L 1030 - R

KUALA LUMPUR REGIONAL CENTRE FOR ARBITRATION

2013

JACK SMALL LTD

CLAIMANT

V.

TON SEN IMPORTS

RESPONDENT

MEMORIAL FOR RESPONDENT

TABLE OF CONTENTS

STATEMENT OF JURISDICTION ........................................................................... 7

QUESTIONS PRESENTED...................................................................................... 8

STATEMENT OF FACTS ......................................................................................... 9

SUMMARY OF PLEADINGS ................................................................................ 10

RESPONDENT’S PLEADINGS ............................................................................. 12

I. SINGAPOREAN LAW SHOULD BE THE PROPER LAW TO APPLY IN

RESOLVING THIS DISPUTE. ....................................................................... 12

A. TWO PARTIES AGREED TO APPLY THE SINGAPOREAN LAW IN

RESOLVING THE DISPUTE. ................................................................. 12

B. THE TRIBUNAL SHOULD UPHOLD THE PARTIES’ CHOICE OF

LAW CLAUSE AS THE KLRCA RULES RECOGNIZES PARTY

AUTONOMY. ......................................................................................... 12

C. THE TRIBUNAL SHOULD RESPECT THE PARTIES’ CHOICE DUE

TO THE PRINCIPLE OF FREEDOM OF CONTRACT. ......................... 13

D. TERRITORIALITY PRINCIPLE AND NATIONALITY PRINCIPLE

REQUIRES TO APPLY SINGAPOREAN LAW. ..................................... 13

E. THE APPLICATION OF SINGAPORE LAW DOES NOT VIOLATE

ANY PUBLIC POLICY. .......................................................................... 13

II. THE CLAIMANT HAS NO PRIVATE RIGHT OF ACTION IN

ACCORDANCE WITH CITES AND SINGAPORE’S ENDANGERED

SPECIES (IMPORT AND EXPORT) ACT. ..................................................... 14

A. CITES DOES NOT PROVIDE OR CREATE A PRIVATE RIGHT OF

ACTION. ................................................................................................. 14

B. ESA DOES NOT PROVIDE OR CREATE A PRIVATE RIGHT OF

ACTION. ................................................................................................. 14

C. AS A BUSINESS ENTITY, THE CLAIMANT HAS NO PRIVATE

RIGHT OF ACTION IN ACCORDANCE WITH CITES AND

SINGAPORE’S ENDANGERED SPECIES (IMPORT AND EXPORT)

ACT. ........................................................................................................ 15

III. USING FUR OF “ENDANGERED ANIMALS” CANNOT LEAD TO THE

CLAIMANT’S LOSS. ..................................................................................... 15

A. THERE IS NO BREACH OF LAW .................................................... 15

B. THERE IS NO CAUSATION BETWEEN THE RESPONDENT’S USE

OF FUR AND THE DAMAGES THE CLAIMANT SUFFERS ............... 18

C. THE CLAIMANT DOES NOT HAVE THE RIGHT TO SUE UNDER

PRIVATE ACTION. ................................................................................. 20

IV. PUTTING REAL FUR INTO FAUX FUR MARKET AND

MISLABELING CANNOT RESULT IN LOSS SUFFERED BY THE

CLAIMANT. ................................................................................................... 20

A. PUTTING REAL FUR INTO FAUX FUR MARKET CANNOT

CONSTITUTE UNFAIR BUSINESS PRACTICE ................................... 21

B. MISLABELING CANNOT CONSTITUTE UNFAIR BUSINESS

PRACTICE. ............................................................................................. 22

C. THE ACTS OF USING REAL FUR IN FAUX FUR MARKET AND

MISLABELING CANNOT LEAD TO THE LOSS OF THE CLAIMANT

23

V. THE ADVERTISEMENT CANNOT LEAD TO THE LOSS OF THE

CLAIMANT .................................................................................................... 23

A. THE ADVERTISEMENT IS NOT FALSE OR MISLEADING........... 23

B. THE ADVERTISEMENT CANNOT RESULT IN THE LOSS OF THE

CLAIMANT ............................................................................................ 26

CONCLUSION AND PRAYER OF RELIEF .......................................................... 27

INDEX OF AUTHORITIES

Statutes, Rules, International Treaties and Covenants

ARBITRATION ACT 2005 (ACT 646)

