arbitrian Order, as it is unreasonably burdensome forBLUE to be required to transfer the Data, RED cannot require the transfer pursuant
Art 7.2.2 (b) of UPICC.
10 Art 7.2.2 (b) of UPICC states “Where a party who owes an obligation other than one to
pay money does not perform, the other party may require performance, unlessperformance or, where relevant, enforcement is unreasonably burdensome or
expensive.”
11 In this case, it would be unreasonably burdensome for BLUE to provide the documents
required by the Government of Arbitria and to hand over the Data to RED. This isbecause, in a situation where the Government of Arbitria is concerned about thehandover of the Data from a security perspective, if RED used the Data in a way thatwas contrary to Arbitria’s national security, BLUE would be considered as having been
complicit in a breach of Arbitria’s national security. This would carry a fine of up to 1
million USD. Furthermore, it is unreasonably burdensome for BLUE to be expected topolice RED’s usage of the Data. In totality, these are unreasonably burdensome forBLUE.
12 Therefore, pursuant Art 7.2.2 (b) of UPICC, RED cannot require delivery of the Data
from BLUE, as it would place unreasonably burdensome expectations on BLUE.
＜Division of the Materials＞
V. If BLUE has the obligation to transfer half of the Materials, the TRIBUNAL should
equally divide the Materials based on its weight while considering the researchvalue of the 10 kg rock.
13 Art 2.1 of Exh 6 Distribution Agreement states “All materials collected from the lunar
surface or subsurface and brought back to Earth shall be divided equally between Red
and Blue.”4

