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L-1030-C

KUALA LUMPUR REGIONAL CENTRE FOR ARBITRATION

2013

JACK SMALL LTD

CLAIMANT

V.

TON SEN IMPORTS

RESPONDENT

MEMORIAL FOR CLAIMANT

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TABLE OF CONTENTS

INDEX OF AUTHORITIES ...................................................................................... 6

STATEMENT OF JURISDICTION ........................................................................... 8

QUESTIONS PRESENTED...................................................................................... 9

STATEMENT OF FACTS ....................................................................................... 10

SUMMARY OF PLEADINGS ................................................................................. 11

CLAIMANT’S PLEADINGS .................................................................................. 14

I. THE TRIBUNAL HAS JURISDICTION OVER THE PRESENT DISPUTE. 14

A. CLAIMANT AND RESPONDENT HAVE A VALID AND

ENFORCEABLE ARBITRATION AGREEMENT. ................................... 14

B. THE DISPUTE IS WITHIN THE SCOPE OF KLRCA’S ARBITRATION.

.................................................................................................................. 16

C. THE ARBITRATION IS TO BE CONDUCTED IN ACCORDANCE

WITH THE KLRCA RULES, WHICH INCORPORATE THE

MALAYSIAN ARBITRATION ACT. THE MALAYSIAN ARBITRATION

ACT AFFIRMS THAT THE TRIBUNAL SHOULD “DECIDE IN

ACCORDANCE WITH THE TERMS OF THE AGREEMENT”. ............. 16

D. THE TRIBUNAL IS FREE TO DETERMINE ITS OWN

JURISDICTION BY VIRTUE OF THE DOCTRINE OF KOMPETENZ

-KOMPETENZ BASED ON ARTICLE 16 OF THE UNCITRAL MODEL

LAW. ......................................................................................................... 16

II. THE KLRCA ARBITRATION RULES ARE VALID AND ENFORCEABLE

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IN THIS DISPUTE. .......................................................................................... 17

A. THE PARTIES HAVE EXECUTED THE AGREEMENT TO SETTLE

THE DISPUTES BY ARBITRATION IN ACCORDANCE TO THE KLRCA

RULES OF ARBITRATION. ..................................................................... 17

B. THE KLRCA RULES CAN BE USED TO SETTLE THE DISPUTE.... 17

C. THE KLRCA HAS THE JURISDICTION OF THE DISPUTE AND

ADOPTS THE KLRCA RULES AS THE FUNDAMENTAL RULES. ...... 18

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

RESOLVING THIS DISPUTE. ........................................................................ 19

A. TWO PARTIES AGREED TO APPLY THE SINGAPOREAN LAW IN

RESOLVING THE DISPUTE. ................................................................... 19

B. THE TRIBUNAL SHOULD UPHOLD THE PARTIES’ CHOICE OF

LAW CLAUSE AS THE KLRCA RULES RECOGNIZES PARTY

AUTONOMY. ........................................................................................... 19

C. THE TRIBUNAL SHOULD RESPECT THE PARTIES’ CHOICE DUE

TO THE PRINCIPLE OF FREEDOM OF CONTRACT. ........................... 20

D. TERRITORIALITY PRINCIPLE AND NATIONALITY PRINCIPLE

REQUIRES TO APPLY SINGAPOREAN LAW. ....................................... 20

E. THE APPLICATION OF SINGAPORE LAW DOES NOT VIOLATE

ANY PUBLIC POLICY. ............................................................................ 20

IV. THE TRIBUNAL HAS THE AUTHORITY TO IMPOSE THE INJUNCTIVE

RELIEF SOUGHT BY CLAIMANT. ............................................................... 21

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A. ARTICLE 26 OF UNCITRAL RULES GIVE THE TRIBUNAL AN

AUTHORITY TO IMPOSE THE INJUNCTIVE RELIEF BY SAYING

“THE ARBITRAL TRIBUNAL MAY, AT THE REQUEST OF A PARTY,

GRANT INTERIM MEASURE: ................................................................ 21

B. SINCE THE TRIBUNAL DOES HAVE THE JURISDICTION OF THE

DISPUTE, THE AWARD OF THE TRIBUNAL IS BINDING AND

ENFORCEABLE. THERE IS NO WAY FOR ANY OTHER COURT TO

DISMISS THE ARBITRATION DECISION. ............................................ 21

V. THE USE OF REAL FUR BREACHES CITES AND ENDANGERED

SPECIES (IMPORT AND EXPORT) ACT. ...................................................... 22

A. THE USE OF REAL FUR BREACHES CITES. ................................... 22

B. IT ALSO BREACHES ARTICLE 4 OF ENDANGERED SPECIES

(IMPORT AND EXPORT) ACT................................................................. 24

VI. Using endangered animal fur disturbs the fur market .................................. 26

VII. The respondent’s use of real fur of endangered animal results in the claimant

suffering a loss in the fur market. ...................................................................... 26

A. The respondent has an intention or knowledge to import. .................... 26

B. The respondent gains unfair advantages from using real fur. ................ 28

C. The act of the respondent results in the claimant suffering a loss in fur

market........................................................................................................ 29

