Bilateral Investment Treaty Archives

Bilateral Investment Treaty and Investment Arbitration: A Critique from India Perspective

Introduction

Bilateral Investment Treaties (‘BIT’) establish the terms and conditions for private investments made by individuals and business entities from one sovereign State into other sovereign State[1]. The first ever BIT was entered between Germany and Pakistan on November 25, 1959[2] and since then, the BITs have evolved in an unprecedented manner. However, the genesis of across the border investments is very old and can be traced back to the colonial periods and multifold investments across the territory of India were made but one could not have argued against the vile intricacies of the investment back then before an investment arbitral tribunal[3]. However, with the passage of time, the modalities of investments have changed and now the investments are made under binding agreements and disputes arising therein are resolved qua dedicated investment tribunals working under different conventions and rules.

The disputes arising out of a BIT are not a contractual dispute as such because there is no privity between the parties. Perhaps, that is the reason why, investment arbitration is also known as arbitration without privity[4]. The disputes that arise between the parties of the BIT are between two States so, the entire dynamics of such an arbitration is different as what one would usually observe in a domestic arbitration. A commercial arbitration is based on an arbitration agreement, whereas investment arbitration may be based on either an investment treaty or a bilateral/multilateral treaty.

India as one would recall was rather a closed economy prior to the 1991 economic liberalisation but after the 1991, the Indian economy underwent some major structural changes. For the very first time, countries all around the world were encouraged to invest in India and the Indian economy saw liberalisation to reach new heights.

Bilateral Investment Treaty: Indian Context

The BIT primarily came into picture to safeguard the investments which were made by different countries. An investment across the borders is generally a long term relationship and the investor look for certain level of safety before making the investment. The BITs do not afford protection such as insurance coverage for the investments rather it devolves a mechanism to resolve the disputes arising during the tenure of investment. India signed its first BIT in 1994 with the United Kingdom. Since, 1994, India has signed around 84 BITs out of which according to the latest data, currently, there are 14 BITs which are in force, 58 out of 84 BITs have been terminated. In addition to the BITs, India has also entered into Comprehensive Economic Cooperation Agreements (‘CECA’) which covers issues like investment, trade, intellectual property rights, etc. India has also contemplated the idea of entering Foreign Treaty Agreements (‘FTA’) with European Nations[5].

As per the recent data, India is ranked among the top 10 nations in the world for the inbound Foreign Direct Investment (‘FDI’)[6] and among the top 20 for the outbound FDI. In last five years, FDI inflow in India has increased by 11.5% totalling to around 62 billion dollars in the FY 2018-2019. In the same financial year, the outbound FDI also rose up to 11 billion dollars. The uprising in the quantum of FDI is a result of unprecedented change in the Indian FDI policy. India has now allowed FDI in Defence[7], Telecom[8], Information and Broadcasting, etc. India had also increased its FDI capping in E-commerce[9] and Insurance[10] sector from 49% to 100% which has seen massive investments being made by foreign entities in the Indian companies. India has also worked towards promoting ‘ease of doing businesses’ with dedicated ministry and departments.

Institutions adjudicating investment Arbitrations across the world

There are institutions across the world which governs different investment arbitration more specifically depending upon to which institution the parties agree to submit their disputes. The mechanism in such arbitration is just like an international commercial arbitration. The tribunal under the various institutions primarily adjudges behavior of the host States towards a foreign investor. The International Centre for Settlement of Investment Disputes (ICSID), International Chamber of Commerce International Court of Arbitration (ICC) and Stockholm Chamber of Commerce (SCC) are preferred arbitration institutions by the parties. Generally, where a bilateral investment treaty exists, investors are free to bring arbitration actions in any of the arbitration institutions as identified in the said treaty. Most of the BITs provide for a mechanism of dispute settlement through any of the arbitral institutions as mentioned above[11].

Underlying facets of BIT

BIT has many facets to it, however, there are a few underlying facets of BIT which holds great significance. They have been enlisted and discussed below[12]:

a) Fair and Equitable Treatment (FET): FET is considered to be one of most frequently invoked facets in a BIT. When an investor invests into a country, an expectation of fair and equitable treatment comes on a pretext of a healthy competition with the local/domestic players of a host country. However, it is pertinent to consider that the contours of its deciphering may differ with the specific wording/nomenclature of the specific clause as mentioned in a BIT.

b) Protection from Expropriation: Expropriation can be understood as nationalisation of assets of a foreign investor or taking any such measures which have similar effects as that to a right of property of an individual. Prevention against expropriation is the fundamental principle of International Law and hence, it holds out as a very significant facet of a BIT. A foreign investor would apprehend the prospects of expropriation as generally the quantum of investments made is very high.

There is also a concept called ‘creeping expropriation’ which means that the economic value of the investment has been eaten out to such a level that it virtually becomes worthless[13].

c) Most Favoured Nation Treatment (MFN): It is one of the most alluring facets of a BIT. The MFN clause ensures that a foreign investor will get all the advantages within the four walls of the highlighted clause in a BIT with respect to the investment made in the host State. It boasts the confidence of the investor State as MFN status invariably promises to treat the foreign investor at par with all the domestic investors of the host State.

d) Full protection and security: The host State is under an obligation to ensure that the investments made by a foreign investor is protected and secured. The protection herein is multifold as the host State should protection of the employees, assets, facilities associated with the investment. The said clause of protection and security may also include guarantee and security provided by the host State.

e) National Treatment: It is one of the responsibilities of the host State that it treats the foreign investor equally as its domestic investors and market players. It is also to ensure for the host State that the foreign investors are made available all the competitive opportunities as may be available with any of the domestic players.

f) Freedom to transfer funds: It is one of the primary responsibilities of the host State under a BIT to ensure that a foreign State is able to transfer the returns from the investment to their own country and in their own currency. It also comes in as one of the most sought out clauses in a BIT as smooth realisation of funds/returns from an investments attract more investors in a host State.

g) Sunset Clause: Sunset clauses are regarded as survival clauses. A general sunset clause will include a period of 5 years and longest could go up to 25 years. For instance, China and India entered BIT into 2007 but the BIT got terminated in 2017[14]. The termination would ideally mean an exit for the parties to the BIT but such survival clauses in the BITs complicate the exit route. The process of denunciation becomes cumbersome if the BITs are not negotiated between the parties prudently which could result in having such a clause in the BIT.

h) Fork in the road clause: In the Model BIT, 2016, an investor ideally has to explore all the domestic redressal avenues before approaching the investment arbitral tribunals. However, in few of the agreements, the investors have an option of either moving before domestic courts and tribunals or to move before the investment tribunals. Such a clause is known as fork in the road clause[15].

BIT Arbitrations in India

After signing its first BIT in 1994, India devolved its first Model BIT in 2003 and it resembled with the United Kingdom BIT. However, India faced its first round of BIT arbitration in the year 2004 in the infamous Dabhol Power Plant case[16]. The plant was to be set up in the State of Maharashtra and various investor states like United Kingdom, Netherlands, Mauritius, France, Switzerland and Austria invoked the BIT arbitration against India. More specifically, Bechtel and General Electric brought claims against India under the India-Mauritius BIT, alleging expropriation of their interest in the power plant by the Indian Government. The claims were however settled and India had to compensate for losses.

Thereafter, one of the first substantive cases related to BIT arbitration came up in the White Industries case[17]. In 1989, the Australian company entered into a contract with the Coal India Limited, a public sector undertaking for developing of coal mines in Piparwar (Erstwhile Bihar, now Jharkhand), India. White Industries alleged that due to inconceivable delay at the hands of the Indian judiciary spanning around 9 years, the company had incurred huge losses and there has been a breach of treaty guarantee. One of the interesting facets of the said case was while passing the award, the tribunal held that there had been a breach of guarantee to provide ‘effective means to assert claims’, a guarantee which was not present in the India-Australia BIT and was drawn from India-Kuwait BIT. The award[18] made India pay approximately USD 4 million as damages and legal cost[19].

Investor-State Disputes in India

Whenever disputes relating to investments come to our mind specifically in the Indian context, the case of Louis Dreyfus Armateurs SAS v. India [20] cannot be ignored. It is considered to be one of the first cases where India succeeded in having an award in its favour. In first of its cases resulted out of a dispute that arose after termination of the agreement by Haldia Bulk Terminals Private Limited (‘HBT’). Louis Dreyfus initiated investment arbitration against India under the India-France BIT alleging that the termination of HBT virtually decimated the investment. An UNCITRAL arbitral tribunal has reportedly dismissed a US$ 36 million claim by a French investor, Louis Dreyfus Armateurs SAS (“LDA“), against India under the 1997 France-India bilateral investment treaty (“BIT“). The award is not public at this time, but press reports state that LDA has also been ordered to pay approximately US$ 7 million in respect of India’s substantial legal expenses[21]. The Permanent Court of Arbitration held[22] that in order to invoke jurisdiction of the tribunal by an investor in an indirect investment, the investor shall hold at least 51% ownership in order to fall within the protection granted by the BIT as defined under Article 2(1) of the BIT.

