th lawasia international moot at the thai...

B1401-C

THE 9TH LAWASIA INTERNATIONAL MOOT

AT THE THAI ARBITRATION INSTITUTE

BANGKOK

2014

BETWEEN

INTERNATIONAL COLLECTIVE IN SUPPORT OF TEXTILE WORKERS

Claimant

v.

SPEAR SHIRTS, INC.

Respondent

MEMORIAL FOR CLAIMANT

i

TABLE OF CONTENTS

INDEX OF AUTHORITIES ..........................................................................................iii

STATEMENT OF JURISDICTION ...............................................................................1

QUESTIONS PRESENTED ............................................................................................2

STATEMENT OF FACTS ...............................................................................................3

SUMMARY OF PLEADINGS ........................................................................................7

CLAIMANT’S PLEADINGS ..........................................................................................9

I. ALL INJURED VICTIMS AND FAMILIES OF THE DECEASED VICTIMS SHOULD BE JOINED AS CLAIMANTS IN A SINGLE, COLLECTIVE ARBITRATION. .........................................................................................................9

A. The Injured Victims and Families of Deceased Mae Sot Workers Are Entitled

to Appoint Representatives. ......................................................................................9 B. The Representative Claimants Can Be Consolidated into a Single Arbitration

Proceeding Under the KLRCA Rules. .....................................................................9 C. The Interests of All Victims and the Families of Deceased Workers Should Be

Represented in a Collective Arbitration. ...............................................................10 D. Class Arbitration Promotes the Interests of Justice and Administrative

Efficiency. .................................................................................................................13 II. Thai Laws Should Govern the Issue of Whether Spear Shirts is Liable for the

Injuries and Deaths of Mae Sot Employees. ...........................................................14 A. The Terms of the Standard Purchase Order Do Not Designate the Applicable

Law in this Dispute. .................................................................................................14 B. The Parties have Expressly Agreed to Arbitration in Thailand, Thereby Tacitly

Choosing to Resolve Substantive Choice of Law Issues with Thai Conflict of Law Provisions. ........................................................................................................15

III. SPEAR SHIRTS IS LIABLE FOR THE DEATHS AND INJURIES OF MAE

SOT CLOTHING EMPLOYEES. ..........................................................................17

A. Mae Sot Clothing Violated the Factory Act and the Occupational Safety, Health and Environment Act. ...............................................................................17

ii

i. The Mae Sot Clothing Factory was Subject to Safety Standards Prescribed in Ministerial Regulations. .....................................................................................17

ii. Mae Sot Violated OSHEA by Failing to Comply with Ministerial Regulations.18

B. Spear Shirts Violated OSHEA by Failing to Comply with Ministerial

Regulations. ..............................................................................................................19

i. Spear Shirts Violated OSHEA because it assumed a supervisory role over Mae Sot Clothing. ......................................................................................................19

ii. Alternatively, Spear Shirts shared equally with Mae Sot Clothing an obligation

to comply with ministerial regulations its contractor. .......................................22 C. Spears Shirts is Liable for the Claimant’s Injuries Under the Thai Civil and

Commercial Code. ...................................................................................................23 D. Alternatively, Spear Shirts’ is Liable Under the Thai Civil and Commercial

Code Under a Negligence Theory. .........................................................................24 E. Alternatively, Spear Shirts is liable for the claimants’ injuries and Deaths

Under California Law. ............................................................................................25

i. Spear Shirts Negligently Retained Control of Mae Sot. ....................................25

IV. CLAIMANTS ARE ENTITLED TO COMPENSATION FOR THE INJURIES AND DEATHS CAUSED BY SPEAR SHIRTS. ....................................................27

A. The KLRCA Rules And Public Policy Allow For Claimant’s Requested

Remedies ...................................................................................................................27 B. Thai Law Should Determine What Remedies Are Available for Claimants. ....28

C. Claimants Should Receive Restitution For Inability to Work In the Present and

the Future, Third Party Compensation, and Non-Pecuniary Damages. ............29 D. The Claimants are Entitled to Restitution for Inability to Work. ......................29

E. The Families of Deceased Workers are Entitled to Third Party Compensation. .........................................................................................................30

F. All Claimant’s are Entitled to Non-Pecuniary Damages. ....................................31

PRAYER FOR RELIEF ................................................................................................32

iii

INDEX OF AUTHORITIES

International Treaties

New York Convention– pg. 28

Arbitral Institution Rules

KLRCA Rules– pgs. 9, 10, 11, 14, 15, 27, 28

Cases

Green Tree Financial Corp. v. Bazzle, 539 U.S. 444, 452–53 (2003)– pg. 10

Hooker v. Department of Trans., 27 Cal. 4th 198, 212 (2002)– pg. 25

Stolt-Nielsen v. Animalfeeds, Int’l Corp., 559 U.S. ___ (2010)– pg. 12

Valencia v. Bancolombia, Arbitral Tribunal from the Bogotá Chamber of Commerce (24 April 2003)– pgs. 11, 12

Thai Acts

Conflict of Laws Act, B.E. 2481 (1938)– pg. 16

Factory Act, B.E. 2535 (1992)– pgs. 17, 18

Thai Civil and Commercial Code

Section 420– pg. 24






iv

Occupational Safety, Health and Environment Act B.E. 2254 (2011)

Section 4– pg. 19

Section 6– pg. 18

Section 8– pg. 18



Thai Ministerial Regulations

Ministerial Regulation on the Standard for Administration and Management of Occupational Safety, Health and Environment in relation to Fire Prevention and Control, B.E. 2555 (A.D. 2012) (THA-2012-R-96389)– pg. 18 Scholarly Articles

Belden Premarj, The Choices of Law – Better Safe Than Sorry: The Malaysian Arbitration Perspective– pg. 15 Chukiert Ratanachainchan, “A Primer on the Thai Draft Law on Class Action”– pg. 13

David M. Engel, Lumping as Default in Tort Cases: The Cultural Interpretation of Injury– pg. 13 David Engle & Jaruwan Engel, Tort, Custom, and Karma: Globalization and Legal Consciousness in Thailand– pg. 14 Dr. Loukas Mistelis, International Arbitration - Corporate Attitudes and Practices - 12 Perceptions Tested: Myths, Data and Analysis Research Report – pg. 28 S.I. Strong, “Enforcing Class Arbitration in the International Sphere: Due Process and Public Policy Concerns”– pgs. 10, 11 Online Resources ASEAN-OSHNET: ASEAN Occupational Safety and Health Network– pg. 18

1

STATEMENT OF JURISDICTION

The parties have agreed to submit to binding arbitration in Bangkok, Thailand

under the supervision of the Thai Arbitration Institute and in accordance with the Kuala

Lumpur Regional Centre for Arbitration Rules.1 This Tribunal, therefore, has jurisdiction

to decide this dispute.