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14 Regarding the method of division of the Materials, Art 2.2 of Exh 6 Distribution
Agreement stipulates “Such division shall be made based on weight, volume, and/or
value as determined by the Parties.”
15 In this case, since the volume and value of the Materials are not clear, the TRIBUNAL
should split the Materials by weight. Specifically, as the 10 kg rock is the only one that isclearly of high research value (¶19), it should be divided equally into 5 kg each so that
the PARTIES can do research equally on that Material. The other Materials should be
divided only on the basis of weight, as their research value is not clear.
16 Therefore, the TRIBUNAL should divide the Materials equally on the basis of weight
while considering the research value of the 10 kg rock.
ISSUE 2 (MOON CASE)
Issue 2 “If Blue is obligated to deliver to Red half of the materials collected in Area β and thedata, can Red refuse to make payment until BLUE fulfills such obligation? If Blue does nothave such obligation, how much should Red pay to Blue?”＜If BLUE is obliged to deliver to RED half of the Materials and the Data＞
I. RED cannot refuse to make payment until BLUE fulfills such obligation.
＜If BLUE does not have such obligation＞
II. The TRIBUNAL should order RED to pay a total of 160 million USD; 150 million
USD pursuant Art 3.2 of the Cost Sharing for the Lunar Explorer Probe Project (Exh7) (“Exh 7 Cost Sharing Agreement”), and 10 million USD from the agreement
between the PARTIES subsequent to Exh 7 Cost Sharing Agreement.
III. Upon the sale of the Materials to BLACK and to the Government of Arbitria, andonce the payment has been received in full, the amount claimed will be reduced to
110 million USD.
＜If BLUE is obliged to deliver to RED half of the Materials and the Data＞
I. RED cannot refuse to make payment until BLUE fulfills such obligation.
17 RED’s counsel may make a submission based on Art 7.1.3 (1) of UPICC, which states“Where the parties are to perform simultaneously, either party may withhold performance
until the other party tenders its performance.” However, such a submission should bedismissed.
18 In this case, BLUE’s delivery obligation and RED’s payment obligation does notconstitute a situation “where the parties are to perform simultaneously.” The reasons are
as follows.
18.1 Art 3.4 of Exh 7 Cost Sharing Agreement states “The invoiced Party shall make thepayment within one month from the date of receiving the invoice.” In other words,
RED’s payment had a specific performance period set.
18.2 Exh 7 Cost Sharing Agreement does not stipulate that RED’s payment would bemade only after the Materials was transferred, nor that the transfer and payment
should be simultaneous. This is also obvious from the fact that, even if the mission
failed and there was no material for BLUE to deliver to RED, RED would still beobliged to pay BLUE.
19 Therefore, since there is no basis for requiring that BLUE’s transfer obligation and RED’s
payment obligation be performed simultaneously, RED cannot refuse to make payment
until BLUE’s performance.
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＜If BLUE is not obliged to deliver to RED half of the Materials and the Data＞
II. The TRIBUNAL should order RED to pay a total of 160 million USD; 150 million USD
pursuant Art 3.2 of Exh 7 Cost Sharing Agreement, and 10 million USD from theagreement between the PARTIES subsequent to Exh 7 Cost Sharing Agreement.
【Regarding 150 million USD】
20 RED is obliged to pay its outstanding balance pertaining to the lunar exploration project,
totalling 150 million USD. This is because the total cost of the entire lunar exploration
project was 400 million USD (¶21), and the PARTIES are to pay 200 million USD each,in accordance with Art 3.2 of Exh 7 Cost Sharing Agreement. Of this amount, RED has
thus far paid 50 million USD, while BLUE has fronted the rest of RED’s cost for the time
being (¶21). Thus, RED owes an outstanding balance of 150 million USD to BLUE.
21 Art 3.4 of Exh 7 Cost Sharing Agreement stipulates “The invoiced Party shall make thepayment within one month from the date of receiving the invoice.” On June 1st, 2023,
BLUE sent an invoice to RED requesting a total payment of 160 million USD under Art
3.4 of Exh 7 Cost Sharing Agreement (¶21). Thus, the payment date was July 1st, 2023.
22 Hence, since the date of RED’s payment obligation has passed, the TRIBUNAL shouldorder RED to pay BLUE 150 million USD.
【Regarding 10 million USD】
23 The PARTIES agreed for RED to bear an additional 10 million USD, so RED is obliged tomake that payment in addition to the previously submitted 150 million USD.
24 At a meeting on May 7th, 2023, the project managers from the PARTIES came to an oral
agreement that RED would bear an additional 10 million USD as compensation for the
failure to explore Area α (Exh 12). Since the discussion clearly contained an offer and an
acceptance, an oral agreement was validly concluded.
25 Alternatively, the same agreement can be understood as amending Exh 7 Cost Sharing
Agreement, because the oral agreement and the subsequent PDF file fulfills theconditions stipulated for an amendment in Exh 7 Cost Sharing Agreement. The reasonsare as follows.
25.1 Art 4.1 of Exh 7 Cost Sharing Agreement stipulates “The Agreement may beamended by written agreement by both Parties.” In this case, a transcript of the
discussion was sent to the PARTIES, which contained the oral agreement. The
term “written agreement” should be interpreted to mean that it is sufficient if theoral agreement is shared in a written form and confirmed by the PARTIES. This isbecause the purpose of the clause is to ensure that the content of agreement isclear and confirmed by the PARTIES when amending the contract. Hence, sharing
a transcript of the oral agreement between the PARTIES and allowing them toreconfirm the contract modification would fulfill the purpose of this clause.
25.2 In addition, Art 1.11 of UPICC states “‘writing’ means any mode of communicationthat preserves a record of the information contained therein and is capable ofbeing reproduced in tangible form.” PDF files fulfills this definition of “writing” asstipulated in this article. Since UPICC is the governing law for Exh 7 Cost Sharing
Agreement, its wording must be construed in accordance with UPICC. Hence, a
PDF file constitutes a “written agreement” as defined in Art 4.1 of Exh 7 Cost
Sharing Agreement.
25.3 In this case, a PDF file of the transcript of the May 7th, 2023 meeting was sent to
the PARTIES on the following day (Exh 12 Note). It is also clear that the PARTIES