Among the other investment arbitrations like Deutsche Telekom AG v. Republic of India[23], Khadamat Integrated Solutions Private Limited v. Kingdom of Saudi Arabia[24], one such case which is also very significant is Union of India v. Vodafone GroupPlc [25]. In 2014, Vodafone International Holdings BV (‘VIHBV’) initiated investment arbitration against the Republic of India under the India-Netherlands BIT. It was interesting to note that while the abovementioned arbitration was pending the VIHBV filed another set of investment arbitration under the India-UK BIT against the retrospective effect of an amendment made by the Indian Government under Section 9(1) and Section 195 of the Income Tax Act, 1961 read with Section 119 of the Finance Act, 2012. The Indian Government approached the Delhi High Court seeking an anti-arbitration injunction against VIHBV for initiating two parallel arbitral proceedings. However, in the year 2018, the Delhi High Court rejected[26] the contentions of Republic of India upholding the principle of ‘kompentz kompetz’ and held that the purview of intervention with a BIT arbitration is very limited and the provisions of the Arbitration and Conciliation Act, 1996 will not apply to the BIT arbitrations.

The year 2019 also saw some more relevant inter-State disputes. Khaitan Holdings (Mauritius) issued a notice of dispute to Republic of India under the India-Mauritius BIT. Republic of India moved before the Delhi High Court seeking anti-arbitration injunction against Khaitan Holdings. However, the Delhi High Court while relying upon Vodafone Plc[27] (supra) held that it is with the arbitral tribunal to determine whether Khaitan Holdings were investors as defined under the India-Mauritius BIT. The Delhi High Court in its judgment in Union of India v. Khaitan Holdings (Mauritius)[28] held that the provisions of the Arbitration and Conciliation Act, 1996 will not be applicable to such arbitrations[29].

Another interesting set of investment arbitration took place in Nissan Motor Co. Ltd. v. Union of India[30], where one of the facets of BIT i.e. fair and equitable treatment was evaluated by the Permanent Court of Arbitration. Nissan Motors initiated investment arbitration against India under India-Japan Economic Partnership Agreement against the non-payment of unpaid incentives under the Indian tax regime. Nissan also alleged that Republic of India has also violated Comprehensive Economic Partnership Agreement (CEPA) wherein the agreement affords some protection to the Japanese entities in India and vice versa. Republic of India however, raised an objection before the Permanent Court of Settlement, Singapore with respect to its jurisdiction to adjudicate the dispute. The Permanent Court of Settlement, Singapore rejected the contentions made by Republic of India. The case is still pending for final adjudication[31].

Model BIT, 2016-India’s Reconnisance attempt

With the passage of time and after witnessing multiple investment arbitration downfalls, India tried to devolve a new Model BIT in 2016[32]. The Model BIT consists of 38 articles and 7 chapters and showcased a departure from the locus India used to have with its erstwhile BITs. It could be said that the 2016 Model is more State centric than its earlier predecessors i.e. the 2003 India Model BIT. The Model BIT has adopted ‘Salini Criteria’ as was held in the landmark case of ‘Salini Costruttori S.p.A and Italstrade S.P.A v. Kingdom of Morocco’[33] in order to determine the investment criteria for a foreign investor. The investment as mentioned in Article 1.4 has to be operated by the investor in ‘good faith’ which remains a point of deliberation while negotiating treaties with other countries[34]. Salini Criteria also postulated a mechanism which evaluates the substantial business activities for the test of investor[35].

The Model BIT has also made an exclusion of pre-investment activities from the purview of investments. It could be seen under Article 1.4(iii) which stated that “any pre-operational expenditure relating to admission, establishment, acquisition or expansion of the enterprise incurred before the commencement of substantial business operations of the enterprise in the territory of the Party where the investment is made.”

The Model BIT, 2016 has removed the Most Favoured Nation (‘MFN’) clause. A MFN clause ensures protection for a foreign investor and its investment and its primary purpose to afford equal treatment of both foreign and domestic market players. India has done away from the MFN clause taking its cue from Salini case[36] wherein the investor tried to import arbitration as a dispute settlement mechanism from Jordan-UK BIT through the MFN clause in the Jordan-USA BIT. The contention was, however, rejected by the International Centre for Settlement of Investment Disputes. India has tried to curb the chances of an investor seeking benefits from a separate treaty with a third party however, by not having MFN clause exposes a foreign investor to differential treatment risks.

India has also incorporated Article 15.2 which states that an investor has to necessarily seek legal remedy from the domestic courts of a host states for an initial period of 5 years before seeking a claim under Model BIT. If a foreign investor had to take a cue from the episodes of Indian judicial system in White Industries[37] then having this clause in the BIT might just prove preposterous for any investment.

One of the welcoming articles of Model BIT is Article 10 which deals with ‘Transparency’. The article ensures that the investing state or the investor get well versed with the prevailing laws, regulations and procedures. Also, Article 10.2 which postulates a mechanism of consultation with the investor State or the investor regarding a particular law, regulation, procedures will instill confidence in the investors.

The Model BIT, 2016 has also devolved a differentiation between direct and indirect expropriation. There is no precise definition of expropriation. However, the Model BIT, 2016 under Article 5 specifically deals with expropriation. The Model BIT, through indirect expropriation has covered the concept of ‘creeping expropriation’. The Model BIT has further broadened the contours of expropriation by stating that the character, intent and objective of the measure taken by the government of the host country has to be prudently evaluated before considering the prospect of expropriation. A perusal of Article 5 of Model BIT, 2016 reveals that it has been made more host-State-centric and requirements to adopt indirect regulatory measures create cynicism in the minds of the investor and further acts as a road block for an investor seeking refuge under the purview of expropriation before the investment arbitration tribunals.

Handling BITS and Investments during and after COVID-19 [38]

The entire world is undergoing an epidemic which has not only engulfed many lives but has considerably decimated multiple economies. For instance, the International Air Transport Association has estimated a loss of global revenue at USD 63 billion to USD 113 billion[39]. In these challenging times, it becomes pertinent to evaluate the global investment psychology as resistance in investments would become a common phenomenon. It would be interesting to see how India would re-plan and formulate its strategies so as to reinvigorate the investments in India[40].

It would be also interesting to see how investors are treated under such dire circumstances. As the lockdown, which has been enforced in a majority of nations across the world, the commitments underlying within a treaty may get disgruntled[41]. The prospect of indemnification with respect to the investors also needs to be evaluated. One has to evaluate as to how will a non-performance of an obligation under a treaty will be treated? As most of the BITs provide for expropriation (direct & indirect) and general exceptions, it would also be interesting to see that how will be interpreted under the light of extra-ordinary circumstances such as COVID-19. For instance, Article 32 covers the General Exceptions and Article 32.1(ii) specifically states that ‘(ii) protect human, animal or plant life or health’.

Times like these seek greater conscience and greater responsibilities. The very need to avoid the investor-Sate dispute could never have been any greater. When the entire world economy has been crippled by COVID-19, resorting to high stake Investor State Dispute Settlement (‘ISDS’) mechanism does not seem to be a good option. More specifically, for developing countries like India which has already been economically rattled by the pandemic, any investor-state dispute will further worsen the situation. According to the fact that the litigant might be reeling under a financial stress, an option of third party funding by someone who has a majority stake in the investment could be ruled out. A recent judgment of the High Court of Bombay in Norscot Rig Management Private Limited v. Essar Oilfields Services Limited[42], wherein it was held that, an arbitration award, which has been obtained due to third party funding, cannot be termed as against of public policy of India. The validity of such agreements would be tested by the fact of the validity of the arbitration award.

However, it is pertinent to mention that a study of the OECD estimates the average cost to defend a claim is USD 8 million[43]. Specifically for developing countries like India, claims by different foreign investors are bound to surface but a situation like this would require a holistic approach in order to have a feasible investment environment.

Parting Thoughts

In the last decade, international investments have increased in an unprecedented manner but at the same time India has also terminated many of its BITs. The disputes related to BIT and investment arbitration is a fast evolving law. There have been a flurry of investment arbitrations and legal proceedings post arbitral proceedings which have challenged the fundamentals of BIT arbitration in India. India as a contesting party has had lot of debacles in the BIT arbitrations, sometimes due to weak clauses in the treaty and sometimes due to constrained usage of legal acumen. Most investment arbitrations nowadays are brought on the basis of bilateral and multilateral treaties and are conducted under different conventions like ICSID Convention, UNCITRAL Arbitration Rules, etc. India is not a signatory to the ICSID Convention, which is among the most sought out institution for BIT arbitrations. However, some recent decisions in the year 2019, for instance Tenoch Holdings Limited (Cyprus), Maxim Naumchenko (Russian Federation)[44], South-East Asia Entertainment Holdings Limited[45] cases bring some positivity to the BIT arbitrations in India.