AUSTRALIAN TRADE PRACTICES ACT

ENDANGERED SPECIES (IMPORT AND EXPORT) ACT

INTERNATIONAL ARBITRATION (AMENDMENT) ACT 2002 (CAP 143A)

KUALA LUMPUR REGIONAL CENTRE FOR ARBITRATION FAST TRACK

RULES 2ND EDITION 2012

THE CLAYTON ACT (US)

UN CONVENTION ON INTERNATIONAL TRADE IN ENDANGERED SPECIES

(CITES)

UNITED NATIONS COMMISSION ON INTERNATIONAL TRADE LAW

ARBITRATION RULES 2010

Cases

Associated General Contractors of California, Inc. v. California State Council of

Carpenters et al, 459 U.S. 519

Deere & Co. v. MTD Prods., 860 F. Supp. 113

Haskell v. Time, Inc., 857 F. Supp. 1392

In Public Prosecutor v Kuah Kok Choon ([2000] SGHC 244)

Sunny Metal & Engineering Pte Ltd v Ng Khim Ming Eric [2007] 3 SLR 782

Yeo Yoke Mui v Ng Liang Poh [1999] 2 SLR(R) 701, F v Chan Tanny [2003] 4 SLR(R)

231

Yorkshire Dale Steamship Co v Minister of War Transport [1942] AC 691 (HL), March

v Stramare (1991) 171 CLR 506

STATEMENT OF JURISDICTION

Jack Small Ltd (“Claimant”) and Ton Sen Imports (“Respondent”) jointly submit the

present dispute to the Kuala Lumpur Regional Centre for Arbitration (“KLRCA”) in

conformity with the KLRCA arbitration rules. All hearings and other proceedings

should be held in Singapore. In accordance with Article 1(2) of the Kuala Lumpur

Regional Centre for Arbitration Fast Track Rules (“the Rules”), each party shall accept

the award by the Arbitral Tribunal as final and binding and shall execute it in good faith

in its entirety. The Respondent has not challenged the authority of the

Arbitral Tribunal.

QUESTIONS PRESENTED

I. WHAT IS THE GOVERNING LAW TO APPLY IN RESOLVING THE DISPUTE?

II. WHETHER THE CLAIMANT HAS A PRIVATE RIGHT OF ACTION IN

ACCORDANCE WITH CITES AND SINGAPORE’S ENDANGERED SPECIES

(IMPORT AND EXPORT) ACT?

III. CAN THE USING FUR OF “ENDANGERED ANIMALS” LEAD TO THE

CLAIMANT’S LOSS? SPECIFICALLY, DOSE THE USING FUR OF

“ENDANGERED ANIMALS” SATISFY THE THREE REQUIREMENTS:

BREACH OF LAW, DAMAGES AND THE CAUSATION BETWEEN THE TWO?

IV. CAN PUTTING REAL FUR INTO FAUX FUR MARKET AND MISLABELING

RESULT IN LOSS SUFFERED BY THE CLAIMANT?

A. CAN PUTTING REAL FUR INTO FAUX FUR MARKET CONSTITUTE

UNFAIR BUSINESS PRACTICE IN THIS PARTICULAR CIRCUMSTANCE?

B. CAN MISLABELING CONSTITUTE UNFAIR BUSINESS PRACTICE?

C. CAN THE CAUSATION BE ESTABLISHED BETWEEN THE ACTS AND THE

LOSS OF CLAIMANT?

