Address delivered by Hon’ble Mrs. Justice B.V. Nagarathna, Judge, Supreme Court of India at the Release ceremony of the of Supreme Court Cases Pre 69 Series, at the Claridges Hotel, New Delhi on 10th August 2022.
A very good evening,
At the outset, I thank the entire team of Eastern Book Company (EBC), Supreme Court Cases (SCC) and Sri Surendra Malik for inviting me to be a special guest of honour to this event to launch the throwback series of Supreme Court Cases (SCC), for the years 1950-1954.
I congratulate the entire team of SCC for their endeavors towards conceptualizing and making concerted efforts towards bringing out this series, which relates to a critical period in the nation’s history as also of the august institution, that is, the Supreme Court of India, in its formative years.
Supreme Court Cases (SCC) is one of the most widely cited law reports in the country today. With a view to develop a reliable source of reference, SCC, at present, has compiled all judgments rendered by the Supreme Court, from the year 1969. During my interaction with Sri Surendra Malik, I inquired as to why 1969 was chosen as the starting year of the series. I learnt that it was in 1969 that Sri Surendra Malik graduated in law.Thereafter, he has pursued his mission of curating and making accessible, authentic and reliable legal information, by bringing out legal commentaries, and the Supreme Court Cases- the law reports series, through the Eastern Book Company.
Precedent, being one of the sources of law, the principle of binding nature of a precedent on a judge, is an essential feature of the common law system. It conceives that general principles of law are derived from particular facts or instances of a large number of decided cases. This gives rise to the proposition that individual decisions contain in themselves, future authority.
The system of precedent has been a powerful source of development of the common law in England. A precedent-oriented theory has come to prevail in India also.
Article 141 of the Constitution of India has cemented the theory of precedent by declaring that the law declared by the Supreme Court shall be binding on all courts within India.[Reaffirming the Constitutional mandate contained in Article 141, a Constitution Bench of the Apex Court in Rupa Ashok Hurra vs. Ashok Hurra,[1] declared that “a precedent is the law of the land for itself and for all Courts, Tribunals and authorities in India.”
The principle upon which rests the authority of judicial decisions, as precedents in subsequent litigations, is embodied in the maxim stare decisis et non quieta movere, which means to abide by precedents and to not disturb settled points. However, in the Indian context, the principle of stare decisis is not an inexorable command. In the words of Chief Justice Frankfurter of the American Supreme Court, the doctrine of stare decisis is not “an imprisonment of reason.”[2]
According to Justice Aharaon Barak, former President of the Supreme Court of Israel while precedent is not immutable, “departures from precedent should be the exception, not the rule.”He has adopted the philosophy of Justice Douglas of the Supreme Court of the United States of America that,“A judiciary that discloses what it is doing and why it does it will breed understanding. And confidence based on understanding is more enduring than confidence based on awe.” That when the scales are balanced, we should stick to precedent.
The theory of precedent brings in its wake the system of law reporting, as its necessary concomitant. In my view, the doctrine of the binding force of precedent can fully emerge in any judicial system, only when there is a settled judicial hierarchy, coupled with accurate law reporting.
Further, it would not be an exaggeration to state that development of the law depends as much on what is not reported, as on what is reported. I therefore endorse and applaud the decision of SCC and other similar comprehensive law reporting agencies, which report every decision to which the provider has access to a judgment is nonetheless an authority even if it has not been reported. Otherwise, the question of whether such a judgment could or could not be so regarded would depend upon the mere whim of the reporter. [Law reporting today is an exercise which enables one to undertake an evolutionary foray into judicial philosophy, as found in the pronouncements of the third pillar of democracy.
Nowadays, online legal databases are ubiquitous. They have many advantages over their hard-copy counterparts: they are comprehensive, rapidly downloadable and some of them even operate as free services.
Law reporting in India, started with the establishment of the Supreme Court in Calcutta, in the year 1774. In pursuance of the Indian Law Reports Act, 1875, an official series of reports known as the Indian Law Reports (I.L.R)was started whereby, each High Court had an I.L.R series for itself.
The practice of citing decisions from Reports has led to the publication of a large number of private reports. One of the most popular private publications is the All India Reporter, Nagpur which stated publication in 1922 but brought out back volumes from 1914.
Mr Sumain Malik, Director, EBC welcomes Justice BV Nagarathna in the presence of Mr Surendra Malik, Chief Editor, Supreme Court Cases
The relevance of the throwback series that is being launched today, more specifically, the SCC Law Reports for the years 1950 to 1954, is to be understood and analyzed in light of the fact that this series will cover decisions rendered in the first decade after India achieved freedom from colonial subjugation.
The period between the years 1947 and 1957 is often referred to as the age of “issue formation.” That is, the period when issues of national priorities were in the formative stage. In 1950, the Constitution came into force and some sort of an institutional apparatus was visualized with commitments to social change, for instance in the form of Fundamental Rights and Directive Principles of State Policy. The Constitution was adopted to force the pace of social and economic renaissance in India and as a step towards social change and nation building.
Indian Constitutional Law was in a sense adopted from various other jurisdictions. In keeping with this prospective need for decoupling Indian Laws from their colonial roots, Article 13 of the Constitution has paved the way for judicial review of the Pre-Constitutional laws. Various questions arose with regard to the interpretation of Article 13 and the Fundamental Rights which culminated in a series of judicial pronouncements, including A.K. Gopalan vs. State of Madras,[3] which was argued by none other than Sri. M.K. Nambiar, the illustrious father of Learned Attorney General, Sri. K.K. Venugopal; Keshavan Madhava Menon vs. The State of Bombay,[4] State of Bombay vs. F.N. Balsara,[5] Romesh Thappar vs. State of Madras,[6] State of Madras vs. Champakam Dorairajan,[7] etc. The judicial foundations for the various doctrines clarifying the clashes and the contradictions arising in the interpretation of Article 13, were laid during the period between 1950 and 1954.
It can be said that the proposed throwback series is highly relevant from a historical and academic perspective. For instance, the sitting of the Bench of the Supreme Court in the then State of Hyderabad with ad-hoc judges is also noted from the 1950 Report. They serve as points of reference, from which the evolution of the constitutional and legal philosophy of the Apex Court may be traced.
On the occasion of the release of a throwback series, I remember the role played by the Supreme Court of India, to become, in every sense, an institution for realisation of Fundamental Rights. I acknowledge with respect my predecessor Judges, who adorned the Bench of the Supreme Court with distinction; whose jurisprudential labour breathed life into the substantive rights enshrined in the Constitution and paved the way for the progeny of second and third generation Fundamental Rights and who have kept up the flame of democracy burning bright. I am confident that the Supreme Court will continue to demonstrate compassion, innovation and fairness to ensure that justice is not jejune. The common man can continue to look to the Apex Court for vindication of his rights.
I take this opportunity to suggest to the SCC team to venture further into the alleys of the Judicial History of India by coming out with a Law Reports series of all available decisions of the Federal Court of India, [which was established under the Government of India Act, 1935, and functioned between the years 1937 and 1950, as the Highest Court in the Indian territory, vested with original, appellate and advisory jurisdiction.
It is exceptionally noteworthy that through the editorial notes supplied in the case reports in the throwback series, SCC has indicated instances where a judgment has since been overruled. Therefore, these case reports serve not only as authoritative texts of the particular decision, but act as a source for research on the evolution of the point of law under consideration in the said judgment.
It is often said that the task of an editor of law reports is challenging, more so because of the so called “prolixity syndrome” in Indian Supreme Court Judgments. While I do not dispute the fact that brevity, simplicity, lucidity and clarity are the essentials of a good judgment, what is also expected of a good judgment is that it undertakes a discussion of arguments advanced at the Bar. The arguments must be appropriately dealt with in the editorial notes and emphasis must be placed only on the arguments and reasoning which form the substance of the controversy at hand. This would lend focus to the editorial note.
It is a common criticism that the difficulty in identifying the precise ratio is also attributable to a problem at the institutional level of the Supreme Court, owing to the practice of Justices giving separate but concurring opinions. It is said that this practice makes it problematic to identify and delimit the ratio. While I certainly do not subscribe to the view that multiple concurring opinions could obscure the ratio and could therefore be damaging to the theory of precedent, I am delighted to note that SCC has factored in this criticism/concern too and accordingly modelled its editorial style. I am impressed to see that in the recent editions of the law reports, they have been indicating in a clear one-liner, the crux of the difference in reasons of multiple judges authoring separate but concurrent opinions.
As discussed through the course of my talk, the importance of law reports within a legal system stems from a variety of factors. Prime among such factors is the core principle that the law is for all and should therefore be accessible. That is why, Supreme Court judgments are now being translated into many Indian languages. I once again applaud EBC and the SCC team for publication of well edited and annotated reports, thereby addressing, inter-alia, the issue of accessibility, whether for the public, or for legal professionals.
I once again thank Sri Surendra Malik and Sri Sumeet Malik and their team for inviting me to share a few of my thoughts today.
I wish the management of Eastern Book Company and SCC, the very best, as they continue to strive towards building legal information databases using the finest of technological innovations. This is with a view to provide access to comprehensive, accurate and up-to-date legal information.
I thank you all for your kind attention.
Thank you and Namaskar.
The video of the entire event can be viewed below:
[1]Rupa Ashok Hurra vs. Ashok Hurra, (2002) 4 SCC 388.
[2]5 P. Ramanatha Aiyar, Advanced Law Lexicon, (Shakil Ahmed Khan Eds.) (LexisNexis).
[3]A.K. Gopalan vs. State of Madras, AIR 1950 SC 27.
[4]Keshavan Madhava Menon vs. The State of Bombay, AIR 1951 SC 128.
[5]State of Bombay vs. F.N. Balsara, AIR 1951 SC 318.
[6]Romesh Thapar vs, State of Madras, AIR 1950 SC 124.
[7]State of Madras vs. ChampakamDorairajan, AIR 1951 SC 226
SCC is proud to announce that the launch of SCC Pre 69 will take place on 10th August. The Chief Guest for the event will be Justice NV Ramana, the Chief Justice of India.
The event will begin at 7 pm with a welcome speech by Mr Surendra Malik, Chief Editor, Supreme Court Cases. Over a period of time, Supreme Court Cases has earned an enviable reputation of being the most accurate and reliable reporting of law in India. This reputation has been painstakingly built over years of hard work and quality control.Eastern Book Company, the parent company of SCC, was established in 1942 by Mr. CL Malik and PL Malik and the baton to lead the organisation was subsequently passed on to Mr Surendra Malik.
Over the span of 50 years, he has held a tight leash over the quality of law reports and digests produced by EBC. So particular is Mr Malik about his workmanship, that every single judgment published by SCC has 27 copy-editing inputs in order to make it as readable and user-friendly as possible. It can be safely said that till a couple of years ago he had read almost every judgment delivered by the Supreme Court of India. We can read more about Mr Surendra Malik’s legacy here.
Mr Malik’s speech will be followed by a special address by Mr KV Viswanathan, Senior Advocate and Mr Arvind Datar, Senior Advocate. Then we will have Mr KK Venugopal, Attorney General for India taking the stage followed by Justice BV Nagarathna, Judge, Supreme Court of India. This will be followed by Hon’ble the Chief Justice of India, NV Ramana releasing the SCC Pre 69 volumes. He will then proceed to say a few words on the occasion. The event will end with a vote of thanks by Mr Sudeep Malik, Associate Editor, Supreme Court Cases (SCC).
The release of SCC Pre 69 is being celebrated across the legal community.The Former Chief Justice MN Venkatachaliah, who is fondly known as “Bhishma Pitamah of Indian Judiciary”, remarked that
“Eastern Book Company”, a leader in law reporting of the pronouncements of the Supreme Court of India from the year 1969 is now rendering the series complete and comprehensive by their proposed new venture of publishing SCC 1950 to 1968.”
Justice RC Lahoti, Former Chief Justice of India before his passing away had shared these comments with us;
Justice Jagdish Singh Khehar, Former Chief Justice of India also shared a few words on the release of SCC Pre 69;
The bench of GS Singhvi and AK Ganguly, JJ, in Kranti Associates Private Limited v. Masood Ahmed Khan, (2010) 9 SCC 496, stressed upon the importance of reasoned judicial orders and elaborated on why “reason is the soul of justice.”
The Court summarized the following points:
(a) Insistence on recording of reasons is meant to serve the wider principle of justice that justice must not only be done it must also appear to be done as well.
(b) Recording of reasons also operates as a valid restraint on any possible arbitrary exercise of judicial and quasi-judicial or even administrative power.
(c) Reasons reassure that discretion has been exercised by the decision-maker on relevant grounds and by disregarding extraneous considerations.
(d) Reasons have virtually become as indispensable a component of a decision-making process as observing principles of natural justice by judicial, quasi-judicial and even by administrative bodies.
(e) Reasons facilitate the process of judicial review by superior courts.
(f) The ongoing judicial trend in all countries committed to rule of law and constitutional governance is in favour of reasoned decisions based on relevant facts. This is virtually the lifeblood of judicial decision-making justifying the principle that reason is the soul of justice.