One cannot ignore the fact that COVID-19 as an epidemic has savaged the world economy. With expectations of multiple claims to be made in future by foreign investors, it would be interesting to see how India handles the situation.

*Authors are advocates practicing in Delhi.

[1] https://guides.ll.georgetown.edu/c.php?g=371540&p=4187393

[2] Treaty Between Federal Republic of Germany and Pakistan for Promotion and Protection of Investments dated 25-11-1959 (Bonn)

[3] ‘Discrimination or Social Networks? Industrial Investment in Colonial India’ by Bishnupriya Gupta, University of Warwick; Department Economics.

[4] Friday Group Speaker: Justice Indu Malhotra : Bilateral Investment Treaty Arbitration: Last visited on 01.05.2020 (https://www.youtube.com/watch?v=EIr2t3SToNk)

[5] Department of Economic Affairs, Bilateral Investment Treaties (BITs)/Agreements https://dea.gov.in/bipa

[6] https://www.usnews.com/news/best-countries/slideshows/10-countries-that-receive-the-most-foreign-direct-investment?slide=2

[7] https://www.makeinindiadefence.gov.in/pages/fdi-policy-in-defence-sector

[8] https://dot.gov.in/fdi-policy-telecom

[9] https://www.fdi.finance/sectors/retail-and-e-commerce

[10] https://www.business-standard.com.article/pti-stories/dpiit-notifies-100-pc-fdi-in-insurance-intermediaries-120022501602_1.html

[11] https://internationalarbitrationlaw.com/about-arbitration/international-disputes/investment-arbitration/

[12] V. Inbavijayan & Kirthi Jayakumar, “ARBITRATION AND INVESTMENTS– INITIAL FOCUS”, Indian Journal of Arbitration Law, Vol. 2, Issue 1

http://www.ijal.in/sites/default/files/IJAL%20Volume%202_Issue%201_V.%20Inbavijayan%20%26%20Kirthi%20Jayakumar.pdf

[13] https://uk.practicallaw.thomsonreuters.com/3-501-7334?transitionType=Default&contextData=(sc.Default)&firstPage=true&bhcp=1

[14] https://economictimes.indiatimes.com/news/economy/foreign-trade/china-keen-on-bilateral-investment-pact-with-india/articleshow/63523147.com?from=mdr

[15] https://www.nortonrosefulbright.com/en/knowledge/publications/0bd10ad8/fork-in-the-road-clauses

[16] Capital India Power Mauritius I and Energy Enterprises (Mauritius) Company v. India, ICC Case No. 12913/MS, Award dated 27-4-2005 (ICA).

[17] White Industries Australia Limited v. Republic of India, Final Award dated 30-11-2011 (UNCITRAL)

[18] Ibid

[19] http://lawtimesjournal.in/investment-arbitration-in-india/

[20] Louis Dreyfus Armateurs Sas (France) v. The Republic of India, PCA Case No. 2014-26, Award dated 11-9-2018 (PCA)

[21] https://hsfnotes.com/arbitration/2018/09/17/tribunal-awards-india-first-bit-case-win-dismissing-claims-of-french-investor/

[22] Louis Dreyfus Armateurs Sas (France) v. The Republic of India, PCA Case No. 2014-26, Award dated 11-9-2018 (PCA)

[23] Deutsche Telekom AG v. the Republic of India, PCA Case No. 2014-10, Interim Award dated 13-12-2017 (PCA)

[24] PCA Case No. 2019-24, dated 7-2-2020 (PCA)

[25] Union Of India v. Vodafone Group Plc United Kingdom, 2018 SCC OnLine Del 8842

[26] Ibid

[27] Ibid

[28] Union of India v. Khaitan Holdings (Mauritius), 2019 SCC OnLine Del 6755

[29] https://www.nishithdesai.com/information/news-storage/news-details/article/investment-arbitration-india-2019-year-in-review.html

[30] Nissan Motor Co. Ltd. (Japan) v. The Republic of India; PCA Case No. 2017-37

[31] https://www.reuters.com/article/us-nissan-india-arbitration-exclusive/exclusive-arbitration-court-rejects-indias-plea-in-acse-against-nissan-sources-document-idUSKCN1SZ0X8

[32] https://dea.gov.in/sites/default/files/ModelBIT_Annex_0.pdf

[33] ICSID Case No. ARB/00/4; Decision on Jurisdiction dated 23-7-2001

[34] https://www.allenovery.com/en-gb/global/news-and-insights/publications/indian-model-bilateral-investment-treatyBilateral_Investment_Treaty_Arbitration_and_India-PRINT-2.pdf

[35] https://www.nishithdesai.com/fileadmin/user_upload/pdfs/Research_Papers/Bilateral_Investment_Treaty_Arbitration_and_India-PRINT-2.pdf

[36] Salini Costruttori SpA and Italstrade SpA v. Kingdom of Morocco, ICSID Case No. ARB/00/4, Decision on Jurisdiction dated 23-7-2001

[37] White Industries Australia Ltd. v. Republic of India, Final Award dated 30-11-2011 (UNCITRAL)

[38] http://arbitrationblog.kluwerarbitration.com/2020/03/30covid-19-and-investment-treaty-claims/?doing_wp_cron=1588865131.8151700496673583984375

[39] https://www.iata.org/en/pressroom/pr/2020-03-05-01/

[40] https://globalarbitrationreview.com/article/1222354/could-covid-19-emegency-measures-give-rise-to-investment-claims-first-reflections-from-italy

[41] https://www.lexology.com/library/detail.aspx?g=e21b3a08-9ec8-4b74-af25-98d6a288ee26

[42] Norscot Rig Management Pvt Ltd v. Essar Oilfields Services Limited; 2019 SCC OnLine Bom 9153

[43] https://www.theguardian.com/business/2018/jul/02/revealed-39m-cost-of-defending-australias-tobacco-plain-packaging-laws

[44] Tenoch Holdings Limited (Cyprus) v. Republic of India, Case No. 2013-23 (PCA)

[45] Astro All Asia Networks and South Asia Entertainment Holdings Ltd. v. Republic of India; Award dated 8-10-2018 (UNCITRAL)

Law School News Live Blogging

LIVE: 6th Dr. Paras Diwan International ‘Energy Law’ Moot Court Competition, 7th April – 10th April, 2016

A warm welcome to all of you to the 6^th Dr. Paras Diwan International ‘Energy Law’ Moot Court Competition, 2016.

Participants from all over the country as well as outside are going to slug out for this year’s competition. They will be vying for Web Edition 1 year Subscription – 9 access cards worth Rs. 2,00,000 with SCC online, Books worth Rs. 25,000, one month SCC subscription to all the participants worth Rs. 1,00,000 as well as cash prizes worth Rs. 1,20,000.

The whole event will be hosted for a span of four days – Day of Registration & Inauguration (7^th April, 2016), Energy Moot Stage 1 (8^th April, 2016), Energy Moot Stage 2 (9^th April, 2016) and Judgment Day (10^th April, 2016).

Day of Registration & Inauguration (7^th April, 2016)

After the lunch scheduled at 01:00 PM, the registration process is going to start from 02:00 PM. Thereafter inauguration ceremony will begin at 03:00 PM. Researcher’s Test, Release of Fixtures and Exchange will be done at 06:00 PM. We have others events such as SCC Online Lecture in between.

2:15 PM Now that all the participants have arrived after the lunch, the registration process is going to begin. A cursory roll call has been done. Following teams have attended:

Banasthali Vidyapith, Rajasthan
Campus Law Centre, Faculty of Law, Delhi University
GLC, Mumbai
Glocal University, Sahranpur
The Faculty of Law, ICFAI University
DAMODARAM SANJIVAYYA NATIONAL LAW UNIVERSITY
GNLU, Gujarat
National Law University, Odisha
NUALS, Kochi
RGNUL, Patiala
Tamil Nadu National Law School
NMIMS School of Law, Mumbai
Renaissance, Madhya Pradesh
Symbiosis Law School, Hyderbad
Symbiosis Law School, Noida
SLS Pune
SOEL, Chennai
University of Dhaka
University of Lucknow
Vivekananda Institute Of Professional Studies
Amity Law School, Delhi
LC-1, Faculty of Law, DU
Kathmandu School of Law, Bhaktapur, Nepal
NLSIU, Bangalore
NLU, Mumbai
Jindal Global Law School

A special shout out for the Teams from Kathmandu School of Law and University of Dhaka who are visiting from Nepal and Bangladesh respectively. Welcome Guys!