1 Official Moot Problem at 1; Clarifications at C-1.

2

QUESTIONS PRESENTED

1. Whether the victims and surviving relatives of deceased Mae Sot Clothing workers be

joined in a single arbitration?

2. Whether Spear Shirts, Inc., as a customer, be held legally responsible for the injuries

and deaths of Mae Sot Clothing Ltd?

3. What remedies are available to the claimants if Spear Shirts, Inc. is obligated to

compensate the claimants for their injuries or deaths?

3

STATEMENT OF FACTS

Mae Sot Clothing Ltd. (“Mae Sot Clothing”) is a clothing manufacturing

company that produces apparel for some of the world’s most famous brands.2 As its

name suggests, Mae Sot Clothing’s factory is located in Mae Sot, Thailand—a town that

shares its Western border with Myanmar.3 As such, Mae Sot Clothing employs nearly

100,000 workers, over 60,000 of which are from Myanmar.4

Spear Shirts, Inc. (“Spear Shirts”) is a clothing company with its principal place

of business in Los Angeles, California USA.5 Spear Shirts sells its clothing wholesale

throughout the United States and much of the world.6 About ten years ago, Spear Shirts

began purchasing shirts from Mae Sot Clothing.7 Mae Sot Clothing is Spear Shirts’

largest supplier of men’s shirts and conversely Spear Shirts is Mae Sot Clothing’s biggest

customer.8 Although Spear Shirts has no contractual right or an ownership interest in Mae

Sot Clothing,9 Spear Shirts has suggested appointees for Mae Sot Clothing directors and

has made suggestions related to Mae Sot Clothing’s production deadlines and quality

control.10 Mae Sot Clothing has consistently adopted Spear Shirts’ suggestions.11

Furthermore, Mae Sot Clothing consented to Spear Shirt’s standard purchase

order and agreement.12 This standard purchase order states that “[a]ll transactions

between the [Spear Shirts] and [Mae Sot Clothing] are governed by the laws of

2 Official Moot Problem at 1. 3 Id. 4 Id. 5 Id. 6 Id. 7 Clarifications to the Moot Problem at B-4 [hereinafter “Clarifications”] 8 Clarifications at B-6 and B-9. 9 Clarification at B-2. 10 Clarifications at B-3; Further Clarifications at E-1. 11 Clarifications at B-3. 12 Clarifications to the Moot Problem, Attachment #1, Applicable Law [hereinafter “Standard Purchase Order”].

4

California.”13 The terms of the standard purchase order and agreement further indicate

that any claims or controversies arising from the sale of garments by Mae Sot Clothing to

Spear Shirts was subject to the jurisdiction of the courts of Los Angeles County,

California USA.14 Notwithstanding the standard purchase order’s choice of law and

forum selection clauses, the scope of the purchase order was expressly limited such that it

“shall not in any way diminish or limit any arbitration agreement subsequently agreed to

by both parties.”15

In 2013, a Spear Shirts employee, Theodore Snowden, visited the Mae Sot

Clothing factory while vacationing in Thailand.16 Snowden is the assistant to Spear

Shirt’s Vice President in charge of purchasing, Joe Baydon.17 Snowden visited the Mae

Sot Clothing factory at Baydon’s request and subsequently reported the factory’s

conditions in a text message to Baydon.18 The text message noted the following: “The

[factory is] a ‘sweat shop’ – they work their employees to death. And there is stuff –

trolls of fabric and carts filled with partly finished shirts all over the floor, I was

constantly tripping over something like I do back in the office – lucky I didn’t break my

neck!”19 Snowden continued, “The girls seem really young . . . but [the general manager]

assured me they were all above the legal age.”20 Baydon forwarded Snowden’s message

to the president of Spear Shirts.21

13 Standard Purchase Order, Applicable Law. 14Id. 15 Id. 16 Official Moot Problem at 2. 17 Id. 18 Id. 19 Id. 20 Id. 21 Further Clarifications at A-5.

5

On October 15, 2013 a textile machine overheated igniting a fire that eventually

engulfed the Mae Sot Clothing factory.22 Sixty women were killed, and more than 100

were seriously injured in the fire.23 All victims of the fire were from Myanmar.24 The fire

destroyed Mae Sot Clothing’s employment and maintenance records.25 After the fire, a

fire inspector reported that fire extinguishers in the factory were non-functional because

they were rusty and corroded.26 A report from an independent auditor later concluded

that working conditions in the factory such as obstructed pathways and non-functioning

fire extinguishers were a “major factor” contributing to the injuries and deaths.27

The claimants in this dispute consist of victims injured in the factory fire and the

surviving families of the Mae Sot Clothing workers who perished in the fire.28 The

International Collective in Support of Textile Workers (“ICSTW”), a non-governmental

organization advocacy group, represents the claimants in this arbitration.29 The injured

and the numerous family members of deceased workers selected amongst themselves a

fifteen-member committee to serve as their representatives.30 Thirteen members of that

committee signed under oath statements granting ICSTW “full authority” to represent the

victims and their families in its dispute with Spear Shirts.31

The claimants seek compensation from the Respondent, Spear Shirts, for the

injuries and deaths caused by the October 2013 factory fire. Although Spear Shirts

carries an insurance policy that covers injuries or deaths of its employers, the policy does

22 Official Moot Problem at 2. 23 Id. 24 Id. 25 Further Clarifications to the Moot Problem at A-1 and A-3 [hereinafter “Further Clarifications”] 26 Official Moot Problem 2 fn 3. 27 Official Moot Problem at 2 fn 3 and 3. 28 Id. 29 Official Moot Problem at 1. 30 Further Clarifications D-1 31 Id.

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not cover its supplier’s employees.32 The parties have agreed to submit this dispute to

binding arbitration in Bangkok, Thailand.33 Pursuant to that agreement, the dispute is

now before the Thai Arbitration Institute.34

32 Official Moot Problem at 2. 33 Official Moot Problem at 5. 34 Clarifications, C-1.

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SUMMARY OF THE PLEADINGS

I. ALL INJURED VICTIMS AND FAMILIES OF THE DECEASED VICTIMS

SHOULD BE JOINED AS CLAIMANTS IN A SINGLE, COLLECTIVE

ARBITRATION. The parties’ arbitration agreement is undisputed. The parties

designated Bangkok as the place of arbitration and proceedings will be administered

in accordance with the KLRCA Rules. KLRCA Rules grant substantial deference to

the arbitral tribunal in administering these proceedings. As such, the KLRCA rules

expressly allow for parties to appoint representatives, and for this Tribunal to

consolidate multiple claims in a single arbitration at its discretion. Although both the

KLRCA rules and the parties arbitration agreement are silent on the propriety of a

consolidating the claims of all injured employees and surviving relatives in a single

proceeding, this Tribunal should administer, on an ad hoc basis, a class arbitration.