V. CAN THE ADVERTISEMENT LEAD TO THE LOSS OF THE CLAIMANT?

A. IS THE ADVERTISEMENT FALSE OR MISLEADING?

B. CAN THE ADVERTISEMENT RESULT IN THE LOSS OF THE CLAIMANT?

STATEMENT OF FACTS

A. Jack Small (“The claimant”) and Ton Sen (“The Respondent”) are Singapore stores,

which sell both real fur and faux fur clothing. China Fur is the Respondent’s supplier in

China.

B. The Respondent imports fur from China Fur and purchases fur clothing, which is

made from fur of the Asian Golden Cat - an endangered animal listed on CITES and by

the IUCN as “Near Threaten.” However, this action cannot lead to claimant’ loss for

no breach of law and no causation between using endangered animal fur and damages.

And fatally, the Claimant has no right to sue under private action. Furthermore, the

Respondent mix these real fur products into faux fur ones and mislabel them. But

putting real fur into faux fur market cannot constitute unfair business practice in this

particular circumstance. Mislabeling is the natural consequence of using real fur in faux

fur market. The causation cannot be established between the acts and the loss of

claimant. The advertisement “having the touch, feel and smell of real fur” is not false or

misleading. It cannot mislead consumers to purchase the products of the respondent.

The respondent is not responsible for the claimant’s loss.

C. The conducts alleged by the claimant made by the respondent cannot lead to a loss

by the claimant. The respondent will refutes the allegations by analyzing each act

made by the claimant. The claimant’s allegations shall be dismissed. The

respondent is not responsible for the loss of the claimant when they use fur of

endangered animals, mislabel and make advertisement.

SUMMARY OF PLEADINGS

I. SINGAPOREAN LAW SHOULD BE THE PROPER LAW TO APPLY IN

RESOLVING THIS DISPUTE.

A. TWO PARTIES AGREED TO APPLY THE SINGAPOREAN LAW IN

RESOLVING THE DISPUTE.

B. THE TRIBUNAL SHOULD UPHOLD THE PARTIES’ CHOICE OF LAW

CLAUSE AS THE KLRCA RULES RECOGNIZES PARTY AUTONOMY.

C. THE TRIBUNAL SHOULD RESPECT THE PARTIES’ CHOICE DUE TO THE

PRINCIPLE OF FREEDOM OF CONTRACT.

D. TERRITORIALITY PRINCIPLE AND NATIONALITY PRINCIPLE REQUIRES

TO APPLY SINGAPOREAN LAW.

E. THE APPLICATION OF SINGAPORE LAW DOES NOT VIOLATE ANY

PUBLIC POLICY.

II. THE CLAIMANT HAS NO PRIVATE RIGHT OF ACTION IN ACCORDANCE

WITH CITES AND SINGAPORE’S ENDANGERED SPECIES (IMPORT AND

EXPORT) ACT.

A. CITES DOES NOT PROVIDE OR CREATE A PRIVATE RIGHT OF ACTION.

B. ESA DOES NOT PROVIDE OR CREATE A PRIVATE RIGHT OF ACTION.

C. AS A BUSINESS ENTITY, THE CLAIMANT HAS NO PRIVATE RIGHT OF

ACTION IN ACCORDANCE WITH CITES AND SINGAPORE’S ENDANGERED

SPECIES (IMPORT AND EXPORT) ACT.

III. USING FUR OF “ENDANGERED ANIMALS” CANNOT LEAD TO THE

CLAIMANT’S LOSS.

A. THERE IS NO BREACH OF LAW

B. THERE IS NO CAUSATION BETWEEN THE RESPONDENT’S USE OF FUR

AND THE DAMAGES THE CLAIMANT SUFFERS

C. THE CLAIMANT DOES NOT HAVE THE RIGHT TO SUE UNDER PRIVATE

ACTION.

IV. PUTTING REAL FUR INTO FAUX FUR MARKET AND MISLABELING

CANNOT RESULT LOSS SUFFERED BY THE CLAIMANT.