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have confirmed the PDF file, as neither Party raised objections to its content (Exh12 Note).
26 Thus, since the agreement for RED to bear an additional 10 million USD fulfills Art 4.1 of
Exh 7 Cost Sharing Agreement, the TRIBUNAL should order RED to pay BLUE 10
million USD.
III. Upon the sale of the Materials to BLACK and to the Government of Arbitria, andonce the payment has been received in full, the amount claimed will be reduced to
110 million USD.
27 Of the total 100 million USD which BLUE has agreed to receive in return for selling theMaterials to BLACK and the Government of Arbitria (¶24), upon completion of the sale,
50 million USD shall be deducted from the amount claimed against RED.
28 RED’s counsel may argue that half of the profit to be earned by BLUE from the sale of
the Data (50 million USD total) should also be deducted from BLUE’s claim against RED.
However, this should be dismissed.
28.1 Art 1.2 of Exh 6 Distribution Agreement does not provide that one party is entitledto half of the profit from the sale of the Data by the other party, but stipulates thateach party has an equal right to utilize and benefit from the Data. This is because
the utilization of the Data by one party does not affect in any way the other party’s
right to utilize the Data, given that data is by its nature reproducible. In addition,
since BLUE will sell a copy of the Data while leaving the original in BLUE’s
possession, it is possible for RED to obtain a copy of the Data from BLUE in the
future.
29 Hence, upon the sale of the Materials to BLACK and to the Government of Arbitria, andonce the payment has been received in full, the amount claimed will be reduced to 110
million USD.
ISSUE 3 (MOON CASE)
Issue 3 “Should Red’s petition for interim measures be granted?”I.

RED’s petition for interim measures prohibiting BLUE from selling any of theMaterials to either BLACK or the Government of Arbitria should not be granted,
because it does not meet the requirements for an interim measure as set out in Art
26 (3) of UNCITRAL.

I. RED's petition for interim measures prohibiting BLUE from selling any of theMaterials to either BLACK or the Government of Arbitria should not be granted,
because it does not meet the requirements for an interim measure as set out in Art
26 (3) of UNCITRAL.
30 In order for the TRIBUNAL to order an interim measure, all three of the following
requirements set out in Art 26 (3) of UNCITRAL must be met.
30.1 (i) Harm not adequately repairable by an award of damages is likely to result if themeasure is not ordered (first sentence of Art 26 (3) (a) of UNCITRAL).
30.2 (ii) Such harm substantially outweighs the harm that is likely to result to the party
against whom the measure is directed if the measure is granted (second sentenceof Art 26 (3) (a) of UNCITRAL).

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30.3 (iii) There is a reasonable possibility that the requesting party will succeed on the
merits of the claim (Art 26 (3) (b) of UNCITRAL).
31 Since requirements (i) to (iii) are not met, the TRIBUNAL should not order interim
measures.
＜Materials＞
32 First, with respect to (i), there is no risk of irreparable harm to RED even if the measure
is not taken. This is because, as stated above (see ¶4 to ¶4.3 above), the application of
the Negoland Act makes it impossible for RED to acquire ownership of the Materials,
and it is highly unlikely that the Government of Negoland would transfer ownership ofspace resources according to Negoland’s most trusted science journal (¶22). Therefore,
even if no interim measure was ordered, no harm is likely to result to RED, who cannot
and will not be able to possess the Materials.
33 Second, with respect to (ii), the harm to BLUE if an interim measure is taken would begreater than the harm to RED if the measure is not taken. The reasons are as follows.
33.1 Three days after the agreement with BLACK was reached, BLUE received an
extremely strong request from the Government of Arbitria to sell half of theMaterials (¶24). At that time, the Government of Arbitria warned BLUE that it would
be difficult for BLUE to obtain future support for space development from thegovernment if BLUE refused this request (Exh 13-1). As the space industry is
generally an industry in which government support is essential, it should beunderstood that if BLUE refuses the request, the loss of future government support
will directly affect the survival of BLUE's space business and BLUE would beseverely harmed.
33.2 Thus, there is no risk of harm to RED if no measure is taken, and the harm that
could be caused to BLUE is greater.
34 Finally, with regard to (iii), as discussed in issue 1 and 2, RED’s claims should not be
accepted.
35 Therefore, the TRIBUNAL should not order interim measures regarding the Materials, as
requirements (i), (ii) and (iii) are not met.
＜Data＞
36 First, with respect to (i), there is no risk of irreparable harm to RED even if the measure
is not taken. This is because BLUE intends to sell a copy of the Data to the Governmentof Arbitria while leaving the original in BLUE's possession, and it is possible for RED to
obtain a copy of the Data from BLUE in the future. Therefore, even if no interim measure
was ordered, no irreparable harm would be caused to RED.
37 Second, with respect to (ii), BLUE would suffer tremendous harm if it refused the requestfrom the Government of Arbitria as submitted above (see ¶33.1 above). Therefore, theharm to BLUE if an interim measure is taken would be greater than the harm to RED if
the measure is not taken.
38 Finally, with regard to (iii), as discussed in issues 1 and 2, RED’s submissions should not
be accepted.
39 Therefore, the TRIBUNAL should not order interim measures regarding the Data as
requirements (i), (ii) and (iii) are not met.