Doing so would be consistent with international arbitral institute practices.

Furthermore, a class arbitration proceeding is necessary in the present case to avoid

injustice given the types of harm and cultural circumstances underlying this dispute.

II. THAI LAWS SHOULD GOVERN THE SUBSTANTIVE ISSUE OF WHETHER

SPEAR SHIRTS IS LIABLE FOR THE INJURIES AND DEATHS OF MAE SOT

EMPLOYEES. The parties have not designated the applicable substantive law to

resolve this dispute. When the parties fail to adequately designate a choice of law,

KLRCA rules permit the arbitral tribunal to determine the appropriate law. The

parties intended to Thai laws to govern by selecting Bangkok as the place of

arbitration. Furthermore, the relevant facts and injuries occurred in Thailand. Thus,

Thai laws should govern the dispute.

8

III. SPEAR SHIRTS IS LEGALLY RESPONSIBLE FOR THE DEATH AND

INJURIES OF MAE SOT CLOTHING’S EMPLOYEES. The Mae Sot Clothing

factory was subject to Thai safety regulations set forth in the Occupational Safety,

Health and Environment Act (OSHEA). OSHEA imposes a legal duty to comply

with safety regulations on supervisors and contractors alike. The parties do not

dispute the factory conditions that violated these regulations. Spear Shirts’

involvement in Mae Sot Clothing’s daily operations transformed its relationship from

a mere customer to a supervisor. Thus, Spear Shirts’ shared an obligation to comply

with safety regulations. Furthermore, because Spear Shirts’ violation of these safety

regulations resulted in injuries and death, Spear Shirts is presumed at fault. California

case law also supports a theory that Spears’ is liable for damages by virtue of its

special relationship with Mae Sot Clothing.

IV. CLAIMANTS ARE ENTITLED TO COMPENSATION FOR THE INJURIES AND

DEATHS CAUSED BY SPEAR SHIRTS. The KLRCA rules contain an entire

Section governing arbitral awards, so its clear that the tribunal is empowered to make

them. The Tribunal’s discretion over awards and ability to enforce them points to a

public policy in favor of true, full remedies through awards granted via arbitration.

Because Thai laws govern the substance of this dispute, by extension, Thai laws

should dictate the appropriate remedies. Accordingly, under Thai law claimants are

entitled to receive restitution for inability to work, in the present and future, third

party compensation, and non-pecuniary damages.

9

PLEADINGS

I. ALL INJURED VICTIMS AND FAMILIES OF THE DECEASED VICTIMS SHOULD BE JOINED AS CLAIMANTS IN A SINGLE, COLLECTIVE ARBITRATION.

A. The Injured Victims and Families of Deceased Mae Sot Workers Are

Entitled to Appoint Representatives. The parties have expressly agreed to submit this dispute to binding arbitration in

accordance with the Kuala Lumpur Regional Centre for Arbitration (“KLRCA”) rules. 35

Thus, the arbitration proceedings should be conducted in accordance with KLRCA

procedural rules.

KLRCA Section 1 Article 5 allows parties to appoint representatives. Here, all

individuals who were injured in the Mae Sot Clothing factory fire including the surviving

family members of the deceased workers, appointed the assistance of ICSTW to represent

their interests in the arbitration proceedings.36 Accordingly, ICSTW has the requisite

authority to appear before this Tribunal as a representative for the injured workers and the

surviving families of the deceased workers.

B. The Representative Claimants Can Be Consolidated into a Single Arbitration Proceeding Under the KLRCA Rules.

Section III of the KLRCA grants broad discretion to the arbitral tribunal in

conducting the arbitration proceedings. In exercising such discretion under Section III

Article 17, the arbitral tribunal is limited to conducting the proceedings “so as to avoid

unnecessary delay and expense and to provide a fair and efficient process for resolving

the parties’ dispute.”37 Article 17, paragraph 5, of the KLRCA expressly authorizes this

Tribunal, at the request of any party, to allow multiple third parties to be joined in the

35 Official Moot Problem at 5. 36 Further Clarifications, D-1. 37 KLRCA, Section III, Article 17.

10

arbitration absent a finding that joinder of such persons would result in prejudice to the

parties.38

The parties here have expressly agreed to submit to binding arbitration and, at

minimum, the proceeding should include the thirteen representatives individually

represented by ICSTW. Rule 8 explicitly allows such a consolidation. If, however, the

Respondent objects to consolidating the victims and families claims into one proceeding,

this Tribunal may still order that the thirteen individual parties since Article 17 does not

requires that the parties agree to the joinder, but simply that any party request it.

C. The Interests of All Victims and the Families of Deceased Workers Should Be Represented in a Collective Arbitration.

It is commonly agreed that arbitral tribunals decide matters of procedure.39

Although the parties have expressly agreed upon arbitration in accordance of the KLRCA

procedural rules, the arbitration agreement is silent on the issue of whether the tribunal

can administer class arbitration proceedings.

The KLRCA rules, however, do not explicitly address the propriety of “class

action” claims—a type of proceeding initiated in the United States through which the

courts can address numerous claims brought by numerous representatives, sharing

common facts and law, regardless of whether they are named as parties to the arbitration.

In the context of cross-border disputes before an arbitral tribunal, such proceedings are

sometimes referred to as “international class arbitration.”40

38 Id. 39 Green Tree Financial Corp. v. Bazzle, 539 U.S. 444, 452–53 (2003) (finding that the type of arbitration proceeding is matter of contract interpretation determined by the arbitrator, not the courts). 40 S.I. Strong, “Enforcing Class Arbitration in the International Sphere: Due Process and Public Policy Concerns.”

11

Under the KLRCA Rules, this Tribunal has the discretion and authority to

consolidate all injured victims and the families of the deceased workers so as to

administer a class arbitration proceeding on an ad hoc basis.

Rule 8 of the KLRCA addresses specifically the tribunal’s authority to

consolidate proceedings. Rule 8 states, “[t]he parties may agree: (1) that the arbitration

proceedings shall be consolidated with other arbitration proceedings; or (2) that

concurrent hearings shall be held, on such terms as may be agreed. Unless the parties

agree to confer such power on the arbitral tribunal, the tribunal has no power to order

consolidation of arbitration proceedings or concurrent hearings. Furthermore, the

KRLCA provides that an “arbitral tribunal may make a single award or several awards in

respect of all parties so involved in the arbitration.”41 Consolidating the claims into a

collective arbitration is not a novel concept. Although the international arbitral regime

has yet to develop or adopt uniform procedures for international class arbitrations,

arbitration institutes outside of the U.S. have nonetheless administered class arbitrations

and consider it a generally acceptable process.42

For example, in Valancia v. Bancolumbia, a dispute initiated by a class of

shareholders against a financial institution came before an arbitral tribunal seated in

Bogotá, Colombia.43 There, the Supreme Court of Colombia addressed whether courts

have exclusive jurisdiction over class action proceedings. The Supreme Court held that

the parties’ arbitration agreement did not limit the types of claims that could be submitted

to arbitration.44 The Court further noted, that arbitrators have the same duties and powers

41 KLRCA Rules, Section III, Article 17, Paragraph 5. Available at http://klrca.org/rules/arbitration/ 42 S.I. Strong, supra note 38. 43 Valencia v. Bancolombia, (24 April 2003) - Arbitral Tribunal from the Bogotá Chamber of Commerce. 44 Id.

