William C. Vis International Commercial Arbitration.
The purpose of the moot is to foster the study of international commercial law and arbitration, while providing practical training for law students in resolving international business disputes. It is a clinical tool meant to engage students in the business community's preferred mode of resolving international commercial disputes: namely, arbitration.
Basic background information on the 33rd Vis Moot may be found through this link.
Case No. ARB1991/25/VIS.
Arbitration Commenced July 31, 2025 (According to the Singapore International Arbitration Rules, August 2016, Rule 3.3.)
Claimant:
Orchis Worldwide Ltd., from Mediterrano, Seller
Orchis grows and sells orchids. It specializes in rare orchid cultivation (notably the Vanilla Planifolia Mediterraniensis or the "Vanilla orchid.")
Respondent:
Darwin Natural Foods plc, from Equatoriana, Buyer
Darwin is part of a group of companies that produces natural food and spices. Vanilla is its most profitable product.
It acquired Botanical Garden.
Sales agreement, dated December 1, 2021; signed by Orchis and Botanical Garden.
Modification, on Aug. 25, 2022, into a new sales agreement between Orchis and Darwin, for the delivery of 3,000 +/= 10% Vanilla Orchids by March of 2024.
Orchis claims it validly terminated the contract on March 1, 2024, due to Darwin's failure to perform
Additional Facts:
The Vanilla Orchard is listed under CITIES, as a highly regulated species. On Feb. 1, 2024, the plant was moved from Appendix II to Appendix I of CITIES, triggering stricter controls on trade and import/export permits.
Darwin claimed an inability to perform by the agreed March 2024 delivery date, based on the CITIES change and Darwin's fear of not being able to obtain import permits.
Orchis arranged a cover sale (substitute sale) to another buyer, Herbal Cosmetics, for delivery and claimed damages against Darwin for non-performance of contractual obligations.
Procedural Information
Singapore International Arbitration Center rules apply.
(This agreement replaces the earlier agreement between Seller and the Botanical Gardens of Equatoriana, concluded on Dec. 1, 2021).
Sales Agreement, dated Aug. 25, 2022; signed by the parties.
Clause 3
Price. The price per Orchid is USD 2,000.
Clause 4
Delivery schedule. Shipments shall be made between Jan. 1, 2024 and March 31, 2024, on the date determined by Buyer....Time is of the essence, subject to Clause 12 (Force Majeure).
Clause 5: Export/Import & Compliance
5.1. Phytosanitary and CITIES. The Seller shall obtain and provide with each Shipment (a) an official phytosanitary certificate issued by a competent NPPO in Mediterraneo and b) CITES export permits where required for any listed orchid species. Buyer shall obtain all import permits for the country of destination.
Clause 9: Limitation of Liability
9.2 Exclusions. Neither party is liable for indirect, incidental, special or consequential losses, including loss of profit, anticipated savings, business or reputation, arising out of or in connection with this Agreement, except to the extent caused by fraud or willful misconduct.
Clause 12: Force Majeure
12.1. Events. A Party is not liable for failure or delay caused by events beyond reasonable control, including but not limited to acts of God, extreme weather, epidemics/pandemics, quarantine restrictions, embargoes, government measures, strikes, war, civil unrest, natural disasters, and other carrier wide-disruptions.
12.2. Notice & Mitigation. the affected party shall notify the other within 5 days of becoming aware and use reasonable endeavors to mitigate the effects. Performance times are extended accordingly.
Arbitration Rules
Clause 15...Any dispute arising out of....shall be referred to and finally resolved by the Singapore International Arbitration Centre (SIAC) in accordance with the current Arbitration Rules of the Singapore International Arbitration Centre.
Note: In August of 2022, the SIAC Arbitration Rules, 6th edition (2016) were in force. They were replaced by the 7th edition (2025) rules on Jan. 1, 2025.
Language of Arbitration:
Clause 15 of Sales Agreement's Dispute Resolution Clause English
Place of Arbitration:
Clause 15 of Sales Agreement's Dispute Resolution Clause Danubia
_________________________________________
SIAC Procedural Order 1: Oct. 9, 2025 (pp. 52 to 53)
The SIAC made the following order:
In their next submissions and at the Oral Hearing in Vindobona (Hong Kong) the Parties are required to address the following issues:
a. Which version of the SIAC Arbitration Rules applies to this arbitration?
