In a recent order[1] the Supreme Court Bench consisting of Justice Nariman and Justice Saran raised questions on the correctness of the judgment of Himangni Enterprises v. Kamaljeet Singh Ahluwalia[2] holding lease disputes under the Transfer of Property Act, 1882 are non-arbitrable. The judges decided[3] to refer the Himangni Enterprises[4] decision to a larger Bench for review. In this background the authors analysing the Himangni Enterprises[5] decision argues that it is based on an orthodox and conservative approach limiting numerous subject-matters as non-arbitrable. The Court’s reason in Himangni Enterprises[6] that disputes arising under the Transfer of Property Act, 1882 involves a “right in rem” and thus non-arbitrable is seriously debatable. It reflects an unprogressive view on arbitration at a time when the public policy of India calls for increased reliance on alternate dispute resolution (ADR) mechanisms for resolution of civil and commercial disputes.
Brief Facts of the Case
In Himangni Enterprises[7] the respondent (Kamaljeet Singh Ahluwalia) filed an eviction suit in 2015 against the appellant (Himangni Enterprises) before the Additional District Judge, Saket, New Delhi. As per the respondents, the suit premises had been leased out to the appellants for a period of three years through a lease deed in 2010. The lease deed had lapsed due to passage of time and thereafter, no fresh lease deed was executed between the parties. The respondent prayed for the eviction of the appellants and recovery of arrear rent. The appellant responded by filing an application under Section 8 of the Arbitration and Conciliation Act, 1996 for referring the matter to arbitration since the lease deed contained an arbitration clause by virtue of which the disputes arising out of the suit premises had to be resolved through arbitration.[8] The respondents objected to this application on two principle grounds: first, that since the lease deed had expired, the arbitration clause in it cannot be enforced; second, that the subject-matter of the dispute cannot be resolved by arbitration. The District Court upheld the respondent’s objections and dismissed the Section 8 application. On an appeal, the High Court upheld the order of the District Court. Himangni Enterprises[9] appealed the to Supreme Court challenging the impugned order of the High Court.
Decision of the Supreme Court of India
The Supreme Court of India relying upon the judgment of Natraj Studios (P) Ltd. v. Navrang Studios[10] and of Booz Allen & Hamilton Inc. v. SBI Home Finance Ltd.,[11] dismissed the appeal and held that the courts below were right in dismissing the application of the applicants to refer the dispute for arbitration under Section 8 of the Arbitration and Conciliation Act, 1996.[12]
With reference to Natraj Studios, the facts of which are similar to the facts in the instant case, the Supreme Court dismissed the application filed by the tenant under the Arbitration Act, 1940. Justice O. Chinnappa Reddy in his judgment held that “both by reason of Section 28 of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 and on the broader considerations of public policy” only the court and not the arbitrator has jurisdiction to hear the instant dispute.[13]
With reference to Booz Allen, the Supreme Court listed down the nature of disputes considered to be non-arbitrable in India.[14] One of the non-arbitrable matters recognised by the Court was “(vi) eviction or tenancy matters governed by special statutes where the tenant enjoys statutory protection against eviction and only the specified courts are conferred jurisdiction to grant eviction or decide the disputes.”[15]
The Supreme Court in its judgment in Himangni Enterprises relying upon the law laid down by it in the above two judgments, unhesitantly dismissed the appeal, and held that the civil suit filed by the respondents is maintainable despite the parties having an agreement to arbitrate.[16]
The Court also rejected the appellants’ argument that the above two judgments may not be relied upon as the judgments speak of those matters governed by the special statute. The appellants had contended in support of this argument that in the instant matter, the Delhi Rent Control Act, 1958 not applicable by virtue of its Section 3(1)(c) and hence, the law laid down by the Supreme Court in the above two judgments may not apply. Refusing to accept this contention of the appellants the Court held that the Delhi Rent Control Act, 1955 is a special Act that covers the disputes relating to rent and eviction. Even though the provisions of the Act is not applicable in the present matter by virtue of its Section 3, that does not ipso facto makes the Arbitration and Conciliation Act, 1996 applicable to the present dispute. In case of the inapplicability of the Delhi Rent Control Act, 1955, the matter shall be governed by the Transfer of Property Act, 1882, and shall be determined by the civil court and not by the arbitrator.[17] Accordingly, the Court dismissed the appeal and directed the concerned civil court to proceed with the trial of the suit on the merits of the case.[18]
Analysis of the Judgment and its Contradictions
The correctness of Himangni Enterprises[19] is now been referred to a larger Bench of the Supreme Court, and in the authors’ opinion, the decision is not compatible with the contemporary law of arbitration and adversely affects it. The authors rely on this proposition based on the re-examination of the following three issues viz. (i) Whether the Court was justified in its ruling on Section 3(1)(c) of the Delhi Rent Act, 1995? (ii) Whether the Court has rightfully interpreted the Booz Allen[20] judgment vis-à-vis right in rem versus right in personam? (iii) Whether the Court was justified in relying upon Natraj Studios[21] judgment?
I. The Court was not Justified in its Ruling on Section 3(1)(c) of the Delhi Rent Act, 1995:
The Court in Himangni Enterprises was not correct in its reasoning while dealing with the issue of the non-applicability of Section 3(1)(c) of the Delhi Rent Act, 1995. The Court held that if the Delhi Rent Act, 1995, by virtue of its Section 3(1)(c) is not applicable to the present case, then the civil suit shall be tried under Transfer of Property Act, 1882, by the civil court and not by the arbitrator.[22] The Court based its deduction on the reasoning that:
24. …by virtue of Section 3 of the Act [Delhi Rent Act, 1995], the provisions of the Act are not applicable to certain premises but no sooner the exemption is withdrawn or ceased to have its application to particular premises, the Act becomes applicable to such premises.[23]
But such a conclusion does not fit with the basic objective behind this enactment.
Section 3(1)(c) of the Delhi Rent Act, 1995 is enacted with an intent to protect the tenants who belong to weaker section of the society.[24] The Supreme Court of India in D.C. Bhatia v. Union of India[25] said that Section 3(1)(c) of the Delhi Rent Act, 1995 purposefully exclude its application over the premises rented higher than the specified limit, since the latter are used by relatively affluent tenants.[26] The Court further said that the enactments of Rent Control Acts are “temporary measures” in order to protect the tenants from arbitrary eviction and from landlord’s unprecedented enhancement of rent,[27] and hence, the application of Delhi Rent Act, 1995, in the wisdom of legislature, is restricted only to the premises those are rented up to Rs 3500.[28]
The same principle has been followed by the Delhi High Court in P.S. Jain Co. Ltd. v. Atma Ram Properties (P) Ltd.,[29] and in Atma Ram Properties (P) Ltd. v. Pal Properties (India) (P) Ltd.,[30] where the Court said that “the intention behind Section 3(c) is that a premises which fetches a rent of Rs 3500 per month should be exempt and that protection should be restricted to buildings fetching a rent less than Rs 3500 per month.”[31] Further, the Supreme Court in Parripati Chandrasekharrao and Sons v. Alapati Jalaiah,[32] also took the same view while dealing with the inapplicability of A.P. Rent Act,[33] over the premises rented out on above Rs 1000.[34]
Thus, it is quite clear that the Court’s reason in Himangni Enterprises on the issue of non-applicability of the Delhi Rent Act, 1995 over the premises is in question. According to the Court, the Act is applicable “no sooner the exemption is withdrawn or ceased to have its application”.[35] It is clear from the above discussion that the Rent Control Acts are special Acts, which are enacted as “temporary measures” for protection of special category of tenants. Since the parties in the instant case do not fall within the category of tenant for those the Act has been enacted for, neither the Act, nor the rights and liabilities arising out of it, shall be applicable over the appellant at any stage of time. Hence, the judgment of Booz Allen is also not applicable in the instant case. In Booz Allen, the Court held that “eviction or tenancy matters governed by special statutes where the tenant enjoys statutory protection against eviction and only the specified courts are conferred jurisdiction to grant eviction or decide the disputes” are non-arbitrable.[36] However, in this case, there is no protection granted to the appellant under the special statute, and hence, it can be inferred that the Court has inappropriately applied the rationale of Booz Allen[37] where it is certainly not applicable at all.[38]
II. That the Court has Incorrectly Interpreted the Booz Allen[39] Judgment vis-à-vis Right in Rem Versus Right in Personam
The Booz Allen judgment marks the difference between right in rem and right in personam.[40] The Court in Booz Allen held that all the disputes pertaining to right in rem are to be adjudicated by the Courts and public tribunal, while the disputes pertaining to right in personam can be considered to be resolved by arbitration.[41] However, the Court clarified, that it is not an “inflexible rule” for the “disputes relating to subordinate rights in personam arising out of right in rem have always been considered to be arbitrable.”[42] Hence, it is inferred that in the instant judgment of Himangni Enterprises[43], where even though the dispute between the parties is in a nature of right in rem, such dispute is arising out of contract/lease between the parties; and hence, the horizon of right to enjoy the property versus the ownership is completely between the lessee and lessor; and therefore, such dispute can be resolved by arbitration.
It was said by the Supreme Court of India in Olympus Superstructures (P) Ltd. v. Meena Vijay Khetan,[44] that disputes pertaining to specific performance of the contract can be resolved by arbitration,[45] and thus, the Court held that the arbitrator can pass an arbitral award granting the specific performance of the contract pertaining to immovable property.[46] Further, in Hindustan Petroleum Corpn. Ltd. v. Pinkcity Midway Petroleums,[47] where the respondent resisted arbitration because the dispute was of criminal nature under special statute, the Supreme Court of India rejected the respondent’s plea, and held that the rights of the claimant under the contract is independent of the statutory provisions and therefore the contractual rights could be adjudged upon by the arbitrator.[48] The Court further noticed that “the existence of a dual procedure; one under the criminal law and the other under the contractual law is a well-accepted legal phenomenon in Indian jurisprudence.”[49]
Hence, it can be inferred from the above discussion that in Himangni Enterprises[50], the impugned dispute could have easily been referred to arbitration, and hence, the decision of the Court is representing the orthodox approach and sets an unfortunate impetus towards the non-arbitration regime in India.
That the Court is not Justified in Relying upon the Natraj Studios[51] judgment
Lastly, the reliance of the Natraj Studios (P) Ltd. v. Navrang Studios[52] by the Court in Himangni Enterprises[53] is also not well justified. The Natraj Studios[54] is 1981 judgment decided under the Arbitration Act of 1940, and it is a well-settled law in arbitration jurisprudence in India, that the cases decided on the basis of Arbitration Act of 1940, cannot be blindly relied upon as a valid precedent for the cases governed by Arbitration and Conciliation Act of 1996 for the objectives of both the acts are entirely different.[55] The Supreme Court of India in Sundaram Finance Ltd v. NEPC India Ltd.[56] said that the Acts of 1996 Act and 1940 are very different from each other and therefore the provisions of the 1996 Act have to be interpreted independently and separately from the 1940 Act to avoid any form of misconception.[57] Thus, it is concluded that the over-reliance on the Court in the judgment of Himangni Enterprises[58] on Natraj Studios[59] as a precedent was not appropriate.
This inference is further emphasised in light of the view on the mandatory nature of Section 8 of the Arbitration and Conciliation Act, 1996 as held by Justice Chandrachud in A. Ayyasamy v. A. Paramasivam[60]. Justice Chandrachud in his opinion has cautioned that for courts deciding a dispute is non-arbitrable under the law for the time being in force must carefully look into the facts and materials for the purpose of determining whether the defence is merely a pretext to avoid arbitration. He emphasises the importance of respecting the parties’ choice of arbitration by observing:
45.2. …Once parties have agreed to refer disputes to arbitration, the court must plainly discourage and discountenance litigative strategies designed to avoid recourse to arbitration. Any other approach would seriously place uncertainty on the institutional efficacy of arbitration. Such a consequence must be eschewed.[61]
Conclusion
The analysis of the judgment above reveals that this decision upholds a conservative approach not quite in line with the contemporary legislative and judicial reforms underway to strengthen arbitration in India. Also, this judgment is not in line with the pro-arbitration approach and may impede the growth of arbitration in India. Therefore, the authors most respectfully submit that it is both timely and essential to revisit the judgment by a larger Bench of the Supreme Court of India.
† Associate Professor of Law, Maharashtra National Law University, Nagpur.
†† III year student, BA LLB (Hons.), Maharashtra National Law University, Nagpur.
[33] A.P. Buildings (Lease, Rent and Eviction) Control Act, 1960.
[34] In Parripati Chandrasekharrao and Sons v. Alapati Jalaiah, (1995) 3 SCC 709, the Court held that “in the case of a tenant, the protective shield extended to him survives only so long as and to the extent the special legislation operates. The rights and remedies of the tenants are not vested and could be taken away”.
[38] Here, it is noteworthy that in Bharat Petroleum Corpn. Ltd. v. P. Kesavan, (2004) 9 SCC 772: AIR 2004 SC 2206, it was held that the Transfer of Property Act, 1882 is not a special statute and only codifies the general law of transfer of property. Thus, even if the present case falls within the purview of the Transfer of Property Act, 1882, the Booz Allen judgment cannot be relied upon. The same position has also been confirmed by the Calcutta High Court in Ambuja Neotia Holdings (P) Ltd. v. Planet M Retail Ltd., 2015 SCC OnLine Cal 7000, in which the Court held that the disputes governed by Transfer of Property Act are arbitrable as the Transfer of Property Act is not a special statute and only codifies the general law of transfer of property.
[45] Para 36, Olympus Superstructure (P) Ltd. v. Meena Vijay Khetan,(1999) 5 SCC 651.
[46] Para 33, Olympus Superstructure (P) Ltd. v. Meena Vijay Khetan,(1999) 5 SCC 651. The position that the arbitrator can grant specific performance of the contract has been reiterated in Lakshmi Narain v. Raghbir Singh,1956 SCC OnLine P&H 17: AIR 1956 P&H 249; in Fertilizer Corpn. of India v. Chemical Construction Corpn., 1973 SCC OnLine Bom 55 : ILR 1974 Bom 856, 858; in Keventer Agro Ltd. v. Seegram Comp. Ltd., Apo 498 of 1997 & APO 449 of (401) dated 27-1-1998 (Cal); the judgment of Delhi High Court in Sulochana Uppal v. Surinder Sheel Bhakri, 1990 SCC OnLine Del 250 : AIR 1991 Del 138 has been overruled.
The Supreme Court of India in Union of India v. Hardy Exploration and Production (India) Inc.[1] (Hardy Exploration) held that Indian courts will have jurisdiction to set aside the arbitral award under Section 34 of the Arbitration and Conciliation Act, 1996 in case the parties have not agreed for seat law and the Tribunal failed to determine it. The Court was faced with the question that when the arbitration agreement specify the venue of arbitration but does not specify the seat, then on what basis and by which principle, the parties have to decide the seat law. The disputed arbitration clause, in this case, provided Indian law as the governing law and arbitration to be conducted as per the Uncitral (United Nations Commission on International Trade Law) Model Law specifying the venue to be Kuala Lumpur. The Court determined India to be the seat law while deciding that it has jurisdiction for setting aside the arbitral award. In relation to this judgment, this article discusses the scope of the Court’s power to choose the law of the seat in absence of parties’ agreement and various approaches adopted by the Supreme Court of India to determine the seat law.
Court’s Authority to Select Arbitral Seat in Absence of Parties’ Agreement
Agreement on the choice of the law of the seat is essential as it clarifies that which court will have supervisory jurisdiction over the arbitration proceedings. Principally, parties are required to reach an agreement with regard to the choice of the seat law. In absence of such agreement, the Arbitral Tribunal has the power to decide the place of arbitration as per Section 20(2) of the Arbitration and Conciliation Act, 1996. Moreover, the Uncitral Model Law of 1985, on which the arbitration law of India is based upon, also state that the Tribunal will determine the place of arbitration in case the parties fail to do so.
The Arbitration and Conciliation Act, 1996 does not grant the local courts the power to select the arbitral seat. No such express power is granted under the Model Law. The arbitration statutes across the globe either allow the Arbitral Tribunal or the arbitral institution to decide the law of the seat in case there is no agreement between the parties regarding choice of the seat law. However, in few legislations like Swedish Arbitration Act and Japanese Arbitration Law, the local courts can select the arbitral seats in circumstances where the parties have neither agreed upon a seat nor a means for selecting a seat.
In India, Part I of the Arbitration and Conciliation Act, 1996 only applies when the seat of arbitration is India as stated in Section 2(2) of the Act. The Court while deciding the application made under the provisions of Part I has to determine whether the place of arbitration is in India or not. Therefore, in deciding such application the courts decide the seat law in case the parties’ agreement is silent on it.