2:45 PM With the registration process finished, we are awaiting for the Inauguration ceremony. All the laptops and study materials are out. The teams are utilizing this period for further research. No wasting of time for them it seems!

3:10 PM With the inauguration ceremony underway, we are privileged to be in the presence of our Hon’ble Guests Ms. Kahkashan Khan, Additional Secretary (Law), Govt. of Uttarakhand; Mr. Biswajit Sarkar, Managing Partner, Biswajit Sarkar and Associates; Mr. Amit Sevak, CEO, Laureate [AMEA-Africa, Middle East & Asia] Region; Dr. Parag Diwan, Chief Academic Officer, Laureate International Universities; Prof. Utpal Ghosh, CEO-Laureate, UPES; Dr. S.J. Chopra, Chancellor; Dr. Shrihari Honwad, Vice-Chancellor; Mr. Sanjeev Zutshi, Senior Director- Operations, Mrs. Deepa Verma, Director, Institutional Affairs; Mr. Arun Dhand, Director-Government Relations; Dr. Tabrez Ahmad, Director, CoLS; Dean and Heads of other colleges in UPES; Administrative Heads; DSA Head and members; and the Faculty members of College of Legal Studies.

3:50 PM The event was declared open with the lighting of the lamp. And we were enlightened by the words of wisdom imparted upon us by the Honored Guests.

We will be taking a break for Group Photographs and the High Tea.

5:15 PM The SCC Online presentation is well underway. The representatives from SCC Online have divulged nuances about legal research and the working machinery regarding how the cases are reported and cross-referenced. A feast for the researchers! Extra incentive of gift packs have also been handed out for the questions correctly answered by the audience.

6:10 PM With the insightful presentation provided by SCC Online coming to an end, it’s the time for the Release of Fixtures, Exchange of Memorials and the Researcher’s Test. Coming down to the business end!

6: 30 PM The researchers are away for the Researcher’s Test. And their teammates are drawing their opponents for the preliminary round fixtures scheduled tomorrow as well as the sides for which they would be arguing.

7:30 PM The Researcher’s Test has been done away with. The memorials have been exchanged. The teams have gotten a glimpse of what they will be facing tomorrow. So the stage is all set for tomorrow’s rounds. And if the determined faces of the participants are anything to go by, it will turn out to be a very high octane affair.

2. Energy Moot Stage 1-(8^th April, 2016)

Hello! It’s the second day of the competition and we are now to the business.

We will be having preliminary rounds today. Each team will have two rounds on the basis of which they would be moving to the Quarter Finals. Much is at stake. In the evening session, results will be declared. And the exchange of memorials will be done for the next round.

10:30 AM Briefing of Judges is being done. And the participants are taking their place in the court rooms. All the volunteers of MCA are looking alert and up to the task. The round will start anytime now with the conclusion of briefing.

11:00 AM Finally the briefing has ended. It took one and a half hours. Apparently the moot problem took its time in being tamed. Kudos to Moot Court Association who have drafted the problem under supervision of Ms. Pallavi Arora & Ms. Mary Sabina Peters.

11:05 AM The rounds have started at last! Now you all will get the juice on court proceedings for which you must have been waiting.

Court Room No.1 – National Law University, Odisha v. LC-1, Faculty of Law, DU

Agent 1 for the Applicants seemed very confident as she took the dais. As a matter of fact, she had a smile on her face. In her oral submissions she did fumble a bit but regained her composure remarkably well. The Judges raised the question as to why the specialized forum of ICSID was excluded. The speaker persisted with answer and the Judge didn’t pursue with it further. But she finished her issues within the allotted time.

Agent 2 for the applicants now begins. His confident manner and a baritone voice inspires conviction. The judges are applying constant efforts towards entrapping the speaker but despite stumbling couple of times, the speaker digs out his way using the Fact sheet. The judges asked for the authority but the applicants have apparently failed to include it in their Compendium. The allotted extension time has also expired a while back!

Agent 1 for the Defendants begins the submission and Judges immediately try to corner him. He is doing his arguments in a very aggressive manner. When the judges raised a question, he carried on with his submissions citing the reason that the question has been dealt with in subsequent arguments. But the Judges seem put off and ask him to address the questions immediately. The defendants have now submitted a screenshot of a webpage as authority. This is followed by a lecture by the Judges on importance of Compendium and seriousness of the forum. The speaker again overrides the Judge and didn’t let him finish his question!

Agent 2 is now on the podium. He seems like a calmer version of his co-agent. He has satisfied the Judge on his first issue. But they continue to cite unacceptable authorities. The Judges caution them that submitting “random pages from random books that I do not know of” is not helping their case. And thereby, he rejects the authority. The agent also slips up by referring to his fellow co-agents as “friend” and this point is picked by the Judges. The agent has overshot the time by a huge margin. And he has promised to take “due care” of mistakes as has been pointed by the Judge.

Court Room No.2 – Renaissance, Madhya Pradesh v. Symbiosis Law School, Hyderabad

The agent 1 for the applicants is going on with the statement of facts. The judges seem to be annoyed by the submissions going on. The response by the Judges have applicants breaking into a cold sweat. Meanwhile the Counsels for the Defendants almost seem disinterested. One of them is yawning!

The agent for the Defendant is submitting his arguments. But as they have now started with their statements, their seems to be a ray of hope on the face of Applicants. Their seems to be a hint of smile on the faces of applicants as they look at the judges. Now the researcher seems busy sending chits to their speaker. However, the speaker is not even able to understand the writing and the parties ends up laughing.

Court Room No.3. – Vivekananda Institute of Professional Studies v. GLC, Mumbai

The agent no. 1 applicant seems to believe that she can win the war just by being loud. The judges don’t really seem to be interested in whatever she is saying. They are just playing with her by confusing her with queries. And it seems to be working well! It’s like a parliamentarian being asked a question about his actual accomplishment! That does tend to make them go silent. The agent is speaking so fast. It seems that she wants to save the courts time by not utilizing her full quota. And just as the agent was about to bow out, the judges just had to call her back. The second speaker stood up thinking it was her time to shine but she was asked to sit down by the judges. If there’s one thing to be said then it must be noticed that the speaker didn’t lack for conviction.

Now it’s the turn of Agent 2. This one might have been more eloquent than the first one but her pace exceeds even her team-mate, so one can’t be sure. Like what did they have for breakfast?

As far as the researcher for the team……..wait……what is the researcher of the team doing?

All she is doing is to sit like a duck and warm her bench while her teammates are getting hammered by the judges very conveniently. Honestly, not much she can do from there at this stage. This is just one of the moments where you see the speakers swimming against the tide and the researcher is just chilling in the lovely weather of Doon!

Now it’s the turn of Defendants. The way this agent has started has actually caught the eye of the judges and also of their opposition. She has a very nice flow, with a lovely tone which makes everyone believe that she is making good points regarding her issue. The judges are actually paying attention to the speaker as she is making valid points. The agent stumbled a bit but it seems that she managed to pull a rabbit out of the hat and saved herself there. Very eloquently, she ended her statement and bowed out of the court room impressing everyone present here.

The Agent no.2 has a clear, peaceful voice and a very lucid language. He is making his assertions well and is substantiating them marvelously. He is actually managing to convince the judges because the judges have their eyes on him and not on the list of authorities which have been provided to them to make his life a living hell. If making one’s points subtly is the key then this guy is the key maker. About time that the judges started posing questions to him, but the manner in which he made his submissions and the way he connected all the dots has been beautiful.

Court Room No.4- University of Lucknow v. NMIMS School of Law

The first Agent on behalf of the Applicant has started with the facts. There are a lot of questions coming from the Judges. The Judges are grilling the agent not only on the questions of law, but on the questions of fact as well. The Agent is unable to frame proper arguments and is speaking in an unclear and confusing manner.

The Judges then turn to the researcher to seek clarifications. The researcher on the other hand is unable to help the agents. He is completely blank about what is going on.

The second Agent takes the dais to do some damage control. Contrary to the first agent, the second agents seems to be handling the situation well and is succeeding to address all the questions raised by the judges.

The Agents on behalf of the defendants have started with their arguments. She seems to have marvelous speaking skills and has a way of convincing the judges. Oops! Someone’s phone has started ringing, it manages to seek everyone’s attention. The Agent confidently continued with her arguments. The judges point out that neither of the teams have requested extension of time.

The second agent on behalf of the defendants takes the dais. In the words of our reporter, she is a “Beauty with Brains”. She manages to get positive feedback from all the judges.

Court Room No.5- NLSIU, Bangalore v. Amity Law School, Delhi

With the arrival of the judges the proceeding can now begin. The looks on the faces of judges makes everyone aware that they mean business and won’t beat around the bush.