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MEMO FOR BLUESATELLITE CASE
ISSUE 1 (SATELLITE CASE)
Issue 1 “Does Red have the obligation to pay US$75 million to Blue?”I.

RED is obliged to pay 75 million USD to BLUE based on Art 3.1 of SATELLITELAUNCH AGREEMENT (Exh 14) (“Exh 14 Launch Agreement”).

I. RED is obliged to pay 75 million USD to BLUE based on Art 3.1 of Exh 14 Launch
Agreement.
40 Art 3.1 of Exh 14 Launch Agreement states “The Client (RED) agrees to pay theContractor (BLUE) a total amount of US$150 million.” As such, the obligation to pay a
total of 150 million USD existed from the creation of the contract.
41 RED’s counsel may argue that the inclusion of “due upon successful orbital insertion” inArt 3.1 of Exh 14 Launch Agreement excuses RED from paying the final 75 million USD.
However, this should be dismissed.
42 When the contract was entered into, it was the intention of the PARTIES for the contract
to conclude upon successful orbital insertion. Hence, “upon successful orbital insertion”
is synonymous with “the conclusion of this contract”. While the mission failed due to aforce majeure event (see ¶45.2 to ¶45.3 below), the contract has concluded
nonetheless. Thus, the TRIBUNAL should order RED to fulfill its obligation to pay the
final 75 million USD.
43 While interpreting Exh 14 Launch Agreement as a whole, the statement “due uponsuccessful orbital insertion” in Art 3.1 of Exh 14 Launch Agreement should not beinterpreted as imposing a condition on RED’s payment of the launch fee. The reasonsare as follows.
43.1 Art 5.1 of Exh 14 Launch Agreement stipulates that “In case of launch failure
attributed to Blue, a subsequent launch will be scheduled at no additional cost, or arefund of 50% of the total contract amount will be provided to Red.” Here, it isreasonable to interpret that the PARTIES decided to include Art 5.1 for a refund of
75 million USD, 50% of the total contract amount of 150 million USD, as assumingthat the total contract amount provided under Art 3.1 to be paid regardless ofwhether the launch is successful or not. This is because, if RED's obligation to pay
the launch fee as provided for in Art 3.1 was conditional on a successful launch,
there would be no need to provide for a refund provision based on a failed launchin Art 5.1. Thus, “due upon successful orbital insertion” stipulated in Art 3.1 of Exh
14 Launch Agreement should not be interpreted as a condition for RED’s payment
obligation.
44 Therefore, RED is obliged to pay 75 million USD to BLUE based on Exh 14 Launch
Agreement.

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ISSUE 2 (SATELLITE CASE)

Issue 2 “Is Blue obliged to pay US$150 million to Red for the failure of launch under theSatellite Launch Agreement?”I.