In 2022 SCC Volume 4 Part 1, read a very interesting case, wherein the grievance of the builder was that out of total of 1134 apartments constructed and sold by them, the owners of merely 51 apartments have joined together and invoked the jurisdiction of the National Consumer Commission and that such a miniscule percentage of consumers cannot seek to file the complaint in a representative capacity. To know what happened in this case, read the Supreme Court decision in Brigade Enterprises Ltd. v. Anil Kumar Virmani, (2022) 4 SCC 138
Short Notes: 3
Arbitration and Conciliation Act, 1996 — S. 31(7)(b): Post-award interest on the interest amount awarded i.e. compound interest, reiterated, is grantable by Arbitral Tribunal. Arbitral Tribunal may award interest on the sum directed to be paid by the award, meaning a sum inclusive of principal sum adjudged and interest. [UHL Power Co. Ltd. v. State of H.P., (2022) 4 SCC 116]
Arbitration and Conciliation Act, 1996 — Ss. 11, 8, 16 and 34 — Arbitrability of disputes i.e. the issue of dispute(s) being non-arbitrable/being barred by limitation: While dealing with petition under S. 11, the Court by default would refer the matter when contentions relating to non-arbitrability are plainly arguable and in such case, the issue of non-arbitrability is left open to be decided by the Arbitral Tribunal. [Mohd. Masroor Shaikh v. Bharat Bhushan Gupta, (2022) 4 SCC 156]
Constitution of India — Arts. 15(4) and 16(4): Reservation within All-India quota (AIQ) seats in undergraduate and postgraduate seats in medical courses in State-run institutions for OBCs (non-creamy layer) by Noti. dt. 29-7-2021, held, valid. Rationale for the same, extensively explained. [Neil Aurelio Nunes (OBC Reservation) v. Union of India, (2022) 4 SCC 1]
Constitution of India — Arts. 15(6) and 16(6): Implementation of reservation for Economically Weaker Sections (EWS) in undergraduate and postgraduate seats in all-India quota (AIQ) in medical courses in State-run institutions for academic year 2021-2022, allowed. Challenge to validity of criteria for identification of EWS category, requires detailed hearing. [Neil Aurelio Nunes (EWS Reservation) v. Union of India, (2022) 4 SCC 64]
Consumer Protection Act, 1986 — Ss. 24-A and 2(1)(g) — Complaint for deficiency in service — Limitation: In this case, complaint was filed by appellant Cooperative Housing Society for refund of excess taxes and charges paid by appellant to municipal authorities, due to alleged deficiency of service of builder to obtain occupancy certificate that resulted in payment of higher taxes and water charges to municipal authority by members of Society. The Supreme Court held that continuous failure to obtain occupancy certificate is continuing wrong, therefore, complaint cannot be said to be barred by limitation. [Samruddhi Coop. Housing Society Ltd. v. Mumbai Mahalaxmi Construction (P) Ltd., (2022) 4 SCC 103]
Consumer Protection Act, 2019 — S. 35(1)(c) r/w Ss. 38(11) and 2(5)(v) r/w Or. 1 R. 8 CPC — Complaint on behalf of or for the benefit of, all consumers under S. 35(1)(c) — When permissible: Invocation of S. 35(1)(c), by some of the purchasers/complainants against the builder of residential complex i.e. complaint in a representative capacity is not permissible, in the absence of sameness of interest between all purchasers of apartments. Sine qua non for invoking S. 35(1)(c) is that all consumers on whose behalf or for whose benefit the provision is invoked, should have the same interest. Further, it is necessary to include in such consumer complaint under S. 35(1)(c), sufficient averments that show sameness of interest. Sameness of interest vis-à-vis sameness of cause of action, distinguished. [Brigade Enterprises Ltd. v. Anil Kumar Virmani, (2022) 4 SCC 138]
Contempt of Court — Civil Contempt — Matters at large/Review etc. of earlier order/Orders that may be passed — Orders that may be passed in exercise of contempt jurisdiction: In this case, the High Court in contempt proceedings entered into areas which were alien to the issue as to whether the judgment dt. 27-7-2020 was complied with or not. It was held that it was a transgression of the limits of the contempt jurisdiction and was unnecessary and inappropriate. [Neil Aurelio Nunes v. Union of India, (2022) 4 SCC 98]
Cooperative Societies — General Issues — Cooperative Housing/Housing Society — Allotment of plot by housing society — Whether valid — Said plot whether was truly reserved as parking area in layout plan as alleged by the parties challenging the allotment: In this case, award was passed by Divisional Cooperative Officer acting as arbitrator under S. 61(1)(b) of the 1964 Act setting aside the allotment of the plot in question on the ground that it was reserved as parking area in layout plan, held, not justified as the said plot was not so reserved in the layout plan. Furthermore, persons challenging the allotment were not doing so bona fide, as they sought allotment of the same plot to themselves. Hence, held, High Court was justified in setting aside the award. [Velagacharla Jayaram Reddy v. M. Venkata Ramana, (2022) 4 SCC 129]
Read four articles and nine significant decisions of Supreme Court in Part 5 of 2022 SCC Volume 3.
Appointment of Arbitrators: In this article, the author discusses the issue of validity of party appointed arbitrators in the case of multi-arbitrator tribunals, such as a three-member Arbitral Tribunal. Unilateral Appointment of Arbitrators: Unfairness and Unequal Treatment of the Parties by Shamik Sanjanwala, (2022) 3 SCC (J-32)]
Arbitration Act, 1940 — Ss. 30, 33 and 39 — Arbitral award — Scope of interference with, by Court — Law summarized: Once arbitrator had interpreted clauses of contract by taking a possible view and had gone to great lengths to analyse several reasons offered by appellant claimant to justify its plea that it was entitled to extension of time to execute the contract, Division Bench of High Court under S. 39 ought not to have sat over said decision as an appellate court seeking to substitute its view for that of the arbitrator. [Atlanta Ltd. v. Union of India, (2022) 3 SCC 739]
Arbitration and Conciliation Act, 1996 — Ss. 11 and 34: Award passed by an arbitrator appointed under 1996 Act by Court with consent of parties despite the existence of M.P. Madhyastham Adhikaran Adhiniyam, 1983 is binding, when the same attains finality i.e. is not appealed against. Subsequent invocation of arbitration under the 1983 Act regarding identical claims i.e. after an award has already been rendered by the arbitrator appointed under 1996 Act is not permissible. [M.P. Housing and Infrastructure Development Board v. K.P. Dwivedi, (2022) 3 SCC 783]
Child Sexual Assault: This article aims to briefly discuss various nuances of child sexual abuse as adjudicated in some important judgments to illuminate relevant substantive and procedural notions of the POCSO Act. In addition, with the help of recent global trends based on judicial interpretation and legal research, few submissions have also been culled out to reinforce the legal regime on CSA in India. “Skin-To-Skin” Touch for Defining Child Sexual Assault: Interpretational Vagaries of the POCSO Provisions by Dr G.K. Goswami & Aditi Goswami (2022) 3 SCC (J-16)]
Constitution of India — Art. 226 — Interference with award of Industrial Tribunal — Permissibility — Extent of: In absence of any jurisdictional error or violation of natural justice or error of law apparent on face of record, interference by High Court in merits of controversy as appellate court, impermissible. [Indian Overseas Bank v. Om Prakash Lal Srivastava, (2022) 3 SCC 803]
Constitution of India — Arts. 19, 14 and 21: Law summarised regarding when proportionality test to be applied for determining reasonableness of restrictions or limitations on the rights concerned, specifically in the context of Art. 19(6) and more generally under Arts. 14 and 21. [Akshay N. Patel v. RBI, (2022) 3 SCC 694]
Foreword to Law of Writs: Foreword to V.G. Ramachandran’s Law of Writs (Eastern Book Company, 7th Edn., 2022) by Justice M.N. Venkatachaliah. Foreword to Law of Writs by Justice M.N. Venkatachaliah (2022) 3 SCC (J-1)]
Insurance — Contract of Insurance/Policy/Terms/Cover Note — Duties of parties/Uberrima Fides/Uberrimae Fidei/Claim to Insurance money/Insurer’s liability: The duties of the insured and insurer to disclose all material facts at contract formation/pre-contract stage or renewal stage, held, include the duty of the insurer or its agent to notify the insured of any material change(s) in the policy terms at the pre-contract or renewal stage. Thus, held, insurer cannot contend that the insured were under an obligation to enquire into and satisfy themselves in respect thereof, if a new term/modified term had been introduced in the policy at the renewal stage. This duty of the insurer to disclose material terms/new or altered terms at the pre-contract or renewal stage, is all the more onerous where insurance policies are in standard form and consumers hardly have any choice in the matter or any power to negotiate alteration of the terms of the policy. [Jacob Punnen v. United India Insurance Co. Ltd., (2022) 3 SCC 655]
Land Acquisition Act, 1894 — S. 54, 23(1-A) and 18 — Additional compensation: Interference with award of additional compensation, by Reference Court in exercise of its power under S. 18, when permissible, explained. [Ambalal Babulal Patel v. ONGC, (2022) 3 SCC 691]
Registration Act, 1908 — Ss. 17(1)(e), 17(1)(b) and 17(2)(v): Award or document providing for effectuating a division of joint family properties in the future, held, fell under S. 17(2)(v) and was thus exempt from compulsory registration. Test in such a case is whether document/award itself creates an interest in a specific immovable property or merely creates a right to obtain another document of title. If a document/award does not by itself create a right or interest in immovable property, but merely creates a right to obtain another document, which will, when executed create a right in the person claiming relief, the former document does not require registration and is accordingly admissible in evidence. [K. Arumuga Velaiah v. P.R. Ramasamy, (2022) 3 SCC 757]
Service Law — Promotion — Incentive Scheme/Financial Upgradation — Modified Assured Career Progression (MACP) Scheme: In this case, it was held that Cl. 8.1 of the Scheme stipulated that on implementation of Sixth CPC’s recommendations, grade pay of Rs 5400 would be in two bands viz. PB-2 and PB-3 which would be treated as separate grade pays for grant of upgradation under the MACP Scheme. R-1 and R-2 erroneously granted grade pay of Rs 6600 for PB-3 under the MACP Scheme, which was later modified/corrected as GP of Rs 5400 as per Cl. 8.1. The High Court by impugned judgment granted grade pay of Rs 6600 to respondents, which was held not sustainable. [Enforcement Directorate v. K. Sudheesh Kumar, (2022) 3 SCC 649]
Service Law — Reinstatement/Back Wages/Arrears — Reinstatement with back wages — Entitlement to — Principles summarized — Wrongful termination — Entitlement to back wages: Denial of back wages to appellant CA, whose termination was found unjustified, not proper. [Pradeep v. Manganese Ore (India) Ltd., (2022) 3 SCC 683]
Waiver of the Right to Object under the Arbitration and Conciliation Act, 1996: This article seeks to trace the origin of Section 4 of the A&C Act and to analyse it in the context of the other provisions of the Act and recent judgments of the courts in India. Section I sets out chronologically the discussions of the States in an attempt to provide the context in which Article 4 of the Model Law came to be introduced. Against the background set out in Section I, Section II analyses the text of Section 4 of the A&C Act and the conditions governing its application with a focus on the interplay between Section 4 and other provisions of the Act. By analysing Section 4 of the A&C Act in light of the judgments of the courts in India, these sections hope to provide an insight into the functioning of Section 4 of the A&C Act and if it is in fact furthering its objective of efficiency. Waiver Of The Right To Object Under The Arbitration And Conciliation Act, 1996 by Medha Rao and C.K. Nandakumar, (2022) 3 SCC (J-4)]
“The question is one of a TRUST. How can an employee who has produced a fake and forged marksheet/certificate, that too, at the initial stage of appointment be trusted by the employer? Whether such a certificate was material or not and/or had any bearing on the employment or not is immaterial. The question is not of having an intention or mens rea. The question is producing the fake/forged certificate.”
The Anganwadi Workers/Helpers have been entrusted with the important tasks of providing food security to children in the age group of 6 months to 6 years, pregnant women as well as lactating mothers, apart from rendering pre¬school education. And for all this, they are being paid very meagre remuneration and paltry benefits.
“The dispute is now of an antiquity tracing back to nearly four decades. Finality has to be wrung down on the dispute to avoid uncertainty and more litigation. Nearly thirty-one years have elapsed since 1991. We have come to the conclusion that the claims of those workers who are duly found upon verification to meet the threshold conditions of eligibility should be resolved by the award of monetary compensation in lieu of absorption, and in full and final settlement of all claims and demands.”
A appeal was filed before the Court alleging that the appellant had been placed in solitary confinement since 29-10-2006 contrary to the law laid down by the Supreme Court in Sunil Batra v. Delhi Administration, (1978) 4 SCC 494. The appellant had relied on the letter addressed by the Medical officer to the Superintendent of Prisons dated 06-11-2011 claiming that ‘the aforesaid prisoner is kept in solitary confinement since his admission to this prison on 29-10-2006’ and further that the petitioner was suffering from ‘psychosis with depression’.