Agent 1: Taking the permission to address the court the agent for the applicant walks up to the podium looking pretty confident about his research. By the looks of it can be said that he’s going to go for the kill from the very beginning. While making his statements he was being sarcastic but was making his points clear. At that very instance the judges decided to york him. It felt like his attitude towards the situation brought to his downfall. However, he did manage to dodge every question asked and move on.

Agent 2: The second speaker seeing the downfall of his teammate decided to be the smart guy and was very polite while making his approach in front of the judges. But as they say that the first impressions might be the ones that last, some pertinent questions were raised by the judges to him which left him dumbfounded. He went on beating about the bush and the judges were all intelligent about the agent’s mistakes and sent him for a toss.

The agent 1 for the defendant comes up with poise and is very calm about the entire situation. She knows not to lose her cool as it would cost her team. She’s making her points known to the judges slowly and steadily. Her pace is rising as she is gaining some confidence in herself. The judges albeit impressed by her still wanted to test her ability on how much she can rise. With the number of questions being asked the agent does get worried. She goes on a spree of making mistakes which starts disappointing the judges. The judges, perhaps, still dissatisfied by her performance asked her to wrap her statement.

Agent 2 for the defendant knowing that there was a lot of mess to clean, came up with a plan. All she had to do is to make valid points of law and finish off her arguments quickly and also have enough time to restore the former agents arguments as well. Soon she realised that the mess was just too much to handle. Soon her magical belief of completing things in a smooth manner vanished when she realised that she had a lot of problems to deal with her own. She was sure that she knew the law well but the judges knowing the proper way to toy with agents made her doubt her ability and also made her lose her track. Thus, this led to the end of the arguments of the second agent wherein she tried fighting an uphill battle but soon she came tumbling down.

Court Room No. 6 RGNUL, Patiala v. Campus Law Centre, Faculty of Law, Delhi

The First Agent on behalf of the applicants seemed a little nervous at first, but recovered in a very informative and confident manner. The agent seemed to know the memorial really well. The judges asked direct questions regarding jurisprudence of investment which were efficiently answered along with case laws.

The second Agent is speaking well enough to substantiate on the issues, but, is unable to answer the questions raised by the judges satisfactorily relating to the topic of state liability and its exceptions.

The Agents on behalf of the respondents have started with their arguments and she sounds a little nervous. The Judges on the other hand are grilling the agent with questions. She is unable to answer the questions properly. It seems that there are many loopholes in the arguments, which are not managed properly by the agent.

Court Room No.7 – GNLU, Gujrat v. Symbiosis Law School, Noida

The Applicants have started with their arguments. And the Judges don’t look satisfied one bit. They failed to answer the questions raised by the Judges. The Judges are giving a disappointing look. And from their face it doesn’t seem that the team is improving much. Simple question such as difference between strict liability and absolute liability.

The Defendants seem to continue in the same vein as that of the applicants. While a lot of arguments were being raised, as far as Judges are concerned, they weren’t substantial enough to impress them.

12:30 PM Now the next set of teams are going to start.

Court No. 1 – Glocal University, Sahranpur v. Faculty of Law, ICFAI

The agent for the applicant has taken to the podium. Even though he was very confident when the round had commenced, he started fumbling on having a look at the judges. From the get-go he fumbled by making his submission as an appeal to the ICJ and also confirmed that it was an appeal even though the judge caught his mistake. The agent is failing to inspire confidence and authority. The judges seem unconvinced with the agent’s submissions and actually ask whether the team researcher can be provided with a chance to make submissions. Obviously, such a change cannot take place in reality and therefore, the agent continues his task. With a faulty piece of document provided to the judges which set their mood off. The judges request the agent to take his seat and allow his fellow agent to make the rest of the submissions.

The agent 2 for the applicant tries to make submissions to redeem his team and is actually an improvement from that of the former but he alone cannot clean up the mess of his fellow agent. The judges had extended a little support to the agent but he failed to recognize the help made to him.

On taking up the podium the agent for the respondent in a mellow voice brings to everyone’s notice that he would be making points and submissions which are crucial to the case. The agent is pretty sure of the case and that is something that he also portrays to the judges. At some point of time it seemed as if his confidence turned into overconfidence. The judges not impressed with the sudden change in the behaviour decided to bring them back to earth by asking them to pay up for the losses incurred by the applicant. On certain instances there were notes passed by the researcher to the agents to make sure that they do not stray from their path. The Speaker concludes by partially satisfying the judge.

The agent 2 for the Respondent starts making submissions in a manner that was confident and made everyone believe that he was a responsible agent. His exemplary skills impress the judges and he continues making his submissions with remarkable clarity. He is able to elucidate effectively. Pertinent queries were raised by the judges and they were answered well by the Respondent. He took his stand well and made his team proud.

Court No. 2 – Kathmandu School of Law v. SOEL, Chennai

Now, the second session has started with the arrival of Judges. The 1st Speaker on the side of the Applicants seems to be nervous and has lost her grasp on her arguments and is floundering after Judges have started grilling her. Judges seems to be unconvinced after the Arguments of 1st speaker. One of the Judge seems to be enjoying his Juice and Samosa. To their credit the applicants did finish well.

However, after listening the Defendants, who are answering smartly they have smile on their face. They have started asking about different International agreements so as to confuse them. However, they have been able to justify their claim and Judges are totally convinced. The respondent paraded to the finish with only a slight hiccup.

Court No. 3 – Jindal Global Law School v. Banasthali Vidyapith, Rajasthan

The clock is ticking right about now and the participants are really expecting the judges to start the round. They have this excitement which can only be seen in a moot court competition.

As the judges permit to start with the round, agent one comes up to the podium to deal with the first issue. The round was a pretty normal considering that the agent did nothing special other than to read from the memorial and then using a case law or two to support her claim. The judges asked her a couple of questions and finally relieved her of all her duties.

The second agent was properly dressed and it seemed that he was ready to bring the house down. The judges not impressed by this brash behaviour of the agent, started grilling him from the top. Queries after queries left the agent to doubt in his own abilities.

Respondent

Agent 1 put forward her arguments before the bench with flair. She took the base of various principles in order to substantiate her arguments and managed to satisfy the judges on the various questions raised by them. Speaker 2 too took the base of various international laws to support her arguments and put forward her arguments in a clear and crisp form.

Court No. 4 – DSNLU v. Tamil Nadu National Law School

The agents for the applicant were very aggressive. But the judges tried to trap them on the issue of jurisdiction. The speaker did find his way out but it wasn’t without damage. The agent also committed a couple of error in addressing the Judges. They were confused between ‘Your Excellency’ and ‘Your Lordship’. The second speaker though was calm and composed. Overall the judges did concede to couple of their arguments.

But as far as the agents for the respondents are concerned, they committed an absolute blunder. They were totally moving beyond the facts provided to them. The time management was lacking and their oral submissions exceeded that which they had provided under the written submission.

Court No.6 – SLS, Pune v. NUALS, Kochi

The proceeding was an interesting one. The judges had questions lined up for all the agents. The applicants had no chance of going through smoothly. The agents from the Applicant side spoke with confidence and the judges put forth direct questions regarding definitions, articles and jurisdiction. He is tensed and is not able to put up his arguments efficiently. The researcher is continuously passing chits and giving hints to get the speaker back on track.

The second agent has taken the podium. She displays confidence and is well off than the first agent. She was questioned on the latent defect to which the researcher passed a chit. It looks as if none in the team apart from the researcher is well versed with their submissions. Now she is being questioned over conventions and their authoritative powers. The question on circumstances, effect and nullification of a treaty were left unanswered.

The agent for the respondents has taken their place. She seems a bit loud and assertive. But Judges it seems are none too pleased. They are completely grilling the agent. The researcher is furiously passing on cheats to the concerned agent now. The agent is quite expressive with her rapid hand movement.

The second agent too is well versed with every point involved. And he is speaking quite confidently. Apart from the occasional and cursory queries, they seem quite satisfied with the submissions.

We will be breaking for a late lunch now after which the next Preliminary round will start.

3:00 PM The teams are back after having their lunch and their Preliminary Round – 2 has started. While some teams would be attempting to continue their performances in the prior round, few will be contemplating how to improve upon their previous performance.

And the second preliminary round is under way..!!!

Court No. 1 – SLS, Noida v. Renaissance, Madhya Pradesh

The agent for the applicant is making her submissions in a competent manner. However the team has failed to carry case laws on which they are relying. The judges have asked the researcher to highlight the points in issue and have asked the speaker to proceed. After repeated extensions the speaker finally concludes.

Second agent begins well however during course of arguments she admits contributory negligence on part of applicants!!! She recovers quickly and denies this! That could have gone horribly wrong. The arguments proceed at a steady pace and speaker concludes on a positive note.