The TRIBUNAL should not award damages to RED arising from Attachment B of
Exh 14 Launch Agreement (“Attachment B”).
II. The TRIBUNAL should not award RED damages arising from the lost satellite.
III. The TRIBUNAL should not award a refund to RED arising from Art 5.1 of Exh 14
Launch Agreement.
I. The TRIBUNAL should not award damages to RED arising from Attachment B.
45 RED's counsel may claim damages based on Art 3 (b) (iii) of Attachment B. However,BLUE cannot be held liable, because the failure of the Launch Vehicle to deliver Red
Star to the targeted orbit was caused by a force majeure event.
45.1 Art 4 of Attachment B states “Provider (BLUE) shall not be held responsible
for…mission failures attributed to…(b) Acts of God...beyond the reasonable control
of Blue”.
45.2 In this case, the G4 geomagnetic storm caused the failure of the Launch Vehicle todeliver Red Star to the target orbit. This is clear from the fact stating “On 13
January, a geomagnetic storm occurred during the time of the launch. The rocket
carrying the satellite failed to reach its planned orbit due to this effect andre-entered the atmosphere and vanished with the satellite” (¶29).
45.3 The G4 geomagnetic storm should be considered as “Acts of God...beyond thereasonable control of Blue” stipulated in Art 4 (b) of Attachment B. Based on theunderstanding of BLUE’s person who was responsible for the launch, there is noavailable technology or countermeasure that can protect the launch vehicle
systems from a geomagnetic storm of G4 magnitude (Exh 15). Furthermore, there
was no forecast of a strong geomagnetic storm that would make launch impossible(Exh 15). Thus, the geomagnetic storm that occurred in this case should beconsidered as “Acts of God...beyond the control of BLUE” stipulated in Art 4 (b) of
Attachment B.
46 Therefore, the TRIBUNAL should dismiss such a submission if given by RED’s counsel.
II. The TRIBUNAL should not award damages to RED arising from the lost satellite.
47 RED’s counsel may claim damages of 75 million USD arising from the loss of Red Star.
However, this should be dismissed. This is because the PARTIES waived their rights toclaim property damages, pursuant Art 4.3 of Exh 14 Launch Agreement.
48 Art 4.3 of Exh 14 Launch Agreement is a Cross-Waiver clause, which stipulates “Eachparty agrees to bear and assume its own risks of damages to its property…and waives
all claims against the other party for such damages…except in cases of willful
misconduct or gross negligence.” The satellite is the property of RED, and RED has
waived its right to claim damages arising from its loss.
49 Regarding the exception in Art 4.3, there was no willful misconduct or gross negligenceby BLUE. As previously submitted (see ¶45.2 above), the failure was caused by the G4
geomagnetic storm, and not by any reason attributable to BLUE.
49.1 First, BLUE could not have foreseen that the failure would be caused by the G4
geomagnetic storm. This is because there was no forecast of a strong
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MEMO FOR BLUEgeomagnetic storm that would make launch impossible (Exh 15). As such, this did
not constitute willful misconduct or gross negligence.
49.2 Second, there is no fact that the sensor anomaly described in the problem (¶29)
contributed to the failure. Furthermore, BLUE’s employees took corrective actions
regarding this point in line with established protocol (¶29). As such, this did notconstitute willful misconduct or gross negligence.
49.3 Third, the failure was not caused by the drinking of BLUE’s employees. The
drinking happened on January 10th, 2023 (¶28), and the launch was rescheduled
to January 13th, 2023 (¶29). This date is consistent with the launch window asagreed by the PARTIES in Art 2.1 of Exh 14 Launch Agreement. Furthermore,
RED agreed to the change in launch date (¶28). As such, this did not constitutewillful misconduct or gross negligence.
49.4 Thus, the loss of Red Star was caused by the G4 geomagnetic storm, and there
was no willful misconduct or gross negligence by BLUE.
50 Therefore, the TRIBUNAL should dismiss such a submission if given by RED’s counsel.
III. The TRIBUNAL should not award a refund to RED arising from Art 5.1 of Exh 14
Launch Agreement.
51 RED’s counsel may demand a refund of 75 million USD based on Art 5.1 of Exh 14
Launch Agreement. However, this should be dismissed. Art 5.1 states that it is to be
applied “in case of launch failure attributed to Blue”, and the failure of January 13th was
not attributable to BLUE but to the G4 geomagnetic storm (see ¶45.2 above).
52 Therefore, the TRIBUNAL should dismiss such a submission if given by RED’s counsel.
ISSUE 3 (SATELLITE CASE)
Issue 3 “Should Bob Orange be removed?”I.