The bench of Sanjay Kishan Kaul and MM Sundresh*, JJ has held that when there is a reasonable basis for a classification adopted by taking note of the exigencies and diverse situations, the Court is not expected to insist on absolute equality by taking a rigid and pedantic view as against a pragmatic one.
“The Writ Court should refrain itself from imposing its decision over the decision of the employer as to whether or not to accept the bid of a tenderer. The Court does not have the expertise to examine the terms and conditions of the present day economic activities of the State and this limitation should be kept in view.”
“While the right to property is no longer a fundamental right, it is pertinent to note that at the time of dispossession of the subject land, this right was still included in Part III of the Constitution. The right against deprivation of property unless in accordance with procedure established by law, continues to be a constitutional right under Article 300-A.”
Noticeably, a petition was filed before the Court alleging that the State is granting incentives to public prosecutors on the basis of death sentence awarded in matters prosecuted by them. Assessing the gravity of allegation the Court on 29-03-2022 had issued direction to the Registry to register a Suo Motu case and change the cause title immediately.
The Court was deciding a case where a service matter where upon reshuffling and on insertion of two OBC candidates into general category select list, two general category candidates already appointed and working since long would have been expelled or removed, thereby unsettling the entire selection process.
“Merely on the technical ground of delay and merely on the ground that after the impugned judgment and order, which is unsustainable, the accused have resettled in their lives and their conduct has since been satisfactory and they have not indulged in any criminal activity, is no ground not to condone the delay and not to consider the appeal on merits.”
In a case relating to reservation of seats in Educational Institutions, the bench of L. Nageswara Rao* and BR Gavai, JJ has observed that while caste can be the starting point for providing internal reservation, it is incumbent on the State Government to justify the reasonableness of the decision and demonstrate that caste is not the sole basis.
“An establishment contributing to the economy of the country and providing livelihood ought not to be closed down only on the ground of the technical irregularity of not obtaining prior Environmental Clearance irrespective of whether or not the unit actually causes pollution.”
“The purpose of a disciplinary proceeding by an employer is to enquire into an allegation of misconduct by an employee which results in a violation of the service rules governing the relationship of employment.”
After having accepted the deed of assignment as an instrument chargeable to duty as a conveyance under Article 20(a) and after having collected the duty payable on the same, it is not open to the respondent to subject the same instrument to duty once again under Article 45(f), merely because the appellant had the benefit of the notifications under Section 9(a).
The Court, hence, held that no case was made out for continuing the interim protection which was granted for the academic year 2020-2021 vide interim order dated 27th November, 2020.
If an institution is seeking grant of permission for undertaking admissions for the academic session 2022-23, it must fulfill the requirements of minimum standard as on 31st December 2021.
The court was dealing with the writ petition preferred by the victims of the fire tragedy which occurred on 10.4.2006, the last day of the India Brand Consumer Show organized at Victoria Park, Meerut, Uttar Pradesh by Mrinal Events and Expositions. The incident claimed the lives of 65 persons and left 161 or more with burn injuries.
In a case where the husband had disputed paternity of child on suspicion, though the Division Bench comprising of Indira Banerjee and A.S. Bopanna, JJ., directed to conduct DNA test, the Bench granted a conditional compensation of thirty lakhs to the wife if the suspicion proves to be wrong and respondent-husband turns out to be the father of the child.
The appellant, a mother of a 5-year-old, has been working as a Medical Officer with the State of Madhya Pradesh on a regular basis for over 11 years. Out of the 11 years of service, she has served for 6 years in District Betul which is a notified tribal district and has served in a Community Health Centre at Katangi in the District of Balaghat for the remaining period.
“Being a public servant in the post office, the delinquent officer was holding the post of trust. Merely because subsequently the employee had deposited the defrauded amount and therefore there was no loss caused to the department cannot be a ground to take a lenient view and/or to show undue sympathy in favour of such an employee.”
“As per the settled proposition of law, in the field of education, the Court of Law cannot act as an expert normally, therefore, whether or not a student/candidate is possessing the requisite qualification should better be left to the educational institutions, more particularly, when the Expert Committee considers the matter.”
“The entire controversy appears to have arisen as a result of the tug of war in the year 2006 between the then Chancellor and the then Vice Chancellor, making the appellant a victim in the line of fire. Unfortunately, the High Court omitted to take note of all this.”
The petitioner was a hawker in the Sarojini Nagar Market, who had approached the Delhi High Court seeking permission to leave his goods and wares at the place of hawking overnight.
“In absence of any specific provision for waiting list and on the contrary, there being a specific provision that there shall not be any waiting list and that the post remaining unfilled on any ground shall have to be carried forward for the next recruitment.”
The Division Bench comprising of M.R. Shah and B.V. Nagarathna, JJ., stayed the impugned order of Bombay High Court wherein the High Court had quashed the assessment order under Income Tax Act, 1961 and had further cautioned that if such orders continued to be passed, the Court will be constrained to impose substantial costs on the concerned Assessing Officer to be recovered from his/her salary.
In 2022 SCC Volume 2 Part 4, read a very interesting decision, wherein a death row convict subjected a 5-year-old girl to rape, killed her by strangulation, and then disposed of her body, tied in a gunny bag, into a stream and the 3-Judge Bench of the Supreme Court finding hope for reformation and rehabilitation commuted his death sentence to life imprisonment.
In a pertinent decision, Supreme Court while rejecting claim for interest the compared it to the Shakespearean character Shylock and remarked,
“…the holder of the Bond has received their ‘pound of flesh’, but they seem to want more. Additional sum in our estimation is not merited as SIBCO has already received their just entitlement and burdening the defendant with any further amount towards interest would be akin to Shylockian extraction of blood from the defendant.”
In 2022 SCC Volume 3 Part 2, read a very interesting case wherein a case where a Constable’s name was recommended by the Superintendent of Police but the same was dropped down by the Inspector General of Police for promotion under the 10% quota of outstanding performance for inclusion in the B-I List for promotion to the post of Head Constable in the year 2004, Supreme Court held that mere recommendation of the SP at the initial stage is not sufficient to claim a right for promotion.
In this Part, read a very interesting Supreme Court decision, held that, wherein the amounts paid by resident Indian end-users/distributors to non-resident computer software manufacturers/suppliers, as consideration for the resale/use of the computer software through EULAs/distribution agreements, is not the payment of royalty for the use of copyright in the computer software, and that the same does not give rise to any income taxable in India.[Engineering Analysis Centre of Excellence (P) Ltd. v. CIT, (2022) 3 SCC 321]
Short Notes: 9
Constitution of India — Art. 136 — Appeal against acquittal: Principles summarized regarding circumstances under which Supreme Court may entertain an appeal against an order of acquittal and pass order of conviction. [Rajesh Prasad v. State of Bihar, (2022) 3 SCC 471]
Income Tax Act, 1961 — S. 9(1)(vi) r/w S. 90: Amounts paid by resident Indian end-users/distributors to non-resident computer software manufacturers/suppliers, as consideration for the resale/use of the computer software, not royalty, hence, not taxable in India. [Engineering Analysis Centre of Excellence (P) Ltd. v. CIT, (2022) 3 SCC 321]
In 2022 SCC Volume 3 Part 2, read a very interesting case wherein a case where a Constable’s name was recommended by the Superintendent of Police but the same was dropped down by the Inspector General of Police for promotion under the 10% quota of outstanding performance for inclusion in the B-I List for promotion to the post of Head Constable in the year 2004, Supreme Court held that mere recommendation of the SP at the initial stage is not sufficient to claim a right for promotion.[Sushil Kumar v. State of Haryana, (2022) 3 SCC 203]
Short Notes: 3
Arbitration and Conciliation Act, 1996 — Ss. 37 and 34 — Setting aside of arbitral award — Jurisdiction of Court under S. 37: In an appeal under S. 37, Court cannot enter into merits of claim. As per settled position of law, an award can be set aside under Ss. 34/37, only if award is found to be contrary to: (a) fundamental policy of Indian law; or (b) interest of India; or (c) justice or morality; or (d) if it is patently illegal. [Haryana Tourism Ltd. v. Kandhari Beverages Ltd.,(2022) 3 SCC 237]
Civil Procedure Code, 1908 — Or. 37 R. 2 — Summary suit — Leave to defend — Grant of — Principles to be followed: While dealing with an application seeking leave to defend, held, it would not be a correct approach to proceed as if denying leave is the rule or that leave to defend is to be granted only in exceptional cases or only in cases where defence would appear to be a meritorious one. On the issue of raising of triable issues, if defendant indicates that he has a fair or reasonable defence, he is ordinarily entitled to unconditional leave to defend unless there be any strong reason to deny leave. Further held, even if there remains a reasonable doubt about probability of defence, sterner or higher conditions could be imposed while granting leave to defend but, denying leave would be ordinarily countenanced only in such cases where defendant fails to show any genuine triable issue and court finds defence(s) to be frivolous or vexatious. [B.L. Kashyap & Sons Ltd. v. JMS Steels & Power Corpn., (2022) 3 SCC 294]
Criminal Procedure Code, 1973 — S. 439 — Bail: In this case of brutal murder of appellant complainant’s husband by tying him with rope to gate and then beating him by pipe and belt, leading to his death, bail was granted by High Court to both respondent-accused. Eyewitnesses identified accused in test identification parade. Entire incident was captured/recorded in CCTV footages and mobile phone. Pipe and belt used in commission of crime were recovered. It was held that in such serious matter and looking to gravity of offences and considering statements of eyewitnesses and that entire incident was recorded in CCTV footages and mobile phone, High Court, held, committed grave error in releasing accused respondents on bail. Hence, impugned judgments and orders passed by High Court releasing respondents on bail were quashed and set aside. [Jayaben v. Tejas Kanubhai Zala, (2022) 3 SCC 230]
Criminal Procedure Code, 1973 — S. 439 — Bail: Principles summarized regarding considerations to be balanced while deciding to grant bail. [Sunil Kumar v. State of Bihar, (2022) 3 SCC 245]
Election — Election Petition/Trial — Practice and Procedure for Election Trial — Affidavit/Verification: Election petition based on allegations of corrupt practices not supported by an affidavit in Form 25, as prescribed under R. 94-A of the 1961 Rules cannot be thrown out at threshold. Non-filing of affidavit or non-filing of proper verification is technical defect which is curable by allowing candidate to file proper affidavit. [A. Manju v. Prajwal Revanna, (2022) 3 SCC 269]
Industrial Disputes Act, 1947 — S. 11-A — Rights and duties of employer and employee concerned in disciplinary proceedings: In terms of S. 11-A, where finding of misconduct is recorded in domestic enquiry, authorities under the Act have full power and jurisdiction to reappraise evidence and to satisfy themselves whether evidence justified finding of misconduct. However, where enquiry is found defective, employer can lead evidence to prove misconduct before the authorities concerned. [U.P. SRTC v. Gajadhar Nath, (2022) 3 SCC 190]
Insolvency and Bankruptcy Code, 2016 — S. 7(5): Disposal of petition at admission stage with directions to settle the matter, without going into merits is not permissible. Mere initiation of the process of settlement is not sufficient for dismissal of petition. Only two courses of action are available to the adjudicating authority in a petition under S. 7, namely: (i) the adjudicating authority must either admit the application under S. 7(5)(a), or, (ii) it must reject the application under S. 7(5)(b). IBC does not provide for the adjudicating authority to undertake any other action, but for either of these two choices. [E.S. Krishnamurthy v. Bharath Hi-Tecch Builders (P) Ltd., (2022) 3 SCC 161]
Insolvency and Bankruptcy Laws — Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016 — Regn. 34 — IBBI’s Circular dt. 12-6-2018: Recording of reasons for fixation/determination of IRP/RP’s fee is necessary. Ad hoc determination of fee/non-consideration of basis of the claim or its reasonableness is not permissible. [Devarajan Raman v. Bank of India Ltd., (2022) 3 SCC 254]