The first agent takes over the podium. She appears confident and ready for the questions! The speaker is receiving much help from the researcher who supplies notes with every question. However this team too has failed to carry a bound compendium which again hampers the submissions.

The second speaker is very confident and speaks in an assured manner. The judges question her on common but differentiated responsibility. She is clueless but dodges the question cleverly and confidently. The speaker 2 concludes after considerable extensions.

Court No. 2 – Campus Law Center, Faculty of Law, DU v. NLU, Odisha

After the lunch Judges and participants are looking energentic. With the arrival of the Applicants, grilling by the Judges has started. The Applicants are too soft spoken and they are like the butterflies whispering in the air. The judges are finding it hard to go with their pace. The Applicants have started floundering and it seems that they are now being afraid of their own shadow (too nervous). But one can’t take it away from them they are well prepared.

However, after the coming of Defendants the situation has changed. The speaker on the side of the Defendant is calm composed . Every attempt made by the Judges to entrap is being countered courageously. Also, the second speaker is trying best to move on a secured path.

Court No. 3 – NMIMS, School of Law, Mumbai v. GNLU, Gujarat

Applicants started the proceedings with facts. She continues with the statement of jurisdiction submitting to the compulsory jurisdiction. The judges are bombarding her with questions. She seems unaware about the prayer.

The second agent on behalf of the applicants is pleading that the decision of albrosa was ex parte and in violation of natural justice. She seems very confident with her submissions.

The defendants have started their submissions in a very smart way. She has clarified all the judges’ doubts regarding jurisdiction. Despite continued efforts, the judges are unable to confuse or divert the agent.

The second agent has started with her submissions and the judges have started grilling her.

The applicants have started with rebuttals, which include interim reliefs which is being appreciated by the judges.

Court No. 4 – Amity Law School, Delhi v. Vivekananda Institute of Professional Studies

Now the time has arrived as the judges arrived and they made one really interesting statement. “Let’s take mooting to a different level”.

The first agent for the applicant comes up in a manner which shows that the pressure is catching up to her. Somehow, the calm attitude has totally evaporated and she is sweating profusely. The Judges asked her simple question to which replied well enough. But still the Judges didn’t look satisfied.

The second agent looks calm and composed and her arguments convinced the judges. She was at ease with whatever questions that were posed to her. There wasn’t much of grilling from the side of the Judges. The team has managed the time well.

The first agent for the respondents started confidently with her arguments. However, when the questions were being posed, the speaker managed to answer them but the judges still don’t seem completely satisfied. The speaker exceed the allotted time and failed to plead for any such extension of time.

The second agent too started in the same manner. And she tried her level best to keep up with the bombardment of questions. She didn’t come out of this unscathed.

Court No. 5 – GLC, Mumbai v. RGNUL, Patiala

The Agents representing the Applicant State were very well prepared and confident with sound speaking skills. The interesting point in their argument was that they invoked the jurisdiction of ICJ on violation of Customary International Law and not due to violation of 123 Agreement by the Respondent State. The arguments put forth by agents were well structured and contentions were backed by law. In the end the Applicants badgered the respondents with multiples points of rebuttals.

The Respondents Agents were an equal match to the Applicants and presented their case in a well-structured manner. The contentions put forward by the agents before the court were backed by laws. As per the judges all the Agents spoke very well but the contentions put forward by the Applicants became too factual in the sense that they were reading in-between the lines of the fact sheet and the Respondents though had had good grasp in law and facts lacked the structure.

Court No. 6 – SLS, Hyderabad v. NLSIU, Bangalore

The first agent didn’t start on a positive note. He mixed up the citation of cases which resulted heavy scrutiny by the Judges and was followed by a trail of unanswered questions. But it is to be credited to the Agent that he kept his composure even in front of such aggressive treatment.

After watching the aggressive approach of the judges, the second speaker is doing none too well. He extends the trail of unanswered questions a bit longer. But again he shows a fighting spirit. Although, he did succumb to the pressure put on by the Judges and he was ultimately asked to move onwards to the Prayer.

In contrast, the agent for the respondent started his arguments with poise. But the Judges were not in the mood to curb their wrath and the speaker had to face the brunt of it. Couple of questions relating to jurisdiction did go unanswered. But he made a good comeback.

Our reporter is of opinion that performance of agent two was one of the stellar performances of the day. He was well versed with the facts and the nature of the problem. There was a healthy discussion going on between the Judges and the agent. Even though the Judges did succeed in applying pressure on the agent, the comeback was terrific and it left Judges impressed.

Court No. 7 – LC-1, Faculty of Law, DU v. University of Lucknow

After a little delay in starting of the rounds, the agents on behalf of the applicants have started with their arguments. The agent seems confident and soft spoken. The judges begin grilling and the agent politely answers all the questions. Somehow, he is not able to satisfy the judges with his answers. The debate is getting intense and judges are extending time again and again. Poor Court Bailiffs! Their repeated cry for expiry of time was being ignored not only by agent, but judges as well. There is a sign of relief on the face of second agent as the judges say that they will “manage time”.

After the long submissions of Agent one, Agent two takes the dais. He is asked to sum up his arguments in 5 mins. In his urgency, he seems a little nervous. He regains his composure as the judges start asking questions. Again the time limit has expired and the judges are grilling the agent with questions.

After watching so much grilling, the respondents have started their submissions on a nervous note. And the grilling begins. The agent seems to stammer, trying to answer the questions raised by the judges. He does not seem to be thorough with the facts. Agent two on the other hand is handing note over note to the speaker, desperately trying answer the questions and at last she succeeds.!
Now it is the turn of agent two to shine. She seems nervous as she takes the dais. The judges shower her with questions, most of which are answered. She seems nervous and hence is taking her own time to frame the arguments properly.

Now the next set of teams!

Court No. 1 NUALS, Kochi v. Kathmandu School of Law, Nepal

The teams are stoic in their appearance and look prepared for submissions. The judges, perhaps, to avoid the instances in first round have directed the teams to stick to their written submissions.

Agent one for the applicant almost looks excited to commence with the arguments, but soon it gets serious as the judges all come down to the business. Finally, a light note as reference is made to Titanic being unsinkable and equipments being resistant to earthquakes. The speaker takes it all in stride and makes extra submissions which other teams haven’t.

Agent two goes on highlighting the difference between a “nuclear incidence” and “nuclear disaster”. The judges are throwing blatant hints as to how they would like the proceedings to unfold, but the speaker carries on with his merry way. On the second argument, the bench specifically declares that “when a pot is called black, the pot cannot defend itself by stating that the chimney is also black”.

The agent for the respondent is bamboozled by the vibrant approach of the judges. They are raising unconventional queries and circumstances which results in the speaker turning a bit pale. And, she eventually commits a blunder by accepting a point that undermines her entire case. The judges are quick to point it out.

Agent two isn’t faring a bit better as the pressure is being applied on him. He manages to evade few trap questions and is commended by the bench on a job well done. The bench also put forth a riddle to identify one thing for which he should pray to solve his problem, and the speaker fails.

Court No. 2 Swing Team v. Glocal University, Saharnapur

The judge clearly mentions that the arguments should be precise and not used as the Bible!

The Agent for the applicant remains composed and competently puts forth his arguments. The judges left no stone unturned in their efforts to break through the speaker’s resilience. They raised a myriad of questions that rendered the speaker unsure.

The second agent was highly tensed and was stammering initially. But he kept up his spirits and even though there were gaping holes in his argument, he concluded on a positive note.

The defendant’s agent was inaudible initially, but after the prompt by the judges, he improved his stature.Though the lack of confidence was quite clear. He was quite unsure of the content of the memorial and his approach was quite lethargic.

In comparison, Agent two performed quite well.

Court No. 4 Banasthali Vidyapith, Rajasthan v. Damodaran Sanjivayya National Law University

Last Session, still the Judges and Participants seems full of life and energy.

It can be seen that the Applicant is having bundle of documents. Now the first speaker comes up and after listening to certain point of Arguments the Judges seems disappointed. The speaker is not able to answer the questions. One of the Judge finally asked ” do you even know what are the Sources of International Law”. That too has not been answered. Now the last question being asked by the Judge is what is ” latent defect” and surprisingly the Answer comes out the things which are visible.

The same is the situation with the Second Speaker.

Now comes the side of Defendant. She is answering well but then again she is panicked. The fellow members have now opened their Laptops and are continuously cross checking all the provisions and Articles.

Court No. 5 SOEL, Chennai v. SLS, Pune

The Applicant missed article 40 of the ICJ Statute defining the jurisdiction of the court and could not satisfactorily answer the judges with regard to the jurisdiction of court. The Co- Agent raised contentions with regard to the damage to the marine ecosystem and how imposition of moratorium was a justified action of the Applicant State.