VIII. The conduct of mislabel and misleading advertising by the respondent results

in the claimant suffering a loss in the fur market. ..................................................... 31

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A. Mislabel and misleading advertisement constitute unfair competition .. 31

B. “No knowledge” cannot change the nature of misconducts of unfair

competition. ............................................................................................... 34

C. Misconducts by the respondent result in the claimant suffering a loss in

fur market. ................................................................................................. 35

D. The claimant can sue under private action ........................................... 36

CONCLUSION AND PRAYER OF RELIEF .......................................................... 38

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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

Singapore Cases

Findlay v Couldwell and Beywood Motors (1976) 5WWR 340, Mikulus v Milo

European Cars Specialists Ltd (1993) CPR (3d)

Freely Pte Ltd v Ong Kaili and others [2010] 2 SLR 1065; [2010] SGHC 60, at [21]

Freely Pte Ltd v Ong Kaili and others [2010] 2 SLR 1065; [2010] SGHC 60, at [21]

Marcol Manufacturers Ltd v Commerce Commission [1991] 2 NZLR 502

Parkdale v. P.U.X.U. [(1982) 41 ALR 1], Global Sportsman v. Mirror [(1984) 55 ALR

25]

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Public Porsecutor v Kuah Kok Choon, [2000] 3 SLR(R) 752, [2000] SGHC 244

Taco Company of Australia Inc v. Taco Bell Pty Limited [1982] ATPR p 43, 752;

(1982) 42 ALR 177 at p 202

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

Australian Cases

Hornsby Building Information Centre Pty Ltd v Sydney Building Information Centre

Ltd (1978) 140 CLR 216 at 228; 18 ALR 639

The U.S Cases

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

Carpenters et al, 459 U.S. 519

Blue Shield of Virginia v McCready 457 U.S. 465

Brunswick Corp. v Pueblo Bowl-o-Mat, Inc., 429 U.S. 477

Hawaii v. Standard Oil Co., 405 U.S. 251

British Cases

Findlay v. Couldwell [(1976), 69 DLR (3d) 320]

Mikulas v. Milo European Cars Specialists Ltd. [(1993), 52 CPR (3d) 1 at 10, aff’d

(1995), 60 CPR (3d) 457 (BCCA)]

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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.

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QUESTIONS PRESENTED

I. WHETHER THE TRIBUNAL HAS JURISDICTION OVER THE PRESENT

DISPUTE?

II. WHETHER THE KLRCA ARBITRATION RULES ARE VALID AND

ENFORCEABLE IN THIS DISPUTE?

III. WHAT IS THE GOVERNING LAW TO APPLY IN RESOLVING THE

DISPUTE?

IV. WHETHER THE TRIBUNAL HAS THE AUTHORITY TO IMPOSE THE

FUTURE INJUNCTIVE RELIEF SOUGHT BY CLAIMANT, SPECIFICALLY,

WHETHER ARTICLE 26 OF THE KLRCA RULES PROVIDES THE AUTHORITY

OF AN INJUNCTION?

V. DOSE THE USE OF REAL FUR BREACH CITES AND ENDANGERED

SPECIES (IMPORT AND EXPORT) ACT?

VI. DOSE USING ENDANGERED ANIMAL FUR DISTURB THE FUR

MARKET?

VII. WHETHER THE RESPONDENT’S USE OF REAL FUR OF ENDANGERED

ANIMAL RESULTS IN THE CLAIMANT SUFFERING A LOSS IN THE FUR

MARKET?

VIII. WHETHER THE CONDUCT OF MISLABEL AND MISLEADING

ADVERTISING BY THE RESPONDENT RESULTS IN THE CLAIMANT

SUFFERING A LOSS IN THE FUR MARKET?

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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 and purchases clothing made from fur of the Asian

Golden Cat, which is an endangered animal listed on CITES and by the IUCN as

“Near Threaten.” Furthermore, the Respondent mix these real fur products into

faux fur ones and mislabel them. By using deceptive and misleading advertising,

namely that its fur products have “the touch, feel and smell of real

fur,” which, while true, is intentionally misleading as it was intended

to – and clearly conveys – the message that the fur is fake BUT, nevertheless

appears to be real.

C. To resolve the dispute amicably, two parties jointly submit the dispute to KLRCA

while not reaching an agreement on governing law. Based on the economic loss

caused by the Respondent, the Claimant has three requests:

a) gain damages from the Respondent to redress the loss;

b) issue and injunction which prohibit the Respondent from continuing carry, promote

and sell clothing containing the fur of any endangered species on the relevant CITES

protected list;

c) to establish a penalty of $500 (US) for each item of clothing

containing the fur of an “endangered species” it sells.

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SUMMARY OF PLEADINGS

I. THE TRIBUNAL HAS JURISDICTION OVER THE PRESENT DISPUTE.

A. CLAIMANT AND RESPONDENT HAVE A VALID AND ENFORCEABLE

ARBITRATION AGREEMENT.