12

as a court and thus have the competence to resolve class claims. Therefore, the arbitral

tribunal had jurisdiction to resolve claims brought by a class of claimants.

Conversely, the United States has rejected the notion of administering class

arbitration proceedings on an ad hoc basis. In Stolt-Nielsen v. Animalfeeds International

Corp., the United States Supreme Court held that imposing class arbitration on parties

when they have not agreed to authorize class arbitration was inconsistent with the Federal

Arbitration Act.45 Justice Samuel Alito, writing for the majority, noted that central to the

FAA was “the basic precept” that arbitration is “a matter of consent, and not coercion.”46

Notwithstanding the United States Supreme Court’s rejection of ad hoc

administration of class arbitration when the parties have not expressly agreed to it in their

arbitration clause, this Tribunal is free to order the parties to proceed in a collective

arbitration. The facts here are distinguishable from those in Stolt-Nielsen. First, Stolt-

Nielsen addressed the propriety of class arbitration in construction with the United States’

Federal Arbitration Act, a statute that does not bind the present arbitral tribunal.

Secondly, the facts here further depart from those in Stolt-Nielsen because this dispute

involves personal injuries, as opposed to anticompetitive harm—which only effect

pecuniary interests.

In light of the broad discretion granted to the arbitral tribunal by the KLRCA rules

and the growing tendency to administer class arbitrations in disputes when the parties are

multi-national, this Tribunal should proceed in consideration interests of all victims and

the surviving families of the deceased workers in a collective, or class arbitration.

D. Class Arbitration Promotes the Interests of Justice and Administrative Efficiency.

45 Stolt-Nielsen v. Animalfeeds, Int’l Corp., (2010) 46 Id.

13

This Tribunal should also consider the orientation of the parties in the present

dispute with respect to their relative economic power and the cultural interpretations of

litigation, and the claimants’ lack of resources to seek compensation on an individual

basis.

Here, the proposed “class” would consist of the approximately 160 Mae Sot

Clothing factory workers that were injured or killed in the October 2013 fire.47 The

claimants are numerous, and suffered injuries from a single event that shared common

facts and law. The appointed representatives were selected by the victims and their

families to represent the interests of all claimants as a whole.48 All claimants consented

to arbitration, and agreed to select the named representatives. The injuries and damages

here all arose out of a single event.

Spears Shirts cannot be held fully responsible for their actions unless the interests

of all those injured victims and the families of the deceased are represented before this

court. Furthermore, both Thai laws recognize United States-style class action

proceedings in the context of securities regulation.49

Without the opportunity join in a class arbitration proceeding, the claimants will

likely have no other means of seeking recourse. At least one study suggests that Thai

victims injured by wrongful acts, will rarely seek remedies or compensation for their

injuries and may have no other efficient means of any kind.50 Another study showed that

personal injury litigation rates in Chiangmai, Thailand have dropped substantially from

1965 to 1997, despite forecasts that they would increase as the natural result of

47 Official Moot Problem at 2 48 Official Moot Problem at 5 49 Chukiert Ratanachaichan, A Primer on the Thai Draft Law on Class Action 50 David M. Engel, Lumping as Default in Tort Cases: The Cultural Interpretation of Injury, 44 Loy. L.A. L. Rev. 33 (2010).

14

globalization and development in the region.51 These studies suggest that seeking relief

through the judicial system is not a likely response for injured workers in Northern

Thailand.

Accordingly, class arbitration on behalf of all injured workers and the family

members’ of the deceased Mae Sot Clothing workers would not unduly prejudice Spear

Shirts. Accordingly, this Tribunal must order the parties to proceed in a collective

arbitration.

II. THAI LAWS SHOULD GOVERN THE SUBSTANTIVE ISSUE OF SPEAR SHIRTS’ LIABILITY FOR THE INJURIES AND DEATHS OF MAE SOT EMPLOYEES.

As noted above, the parties agreed that the arbitration would proceed according to

KLRCA Rules.52 Article 35(1) of the KLRCA provides, “The arbitral tribunal shall

apply the rules of law designated by the parties as applicable to the substance of the

dispute. Failing such designation by the parties, the arbitral tribunal shall apply the law

which it determines to be appropriate.”53

A. The terms of the standard purchase order do not designate the applicable law in this dispute.

Mae Sot Clothing’s consent to the April 2013 standard purchase order did not

constitute an agreement to designate California law to resolve the substance of the

present dispute. The purchase order states explicitly that its terms, including the choice

of law clause designating Los Angeles, California USA as the applicable law, would not

“diminish or limit in any way subsequent arbitration agreements.”54

51 David Engle & Jaruwan Engel, Tort, Custom, and Karma: Globalization and Legal Consciousness in Thailand (2010). 52 Further Clarifications C-1. 53 KLRCA Rules, Article 35, Section 1 54 Standard Purchase Order.

15

Furthermore, the scope of the standard purchase order agreement is limited to the

sale of shirts by Mae Sot Clothing to Spear Shirts. Under the heading “Applicable Law”

the standard purchase order notes that “[a]ll transactions” between the parties are to be

governed by the laws of California. This dispute does not involve any specific

transaction between Mae Sot Clothing and Spear Shirts, but rather, as discussed below,

the injuries and deaths that resulted from Mae Sot Clothing and Spear Shirts’ continual

failure to act in accordance with Thai industry regulations. Accordingly, the standard

purchase order agreements did not serve to designate the appropriate substantive law

here. Thus, the arbitral tribunal has the authority to make a determination as to the

applicable law pursuant to KRLCA Article 35(1).

B. The Parties have Expressly Agreed to Arbitration in Thailand, Thereby Tacitly Choosing to Resolve Substantive Choice of Law Issues with Thai Conflict of Law Provisions.