Court’s Approach in Determination of Law of the Seat
The dispute regarding the choice of the seat law arises as the parties have been using the term “place”, “venue” and “seat” interchangeably in their contracts. The Indian courts in various cases have interpreted the agreement of the parties in order to determine the law of the seat. In Enercon (India) Ltd. v. Enercon GmbH,[2] the question before the Court was whether the phrase “venue shall be London” as used in the arbitration agreement imply that London was the seat law. The Supreme Court in this case, while recognising the test of the closest and most intimate connection held by expressly making Indian law as the governing law of the arbitration agreement and the underlying contract, the parties have designated India to be the seat of arbitration.
The Court in Harmony Innovation Shipping Ltd. v. Gupta Coal India Ltd.[3] applied the test of presumed intention and held that London will be the seat law. The Court came to such conclusion by stating that parties intended to make London as the seat law and for this there is ample indication through various phrases used in the arbitration clause like “arbitration in London to apply”, arbitrators are to be the members of the “London Arbitration Association” and the contract “to be governed and construed according to the English law”.
The Supreme Court’s judgment in Roger Shashoua v. Mukesh Sharma[4] (Roger Shashoua) sheds further light on the court’s approach to interpreting arbitration agreements, particularly regarding the parties’ implied choice of seat. The Court found that the designation of London as the “venue” of the arbitration in the absence of any express designation of a seat would suggest that the parties agreed that London would be the seat of the arbitration (in the absence of anything to the contrary).
The Supreme Court in Eitzen Bulk A/S v. Ashapura Minechem Ltd.,[5] held that since the arbitration clause stipulates that the dispute shall be settled in London and English law would apply to the arbitration, the intention of the parties is manifestly clear to exclude the applicability of Part I of the 1996 Act and thus, the conduct of the arbitration, as well as any objections relating thereto including the award, shall be governed by English law.
In other jurisdictions, courts have applied various approaches in order to determine the seat law in case of parties’ failure to do so. In one case, a court held that such an agreement could be inferred from the parties’ contractual relationship. In another case, the court identified what it considered to be the effective place of arbitration i.e. the place where all relevant actions in the arbitration have taken place; another court held that, the place of the last oral hearing should be deemed the place of arbitration.
Below is the table of the abovementioned cases where the Supreme Court determined the law of the seat.
The proceedings in such arbitration shall be conducted in English. The venue of the arbitration proceedings shall be in London. The arbitrators (…) merit. The provisions of the Arbitration and Conciliation Act, 1996 shall apply.
India
Harmony Innovation Shipping Ltd. v. Gupta Coal India Ltd.[7]
10-3-2015
If any dispute or difference should arise under this charter, general average/arbitration in London to apply, one to be appointed by each of the parties hereto, the third by the two so chosen, and their decision or that of any two of them, shall be final and binding, and this agreement may, for enforcing the same, be made a rule of court. Said three parties to be commercial men who are the members of the London Arbitrators Association. This contract is to be governed and construed according to the English law.
Any dispute arising under this Council of Architecture (CoA) is to be settled and referred to arbitration in London. One arbitrator to be employed (…) to be commercial shipping men. English law to apply.
Arbitration proceedings shall be conducted in accordance with the Uncitral Model Law on International Commercial Arbitration of 1985.
The venue of conciliation or arbitration proceedings pursuant to this article unless the parties otherwise agree, shall be Kuala Lumpur and shall be conducted in English language.
India
Comments
The above table clearly shows the different approach adopted by the Supreme Court in similar arbitration clauses. At one instance, the Court in Roger Shashoua[11] ruled London to be the seat law on the basis that it was the venue and there is nothing contrary to it whereas in Hardy Exploration[12], the court made India as the seat law as there was nothing contrary to it.
This decision illustrates the importance of clear drafting of arbitration clauses in order to avoid uncertainty and delays. A clear contractual choice of “seat” rather than “venue” would be better. Further, in cases where there is no express choice of seat and no institutional power to designate the seat law, such as in ad hoc arbitrations, it is important for the parties to apply to the Tribunal to determine a juridical seat so that such issues are not raised at the enforcement stage.
Himachal Pradesh High Court: The instant petition was related to Section 29-A of Arbitration and Conciliation Act, 1996 entertained by Jyotsna Rewal Dua, J. where the petitioner sought an extension of time.
Factual matrix of the case was that when the dispute arose between the parties the matter was referred to a sole arbitrator who was Superintending Engineer. The Tribunal was unable to conclude the proceedings within the stipulated time of one year. Therefore the period of the passing of award was delayed by six months, but the extension was not fruitful as the period expired and yet the case was undecided. It was further suggested by the Arbitrator to apply to a Competent Authority for further extension of time.
Hence both the parties requested the Authority for extension of time for a further period of six months. The Authority further directed the parties to take steps in accordance with the amended provisions of the Act, 1996.
Anil Jaiswal and Rameeta Rahi, counsels for the respondents submitted a letter dated 10-07-2019, addressed to the respondents by the Executive Engineer, to the effect that their office had no objection in case the mandate of learned Arbitrator if was extended by six months.
The Court observed that, Section 29-A (4) and (5) which provided that, if the award was not made within the period specified or within the extended period, the mandate of the arbitrator was to be terminated unless the Court, either prior to or after the expiry of the period so specified, extended the said period. It was further observed that the proceedings were at a final stage, hence, the Court allowed the petition. The parties, through learned counsel representing them, were directed to co-operate in the arbitral proceedings and not to seek unnecessary adjournments before the Arbitrator and an endeavor was made to complete the arbitral proceedings well before the time granted.[Devki Nand Thakur v. State of H.P., 2019 SCC OnLine HP 988, decided on 12-07-2019]
Supreme Court: The bench of SA Bobde and SA Nazeer, JJ has issued notice to Pometon Spa, an Italian company involved in manufacturing, marketing of steel shot and steel grit, in a petition filed by Rotocast Industries, an Indian steel grit company, for appointment of arbitrator for resolution of dispute between the 2 companies.
According to the petition filed by Swarnendu Chatterji and Pallavi Pratap,
the 2 companies had entered into a Joint Venture wherein Pometon supplied special manufacturing equipment to Rotocast and would then sell the steel shot manufactured by Rotocast in regions around the world.
However, the machineries that were supplied were faulty which led to manufacture of defective product right from the beginning.
Several requests were made to the Respondents on various occasions, however, no help on the part of Respondents to solve the problems, which led to the total failure on the Joint Venture Project.
The petitioner has incurred losses to the tune of around Rs. 11 Cr.
The dispute relates to Supply of faulty and poor quality of machinery pursuant to Agreements dated 23.12.2018, which contains Arbitration Clause and any dispute arising out of Principal Agreement is to be delivered by way of arbitration which the petitioner has availed by invocation of the arbitration clause.
Since the Arbitration Clause is in the Main agreement and not in the other 2 agreements entered into by the parties i.e. Supply Agreement and Distribution Agreement, the question that arises for consideration is,
“Whether the Arbitration Clause in the Principal Agreement dated 23.12.2013, which refers to two other Agreements i.e. Supply Agreement and Distribution Agreement will also be read into the other two Agreements vide the theory of Incorporation?”
The petition reads,
“It is settled law that, Arbitration Clause in the principal contract can be imported into the subsequent contracts, notwithstanding the fact that arbitration clause is not specifically provided for in the subsequent Agreements or Agreements which are concurrent with the Principal Contract. Such incorporation of arbitration clause to a subsequent contract has been statutorily recognized [Section 7(5) Of the Arbitration and Conciliation Act, 1996]”
The petition not just calls for appointment of the arbitrator but also deals with the following important questions of law:
Interpretation of Section 7(5) of the Arbitration and Conciliation Act, 1996.
Whether the arbitration clause in the main agreement can be read into the subsequent agreements
The arbitration clause in the agreement supersedes the dispute clause in the purchase order.
Bombay High Court: S.C. Gupte, J. while setting aside an arbitral award for patent illegality, observed that “any forum, which adjudicates upon the rights and liabilities of the parties based on a contract, is enjoined upon to determine those rights and liabilities in accordance with the contractual terms, be it a court or an arbitral forum.”
The respondents were the borrowers of the Madhavpura Mercantile Coop. Bank Ltd. whose accounts were declared as non-performing assets (NPAs) for committing default in repayment of loans. To expedite the recoveries, the Bank formulated Compromise Scheme of Settlement (CSS-2013). As per the CSS, the NPA date in case of respondents was expressly stated to be 31-3-2001 and it was expressly stipulated that no conditional proposal for settlement or proposal disputing the NPA date would be accepted. The respondents accepted CSS unconditionally. Later, the respondents raised a dispute about the NPA date and therefore disputed their liability under the CSS. The matter went to arbitration and the Arbitral Tribunal accepted the respondents’ case on the applicable NPA date and made an award in their favour. Aggrieved thereby, the Bank filed the present petition.
The High Court was of the view that the arbitrator exceeded his jurisdiction by reformulating the contract between the parties contained in the CSS. It was noted that CSS-2013 was not a statutory scheme and nothing prevented the petitioner from naming any particular date as the NPA date, 31-3-2001 was treated as NPA date on the basis of statutory auditor’s report. It was made clear in CSS-2013 that the scheme could not be accepted conditionally. It was for the individual debtor to accept or reject the scheme. The respondents accepted it unconditionally which brought about a concluded contract substituting the original contract of loan between the parties. The Court said: “The arbitrator, who was to adjudicate the rights and liabilities of the parties, was expected to determine such rights and liabilities under such contract, namely, CSS2013. It was not open to him to question CSS-2013 or relieve any debtor from his obligations under it on some notion of equity or sympathy.”
It was also observed: “The consensus between the parties to refer their dispute to arbitration merely implies that the parties are agreeable to have the dispute adjudicated by an arbitral forum as opposed to a court of law. The rights and liabilities, which are to be thereby determined, are the rights and liabilities arising under the contract. Such consensus does not in any way impinge upon these rights and liabilities.”
It was held that the impugned award, thus, deserved to be quashed, both on the grounds of patent illegality, since the declaration in it was in the face of a contract as well as for the reason of the arbitrator having taken an impossible view, or a view which no fair or judiciously mined person would take. [Madhavpura Mercantile Coop Bank Ltd. v. Rasiklal D. Thakkar, Commercial Arbitration Petition No. 179 of 2016, decided on 25-03-2019]
Supreme Court: The bench of AM Khanwilkar and Ajay Rastogi, JJ has held that the Chief Justice or his Designate, in exercise of power under Section 11(6) of the Arbitration and Conciliation Act, 1996, cannot directly make an appointment of an independent arbitrator without, in the first instance, resorting to ensure that the remedies provided under the arbitration agreement are exhausted.
Clause (c) of subsection (6) of Section 11 relates to failure to perform any function entrusted to a person including an institution and also failure to act under the procedure agreed upon by the parties. Noticing the intent behind the said clause, the Court explained the scheme of Section 11(6) and said,
“clause(a) refers to the party failing to act as required under that procedure; clause(b) refers to the agreement where the parties fails to reach to an agreement expected of them under that procedure and clause (c ) relates to a person which may not be a party to the agreement but has given his consent to the agreement and what further transpires is that before any other alternative is resorted to, agreed procedure has to be given its precedence and the terms of the agreement has to be given its due effect as agreed by the parties to the extent possible.“
The Court hence held that corrective measures have to be taken first and the Court is the last resort.
The Court also noticed that by appointing an arbitrator in terms of subsection (8) of Section 11 of Act, 1996, due regard has to be given to the qualification required for the arbitrator by the agreement of the parties and also the other considerations such as to secure an independent and impartial arbitrator.
The Court, hence, held,
“To fulfil the object with terms and conditions which are cumulative in nature, it is advisable for the Court to ensure that the remedy provided as agreed between the parties in terms of the contract is first exhausted.”
[Union of India v. Parmar Construction Company, 2019 SCC OnLine SC 442, decided on 29.03.2019]
12:03 PM: The Rounds Begin. We can see the nervousness and confidence on the faces of all the participants. Judges asking the claimant and respondents to discuss among themselves first about the procedures. Judges asked the participants as to who wants to go and present their arguments first along with their time slot. Claimant are saying that they should first go with the jurisdiction aspect and respondents agree on that. Claimant just started with arguments but judges asked them about the important facts of the case. Claimant are asking judges to refer to different pages to prove their case.
12:16 PM: The judges start with their grilling questions. Judges are asking if we have the alternative jurisdiction, why aren’t the parties approaching that forum. Claimant have put all the blame on respondent as that they are not understanding their issues. On that note judges asked the claimant to refer to mail send by respondents. Claimant states that the stringent attitude of respondents didn’t bring them to an amicable solution.
12:25PM: Time is over but the judges are still grilling the speaker 1 with their tricky questions. Claimant said if arbitration won’t work here, they will go to the court to get their rights. Claimant’ first speaker asked for one more minute to summarise her issues. Judges asked the time keeper to deduct the rebuttal time as speaker one exceeded the time by 4 minutes.
12:30PM: Speaker 2 started with her impressive arguments by cutting her time so that they speak for rebuttals. Judges asked the claimant whether they gone through the minute points or judgement which they are submitting or not. Respondents are discussing among themselves about the flawed points raised by claimant.
12:42PM: Judges give 1 minute to the claimant for them to summarise their arguments. Judges asked the respondent about the judgement raised by claimant whether it is overruled and if claimant are misleading the court. Claimant closing their arguments said that they are not liable to pay their damages. Judges gave 2 min to respondent to start.
12:48PM: Here the respondents started throwing their arguments to save themselves. The judges started grilling them about on the procedures. Respondent looking tensed on the questions asking by the judges. But she regain her confidence and answering judges with their arguments. Respondents ask to let them move to their second submission to prove the 1st argument. She is stuck in the question asked by judges with the definition of freight.
13:03PM: Judges throwing questions on respondents and now respondents are in fits. Counsel seeks permission for extension of 2 min to prove their points against claimant. Now the speaker 2 of respondents started to solve 3 issues. Judges asked the speaker 2 to refer to problem to get them stuck them in their own argument. Judges confirming the procedure and law quoted by claimant to respondents. Judges asked whether you know the procedure, answer YES or NO. They say YES it’s given in the manual. Judges asked to show the manual but sadly they don’t have that.
13:23- Judges said that they are not agreeing to the point states by respondent . And the rebuttals started with points from claimant side in one mint they have to rebutt the points quoted by respondents. Due to shortage of time and a lot to speak, Claimant speaker is running like Rajdhani express. And here the respondent superfast express also started for one minute to clear their way to win the prelims.
13:29- And TIME OVER
13:42- Feedback session begins.
COURT ROOM 2: (107C v. 112R)
12:10- The court room 2 started with the first session of the day.
As soon as the Claimant’s first speaker started, she was soon interrupted. Not by the judges, but by the noises of the fan. Quite funny.
She had a calm and very peculiar way of speaking. As if she’s explaining a 3 year old. And the speaker seems to be very well acquainted with her issues, she had all the time to explain her arguments. Judges just inquired a bit so as to check the knowledge and grip of the speaker. She tackled every question calmly. Judges appeared to be satisfied.
12:25: Contrary to speaker one, speaker two is very bold in the manner of putting her arguments. All her arguments revolve around the matter related to loading. The bench interrupted with a few factual questions, which the speaker has already anticipated. Yet, it can be observed that facts aren’t in their side, hence they had problems in convincing the judges.
But the 2nd judge asked practical and analytical questions. “indeed Mr. President, but Mr. President”, that’s how the speaker two of the claimant side gives clarifications.
12:50- Speaker-1 of the respondent’s side started with a question apparently. Speaker didn’t have a great start, he seems to stumble with his arguments, the bench didn’t leave the chance to exploit this. He has to be careful, because his loudness is bothering the judges, beware! Don’t get too friendly with the judges, the bench made this very clear by repetitive questioning. It takes a turn into a debate, his partners are worried. Judge 3 gives a warning! “you should be clear in your submissions”.
1:15- 2nd speaker started with her issues. She speaks with an authority. The bench has started to ask a lot of questions, hardly giving time to the respondents to put forth her arguments. It can be noticed that the issues which respondents take up, seem to get attention of the judges as if they are incorrect or objectionable, hence a lot of interruptions from them. Respondents and judges share a lot of smiles while the session continued. The respondent side is very adamant on what they are saying, neglecting what judge questions. It took hardly any time for the judge’s to figure this out.
1:30- Claimant started with the rebuttals, with paucity of time, she hurried through her arguments. Document submission added to her misery. Judges were satisfied as they smiled towards respondents. Grilling wasn’t helping them at all.
1:40- The respondent mentioned the claimant memo as soon as they started the rebuttal. “master should not be a man of ordinary prudence”, mentioned the respondent.
COURT ROOM 3: (109C v. 110R)
12:33-Proceeding has started in CR3 Claimant are given the chance to present their side first although they seems to have prepared but speaker one seems little nervous but is trying to answer arbitrator in all possible ways.