Bob Orange should be removed based on UNCITRAL Art 12 and Art 13.

I. Bob Orange should be removed based on UNCITRAL Art 12 and Art 13.
53 In order to challenge an arbitrator, the following requirements set forth in UNCITRAL Art
12 (1), Art 12 (2), and Art 13 (1) must be met.
53.1 (i) Circumstances exist that give rise to justifiable doubts as to the arbitrator’s
impartiality or independence (Art 12 (1) of UNCITRAL).
53.2 (ii) Arbitrator is challenged for reasons of which it becomes aware after theappointment has been made (Art 12 (2) of UNCITRAL).
53.3 (iii) A party sends notice of its challenge within 15 days after the circumstances
became known to that party (Art 13 (1) of UNCITRAL Art 13).
54 Since this case fulfills all of the requirements, Bob Orange should be removed.
＜Requirement (i)＞55 The existence of circumstances that give rise to justifiable doubts as to the arbitrator’s
impartiality or independence should be determined on the basis of IBA Guidelines, thegeneral standards often used in international commercial arbitration. IBA Guidelines 2 (c)provides that “Doubts are justifiable if a reasonable third person, having knowledge ofthe relevant fact and circumstances, would reach the conclusion that there is likelihoodthat the arbitrator is influenced by factors other than the merits of the case as presented
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MEMO FOR BLUEby the parties in reaching his or her decision.”
56 In this case, there are circumstances where a reasonable third party, aware of therelevant facts and circumstances, would come to the conclusion that Bob Orange, inreaching his conclusion, may be influenced by factors other than what the PARTIES
submit. The reasons are as follows.
56.1 On September 25th, 2023, Bob Orange gave a lecture entitled “Force Majeure in
Launch Services” at a conference on space law, in which he argued that even a
G1-level geomagnetic storm should be considered as having the potential to leadto a serious accident, and that it would be difficult to accept a claim of force
majeure if one knew that a geomagnetic storm was likely to occur (¶33). In otherwords, his statement is markedly similar to that of the Red Star accident andmirrored many of the same concrete facts.
56.2 Although he stated that he was speaking in general terms, his remarks were sosimilar to the content of this arbitration that all participants at the conference could
easily make the assumption that the Red Star accident had given rise to thisstatement (¶34). Such statements made by Bob Orange in public may lead to his
inability to objectively evaluate the claims and evidence submitted by the PARTIES
in the arbitration, as he may have reservations on making a decision which would
contradict his aforementioned public statement. In other words, there is asignificant risk that Bob Orange will be influenced by factors other than what the
PARTIES submit in respect to the case.
57 Hence, since there are circumstances where a reasonable third party would come to theconclusion that Bob Orange may be influenced by factors other than what the PARTIES
submit in respect to the case in reaching his conclusion, the situation has produced
circumstances where justifiable doubts exist as to his impartiality. Thus, this fulfills
requirement (i).
＜Requirement (ii)＞58 In this case, the reasons to remove Bob Orange became known after his appointment.
59 His speech at the conference was scheduled before his appointment, but only took place
after his appointment (¶33), and this speech was the first time he made his opinion on
force majeure and geomagnetic storms known in public (¶33), thus fulfilling requirement(ii).
＜Requirement (iii)＞
60 In this case, after hearing the comments by Bob Orange, BLUE’s counsel promptly
submitted a notice for his removal as an arbitrator in accordance with UNCITRAL (¶34),
thus fulfilling requirement (iii).

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