As a threshold issue, this Tribunal must determine the applicable substantive law

to resolve this dispute. Because the parties have not designated the applicable substantive

law in this dispute, the arbitral tribunal must apply the law, “which it determines to be

appropriate.”55 In the absence of an express choice of law, however, an arbitral tribunal

may, in the interest of preserving the parties’ autonomy, determine the appropriate law

and resolve conflicts of law by deferring to the intent of the parties.56

With respect to the parties’ choices of law, they have expressly agreed on two

terms: (1) that the venue of the arbitration is Bangkok, Thailand under the supervision of

55 KLRCA Article 35 (1), http://klrca.org/rules/arbitration/#Article17%13GeneralProvisions 56 Belden Premarj, The Choices of Law – Better Safe Than Sorry: The Malaysian Arbitration Perspective,

16

the Thai Arbitration Institute; and (2) that the arbitration is to be conducted in accordance

with KRLCA procedural rules.

Application of the Thai conflict of laws provision is the natural and fair

interpretation of the parties’ intent to resolve this dispute. First, under the principle of qui

indicem elegit ius, the parties’ selection of Bangkok as the arbitration venue, in spite of

the claimants’ Burmese citizenship and the Respondent’s United States citizenship,57

suggests at least a slight preference toward the application of Thai laws. Although the

parties may have chosen Bangkok for reasons unrelated to their choice of substantive

law, numerous factors mitigate strongly in favor of applying Thai law.

Thai law is the intuitive choice of law because the factory where the events

relevant to this dispute occurred entirely in Mae Sot, Thailand in a factory operated by a

Thai clothing manufacturer. Moreover, Mae Sot Clothing was subject to Thai regulatory

laws, including occupational safety standards. Therefore, Thai conflict of laws rules

should dictate the applicable law in this dispute.

Section 15 of the Conflict of Laws Act, B.E. 2481 requires that the tribunal apply

Thai law when “an obligation arising out of a wrongful act shall be governed by the law

of the places where the facts constituting such wrongful act have taken place.”58

Here, wrongful acts have taken place in Mae Sot, Thailand.59 Specifically, Mae

Sot Clothing and Spear Shirts negligently maintained and supervised the Mae Sot

Clothing factory in violation of Thai occupational safety laws, which caused the injuries

or death of over 160 Mae Sot Clothing employees. Thus, the Conflict of Laws Act

undoubtedly resolves the choice of law issue in favor of applying substantive Thai law.

57 Official Moot Problem. 58 Conflict of Laws Act, B.E. 2481 (1938). 59 Official Moot Problem at 2.

17

III. SPEAR SHIRTS IS LEGALLY RESPONSIBLE FOR THE DEATH AND INJURIES OF MAE SOT CLOTHING’S EMPLOYEES.

A. Mae Sot Clothing Violated the Factory Act and the Occupational Safety,

Health and Environment Act.60 The parties do not dispute the findings of the independent auditor’s report

concluding that conditions present in the factory during the fire such as blocked aisles

and stairways were a major factor contributing to the injuries and fatalities. These

conditions violated numerous regulations under Thai law.

i. The Mae Sot Clothing Factory was Subject to Safety Standards Prescribed in Ministerial Regulations

The Factory Act, B.E. 2535 (“Factory Act”) regulates the operation and practices

of factories, which it defines as “a building, place or vehicle which uses a machines . . .

or which employs seven workers or more . . . for manufacturing, producing, assembling,

filling, repairing, maintaining anything in accordance with the type or kind of factory as

provided for in a ministerial rule.”61 As a building used for clothing manufacturing, the

Mae Sot Clothing factory falls squarely within this definition because it employed nearly

100,000 workers. Furthermore, Section 7 of the Factory Act requires factories to comply

with regulations prescribed by the Minister of Industry including “requirements for the

protection of safety . . . to prevent or stop or mitigate the dangers or injuries” that may

result from the factory’s operations.”62 Therefore, Mae Sot Clothing had an obligation to

comply with Ministerial Regulations prescribing safety standards.

ii. Mae Sot Violated OSHEA by Failing to Comply with Ministerial Regulations.

60 Occupational Safety, Health and Environment Act B.E. 2254 (2011). 61 Factory Act, B.E. 2535 (1992), Section 5. 62 Factory Act, B.E. 2535 (1992), Section 8 (8).

18

In 2011 the Thai government issued the Occupational Safety, Health and

Environment Act (“OSHEA”). OSHEA provides regulations aimed at elevating

Thailand’s occupational safety and health standards.63 Section 6 of OSHEA imposes a

broad obligation on employers “to support and promote” safe working conditions that

prevent employees from injury and Section 8 of OSHEA imposes a duty on employers to

“administer, manage, and operate, the occupational safety health and environment” as

prescribed by Ministerial Regulations.

Furthermore, a supplemental Ministerial Regulation was issued in 2012 regarding

fire prevention and control.64 Article 13 of the ministerial regulation requires employers,

building managers, to maintain functioning portable fire extinguishers.65

Here, the facts indicate that Mae Sot Clothing did not comply with the Ministerial

Regulation requiring employers to maintain functional portable fire extinguishers.66 The

Thai Fire Inspector reported rusty, corroded, and non-functioning overhead fire

extinguishers in the factory after the fire.67 Thus, by failing to provide functioning

portable fire extinguishes, Mae Sot Clothing violated OSHEA Section 8, which charges

employers with the duty to maintain an environment in compliance with the standards

prescribed in the ministerial regulations.

The independent auditor’s report suggests that other conditions present at Mae Sot

Clothing factory violated OSHEA by creating an unsafe environment. Indeed, the report

concluded, and it is undisputed here, that the blocked and cluttered aisles and stairways

63 ASEAN-OSHNET: ASEAN Occupational Safety and Health Network. 64 Ministerial Regulation on the Standard for Administration and Management of Occupational Safety, Health and Environment in relation to Fire Prevention and Control, B.E. 2555 (A.D. 2012), (THA-2012-R-96389) 65 Id. 66 Official Moot Problem at 3, fn 3. 67 Official Moot Problem at 3.

19

were a major cause of injury and fatalities during the fire.68 Snowden’s account of the

cluttered factory floors several months before the fire in his message to Baydon further

corroborates these unsafe factory conditions. Accordingly, the hazardous working

conditions of the factory violated OSHEA safety regulations.

B. Spear Shirts Was Violated of OSHEA and Ministerial Regulations And Was Responsible for the Conditions That Caused Injuries and Deaths in the Fire.

i. Spear Shirts violated OSHEA because it assumed a supervisory role

over Mae Sot Clothing. OSHEA Section 4 expressly defines an “employee” as “a person who is allowed

to work or to provide benefit for . . . an employer, regardless of the name used.” An

“employer” as defined by the act includes one who “allows any person to work for or to

provide benefit [to] an establishment whether . . . providing some benefit or a party of

[the] production process.”69 Furthermore, included within OSHEA’s definition of

“supervisor” as one who “performs duties in controlling, supervising, commanding or

ordering other employees to work . . . according to the function of the working unit.”70

OSHEA places an affirmative duty on supervisors to take action to prevent harm

to employees when they become aware of dangerous conditions in the work environment.