A. PUTTING REAL FUR INTO FAUX FUR MARKET CANNOT CONSTITUTE

UNFAIR BUSINESS PRACTICE

B. MISLABELING CANNOT CONSTITUTE UNFAIR BUSINESS PRACTICE.

C. THE ACTS OF USING REAL FUR IN FAUX FUR MARKET AND

MISLABELING CANNOT LEAD TO THE LOSS OF THE CLAIMANT

V. THE ADVERTISEMENT CANNOT LEAD TO THE LOSS OF THE

CLAIMANT

A. THE ADVERTISEMENT IS NOT FALSE OR MISLEADING.

B. THE ADVERTISEMENT CANNOT RESULT IN THE LOSS OF THE

CLAIMANT

RESPONDENT’S PLEADINGS

I. SINGAPOREAN LAW SHOULD BE THE PROPER LAW TO APPLY IN

RESOLVING THIS DISPUTE.

A. Two parties agreed to apply the Singaporean Law in resolving the dispute.

Though the Clarification E shows the parties have not come to an agreement to the

applicable law, it is just true in form to say so. The claimant’s requests and the

respondent’s contentions are both using Singaporean law to argue for their own benefits,

showing that in fact the parties have agreed to choose Singaporean law applicable and

binding.

B. The Tribunal should uphold the parties’ choice of law clause as the KLRCA Rules

recognizes party autonomy.

According to Article 35 of UNCITRAL rules,” The arbitral tribunal shall apply the

rules of law designated by the parties as applicable to the substance of the dispute.” The

article embodies the principle of “party autonomy”, giving the parties the freedom to

select the applicable law in the contract, for which most arbitral tribunals display

considerable respect. No law in this article is strictly forbidden used in KLRCA

arbitration tribunal, so as long as two parties choose Singaporean law as the applicable

law, the tribunal has no reason to reject.

C. The tribunal should respect the parties’ choice due to the principle of freedom of

contract.

Existing law system and international principles stress on the principle of freedom of

contract. One thing of this principle is that the principals have their own right to decide

the content of contract, unless the content is contrary to mandatory law. There is no

compulsory law to say that Singaporean law cannot be used in this case, so it is

completely legal to have this agreement and it should be respected.

D. Territoriality principle and nationality principle requires to apply Singaporean law.

Both the CLAIMANT and RESPONDENT registered in Singapore and the trading

dispute occurs in Singapore. So based on the principles, it is reasonable to use

Singaporean law as binding because the two parties are more used to Singaporean law

and are usually regulated by it.

E. The application of Singapore law does not violate any public policy.

There is no universal definition and application of public policy. It can be understood as

fundamental principles of law that restricts agreement, which has the tendency to be

injurious against the public. The public policy of the forum state must also be

substantially violated by the contract in order to deny its application. As a general

yardstick, when the choice of law purposefully evades the application of laws of the

forum or related countries, it constitutes a violation against public policy.

II. THE CLAIMANT HAS NO PRIVATE RIGHT OF ACTION IN ACCORDANCE

WITH CITES AND SINGAPORE’S ENDANGERED SPECIES (IMPORT AND

EXPORT) ACT.

A. CITES does not provide or create a private right of action.

a) CITES is an international agreement between governments, which is legally

binding on the signatories. Specifically, States have to implement the Convention –

it does not take the place of national laws. Rather it provides a framework to be

respected by each Party, which has to adopt its own domestic legislation to ensure

that CITES is implemented at the national level. And Singapore’s ESA is an Act to

give effect to the CITES.

b) In article I definitions of CITES, it defines explicitly that “Party” means a State for

which the present Convention has entered into force. Therefore, a person or a

private entity has no right of action based on CITES.