12:35- Speaker two of claimant side has started arguing and its interesting to see that she is very confident with what she speaks
12:39- Speaker one of respondent has started arguing. But speaker is not able to answer exact answers of arbitrator but have answers for all possible questions the issue arbitrator is sticking on is whether the moot problem is English law or Indian law.
12:55- Speaker two of respondent has started arguing but when arbitrator questions about section 28 of Indian contract act the respondent was not able to answer. But one thing is clear that researcher of respondent is well aware with problem and throughout helping speaker when judges knocks with any question.
13:05- Speaker one of Claimant has started arguing in rebuttal.
13:08- There was one moment when arbitrator asked from respondent side for copy of an document and respondent denied by sarcastically speaking of financial issues and everyone started laughing. It was so needed to change the atmosphere of moot hall.
13:10- Rounds one in CR3 finishes.
COURT ROOM 4: (124C v. 123R)
12:11 PM: 124(C) speaker 1 starts and seems quite calm, confident and well versed. The Judge tries to confuse the speaker and the speaker successfully manages to stick to what she said before. The judge points out the speaker’s failure to understand the crux of the matter she is presenting. The speaker admits and moves on to the next point. The Judge says that the party hasn’t satisfied Article 49(1) which has to be satisfied before going to Article 49(2) due to which they can’t hear them on merit.
12:24 PM: The judges point out the paucity of time that is just 2 minutes and therefore ask the party to mention their arguments on merits. The judge questions the speaker on the point of reasonable care. The judges don’t seem to be fully satisfied with her answer.
12:38 PM: The Second speaker, that is, the Co-Counsel finally gets her chance to start after extended time of Speaker 1. The judge claims that the party hasn’t submitted the documents relating to the Pumping logs, i.e., the most important law. He again explains it by giving an example that “If you go to the Visa Office and submit every document other than the most important. So you can’t claim it by arguing that you have submitted 10 other documents.”
12:46 PM: The Judge being hilarious says, “Fine we are ready to accept your persuasive argument, but at least persuade us.” Later, the judge points out that the speaker deliberately isn’t disclosing a fact because it is against the party to which the speaker hesitantly agrees.
12:55- The Complainants conclude their arguments with the Prayer.
12:55- Team 123(R), the speaker 1 starts but in a low voice. He seems stressed out due to the grilling which the Complainants faced. The Grilling continues. The speaker battling hard to maintain his composure.
COURT ROOM 5: (119C v. 103R)
12:13 PM: The speaker from the claimant is a bit shaky, he was stopped by the judge as soon as he started He is being constantly questioned. The judges were satisfied with the answer which the speaker gave after looking out in his memo. The speaker is constantly referring to memo and reading out from it. The speaker has gathered composure and is fluently arguing on third issue. Judge posed a question but now the evermore confident speaker was able to answer it without looking for the same in his notes.
12:26 PM: Persistent questioning by all three judges has pushed the speaker on back foot, he is taking his time. The speaker was asked to move on to the next issue for he was not able to answer the last few questions. The questions continued from the very beginning of the new issue. The speaker was able to hold on and answered answered most of them .a judge approved his efforts by exclaiming “good job”.
12:43 PM: Speaker two was helped by the first speaker in between, last question posed remained unanswered by both the speakers, so the judges moved on to the respondents. Speaker from the respondent side looks well versed, he was asked a question related to authority of a case, and his response left all three judges chuckling.
12:51 PM: Oopsie! The speaker from respondent side gave a self-contradictory argument. Judges spotted it. He still is beautifully arguing. Must seem impressive to the judges. He is answering the questions with utmost confidence and a smile on his face. Judges seem interested.
13:17- Smooth round of question and answer going on between arbitrators and the second speaker.
The Round Ends.
COURT ROOM 6: (108C v. 127R)
12:10: And the round starts! The speaker from side claimant seems to be nervous. One of the judges abruptly asks the speaker to move on the issues.
12:14: The judges have begun to grill the speaker with just 3 minutes into the round. The speaker is becoming easily flustered.
12:18: Side respondents are listening quite intently to the arguments of the other side and are frantically taking notes. On the side, the speaker is almost done with her first issue.
12:19: With only 5 minutes to go, the first speaker from side claimant has moved on to the second issue. The judges are asking questions to test the fundamentals of the speaker.
12:22: Two minutes to go! The speaker still remains nervous and her confidence is being tested by the judges.
12:24: Time’s up!!! The speaker tries to make a quick exit, but the judges aren’t quite ready to let her go.
12:28: The first speaker after some questioning from the judges has concluded her case. The second speaker has from side respondents has begun and seems to be more confident than her co-counsel.
12:30: The second speaker is well versed with the facts of the case. However, in the face of increasingly complex questions, she is becoming flustered and confused.
12:33: With ten minutes to go, the judges are still questioning the speaker on her knowledge of the technical aspects of the case.
12:36: Oops! Here’s a bouncer of a question from the judges! The speaker has requested the judges to give her some time to answer the question.
12:40: With two minutes to go, the speaker seems to have answered the questions posed by the judges satisfactorily.
12:41: The speaker has requested the judges to grant an extension of thirty seconds, which the judges have agreed to. She has moved on to her second issue.
12:44: The judges have been repeatedly interrupting the speaker and she seems to be unprepared to answer the questions. Her co-counsel is frantically passing her chits.
12:50: Side claimant have begun with their arguments, and their speaker, in contrast to side respondents seems to be very, very confident with her facts and the law associated. She keeps pointing out to the facts and the relevant sections.
12:53: With five minutes to go, the speaker from side respondent is moving confidently with her arguments. However, in the face of incessant questioning from the judges, she is beginning to lose her cool and is getting perturbed.
12:59: Time’s up! However, both the speaker and the judges have ignored it.
1:01: The timekeeper keeps waving her placard, which is ignored again. Funnily, more than the speakers, it is the timekeeper who seems to be frustrated!
1:03: Finally! The second speaker has begun with her arguments. She definitely needs to work more on her mannerisms and demeanor.
1:08: Ten minutes to go! The judges seem to have found a serious contradiction in the arguments of the speaker and are grilling her heavily on it.
1:12: As expected, the speaker pleads ignorance to the questions and directs the judges to the compendium. She seems to be disappointed at herself.
1:11: The judges are on fire! They are questioning the speaker on the applicability of laws and it looks as if the speaker is ready to give up.
1:13: Due to the paucity of time, the speaker requests an extension to put rest of her points forth.
1:19: The speaker requests for an extension of six minutes, and the judges look amused at this. They grant an extension of three minutes.
1:18: The atmosphere in the courtroom is tense as both the judges and the speaker are getting heated up. This clearly reflects in the demeanor of the speaker, and the judges are not pleased by this.
1:23: One of the most repeated words in this round has been ‘extension’. Since its time for lunch, the timekeepers trying to get the judges to complete the round.
1:27: The speaker has requested an extension of six minutes. The timekeeper, realizing that there is nothing much she can do, smiles sadly at this hungry courtroom reporter as well, who returns the smile.
1:29: In the face of difficult questioning, the speaker pleads ignorance and tries to make a quick exit.
1:37: This round, which was supposed to have ended over fifteen minutes ago, has finally moved on the rebuttals. The claimant have three rebuttals, and the respondents seem to be prepared for it .
COURT ROOM 7: (126C v. 125R)
12:12- Team 126 as the claimant in CR 7 has started strong on law, though they seemed to fumble a bit with the facts. However, they regained the footing soon.
12:45- TEAM 125 (R) – While the judges started grilling the claimant at a later stage, they opened fire on the respondent from the very beginning.
COURT ROOM 8: (120C v. 101R)
12:13 PM: The counsel for the petitioner begins with briefing judges on the facts of the case. The judge questions the counsel on the difference between a seat and venue of arbitration, and the counsel answers with little success in convincing the judges. The counsel is perplexed as to what is the applicability of Indian and English law in the instant case. The question of venue and seat of arbitration the judge has brought in seems to have fazed as the counsel. The judge grills the counsel on the same and also with respect to the applicability of the English and Indian law. He is caught in one argument and the judges are again grilling him on the same.
12:27 PM: The second counsel has started with her arguments. And the judges have brought her back to the facts of the case. The counsel is left perplexed by a question asked by the judges. She asks for the permission to answer the question in the end. However, she’s denied of it. The judge asks the counsel a question that she seems to have predicted, and answers the judges confidently. She’s further questioned on facts, and she’s left perplexed. She takes time to collect her thoughts.
12:39 PM: The time for the petitioners is up.
12:40 PM: The counsel for the respondents begins with his arguments, and is showered with questions with respect to the jurisdiction of the tribunal. The Counsel is asked the same question with respect to the difference between the seat and venue and arbitration, and applicability of English and Indian law in the instant case which the counsel answers to much satisfaction of the judges. The judges grill the counsel on the facts of the case with respect to the reply of emails.
13:04 PM: The co-counsel for the respondents begins with his arguments. The judges ask the counsel certain questions that leave him baffled. He takes a few moments and collects his calm to answer the questions put forth. The counsel is questioned in respect with the applicability of a particular case law in the instant case which fails to answer convincingly. The counsel concludes with the arguments following which the counsel for the petitioners starts with her rebuttals.
13:40: The co-counsel for the petitioner makes an argument, which the judges find extremely contentious, which they say is contentious to the power of infinity. The co-counsel is grilled further on the argument he makes.
The Round ends.
COURT ROOM 9 (118C v. 106R)
12:04- The speaker asked the Judge to proceed with their opening statement. After speaker made the opening speech the Judge asked the the speaker to state the facts in 5 pin points. The Judge is concerned about the rebuttals and sur rebuttals and explained it to the parties.
12:07- The Speaker 1 of the Claimant put down the argument that the arbitral tribunal has no Jurisdiction. The judge seems to be curious to listen this argument. The Judge asked the difference between may and shall . However, the Judges seems not satisfied with the answer of the Claimant.
12:13- The Claimant put forward the argument for jurisdiction. For this again the judge feels not so satisfied with the arguments and asked for the case laws for which speaker submitted the Cable and wire case. The Judges grilled the Speaker 1 on the applicable law before the bench. The Speaker submitted that the substantive Law will be dealt with English Law and the procedural part will be dealt with the Indian Law.
12:18- The Judges were not at all impressed by the speaker 1 as she interrupts the judge while they ask questions. Also, she is heavily relying on the Black law’s dictionary which the Judge finds to be not appropriate.
12:19- Due to paucity of time the Judges asked the speaker to come to her second issue. The Claimant submits that the master is incompetent. It seems that judge are here to ask a lot of question as they again started to ask the question as to how the master is incompetent. Here, the speaker manager to keep her calm and satisfies the judges by her answer.
12:21 The judges asked to summarise the point as the speaker is running out of time.
12:23 To the surprising, The judges asked the Respondent to address the issue of Jurisdiction as has been submitted by the Claimant also. Before that the judges also ask to state the facts of the case in 5 pin points.
12:24 The speaker started with the issue of Jurisdiction and the judges seem to be interested in the argument. The judges ask the party to explain the applicable laws in this case.
12:26 The speaker cited a case of 1992 where the Judge question that the arbitration law is of 1996 then why we accept the case of 1992. The Speaker has no answer to this.
12:33 The Judges said that we don’t have Jurisdiction as you first have to go to a amicable settlement before coming to this tribunal. For which the speaker for Respondent submitted that the Claimant were not ready for that.
12:37 Time’s up for the speaker 1 Respondent.
12:38 The Speaker 2 of the Respondent made the opening statement by stating the structure of the arguments to be submitted before the Court.
12:42 The Judge asked the speaker 2 to explain the Standard Industry Practice. The speaker answered the question was calmly and the judges also feel satisfied with their research. The speaker also cited a case for this.
12:54: The speaker started with the second issue and it seems that the judge is ready to grill the Respondent on this issue. However, the speaker 2 being very composed and confident about his issues and facts of the case answered every question very politely.
12:59 The speaker 2 of the Claimant started with the opening statement. Speaker 2 explained the structure to the judges and proceeded with the 4th Argument.
1:02 The Judge put down many question to the speaker 2 of the claimant and the judges were very impressed by the advocacy skills of the speaker 2.
1:12 The judge asked the speaker 2 to address the cost issue before the bench. The speaker submitted before the court and judge seems satisfied with the arguments made by speaker 2.
1:20 God save the teams! This was really a hot bench and the judges were so inquisitive. From the under confident 1st speaker of the claimant to the great 2nd speaker of the claimant. From the panicked 1st speaker of the Responded to the highly confident 2nd speaker of the Respondent the round ended here.
Round Ends.
ROUND 2
COURT ROOM 1 (128C v. 105R)
14:53 PM: Claimant started with its arguments after taking permission from the judges. Claimant started with its arguments after taking permission from the judges. And here the judges started with their grilling questions which the claimant are answering confidently. Claimant pleads ignorance on the question asked by judges. Not answering the question, counsel asked to move to other time due to paucity of time. Claimant request the judges to refer page of fact sheet to prove their case
15:02 PM: Claimants cited a case without reading the whole case which bring th judges in fits. Judge asked the claimants to refer to factsheet to clarify their position
Claimants talking among themselves on every questions judges are asking and judges are taking note of that. Judges asked what is contract. Reply to it: IT IS CONTRACT.
15:17 PM Judges asked the speaker 1 to clarify the point of speaker 2
And here the grilling starts.
15:19: Respondents starts. Judges asked another question for grilling asking to clarify the first answer. Respondent states the case which judges asked the facts. The respondent quoted that facts are not ok but the law is relevant. Respondents asked the counsel to refer to memo to win their situation. Respondents stuck in the papers to search for the answer on the question asked by judges. Judges gave one more minute to sum up their arguments.
15:26 PM: Judges said that they were supposed to follow the procedure to claim the damages. Judges gave one solution to the problem but respondent refuse to take that solution. Now the judges asked the same solution. From claimant which claimant agree. Judges gave one more minute to respondent. Respondents asked for few seconds to get the facts. Second grilling with speaker 2 of respondent starts
Claimants are listening very carefully to the arguments of respondent and ready to rebut. Claimants asked for rebut. But respondents refused for sur-rebuttals for exceeding the time.
COURT ROOM 2 (102C v. 114R)
3:05 PM- Claimant’s speaker started slowly with the facts, judges soon asked the speaker to go on with the arguments. Speaker started calm and steady. The speaker cited a struck down case to back his argument which the judges pointed out. The speaker, even when unable to give passable arguments, has not lost her calm. As and when the claimant brought the notice of the arbitrators to the things incorporated in the memo, probably considering the fact that they may help her justify her stance, things actually got worse, as judges started grilling. Now her every argument was being questioned by the bench as the speaker failed to give a satisfactory answer. Judges, asked the claimant to move further with her points. But to her dismay, she seem to have lost the confidence and was stuttering a lot, while the judges kept on questioning.
3:20 PM- Speaker 2 gave a broad structure of his speech, of how he would be proceeding with his arguments. He was quite confident, even when the questioning started. He rushed with his issues so as to cover all the points her partner couldn’t complete due to continuous grilling. The judges probably thought that the speaker can surely not be questioned on his knowledge of the laws or on the facts of the case, as the manner in which he spoke showed them that he knew whatever he was possibly dealing with. Although, he was struck down by a minute long question, which he tried to answer in a systematic manner, but the argument took an unprecedented turn. Judges after getting an unsatisfactory reply, grabbed the opportunity to question the same point. But he found a way to collect himself and successfully faced the further question.
3:45 PM- Before the respondent could start, the court room was dead silent. With judges going through the submissions, respondent tries to recollect whatever he has planned.
3:50 PM- The Speaker 1 from the side of the respondent takes the stage, and begins to make his submissions in a calm and steady manner after due permissions from the judges. The speaker makes several references to the fact sheet as well as the written submissions made by them. Argumentations were quite confidently put, with ample references to case laws which help him substantiate his submissions. The speaker faced all the queries of the judges in a very calm and satisfying manner. He was prepared for such grilling, it seems.
4:10 PM- Speaker 2 respondent started off by stating the facts that correspond to the issues that he was dealing with, after which he justified as to why their stance was better and more justified in nature than that of the claimants. As the day progressed, it was observed that the judges chose not to interrupt the speaker in the beginning, they gave a few minutes to the speaker so as to let them put for the argument. He did a great job and maintained an organised and structural speech all across his allotted time, but he failed to give the authority behind his last issue, which might back lash on the scoring.
4:25 PM- Rebuttal started for the claimants. He again pointed out some scientific facts from the problem and connected it with legal intricacies.
4:27 PM- Before rebuttals for respondent, judge asked a question which they failed to provide a satisfactory answer to.
4:29 PM- It started with a heated argument with speaker looking at the claimants. He pointed out the opposition’s citations and argued about the jurisdiction of the courts.
Round 2 ends.