Karnataka Agricultural Produce Marketing (Regulation and Development) Act, 1966 (27 of 1966) — S. 65(2) proviso 2 & Expln. and S. 65(2-A)(i-a) and Schedule — Market fee — Liability to pay — Determination of — Processed spices notified as agricultural produce in Sch. — When chargeable: Raw spices imported from outside State, cleaned, processed and sold within market area of appellant Market Committee by respondent defined as “trader” under the Act, held, chargeable for payment of market fee under S. 65 (2). If said produce is sold in the market area of appellant, the importer should realise the market fee from the purchaser and pay the same to the Committee. Clarified, that if one merely imports notified agricultural produce from outside the State for the purpose of cleaning and processing without selling the processed produce within the market area, the said trader would not be liable to pay market fee. [APMC Yashwanthapura v. Selva Foods, (2022) 3 SCC 313]
Penal Code, 1860 — Ss. 302 and 302/34 or S. 326 [S. 300 Thirdly] — Causing injury(ies) to vital part of body which injury(ies) were the actual cause of death: In this case, death occurred six days after the injury(ies) were inflicted. It was held that such case, held, would still fall under S. 302, as such injury(ies) inflicted on vital part of body were the actual cause of the death. [State of U.P. v. Jai Dutt, (2022) 3 SCC 184]
Penal Code, 1860 — Ss. 302/34 — Identification of accused when assailants are not known to the eyewitnesses who witnessed the incident/assault — Manner in which is required to be done: In this case of murder by shooting from pistol, it was held that alleged involvement of appellant-accused and two other co-accused in the incident, held, could not be established beyond reasonable doubt as eyewitnesses to the shooting were not aware of identity of assailants. Nor was identity of the assailants established in any other reliable manner. Hence, appellant and similarly situated co-accused, were acquitted. [Suryavir v. State of Haryana, (2022) 3 SCC 260]
Penal Code, 1860 — Ss. 302/34 — Murder of one person by shooting him with firearm — Culpability of accused who gave exhortation to murder: In this case, common intention to murder was established against Accused 2 who had exhorted Accused 1 to shoot deceased dead with the firearm. Hence, it was held that Accused 2 rightly convicted for murder under S. 302 with the aid of S. 34. [Omkar Singh v. Jaiprakash Narain Singh, (2022) 3 SCC 281]
Penal Code, 1860 — Ss. 302/34 or Ss. 120-B/302: In this case, accused was not shown to share common intention to murder nor was a party to conspiracy to murder. Neither was involvement in any conspiracy to murder proved against appellant herein Accused 2, nor could it be established that he shared common intention to murder. Hence, conviction of Accused 2 under Ss. 302/34 was quashed. [Mukesh v. State of M.P., (2022) 3 SCC 241]
Service Law — Appointment — Cancellation/Refusal of appointment — Requirement of submitting NOC from erstwhile employer at time of interview — Delay: In this case, for the Post of Asstt. Professor (College Cadre), appellant appllied for NOC on 22-3-2016, which was received by authority concerned on 4-4-2016. Written examination was conducted on 5-3-2017, result whereof was declared on 6-11-2017. Appellant qualified written examination and in anticipation that non-receipt of NOC may disqualify him from appointment filed writ petition in High Court praying for issuance of direction to employer to release NOC. Pursuant to interim order dt. 7-12-2017 passed by High Court in appellant’s favour, appellant was provisionally interviewed. Results of final selection were declared on 15-12-2017, while actual appointments made on 12-7-2018. Appellant received NOC on 6-6-2018 and submitted it to Haryana PSC on 8-6-2018 i.e. even before actual appointments were made. Thus held, there was no delay on part of appellant. Delay was on part of employer in issuing NOC and that too after intervention of High Court. Further held, once it was found that there was no delay/lapse on part of appellant in producing NOC, which was produced before appointments were made, and last candidate who was appointed i.e. R-4 had secured less marks than appellant, there was no justification in denying him appointment. He cannot be punished for no fault of his. Courts below erred in rejecting appellant’s claim to appointment. Further directed that on principle of “no work no pay” appellant was not entitled to back wages but entitled to continuity of service for purpose of seniority, pay fixation, etc. [Narender Singh v. State of Haryana, (2022) 3 SCC 286]
Service Law — Promotion — Competent Authority/Recommending Authority: Authority with power to accord approval to recommendation for promotion, held, is competent authority for grant of promotion and not the recommending authority. [Sushil Kumar v. State of Haryana, (2022) 3 SCC 203]
Service Law — Seniority — Determination of seniority — Ad hoc/Fortuitous appointees/Promotees — Regularisation of, from date of initial appointment: Employees who were appointed on ad hoc basis and qualified typing test at later stage, in absence of scheme of rules for determining seniority cannot be placed senior to employees who were appointed on substantive basis after undergoing regular selection process. [Shyam Sunder Oberoi v. Tis Hazari Courts, (2022) 3 SCC 197]
Succession Act, 1925 — Ss. 63 and 59 r/w Ss. 67, 68, 45 and 47 of the Evidence Act, 1872 — Validity of will — Proof — Essentials for: Intention of testator to make testament must be proved, and propounder of will must examine one or more attesting witnesses and remove all suspicious circumstances with regard to execution of will. [Murthy v. C. Saradambal, (2022) 3 SCC 209]
In a pertinent decision, Supreme Court while rejecting claim for interest the compared it to the Shakespearean character Shylock and remarked,
“…the holder of the Bond has received their ‘pound of flesh’, but they seem to want more. Additional sum in our estimation is not merited as SIBCO has already received their just entitlement and burdening the defendant with any further amount towards interest would be akin to Shylockian extraction of blood from the defendant.”
[Small Industries Development Bank of India v. SIBCO Investment (P) Ltd., (2022) 3 SCC 56]
Short Notes: 10
Arbitration and Conciliation Act, 1996 — S. 12(5) r/w Seventh Schedule and Ss. 11, 14 and 15 — Neutrality of arbitrators: Arbitral Tribunal comprising of the officers of one of the parties are not eligible to continue as such even when such Arbitral Tribunal stood constituted prior to 23-10-2015 i.e. prior to the Amendment Act, 2015 coming into force. Further, the earlier Arbitral Tribunal having lost its mandate cannot be permitted to continue and therefore a fresh arbitrator has to be appointed. [Ellora Paper Mills Ltd. v. State of M.P., (2022) 3 SCC 1]
Arbitration and Conciliation Act, 1996 — S. 34 — Award in excess of claim — Non-establishment of: Relevance of reserving of right to furnish further details of expenditure, determined. [State of Haryana v. Shiv Shankar Construction Co., (2022) 3 SCC 109]
Arbitration and Conciliation Act, 1996 — Ss. 34(4), 31, 34(1) and 34(2-A): Remission of matter to arbitrator under S. 34(4) i.e. for elimination of grounds for setting aside the award cannot be permitted in absence of findings on the contentious issues. [I-Pay Clearing Services (P) Ltd. v. ICICI Bank Ltd., (2022) 3 SCC 121]
Arbitration and Conciliation Act, 1996— S. 11(6): Appointment of arbitrator by parties and arbitration proceedings pursuant thereto, when valid, even after filing of an application under S. 11(6), explained. Relevance of non-pursuing of such application, and filing of statement of claim by applicant before Arbitral Tribunal constituted during pendency of S. 11(6) application, determined. When settled principle of law i.e. that after an application has been filed for appointment of an arbitrator under S. 11(6), the party concerned forfeits its right to appoint an arbitrator, can be deviated from, expounded. [Durga Welding Works v. Railway Electrification, (2022) 3 SCC 98]
Civil Procedure Code, 1908 — Or. 41 R. 31 — First appeal — Reasons to be assigned for decision by first appellate court — Mandatory requirement of compliance with Or. 41 R. 31: First appellate court is mandatorily required to comply with requirements of Or. 41 R. 31 and non-observance of these requirements lead to infirmity in judgment. Appellate court’s jurisdiction involves a rehearing of appeal on questions of law as well as fact. First appeal is a valuable right, and, at that stage, all questions of fact and law decided by trial court are open for reconsideration. Judgment of appellate court must, therefore, reflect conscious application of mind and must record court’s findings, supported by reasons for its decision in respect of all issues, along with contentions put forth and pressed by parties. [Manjula v. Shyamsundar, (2022) 3 SCC 90]
Constitution of India — Arts. 323-A and 323-B: Power of scrutiny of Tribunals created under this provision lies only with Division Bench of High Court within whose jurisdiction Tribunal concerned falls. [Union of India v. Alapan Bandyopadhyay, (2022) 3 SCC 133]
Hindu Marriage Act, 1955 — Ss. 13(1)(i-a) and (i-b): In this case, there was concurrent findings of courts below on cruelty and desertion and irretrievable breakdown of marriage was also taking place. Hence, it was held that no interference was called for with divorce decree. [Neha Tyagi v. Deepak Tyagi, (2022) 3 SCC 86]
Maharashtra Village Panchayats Act, 1959 (3 of 1959) — Ss. 14-B(1) and (2): Appeal filed before Divisional Commissioner against order passed by Collector under S. 14-B(1) declining to disqualify Sarpanch/Member of Panchayat for allegedly failing to lodge accounts of election expenses within time and in prescribed manner, is not maintainable. Only limited window available to Divisional Commissioner under S. 14-B(2) is where Collector under S. 14-B(1) disqualifies Sarpanch/Member of Panchayat, to remove such disqualification or to reduce period thereof in deserving cases i.e. power under S. 14-B(2) gets triggered only after order of disqualification is passed under S. 14-B(1). Further, no power of review conferred either under S. 14-B(1) or S. 14-B(2). [Shobhabai Narayan Shinde v. Commr., (2022) 3 SCC 35]
Mines and Minerals — Illegal mining — Violation of environmental law: Permissibility and validity of ban on mining activities by earlier Court order when mining operations conducted despite such ban based on rider or stopgap arrangement permitted by Court with regard to sand mining considering its importance in construction activities and loss to public exchequer, explained. [State of Bihar v. Pawan Kumar, (2022) 3 SCC 102]
Penal Code, 1860 — S. 304 Pt. II and S. 300 Exceptions 2 and 4: In this case of culpable homicide not amounting to murder, there was no pre-meditation or pre-planning and incident was result of sudden quarrel in which accused exercised his right of private defence, but exceeded the limit. Hence, while confirming conviction under S. 304 Pt. II, sentence modified to 2 yrs’ RI with fine of Rs 5000 and default stipulation of 3 months’ RI. [Govindan v. State, (2022) 3 SCC 82]
Penal Code, 1860 — S. 498-A: In this case, victim immolating herself in her matrimonial home leading to her death in hospital. Concurrent findings of facts recorded by both courts below on harassment and/or torture and/or cruelty by appellant mother-in-law of victim, on appreciation of evidence, stand established. Therefore, appellant, held, rightly convicted under S. 498-A. [Meera v. State, (2022) 3 SCC 93]
Practice and Procedure — Delay/Laches/Limitation — Filing of petitions/applications/suits/appeals/all other proceedings: There was extension of limitation period for all proceedings before courts and tribunals due to COVID-19 Pandemic. Earlier order dt. 23-3-2020, (2020) 19 SCC 10, extending such limitation period, though was brought to an end by order dt. 8-3-2021, order dt. 23-3-2020, held, restored due to spread of the new variant of COVID-19, drastic surge in the number of COVID cases across the country and adversities faced by litigants in the prevailing conditions. Said restoration shall be as per directions and clarifications. [Cognizance for Extension of Limitation, In re, (2022) 3 SCC 117]
Practice and Procedure — State as a Litigant/Party — Delay/Laches/Limitation — Unexplained delay by Revenue/State: Supreme Court has already categorised these cases as “certificate cases”, hence held, appeal is not maintainable under Art. 136 of the Constitution. [Commr. of Customs v. Volex Interconnect (India) (P) Ltd., (2022) 3 SCC 159]
Reserve Bank of India Act, 1934 — S. 45-MB — RBI Circulars/Guidelines/Directions: For “public interest” RBI is empowered to issue any directive to any banking institution, and to prohibit alienation of an NBFC’s property. Further, RBI has wide supervisory powers over financial institutions like SIDBI (defendant), in furtherance of which, any direction issued by RBI, deriving power from the RBI Act or the Banking Regulation Act is statutorily binding on the defendant. [Small Industries Development Bank of India v. SIBCO Investment (P) Ltd., (2022) 3 SCC 56]
Service Law — Departmental Enquiry — Employee’s right of representation — Right to be represented by counsel of one’s choice — Extent of: There is no absolute right in favour of delinquent officer to be represented by counsel of his choice in departmental proceedings and same can be restricted by employer. Only requirement is that delinquent officer must get fair opportunity to represent his case. [Rajasthan Marudhara Gramin Bank v. Ramesh Chandra Meena, (2022) 3 SCC 44]
Specific Relief Act, 1963 — S. 19(b): Suit for specific performance against whom not enforceable: Specific performance, held, cannot be enforced against such purchaser or their transferees as they would fall within exception of transferee for value who had paid money in good faith and without notice of original contract. [Seethakathi Trust Madras v. Krishnaveni, (2022) 3 SCC 150]
U.P. Imposition of Ceiling on Land Holdings Act, 1960 (1 of 1961) — Ss. 3(17) and 3(9) — Sub-lessee of original government lessee: Sub-lessees of original government lessees are merely ostensible tenure-holders of land, while government lessees continued to be original holders i.e. land in question is merely held by sub-lessee on behalf of original lessees. Terms of original government lease deed though provide for sub-lease for agricultural purposes but sub-lessees cannot claim independent tenancy rights unless stipulations therefor in the government lease and the sub-lease have been complied with. [Hardev Singh v. Prescribed Authority, (2022) 3 SCC 21]