B. ESA does not provide or create a private right of action.

a) In accordance with the interpretation of ESA,“Director” means the Director of

Primary Production and includes a Deputy Director of Primary Production and an

Assistant Director of Primary Production;

b) In accordance with ESA, only the Director and authorized officers appointed by the

Director have the power to require scheduled species to be marked, require

information and investigate. Therefore, a person or a private entity has no right of

action based on ESA.

C. As a business entity, the Claimant has no private right of action in accordance

with CITES and Singapore’s Endangered Species (Import and Export) Act.

III. USING FUR OF “ENDANGERED ANIMALS” CANNOT LEAD TO THE

CLAIMANT’S LOSS.

It must satisfy three requirements before the allegation that “using fur of endangered

animals can result in the claimant suffering a loss” can be established. The three

requirements are breach of law, damages and the causation between the two (Yeo Yoke

Mui v Ng Liang Poh [1999] 2 SLR(R) 701, F v Chan Tanny [2003] 4 SLR(R) 231). The

respondent asserts that there is no misconduct and the using of fur of endangered

animals cannot lead to the claimant’s loss.

A. There is no breach of law

It is admitted that Asian Golden Cat is an endangered animal that is recognized in UN

Convention on International Trade in Endangered Species (CITES). It is wrongful to

import Asian Golden Cat without a permit or certificate. However, the respondent is not

aware of importing endangered animals. The fur products were purchased from China

Fur Import & Export Company (hereinafter referred to a China Fur). China Fur’s sales

manager met with the respondent’s Chief Buyer in Singapore where she displayed

samples of its products. The respondent subsequently placed an order by mail for a

large shipment of goods, including the products involved in this Problem. The sample

was not taken from endangered animals. Presenting sample to the buyer is a

commercial custom exercised by all transactions that involve large quantity. It is not

possible for the buyer to exam all the products before importing to Singapore.

Additionally, products that are found using Asian Golden Cat are only a portion of their

products. Others are still using faux fur.

If the price of fur products is lower than before, the respondent is still not aware of

importing endangered animals. Firstly, the price of fur may undergo turbulence time to

time because of various factors. Small decline in price is acceptable to fur buyers.

Secondly, the price of real fur of endangered animals and the price of real fur of other

animals changes at the same time. The respondent cannot distinguish between real fur

of endangered animals and real fur of other animals depending solely on price. Thirdly,

fur of endangered animals should be much more expensive than fur of other animals

because they are rarer. If the respondent is aware of endangered animals, they shall

raise the price of their products in Singapore in order to gain more profit. However,

there is no indication that they distinguish endangered animals in the market and try to

sell at the higher price. Raising the cost while keeping the price of their endangered

animal fur products is not reasonable for a seller, who would always pursue higher

profit. Therefore, the respondent is not aware of importing endangered animals.

In Public Prosecutor v Kuah Kok Choon ([2000] SGHC 244), the court decided that the

accused breaches Section 4 of Endangered Species (Import and Export) Act not only

because he had an extensive knowledge of birds, but also because that he had set up his

own breeding farm and that he had attempted to smuggle various animals through

various countries. More importantly, the endangered species the person possessed was

two live birds. Contrarily, the respondent here does not import Asian Golden Cats for

more profits as analyzed above. Additionally, what the respondent imported was fur

products instead of real animals. The respondent did not contravene CITES on the

ground that CITES’s goal is preserve and protect endangered animals. However, these

animals were dead before they were imported to Singapore. The remaining fur of dead

Asian Golden Cats also indicates that the respondent would not recognized endangered

animals from merely looking at the fur.

In conclusion, there is no breach of CITES as the respondent does not threaten the

preservation and protection of endangered animals because the animals were dead

before import and the respondent does not have knowledge of importing endangered

animals. There is no breach of Section 4 of Endangered Species (Import and Export)

Act because the respondent is not aware of importing endangered animals. There is no

breach of law by the respondent.

B. There is no causation between the respondent’s use of fur and the damages the

claimant suffers.