COURT ROOM 3 (111C v. 121R)
14:58 PM: Speaker one of claimants’ side has started arguing but judges again ask the same question of whether Indian law or English law should be applied. Arbitrator asks the question of why the claimants went for the last resort of arbitration when they had the choice of resolving dispute amicably
15:02 PM: Two minutes of the allotted time is left but speaker one of claimants side is speaking
15:11 PM: Speaker 2 from claimants’ side starts arguing
15:14 PM: There is issue of maintain temperature in voyage but claimants are of the view that it was just because of the product being shipped and they always maintained the required temperature.
15:17 PM: Respondent starts.
15:26 PM: It seems that speaker one of respondent is not aware of the facts mentioned in imam preposition itself. And taking lot of the time to answer the facts.
15:45: Rebuttal for round two starts
15:50: Round two end.
COURT ROOM 4 (117C v 115R)
14:45 PM: 117(C) Speaker 1 Starts. He’s calm and is slow and deliberate in keeping his points. But the Speaker retracts from his submission.
15:01 PM: Speaker 2 from the Claimant side starts with questions being shot at him by the judges. He seems a little nervous. The judges are giving a hard time to the speaker on grounds of Jurisdiction. They stress upon a factual background of the case before entering into the arguments. The Judges ask the Speaker to prove that there was a failed negotiation before they came for arbitration.
15:17 PM: The Speaker 1 from team 115(R) starts with a flow. But the speaker fails to address first things first. The Speaker loses her flow as she confuses the facts thus giving the Judges chance to question.
15:30 PM: Speaker 2 from the Respondent side gives wonderful arguments but it somehow does not apply.
15:52 PM: Rebuttals begin. The judges make it clear that all the Rebuttals would be on the law and not on the facts. After a long argument with the Speaker 2, the judges finally agree to her after she cites authorities.
COURT ROOM 5 (104C v. 107R)
15:00 PM: Round 2 starts
Speaker 1 from claimants started on a good page but has been losing confidence with each question being posed to her. Persistent questions. Stammering, too much blinking, much less eye contact. She is trying hard but has gone shaky. Arbitrators provided a much needed relief to the speaker, just listening to her, questions are stopped.
15:10PM: Time’s up but the arbitrators are still left with one or two questions. Speaker 1 handled the last question quite well. Speaker 2 starts.
15:27 PM: The speaker is being questioned on some technicalities. Judges doesn’t seem to be much moved, but he calmly answered most of the questions. Speaker 2 mentioned a manual to prove his point. Arbitrators wanted to have a look at the same. Speaker 2 was praised a bit by the arbitrators. Now the respondents will start.
15:40 PM: Good start for the respondents, the arbitrators are patiently listening to the speaker. Not much questioning, just a few questions; that too are being comfortably answered by the speaker. Speaker 2 calmly lays out the structure for her arguments.
Debate begins between arbitrators and the speaker regarding obligations of ship owners. Reasonableness of the ship employees was also discussed. The judges are extremely lenient.
16:07 PM: The time has elapsed but the arbitrators still provide few extra minutes for letting the speaker 2 conclude. Rebuttal starts. Speaker from claimants 1 was asked to slow down a bit by the arbitrators so that she can be properly heard. The problem she pointed out was praised by the arbitrator.
16:27 PM: Judges were really impressed, both teams did quite commendable jobs. No need for feedback for teams that were this good. Just appreciation given by the judges.
COURT ROOM 6 (112C v. 109R)
2:52: Welcome to Phase II of the Preliminary Rounds of the Fourth Edition of the Bose & Mitra International Maritime Arbitration Moot, organized by National Law University Odisha. The speaker from side claimants has begun confidently, however, his manners and demeanor for sure leave much to be desired. He will certainly be marked down for it.
3:03: The second speaker for side claimants has begun with her arguments. Meanwhile, the judges have made it explicitly clear that they are not satisfied with the first speaker’s performance.
3:06: The judges have begun grilling the second speaker with only two minutes into her arguments. The speaker has conceded ground and this has not been taken well by the judges.
3:18: Time’s up! In the face of the incessant questioning for the past ten minutes, the speaker has conceded considerable ground. The demeanor of the speaker has suffered severely, and she will be certainly marked down by the judges for it.
3:19: The speaker from side respondents has begun, but has already pleaded ignorance to the questions posed. The judges have rejected most of his arguments, and he seems to be flustered.
3:25: The atmosphere in the courtroom has considerably heated up in spite of the air conditioning running at full blast. The speaker has cited a Swedish case law, however, the judges have rejected it on the ground that the case belonged to a common law jurisdiction. This has not been taken well by the speaker, who tries in vain to convince the judges as to the relevance of the case.
3:26: Two minutes to go, and the speaker has moved on to his second contention. He looks extremely frustrated at the questions and has lost his cool. The judges seem to be in a bad mood as well, and are not ready to accept any of the arguments.
3:35: The first speaker from respondents has completed, albeit on a bad note. The second speaker tries to begin, but is interrupted immediately by the judges. Their dissatisfaction is evident on their face, and one of the judges looks almost bored of the proceedings.
3:42: One of the points put forth by the respondents has generated considerable interest and activity on the claimants. Notes and chits are frantically passed, and they keep referring to their memorials.
3:45: The speaker is definitely frustrated and makes contradictory claims, which is immediately picked upon by the judges. Two minutes to go!
3:47: The speaker tries to begin with the counter-claim, but time’s up! The judges however, ask the speaker to continue.
3:50: The judges have asked the speaker to conclude and summarize her arguments in one minute. The speaker is unable to answer most of the questions posed by the bench, and looks confused and muddled.
3:55: The judges try to test the understanding of the speaker’s understanding by putting forth questions based on hypothetical situations. She pleads ignorance to one of the questions, and moves on to the prayer. Even here, the prayer is ridden with contradictions, and the judges pick on it immediately.
4:03: The round has moved into the rebuttals, and the judges seem to be satisfied with the rebuts made by the claimants. The speaker from side respondents earnestly tries to begin, but is immediately interrupted and is asked to move on to another issue. Must be frustrating indeed.
4:07: Time’s up! The round has ended, and the judges have huddled into a discussion. That is it from Court Room 6, stay tuned for the next phase!
COURT ROOM 7 (110C v. 124R)
The Judges send their regards to their fans on the SCC blog.
15:00 – Amped up from their previous round, Team 110 (Claimant) started very strong and confident, both in terms of presentation and content. Even though the judges started grilling immediately, the speakers were able to keep their calm and answer without fumbling!
15:20– While the speaker was confidently answering the rapid-fire questions, she was unable to manage her time properly and ended up having to summarise an entire issue in 1 min, which she still did admirably even when the judges questioned on that issue further.
15:40 – The speakers of team 124 (Respondent) started off much more calmly and professionally than Team 110. Over the course of the speech of the first speaker of team 124, it was evident that she had the conceptual clarity to answer and satisfy the judges on most of the aspects!
16:00– the second speaker had a similar presentation style as her co-speaker, though a bit more nervous. But she was still able to satisfy the judges on most of the areas of concern. However, Team 124 exceeded their time limits by a greater margin than Team 110.
Overall, the second round was far more engaging and fruitful as both the parties as well as the judges were proactively participating in the rounds. This allowed for a much more comprehensive discussion!
COURT ROOM 8 (123C v 119R)
15:35 PM: The counsel for respondents begins with his arguments on jurisdiction, and is grilled on the same. He fails at convincing the judges with his answers, and thus, has to concede. He is felt baffled as he is asked to skip through most of his arguments, and is asked to come to the conclusion. The co-counsel begins with his arguments, and is flustered for most part of his speech, as the judges shower him with questions that he seems unprepared to answer.
15:40 PM: The counsel for the petitioners begins with his arguments, and is caught up in a plethora of questions on arbitration, but manoeuvres his way through them smoothly. He then yields the floor to his co-counsel. The co-counsel begins arguing on the weight of the cargo and other details, and struggles to answer the questions of the judges convincingly initially, but eventually succeeds in answering the questions successfully.
16:19: He is flustered as the judges grill him on the limitation and their claim in the instant case, and is further grilled on questions of law regarding arbitration and an interesting head to head is observed. He eventually concludes his arguments, and rebuttals are followed by it.
The Rounds End.
ROUND 3
COURT ROOM 1 (103C v 108R)
16:52 PM: Round 3 start directly with grilling questions
Judges asked the claimant about the clause in the fact sheet. They said they are aware about it. Judges ask the speaker 2 from where they came to know whether it is there in Singapore or not. And claimants said that they do not have it.
Claimant ask the judges to clear the questions as they didn’t understand it. And judges are elaborating it. Judges asked the claimants to read the clause loudly to bring them to the point. They asked the claimants to clearly listen to question and then answer. Claimant asked judges to please allow them a moment to clarify themselves.
17:31 PM: Judges asked them to not to give brief of the facts but proceed with arguments
Respondent starts. Judges asked the respondent whether they want to argue that whether the 3rd arbitrator is not neutral? Judges asked the speaker 2 if they want to clarify the point of speaker 1.
17:48 PM: Judges asked the elaborate in standard industry practice and whether they complied with it or not. 2 claim ignorance 2nd time. Respondent didn’t gave the sur-rebuttals.
Round ends.
COURT ROOM 2 (127C v 126R)
5:20- Speaker 1 of the claimants began with her arguments in a quite impressive manner. She gave a thorough briefing of the facts and moved swiftly towards her issues. She seems to have structured her issues very well. It can be understood even by a person who has no interest in this particular case. Speaker has been inclusive of every possible aspect of the issue. With her thorough understanding and eloquent manner of portraying the situation, she tackled the questions of the tribunal in an effective way. Puff!! The speaker starts raising allegations against the respondents according to the facts, that too in an aggressive way. And the time’s up!
5:40- Speaker 2 takes over the duty. She will be substantiating the further arguments, just like her co-counsel, she too, has a persuasive way of speaking. But as soon as the 2nd minute started, judges started the grills. The composed manner of dealing with the questions seems to have made even the judges silent or maybe it’s just been a long day! But the judge 3 keeps on interrupting the co-counsel. Both the speakers are so well versed with the facts, provisions, issues involved, it’s commendable. Speakers got away with only a few questions to face. Although the round was extended for a minute or two, which surely might turn into there favour!
6:06- It can be seen one member from the respondent side is missing. With only 2 people, Speaker 1 from the respondent side initiates his attacks! on the contrary to their claimants, has a sangfroid demeanour. Just when he started, he was asked to give a brief on the facts of the situation, he stumbles to his first issue. First minute into the issue and he pleads counsel’s not aware. It isn’t good for them! Their opposition already have an upper hand with eloquent speakers! But he finds his feet and moves in a fluent manner. He has been quite sure of whatever he is saying, with a few queries from the tribunal, he puts forth his issues.
6:17- Speaker 2 got no time to gather himself and has to go ahead with his arguments. He aims at extending what his co-counsel had just said. The tribunal kept on intervening, it’s not looking good! It’s certainly not going according to what they might’ve planned. As the grilling continues, the claimants seem to enjoy the questioning, but subtly paying attention to what judges are pointing out. As live bloggers we can totally relate to what judges are going through! For a whole day, wearing formals and bombarding questions on the poor participants!
6:40- Claimants rebut in a very short way due to shortage of time. speaker-2 of the claimant, without wasting any second starts raising question. The thoroughness with which they have read the respondents memo, seems to have impressed the judges.
6:42- Respondents have rebutted each an every point during the course of their issues.
COURT ROOM 3 (125C v 120R)
16:35 PM: Round three starts
16:43 PM: Speaker one of claimants’ side starts arguing there are some instance where speaker is left blank and arbitrator suggest them to cope up with time. Judges have told claimant not to use the term imam preposition and to go just with preposition.
17:04 PM: Speaker two of the claimants starts and is not able to answer the tricky questions of judges.
17:12 PM: Speaker one of respondent starts with introducing themselves but judges ask him to jump to the issue.
17:24 PM: Speaker two of respondent argues.
17:33 PM: Nothing much to say but speaker was quiet good and judges are impressed by the respondent performance
17:33 PM: Rebuttal starts.
Round three ends
COURT ROOM 4 (101C v 118R)
16:50 PM: 101(C) Speaker 1 starts. He seems to be very good speaker and takes his time while speaking.
17:08 PM: The judge mentioned that though the Argument advanced by the speaker was good, it couldn’t be held because it was not related to the context of Cargo.
17:30 PM: The Speaker 2 battling hard and trying his level best to convince the judges
17:32 PM: 118(R) Speaker 1 starts.
17:40 PM: The Speaker has a well-structured content and therefore even after being interrupted so many times by the judges, he maintains his flow and doesn’t let anxiety ruin his composure.
17:59 PM: BAM! A confusing question! But the speaker takes a moment and answers. The judges seem satisfied.
18:15 PM: What seemed to be a never ending round finally comes to an end.
The judges were highly impressed with both the teams due to their innovative arguments. The repetitive words during the Feedback session was Brilliant! And Amazing!
The magnitude of the arguments advanced by both the teams was something that even our judges hadn’t anticipated.
COURT ROOM 5 (106C v 128R)
17:15 PM: Round 3 gets under way.
17:26 PM: Counsel hasn’t timed his argument well, first issue took most of the time, he faced a lot of questions, he was able to comfortably answer most of them, but was he able to persuade the judges, can’t say so.
17:30 PM: and time’s up, but the questioning continues, an extra minutes is given. Yet another time it is reminded that time’s up but it seems that the judges are not letting go the speaker without a satisfactory answer.
17:34 PM: Finally the co-counsel gets a chance to speak, she lays put the structure of her arguments. Speaker one is looking troubled, as if he forgot to say something that he only remembers now. He is just blankly looking around. The second speaker is confident in her approach. The speaker is laying out factual arguments. The respondents are keenly interested in the question-answer between the speaker and arbitrators.
17:40 PM: The speaker has facts at her finger tips, questions based on facts were easily answered by her. Speaker 1 intervened to answer a few questions posed by judge. No time left. The judge is lenient regarding time and the argument continues. All three judges are bombarding questions. The speaker remains structured and calmly answers the question, but his every answer is leading to another question by the judges.
17:53 PM: The argument still goes on. Two judges pouncing upon him at the same time. I won’t say they are doing any grilling, they are just looking for satisfactory answers.
6:20 PM: Co-counsel started with an assumption, judges won’t allow that, moreover that assumption was contradictory to the argument put up by his own co-counsel. The judge asked to let go the submission, because it was not helping the respondents.
Poor speaker one, he is rubbing his eyes, shoulder all drooped down, it seems he wasn’t really ready for all this.
6:20 PM: I must say this speaker was grilled, it ended when he was asked to find something in the preposition while the co-counsel gets a chance to speak.
6:30 PM: Respondent counsel starts the argument. Even before the speaker could have said anything, he was asked a question which made him baffled, he was forced to move on to the next issue, he is not getting any chance to get back, another question, and yet another. Judges are much involved in questioning, Court room 5 hasn’t witnessed this frequently questioning since the commencement of first session. Speaker 1 seems to be fighting a lost battle, he finally gave in, asked the judges that he wants to move forward to the third issue. Somehow he still manages to keep his face frown free. It must be really hard for him to even continue.
6:41 PM: I know that maybe the respondents were not well prepared, but still he is playing bold, he is still arguing, during rebuttal time. More questions, more answers, and yet again more questions. Judges are enjoying this, time is up but they still want to hear more. It went on for one more minute.
Finally the slaughter ends.
COURT ROOM 6 (105C v 102R)
5:16: Welcome to the final phase of the preliminary rounds of the 6th Bose & Mitra International Maritime Law Moot organized by National Law University Odisha. While the judges and the claimants look rested and relaxed, the respondents do not, owing to the grueling Phase II round they went through, which lasted close to two hours.
5:16: The first speaker from side claimants goes off to a strong start, and seems to be well prepared. Her demeanor is pleasing, and answers the questions posed by the judges confidently.
5:20: The judges keep grilling the respondent speaker over Section 29 of Indian Arbitration and Negotiation Act, and its application to the facts of the case.
5:30: Time’s up, but the speaker hasn’t lost calm yet. Admirable indeed, considering the barrage of questions she has faced.
5:34: The first speaker has been asked to clarify as to side claimants’ calculations. The judges continue to grill the speaker, but her answers seem to be backed by a strong knowledge of the facts and the law.
5:41: Well, the time’s been up for ten minutes, but not the interrogation, and it does not seem to end anytime soon. The speaker hasn’t lost her calm yet, and that is a good thing for side claimants.
5:45: The speaker has been asked to move on the third issue and she proceeds confidently. Her answers are well substantiated with the facts and keeps quoting the relevant sections of the Acts.
5:50: The first speaker should have finished over twenty minutes ago, but the judges continue with their questioning. This time, it relates to the application of law, whether English or Indian.
5:52: Finally! The second speaker is allowed to begin, and like her co-counsel, she gets off to a good start.
6:00: One of the points made by the speaker from side claimants as to the expertise of the master seem to have put side respondents into a fix, and there is a slight expression of defeat on their faces.