B. THE DISPUTE IS WITHIN THE SCOPE OF KLRCA’S ARBITRATION.

C THE ARBITRATION IS TO BE CONDUCTED IN ACCORDANCE WITH THE

KLRCA RULES, WHICH INCORPORATE THE MALAYSIAN ARBITRATION

ACT.

D. THE TRIBUNAL IS FREE TO DETERMINE ITS OWN JURISDICTION BY

VIRTUE OF THE DOCTRINE OF KOMPETENZ - KOMPETENZ BASED ON

ARTICLE 16 OF THE UNCITRAL MODEL LAW.

II. THE KLRCA ARBITRATION RULES ARE VALID AND ENFORCEABLE IN

THIS DISPUTE.

A. THE PARTIES HAVE EXECUTED THE AGREEMENT TO SETTLE THE

DISPUTES BY ARBITRATION IN ACCORDANCE TO THE KLRCA RULES OF

ARBITRATION.

B. THE KLRCA RULES CAN BE USED TO SETTLE THE DISPUTE.

C. THE KLRCA HAS THE JURISDICTION OF THE DISPUTE AND ADOPTS

THE KLRCA RULES AS THE FUNDAMENTAL RULES.

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III. 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.

IV. THE TRIBUNAL HAS THE AUTHORITY TO IMPOSE THE INJUNCTIVE

RELIEF SOUGHT BY CLAIMANT.

A. ARTICLE 26 OF UNCITRAL RULES GIVE THE TRIBUNAL AN AUTHORITY

TO IMPOSE THE INJUNCTIVE RELIEF BY SAYING “THE ARBITRAL

TRIBUNAL MAY, AT THE REQUEST OF A PARTY, GRANT INTERIM

MEASURE:

B. SINCE THE TRIBUNAL DOES HAVE THE JURISDICTION OF THE DISPUTE,

THE AWARD OF THE TRIBUNAL IS BINDING AND ENFORCEABLE. THERE

IS NO WAY FOR ANY OTHER COURT TO DISMISS THE ARBITRATION

DECISION.

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V. THE USE OF REAL FUR BREACHES CITES AND ENDANGERED SPECIES

(IMPORT AND EXPORT) ACT.

A. THE USE OF REAL FUR BREACHES CITES.

B. IT ALSO BREACHES ARTICLE 4 OF ESA.

VI. USING ENDANGERED ANIMAL FUR DISTURBS THE FUR MARKET.

VII. THE RESPONDENT’S USE OF REAL FUR OF ENDANGERED ANIMAL

RESULTS IN THE CLAIMANT SUFFERING A LOSS IN THE FUR MARKET.

A. THE RESPONDENT HAS AN INTENTION OR KNOWLEDGE TO IMPORT.

B. THE RESPONDENT GAINS UNFAIR ADVANTAGES FROM USING REAL

FUR.

C. THE ACT OF THE RESPONDENT RESULTS IN THE CLAIMANT

SUFFERING A LOSS IN FUR MARKET

VIII. THE CONDUCT OF MISLABEL AND MISLEADING ADVERTISING BY

THE RESPONDENT RESULTS IN THE CLAIMANT SUFFERING A LOSS IN

THE FUR MARKET.

A. MISLABEL AND MISLEADING ADVERTISEMENT CONSTITUTE UNFAIR

COMPETITION.

B. “NO KNOWLEDGE” CANNOT CHANGE THE NATURE OF

MISCONDUCTS OF UNFAIR COMPETITION.

C. MISCONDUCTS BY THE RESPONDENT RESULT IN THE CLAIMANT

SUFFERING A LOSS IN FUR MARKET.

D. THE CLAIMANT CAN SUE UNDER PRIVATE ACTION.

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CLAIMANT’S PLEADINGS

I. THE TRIBUNAL HAS JURISDICTION OVER THE PRESENT DISPUTE.

A. CLAIMANT and RESPONDENT have a valid and enforceable arbitration

agreement.

a) The Parties had an arbitration agreement:

In the given case, the 6th footnote states that the two parties jointly executed the

following agreement:

Any dispute, controversy or claim arising out of or relating to this contract, or the

breach or termination or invalidity thereof shall be settled by arbitration in accordance

to the rules for arbitration of the Kuala Lumpur Regional Centre for Arbitration.

Besides, the 3rd paragraph on page 4 also shows the parties have agreed to submit the

dispute to arbitration in order to save money and to avoid potentially harmful

publicity.

Thus, from the case we can know the two parties do have an arbitration agreement.

b) The arbitration agreement is valid and enforceable as it meets all requirements of

the International Arbitration Act (Amendment) 2012 of Singapore (“IAA”).

According to the IAA, an arbitration agreement is valid when:

(1) The parties validly agreed on arbitration;

By signing an arbitration agreement to settle the dispute, which has already been

proved above, the parties are considered to agree on arbitration and are precluded

from submitting their disputes to any court.

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(2) It is in writing;

It is reasonable to believe the arbitration agreement is in writing.