There is no causation between the two because the consumer cannot simply prefer

buying fur of endangered animals without even distinguishing them among other real

fur products. Namely, consumers cannot tell the difference between fur of endangered

animals and fur of other animals.

Left: Asian Golden Cat. Right: Asian Cat.

Both the claimant and the respondent sell real fur. There are real fur and faux fur market

in Singapore. There is no statute that prevents importing and selling it. Importing and

selling ordinary real fur is legitimate under Singapore law.

Fur buyers have the knowledge and experience in distinguish between real fur and faux

fur. However, it is hard for them to tell what kind of real fur it is in certain products.

Usual animal sources for fur clothing and fur trimmed accessories include fox, rabbit,

mink, beavers, ermine, otters, sable, seals, coyotes, chinchilla, raccoon, and possum.

Animals that have extensive body hair coverage may become the target of real fur

products. A reasonable fur buyer can hardly identify specific animal when examining

the sample.

China fur claims that the clothing was made from Asian Cats, an animal that is not

endangered species under CITES. Asian Golden Cats and Asian Cats are all cats, whose

difference can hardly tell by looking at the fur. Both of them are cats. They both have

wide range of color while they overlap in certain color. Both of them have thick fur.

If a reasonable fur purchaser, who has vast experience in fur, cannot distinguish

between fur of endangered animals and fur of other animals, a reasonable consumer

cannot tell the difference between fur of endangered animals and fur of other animals.

This leaves no difference to the consumers when they purchase real fur products at

store.

If this is the case, consumers would not prefer buying products of endangered animal

fur because the quality is no different from other animal fur and consumers would not

recognize them among other fur products. Thus the respondent could not gain

advantage by selling endangered animal fur and not responsible for the claimant’s loss.

Though the claimant suffers a loss in their profit, the respondent is not responsible for

the loss. There is no breach of law and the causation cannot be established. Therefore,

this assertion that the use of endangered animal fur results in the loss of the claimant

shall be dismissed.

C. The claimant does not have the right to sue under private action.

It is common ground that the judicial remedy cannot encompass every conceivable

harm that can be traced to alleged wrongdoing. The question requires evaluating the

plaintiff's harm, the alleged wrongdoing by the defendants, and the relationship

between them (Associated General Contractors of California, Inc. v. California State

Council of Carpenters et al, 459 U.S. 519). This implies that the claimant may sue if it is

tort and causation is established.

In the present case, there is no breach of law made by the respondent. The respondent

may be negligent in not examining all the importing goods, the main body who

threatens preservation and protection of endangered species is China Fur. There is no

alleged wrongdoing by the respondent and the causation cannot be established.

Therefore, the claimant does not have the right to sue under private action.

IV. PUTTING REAL FUR INTO FAUX FUR MARKET AND MISLABELING

CANNOT RESULT IN LOSS SUFFERED BY THE CLAIMANT.

Putting real fur into faux fur market cannot constitute unfair business practice in this

particular circumstance. Mislabeling is the natural consequence of using real fur in faux

fur market. The causation cannot be established between the acts and the loss of

claimant.

A. Putting real fur into faux fur market cannot constitute unfair business practice

a) The respondent has no knowledge of using real fur.

The respondent has no knowledge that the fur is genuine. Though China Fur claims that

the sample fur products were made from fur of Asian Cats, the respondent is fur

supplier who sells both real fur products and faux fur products. The fact that they use

Asian Cats fur in their real fur products does not imply they also use Asian Cats fur in

their faux fur products.

Furthermore, the respondent may have long relationship with their importer – China

Fur, who may well know their business as a fur importer. The respondent advertises its

products in several other Asian countries (including Japan) and the United States. Its

international sales account for approximately 25% of its profits. So it is not a newly

opened fur supplier in Singapore. As a trade costume, it is usual that they have quite

stable and long-time partnership with importers from other countries. China Fur is one

of them. There shall be reasonable trust between China Fur and the respondent.

b) It is a mistake that the examined products were made from real fur.