The defendant’s Agent approached the dais very confidently but the questions put forward by the judges acted as a game changer. The Respondents could not differentiate between General Principle of International Law & Customary International Law. They could not satisfy the court on the definition of Forum Non-convenience. The first agent summed up his arguments as – “ so basically if there is an alternative rule available ICJ jurisdiction should not be invoked.” The Co-Agent in several instances mentioned points which were not there in their memorial which was time and again pointed out by the judges.

The Researcher of the team looked more prepared as compared to the agents and at one point the judges even asked the researcher to clarify the contentions. Upon the question raised by the judges with regard to moratorium the researcher took over the case from the Co-Agent and presented their case therefrom.

Court No. 6 Faculty of Law, ICFAI University v. University of Dhaka

The first Agent for the applicant is clear and to the point. He has raised some extra issues that the judges appreciate very much but still insisted that focus should be on the issues provided under the fact sheet. The speaker in the end had to summarize his arguments due to the lack of time.

The second speaker was asked by the judge to put forth his argument on certain issues. The speaker despite fumbling at start ultimately satisfied them with his points.

The agent from Dhaka has a different accent but it doesn’t prove to be a hurdle for him in putting forth his arguments eloquently. The second agent did start well but lost her thoughts in between and fumbled in her agreements. But ultimately on the prompt of Judges, she calmed down and concluded on a positive note.

And the proceedings are adjourned for the day!

3. Energy Moot Stage 2– (9^th April, 2016)

11:45 AM The Judges for today have been briefed. And the teams have taken their place in Court Rooms. Rounds will start anytime now.

12:05 PM So the QUARTER- FINALS are UNDERWAY!

Court No. 1 – Jindal Global Law School v. NLSIU, Bangalore

The session begins. The judges seem comfortable. All smiles. The teams look solemn though.

Agent one for the applicant looks confident as she begins her submission and she is very thorough with her case. She has tackled a difficult question 2 mins into her submissions. Finally! The speaker has moved on to her second issue. She remains unfazed despite of constant doubts being raised by the bench. The jurisdiction issue seems priority for the bench! They are urging the speaker to argue upon it despite of her time being over! The judges are difficult to please and they claim that the speaker is ‘harping on the same point!’ But to her credit the speaker bravely continues in a polite tone.

As the second speaker takes the podium, the Judges immediately ask to do away with formal opening statements and come to the crux of the matter. The Judges are making a constant effort to undermine the Applicant’s position. This raises a smile on the faces of defendants. They do realize that tables are going to be turned soon? Speaker 2 carries with him the same calm demeanor of his co-agent. This a difficult feat in light of the aggressive treatment of the Judges. The speaker has finally concluded.

The first agent for the Defendants takes the dais now. The Judges keep on the heat and ask the speaker to move to his strongest argument first. How the tables have turned. But the speaker has a humble demeanor and is quickly responding to the question raised by the Judges. The Defendant speaker is still defending his stand on jurisdiction. The bench is quizzing him on a range of subjects from investment law to customary international law. The panel in particular is looking for the respondent to cite a particular case law. The respondent has confidently replied that he is not aware of such a case, but furnishes alternative arguments before the bench.

Now the second speaker has taken over. The Judges are trying to throw the speaker in a loop. The speaker takes time to rephrase and continue without dropping his line of argument. The heat on the defendants is at all time high. The speaker has been put on spot. There are analogies and examples floating around, all offered by the judges. The end of submission was very abrupt as the Judges ask the speaker to take his seat.

With no rebuttals on offer, the proceeding in this court room has come to an end.

Court No. 2 – University of Dhaka v. LC-1, Faculty of Law, Delhi

Before the start of the Session, both the parties are having brainstorming session. Finally after the arrival of the Judges the session has now started.

The 1st agent has very brilliantly stated the facts and enumerated the issues. However, as The Judges start raising queries regarding the Jurisdiction, the speaker has also started to fumble. The speaker is bombarded with questions. Finally the speaker asks for 15 extra minutes to conclude his arguments. But the Judges being charitable, provide 2 extra minutes to conclude the arguments.

Now the 2nd speaker on the side of Applicants started dealing with Issue No. 3. The Judges have started asking for Authoritative Sources. The overwhelming amount of questions inevitably led to the shortage of time. Bench at the end of the arguments didn’t seem entirely convinced.

Now comes the chance of the Defendant. The 1st speaker after following all the formalities has expeditiously started with his arguments. The questions are also being answered smartly. The Judges seems to agree on the points stated brilliantly by the speaker. The agent maneuvers himself beautifully throughout and ends on an amazing note.

The second speaker from the defendants also started his arguments energetically. The Judges raised various questions which were calmly handled by the Defendant. He has given certain clarification on various points. The Agent has also put full blame on the Applicant for the disaster. In all, it has been a praise worthy performance. But it remains to be seen if the Judges concur with it.

Court No. 3 – GNLU, Gujarat v. DSNLU

The Agent for the applicants has started smoothly and is sticking to her issues. Though soft spoken, she is answering all the questions in an appropriate manner. It seems that she has convinced the judges. Despite the heavy inquest by the panel, she has maneuvered herself well. Towards the end of her allotted time, she tries to summarize her arguments, but the judges seem hell-bent on questioning her even further.

The second agent, immediately after taking the dais impresses the panel even more by answering the barrage of questions. But as was the will of the judges, they finally trapped the speaker on the issue of jus cogens. This rendered the speaker unsure and nervous. To her credit, she answers the question in her next issue and even manages to escape the liability of contributory negligence.

The judges, in no mood to spare, tried to trap the first agent for the defendants as soon as she took the dais. She was asked to state only the facts which were against her. The whole team seems to be in hyperactive mode as they keep passing notes to the speaker as well as authorities to the judges. She manages to recover from the initial slump by answering the subsequent questions. At one point, she did stumble when she failed to properly comprehend a question. The researcher to the rescue! As she finishes her submissions, the judges seem impressed and even concede that the defendant are “too good a supplier”.

The agent two on behalf of the defendants seems very confident with his submissions. But as soon as the judges started giving him a hard time, he started to stammer a bit. To his credit, he did manage to get out of the trap. The judges lay another trap in form of liability of “other two nations”, and despite his continuous efforts, the agent could not completely satisfy the judges. The judges didn’t even spare the defendants during their prayer. Questions were raised on the validity of counter claims or lack of it when they have not submitted to the jurisdiction of the court.

Court No. 4 – NUALS, Kochi v. RGNLU, Patiala

The agent for the Applicants has started well enough. Her approach displays confidence. The Judges also seem to be accommodating in nature. While they are posing numerous questions, the prompt is in a manner that isn’t quite as harsh compared to what we have seen. And inspired by it the speaker is also putting forward her arguments with flair. But she ended up exceeding her time by a good margin, though the Judges also seem to be disinterested in the Court Bailiff’s signal for allotted time being over.

But the same treatment as before was not afforded to the second agent who was bombarded with constant questions as soon as he took the dais. And a significant time was expended only in reaching to the main argument. Apparently not satisfied by it, the judges asked him to move to his second argument. The speaker raised to the occasion and satisfied the Judges in the second argument by replaying to the questions posed.

Same was the case for the Defendant’s speaker who started it off with a warm statement. The same frequency of questions were afforded to the speaker. The Judges went into a lot of detail and raised numerous question which were relevant to the issues. And the speaker worked admirably to sate the requirements.

The second speaker did commit couple of mistakes but the Judges did look convinced on the points that raised.

2:45 PM The quarter finals are over and all teams are breaking for lunch. We’ll be shortly back with the results!!

3:30 PM The results have been declared and we have our Semi-finalists. Our heartous congratulations to:

GNLU, Gujrat

LC-1, Faculty of Law, DU

NUALS, Kochi

Jindal Global Law School

04:00 PM The semifinal Rounds have started.

Court No. 1 – LC-1, Faculty of Law, DU v. GNLU, Gujarat

The first agent for the Applicant starts with his opening statement and is immediately stopped by the Judge on some account for which clarification has been demanded. And the Judges have asked for a restart and stopwatch is clocked to zero again. So now there will be a reboot of proceedings?

The agent again starts in his soft voice. He displays an immaculate mannerism and appears very humble. But it doesn’t seem to have any effect on the Judges as they immediately torpedo the speaker on the issue of jurisdiction. They are quoting all the sections and conventions for the ‘convenience’ of the speaker. One thinks that the speaker would gladly waive such convenience. A point blank, yes or no, question has been shot at the speaker with the Judge pressing for the response before the chit from the speaker’s teammate arrives. It’s a race between the speaker holding his resilience against the constant chant of Judge’s ‘yes or no’ and chit being passed through the Court Bailiff! Even though the chit won the race, the answer wasn’t entirely satisfactory in Judge’s view. Now all the Judges are hounding on the sovereignty issue. The speaker’s shoulder though slumped and his mannerism deflated; he is still maintaining the same polite and humble mannerism. But the Judges remain unsatisfied with the answers provided and considering that time has bled away like a river, they abruptly ask him to finish.