(3) The dispute between the parties is in respect of a defined legal relationship;

As is shown, the dispute is between the owners & operators of two Singapore

department stores. The two stores are in a relationship of competitors in a same

society and share the same market. In this case, the CLAIMANT is suiting for unfair

business practices, which is based on the competition relationship.

(4) The subject matter is capable of being settled by arbitration;

Most disputes today are considered arbitral, except for those that fall within defined

areas such as criminal law, family law, and patent law. Particularly, IAA provides that

any dispute(s) the parties have agreed to submit to the arbitration under arbitration

agreement is arbitral, unless it is contrary to the public policy to do so. And the

CLAIMANT is requesting for unfair business practice for personal profit. So this

matter is capable of being settled by arbitration.

(5) The agreement is not null and void, inoperable nor incapable of being performed.

The agreement is made to settle the dispute, which is valid and enforceable. In

addition, it is capable to be performed as it meets all the elements need for an

arbitration agreement.

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B. The dispute is within the scope of KLRCA’s arbitration.

Guide to KLRCA arbitration shows “The majority of disputes arise out of

construction, commodities, insurance, energy or any other kind of commercial dispute

can be resolved by arbitration under the KLRCA Arbitration Rules.”

This case is totally a commercial dispute which is requesting for unfair business

practices, so it is just within the scope of the arbitration. Though the parties are unable

to resolve this dispute amicably, this dispute can be settled by binding arbitration.

C. The arbitration is to be conducted in accordance with the KLRCA Rules, which

incorporate the Malaysian Arbitration Act. The Malaysian Arbitration Act affirms that

the tribunal should “decide in accordance with the terms of the agreement”.

According to the agreement, the CLAIMANT and RESPONDENT have agreed to

settle the dispute by submitting the case to KLRCA arbitration. So the tribunal should

respect the principals’ decision to have the jurisdiction.

D. The tribunal is free to determine its own jurisdiction by virtue of the doctrine of

Kompetenz -Kompetenz based on Article 16 of the UNCITRAL Model Law.

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II. THE KLRCA ARBITRATION RULES ARE VALID AND ENFORCEABLE IN

THIS DISPUTE.

A. The parties have executed the agreement to settle the disputes by arbitration in

accordance to the KLRCA rules of arbitration.

In the given case, the 6th footnote states that the two parties jointly executed the

following agreement:

Any dispute, controversy or claim arising out of or relating to this contract, or the

breach or termination or invalidity thereof shall be settled by arbitration in accordance

to the rules for arbitration of the Kuala Lumpur Regional Centre for Arbitration.

So we can see the two parties have reached an agreement to settle the disputes by

arbitration in accordance to the KLRCA rules of arbitration.

B. The KLRCA rules can be used to settle the dispute.

Guide to KLRCA arbitration shows “The majority of disputes arise out of

construction, commodities, insurance, energy or any other kind of commercial dispute

can be resolved by arbitration under the KLRCA Arbitration Rules.”

This case is totally a commercial dispute which is requesting for unfair business

practices, so it is within the scope of the usage of arbitration rules. Thus the dispute

can be resolved by arbitration under the KLRCA Arbitration Rules.

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C. The KLRCA has the jurisdiction of the dispute and adopts the KLRCA rules as the

fundamental rules.

As is shown in pleading I, the KLRCA has the jurisdiction of the dispute. It is

reasonable to use its fundamental rules to be the governing rules under its jurisdiction.

An appropriate rule is quite crucial in arbitration, for the rules are leading it more

effective as well as fair. KLRCA rules are the rules regularly used in KLRCA, so the

arbitrators are more accustomed to using the rule and coming to a binding decision.

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III. 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.

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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

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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.

IV. THE TRIBUNAL HAS THE AUTHORITY TO IMPOSE THE INJUNCTIVE

RELIEF SOUGHT BY CLAIMANT.

A. Article 26 of UNCITRAL rules give the tribunal an authority to impose the

injunctive relief by saying “The arbitral tribunal may, at the request of a party, grant

interim measure:

a) Harm not adequately reparable by an award of damages is likely to result if the

measure is not ordered, and 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;

and

b) There is a reasonable possibility that the requesting party will succeed on the merits

of the claim. The determination on this possibility shall not affect the discretion of the

arbitral tribunal in making any subsequent determination.

B. Since the tribunal does have the jurisdiction of the dispute, the award of the

tribunal is binding and enforceable. There is no way for any other court to dismiss the

arbitration decision.

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V. THE USE OF REAL FUR BREACHES CITES AND ENDANGERED SPECIES

(IMPORT AND EXPORT) ACT.

A. The use of real fur breaches CITES.

In the investigation conducted by the Enforcement Support Office of the CITES

Secretariat, fur of Asian Golden Cat was found in use in the respondent’s “faux” fur

products.