Specifically, Section 21 of the Act provides that “[When] the Supervisor is aware of a

defect or damage which may be harmful to life, physique, mentality and health of the

employee, the Supervisor shall take action to prevent such harm within the scope of his or

her responsibility or the scope as assigned immediately after being aware. In case the

68 Id. 69 OSHEA, Section 4. 70 Id.

20

action cannot be taken, the Supervisor shall inform the Executive or the Employer to

address the issue without delay.”71

The Respondent will submit that its relationship with Mae Sot Clothing was that

of a mere customer. The facts here, however, suggest the contrary.

Because the broad definition of “employee” prescribed by OSHEA Section 4 only

requires that the worker provide a benefit to the employer or establishment, it necessarily

should encompass individuals that provides a benefit for employers or supervisors that

are based abroad, or do not otherwise have a presence in Thailand. Here, Mae Sot

Clothing employees provide a benefit not just to Mae Sot Clothing itself, but also to

Spear Shirts. As Spear Shirts’ largest supplier of men’s shirts,72 Mae Sot Clothing’s

workers are an integral part of Spear Shirts’ production process. Mae Sot Clothing’s

workers provide Spear Shirts’ the benefit of supplying shirts at what Snowden described

as a “ridiculously low price.”73 Therefore, this Tribunal should find that under OSHEA

definitions, the claimants were just as much employees of Spear Shirts as they were

employees of Mae Sot, regardless of the name used to describe them.

As a corollary issue, this Tribunal must also examine whether Spear Shirts,

although not physically present in Thailand, qualified as a supervisor under OSHEA.

Spear Shirts’ actions as an organization and its employee’s conduct suggest that its

relationship with Mae Sot was much more than that of a typical buyer and seller, but

instead served in a supervisory capacity over Mae Sot Clothing. For example, Spear

Shirts suggested appointees for Mae Sot Clothing’s directors. Spear Shirts also made

suggestions with respect to production deadlines and quality control, which are matters

71 OSHEA, Section 21. 72 Clarifications at B-6. 73 Official Moot Problem at 2.

21

that influenced directly Mae Sot Clothing’s daily operations.74 Such suggestions are

atypical of a casual buyer-seller relationship and what is more illustrative of Spear Shirts’

control is the fact that Mae Sot adopted these suggestions without fail.

Moreover, Snowden’s trip to the Mae Sot Clothing factory suggests Spear Shirts

supervised Mae Sot Clothing’s operations. Baydon, the Spear Shirts Vice President in

charge of purchasing, requested that Snowden visit the Mae Sot Clothing factory.75

Although it is unclear whether Snowden would have visited the factory but for Baydon’s

request, Snowden’s text message to Baydon indicates that he made the trip in his capacity

as a Spear Shirts employee. The factory’s general manager, Paul Castro, assured

Snowden that factory workers were “all above the legal age” – which tends to show that

Spear Shirts had an interest in the factory’s compliance with local laws, or at minimum,

the factory’s operations.76 The mere fact that Snowden relayed this information to

Baydon and described the factory’s working conditions also shows that Spear Shirts was

not merely a customer. And that Baydon subsequently brought Snowden’s message to

the attention of Spear Shirts’ president is also relevant to show that Spear Shirts was

more of a supervisor than a customer.77

While Snowden’s trip to the Mae Sot Factory alone is not dispositive of Spear

Shirts’ role as a supervisor, Spear Shirts’ influence over Mae Sot Clothing’s production

deadlines, quality control, and its de facto appointment of Mae Sot Clothing directors

supports a finding that Spear Shirts was certainly not a customer, and acted as its

supervisor. As such, Spear Shirt’s failure to take affirmative action to prevent injury after

74 Clarifications at B-3; Further Clarifications at E-1. 75 Official Moot Problem at 2. 76 Official Moot Problem at 2. 77 Further Clarifications at A-5.

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Snowden became aware of the obstructed aisles and stairways violated the supervisor’s

obligations as described in OSHEA Section 21.

Spear Shirts became aware of the dangerous working conditions at Mae Sot

Clothing factory several months before the fire during Snowden’s visit. Snowden’s

message to Baydon, which was subsequently forwarded to Spear Shirts’ president,

conveyed unambiguously that working conditions at Mae Sot Clothing’s factory were a

risk to the health and safety of its workers. Snowden described it as a “sweat shop” and

specifically mentioned that “rolls of fabric and carts” strewn across the floors constantly

caused him to trip.78 It is undisputed that these very conditions were the major cause of

injuries and fatalities during the fire.79 Accordingly, Spear Shirt’s failure to take

preventative action and address the blocked pathways in the period between Snowden’s

visit and the October 2013 fire was a grievous violation of the supervisor’s obligations

under Section 21 of OSHEA.

ii. Alternatively, Spear Shirts shared equally with Mae Sot Clothing an obligation to comply with ministerial regulations its contractor.

OSHEA prevents employers from evading their obligations under the statute

simply by contracting or subcontracting manufacturing processes. Section 23 of the Act

imposes the same obligations on both contractors and sub-contractor’s to comply with

OSHEA’s safety provisions. Section 23 provides, “The main contractor and the sub-

contractor who are under the labour protection law are obligated to carryout an operation

on occupational safety, health and environment in the same as [sic] an Employer does.”80

78 Official Moot Problem at 2. 79 Official Moot Problem at 3. 80 OSHEA Section 23.

23

Here, Spear Shirts is a contractor because it contracts to sell its shirts to customers

across the United States and internationally. Spear Shirts’ sub-contracted Mae Sot

Clothing for the manufacture of its shirts at reduced costs. Mae Sot Clothing, as a factory

operating in Thailand, is protected under the labor laws of Thailand including the Factory

Act and OSHEA. Thus, as made clear by Section 23 of OSHEA, the obligation to

maintain a working environment in compliance with OSHEA applied to both Spear Shirts

(the contractor), and Mae Sot Clothing (the sub-contractor). Therefore, the failure to

maintain an OSHEA compliant working environment at the Mae Sot Clothing factory

C. Spears Shirts is Liable for the Claimant’s Injuries Under the Thai Civil and Commercial Code.

Spear Shirts is subject to liability for the injuries that its violations of Thai

occupational safety regulations caused. Under the Thai Civil and Commercial Code,

Spear Shirts is presumed at fault for damages caused by its statutory violations.