6:09: The air conditioning is working too well, and it is freezing inside the courtroom. But there is a heated debate between the judges and the speaker, and neither side is willing to cede ground.
6:16: Finally! Speaker from side respondents has begun, and starts off with the argument that the tribunal does not have the jurisdiction to decide the case, due to the use of ‘may’ over ‘shall’. The judges do not seem to be satisfied, but permit the speaker to continue.
6:21: The judges are grilling the speaker over the conflict of laws in the present case, and the speaker keeps referring them to the compendium.
6:40: This has been an exceptionally long round and does not seem to end anytime soon.
6:44: For the first time in the round, the speaker from side respondents looks dumbstruck and flustered.
6:46: The second speaker from side respondents begins with his arguments, and is immediately questioned as to whether they can ask the tribunal to decide over a cautious claim, to which the speaker claims ignorance.
6:50: The respondents claims that the crude oil in question is similar to all other crude oil. Two of the judges look almost shocked at this suggestion, and begin to grill him on this point.
6:54: The judges have begun to exploit the unsubstantiated claims made by the speaker and seem to be amused at his suggestion. The grilling has been so hard that even his co-counsel looks at him with pity.
7:00: The speaker provides an example of a person who opens the hatch of a petroleum tank, which almost everybody in the courtroom, apart from side respondents finds amusing. This provides a much wanted touch of humor, albeit unintended.
7:06: This has been a very, very long round with much grilling. Both the sides look almost relieved. Goodbye, but stay tuned for the quarter finals!
COURT ROOM 7 (114C v 111R)
5.15 PM – The first speaker of Team 114 (Claimant) started with such a flourish (emphasising on the applicable law and party autonomy) that he had sufficient time to finish one argument before the judges could fully process them and ask questions. However, the judges soon got a hang of it and could successfully stop the speaker’s flow of speech! One of the fresh arguments brought in this round by the Claimant is that since the wording of the pre-arbitral tier of amicable settlement is uncertain as to its initiation, duration and at what stage can it be exhausted, it cannot be unenforceable. However, for quite some time, the speaker was unable to grasp and answer some questions that all the three judges kept rephrasing and asking.
5.40 PM – From the beginning, the second speaker of Team 114 (Claimant) was stumped by the questions of the tribunal as the judges kept bringing him back to the terms of the charterparty. Such consternation on part of the speaker was evident by the fact that his volume of speech lowered after being referred to the charterparty. The peculiar part to be noted is that whenever the judges ask a question twice, the speaker immediately becomes apprehensive of his answer and starts consulting his papers again, to the point where he had to check when the voyage itself had started! He even said that “a simple Google search would show-” before the judges picked it up and made a few remarks.
6 PM – The first speaker of Team 110 (Respondent) started as if no storm could quicken his pace. However, with one minute in, the judges resumed their grilling. At one point, the judge asked if the Respondent is willing to try an amicable settlement – the speaker replied ‘if the tribunal so wishes’. The tribunal had to point out that amicable settlement is on the parties and the tribunal has no role it; that slowed the speaker a bit, but he soon resumed his steady pace of speaking.
With two rounds completed, the judges were easily able to zero in on the most confounding issues, like the claim of time bar, easily evident through the escalating fumbling of the speaker. Even so, the speaker had the determination to maintain his pace, which he surprisingly did most of the time.
6.20 PM – the second speaker finally started, amply spacing her statements with nervous fillers. It was almost as if she was still rehearsing to convince herself. The judges were asking a lot fewer questions, as if they had exhausted their reserves on her co-speaker previously. At the same time, they are unwilling to wait for the speaker to gather her bearing as she tries to answer. The last preliminary round is over!
COURT ROOM 8 (121C v 117R)
17:07 PM: The judges begin the rounds by asking if the parties agree on the jurisdiction of the tribunal over the case. The claimants disagree with the same, and both the parties are left baffled as the judges refuse to listen to the claimants pursuant to the same.
17:16 PM: However, the claimants later concede to the fact that the tribunal has jurisdiction over the parties in the instant case, after which they’re allowed to argue. The counsel begins with his arguments, and is grilled on the issue of demurrage charges.
17:07 PM: The judges begin the rounds by asking if the parties agree on the jurisdiction of the tribunal over the case. The claimants disagree with the same, and both the parties are left baffled as the judges refuse to listen to the claimants pursuant to the same. However, the claimants later concede to the fact that the tribunal has jurisdiction over the parties in the instant case, after which they’re allowed to argue.
17:24 PM: The co-counsel thereafter takes over, and argues on the facts of the case. The judges continue to grill the co-counsel as well, on multiple occasions.
The respondents then begin with their arguments, and are caught up on one point of law with respect to the jurisdiction, and the judges continue to grill the first counsel on the same for most part of his speech.
17:53: The judges seem flustered as the first counsel argues further on the same issue, still standing firm on his claim and refuses to concede. The co-counsel now takes over, and maneuvers through the questions of the judges successfully, with convincing arguments. The counsel begins with his arguments, and is grilled on the issue of demurrage charges.
The quarter-final match ups are:
Rajiv Gandhi University of Law v. National University of Advanced Legal Studies, Kochi
Symbiosis Law School, Pune v. National Law University, Jodhpur
Law Centre 1, Faculty of Law, University of Delhi v. National Law School of India University, Bangalore
Government Law College, Mumbai v. Dr. Ram Manohar Lohiya National Law University
Congratulations to all the teams who made it through and we applaud the fantastic effort of every team who fought it out bravely in the prelims.
Court Room 1: Rajiv Gandhi University of Law (Claimant) v. National University of Advanced Legal Studies, Kochi (Respondent)
8:35 PM
As the teams have qualified the preliminary rounds, they have a lot of pressure which is visible outside the court rooms. They must be trying to incorporate as much as they can, after all the feedbacks might be useful in this round.
Teams enter into the room, a little chit chat with the judges, then they proceed towards their respective issues.
8:45 PM
The respondent approaches the bench in a very delicate manner, he was very careful as it was evident in the way he spoke. Being well versed with the facts and cases related with the facts, he takes no time in furthering his submissions. Judges observed the speaker very keenly, and then the questioning started, in the 3rd minute. During the course of the speech, the claimants duly noted all the points made by the respondents. He seeks permission and is very careful in the course of his arguments, he spoke with utmost respect towards the bench. The tribunal agreed while pointing out certain issues raised by the respondents. Although, maintaining a calm demeanour throughout the course is difficult, he finds that his time is up! He asked for 30 seconds more, but the bench kept on intervening to his dismay. Judge 1 seemed to be very curious about the knowledge of the respondent and asked details of a case in the last few seconds. Being well versed with the facts, respondent secured the ball in his court. The bench in a way, found it unsatisfactory that the respondent didn’t answer what they had asked and was asking more time to conclude his arguments.
9:01 PM
Speaker-1 of the claimants, started his submissions after having a little chat with the clerk. After all, the time is very crucial. The very moment he started, he was bombarded with the questions by the judges. “The quality of arbitrators is very well in India”, bench shared a light moment as the speaker moved on. The speaker is very clear in his manner of speaking. The council pleads ignorance when the judges ask where ICC is, the International Chamber of Commerce (as submitted by the speaker). The incessant questioning has seemingly unnerved the counsel and comes off as slightly confused, the same being observed by the honourable bench. The judges continued with their queries. This heated questioning went on for about 15 minutes of while the counsel stood his ground despite the questions posed at him.
9.41 PM
Judges are questioning the claimants. Not satisfied with the argument of claimant, judges asked to move to next submission.
10.09 PM
Judges asked the claimant speaker to open the bare act to clarify their stance on law. Judges questioned them continuously on their arguments. Respondent saying that they are willing to come on an amicable settlement with claimant.
10:16 PM
Respondent asked that he wants to move on second issue but it seems like judges are not willing to give up on issue 1.
COURT ROOM 2: Symbiosis Law School Pune (Claimant) v National Law University Jodhpur (Respondent)
8:40: Welcome to the much awaited quarter finals of the 6th edition of the Bose & Mitra International Maritime Arbitration Moot organized by National Law University Odisha. The first speaker from the side of claimants has started off good and seems to be prepared, which is evident from her tone of speaking.
8:44: The judges have, however, started off with their questioning pretty early into the rounds. Their line of questioning has been incessant and they are not ready to accept any argument made by the side of claimants.
8:50: The counsels have been making continuous attempts at convincing the judges with respect to the jurisdiction of the arbitration tribunal and the validity of the invocation of arbitration by the claimants in the instant case, but to no avail.
8:54: The judges have discovered a contradiction as to side claimant’s calculation as to costs, and they do not seem to be convinced with their arguments. However, they have permitted them to move ahead to the other issues and arguments.
9:02: The bench has made it explicitly clear that they are unable to accept their arguments relating to the weight of the cargo, and the liability with respect to the cause of solidification of the cargo.
9:10: The judges have maneuvered their way through the issue on the weight of the cargo, and the liability with respect to the solidification thereof, back to the jurisdiction issue, which the counsel seems to have answered much to the satisfaction of the judges.
9:12: The counsel has begun with the next issue, and is already being thrown questions at. The judges have even made it very, very clear that they do not accept the arguments posed by the side of claimants. The good thing is that the speaker has not lost her calm even in the face of this incessant grilling.
9:25: At this point, the judges have questioned the speaker as to awareness of a fact present in the moot proposition, however, the speaker pleads ignorance.
9:41: The co-counsel for the claimants has now taken over, and has begun with her contentions..
9:48: The incessant grilling has flustered the claimants as notes and chits are frantically passed. The speaker is losing her cool, and this is not a good sign. The questions relate to the nature of the crude oil, and the judges have managed to reveal their lack of research.
9:54: The judges have asked the speaker from side claimants to summarize and conclude in five minutes.
10:00: The respondents have taken over, and have now started with their arguments. They have started with the their first issue, and that is with respect to the difference between arbitration dispute and arbitrability.
10:10: The judges are continually grilling the counsel on the same issue, even after ten minutes of the initiation of the arguments by the respondents. The counsel continues to stand firm on his stance even after all this while and sticks to his argument with respect to amicable mutual discussion.
10:19: The judges are still throwing questions at the counsel in regard with same issue, and the counsel has now asked for some time to gather his thoughts. He has been trying to answer the questions, with little success at convincing the judges with his arguments.
10:35: The judges look unimpressed at the speaker’s arguments and keep interrupting him. The speaker, however seems to be unfazed.
10:42: The speaker for side respondents announces that he would like to yield the floor to his co-counsel. The judges then ask him as to who would be addressing the issue of delimitation, to which the first speaker replies that it would be handled by his co-counsel. However, the next moment, he begins with addressing the issue. This makes the judges visibly upset, who ask him to clarify again as to who would be addressing the issue. He looks shaken and yields the floor to his co-counsel.
10:50: The second speaker is facing a barrage of questions from the judges, who are going ballistic. The demeanor of the speaker is worsening by the moment, and this is not a good sign.
11:00: “What is a prudent standard? If a car is dirty, what does a reasonable man do? Does he take a cloth and clean it, or go to the paint shop and get it painted? Maybe only an expert would do that. And here, only an expert would keep it above 55 degrees!” a judge says. The speaker is now extremely nervous.
11:03: The judges asks the speaker to not to presume any facts, and stick to what has been stated in the moot proposition.
11:05: The speaker concludes the case from side respondents, and the claimants do not opt for rebuttals due to paucity of time. The rounds are over for today, but do come back tomorrow for the semi-finals. Signing off for today.
COURT ROOM 4: Government Law College, Mumbai (Claimant) v. Dr. Ram Manohar Lohiya National Law University (Respondent)
20:45 PM- Government Law College Speaker 1 starts. She seems to have a good command over her arguments and has a well-structured content.
20:50 PM- The most impressive quality of Speaker 1 has to be her patience. She carefully listens to all the questions the Judges have to ask instead of jumping to answers abruptly. She is articulately able to answer the questions.
21:00 PM- The Judges in the best of their knowledge are trying to halt and confuse the speaker, but little do they know that the speaker is in her best state of calmness and is absolutely confident.
21:22 PM- The Speaker 2 starts. She faces the questioning from the very beginning. She seems to be handling it well.
21:52 PM- Question- Answer… this is the prevailing process for the past few minutes. It seems to be a never ending process.
10 PM – The first speaker of the Respondent team starts off with the arguments. From the very beginning, the Respondent was forced to move to a defensive position. The speaker tried to maintain her speech style and pace, and maintained her composure as the judges sought clarifications and tried to find any loopholes in the speaker’s arguments. She however engaged with the tribunal by ensuring that they keep returning to the case study. As the judges put questions as well as provided the context for the question, time took a distant backseat as compared to the session itself. While the speaker tried to move forward, the tribunal brought her attention to the very facts she referred to initially, such as the issue of amendment of the dispute resolution clause to reflect the parties’ intention.
10.45 PM – The tribunal immediately brought her attention to the case study and were persistent in their questions. Nevertheless, the boisterous speakers were able to hold their ground as well as they could, given the questions hurled at them. The Quarterfinals are finally over.
COURT ROOM 3: Law Centre 1, Faculty of Law, University of Delhi (Claimants) v National Law School of India University, Bangalore (Respondent)
20:45: And the time starts. Although team have cracked to quarter finals the real battle begins. Speaker one of respondent has started arguing. Although he seems to be calm while arguing the judges in one way or the other are putting more complex questions.
21:07: Speaker one of claimants has started arguing. Confidence is all that matters at last and it can be seen in this speaker. Speaker one seems to be a good speaker and have answer for all questions posed to them.
21:16: Speaker two of claimants start. She has facts on her fingertips and is exuding confidence. It seems claimants have already anticipated the questions which may be asked and they are readily answering them.
21:28: Time is always a problem and it can be reflected in this case too although both the parties are provided with hefty sum of time but there are some instance when parties need to refer in some documents and that is really time consuming. Factual arguments, authorities, composure they have it all.
21:50: Claimants got six extra minutes and judges have decided to same time to respondents too. The co-council for claimants argued really well and for quite a long time. While she was very well versed with the facts, still she wasn’t able to answer a question in the end. This really got her all worried. She addressed the prayer and sunk in her chair, still worried a bit. However, she did her part as well as one can.
22:00: Speaker one of respondent side has started arguing and at the very first instance he started attacking the claims of the claimants. While the arbitrators are putting forward very twisted questions as expected in any maritime law moot, still the respondents are providing exact answers which the judges are looking for. Judges seems pleased.
22:04 In order to compensate the additional time given to the claimants, extra time is also provided to the respondents. Most of the issues are substantiated by valid arguments, only leaving a little scope of questions, still the arbitrators are consistently coming up with questions. It seems the co-council for respondent has caused a factual error, he has been asked to refer to moot preposition, and further questions are being asked regarding the facts now.
22:30 Both teams have submitted their issues. We just witnessed a comprehensive battle despite the questioning from the judges, the counsel was able to answer with utmost composure.
22:35 The Rebuttals have started. Claimants took their time to pose the questions and further strengthen their claims. Respondent was calmly able to answer them.
22:40 The judges didn’t interfere much and thus, a fiery Quarter Final comes to a close.
After the completion of the Quarter Finals we are proud to announce the 4 Semi Finalists. The qualifying teams are:
1. Rajiv Gandhi National University of Law, Patiala
2. Symbiosis Law School, Pune
3. Law Centre 1, Faculty of Law, University of Delhi
4. Government Law College, Mumbai
We wish all the teams the very best for the Semi Finals.
Fixtures for Semi Finals scheduled for 31st March, 2019
Semi Final 1: Rajiv Gandhi National University of Law, Patiala v. Symbiosis Law School, Pune
Semi Final 2: Law Centre 1, Faculty of Delhi, University of Delhi v Government Law College, Mumbai
That’s it for Day 2. The competition resumes tomorrow. Thank You and Good Night.
Welcome back! Day 3 of 6th NLUO IMAM 2019 is about to begin in a few minutes. We wish the teams all the best as they fight for a place in the finals.
The first semi-final will be between Rajiv Gandhi National University of Law, Patiala v. Symbiosis Law School, Pune
The 1st Semi- final proceedings begin.
1:20- The Judges entered the Courtroom. The participants were very enthusiast as they will be arguing before the bench who are an authority in the Maritime arbitration itself.
CLAIMANT:
Claimant- Rajiv Gandhi National University of Law
11:22- The speaker 1 of the claimant is speaking in a very well mannered and organised fashion. The speaker is well versed with the subject matter of the case.
11:24: Speaker 1 explained the structurisation to the judges which he is going to argue before the court.
11:27 Speaker 1 put up the issue of amicable settlement before the court and argue that the amicable settlement will go on forever and hence is uncertain. The bench throw the questions on which the speaker very politely and calmly tries to satisfy the Judges and also cite the case laws for the same.