It is labeled as “catopuma temminckii” in the Appendix I of CITES. Thus it is an

endangered animal. Article II of CITES provides, “Appendix I shall include all

species threatened with extinction which are or may be affected by trade. Trade in

specimens of these species must be subject to particularly strict regulation in order not

to endanger further their survival and must only be authorized in exceptional

circumstances.” In Article III, it provides, “The import of any specimen of a species

included in Appendix I shall require the prior grant and presentation of an import

permit and either an export permit or a re-export certificate. An import permit shall

only be granted when the following conditions have been met:

(a) a Scientific Authority of the State of import has advised that the import will be for

purposes which are not detrimental to the survival of the species involved;

(b) a Scientific Authority of the State of import is satisfied that the proposed recipient

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of a living specimen is suitably equipped to house and care for it; and

(c) a Management Authority of the State of import is satisfied that the specimen is not

to be used for primarily commercial purposes.”

This identifies requirements where Asian Golden Cats can be imported to Singapore

as a signatory country. The first one is maintaining survival of specific species. The

second is to hold a permit. In the case, the respondent does not import Asian Golden

Cats in a way to maintain its survival. Instead, the using of real fur implies that the

cats were dead before their fur was taken. Its sales of fur products encourage the

killing of Asian Golden Cats. Thus the first requirement cannot be reached. Where the

second requirement is concerned, the case clearly states that the respondent does not

hold a permit. Furthermore, the act and purpose of the respondent does not meet the

three conditions presented above. Namely, it does not satisfy the conditions to hold a

permit because it is for primarily commercial purposes instead of keeping the species

alive.

The respondent asserts that China Fur assured that the fur in question was acquired

from animals that were raised domestically instead hunted in the wild. This cannot

satisfy exemption presented in Article VII of the Convention. This is because, first, it

may be deemed as specimen in Appendix II (Article IV). However, these species are

subject to strict regulation in order to avoid utilization incompatible with their

survival (Article II) and it requires the prior presentation of either an export permit or

a re-export certificate (Article IV); Second, if there is no permits and certificates, a

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certificate by that Management Authority shall be accepted in lieu of any of the

permits or certificates required (Article VII); third, there is no evidence that any such

representations were made by China Fur.

B. It also breaches Article 4 of Endangered Species (Import and Export) Act.

First of all, Asian Golden Cat is in the Kingdom of Animalia, Phylum of Chordata,

Class of Mammalia, Order of Carnivora, Family of Felidae, Genus of Pardofelis. It

falls within First Schedule as a scheduled animal of this Act (Section 2). The fur of

Asian Golden Cats is identified as scheduled animal part (Section 2) because it also

satisfies Second Schedule of this act. In S 4(1), it says “no person shall import, export,

re-export or introduce from the sea any scheduled species without a permit.” In S 4(2),

it says “no person shall have in his possession, under his control, sell, offer or expose

for sale, or display to the public any scheduled species which has been imported or

introduced from the sea in contravention of subsection (1).”

Since the respondent does not possess a permit, the respondent shall be guilty of

offence and shall be liable on conviction to a fine or to imprisonment under S 4(3) by

contravening SS 4(1) and 4(2). The act authorizes a permit exemption in Section 18.

However, there is no indication that the respondent enjoys exemption.

In Singapore, the Act was enacted to give effect to the provisions of the Convention

on International Trade in Endangered Species of Wild Fauna and Flora ("CITES"),

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which Singapore has ratified. The main purpose of CITES is to protect certain species

of wild fauna and flora against over-exploitation through international trade. A

deterrent sentence is ought to be imposed to reflect how seriously Singapore regards

its obligations under CITES (Public Porsecutor v Kuah Kok Choon, [2000] 3 SLR(R)

752, [2000] SGHC 244). The respondent shall be liable for criminal offence (ibid).

The fact that the imported goods are in format of fur instead of real animal makes the

respondent’s act even more serious. There can be deterrent sentence imposed upon

wrongdoer. It “reflects how seriously Singapore regards its obligations under CITES”.

The idea of CITES is to preserve and protect endangered animals. Moving them from

their habitat to a new environment may jeopardize their chance of survival. The transit

only can trigger a deterrent sentence (see Public Prosecutor v Kuah Kok Choon [2000]

SGHC 244). When a wrongdoer kills the endangered animal and uses its fur for

commercial purpose, the act itself is much more serious that deserves at least a

deterrent sentence. The imported animal fur is in format of fur instead of real animal

cannot serve as an excuse of breach of law.

Additionally, the claimant has brought the case to Public Prosecutor.

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VI. USING ENDANGERED ANIMAL FUR DISTURBS THE FUR MARKET

Fair market encourages economic freedom of participants in the relevant market but

the participants are under obligation of following competition law in its jurisdiction.

Using endangered animal is prohibited under Singapore law, the breach is a detriment

to the fair market and freedom of competition.

VII. THE RESPONDENT’S USE OF REAL FUR OF ENDANGERED ANIMAL

RESULTS IN THE CLAIMANT SUFFERING A LOSS IN THE FUR MARKET.