In 2022 SCC Volume 2 Part 4, read a very interesting decision, wherein a death row convict subjected a 5-year-old girl to rape, killed her by strangulation, and then disposed of her body, tied in a gunny bag, into a stream and the 3-Judge Bench of the Supreme Court finding hope for reformation and rehabilitation commuted his death sentence to life imprisonment. [Irappa Siddappa Murgannavar v. State of Karnataka, (2022) 2 SCC 801]
Short Notes: 6
Central Educational Institutions (Reservation in Admission) Act, 2006 (5 of 2007) — S. 3 provisos 2(a) & (b) and Ss. 3(i), (ii) & (iii) and Ss. 2(i-a) & (i-b) (as amended in 2012): Manner of interpretation and applicability of special provisions of amended S. 3 provisos 2(a) & (b) excluding general provisions of Ss. 3(i), (ii) & (iii), explained in detail. Amended S. 3 proviso 2 is applicable to University located in State of Manipur which is one of the States of “Specified North-Eastern Region” in terms of S. 2(ia). S. 3 provisos 2(a) & (b) is applicable to “Specified North-Eastern Region” in S. 2(i-a) and not limited only to the tribal States covered by the Sixth Schedule to the Constitution. This became possible after the amendment of S. 3 and insertion of S. 3 provisos 2(a) & (b) by the Central Educational Institutions (Reservation in Admission) Amendment Act, 2012 (Amendment Act). [Kshetrimayum Maheshkumar Singh v. Manipur University, (2022) 2 SCC 704]
Re S. 3 provisos 2(a) & (b) and Ss. 3(i), (ii) & (iii) and Ss. 2(i-a) & (i-b) (as amended in 2012), Central Educational Institutions (Reservation in Admission) Act, 2006 (5 of 2007) manner of interpretation and applicability of special provisions of amended S. 3 provisos 2(a) & (b) excluding general provisions of Ss. 3(i), (ii) & (iii), explained in detail. [Kshetrimayum Maheshkumar Singh v. Manipur University, (2022) 2 SCC 704]
Constitution of India — Sch. X Paras 2(1)(a) and (2) r/w Art. 191(2): Judicial interference with disqualification order issued under by Speaker under the provision, when permissible and warranted, explained. [Kshetrimayum Biren Singh v. Speaker, Manipur Legislative Assembly, (2022) 2 SCC 759]
Re Sch. X Paras 2(1)(a) and (2) r/w Art. 191(2), Constitution of India judicial interference with disqualification order issued under by Speaker under the provision, when permissible and warranted, explained. [Kshetrimayum Biren Singh v. Speaker, Manipur Legislative Assembly, (2022) 2 SCC 759]
Education Law — Professional Colleges/Education — Medical and Dental Colleges — Reservation of seats/Quota/Exemption/Priority in Medical/Dental Institutions — Generally —Postgraduate/Superspeciality courses: State Government providing reservation for in-service doctors in superspeciality courses in final stages of admission for the academic year 2020-2021, held, cannot be permitted. [Prerit Sharma v. Bilu B.S., (2022) 2 SCC 751]
State Government providing reservation for in-service doctors in superspeciality courses in final stages of admission for the academic year 2020-2021 cannot be permitted. [Prerit Sharma v. Bilu B.S., (2022) 2 SCC 751]
Electricity Act, 2003 — S. 9 and S. 2(15) r/w S. 42(4) — Electricity distribution system — Wheeling charges for use of distribution system: Additional surcharge on wheeling charges under S. 42(4), if consumer does not receive supply of electricity from the distribution licensee but uses the system, is not applicable to captive consumers. Ordinary consumers under S. 2(15) to whom S. 42(4) is applicable, clarified. Rationale why such additional surcharge is justified, explained. Rights of captive consumers distinguished from ordinary consumers. Captive consumers, held, do not have an obligation to pay additional surcharge under S. 42(4) even if they are not receiving electricity from the distribution licensee. [Maharashtra State Electricity Distribution Co. Ltd. v. JSW Steel Ltd., (2022) 2 SCC 742]
Re S. 9 and S. 2(15) r/w S. 42(4), Electricity Act, 2003 qua wheeling charges for use of distribution system, captive consumers, do not have an obligation to pay additional surcharge under S. 42(4) even if they are not receiving electricity from distribution licensee. [Maharashtra State Electricity Distribution Co. Ltd. v. JSW Steel Ltd., (2022) 2 SCC 742]
Energy, Power and Electricity — Electricity — Tariff — Exemption provision: Repealing statute withdrawing exemption provided in repealed statute in simple, clear and unambiguous language, said exemption provision, held, needs to be interpreted literally and applied rigorously and strictly. Recourse cannot be had to any other principle of interpretation, when the words are clear and unambiguous. Thus, held, charitable educational institutions registered under the provisions of the Societies Registration Act and/or under the Maharashtra Public Trusts Act, are not entitled to any exemption from levy/payment of electricity duty on or after 8-8-2016 i.e. from the date on which Maharashtra Electricity Duty Act, 2016 (2016 Act) came into effect. [State of Maharashtra v. Shri Vile Parle Kelvani Mandal, (2022) 2 SCC 725]
Repealing statute withdrawing exemption provided in repealed statute in simple, clear and unambiguous language, said exemption provision needs to be interpreted literally and applied rigorously and strictly. Recourse cannot be had to any other principle of interpretation, when words are clear and unambiguous. [State of Maharashtra v. Shri Vile Parle Kelvani Mandal, (2022) 2 SCC 725]
Labour Law — Domestic/Departmental Enquiry — Acquittal in criminal proceedings — Effect: Principles reiterated regarding invocation of cl. (1)(g) of Sch. IV of the MRTU & PULP Act, 1971, for setting aside dismissal order. Applicability of said cl. (1)(g), also explained. [Maharashtra SRTC v. Dilip Uttam Jayabhay, (2022) 2 SCC 696]
Motor Vehicles Act, 1988 — S. 173 — Appeal: Growing number of appeals by claimants, insurers and vehicle owners against award passed by Tribunal are resulting in large pendency of appeals before various High Courts. Idea of “Motor Vehicle Appellate Tribunals” mooted and detailed suggestions given. [Rasmita Biswal v. National Insurance Co. Ltd., (2022) 2 SCC 767]
Penal Code, 1860 — Ss. 302, 376, 364, 366-A and 201 — Rape and murder of 5 yr old girl by strangulation: Low age of victim cannot be considered as only or sufficient factor by Supreme Court for imposing death sentence. Sentences awarded to appellant under Ss. 376, 364, 366-A and 201 IPC, upheld. However, considering mitigating circumstances, death sentence awarded under S. 302, is commuted to life imprisonment with stipulation that appellant shall not be entitled to premature release/remission before undergoing actual imprisonment of 30 yrs. Further held, further sentences awarded shall run concurrently and not consecutively. [Irappa Siddappa Murgannavar v. State of Karnataka, (2022) 2 SCC 801]
Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 — Ss. 24(1)(a), 25(1) and 114(1) & (2) — Acquisition proceedings: Saving of provisions of the Land Acquisition Act, 1894 and retrospectivity of provisions of the 2013 Act, explained in detail. [Maharashtra Vidarbha Irrigation Development Corpn. v. Mahesh, (2022) 2 SCC 772]
Re Ss. 24(1)(a), 25(1) and 114(1) & (2), Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 saving of provisions of Land Acquisition Act, 1894 and retrospectivity of provisions of the 2013 Act, explained in detail. [Maharashtra Vidarbha Irrigation Development Corpn. v. Mahesh, (2022) 2 SCC 772]
Central Goods and Services Tax Act, 2017 — Ss. 54 and 2(59) — Refund of unutilised input tax credit (“ITC”) — Restriction of, to input goods alone and not to input services: Validity of restriction of refund of unutilised input tax credit, affirmed. Cl. (ii) of the first proviso to S. 54(3), held, amounts to a restriction and not a mere condition of eligibility. Under the first proviso to S. 54(3), a refund can be allowed only in the eventualities envisaged in cls. (i) and (ii) and the expression “other than” in the proviso operates as a limitation or restriction. Proviso (ii) embodies the concept of an inverted duty structure and states that the refund of unutilised ITC shall be allowed only when the credit has accumulated because the rate of tax of inputs is higher than the rate of tax on output supplies. Further, input is defined in S. 2(59) to mean goods other than the capital goods. Also, Expln. I to S. 54 is a clear indicator that in respect of domestic supplies, it is only unutilised credit which has accumulated on the rate of tax on input goods being higher than the rate of output supplies of which a refund can be allowed. [Union of India v. VKC Footsteps (India) (P) Ltd., (2022) 2 SCC 603]
Insolvency and Bankruptcy Code, 2016 — S. 60(5): Grant of stay/injunction under provisions of IBC against termination of contract entered into with corporate debtor is not permissible, when: (i) The contract is terminated dehors insolvency proceedings under IBC i.e. there exists no nexus between the termination notice and insolvency resolution proceedings, and (ii) Criteria laid down in Gujarat Urja, (2021) 7 SCC 209 are not satisfied, namely: (a) the contract is central to the success of CIRP, and (b) corporate debtor would not be able to maintain itself as a “going concern” on its termination. [TATA Consultancy Services Ltd. v. SK Wheels (P) Ltd. (Resolution Professional), (2022) 2 SCC 583]
Land Acquisition Act, 1894 — Ss. 23, 18 and 54 — Compensation — Review: In this case, it was held that all submissions and circumstances had been considered in judgment under review, to affirm compensation @ Rs 120 per square yard awarded by Reference Court. There was no error apparent on record in judgment of which review was sought, Asha Ram, (2021) 17 SCC 289, hence, review petitions were dismissed. [Asha Ram v. U.P. Awas Evam Vikash Parishad, (2022) 2 SCC 567]
Penal Code, 1860 — S. 34 — Imposition of vicarious liability: Imposition of vicarious liability with aid of S. 34, when permissible and requirements of the same, explained. Significance of amendment made to S. 34 in 1870 adding the phrase “in furtherance of the common intention”, also discussed. Necessity of proving that accused on whom vicarious liability is sought to be imposed shared common intention, determined. Case law surveyed in detail and principles summarized regarding how common intention is to be inferred and determined in each case. [Jasdeep Singh v. State of Punjab, (2022) 2 SCC 545]
Sales Tax and VAT — Assessment Order — Passing of fresh assessment orders after remand by appellate authority: Exercise of writ jurisdiction while alternative remedy available to challenge fresh assessment orders, not sustainable. [State of A.P. v. S. Pitchi Reddy, (2022) 2 SCC 569]
Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 — S. 34 r/w Ss. 13 and 17 — Bar on jurisdiction of civil court under S. 34 of the SARFAESI Act — Applicability of: Proper forum for challenging the proceedings under S. 13 of the SARFAESI Act is DRT under S. 17 of the SARFAESI Act i.e. as opposed to by civil suit. DRT, held, has sufficient jurisdiction under S. 17 to consider whether respondent was not a secured creditor so far as the appellant is concerned and whether there was no amount due and payable by the plaintiff-appellant to respondent. Mere mentioning and using the word “fraud”/“fraudulent”, held, is not sufficient to satisfy the test of “fraud”. A pleading/using the word “fraud”/“fraudulent” without any material particulars as required in terms of Or. 6 R. 4 CPC, would not tantamount to pleading of “fraud”. [Electrosteel Castings Ltd. v. UV Asset Reconstruction Co. Ltd., (2022) 2 SCC 573]
Arbitration and Conciliation Act, 1996 — Ss. 31(7)(a), 28 and 34 — Award of interest: Arbitrator cannot award interest contrary to the terms of the agreement/contract between the parties. Bar under specific clause of the contract/agreement that no interest would be payable upon earnest money or security deposit or amounts payable to contractor under contract. In such a case, Arbitral Tribunal independently of the contract and on equitable grounds and/or to do justice, cannot award interest pendente lite or future interest. [Union of India v. Manraj Enterprises, (2022) 2 SCC 331]
Arbitration and Conciliation Act, 1996 — Ss. 34 and 28(3) — Setting aside of award on ground of patent illegality — What constitutes “patent illegality” — Explained: When arbitrator fails to decide matter in accordance with terms of contract governing parties, it will attract “patent illegality ground” as it amounts to gross contravention of S. 28(3). [State of Chhattisgarh v. SAL Udyog (P) Ltd., (2022) 2 SCC 275]
Civil Procedure Code, 1908 — Or. 21 R. 16 Expln. and Ss. 47 and 146: Transferee of rights in the property, which is the subject-matter of the suit, held, can obtain execution of a decree without separate assignment of decree. The objective is to avoid multifarious proceedings to determine the issue of assignment. Thus, the issue of assignment can be determined in the execution proceedings itself. [Vaishno Devi Construction v. Union of India, (2022) 2 SCC 290]
Civil Procedure Code, 1908 — S. 25 — Transfer of cases — Matrimonial dispute — Multiple proceedings between same parties — Transfer and consolidation of all proceedings before one court — When warranted: In this case petitioner wife was resident of Bengaluru and respondent husband, resident of Chennai. Petitioner wife filed two cases before the Family Court at Bengaluru i.e.: (1) petition under Guardians and Wards Act, 1890 for permanent custody of child, and (2) for restitution of conjugal rights. Respondent husband filed petition for divorce before Family Court at Chennai. All these petitions were pending for adjudication. It was held that it is in interest of justice that all these matters be heard by the same court. Hence, petition filed by respondent husband for divorce before Family Court at Chennai transferred to Family Court at Bengaluru. Principal Judge, Family Court at Bengaluru directed to assign these matters to the same court. [D. Raja Rajeswari v. R. Sathish Kumar, (2022) 2 SCC 329]