Section 422 of the Thai Civil and Commercial Code states that “if damage results

from an infringement of a statutory provision intended for the protection of others, the

person who so infringes is presumed to be in fault.”81

As discussed above, Mae Sot Clothing and by implication, Spear Shirts’ shared

the obligation to comply with Ministerial Regulations. OSHEA and its accompanying

regulations were intended for the protection of Thai employees. Spear Shirts’ failure to

provide portable fire extinguishers and to act affirmatively to prevent harm from

obstructed pathways in the factory infringed various OSHEA provisions and Ministerial

Regulations. Furthermore, it is undisputed that these hazardous conditions, which were

first reported in Snowden’s text message and later reaffirmed by an independent auditor’s

81 Thai Civil and Commercial Code, Section 422.

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report, caused the claimants’ injuries and the deaths of the claimants’ family members.

Therefore, under the Civil and Commercial Code Section 422, Spear Shirts’ statutory

infringement caused damage for which Spears Shirts should be presumed at fault.

D. Alternatively, Spear Shirts’ is Liable Under the Thai Civil and Commercial Code Under a Negligence Theory.

Section 420 of the Civil and Commercial Code provides that “a person who,

willfully or negligently, unlawfully injures the life, body, health, liberty, property or any

right of another person, is said to commit a wrongful act and is bound to make

compensation therefore.”

The fundamental principles of negligence as a theory of liability require the

existence of a duty or special relationship between the injured party and the alleged

tortfeasor. Here, as discussed above, Spear Shirts exercised some degree of control over

Mae Sot Clothing’s operations and management structure in the course of dealing such

that, its relationship cannot be characterized as that of a typical buyer and seller. Rather,

Spear Shirts served in a supervisory capacity and assumed control of the company that

gave rise to an obligation to comply with Thai OSHEA regulations.

Here, Spear Shirts had actual notice of the hazardous conditions in the factory

because several months before the fire Snowden reported to Baydon that Mae Sot

Clothing’s factory floors were cluttered with fabric and half-empty containers and that its

workers were operating in “sweat shop”-like conditions.82 As vice president of Spear

Shirts in charge of purchasing, Baydon was in the best position to take remedial or

preventative measures that would have prevented the claimants’ injuries, and potentially

prevented the fire. A reasonable person could infer from Snowden’s message that the

82 Official Moot Problem at 2.

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factory was suffering under the volume of orders that Spear Shirts demanded from it.

Indeed, the factory conditions and Spear Shirts’ affirmative actions that dictated Spear

Shirts production deadlines were the proximate cause of the fire. The parties do not

dispute that hazardous factory conditions were a major cause to workers’ injuries and

fatalities. Moreover, Spear Shirts acts were likely a direct causation of the fire since it

continued to place orders for shirts despite of its knowledge of the factory’s conditions.

Accordingly, this Tribunal should find Spear Shirts liable for negligently causing the

injuries and deaths of Mae Sot Clothing employees.

E. Alternatively, Spear Shirts is liable for the claimants’ injuries and Deaths Under California Law.

If this Tribunal determines that California law is applicable by virtue of the

citizenship of the defendant or choice of law clause in the standard purchase order, Spear

Shirts can still be held liable because it negligently retained control of Mae Sot Clothing,

or alternatively because it ratified Mae Sot Clothing’s wrongful acts.

i. Spear Shirts Negligently Retained Control of Mae Sot.

Generally the hirer of an independent contractor is not liable for the injuries of the

independent contractor’s employee merely because the hirer retained control over safety

conditions at the work site.83 Under some circumstances, however, the hirer’s may be

subject to the injuries of an independent contractor’s employees.

For example in Hooker v. Department of Transportation, the California Supreme

Court addressed whether a hirer was liable for the death of its contractor’s employee.

There, the contractor’s employee, died in crane accident allegedly caused by the hirer’s

failure to comply with safety laws and regulations. The plaintiff, the decedent’s widow,

83 Hooker v. Department of Trans., 27 Cal. 4th 198, 212 (2002).

26

contended that the hirer’s negligent control of the work site and operations subjected it to

liability for her husband’s death. The court held, that a hirer is liable for the independent

contractor employee’s injuries insofar as its exercise of control over the independent

contractor affirmatively contributed to the employee’s injuries.84 The court further noted

that such contributions may not necessarily require affirmative acts, but may also include

omissions.85

Here, Spear Clothing exercised control over Mae Sot Clothing in several respects.

First, it made “suggestions” regarding Mae Sot Clothing’s production deadlines and

quality control. Although, Respondents will argue that Mae Sot Clothing was under no

obligation to follow such suggestions, the fact remains that Mae Sot Clothing consistently

adopted those suggestions. Second, as Mae Sot Clothing’s primary customer, Spear

Shirts orders dictated Mae Sot Clothing’s workload. These acts both constituted

affirmative contributions to the circumstances that caused the fire, namely because Spear

Shirts’ control of the production deadlines (i.e., the schedule and pace at which shirts are

manufactured) had a direct impact on textile machines overheating and the surplus of

shirts and fabric seen strewn across the factory floors.

Moreover, Spear Shirts had actual notice of the apparent dangerous conditions

and the factory’s workload. Snowden’s text message to Baydon not only mentioned

hazardous working conditions but also that the factory was working its employees “to

death.”86 Simply put, Spear Shirts knew that the Mae Sot Clothing factory had been

overworked several months before the fire, but nonetheless persisted in contributing to

the very conditions that caused the fire. Accordingly, Spear Shirts is liable under

84 Id. at 202. 85 Id. at 212 n 3. 86 Official Moot Problem at 2.

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California law for the injuries of Mae Sot workers as a result of its affirmative

contributions to the claimants’ injuries and deaths.

IV. CLAIMANTS ARE ENTITLED TO COMPENSATION FOR THE INJURIES AND DEATHS CAUSED BY SPEAR SHIRTS.

A. The KLRCA Rules And Public Policy Allow For Claimant’s Requested Remedies

The KLRCA rules contain an entire Section governing arbitral awards, so its clear

that the tribunal is empowered to make them.87 According to Article 34.1 of the KLCRA

Rules, the arbitral tribunal may make separate awards on different issues at different

times.”88 This means that no matter how the tribunal elects to approach the issues and

parties at hand, it has the authority to determine proper awards in each circumstance.

Based on Article 35 of the KLRCA rules, the tribunal should determine remedies

by applying the rules of law that it deems applicable to the substance of the dispute.

KLCRA Rule 35.2 states that “The arbitral tribunal shall decide as amiable compositeur

or ex aequo et bono only if the parties have expressly authorized the arbitral tribunal to

do so.” The parties in the case at hand have not expressly authorized this. Therefore, the

tribunal must make a determination about remedies for claimants based on whatever laws

they apply to the substantive liability issue.