A. The respondent has an intention or knowledge to import.

Firstly, real fur has better quality in terms of touch, smell and feel. Furthermore, it is

easy for a fur importer to tell the difference between faux fur and real fur. The

difference is obvious. If you feel the difference by rolling the hairs between the finger

and thumb, you would feel smooth and soft in real fur and feels coarse in faux fur. If

you blow on the hairs so that they divide and look at the base, the real fur would often

made up of several layers of thin hairs that form a dense under-wool through which

the longer hairs stick out and the hairs remain attached to the leather (skin), while the

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faux fur is simpler in structure, individual hairs are often the same length and are even

in color. If you push a pin through the base where the fur is attached, the leather of

real fur would resists and the pin is hard to push through, while the pin goes easily

through the base of the faux fur. And if you carefully pull a few hairs from the fur and

hold them to a flame, the real fur would singes and smells like human hair while the

faux fur would melt and smell like burnt plastic and forms small plastic balls at the

ends that feel hard between the finger and thumb. An ordinary reasonable fur importer

would reasonably detect that the fur was made out from real fur.

Secondly, if the respondent do not intent to import real fur of endangered animal in a

way to gain unfair advantages in direct compete with the claimant, the respondent has

knowledge in importing real fur. This is because the price of fur imported is lower

than faux fur. A person responsible for entering into a contract with China Fur is ought

to have extensive knowledge of fur clothing. A reasonable fur importer would know

that the fur in question is somehow different to previous importing goods. The

respondent has knowledge of importing real fur.

Thirdly, the respondent claims that China Fur assured that the clothing was made from

the pelts of “Asian Cats”, who is not an endangered species. However, considering the

respondent’s antecedents and experience with fur left no doubt that he was knowingly

in importing real fur. When actual knowledge cannot be established because of words

from China Fur, willful blindness is treated as actual knowledge. And the identity of

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respondent as a fur supplier constitutes evidence, if not of actual knowledge then

certainly of "willful blindness" to the nature of the fur he was bringing into Singapore

(Public Porsecutor v Kuah Kok Choon, [2000] 3 SLR(R) 752, [2000] SGHC 244).

B. The respondent gains unfair advantages from using real fur.

There are two types of fur in the Singapore fur market - faux fur and real fur.

Singapore is a country that animal rights and animal welfare is highly recognized.

Both the claimant and the respondent are fur suppliers. Both of them sell real fur

products and faux fur products as some consumers prefer to protect animal rights.

Faux fur is ethical and cruelty-free. Dividing fur market into two sub-markets is a way

to respect the choice of consumers.

Still, fur suppliers try to make the best quality of faux fur in order to promote sale.

Different technic are used to improve the touch, feel and smell of faux fur in an

attempt to reduce harm to the animals and attracts consumers at the same time.

However, the respondent uses real fur in faux fur products. The respondent gains

unfair advantages by mixing real fur in faux fur products. Firstly, the quality of real

fur is overall better. Real fur feels smooth and soft and it can easily rolls between the

fingers but faux fur feels coarse. Real fur is much stronger than faux fur. Faux furs are

not able to keep snow from melting and re-freezing on the fiber filaments. Second, the

price of real fur of Asian Golden Cat in this case is lower than faux fur. This allowed

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the respondent to charge less for its real fur products which were in direct competition

with Jack Small’s synthetic fur products. Third, the faux fur products that the claimant

sells appear similar to some of the respondent’s real fur products. Under this fact,

consumers would not cast doubt on this real fur products mixing among other faux fur

products.

Using real fur in faux fur products is intended to mislead consumers who buy faux fur

as only choice. When a product’s overall touch, smell and feel is better than another

because advantages from origin instead of technics, this product would be better

choice for consumers.

The respondent gains unfair advantage from using real fur in faux fur products.

C. The act of the respondent results in the claimant suffering a loss in fur market

Singapore is a country of small size with small population. Its population is 74% of

that of Hong Kong and 25% of that of Beijing. Its size is 65% of the size of Hong

Kong and only 4% of the size of Beijing. The size and population determines that fur

market is in a small size and is susceptible to frequent turbulence. The size and

population of the country implies that there ought to be limited number of fur

operators where any act conducted by each one of them may possibly bring

turbulence to this market.

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The claimant has been operated for more than 70 years. Approximately 60% of its

total sales are fur (real and faux) products. These sales typically produce more than

90 % of its profits. The whole company relies largely on profits of fur products. It can

easily be affected by even small turbulence of fur market.

Competition in commercial law shall guarantee the economic freedom of participants

in the relevant market. Unfair competition happens when the gains of some

participants are conditional on the losses of others and the gains are made in ways

which are illegitimate or unjust. Namely, the actions of some competitors actively

harm the position of others with respect to their ability to compete on equal and fair

terms. Often, "equal terms" is defined as an "equal opportunity" or "equal chance" to

compete.

In this case, importing endangered species as material used in commercial selling is

an illegitimate act and using real fur in faux fur products is an unfair conduct which

puts the respondent in a position of having unfair advantages. In a small market like

Singapore, the claimant, whose business relies largely on fur products, would suffer a

loss as the real fur in the respondent’s faux products gains unfair advantages and

attracts more consumers.

In conclusion, importing and selling endangered species breaches both Singapore law

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and CITES. The breach is a detriment to fair market and freedom of competition.

Using real fur in the faux fur market leads to loss of the claimant.