Coal Mines Pension Scheme, 1998 — Para 15(1)(b) r/w Para 15(2) — Nature of the Scheme and entitlement to benefit of: In this case, appellant’s husband opted to receive 90% pension during his lifetime as provided under Para 15(1)(b), consequent to which on his death on 12-1-2011, his widow was entitled to receive lump sum amount equal to 100 times his full monthly pension in addition to family pension. However, her application for payment of lump sum amount in terms thereof rejected vide order dt. 22-1-2013 on ground that Para 15(1)(b) was abolished on 21-2-2011 and 10% surrendered amount was refunded to all pensioners with interest on 30-1-2012. High Court by impugned judgment dismissed her petition challenging order dt. 22-1-2013, on ground of lack of territorial jurisdiction. 1988 Scheme was framed as measure of social security for ensuring socio-economic justice for employees in coal sector. Moreover, pension being deferred portion of compensation for rendering long years of service, a hard-earned benefit accruing to employee which is in nature of property, held, sum due to employee directed to be disbursed to appellant within stipulated time after adjusting amount refunded earlier. [Veena Pandey v. Union of India, (2022) 2 SCC 379]
Contract and Specific Relief — Performance of Contract — Time of Performance — Time of the Essence — Time whether of the essence of the contract — Determination of: Whether time is of the essence in a contract, has to be culled out from the reading of the entire contract as well as the surrounding circumstances and merely having an explicit clause may not be sufficient to make time of the essence of the contract. [Welspun Specialty Solutions Ltd. v. ONGC, (2022) 2 SCC 382]
Criminal Law — Public Accountability, Vigilance and Prevention of Corruption — Erring Official(s)/Dereliction of duty/Misfeasance or Malfeasance in office/Tort of Breach of Statutory Duty/Compensation/Relief/Costs/Probe/Punishment — Delay/laches in filing appeal: If more than Rs 5 crores is at stake, authorities, held, must recover it from the officer(s) concerned. [CCE v. Design Dialogues (India) (P) Ltd., (2022) 2 SCC 327]
Criminal Law — Public Accountability, Vigilance and Prevention of Corruption — Constitutional Authorities/Functionaries/High Public Offices — Security of Prime Minister (PM) of India: Judicial inquiry into breach and lapses as the convoy of PM was stuck on a flyover for around 20 minutes, ordered. Directions also issued for seizure, preservation and safe custody of all records relating to PM’s scheduled tour of State concerned on 5-1-2022. [Lawyers Voice v. State of Punjab, (2022) 2 SCC 399]
Environment Law — Mining and Industries — Mining lease — Grant of — Preparation of District Survey Report (DSRs) through private consultants for identification of potential sites for mining — Whether necessary: In view of provision for constitution of Sub-Divisional Committees comprising of officers of State Government from various Departments for identification of potential sites for mining in the Enforcement and Monitoring Guidelines for Sand Mining, 2020, and notification issued by MoEF and CC of 2016, held, there was no necessity of DSRs being prepared through private consultants. It would also unnecessarily burden public exchequer. [State of Bihar v. Pawan Kumar, (2022) 2 SCC 348]
Insolvency and Bankruptcy Code, 2016 — Ss. 238-A and 61: Non-supply of free copy of impugned order does not affect, and thus, shall not extend the limitation period for filing an appeal under S. 61 IBC. Scheme laid down in S. 421(3) of the Companies Act and S. 61(2) IBC, distinguished. [V. Nagarajan v. SKS Ispat & Power Ltd., (2022) 2 SCC 244]
Insolvency and Bankruptcy Code, 2016 — Ss. 30, 31 and 60(5) r/w S. 12-A: Withdrawal/Modification of resolution plan by successful resolution applicant, after its submission by Resolution Professional to adjudicating authority but before its approval by adjudicating authority is not permissible. [Ebix Singapore (P) Ltd. v. Educomp Solutions Ltd. (CoC), (2022) 2 SCC 401]
Insurance — Repudiation/Rescission of Insurance Policy — Repudiation of claim by insurer on ground of non-disclosure of relevant information/data — Tenability of: In this case there was non-disclosure of previous hydrology data of one year before obtaining policy by insured as said data was not available and the same was made known to the insurer. It was held that the Insurer was aware of earlier insurance policy obtained by respondent. Moreover, insurer did not ask for such hydrology data of previous year, even though the insured had informed it that it did not have the data for the said year. Thus, held, it cannot be said that there was suppression or non-disclosure of hydrology data or any fraud from side of respondent. Hence held, repudiation of claim on ground of non-disclosure/suppression of material information, not justified in this case. [Oriental Insurance Co. Ltd. v. Malana Power Co. Ltd., (2022) 2 SCC 365]
Land Acquisition Act, 1894 — Ss. 23, 18 and 4 — Determination of market value of land: When there are no material changes for period between two Notifications under S. 4, market value has to be determined for both notifications at the same rate. [Anil Kumar Soti v. State of U.P., (2022) 2 SCC 268]
Negotiable Instruments Act, 1881 — Ss. 138 and 142(a) — Complaint on behalf of company — Manner and form in which to be filed: Complaint filed by Managing Director on behalf of Company, held, cannot be dismissed only on ground that name of Managing Director is mentioned first followed by post held in company. There could be a format where Company’s name is described first, suing through Managing Director but merely because name of Managing Director is stated first followed by post held in Company, held, would not amount to a fundamental defect warranting dismissal of the complaint at the threshold. [Bhupesh Rathod v. Dayashankar Prasad Chaurasia, (2022) 2 SCC 355]
Negotiable Instruments Act, 1881 — Ss. 138/141 — Quashment of proceedings against corporate debtor under S. 138 NI Act after issuance of moratorium under S. 14 IBC: Ss. 138/141 of the NI Act proceeding against corporate debtor is covered by S. 14 (1)(a) IBC. Hence, corporate debtor cannot be proceeded against under S. 138 of the NI Act. [Nag Leathers (P) Ltd. v. Dynamic Mktg. Partnership, (2022) 2 SCC 271]
Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 — S. 13(3-A) r/w Ss. 13(2) and 13(4) — Challenging of auction-sale/SARFAESI action taken by Bank, on the premise of violation/non-compliance with S. 13(3-A) i.e. on account of alleged non-consideration of borrower’s representation post Bank’s notice: When there is disingenuous conduct on part of the borrower to gain indulgence, unfulfilled assurances and promises, and their unwillingness to pay, borrower had waived and was estopped from challenging the violation of S. 13(3-A) of SARFAESI Act. [Arce Polymers (P) Ltd. v. Alphine Pharmaceuticals (P) Ltd., (2022) 2 SCC 221]
Service Law — Appointment — Invalid appointment/Wrong appointment/Illegal appointment: In this case, appellants who had participated in selection process for post of English Stenographers appointed on leave vacancies for period of one month against posts of Hindi Stenographers, in terms of select list dt. 14-7-1987, since there were no vacancies for post of English Stenographers. Their appointment letters specifically stated that their appointments would be terminated once regular employees resume duties. Pursuant to fresh examination conducted for posts of Stenographers — Appellants failing typing/speed test conducted for post of Hindi Stenographers. Despite that services of R-1 to R-3 terminated and appellants appointed on 5-6-1990 against posts held by them. The Supreme Court held, that appointment of appellants and termination of services of R-1 to R-3 were rightly quashed by High Court since: (i) No appointment could be made in the year 1990 on basis of select list dt. 14-7-1987 whose validity was only for one year; (ii) Appellants had failed speed test for post of Hindi Stenographers; and (iii) Appellants were never appointed pursuant to due selection procedure as against respondents who were appointed after following due selection procedure. Further held, continuation of services of appellants pursuant to interim order passed by High Court were untenable and their services liable to be terminated. [Wahab Uddin v. Meenakshi Gahlot, (2022) 2 SCC 372]
Service Law — Departmental Enquiry — Employee’s right of representation — Choice of representation — Scope of: Right of representation by a counsel of one’s choice is not an essential element of natural justice and its denial does not invalidate enquiry. Representation is often restricted by law as also by Certified Standing Orders. Right to be legally represented depends on applicable rules governing such representation and where rules are silent, there is no absolute right to be legally represented. However, entitlement to fair hearing is not dispensed with and what fairness requires depend on nature of investigation and consequences it may have on persons affected by it. Where charge is of severe and complex nature, request to be represented through counsel should be considered, which is facet of fair hearing, applicable to judicial as well as quasi-judicial decisions. [SBI v. M.J. James, (2022) 2 SCC 301]
Succession Act, 1925 — S. 63 — Genuineness of will — Determination of: Evidence of meeting of the requirements of S. 63 r/w S. 68 of the Evidence Act, held, must inspire confidence and be credible. Requirements of S. 63 cannot be fulfilled merely upon showing of mechanical or technical compliance with the stipulations specified therein. [State of Haryana v. Harnam Singh, (2022) 2 SCC 238]
The National Law University Odisha is pleased to welcome you to the live blogging of the Virtual Oral Rounds of 9th Bose & Mitra & Co. International Maritime Arbitration Moot (IMAM) 2022. This event is organized in collaboration with our Academic Partners, The Institute of International Shipping and Trade Law, Swansea University; our Global Partners Singapore Chamber of Maritime Arbitration; our Knowledge Partner Informa Law; our Resource Partner The Asian Institute of Alternative Dispute Resolution.
We will make it a point that you feel as involved as ever during this journey where talented mooters will go through the emotions of ecstasy, heartbreak, delight, shock, surprise all within 4 days. For keeping tabs on regular updates regarding IMAM, we encourage you to follow us on our Social Media Handles Instagram, Facebook, LinkedIn, and Twitter for more regular insights. We wish the participating teams the very best of luck! May the odds be ever in your favor!
— NLUO International Maritime Arbitration Moot(IMAM) (@NLUO_IMAM) March 24, 2022
DAY 1 | 24TH MARCH 2022
PRELIMINARY ROUNDS
SESSION 1
VCR-1: 922 vs 925
13:31:All set in the courtroom, teams are ready to begin with their oral rounds. It’s Showtime!
13:33:First counsel from the claimants’ side lays down the structure of her arguments in a very graceful manner which exudes confidence.
13:35:The first counsel completed her first contention and the panel seems to be impressed with the contentions raised by the first counsel. promises to be a good start!
13:37: With the permission of the panel, the first counsel move to her second submission. There seems to be no incoming questions for now and the atmosphere is overall agreeable for the time being.
13:39: Counsel relies on Hague rule and other protocols in contentions. This immediately attracted the attention of panel who, in return, directed their attention to the respective documents.
13:43: Judge seems not very satisfied with the cited case by the counsel and asked for any recent judgement. Counsel seems to be fazed out with the lack of any recent judgement at hand. Subsequently, the Judge gives her the liberty to return back to the already present case
13:46:The first counsel picks up her pace again and has started putting her arguments in a confident and assured manner.
13:47: Aaaannnnddd That’s time up! Time is up for the counsel but hang on, judges being considerate allows her to submit her argument quickly.
13:48: The first counsel concludes on a positive note, with only a few questions from the judges. The floor is now taken by the second counsel. Handing over the baton now! Looks interesting
13:49: The second counsel started by pressing on the factual grounds of the dispute and drawing attention of the judges towards the facts of the case
13:52: The Judge questioned the judgements cited by the counsel to which judge asked the counsels to deliberate over any recent judgement because counsels are relying only on the old judgements. In response, the counsels contended that they are relying only over landmark judgements which hold great presence in the current legal issues.
13:55: By looking at the presented arguments, counsel have framed their case by relying over Hague Rules and on the old judgements
13:57: The second counsel is successfully maintaining her calm and answering every question in a calm composed manner
13:59: The judges seem impressed now with the answers given by the counsel and acknowledged the presented grounds.
14:01: With only 5 secs left, counsel moves to the prayer and rounds off their submissions.
14:02: Applicants from team 922 end on a satisfactory note, with minimal grilling. The floor is now open for the respondents from team 925.
VCR-1
14:05: The first counsel of the respondents took the floor and he seeks permission to start with his case. With the permission of judges, he has started directly with the issues
14:07: This is promising! The first counsel laid down his grounds in a very graceful manner and he seems assured with what he is presenting
14:09: The panel seems to have no objection to the presented arguments put forth by the counsel which mark the already maintained positive and upbeat atmosphere in the courtroom.
14:10: Aspiring Counsels, take note! The counsel directly pointed out the loophole in the claimants’ arguments while presenting his grounds. This highlights the assertive as well as the active mindful presence of the counsel.
14:13: Claimants seem to not be giving attention to the respondents’ arguments and were engaging within themselves only which can not be acknowledged as good argumentation etiquettes.
14:15:“Are the Hague Rules binding on the party?” the judge asked to which the counsel said no and further stated his reasoning for the same.
14:16: Counsel is trying to justify his answer but somehow he seems to get flustered in his reasoning. Judges seems to not be satisfied and stated that he is getting confused in the established facts.
14:17: Time is running out but still the first counsel is trying to justify his reasoning. This marks the not-so-attentive approach of the counsel by not keeping check on time.