11:29 Speaker 1 also submitted that the charter is liable to the owners and outline two sub-issues. The Judges seems to be interested in the arguments and keenly hearing the arguments of the Claimant.
11:35 The Judge asks about the Notice of protest and questions on the timeline which is before 6 hour or after 6 hour. For which, the claimant reads out the provision from the factsheet and addressed the concern of the Judges.
11:38 Claimant submitted before the bench relating to the owners are awaiting the charters. Speaker 1 starts with the arguments in a very polite and confident manner and by the arguments put forward it is clear that there research in the maritime arbitration is quite wide and have a pretty good knowledge about the subject area.
11:42 The Bench ask the speaker 1 about the Notice of Arrival and Notice of departure and the difference between them. The speaker seems to be successful in answering the question of the Bench.
11:44 Speaker submitted the second issue regarding the defect in Cargo. The claimant submitted that the delay is reasonable in nature. The principal relied was the principle of reasonable conduct. The Judge 1 asked from where the claimant has derived this principle for which the claimant cites the 1990 case. Claimant seems to be successful in addressing all the concern of the Bench and the bench also seems to be satisfied by the arguments made by the claimant.
11:48: Speaker 1 for the claimant concludes his arguments in a very fascinating way.
11:49- The speaker 2 from the claimant’s side takes the stage after his co- counsel and starts speaking in a calm and confident manner. She presented her submissions in the form of two well structured points.
11:50 Speaker 2 submitted the issue before the bench that the charter does not provide sufficient notice. Speaker seems to be so confident and using her compendium in the best way. She is bombarding the bench with the case laws for every question that is being asked by the Judges.
11:55 Judge 2 asked the question about the adequate temperature. Speaker 2 rightfully said that the adequate temperature is 35 degree Celsius. The Judge 1 asked whether the claimant is maintaining the adequate temperature for which the claimant tried to answer the Bench through the fact-sheets.
The tribunal for the Semi Finals
11:58 Claimant submitted other two limbs of her arguments before the bench. Judge 1 asked the claimant to read clause 24 of the charter party agreement. Judge 1 asked the question on that clause for which the claimant submitted that the facts are silent about the fact.
12:03- The claimant addressed the bench on the issue of incessant laws.
12:05 Speaker 2 concluded her arguments in an efficient way.
12:06 The bench asked the claimant to interpret Article 4 Rule 2 (a) of the In-transit laws. Claimant satisfied the concern of the bench by her answer.
RESPONDENTS
Respondent- Symbiosis Law School, Pune
12:07 The Speaker 1 on behalf of the respondents begins by laying down her arguments with a calm and composed demeanour. The speaker 1 begins with the 1st issue regarding whether the arbitral tribunal has jurisdiction or not? Respondent submitted that the present tribunal has the jurisdiction to adjudicate the case.
12:14 Respondent submitted the second issue regarding whether CACL is liable to charter party. Respondent submitted the arguments in four limbs to substantiate their case.
12:16 The Bench asked the speaker 1 as to whether the free petty a requirement in Europe. The speaker answered in affirmative.
12:21 Respondent submitted the third issue that the pumping logs were not provided to support the laws. Respondent backs her argument by citing the case law for the same. Speaker 1 seems to be so calm and polity while submitting the arguments and judge might also be impressed with her demeanour.
12:27 Speaker 1 submitted her last issue before the court. The judges seem to be satisfied with the arguments submitted by the speaker 1 and did not question her on this issue.
12:28- Speaker 1 concluded her argument in a very good gesture and give the stage now to her co counsel.
12:28- The co- counsel (speaker 2) made the structurisation of her submission before the court and proceeds with her arguments. She also seems to be quite confident on her submissions and facts.
12:31 Speaker 2 submitted her 1st argument before the bench that the obligations (statutory and other obligations) have not been complied by the claimants. Speaker 2, while making her submissions used a lot of the facts of the case and it was quite impressive as it was also easy for a layman to understand the case at hand.
12:42 Speaker 2 is dealing with the issue of temperature. Speaker 2 addressed the concern of the bench in very confident manner and asks for if any other concern the bench has. This shows the confidence of the speaker 2 upon her in depth research.
12:44 The bench asked the respondent what would happen if Bach Ho deviate from standard industry. Respondent addressed the concern of the bench through the standard industrial practice.
12:49- The bench, after hearing this submission made by the Respondent, asked the respondent that their 1st argument should be related to the mitigating factors as the Bach Ho oil is sensitive in nature and has very little knowledge about the nature of the oil.
12:51 Times up! Respondent ask the bench for few minutes to conclude her last issue. The bench graciously granted time to the respondent to summarise their arguments.
REBUTTALS
12:54 Claimant allowed for 1 minute of rebuttals as per the discretion of the judges. The judge clarifies the party to be very specific to the points they are raising.
12:57 The counsel on behalf of Respondent clarifies their position with respect to certain arguments made earlier in rebuttals by the claimants.
Semi Final 1 ends.
Semi Final 2 proceedings begin
The second semi-final is between Law Centre 1, Faculty of Delhi, University of Delhi v. Government Law College, Mumbai
CLAIMANT
2:03 It’s time for Semi Finals! Round 2! It is expected to be a thrilling and exhaustive show for the part of the participants and the judges alike. The Participants gear up for the last minute of preparation. The claimant in very fluent and confident way started to explain the structure of their arguments before the court. The claimant looks to be confident in their submissions and the advocacy skills they have is really impressive.
2:05 The first submission made by the claimant is the seat of the tribunal. The claimant submitted that the tribunal has the jurisdiction to adjudicate the case. The claimant argued that the claim of respondent for damage of cargo does not cover the provision of 49.2. Hence, the Respondent has no Jurisdiction before the court.
2:08 Claimant being confident in their submission tried to negate the contention made by the respondent in their memorial. Claimant submitted that the provision of 49.2 must be read separately and the claimant has the jurisdiction to adjudicate only the claims of the claimant but not the respondent.
2:12 This is very first time that instead of Respondent, the Claimant is negating the arguments of the Respondent through the Respondent memorial they got last night. It seems to me that they did a lot of research yesterday’s night and really in mood to defeat whoever comes in their way.
2:16 The speaker 1 referred to their memorial to substantiate her arguments on arbitration proceeding and that the arbitral tribunal has no jurisdiction. With this, the speaker 1 ends her argument that deals with the procedural part of the case and now her co- counsel will deal with the substantive part of the case.
The issue of time bar- our demurrage claim is prevented within the time period clause 20 of the charter party
2:18: The co-counsel holds the stage and explained the structure of arguments to the bench. Speaker 2 submitted her first issue regarding Time- bar. The claimant submitted that their demurrage claim is prevented within the time period as enumerated in the clause 20 of the charter party. Claimant also submitted that the pumping logs is irrelevant to the demurrage claim. The judges seems to be interested in the arguments and they are eagerly hearing the counsel on behalf of the claimant.
2:25 Claimant submitted her 2nd issue before the bench regarding laytime. Claimant contended that majority of their demurrage claim lies on this issue.
2: 28 Claimant is taking help of the fact-sheet to explain the issues to the judges and it might give a good impression as they are very well versed with the facts. The speaker 2 also seems to be so confident and trying to address each and every concern of the Bench.
2:31 Claimant, now addressed the issue of Notice of readiness and submitted that all claims of demurrage should be allowed.
2:33 The claimant again counters the written submission of the Respondent and submitted that the right temperature was maintained. Claimant conceded that they have the duty to maintain the right temperature and they complied with their duty.
2:37: The Judge asked the claimant about the temperature of the tank. The speaker 2 very amicably answered the concern of the judge and also referred to their compendium to further substantiate her point. However, the Judges were not able to find it in the compendium and it took 2 minute to find it in the compendium.
2:41 Claimant argued that the duty to maintain and inform about the temperature is upon the Respondent as they are the owners of the cargo and the Claimant has no duty as they are not the owners of the cargo.
2:43 Times up! The speaker asked the bench very politely to grant 2 minutes to conclude her arguments. The bench very graciously allowed the Claimant 2 minute time to conclude her arguments.
2:44 Claimant addressed on the point of incessant laws. As soon as she started, the judges started questioning her on that issue. However, she maintained her calm and composure and addresses each and every concern of the Judges.
2:47 Time is up! Claimant concluded the argument and now its time for the Respondent to begin.
RESPONDENT
2:49 Respondent begins with her 1st submission and from her very first word it is clear that the Respondent is clear that they are here to win no matter how good the other team is. Respondent started her arguments in way of negating the arguments made by the Claimant. Respondent submitted that this tribunal has no jurisdiction. Respondent also raises the issue of amicable settlement . The Respondent argued that no such steps for amicable settlement has been made by the Claimant. The counsel on behalf of the Respondent blamed the Claimant that they blatantly lied before the court on the issue of amicable settlement.
2:54 Respondent cited the case of Fiyona Trust v Privalov case to substantiate the issue raised before the court. Respondent tried to interpret the clause and argued that liberal interpretation must be inferred from it. Respondent also cited the exception to the liberal interpretation.
2:59 Respondent cited various cases to made her case in front of the bench regarding the amicable settlement issue and the Speaker 1 seems to be so confident in her voice that judges are so fascinated and hearing to her arguments very silently.
3:01 The claimant argued that the tribunal is empowered to direct the parties to the amicable settlement which the Respondent were denied earlier.
3:04 Speaker 1 of the respondent concluded her arguments and give the floor to her co-counsel.
3:05 Speaker 2 submitted that demurrage claim is time barred. Counsel on behalf of the Respondent substantiate her arguments through case laws and facts of the Moot problem.
2:12 Respondent submitted her 2nd issue regarding whether the lay-time is correctly construed. Claimant argued that whether or not the submission of “NOR” with the letter of protest is valid or not? The Respondent submitted to it that NOR is invalid. Speaker two took a second, maintained her calm and tried to address the concern of the Judge.
3:17 Respondent tried to differentiate between the Notice of arrival and Notice of readiness. The speaker seems to be quite nervous in making her submissions.
3:19 The Respondent moves to the other issue regarding the Cargo operations. The counsel submits that according to HM 40 Guidelines the minimum temperature must be maintained at 55 degree Celsius in any case. The standard industry practice also enumerate that Claimant must maintained that temperature. The Judge interrupted and clarifies that according to Standard Industry Practice it must be at port point. The judge also pointed out that why, at the very first place, the respondent did not supply the claimant regarding the information of the cargo to be maintained.
3:24 The counsel cited the exception of some rule to substantiate the claims before the court. However, the judge seems to be not satisfied with this argument as the respondent failed to inform the Claimant about the temperature that must be maintained.
3:28: Through the factual matrix of the case, the respondent argued that the claimant knew about the sensitivity of Bach Ho oil and the temperature that must be maintained. Respondent argued that they have exercised due diligence in knowing about the Bach Ho oils. However, they have not taken reasonable care.
3:30 The counsel on behalf of the Respondent concludes her arguments. The counsel prayed before the court.
REBUTTALS
3:32 Claimant started with the rebuttals. The bench made it clear to be very specific to the points while making the rebuttals and sur-rebuttals.
3:34 Respondent started with their sur-rebuttals and tried to negate the points made by the claimants.
With this ends the Semi-Final Rounds.
Now it’s time for the Finals of the 6th NLUO International Maritime Arbitration Moot Court Competition. This is the time we’ve all been waiting for, where the top two teams shall be fighting for the pinnacle – the Winner’s Trophy.
The Finals shall be between Symbiosis Law School, Pune and Government Law College, Mumbai.
The proceeding is being streamed live on the official NLUO International Maritime Arbitration Moot Court Competition Facebook page. Follow it in real time as the battle between the teams begins!
The judges forming the part of the tribunal are:
Mr. Amitava Majumdar
Mr. Joy Thattil Itoop
Mr. Hari Narayan
The teams are here. In the finals, we have –
Symbiosis Law School, Pune
and,
Government Law College, Mumbai
There is some meticulous questioning underway as the judges carefully sift through the arguments.
Speaker 1 from the claimant presents her arguments
Speaker 2 from Claimant argues
After an extensive round of questioning and counter-questioning, the claimant rests their case.
Now, Speaker 1 from Respondent begins
Speaker 2 of the Respondent presents her arguments
After rebuttals, the round has finally ended. It’s been a grueling final and the judges have thoroughly tested the participants on every aspect. The participants can take heart from the way they dealt with the barrage of questions, no matter the outcome.
We now begin with the valedictory ceremony of the 6th NLUO International Maritime Arbitration Moot Court Competition 2019. Among those present are the Chancellor of the University Hon’ble Justice K.S. Jhaveri, Vice Chancellor of the University Dr. Srikrishna Deva Rao, Mr. Amitava Majumdar, Mr. Joy Thattil Itoop, Mr. Hari Narayan, Registrar of the University Registrar Mr. Yogesh Singh and Hon’ble Judges from the Odisha High Court.
The Citation for the Best Memorial goes to:
Ram Manohar Lohia National Law University Lucknow
The Best Speaker Award goes to:
Priyanshu Jain, National Law School Bangalore
And the Winners of the 6th Edition of the NLUO International Maritime Arbitration Moot Court Competition are
Symbiosis Law School, Pune
Hearty congratulations to the team!
We also congratulate the runners -up team from Government Law College, Mumbai for their valiant efforts.
We further congratulate all the teams for their efforts throughout the competition.
With this, we come to an end to this Edition of the NLUO Bose & Mitra & Co. International Maritime Arbitration Moot Court Competition. We thank all the blogging volunteers who made this blog a success with their constant updates and we thank the viewers for following the blog. We hope to see you again, next year. Till then, we bid adieu!
Supreme Court: In the case where a Notice Inviting Tender had a clause asking the parties invoking arbitration to furnish a “deposit-at-call” for 10% of the amount claimed, the bench of RF Nariman and Vineet Saran, JJ struck down the said clause on the premise that:
“Deterring a party to an arbitration from invoking this alternative dispute resolution process by a pre-deposit of 10% would discourage arbitration, contrary to the object of de-clogging the Court system, and would render the arbitral process ineffective and expensive.”
The Court was hearing the matter where the Punjab State Water Supply & Sewerage Board Bhatinda had issued notice inviting tender for extension and augmentation of water supply, sewerage scheme, pumping station and sewerage treatment plant for various towns mentioned therein on a turnkey basis. Clause 25(viii) of the Notice inviting Tender was challenged before the Court which read
“It shall be an essential term of this contract that in order to avoid frivolous claims the party invoking arbitration shall specify the dispute based on facts and calculations stating the amount claimed under each claim and shall furnish a “deposit-at-call” for ten percent of the amount claimed, on a schedule bank in the name of the Arbitrator by his official designation who shall keep the amount in deposit till the announcement of the award.”
Noticing that a 10% deposit has to be made before any determination that a claim made by the party invoking arbitration is frivolous, the Court said that such a clause would be unfair and unjust and which no reasonable man would agree to.
The Court said that since arbitration is an important alternative dispute resolution process which is to be encouraged because of high pendency of cases in courts and cost of litigation, any requirement as to deposit would certainly amount to a clog on this process. It also said:
“it is easy to visualize that often a deposit of 10% of a huge claim would be even greater than court fees that may be charged for filing a suit in a civil court.”
Striking down the said clause, the Court said that unless it is first found that the litigation that has been embarked upon is frivolous, exemplary costs or punitive damages do not follow.
“Clearly, therefore, a “deposit-at-call” of 10% of the amount claimed, which can amount to large sums of money, is obviously without any direct nexus to the filing of frivolous claims, as it applies to all claims (frivolous or otherwise) made at the very threshold.”
[ICOMM Tele Ltd. v. Punjab State Water Supply & Sewerage Board, 2019 SCC OnLine SC 361, decided on 11.03.2019]
Madras High Court: P.T. Asha, J., held that Section 8 of the Arbitration Conciliation Act, 1996 clearly indicate that the role of judicial authority to refer parties to arbitration arises only upon an application being made by a party to the arbitration agreement.
The High Court was faced with a very interesting question: “Whether the Civil Court can act at the threshold in returning/rejecting a Plaint without numbering the suit on the ground that the parties have entered into an Agreement to refer the disputes to arbitration?”
In the present case, there existed a Lease Agreement between the parties. As per Clause 19 of the Agreement, all disputed arising between the parties were to be resolved under the A&C Act. Subsequently, a dispute arose between the parties. The petitioner filed a suit before the District Munsif who returned the suit at the very threshold, observing on the basis of Clause 19 that “this Court does not have jurisdiction to entertain this suit. Hence, this plaint is returned.” Aggrieved thereby, the petitioner approached the High Court.