VIII. THE CONDUCT OF MISLABEL AND MISLEADING ADVERTISING BY

THE RESPONDENT RESULTS IN THE CLAIMANT SUFFERING A LOSS IN

THE FUR MARKET.

The misconduct of mislabeling and using false or misleading advertisement is unfair

business practice identified in several jurisdictions. The intention or knowledge is

irrelevant when conducting these two acts. There is causation between misconduct

and the loss that the claimant suffers. Though misconduct is usually governed by

public sector, the claimant enjoys private action in this circumstance.

A. Mislabel and misleading advertisement constitute unfair competition

unfair competition is a term which may be applied generally to all dishonest or

fraudulent rivalry in trade and commerce, but is particularly applied in the courts of

equity (where it may be restrained by injunction) to the practice of endeavoring to

substitute one’s own goods or products in the markets for those of another, having an

established reputation and extensive sale, by means of imitating or counterfeiting the

name, title, size, shape, or distinctive peculiarities of the article, or the shape, color,

label, wrapper, or general appearance of the package, or other such simulations, the

imitation being carried far enough to mislead the general public or deceive an unwary

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purchaser. (BL.LAW DICT (2nd ED))

Consumer Protection (Fair Trading) Act also defines unfair business practice. When

this previous Bill was read a Second time, Mr. Raymond Lim Siang Keat of the

Minister of State for Trade and Industry said: Singapore has advocated the enactment

of a fair trading law. This is because while some particularly offensive practices like

cheating or intimidation are prohibited under our criminal laws, many errant sales

tactics, such as bait advertising, misrepresentation, and hard selling, are not clearly

covered by any of our existing laws (Freely Pte Ltd v Ong Kaili and others [2010] 2

SLR 1065; [2010] SGHC 60, at [21]). So even though the target of the Act was to

protect consumer, the relevant unfair business practices were defined in this Act. In

Art 4(a), it provides that when a supplier do or say anything, or omit to do or say

anything, if as a result a consumer might reasonably be deceived or misled, then it

constitutes unfair practice for a supplier. In Art 4(b), when a supplier makes a false

claim, it constitutes unfair practice for a supplier. Specific Unfair Practices were

provided in Second Schedule of this Act. The second provision reads: Representing

that goods or services are of a particular standard, quality, grade, style, model, origin

or method of manufacture if they are not.

Similar regulation is provided in Australian Trade Practices Act. Section 52 provides

that: ‘A corporation shall not, in trade or commerce, engage in conduct that is

misleading or deceptive or is likely to mislead or deceive’.

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The respondent’s fur products are labeled as “synthetic” where it is not. The real fur

was labeled as faux fur and put on sale among other faux fur products. It is a false

claim made by the supplier and a dishonest or fraudulent misconduct of the

respondent. Mislabeling can directly mislead consumers who want to buy faux fur by

looking at the label. It satisfies definition or description of unfair competition or

unfair business practice.

Along with mislabeling, the respondent promotes these products as the advertisement

goes – “having the touch, feel and smell of real fur”. In deciding whether the

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

test has to be an objective one (Taco Company of Australia Inc v. Taco Bell Pty

Limited [1982] ATPR p 43, 752; (1982) 42 ALR 177 at p 202). These products were

put on faux fur market while it tries to mislead consumers who want to purchase real

fur. The respondent runs a Singapore department store. All the fur products are

presented in a same store while they have both real fur products and faux fur products.

Consumers have to turn the product inside out to find out whether it is real fur or faux

fur. The truth is some of the consumers would never look at the label inside the

product. However an easier and clearer way is to look at the advertisement right away.

“Having the touch, feel and smell of real fur” would lead consumers to think it a real

fur product. First of all, most of the consumers would not read the advertisement as

reading a bible. Most people would skim the advertisement without a second thought.

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All they see is “real fur”. Second, some would think even though the fur was taken

from dead animal, it would regain the natural touch, feel and smell of real fur after

processing by Ton Sen because it is a good fur supplier. So the fur is real in the eyes

of consumers. It is true that the advertisement may be interpreted otherwise. However,

it is misleading to most of consumers and may deceive them to buy. Thus the

advertisement constitutes unfair competition.

B. “No knowledge” cannot change the nature of misconducts of unfair competition.

The respondent claims that it had no knowledge that the fur was genuine and labels it

as “synthetic”. However, neither the nature of mislabeling nor misleading

advertisement can be changed under this assertion. An intention or knowledge to

mislead or deceive is not a necessary ingredient (Freely Pte Ltd v Ong Kaili and

others [2010] 2 SLR 1065; [2010] SGHC 60, at [21], Parkdale v. P.U.X.U. [(1982) 41

ALR 1], Global Sportsman v. Mirror [(1984) 55 ALR 25], Findlay v Couldwell and

Beywood Motors (1976) 5WWR 340, Mikulus v Milo European Cars Specialists Ltd

(1993) CPR (3d) 1, Marcol Manufacturers Ltd v Commerce Commission [1991] 2

NZLR 502). It is the same in other jurisdiction. It is clear that, in British Columbia, a

deceptive act or practice can occur notwithstanding the absence of an intention on the

part of a supplier to deceive or mislead a consumer (Findlay v. Couldwell [(1976), 69

DLR (3d) 320], Mikulas v. Milo European Cars Specialists Ltd. [(1993), 52 CPR (3d)

1 at 10, aff’d (1995), 60 CPR (3d) 457 (BCCA)]). Australia has the same rule

(Hornsby Building Information Centre Pty Ltd v Sydney Building Information Centre

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Ltd (1978) 140 CLR 216 at 228; 18 ALR 639). The respondent’s assertion of “no

knowledge” cannot change the nature of their misconduct of unfair competition.