The tribunal should exercise its broad authority to remedy claimants’ injuries. An

arbitration award is more easily enforceable than any foreign judgment. This is due to the

widely ratified New York Convention on the Recognition and Enforcement of Foreign

Arbitral Awards, which reduces the formalities linked with the recognition of awards and

87 KLRCA Rules The Award – Section IV. 88 KLRCA Rule 35.2.

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also limits the grounds on which a court may rely to refuse enforcement. 89 The

Tribunal’s discretion over awards and ability to enforce them points to a public policy in

favor of true, full remedies through awards granted via arbitration.

B. Thai Law Should Determine What Remedies Are Available for Claimants.

As noted above, the parties agreed that the arbitration would proceed according to

KLRCA Rules. Article 35(1) of the KLRCA provides, “The arbitral tribunal shall apply

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

Failing such designation by the parties, the arbitral tribunal shall apply the law which it

determines to be appropriate.”

As explained in detail in Part B.1.1, the terms of the standard purchase order do

not designate the applicable law in this dispute. Resolving the issues surrounding the Mae

Sot Factory does not constitute a transaction. Therefore, just as determination of liability

should not be settled based on the Standard Purchase Agreement, neither should

determination of remedies for claimants based on Spear Shirt’s liability. Thus, the arbitral

tribunal has the authority to make a determination as to the applicable law in accordance

with KLRCA Article 35(1).

Furthermore, as outlined in Part B.1.2, The parties have expressly agreed to

arbitration in Thailand, thereby tacitly choosing to resolve substantive choice of law

issues with Thai conflict of law provisions. The strong arguments in favor of applying

Thai law to assess Spear Shirt’s liability extend to determining remedies available to

claimants in the event that Spear Shirts is held liable.

89 Dr. Loukas Mistelis, International Arbitration - Corporate Attitudes and Practices - 12 Perceptions Tested: Myths, Data and Analysis Research Report (2004) 15 Am. Rev. Int'l Arb. 525, 548).

29

C. Claimants Should Receive Restitution For Inability to Work In the Present and the Future, Third Party Compensation, and Non-Pecuniary Damages.

According to Thai Civil and Commercial Code Section 438, The Court shall

determine the manner and the extent of the compensation according to the circumstances

and the gravity of the wrongful act. Compensation may include restitution of the property

of which the injured person has been wrongfully deprived or its value as well as damages

for any injury caused. Applying Thai law to this case, the tribunal should look to the

“circumstances and the gravity of the wrongful act.”90

Thai law provides for restitution for inability to work, compensation to third

parties that have lost income or services due to a family member’s injury or death, and

non-pecuniary damages for victims. The tribunal should determine which of these are

applicable to the parties in the situation at hand against the backdrop of Spear Shirt’s

gross negligence and the fact that Spear Shirts derived tremendous financial benefit by

exploiting the workers in the Mae Sot factory and subjecting them to unsafe working

conditions.

D. The Claimants are Entitled to Restitution for Inability to Work.

In the case of an injury to the body or health, the injured person is entitled to

receive reimbursement of his expenses and damages for total or partial disability to work

for the present as well as for the future. If at the time of giving judgment it is impossible

to ascertain the actual consequences of the injury, the Court may reserve in the judgment

the right to revise such judgment for a period not exceeding two years.91

90 Thai Civil and Commercial Code Section 438. 91 Thai Civil and Commercial Code Section 444.

30

Over one hundred workers were injured in the fire. Assuming liability of Spear

Shirts is established, Spear shirts is responsible for expenses and damages for these

injured workers’ inability to work. The Thai Supreme Court has defined “expenses”

broadly and has held that expenses include what the injured party has paid due to the

injury.

Expenses commonly include medical expenses that have already been incurred as

a result of an injury and future medical expenses in cases where continuous medical

treatment is required. Other expenses can include costs of hiring someone care for the

injured party, and traveling expenses for this caretaker.

Damages are the loss of earnings that the injured party has suffered from inability

to work. Based on Section 444, Spear Shirts must pay the injured survivors of the fire for

expenses and damages incurred as a result of their injuries from the fire.

E. The Families of Deceased Workers are Entitled to Third Party Compensation.

According to Section 445, in the case of causing death, or of causing injury to the

body or health of another, or in the case of deprivation of liberty, if the injured person

was bound by law to perform service in favor of a third person in his household or

industry, the person bound to make compensation shall compensate the third person for

the loss of such service.92

In addition to paying expenses and damages to injured workers, Spear Shirts must

compensate third persons for loss of service (income) due to deaths of certain Mae Sot

Factory Workers. In the case of causing death, compensation shall include funeral and

92 Thai Civil and Commercial Code, Section 445

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other necessary expenses. If on account of the death of any person has been deprived of

his legal support, he is entitled to compensation therefore.

F. All Claimant’s are Entitled to Non-Pecuniary Damages.

According to Section 446, “In the case of injury to the body or health of another,

or in the case of deprivation of liberty, the injured person may also claim compensation

for the damage which is not pecuniary loss. The claim is not transferable, and does not

pass to the heirs, unless it has been acknowledged by contract, or on action on it has been

commenced.”93

The meaning of the non-pecuniary damages is still controversial due to the fact

that the Civil and Commercial Code does not identify the exact definition and types of

the non-pecuniary damages. However, many scholars define the non-pecuniary damages

as the damages that cannot be calculated in the monetary value.94 In addition, the decision

of the Supreme Court of Thailand can broaden the understanding of non-pecuniary

damages because it names many types of non-pecuniary damages such as the damages

regarding loss of emotional feeling and enjoyment due to the disability caused by

wrongful act, pain and suffering, and disfigurement. Therefore, this tribunal, in

accordance with the Thai Civil and Commercial Code should take into consideration non-

pecuniary damages when calculating restitution for the claimants.

93 Thai Civil and Commercial Code, Section 446 94 Dr. Loukas Mistelis, International Arbitration - Corporate Attitudes and Practices - 12 Perceptions Tested: Myths, Data and Analysis Research Report

32

CONCLUSION AND PRAYER FOR RELIEF

Based on the above submissions, the claimant, International Collective in Support of

Textile Workers, respectfully requests this Tribunal to declare the following on the

Questions Presented:

A. That given the large number of potential claimants, the named claimants in this

dispute should represent collectively, all similarly situated injured employees and the

surviving family members of deceased employees in a class arbitration proceeding.

B. That Thai law is the appropriate law to govern the substantive issues in dispute.

C. That Spear Shirts shared an obligation with Mae Sot Clothing to abide by Thai safety

regulations by virtue of their unique relationship.

D. That Spear Shirts violated OSHEA when it failed to address hazard conditions that

Snowden reported months before the fire.

E. That Spear Shirts’ statutory violations caused damages and injuries for which it is

presumed to be at fault under Thai law.

F. That Claimants’ under Thai law are therefore entitled to restitution for present and

future damages, third party compensation, and non-pecuniary damages.

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