Geez, it’s getting stressful out there. Time is up but counsel is going on with his arguments without asking for prior permission, and on objection put forth by the judge he asked for 30 more seconds to finish with his arguments.
14:20: The first counsel concludes on a positive note, with only a few questions from the judges. The floor is now open for the second speaker to take the mantle from here.
14:21: The second counsel started with an informal note by saying “Hey” and asking for more time because her laptop’s battery is dying.
14:23: The second counsel is presenting her grounds in a prepared and composed manner, but it seems that she is constantly reading from her notes. Also, consistent usage of hand actions could cost her points.
14:28: The first judge asked the question regarding ‘due diligence’ aspect in the case which claimants have presented in an assertive manner. The second counsel puts forth her answer with the ground that facts are silent, to which judge again questioned her on the same point. but counsel fails to satisfy the judge to which judge replied “not convinced”.
14:31: While the second counsel is going with her issues, it seems that a monotonous atmosphere is developing in the courtroom with no questions and appreciative expressions from the judges.
14:35: With no questions put forth by the judges, the counsel seeks permission to proceed with the prayer.
13:36: The second counsel successfully completed her arguments.
13:37: Following the intensive deliberations and counter-questioning, we will now proceed to the session of rebuttal and sur-rebuttal.
13:38: Claimants pointed out the same due diligence ground which respondents failed to prove in their arguments when asked by one of the judges. This indicated active listening on the part of claimants.
13:42: After the completion of sur-rebuttals, one of the judges asked the second counsel from respondents’ side to repeat her sur-rebuttal because she went too fast in making her arguments.
13:44: Oral rounds have successfully concluded. Judges have joined the Judges room to discuss the marking scheme and feedback to be given to both the teams.
VCR-2: 924 vs 910
13:42:Despite the slight delay owing to inevitable technical issues, the preliminary round 1 has started with a blast. The first speaker from the applicant’s side has started with a blast and is confidently striding through the statement of facts .
13:45: The first speaker is advocating in favour of the application of SCMA Rules and is emphasizing on the appointment of 3 arbitrators.
13:46: There’s a mix up! The speaker has quickly been stopped by one of the judges asking for more clarification on the last paragraph of the first issue, however it turns out that there was some mix up in the memo pages of the judges and the speaker has thus moved on to the next issue.
13:50: The Counsel i.e. the first speaker is now arguing on the part of negligence and has even cited an authority to substantiate his argument. The judges have not interrupted him yet and it seems that they are probably satisfied with the carefully drafted argument.
13:52: There has been a bit of confusion among the judges as it turns out that the pages of the memo sent across to them are different from the ones cited and vehemently advocated by the first speaker. Oh, this is not turning out well for now.
13:53: The second counsel on the part of the applicants has taken the floor now and is taking the judges through the third and fourth issues at hand.
13:54: The second counsel appears quite confident with the arguments and authorities she has meticulously prepared..
13:56: Well, the technical issues have crept in and the second counsel had to be interrupted by one of the judges due to audio lag.
13:58: The counsel has been shooting authorities left and right in an attempt to substantiate her arguments on the compensation amount which is to be bagged from the respondents.
14:01: The judges have been patiently heeding to all arguments of the counsel and asking for clarifications wherever required.
14:05:It’s a wrap for applicants’ arguments and the first counsel of respondents has now taken the floor.
14:07: The Counsel has now progressed to the Hague Visby Rules and is fiercely advocating for the damages and compensation over which the applicants have the right to claim. This has been followed by the prayer on part of the applicants.
14:09: The Counsel appears to be quite zealous and is citing various sections and articles of the SCMA and IAA Rules to corroborate the two-fold argument he is submitting.
14:12: The Counsel from the respondent’s side has made it abundantly clear that the Hague Rules may not be applicable and the same is not mandatory under English law either.
VCR-2
14:15: The Counsel has now cleverly picked at the intention of the parties for the application of HVR and even pointed towards the deletion of a clause in the Bill of Lading which points towards the fact that the HVR should not be made applicable.
14:18: The second Counsel from the Respondents’ side has now taken charge of the floor and with a very positive attitude is now proceeding with her arguments.
14:20: The judges have been giving out positive vibes too as they can be seen nodding their heads in approval of the arguments. The Counsel is submitting arguments on the Bill of lading in an attempt to save the actions of the defendants.
14:25: The Counsel is now steadily trotting through her 4th issue arguing on the liability and the amount of compensation along with the citation of a prominent case. There topples the internet connection of the second counsel leading to mis-communication. The judges have however sought for more clarification on the parts which were inaudible and hence unclear.
14:30: One of the judges has pointed out on excessive reliance over the addendum by the Counsel and is now bombarding the counsel with relevant questions pertaining to the addendum
14:33: The Counsel has now concluded her arguments with the prayer and has now stepped down.
14:34: Here come the tricky couple of minutes reserved for rebuttal. The Counsel of the Applicant is plucking parts of arguments of the defendant and firing questions on the ambiguous parts.
14:37: The Counsel of the Respondent doesn’t look nervous or shaken by any of the questions posed in the rebuttal rounds and is seen confidently batting away all the queries citing authorities.
14:42: The judges have now been given a separate room for deliberation on the arguments and performance of the counsels. With that, this highly enriching and wonderful session has reached its end and we hope that we get to witness many more such amazing discussions and sessions.
VCR-3: 906 vs 921
13:36: As the Arbitrator begins questioning of the counsel, the counsel handles the intensively long question in a poised manner with composure.
13:38:Another lengthy question has been thrown in the way of the counsel and yet they seem unfazed about it. Good going for them!
13:41:Arbitrator asks a pertinent question regarding the tests laid down to decide whether a rule can have mandatory or non-mandatory compliance.
13:42: After the counsel proceeded with the answer, the arbitrator seems satisfied with the response.
13:46:The arbitrators grant the counsel an extension of 1.30 minutes to conclude their last argument. Time is running out but the quality shouldn’t!
13:49: The counsel for the respondents begins with their first submission. Let’s see how they go now!
13:54: Uh-oh. The counsel does not seem to understand the questions laid by the arbitrator leading to an unsatisfied response
13:55: The arbitrator has been leading the counsel with many questions and the counsel seems baffled by the questions raised. This is not confidence-inspiring.
VCR-3
13:59: The counsel seems to recover from their dazed state and gives an elaborate response, the arbitrators too seem satisfied by the answers. Crisis averted, it seems!
14:07: Now, the second counsel for the claimant begins with their submissions.
14:12: And network problems strike! The counsel seems to be facing network issues but the arbitrators patiently repeat their queries.
14:16: The arbitrators now seem a little frustrated due to the counsel’s inability to give a satisfactory answer in response to the judges’ questions.
14:20: The arbitrator asks whether Respondent 1 can recover damages from the Respondent 2?
14:23: The arbitrators appear to be not satisfied with the response and they move ahead with more questions on deciding liability in the given issue.
14:32: The second counsel for the respondent begins with their final submissions
14:54: The counsel for claimants begin with their rebuttals now
14:57: The counsel for respondents begins with their sur-rebuttals now
14:59: The oral rounds have concluded.
VCR-4: 905 vs 904
13:32:Finally the wait is over and the oral rounds have begun in VCR-4.
13:33:The first speaker from Team 905 appears to be a little flustered with the crisp instructions of the Bench. However, she composed herself and she handled the situation wonderfully and continued with her submissions, without wasting a moment.
13:38: The first speaker continues with her submission. On being directed a question at, from the Bench, the Speaker alludes at certain provisions, which she goes on to elaborate upon.
13:39: The Bench is slowly coming into its element after a few minutes of the commencement of the session. The next thing they hurl at the Speaker is about case laws in the memorial, which the Speaker, with some hesitation, admits have not been mentioned in the Memorial at all. However, she quickly covers the faux pas up with a very similar case law. The Bench looks satisfied for the time being.
13:42:Speaker 1 concluded her first submission. The Bench had reserved a particularly tricky question for her to attack her with. The Speaker however, confidently stands by her submissions and continues defending her stand.
13:44: The Bench and the Speaker continue with a back and forth round of questions and answers. The Speaker continues to maintain her composure with utmost perfection! This is high quality stuff!
13:46: Speaker 1 proceeds to her second submission, this time with a surge of confidence after having been able to defend her stand in the first submission to the best of her abilities.
13:49: The Bench accuses the Speaker of not having mentioned the requisite information in their contract with the respondents. The Speaker, not surprisingly, directed the Bench yet again to where the relevant information has been mentioned.
13:50: But the Bench is still not satisfied. Asking the Speaker to read the provision again, repeats their question to her.
13:51: The Speaker tries to convince the Bench for 5 more extra minutes. The Bench agrees to grant her 3 more minutes, which can be increased later on.
13:53: The Speaker and the Bench are engaging on a particularly contentious point again. But the Speaker’s time is running out and the Bench continues to be dissatisfied, throwing one after another complicated question and clarification at her!
13:57: Oooopss, looks like someone is not getting along. The Bench is referring to the documents. They direct the Speaker to refer to a particular section. Both the Bench and the Speaker continues having disagreements on.
14:00: The Bench reads out the provision they are referring to, for clarity in the Courtroom.
14:01: The first speaker is confident that the Hague Rules will apply in the present situation and further consolidates her position with an English case law, where the obiter was the relevant portion.
14:03: The Bench directs the Speaker to conclude her arguments despite her pleading for a few more minutes. But the Speaker has been taking the Courtroom by storm for practically half an hour and that, as the Bench provided, was too much for one Speaker! But it has to be said that those 30+ minutes were extremely engaging and interesting!
14:04: Speaker 2 takes the floor now.
14:06: The Speaker reiterates what her co-counsel had already mentioned- the Hague Visby rules would apply. But the Bench continues having issues with their stand and directs them to specific provisions.
14:07: Oh my! The Bench declared that the Hague-Visby rules would not apply because it has not been mentioned anywhere in the problem!
14:10: The Speaker continues with her submissions with grace and confidence, refusing to be swayed by the mind boggling questions which the Bench continue to throw at her! This is brilliant stuff!
14:11: “Sub-bailment is independent from the Privity of Contract…” the Speaker continues with her well drafted arguments with flair and complete assurance in her team’s understanding of the problem and accordingly their structured arguments.
14:14: The Bench is now throwing controversial questions at the Speaker! Will the opinion of the jurist be binding on the arbitrator? What will the Speaker say?
14:15: The Speaker managed to answer the question, however, it still remains to be seen whether this Honourable Bench would be pleased with her explanation.
14:17: The Bench explains to the Speaker how the Duty of Care changes as per the situation in question. The Speaker answers that, but the Bench mentions that it is the Shipper’s duty to inform the Carrier of the value of the goods and is not the responsibility of the latter to ascertain the same.
14:19: The Speaker then pleads for 5 more minutes to clarify their position on the damages front.
14:20: The Bench however feels that this team has already taken up a lot of time! But it still relented and granted the Speaker 5 more minutes.
VCR-4
14:21: Kudos to the Speaker! The Speaker rushes to defend her stand and makes the most of the blessed 5 minutes! Despite her desperation to convince the Bench, the Speaker never once loses her composure or her cool and continues defending her stand to the best of her abilities.
14:24: The Bench directs the Speaker to conclude and get to the Prayer. The Speaker did try to snag a few extra minutes again, but this time the Bench did not budge at all!
14:26: First Speaker of 904 takes the floor now representing the Respondents.
14:29: The Bench has allowed the Speaker to keep her camera off so that they can hear her better, and indeed, at the moment the connection is stable, the Speaker has completely captivated the Courtroom with her submissions!
14:32: The Bench has a host of new and equally mind boggling questions for this Speaker as well!
14:35: The Bench demands a clarification on the number of arbitrators the parties have decided upon, since that has not been mentioned anywhere! Have the parties decided upon three arbitrators, just like they have decided upon the seat of arbitration as Singapore?
14:37: To alleviate the concerns of the Bench, the speaker tries to draw their attention to a particular case law, which the Bench flatly refused to accept, stating it as irrelevant. The Speaker however tried to convince the Bench of its persuasive value, but the Bench still does not look too convinced by that.
14:42: This Bench is extremely hard to convince! The Speaker is trying her level best to do it, but it still remains to be seen if her efforts are actually coming to her aid!
14:42: The Bench continues grilling the Speaker!
14:43: The Bench offers to make the argument for the Speaker since they are running out of time!
14:44: The Bench clarifies that the Speaker has not given them any precedence of relevance and they only make the argument which the Speaker was supposed to make.
14:46: The Bench criticizes the Speaker for arguing on points which completely contradict the Problem given to the teams.
14:48: The Speaker is granted the permission to complete her arguments entirely because of her unstable connection, after which the bench would direct questions at her.
14:54: But the Speaker is facing internet issues again and is unable to answer. The Bench agrees on directing the questions at the second speaker itself.
14:55: As a result, the second speaker takes the floor.
14:56: As promised by the Bench, they have started directing all their questions for this team to this Speaker within a minute of his taking the podium!
14:57: “Can you be discharged from the Duty of Care?” The Bench has hurled this particularly confounding question the second time in this session!