C. Misconducts by the respondent result in the claimant suffering a loss in fur

market.

Real fur was labeled as “synthetic” and went into direct compete with other faux fur

products. Real fur has natural advantages that high quality faux fur cannot match with.

Therefore, mislabeling can attracts more consumers to buy the faux fur products of

the respondent. In a small fur market like Singapore, the claimant, who relies his

profits on fur products, would suffer a loss because of mislabeling in the faux fur

market.

As said above, the misleading advertisement would lead most of consumers to think

the products as real fur products. An Internet poll posts like “would you wear faux fur

in Singapore” indicates that only 27.45% of the Internet user would say yes while

56.86% of them say no (www.msglitzy.com/2010/01/poll-fur-in-singapore/). This

implies that even though animal welfare is highly recognized in Singapore, there are

more consumers who want to purchase real fur. Among the people who are misled, the

27.45% misled consumers (who want to buy faux fur products) may turn away to

other store while the 56.86% misled consumers (who want to buy real fur products)

would be attracted by the respondent’s advertising. Because there are more people

favoring in real fur products, the seemingly increase in the number of “real fur”

products would attracts more consumers because there are more styles, color and

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design of fur products. Thus in the real fur market, the respondent again gains unfair

advantages by posting misleading advertisement. Because of market size, the claimant

would suffer a loss in the real fur market.

In conclusion, consumers who were not misled or looked at the label would prefer

buying faux products of the respondent because of the natural advantages of real fur.

Consumers who were misled by the misleading advertisement and did not look at the

label would prefer to go the respondent’s department store because there are more

choices for them and the respondent therefore gains more profit. The result is the

claimant’s sales of fur products have dropped 70%.

D. The claimant can sue under private action

Section 4 of the Clayton Act (US) provides: “Any person who shall be injured in his

business or property by reason of anything forbidden in the antitrust laws may sue

therefor in any district court of the United States in the district in which the defendant

resides or is found or has an agent, without respect to the amount in controversy, and

shall recover threefold the damages by him sustained, and the cost of suit, including a

reasonable attorney's fee.”

However, the Congress did not intend the antitrust laws to provide a remedy in

damages for all injuries that might conceivably be traced to an antitrust violation

(Hawaii v. Standard Oil Co., 405 U.S. 251). The Congress intended the Act to be

construed in the light of its common-law background (Associated General Contractors

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of California, Inc. v. California State Council of Carpenters et al, 459 U.S. 519). In

determining whether the claimant here can bring a private action lies in the common

law and relevant factor such as plaintiff's harm, the alleged wrongdoing by the

defendants, the relationship between them, casual connection, improper motives and

nature of the plaintiff’s alleged injury (Associated General Contractors of California,

Inc. v. California State Council of Carpenters et al, 459 U.S. 519, Blue Shield of

Virginia v McCready 457 U.S. 465, Brunswick Corp. v Pueblo Bowl-o-Mat, Inc., 429

U.S. 477).

In the present case, the claimant and the respondent are competitor in Singapore fur

market who can be affected easily by any misconduct of their counterpart. The

respondent’s act of mislabeling and misleading advertisement is unfair business

practice recognized in Singapore law and law from other jurisdiction. The respondent

has an intention or knowledge to misplace real fur in faux fur in order to gain unfair

advantages. The causation between the act of respondent and the loss of the claimant

is direct and consequential. Therefore, the claimant shall have the right to bring

private action on common law ground.

In conclusion, the claimant is entitled to seek damages from the respondent’s

misconducts.

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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. The tribunal has jurisdiction over the present dispute.

II. The KLRCA arbitration rules are valid and enforceable in this dispute.

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

IV. The tribunal has the authority to impose the injunctive relief sought by claimant.

V. The use of real fur breaches CITES and Endangered Species (Import and Export)

Act.

VI. Using endangered animal fur disturbs the fur market.

VII. The respondent’s use of real fur of endangered animal results in the claimant

suffering a loss in the fur market.

A. The respondent has an intention or knowledge to import.

B. The respondent gains unfair advantages from using real fur.

C. The act of the respondent results in the claimant suffering a loss in fur market

VIII. The conduct of mislabel and misleading advertising by the respondent results

in the claimant suffering a loss in the fur market.

A. Mislabel and misleading advertisement constitute unfair competition.

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B. “No knowledge” cannot change the nature of misconducts of unfair competition.

C. Misconducts by the respondent result in the claimant suffering a loss in fur

market.

D. The claimant can sue under private action.