The High Court referred to Section 9 CPC (courts to try all suits unless barred) and observed Civil Court have to try all suits of civil nature except those suits which have been specifically barred under provisions of some Acts or impliedly barred. Therefore, the Court perused Section 8 of the A&C Act (power to refer parties to arbitration where there is an arbitration agreement). Relying on the decision in P. Anand Gajapathi Raju v. P.V.G. Raju, 2000 (4) SCC 539 and Ameet Lalchand Shah v. Rishabh Enterprises, 2018 SCC OnLine SC 487, the Court observed, “a reading of Section 8 would clearly indicate that the role of the Judicial authority to refer parties to arbitration will arise only upon an application being made by a party to the arbitration agreement or a person claiming under or through him. This window is given only to enable the defendant who is not desirous of having the dispute settled by arbitration to waive his right for having the dispute referred to arbitration. Therefore, from a reading of the above, it is very clear that a Judicial authority cannot suo moto return/reject a suit on the ground that the parties to the suit have agreed to refer all their disputes to arbitration at the threshold when the case is filed.” It was further observed that under the A&C Act, there is no total ouster of jurisdiction of Civil Courts unlike in cases arising under the SARFAESI Act, Motor Vehicles Act, etc. Resultantly, the petition was disposed of by directing the District Munsif to number the suit forthwith on the petitioner resubmitting the returned papers along with the copy of orders. [Convinio Shopping Nine 2 Nine v. Olympia Opaline Owners Assn., 2019 SCC OnLine Mad 646, Order dated 04-03-2019]
The ADR Cell will be hosting a Certificate Course on Investment Arbitration from 11th – 16th March 2019. The resource person for the course is Mr. Ylli Dautaj, Senior Research Associate, Jindal Global Law School. He will be joined by Dr. Crina Baltag (Senior Lecturer in Law, University of Bedfordshire) and Professor William F. Fox as guest lecturers.
The course will be conducted after class hours from 11th – 15th March followed by a written assessment on 16th March. The course structure has been attached for your reference.
Announcing the 6th edition of National Law University Odisha Bose & Mitra & Co. International Maritime Arbitration Moot 2019 (IMAM). The moot is scheduled for 29th March – 31st March 2019.
Having successfully organized this competition for 5 years in a row, the 6th edition of the moot seeks to improve upon the whole experience by ensuring that the teams are met with a challenging problem based on contemporary and developing aspects of maritime arbitration. The problem for this edition promises to provide the participants with a more challenging dispute which would allow them to gain real insight into the fascinating and core issues of maritime law while honing their advocacy skills before the most acclaimed panel of judges in the field of Maritime Law and Arbitration. It will not only provide the participants with an opportunity to test their legal acumen in comprehensive core maritime law issues but also an experience of enhancing their skills by competing against few of the best law students of India.
In the 6th edition of NLUO-IMAM, we are proud to announce our collaboration with Bose & Mitra & Co. as our “Title Sponsors”. Bose & Mitra & Co. is one of the oldest and biggest law firms of India in the field of Maritime Law, with a client base from all across the world. Our collaboration with Bose & Mitra & Co. in this edition of the moot offers the Winning Team along with the Runners-Up Team an incentive of securing internships with the firm.
With the last edition witnessing participation of 23 teams from all the premier law institutions of the country, we cordially invite your esteemed institution to be a part of the 6th edition of NLUO Bose & Mitra & Co. International Maritime Arbitration Moot 2019.
Please find attached the Case Study, Official Rules and the Brochure for the competition. The last date for filling the team registration form is February 23, 2019.
In case of any queries whatsoever regarding the moot, please feel free to contact the undersigned, or write to us at imam@nluo.ac.in.
National Company Law Appellate Tribunal (NCLAT): The Bench of Justice S.J. Mukhopadhaya, Chairperson and Justice Bansi Lal Bhat, member (Judicial) dismissed an appeal filed against the order of National Company Law Law Tribunal (Bengaluru).
By the impugned order, application filed under Section 8 of the Arbitration and Conciliation Act, 1996 preferred by respondents was referred to Arbitrator by NCLT. Nikhil Nayyar, Arun Srikumar, Kaustav Saha and Naveen Hegde, Advocates represented the appellants while challenging the impugned order.
The Appellate Tribunal followed its earlier judgment in Thota Gurunath Reddy v. Continental Hospitals (P) Ltd., Company Appeal (AT) No. 160 of 2017, dated 18-07-2018. In that case, the Appellate Tribunal has held that against the reference of the arbitration, no appeal lies before the NCLAT under Section 421 of the Companies Act, 2013. It was held that in such view of the matter, the appeal was not maintainable and thus it was dismissed. [Richa Kar v. Actoserba Active Wholesale (P) Ltd., 2019 SCC OnLine NCLAT 2, dated 11-01-2019]
TNNLU NMAC is one of the few competitions focusing on the hybrid variety of Mediation and Arbitration (Med-Arb) under the umbrella of Alternative Dispute Resolution. In this competition, the parties will initially try to resolve their disputes through mediation based on an agreed covenant and then through arbitration. This agreed covenant will transform into a binding arbitration agreement for the arbitration session. Hence, the participating students are expected to participate and compete against each other in both Mediation and Arbitration sessions.
Participation in the competition is limited to 24 teams based on ‘First come First serve.’
The competition will take place in the following rounds-
The Preliminary Rounds
The Semifinal Rounds
The Final Round.
Venue: TNNLU campus, Tiruchirappalli, Tamil Nadu.
Events
Important Dates
Commencement of provisional registration
07.01.19
Deadline for provisional registration
25.01.19
Release of Problem, Rules and Regulations
13.01.19
Deadline for the release of clarifications
20.01.19
Deadline for registration along with payment of fee & sending the soft copy of DD/Net Banking Receipts online
02.02.19
Deadline for sending the fully filled registration form and the hard copy of DD/Net Banking Receipts
06.02.19
Deadline for the soft copy of Arbitration Memorials
22.02.19
Deadline for the hard copy of Arbitration Memorials
School of Law, KIIT (Deemed to be University) proudly presents the 6th edition of the National Moot Court Competition, 2018 which will commence in a short while. In the six years from its inception, the KLS Moot Court has come a long way to become one of the most prestigious Moot Court Competitions in the country dealing with various fields of law including Corporate Law, Competition Law, Commercial Arbitration etc.
In this edition, the Moot problem revolves around a dispute relating to an Arbitration clause in an agreement.
This is a 3-day long event, which will end on 30th of September with the Winning team being awarded the coveted Trophy and the cash prize of Rs. 1,00,000/-.
28th September 2018 (Day 1)
11:00 Registration of teams and inauguration ceremony have been completed. The inaugural speech was delivered by Prof. (Dr.) N. L. Mitra, Former Chancellor KIIT (Deemed to be University), Former Vice Chancellor, NLSIU, Banglore and NLU, Jodhpur.
Next up, the draw of lots and exchange of memorials.
12:00 Draw of lots has begun which will decide the fixtures for the preliminary rounds.
12:40 Exchange of memorials has concluded. Teams, now, are preparing for their preliminary rounds.
The first preliminary round will begin today at 15:30.
15:00 The esteemed Judges have arrived and are being briefed about the rules of the Competition which will begin in a short while.
15:30 Round A of the first prelims has begun. Teams on the appellant side have started their oral arguments.
17:30 Round B of the first prelims has begun with more enthusiasm and excitement for the teams.
Day 1 wrapped up with the participants being tested and grilled upon various facets of the issue, the legal standpoint and the facts of the problem. Some of the judges appreciated the teams for making some sublime oral submissions and answering the issues in accordance with how the law stands at this juncture and where it needs amendments to cover up the loopholes. Signing off for today. Prelims Round 2 and Quarter-Final Rounds shall be taking place tomorrow.
29th September 2018 (Day 2)
The judges have arrived. Teams are present in the courtroom with their memorial and compendium eager to present their arguments for another day and put in their best of efforts to break through the quarterfinal which is scheduled to start in the evening.
09:15 Round A of the second prelims has begun.
10:50 Prelims II Round B has started in some of the courtrooms.
11:15 Round B is underway in all the courtrooms.
12:15 Some intense discussions and grilling regard the statement of jurisdiction is going on in Courtroom No. 7. Statement of jurisdiction is one of the important facets of this moot proposition where the question being disputed involves around the right of the civil court’s jurisdiction and why parties are willing to refer the same to arbitration.
14:30 The Prelims are over and the participants are eagerly waiting for the results which will be announced post lunch at 1530hrs. Soon after drawing of lots and memorial exchange, the quarterfinals will take place.
16:00 Quarter Final rounds has begun!
18:50 Quarter Finals gets over in all the four courtrooms. Participants head towards the Seminar Hall, eagerly waiting for the results.
19:30 Results released! The semi qualifiers are elated with the results! One more day, two more rounds to go!
End of Day 2!! Along with the participants, the organizers are also bit exhausted; yet with the remaining energy, another day to go!!!
30th September 2018 (Day 3)
09:30 And we finally arrive to the last day of the event! The participants are waiting in the court hall. The judges are yet to arrive!
10:30 Semi-Final round has commenced. The teams after enduring much questing and grilling have reached this leg of the event to endure some more of that.
12:15 Semi-Finals gets over, with the participants eagerly waiting for the results for the final.
13:00 The two teams qualifying for the finals heads towards the library for the final preparation for which they have an hour or so.
15:00 The judges for the final round have arrived. The panel herein as follows:
1. Hon’ble Justice Sanjib Banerji, Calcutta High Court
2. Surya Prasad Misra, Advocate General, Odisha High Court
3. Somasekhar Sundaresan, Counsel, Hon’ble Supreme Court of India & Hon’ble Bombay High Court
5. Prof. (Dr.) Indrajit Dubey, Professor RGSOIPL, IIT Kharagpur.
15:30 The teams have arrived. And here we begin with the final round!!
15:40 The final round has finally begun. The oral submissions have started.
16:00 The participants are putting forth their knowledge persuasively in the oral submissions. The Hon’ble Judges, though, don’t seem to be in any hurry to accept the team’s contentions so easily.
16:30 Appellant side concludes their submissions.
16:48 Speaker 1 from the Respondent side is being questioned by Justice Banerji on the issue of maintainability.
16:56 Questions on the legal facets are being put forth to the teams.
17:20 Speaker 2 for the Respondent has started to sum up their arguments. This is the beginning of the end to this year’s KLS Moot Court Competition.
17:30 The teams are now summing up with their rebuttals, after which the oral rounds would come to an official end.
17:40 The rebuttals have now ended. Both the teams now will be waiting for the results with their nails between their teeth.
17:45 The final round of the 6th KLS Moot Court Competition has ended. The Hon’ble Judges have been taken off the dais after being duly felicitated by the Director, School of Law, KIIT (Deemed to be) University.
18:10 After a couple of ceremonial speeches from the Director, School of Law, KIIT (Deemed to be) University and the Registrar, KIIT (Deemed to be) University, the results will be declared.
18:45 Results announced! The trophy for the best team, i.e., the winner of the 6th edition of the KLS Moot Court Competition goes to the team that maintained their calm even under the constant and fiery questioning of the Hon’ble Judges, the team that portrayed the best demeanor even when most stressed, i.e., School of Law, Shashtra (Deemed to be) University, Tamil Nadu. It must be said that the team deserved to win.
The 1st Runner-up trophy goes to Rizvi College of Law, Mumbai, who were also not very far behind in talent or knowledge and showcased all the virtues of a winning team. But there could have been only one winner and today that team was School of Law, Shashtra (Deemed to be) University.
In the end, everyone that helped in making this event as grand as it came out to be, deserve to be congratulated. Special Thanks to SCC Online and EBC for helping out with the logistics, awards, and everything which made this event grand. It also goes without saying that all the teams that participated were exemplary in one sense or the other. All the Hon’ble judges that graced this event with their presence cannot be thanked enough in mere words.
Symbiosis Law School, NOIDA in collaboration with Shardul Amarchand Mangaldas & Co. conducted ‘Seminar on Recent Developments in Arbitration Regime in India’ on July 14, 2018.
Supreme Court of the United States: While deliberating on the issue that whether employees should always be permitted to bring their claims in collective actions, no matter what they agreed with their employers, the 9 judge Bench of the Court with a ratio of 5:4, held that the law embodied under the National Labor Relations Act (NLRA) clearly gives the employees rights to organize unions and bargain collectively, but it says nothing about how judges and arbitrators must try legal disputes that leave the workplace and enter the courtroom or arbitral forum. Furthermore the Supreme Court in the past has never read the right to class actions under the NLR Act.
The parties in dispute (Ernst & Young LLP v. Morris) entered into an agreement providing that they would arbitrate any disputes that might arise between them. The agreement stated that the employee could choose the arbitration provider and that the arbitrator could grant any relief that could be granted by a court in the relevant jurisdiction. The agreement also specified individualized arbitration, with claims “pertaining to different employees to be heard in separate proceedings. Morris sued Ernst & Young in federal court. He alleged that the firm had misclassified its junior accountants as professional employees and violated the federal Fair Labor Standards Act (FLSA) and California law. Morris further sought to pursue the state law claim as a class action under Federal Rule of Civil Procedure 23. The employees pleaded before the Court to infer that class and collective actions are “concerted activities” protected by Section 7 of the NLRA, which guarantees employees “the right to self-organization, to form, join, or assist labor organizations, to bargain collectively, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection,
The majority decision was delivered by Neil M. Gorsuch, J. It was held by the majority that if workers were allowed to band together to press their claims, he wrote, the virtues Congress originally saw in arbitration, its speed and simplicity and inexpensiveness, would be shorn away and arbitration would wind up looking like the litigation it was meant to displace. However 4 Judges disagreed with the majority opinion. Ruth Bader Ginsburg, J., leading the dissent, termed the majority decision as “egregiously wrong” and stated that there “will be huge under-enforcement of federal and state statutes designed to advance the well being of vulnerable workers”. [EPIC System Corps v. Jacob Lewis, Case No. 16–285, decided on 21.05.2016]
Delhi High Court: A Division Bench comprising of Ravindra Bhat and A.K. Chawla, JJ., dismissed a First Appeal against an order declining grant of interim relief under Section 9 of the Arbitration and Conciliation Act, 1996.
The contract between the parties was the result of bidding in a public tendering process. The consideration of the contract was over Rs. 69 crores, with the period of execution being of 15 months along with an option to apply for extension. The appellant was aggrieved by the termination of contract after several defects and deficiencies during performance were pointed out. The grievance of the appellant was threefold viz. against invocation of performance guarantee, mobilization of advance bank guarantee and alleged unlawful termination of contract.
The Court directed that the issue of wrongful termination was a matter to be decided on merits during the arbitral proceedings and proceeded to decide upon the issues of invocation.
On that issue, the Court held that the performance guarantee mandates the bank to honour without demur any demand by the principal, who is the real beneficiary of any sums, claimed by it as due under the contract. In other words, the bank cannot adjudicate as to whether the claim by the beneficiary was in fact determined by it in accordance with the underlying contract between it and a third party. It was further held, that guarantee is an independent contract and has only a referential connection to the contract between the two parties, who agree upon the execution of performance of a particular contract for which the bank guarantee is issued. In the circumstances, mere invocation of a guarantee does not provide valid grounds for interdicting the invocation of guarantee. [M/s Classic KSM Bashir JV v. Rites Ltd., 2018 SCC OnLine Del 9056, decided on 14-05-2018]
Supreme Court: The Bench of RK Agrawal and AM Sapre, JJ has referred the question as to determination of the “seat” and “venue” for holding arbitration proceedings to a larger bench after the counsel brought to the Court’s notice that there are several decisions on the issue by the Benches of variable strength.
The Court, hence, said that though, the question regarding the “seat” and “venue” for holding arbitration proceedings by the arbitrators arising under the Arbitration Agreement/International Commercial Arbitration Agreement is primarily required to be decided keeping in view the terms of the arbitration agreement itself, but keeping in view the decisions by the Benches of variable strength and issues involved, which frequently arise in International Commercial Arbitration matters, the matter should be referred to a larger bench.
The Court was hearing the appeal arising from a Delhi High Court order wherein it was held that Indian Courts have no jurisdiction to entertain the application filed by the Union of India (appellant) under Section 34 of the Arbitration and Conciliation Act, 1996 to question the legality and correctness of the award in question and accordingly dismissed the appellant’s application as being not maintainable in Indian Courts.
The Counsel had brought to the Court’s notice that some decisions which have bearing over the questions arising in this appeal have been rendered by the Constitution Bench, some by Three- Judge Bench and remaining by the Two-Judge Bench and hence, the matter should be decided by an appropriate bench in order to clear the confusion.
The question placed before the larger bench is:
“when the arbitration agreement specifies the “venue” for holding the arbitration sittings by the arbitrators but does not specify the “seat”, then on what basis and by which principle, the parties have to decide the place of “seat” which has a material bearing for determining the applicability of laws of a particular country for deciding the post award arbitration proceedings.”