The respondent has never sold clothing containing the fur of endangered species in the

past. There is no evidence that it has. Some of the products examined are said to have

real fur. However, it does not imply that all the faux fur products contain real fur.

The respondent sells both real fur and faux fur products. China Fur manufactures

products made from both animal pelts and faux fur. There may be mistake made by

China Fur when delivering the products to the respondent. There may also be mistake

made in the transit of goods. If the claimant alleges that the respondent’s faux fur

products contain real fur, then only the examined products may satisfy this allegation.

Other products are deemed to be faux fur before there is any further evidence. However,

since there is no knowledge by the respondent, putting real fur into faux fur market

cannot be unfair business practice.

B. Mislabeling cannot constitute unfair business practice.

Because the respondent has no knowledge of putting real fur into faux fur market,

mislabeling real fur products as faux fur products is a natural consequence of a

reasonable person. Usually, real fur products, as a kind of luxury, are much more

expensive than faux fur products. A reasonable seller, if he knows that the existence of

real fur, would label the price as high as possible. Only when the seller is not aware of

real fur, may the seller label his products far below its market price. With no knowledge

in his behavior, mislabeling cannot constitute misconduct that tries to disturb the

market and interfere with fair competition.

C. The acts of using real fur in faux fur market and mislabeling cannot lead to the

loss of the claimant

Fur products are luxury. Most people may not know much about quality of fur and the

difference between real fur and faux fur. Ordinary consumers with decent income and

little knowledge about fur products may not distinguish real fur among faux fur

products. A large number of Internet pages on “how to identify real fur and faux fur”

indicate that telling the difference is not a common sense acquired by most of the

consumers. The consumers would not incline to purchase the respondent’s fur products

because all fur products may sound the same to them. Therefore, the claimant cannot

attribute their loss to use of real fur by the respondent.

V. THE ADVERTISEMENT CANNOT LEAD TO THE LOSS OF THE

CLAIMANT

The advertisement “having the touch, feel and smell of real fur” is not false or

misleading. It cannot mislead consumers to purchase the products of the respondent.

The respondent is not responsible for the claimant’s loss.

A. The advertisement is not false or misleading.

For those faux fur products that contain real fur, the advertisement is true because real

fur would definitely have the touch, feel and smell of real fur. For those faux fur

products that do not contain real fur, the advertisement is not false as well. In a case in

which plaintiff's theory of recovery is premised upon a claim of implied falsehood,

plaintiff must demonstrate, by extrinsic evidence, that the challenged commercial tends

to mislead or confuse consumers (Deere & Co. v. MTD Prods., 860 F. Supp. 113).

The advertisement is not misleading either. Factors that a court may have to consider in

connection with an implied falsehood claim are: (1) the general "commercial context"

or sea of information in which consumers are immersed; (2) defendant's intent to

harness public misperception; (3) defendant's prior advertising history; and (4) the

sophistication of the advertising audience. The first, third, and fourth factors should

only be considered after plaintiff has established that a not insubstantial number of

consumers hold the false belief allegedly communicated in the advertisement (Deere &

Co. v. MTD Prods., 860 F. Supp. 113).

Firstly, there is no evidence that a substantial number of consumers hold the false belief.

“Having the touch, feel and smell of real fur” is advertisement designed for faux fur

products whose seller only wants to show that the quality of faux fur is so high that it

can compete with real fur. In the eye of an ordinary consumer, a real fur product would

not label itself as “real fur” in its advertisement. Rather, real fur would advertise

something else, such as reputation and history. Only faux fur products may advertise

this way because the quality of real fur is overall better than faux fur.

Secondly, real fur products do not advertise this way in the fur market. They concern on

better quality, history and high-class. For example, fur supplier “For Henig” advertises

their products like: “Maintain Your Fur Value.” This indicates high quality and

everlasting. “Omagna Furs”: Historic brand of the fashion house offers a search system

designed for everyday life and straightforward sale. “Gimas” points to a new

expression of "luxury" and particularity. So it is very rare that a real fur product

advertise itself as “real fur”.