Sales Agreement, Clause 15. Is "current" judged by the time of the contract or the time of the dispute? See Claimant Exhibit C7.
v. Rule 1.5 of the SIAC Rules 2025 which provides : “These Rules shall come into force on 1 January 2025 and, unless otherwise agreed by the parties, shall apply to any arbitration which is commenced on or after that date”.
b. Should the Arbitral Tribunal order the the requested disclosure of the agreements under the SIAC Rules 2016 or Rule 38.4 SIAC Rules 2025?
Orchis: "The SIAC Rules 2016 do not grant the Arbitral Tribunal the power to order the disclosure of an existing third-party funding agreement."
Orchis has the financial support of AtJ-Funding, a third-party funder and adverse risk coverage with LitSure. Orchis disclosed this fact in compliance with Rule 38.1 SIAC Rules 2025, without any additional details.
SIAC Rules 2016. The SIAC Practice Note on Arbitrator Conduct in Cases Involving External Funding, issued in March 2017, provides guidance on the disclosure of third-party funding to prevent conflicts of interest
Rule 38.1 SIAC Rules 2025. A party shall disclose the existence of any third-party funding agreement and the identity and contact details of the third-party funder in its Notice or Response or as soon as practicable upon concluding a third-party funding agreement.
Rule 38.4 SIAC Rules 2025. The Tribunal may order the disclosure of the information referred to in Rule 38.1 and, after considering the views of the parties, may make such orders for disclosure in respect of the third-party funding agreement as it sees fit including in respect of details of the third-party funder’s interest in the outcome of the proceedings and whether the third-party funder has committed to undertake adverse costs liability.
Article on the differences between the 2016 SIAC Rules and the 2025 SIAC Rules.
c. Is Claimant (Orchis) entitled to damages due to a breach of contract by Respondent (Darwin) which is not excused by Article 79 CISG?
(1) A party is not liable for a failure to perform any of his obligations if he proves that the failure was due to an impediment beyond his control and that he could not reasonably be expected to have taken the impediment into account at the time of the conclusion of the contract or to have avoided or overcome it or its consequences.
(2) If the party's failure is due to the failure by a third person whom he has engaged to perform the whole or a part of the contract, that party is exempt from liability only if:
(a) he is exempt under the preceding paragraph; and
(b) the person whom he has so engaged would be so exempt if the provisions of that paragraph were applied to him.
(3) The exemption provided by this article has effect for the period during which the impediment exists.
(4) The party who fails to perform must give notice to the other party of the impediment and its effect on his ability to perform. If the notice is not received by the other party within a reasonable time after the party who fails to perform knew or ought to have known of the impediment, he is liable for damages resulting from such non-receipt.
(5) Nothing in this article prevents either party from exercising any right other than to claim damages under this Convention.
Orchis might argue: the CITIES change is foreseeable and manageable, contract allocated compliance risk to Darwin, Darwin should have sought proper termination and reasonable sale substitute, CISG is supreme over inconsistent limitation clauses
Darwin might argue: the CITIES change is a genuine supervening impediment, good faith and notice compliance, challenge the time and reasonableness of substitute sale and avoidance, argue that damages are contractually limited.
d. In case Claimant (Orchis) should be entitled to damages, can the damages be calculated on the basis of Article 75 CISG in the way it is done by Claimaint (Orchis), i.e. taking the difference between the price paid by Herbal Cosmetics for the delivery of the 3,300 Orchids on May 14, 2024 and the price Respondent (Darwin) would have paid for the same amount under the Agreement.
Orchis might argue: Yes, loss equals price difference + consequential losses. (CISG Art. 75, 74).
Darwin might argue: No, the substitute sale is unreasonable and premature, and damages are speculative and outside the limitation clause
No further questions going to the merits of the claims should be addressed at this stage of the proceedings, in particular no questions relating to the claim for damages.