The second agent is much more energetic and zealously tries to remedy the damage done previously by trying to answer the questions posed to first speaker. The Judges categorically declare, ‘it is for the speaker’s benefit only that those questions shouldn’t be raised once again.’ A warning to heed perhaps. The second speaker does move on. And moves on to citing Keshvananda Bharti! Now the Judges are smiling and have asked the speaker not to cite such authorities. Regardless, he seems to be faring a bit better than his team mate. Though, he seems to be evading the questions, he is doing so confidently. The Judges again end the arguments abruptly and send the speaker back.

Now it’s the turn of Defendants. Their first agent is again interrupted in her first statement. A point blank question. Why are the speakers even bothering with stating the arguments? There is a barrage of question and to her credit the speaker is maneuvering herself perfectly while tackling such aggressive treatment. She is using succinct language and for the first time in this proceeding we see a speaker submitting her argument for a stretch without any interruption. She is gaining speed and is rallying her arguments. As if on cue, the Judges strike back. They try to drag the speaker into a downwards barrel and the speaker cleverly evades it. But it leaves the Judges dissatisfied. However it has to be said that it looks more like a discussion rather than the massacre that happened earlier. In contrast to applicants, she isn’t being defensive. Rather she is cheekily skirting around the traps. The same pattern is repeated again on the issue of ‘investment’. And as she was leaving the dais, the Judges had to stop her once again for a last question. However she answered it in a satisfactory manner.

The second agent fails to continue the streak set by her co-agent. She buckles under the immense pressure and actually concedes on the issue. Oops! That has to be counted as a blunder. And that is followed by wrong comprehension of questions asked. She remains unsure and under-confident throughout her arguments. Even the Judges turned disinterested at last while picking her off.

Court No. 2 Jindal Global Law School v. NUALS, Kochi

The court is set for the second semi-finals and one can see the anxiety on the faces of the participants.

The first agent on behalf of the Applicants takes the podium and commences her speech by summarising the arguments. She moves on to the arguments submitting to the jurisdiction of the court. A panel comprising of four judges was more than ready with its questions. The first one being the relevance of applicant No. 2 & 3 in the case. The agent, though soft spoken and a little nervous, seems to efficiently answer all the queries raised by the judges. But the judges have trapped her in a debate about hierarchy of courts and they simply ask her to explain the jurisdiction of ICJ over all other courts quoting the example of Supreme Court. The sheer volume of the questions is causing the speaker to stammer a little. But the veracity of her answers seems to carry her through his hurdle. On the other hand, judges are pointing out the use of remotely improper words by her. Even after numerous attempts to confuse her, she did not concede to any of the points.

The second agent for the defendants has taken the dais in a bold manner. Though he is soft spoken, his stance reflects the confidence in his submissions. But this confidence seems to break as the judges pose questions regarding the liability of applicant one against other applicants. Meanwhile the opponents seem to be active probably noting a point to rebut. The judges question him regarding arbitrariness of their actions, and at this point, he is unable to interpret the question rendering him a little nervous. However, he succeeds in satisfying the judges with his answers.

Now, it is the agents on behalf of the defendant take the dais. The first agent seems very confident, in fact, she wears a slight smile. Similar to the applicants, she begins her submissions with a summary of the issues. The first issue she raises is regarding the relevance of “other two islands”, as they are not a party to the agreement. Even after being grilled by the judges, she still manages to wear a smile and argues with same confidence. At this point one cannot help but notice the nervousness on the applicants’ faces. Even after conceding to first issue, she manages to answer most of the questions posed by the judges, with the help of her team. After a lot of cross questioning and grilling, the judges compel her to say “Counsel is not sure”, when she was asked to back her views on position of “responsible states” by case laws. Towards the end of her arguments, the judges ask her to sum up in 2 minutes.

The second agent for the defendants has taken the dais rather zealously. He seems very confident with his submissions. He seems to have a good command over the memorial. But, the judges corner him when he challenged the evidentiary value of the only expert report available on the dispute. His team on the other hand is constantly handing him notes, in desperation to get him out of the trap which was very intelligently placed by the judges. Even though the judges are not completely satisfied with his answers, they move on to the next issue. Oops, the agent has committed a little mistake! In order to list alternatives, he seems to have contradicted his own statement while giving an example. Now the judges seem to have hounded against him. They are bombarding him with questions, and his answers are interrupted be questions. But this guy is simply not ducking out! Judges summarize their claims which are again denied by the agent. His resilience holds through all the attempts made by the judges to dislodge his arguments. To his credit, he is clear about one thing, that is, he will not concede, no matter what. He is sticking to his arguments and that seems to impress the judges.

06:30 PM The rounds have finished and the teams are enjoying their Brownies! No doubt they will be anxious, for the results are going to announced within few minutes itself.

06:50 PM The teams going into finals are:

NUALS, Kochi

GNLU, Gujarat

Congratulations to both the teams for making their way into final amidst such intense competition and not to mention the hostile Judges.

3. Judgment Day (10^th April, 2016)

So we have arrived to the Judgment day! The two deserving teams are going to battle it out on the grand forum.

10: 30 AM The honorable members of the Grand Jury have taken their place and the teams are raring to go.

GNLU, Gujarat v. NUALS, Kochi

10:35 AM The submissions for the applicants has started. The first agent is poised and looks ready to tackle the might of the Jury. And they do look ominous! She goes on fluently into her submissions with only few prompts by the Judges in between. And the speaker enjoys this as she rallies with her points. But the Judges are slowly getting into the act as they, in tandem, raise various queries. The speaker tries her best to engage the Judges in a positive manner. This proceeding is in direct contrast to what was happening in the semi-finals yesterday. Rather than the heavy and aggressive grilling, today, we see a slow roasting. Now it seems that the Judges are orchestrating a tune, as they are quoting the submissions made earlier and slowly leashing the speaker. But to her credit, the speaker has remained assured throughout and has finally concluded her submissions on a positive note.

But the second speaker is interrupted only in her first statement. And that sets the mood for her entire proceeding. As she isn’t getting any fluency in her submissions. The numerous questions have made her unsure and she steps into the proceedings very lightly. This reflects in the lack of conviction in her arguments. She only seems to be brushing upon the questions that the panel is posing rather than going into the detail as is the wish of Panel. And the fumbling isn’t helping her in any way. But she is shows a lot of spirit as she persists in front of a full assault. As was the case with her co-agent, several time extensions have been provided. And in the end, she has to conclude her arguments in a hurry and go straight to the prayer.

The first agent for the respondents is clear and concise. Even the Judges take a while before raising their first query. Steadily and slowly, the panel tries the same tactic as used for the earlier speakers. But the speaker in this instance seems much more assured as she weaves around the small prompts. And when the point blank questions do arrive, she has taken an innovative approach and gone with the wishes of the Judges in arguing upon the questions raised. She isn’t using the evasive approach. It is reflected upon the the Judges as they seem satisfied on couple of issues. And as the Panel points out a mistake, the speaker admirably maneuvers it into a lighthearted moment. But again due to the paucity of time, the Judges ask her to conclude in a jiffy.

The second agent is much more energetic and vibrant. But he isn’t as collect as his co-agent. Regardless, he also progresses with his arguments fluently and tackles the wants of Judges satisfactorily. The Judges raise basic conceptual questions and the speaker convincingly answers them. The Judge points out a blunder in the footnoting of the submission by the defendants. The speaker immediately admits and apologies for such mistake. But he manages to maintain his composure and goes well into his conclusion.

So the final proceedings have come to an end. This proceeding was not as boisterous as the previous rounds. But it was on conceptual levels that the Judges queried upon and the long discussions were, simply put, very enlightening.

00:45 PM The participants have gone for the lunch. After the lunch we will be having the Valedictory ceremony.

01:45 PM The participants have had their lunch and from their expressions one thinks that they had been provided some delicious food.

After some wonderful words by the dignitaries such as Mr. Venkatramini, Senior Counsel, Supreme Court and Prof. K.L. Bhatia.

AND THE RESULTS HAVE BEEN ANNOUNCED!!

WINNER : NUALS, KOCHI

RUNNER-UP : GNLU, Gujarat

Best Researcher : Ms. Shruti Joshi, GNLU

Best Speaker : Md. Naimul Hussan, University of Dhaka

Best Memorial : NMIMS Institute of Law, Mumbai

Best Foreign Team : University of Dhaka.

Congratulations to the winners!

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