Thirdly, the respondent does not have intent to mislead consumers. It is rare that a real

fur product advertise itself as “real fur”. The fact that the product is made from real fur

can be easily written on its label of the product. If, as the claimant asserts, the

advertisement is designed for real fur products, then spending thousands of millions of

dollars on simply telling the consumers that “the real fur products are made from real

fur” is not something reasonably understandable for a seller. Namely, there is no need

for the respondent to repeat products’ content in the advertisement. If the respondent

does have intent to mislead, it would follow other advertisement of real fur products.

Lastly, there is no prior advertising history. The sophistication of the advertising

audience should allow the consumers to identify that the advertisement is made for faux

fur products instead of real fur products.

It is true that faux fur products may not have the exact feel, touch and smell of real fur.

However, advertising that amounts to "mere" puffery is not actionable because no

reasonable consumer relies on puffery (Haskell v. Time, Inc., 857 F. Supp. 1392). The

advertisement does not go beyond puffery, therefore it should not be misleading or false

advertisement provided in competition law.

B. The advertisement cannot result in the loss of the claimant

In Sunny Metal & Engineering Pte Ltd v Ng Khim Ming Eric [2007] 3 SLR 782, the

court contented that causation has to satisfy both causation in fact and causation in law.

The test for causation in fact is the “but for” test. “But for” the existence of X, would Y

have occurred? It shall be understood “as the man in the street” would (Yorkshire Dale

Steamship Co v Minister of War Transport [1942] AC 691 (HL), March v Stramare

(1991) 171 CLR 506).

In the present case, the advertisement is a neutral one that does not provide false or

misleading advertisement. The consumer would not be misled in this circumstance.

Therefore, the advertisement is irrelevant to the selling of products of the respondent. It

is irrelevant to the claimant’s loss in profit. The “But for” test fails and the causation in

fact cannot be established.

The advertisement cannot result in the loss of the claimant.

In conclusion, the respondent is not responsible for the loss of the claimant when they

use fur of endangered animals, mislabel and make advertisement.

CONCLUSION AND PRAYER OF RELIEF

Based on the above submissions, Claimant respectfully requests this Tribunal to

arbitrate and declare as follows on the Questions Presented :

I. Singaporean Law should be the proper law to apply in resolving this dispute.

A. Two parties agreed to apply the Singaporean Law in resolving the dispute.

B. The Tribunal should uphold the parties’ choice of law clause as the KLRCA Rules

recognizes party autonomy.

C. The tribunal should respect the parties’ choice due to the principle of freedom of

contract.

D. Territoriality principle and nationality principle requires to apply Singaporean law.

E. The application of Singapore law does not violate any public policy.

II. The Claimant has no private right of action in accordance with CITES and

Singapore’s Endangered Species (Import and Export) Act.

A. CITES does not provide or create a private right of action.

B. ESA does not provide or create a private right of action.

C. As a business entity, the Claimant has no private right of action in accordance with

CITES and Singapore’s Endangered Species (Import and Export) Act.

III. Using fur of “endangered animals” cannot lead to the claimant’s loss.

A. There is no breach of law

B. There is no causation between the respondent’s use of fur and the damages the

claimant suffers

C. The claimant does not have the right to sue under private action.

IV. Putting real fur into faux fur market and mislabeling cannot result loss suffered by

the claimant.

A. Putting real fur into faux fur market cannot constitute unfair business practice

B. Mislabeling cannot constitute unfair business practice.

C. The acts of using real fur in faux fur market and mislabeling cannot lead to the loss

of the claimant

V. The advertisement cannot lead to the loss of the claimant

A. The advertisement is not false or misleading.

B. The advertisement cannot result in the loss of the claimant