[Union of India v. Hardy Exploration and Production (India) INC, 2018 SCC OnLine SC 474, decided on 01.05.2018]
Hello and welcome to the live blog of the 5th NLUO International Maritime Arbitration Moot 2018 (IMAM). The competition begins today with the registration and inauguration followed by exchange of memos and draw of lots. 24 teams will be battling it out in preliminary rounds, followed by quarterfinals, semifinals and the much awaited finals. Schedule for Day 1(30/03/2018) : 15:00 – 16:00 hrs – Registration
16:45 – 17:30 hrs – Inauguration Ceremony
17:30 – 18:30 hrs – Penalty Appeals
18:30 – 19:30 hrs – Draw of Lots & Exchange of Memos
20:00 – 21:00 hrs – Dinner
Stay tuned for all the live updates and highlights for the next 3 days.
16:00 hrs
The teams are here in the seminar hall and registrations have begun, the opening ceremony will be starting at 16:45 hrs.
Registration Desk IMAM 2018
16:55 hrs The opening ceremony is under way and the Faculty Adviser of The Moot Society Dr. Ananya Chakraborty starts with the welcome note to all the participants talking about the different opportunities Maritime law has to offer and the experience participants will gain from the interactions with the highly qualified panel of judges.
17:00 hrs The Convenor of The Moot Society, Anmol Gupta, started with briefly laying out the schedule for the 3 days and also answering the queries of the teams regarding the draw of lots. She also explained the system of Penalty Appeals to the participants which further increases the transparency quotient. The Convenor ended by declaring the competition open.
17:30 hrs
Let us know about Penalty Appeals directly from our Convenor-
“As a recent participant in a moot, I remember losing my mind over a two mark deduction that potentially affected my team’s best memorial citation. There are often times that moot court competitions have been also criticized for being unfair. It is only after having had such experiences and realizing that moot court competitions in India should be more transparent that we wanted to follow this practice. Penalty appeals are nothing new but we do hope that all institutions take similar initiatives so as to improve the mooting culture in India and bring more fairness and transparency in the process.”
Penalty Appeals
18:00 hrs Match ups are announced and Memorials are exchanged as the teams find out who they are up against for the Preliminary rounds tomorrow.
Draw of LotsMemorial Exchange
19:45
That’s it for today, we will be live with you tomorrow morning with the first session of preliminary rounds. Till then Goodbye!
Day 2 10:15 hrs
Courtrooms are set
A very good morning to all, we are back with all the updates from the second day of NLUO IMAM 2018. The courtrooms are set, Teams all ready and the Preliminary rounds will begin at 11:00 hrs in 8 courtrooms. Following are the 23 teams battling it out in the preliminary rounds.
Amity Law School, Delhi (IP University)
School of Law, UPES
ILS Law College, Pune
Government Law College, Mumbai
University school of law and legal studies, Guru Gobind Singh Indraprastha University
National Law University, Delhi
School of Law, Christ University, Bangalore
National Law Institute University Bhopal
Rajiv Gandhi National University of Law, Punjab
Dr. Ram Manohar Lohiya National Law University
Gujarat National Law University, Gandhinagar
West Bengal National University of Juridical Sciences
National University of Advanced Legal Studies, Kochi
Pravin Gandhi College of Law
National Law School of India University, Bangalore
Hidayatullah National Law University, Raipur
Symbiosis Law School, Pune
Lloyd law college
Faculty Of Law, Delhi University
Maharashtra National Law University, Nagpur
Madhusudan Law College, Cuttack.
Symbiosis Law School, NOIDA
Jindal Global Law School
11:30 hrs
The first session is underway as the teams battle it out in the first round with the humid climate of Cuttack and the barrage of questions from the judges, they surely have their work cut out.
Courtroom-2 The Applicants contend on the of jurisdiction of the Honorable Tribunal and put up a compelling case in front of the judges and finish their submissions on a high. The Respondents contend that the claimants were aware of the zero tolerance policy of plastics and waste. Both the teams end up with a satisfying look on their face.
13:00 hrs
The first session of Preliminary rounds culminate, Judges take a 10 minutes break before the second session is underway.
13:30 hrs
The second session of preliminary rounds are now in progress.
Session 2 underway
14:30 hrs The teams now concluding their arguments for the second session of preliminary rounds.
Session 2
16:30 hrs
The teams and judges have taken their seats for the third and final session of the preliminary rounds.
Session 3 in progress
18:15 hrs We are now done with the Preliminary Rounds and will be announcing the Top 8 in a few minutes.
19:15 hrs The results for the Preliminary Rounds are out, Following are the top 8 teams.
ILS Law College, Pune
Rajiv Gandhi National University of Law, Punjab
National Law Institute University Bhopal
Dr. Ram Manohar Lohiya National Law University
Amity Law School, Delhi (IP University)
Gujarat National Law University, Gandhinagar
National Law School of India University, Bangalore
National Law University, Delhi
19:45 hrs
The Quarter Final rounds have now started with the teams vying for a top 4 spot.
Quarter Finals
Court Room 7
20:06 hrs
The judges are extensively grilling the Claimant on jurisdictional clauses, the counsel tries to deal with the questions through case laws and contends that the claimant’s silence does not amount to acceptance. The judges proceed to the next issue where the claimant is dealing with conceptual differences between indemnity and guarantee vis a vis damages but she fails to convince the bench with her submissions.
20:22 hrs
The bench questions about the fraud with respect to the letter of indemnity which means that the claimant’s haven’t come to the court with clean hands. The bench is not convinced with the submissions and asks the claimants to not beat around the bush and concede to the wrong in good faith.
Court Room 6
20:10 hrs
The Claimant started with Citing a case from US Jurisdiction which the bench was hesitant to accept, the Counsel tried to justify his claim by stating that the international arbitration depends upon the intention of the parties.
20:17 hrs
Second speaker discusses about the 3 contaminants and tries to justify the word contaminant as opposed to substances, he also tries to justify the scope of warranty.
Court Room 5
20:18 hrs
The claimant start their submissions by pointing out to the letter which is the core of the issue, the judges ask about the letter being a letter of indemnity or letter of warranty as contended by the respondents.
20:30 hrs
The respondent started their submissions asserting that the letter is a letter of warranty. He argues that the addendum to the contract was signed without prejudice, hence cannot be used as evidence.
21:15 hrs
With this the Quarterfinals are done. The teams and the judges head for dinner. Results of the Quarterfinals to be announced post dinner.
22:00 hrs
The top 4 teams in no particular order are
ILS Law College, Pune
Rajiv Gandhi National University of Law, Punjab
National Law Institute University Bhopal
Dr. Ram Manohar Lohiya National Law University
With this we come to the end of proceedings on day 2. See you tomorrow for the Semi Finals and Finals. Goodbye!
Day 3
10:30 hrs
Hello and welcome all to the final day of the 5th NLUO International Maritime Arbitration Moot 2018 (IMAM). We will bring to you live updates from the Semi Finals and the Finals.
Semi Final 1 (RMLNLU vs RGNUL)
Arbitration Panel (left to right) Ms. J D Rajan ,Ms. Natasha Sailopal, Mr. Sameer ShahRMLNLU vs RGNUL
10:35 hrs
The Respondent start with challenging the Jurisdiction of the Tribunal and for the same justify it by stating that the disputes relate to the letter and not the charter party.
11:00 hrs
The Respondents are now being asked to take the tribunal through a timeline of the events so as to further facilitate the submissions, further the question of Contaminants is being posed by the tribunals which is dealt by the counsel by furthering the factual circumstances at the time of loading. The tribunal asks the counsel to move to his next submission.
11:10 hrs
The Counsel now moves forward to the submission regarding the charter party and how the addendum in the contract was without prejudice.
11:25 hrs
The Claimants now start with stating that the arbitration clause is broad enough to establish the claims. They claim further that their was no indication if they were previous remnants of the cargo. The tribunal questions the amount of due diligence necessary and was it carried out to ascertain no previous remnants of cargo were present.
11:35 hrs
The Tribunal further asks who the master is answerable to and questions the survey report and asks for the origin of 3 foreign objects in the cargo. The Tribunal cracks upon the claimants submissions so as to having too many presumptions. They further ask the Counsel to sum up his arguments.
11:45 hrs
The Second speaker starts with the issue of Counter Claim being time barred, The tribunal grills the unawareness of the authority cited and relied upon, regarding set off by the speaker. Tribunal questions the claimants on damages arising due to the presence of lumps of Tar in the cargo, the speaker contends that the respondents are responsible for any damages and liabilities arising out of loading which is the issue was in this case. The tribunal states that according to the charter party, it is the responsibility of the owner to check the ship before unloading.
11:55 hrs
The Counsel is questioned about the difference between demurrage and detention and further what was imposed in the present case. The Claimants are asked to wind up the arguments in a minute.
12:00 hrs
The respondents now proceed with rebuttals and lead with situation where the claimants have mislead the tribunal. They point out the wide disparity between the damages claimed.
12:10 hrs
This brings us to the end of the first Semi Final.
Semi Final 2 NLIU vs ILS
Semi Final 2
12:50 hrs
The claimant starts with stating about the letter of indemnity responding to the question of the bench on the nature of the Letter in question. Further the question is regarding the subject matter of the warranty.
13:01 hrs
The claimant goes on to submit about the letter of warranty and what the implied warranty was as the shipowner. The tribunal asks about what the warranty actually was and where does the scope of compensation come from. The Counsel goes on defining warranty but is unable to convince the bench for the same.
13:16 hrs
The Bench though not satisfied asks the Counsel to move onto his next submission. Counsel now moves on to ascertain the liability of the respondent during loading but the bench further questions the duty of the master which was appointed by the claimant and hence asks about the duty of the Claimants.
13:24 hrs
Claimant now takes help of judicial decisions to prove their submission regarding the addendum to be signed without any prejudice. He concludes with stating about the demurrage clause and are asked about the deviation clause of the charter party.
13:38 hrs
The Respondent’s Counsel begins with the lack of Jurisdiction of the Tribunal and for the same the bench questions about the nature of the letter in question. The counsel contends that the charter party provides for jurisdiction in England and not Navigonia. Further the contents and intention of the Letter is further questioned by the bench.
13:47 hrs
The counsel now moves to the report by quarantine officers and how they have stated about the remnants of the previous cargo. He further moves to conclude his arguments by stating the responsibility of the owner to provide the crane-man and wench-man.
14:02 hrs
The Second speaker for the Respondents starts with the issue of the Port being prospectively safe. Further she talks about embargo being the source of prospective unsafe port, which is not an inherent reason of the port being unsafe. She moves on further to the issue of renomination of the port.
14:09 hrs
The bench asks the counsel to define what a voyage exactly means and further about the date of NOR being granted. The exchange further goes on with the team being grilled on the owners of the cargo. Further submitting that the delay was caused by unforeseen circumstances.
14:14 hrs
Counsel is asked to summarize all the issue and finish the arguments in a minute. Counsel ends with the issue of payment made which was unreasonable as it was done without the agreement of the respondents.
14:19 hrs
Claimants start with Rebuttals laying down point-wise issues to which the Respondents conclude with the Sur-Rebuttals stating the answers to all the points raised by the Claimants.
14:21 hrs
This brings us to the end of Second Semi-Final. The judges and participants now break for lunch.
15:15 hrs
The results are out the finalists are NLIU & RGNUL
16:00 hrs Final (RGNUL vs NLIU)
Finals (left to right) Mr. Sameer Shah, Retd. Justice VVS Rao, Justice Dr. B R Sarangi, Mr. Amitava Majumdar, Mr. Ajay ThomasNLIURGNUL
The Finals of the 5th NLUO International Maritime Arbitration Moot 2018 (IMAM) are underway. The claimants start their submissions with stating the jurisdiction clause. They further state the LMAA terms 2017 and move ahead with sating the facts of the case.
16:03 hrs
The claimant speaker contending that the Letter in question was a letter of indemnity and the respondent conceded to the fact before the actual obligation to indemnify arose.
16:09 hrs
The speaker moves onto the claims due to the presence of lumps of solidified tar. Further the Bench allows the Counsel to proceed with the issues and to be questioned later.
16:17 hrs
The speaker moves onto the issue of availability of safe port, and how it was the duty of the respondents to make availability of a safe port during the period of embargo.
16:23 hrs
The bench asks the claimants to clearly state the breaches that they are claiming against the Respondents.
16:27 hrs
The Claimants proceed with their prayer to conclude their submissions.
16:32 hrs
The Tribunal questions the claimant on their reliance over American case laws in an English Tribunal. Further they pose questions on the wordings of the LOI.
16:40 hrs
The claimants enter a detailed argument on art 5 of the Hague Visby Rules. With this argument the claimants have rested their case.
16:48 hrs
The Tribunal is now hearing the respondents first submission wherein they seek to oust the Jurisdiction of the tribunal.
16:55 hrs
The respondent cleverly addresses the arbitrators concern briefly before deferring the question to his co-council. The respondents also seem to have worked on the feedback provided by the judges in the semis of working on their time management as they seem to be making a conscious effort to lead the tribunal to their next submission.
17:00 hrs
The Respondent speaker moves to his second issue and discusses about the clause 18 of the charter party. The bench asserts the reason for rejection was not only NWG based on the phrase ‘Inter alia’.
17:08 hrs
The Second Counsel for the respondent starts her submissions by stating that the embargo imposed is an exception to the addendum, she carries on by defining a safe port and also specifically dealing with abnormalities. Further she defines how the embargo was within the ambit of such ambiguities. She submits that the embargo enforced was not the inherent characteristics of the port and the vessel was prospectively safe.
17:16 hrs
Counsel further moves ahead and submits that the delay was caused beyond the control of the Charterers, as the entry of NWG was not prohibited and the embargo came as a jolt. She submits that the respondents were not under obligation to renominate the port as it might have been an infringement to the third party rights.
17:23 hrs
The bench asks the Respondents to clear what their counter claim is to which the counsel is unable to satisfy the bench with the submissions regarding the same.
17:33 hrs
The bench now proceeds with questioning the claimants on their submissions. The Counsels facing a barrage of queries from the bench and are having a tough time answering them.
17:45 hrs
With this we come to the conclusion of the Finale. The winner to be announced in a few minutes.
18:30 hrs
The Valedictory ceremony is under way with the Vice Chancellor of National Law University Odisha delivering the opening address and also highlighting the importance of mooting and how the occasion in itself is an opportunity for young mooters.
The guest of honor Justice B R Sarangi relives his college days and how the mooting culture has changed from time and how more competitive it has become. He congratulated all the teams participating in the competition and wished them luck for future.
19:00 hrs
Winners
The Results are out
The award for Best Oralist goes to Romit Kohli from NLUD.
The award for Best Memorial goes to RMLNLU
The Runners Up are RGNUL
The Winners of 5th NLUO International Maritime Arbitration Moot 2018 (IMAM) are NLIU.
Dr. Ananya Chakrabarty delivered the vote of thanks and formally concluded the Competition.
This brings us to the end of The 5th NLUO International Maritime Arbitration Moot 2018 (IMAM).
It was a pleasure bringing you the live blog, we will be back next year, until then Goodbye!
Supreme Court: In the case where the Bench of RF Nariman and Navin Sinha, JJ was deciding the question as to the nature of the Arbitration and Conciliation (Amendment) Act, 2015, it was held:
“the Amendment Act is prospective in nature and will apply to those arbitral proceedings that are commenced, as understood by Section 21 of the Arbitration and Conciliation Act, 1996, on or after the Amendment Act, and to Court proceedings which have commenced on or after the Amendment Act came into force.”
Regarding the question as to whether Section 36 of the Arbitration and Conciliation Act, 1996, which was substituted by the Amendment Act, would apply in its amended form or in its original form to the appeals in question, the Court said that
“in all cases where the Section 34 petition is filed after the commencement of the Amendment Act, and an application for stay having been made under Section 36 therein, will be governed by Section 34 as amended and Section 36 as substituted.”
On the question relating to Section 34 petitions that have been filed before the commencement of the Amendment Act, which were governed by Section 36 of the old Act, the Court said:
“execution of a decree pertains to the realm of procedure, and that there is no substantive vested right in a judgment debtor to resist execution, Section 36, as substituted, would apply even to pending Section 34 applications on the date of commencement of the Amendment Act.”
The Court also directed that a copy of this judgment be given to the Ministry of Law and Justice:
“The Government will be well-advised in keeping the aforesaid Statement of Objects and Reasons in the forefront, if it proposes to enact Section 87 on the lines indicated in the Government’s press release dated 7th March, 2018. The immediate effect of the proposed Section 87 would be to put all the important amendments made by the Amendment Act on a back-burner, such as the important amendments made to Sections 28 and 34 in particular, which, as has been stated by the Statement of Objects and Reasons.”
The Court said that it is this basic scheme which is adhered to by Section 26 of the Amendment Act, which ought not to be displaced as the very object of the enactment of the Amendment Act would otherwise be defeated. [Board of Cricket Control of India v. Kochi Cricket Pvt. Ltd., 2018 SCC OnLine SC 232, decided on 16.03.2018]
