For Applicant : Johan Sidklev, Partner Setterwalls, Sweden

1. On the occasion of the 2013 ABA Moscow Dispute Resolution Conference Unfair Competition Between the Judicial System: Moot Court Session on Challenge of Swedish Arbitral Award For Applicant: Johan Sidklev, Partner Setterwalls, Sweden For Respondent: Henrik Fieber, Partner Roschier, Sweden The Moot Court Judge: Jesper Tiberg, Partner Lindahl, Sweden

2. Moot Court Session - Challenge of Arbitral AwardBar-a-Bas’ Request for Relief • Bar-a-Bas requests that the Court of Appeal shall set aside the Arbitration Award both as regards the merits and the costs. • Bar-a-Bas further claims compensation for its legal costs. Bar-a-Bas’ Legal Grounds • The Tribunal has exceeded its mandate • SAA Section 34, 1st para, item 2 • The Tribunal has committed a procedural irregularity which probably has influenced the outcome of the award • SAA Section 34, 1st para, item 6 • Bar-a-Bas requests that the Court of Appeal shall set aside the Arbitration Award both as regards the merits and the costs. • Bar-a-Bas further claims compensation for its legal costs. Bar-a-Bas’ Legal Grounds • The Tribunal has exceededitsmandate • SAA Section 34, 1st para, item 2 • The Tribunal has committed a procedural irregularitywhichprobably has influenced the outcomeof the award • SAA Section 34, 1st para, item 6

3. Moot Court Session - Challenge of Arbitral AwardBar-a-Bas’ Opening Statement The Facts • Force majeure was the only defence invoked by Bar-a-Bas • Interpretation of force majeure under Russian law was determinative • Russian law reports from • Professor Duremar on behalf of the Applicant – well qualified • “Professor” Malvina on behalf of the Respondent – not qualified • The Tribunal denied Bar-a-Bas’ request to replace the incompetent interpreter • The Tribunal relied on Malvina and disposed of Duremar as “unhelpful”

4. Moot Court Session - Challenge of Arbitral AwardBar-a-Bas’ Opening Statement (cont’d) Section 34 of the SAA stipulates: • An award which may not be challenged in accordance with section 36 shall, following an application, be wholly or partially set aside upon motion of a party: […]2. if the arbitrators have made the award after the expiration of the period decided on by the parties, or where the arbitrators have otherwise exceeded their mandate; […] • 6. if, without fault of the party, there otherwise occurred an irregularity in the course of the proceedings which probably influenced the outcome of the case.[our emphasis]

5. Moot Court Session - Challenge of Arbitral AwardBar-a-Bas’ Opening Statement (cont’d) • The decision not to replace the interpreter amounts to exceeding of mandate, alternatively a procedural irregularity, since it is • a breach of the SCC Rules and the SAA; • a breach of the principle of due process • The omission to verify ”Professor” Malvina’s purported expertise is an exceeding of mandate, alternatively, a procedural irregularity since • it is the core function of any tribunal to weigh and assess the evidence presented Conclusion → the Award shall be set aside in its entirety

6. Moot Court Session - Challenge of Arbitral AwardPin-Occhio’s position • Pin-Occhio requests that the Svea Court of Appeal deny the challenge • Pin-Occhio claims compensation for its legal costs in an amount to be stated later Pin-Occhio’s legal grounds • Pin-Occhio denies that the Arbitral Tribunal exceeded its mandate. • Pin-Occhio denies that any procedural irregularities occurred • Pin-Occhio denies any procedural irregularites influenced the outcome of the arbitration.

7. Moot Court Session - Challenge of Arbitral AwardPin Occhio’s Opening Statement The Facts • No force majeure situation under relevant contract or applicable Russian law. • Decree a result of Bar-a-Bas’ failure to obtain export permits. • Expert reports • Professor Malvina – cited contracts and relevant Russian legislation  “very informative and credible” • Professor Duremar – “creative” interpretation of Russian law  “unhelpful” • Translation of cross-examination was professional and accurate

8. Moot Court Session - Challenge of Arbitral AwardPin-Occhio’s Opening Statement • The arbitral tribunal did not exceed its mandate. • No breach of the SCC Rules and the SAA. • No infringement of Bar-a-Bas due process rights • It is for the parties to present their case, but Bar-a-Bas failed to make use of its right to cross-examine • No procedural irregularity • Any procedural irregularity did not effect the outcome of the arbitration Conclusion  the challenge should be denied

9. Moot Court Session - Challenge of Arbitral AwardThe Court’s findings Reasons • The court first looks at the question regarding quality of the translation during the hearing. • Burden of proof on claimant • Possible legal basis is procedural irregularity – not excess of mandate • Must have likely affected the outcome • Material issues are not ground for challenge • Circumstances must be invoked within the challenge period - three months.

10. Moot Court Session - Challenge of Arbitral Award JUDGMENT Action Denied For the above reasons, Bar-a-Bas action should is denied. Bar-a-Bas should compensate Pin-Occhio for costs plus interest from the day hereof until payment is made.

11. Moot Court Session - Challenge of Arbitral AwardFurther comments • If translation would have been truly substandard • Most likely to amount to procedural irregularity – not excess of mandate • Need to show that the irregularity “probably influenced the outcome of the case”. • If excess of mandate – no need to show that what occurred influenced the outcome • Competence of experts • For the parties to present and rebut evidence. • Contradictory proceedings – the tribunal assesses evidence on the basis of what has been presented • Three month time limit • All circumstances must have been presented before the end of the challenge period

12. Thank you! Moscow, 27 September 2013 Johan Sidklev, Henrik Fieber & Jesper Tiberg