15:01: “Wasn’t it your responsibility to have a vessel that is sea-worthy?” The Bench continues with their confusing and possibly ‘difficult to answer’ questions at the Speaker!
15:04: The Speaker, with absolute confidence, argues that the liability to have a vessel that is sea-worthy is not vested in his team!
15:08: The Speaker continues with his submissions and substantiates his arguments with case laws. However, it seems the aggravating internet issues, which plagued his co-counsel throughout her submissions, are catching up with him!
15:09: Having been directed by the Bench to turn off his camera for better connectivity, the Counsel in a very self-assured manner continues defending his stand since he has a stable internet connection now.
15:11: The Speaker continues with his submissions and has the complete attention of the Bench who listen to him with rapt attention, looking for any loopholes in his arguments! From the looks of it, they do not seem to have been able to find any in 2 whole minutes and counting, which in itself is an achievement!
15:13: The Bench has formulated a question based on the new landmark judgement which was brought up by the Speaker and the bench demanded the obiter to be shared with the Courtroom.
15:15: The Bench has completed their question and the Speaker is back to defending his stand!
15:19: Looks like the Bench has been able to spot a chink in the Speaker’s armour and now they are definitely not going to let go of that easily! The back to back questions are clearly putting the Speaker under a lot of pressure.
15:21: The submissions are finally done and now it is time for the rebuttals!
15:21: The Speaker, in the same breath, dealt with the rebuttals he had up his sleeve.
15:24: Speaker 1 from team 905 is back! With her air of calm she is back to handling her rebuttals.
15:28: Now its time for the sur-rebuttals! Speaker 2 from 904 is back to address these on behalf of his team.
15:31: The rounds have concluded.
VCR-5: 919 vs 915
13:29: And it’s a go-ahead and the claimant start their preliminary round with grace and ultimate confidence with the statement of facts.
13:33: Some questions posed by the bench on the SCMA rules were confidently answered by the speaker. Let’s hope this continues!
13:36:The streak of confidence seems to have to come to an end, the judge and the speaker have different interpretations of the provisions in question!
13:38:The incessant grilling has visibly thrown off the speaker, but the show must go on!
13:42:The bench continues to grill the speaker with long questions on the first contract and the liability of the claimant
13:45:With an extension of time, the judges continue grilling the claimant on the operation of the Hague rules and the gap in the contract by the claimants
13:48: The claimant contends that the Hague Rules will take precedence over the liability clause that exists in the contract between the parties. The bench seems unsatisfied and ask for authorities for the same to be submitted.
13:54: The second speaker takes the floor now, trying to start on a fresh page with the judges. It’ll be interesting to see if they can turn it around!
13:59: The claimant elaborately submits that there need not exist a separate exclusive contract between the bailee and sub-bailee. They also refer to the submissions of the first speaker with regards to the Hague Rules.
14:03: The judges seem to be impressed with the speaker’s calm demeanor while dealing with repeated questions regarding the cases cited in their memorial
14:07: The bench is having a tough time navigating the extensive memorial of the claimant
14:10: Questions regarding the issue of liability of a third party in a contract have thrown off the speaker and the judges continue to grill the speaker on the same
14:20: The bench is frustrated with the claimant’s contentions not being quoted in their memorial. The speaker is warned and is asked to refer to the memorial for cases and rules mentioned in their submission.
14:22: The judges again have a different view of the Hague rules compared to the Claimants. The speaker is visibly affected but moves on with their submissions.
14:26: The claimant is questioned on the addendums. The bench opines that an unfair burden is being put on the respondents and that the addendums are being ignored.
14:29: The claimant tries to counter these accusations but fails to do so satisfactorily. The bench has also given up on trying to get a clear answer from the claimants.
VCR-5
14:35: The respondent now starts to address the bench, starting off on a confident note
14:38: The bench questions the respondent on the arbitration proceedings arising out of the bill of lading, In response, the counsel cites the addendum but fails to submit why the bill of lading should not be followed. The bench says that there is no dispute at all, and even the consolidated arbitration proceeding should follow the bill of lading which is binding on both parties.
14:43: The counsel is unsuccessful in countering the questions regarding the law under which the parties are governed.
14:48: The bench questions the counsel on why the other rules regarding the appointment of three arbitrators should be ignored and why only the International Arbitration Act should apply and only one arbitrator should be appointed.
14:52:The bench is still unsatisfied with the answers given by the counsel with regards to consolidation of proceedings. The judges strongly feel that the facts will not change and will not lead to the re-laying of conditions after the consolidation of proceedings.
14:56: The counsel submits that there is ambiguity between the parties on the number of arbitrators and that there is ambiguity on which version of the SCMA rules will apply.
15:00: The respondents failed to take note of the claimants’ mistakes and did not mention the authorities in their submissions.
15:03: The second counsel on behalf of the respondents has taken the floor.
15:07: Fortunately for the respondents, the counsel continues to refer to their memorial for the efficiency of the court and to the relief of the bench.
15:10: The bench seems to be regretting their earlier relief, as the counsel fails to point out specific areas where the cases in the submission are mentioned in the memorial
15:13: The bench seems to be regretting their earlier relief, as the counsel fails to point out specific areas where the cases in the submission are mentioned in the memorial
15:16: The exclusion of the Hague Rules is pointed out to the counsel and the bench continues to grill the counsel on the same.
15:23: Despite an extension of time, the counsel struggles with the specific questions posed about the judgements cited. The bench states that the counsel’s interpretation and the tribunal’s interpretation of the judgement is starkly different.
15:27: The bench playfully mentions that time limits exist because of benches like them and are amused at the amount of time that has passed.
15:30: Despite the light atmosphere in the minute prior, the bench quickly switched focus and grilled the claimants in the rebuttals.
15:30: After also covering the sur-rebuttals, the judges seem satisfied with the conclusion of the round.
VCR-6: 909 vs 927
13:43: After a minor delay, the oral rounds have commenced. Hopefully the delay doesn’t cause any jitters or nervousness for the participants!
13:46:The judges begins their questioning the counsel about the jurisdiction of the Tribunal.
13:51:The counsel is trying her best to put forth their best arguments and satisfy the judges of their legal backing.
13:53: The judge quizzes the counsel about the difference between procedural law and procedural rules. A series of questions follow and the counsel manages to answer them, but the judges do not seem very impressed.
13:56: Oh no! The judge’s questions appears to have thrown the counsel off-track.
13:58: The speaker has been given an extra minute to conclude her submissions as she has run out of her time. She briefly summarizes her arguments.
13:59: The second counsel begins and the judges listen intently.
14:02: One of the judges is not convinced since the counsel is unable to satisfactorily respond to the questions. The counsel is once again unable to back up their claims with any credible material and is only arguing on the basis of made-up facts.
14:06: The judges listen with rapt attention, trying to gauge the counsel’s stance on the loopholes in their arguments. The counsel seems to be merely reading out her arguments as the response.
14:07: The counsel is asked to elaborate about the facts of the case that she is citing. She stammers her way through the facts, demonstrating how it is relevant with the concept of seaworthiness.
14:11: The researcher does not come to the aid of the counsel and the judges have to move on in spite of not having received a satisfactory answer.
14:13: The counsel falters and seems not very well-versed with the arguments. Time is also running out now!
VCR-6: “You’re beating around the bush counsel!” #nluoimam
— NLUO International Maritime Arbitration Moot(IMAM) (@NLUO_IMAM) March 24, 2022
14:22: The counsel for the applicant concludes after having received several extensions.
14:22: The counsel for the respondent begins. She seems confident and full of spirit! Let’s see if that continues!
14:24: Nerves getting to the counsel! The counsel is quizzed about the applicability of the UNCITRAL Model Law. The counsel falters and ends up reading the wrong section than the one that she originally intended to read. However, she recovered herself and continues gracefully afterwards.
14:28: The Honourable judges have been attempting to gain more clarity on the arguments presented by the counsel through a series of cross-questions.
VCR 6
14:29: The judges do not seem very impressed. The arguments presented by the counsel do not seem to have enough legal backing – the judges suggest the counsel to concede the issue and the counsel acts accordingly.
14:31: Would hate to be in that position but it looks like the counsel for the respondent is having a hard time being grilled by all the judges.
14:37: The first counsel stands down and the second counsel takes the floor. He lays down the structure of the issue he will be dealing with.
14:45: The counsel is asked to answer some hypothetical questions. The Speaker takes his time and calmly answers the questions. The judge interrupts him with additional inquiries. The speaker then fumbles for a while before responding in the hopes that the judge will be satisfied. The judges seem to have not bought the answers and they ask him to proceed further with his submissions.
14:48: The counsel has been able to present his arguments relatively smoothly so far with no interruptions by the judges.
14:51: Decision making takes centre-stage here! The counsel for the applicant begins with rebuttals for both the merits and the procedural issues. However, before she could begin, she is asked if it is good use of her time if she rebuts the jurisdiction again. She answers in negative and the judges think that she made the right decision!
14:58: The judges think that the respondents had a plan regarding what they wanted to argue. They had a better understanding of the law, however the claimant appeared very confused about the procedural rules.
15:03: The feedback session begins. The judges stressed on the importance of being well-versed with the procedural aspects of the case.
15:08: The judges expressed their dissatisfaction about the numerous extensions asked.
VCR-7: 911 vs 902
13:46: The Applicant takes the floor and begins with their submissions.
13:50: The Judges questioned the authority and rules under which the tribunal was constituted today. The inability of the counsel to understand the question correctly led to a heated discussion between the counsel and the judge. The judge further asked regarding the several means in which the arbitrator can be appointed. The counsel being unaware of the same exclaimed that their inability to answer is due to the fact that it is not in context of the question at hand.
VCR-7: The judge, astonished regarding the same, questions, “Are you saying that I am asking an irrelevant question?” #nluoimam
— NLUO International Maritime Arbitration Moot(IMAM) (@NLUO_IMAM) March 24, 2022
13:59: After a prolonged disagreement regarding the constitution of the tribunal today, and if the tribunal should continue to hear the proceedings. The Counsel is asked to proceed to the next limb of their submissions.
13:01: An extension of 3 minutes is granted to the applicant to finish their submissions regarding Issue 1 after the speaker for the respondent has concluded their arguments on the 1st Issue
14:03: The respondents now begin with their submissions.
14:07: Counsel for the respondents gracefully answers the questions which are posed by the judges regarding the rules of Arbitration to be followed in the case today, and the standing of the Tribunal today.
14:09: The Applicant is now called upon to make their submissions regarding the issue of whether Tawe is liable to Caspian?
14:13: The submissions being made by the Applicant are well backed up with cases, and the judges seem to not question the same yet.
14:15: An extension of 1 minute granted to complete submissions by the applicant’s first speaker. After this, the submissions will be concluded for the applicant by their second speaker
14:17: The second speaker takes the floor to address the issues of compensatory damage and the damages which both the defendants are entitled to.
VCR-7
14:23: While a technical glitch hinders proceedings for a short period of time, the counsel now sails smoothly through her submissions.
14:28: After smooth sailing on the first issue. The counsel now starts with the next issue.
14:33: The judges question the counsel on the basis of the factual statements admitting that the tribunal is not one which is lawfully constituted. However, the counsel agrees that having argued before the Tribunal, it is one which stands as per law. An interesting turn takes place here as this controversial statement made by the counsel implies that they concede on the question on the formation of the Tribunal
14:38: The counsel for the respondent begins with their submissions. The counsel is confident, and is gracefully making her submissions
14:44: Having completed submissions as Speaker 1 of the respondent, Speaker 2 takes the floor to further the case for their party.
14:46: The counsel continues to make his submissions stressing on the specific phrases mentioned in the factual background and how the interpretation of those will establish their case.
14:50: With the end of the submissions, it is now time for the much awaited round of rebuttals!
14:53: As the teams had exceeded their respective time limits, a minute was granted to each team for the rebuttals and sur-rebuttals
14:55: A further extension of 30 seconds to the applicant for rebuttals enabled them to end by making a strong case for their party.
14:57: The respondents, refuting the points furthered by the applicant in terms of appointment of arbitrators as well as the liability owed by the respondent, rest their case.
14:58: The rounds ended successfully with both the teams making their submissions with utmost brevity and confidence.
VCR 8: 916 vs 926
13:42: Session 1 starts with a bang as fresh faces greet us for this afternoon session. The Claimant’s first speaker presents their narrative.
13:45:First speaker of claimant engages on the issue regarding applicability of arbitral rules to this dispute. The Judge interjects the speaker to test their understanding of corresponding laws regarding formation of arbitration panels. But the Speaker calmly explains their understanding of the same.
13:49: The speaker loses their flow due to the interjection posed by the judge on Cruze’s liability. But the judge allows them to address the question at a later stage.
13:54:The Speaker expresses a clear disagreement with the Judge’s understanding of the case. However, their explanation satisfies the Judge and they seem convinced with the response of the counsel.
13:58: The Speaker expresses a clear disagreement with the Judge’s understanding of the case. However, their explanation satisfies the Judge and they seem convinced with the response of the counsel.
14:07: Speaker 2 from claimant side addresses many of the doubts posed by the judges in the first half. The judges seem impressed with the speaker’s submissions as they note down points furiously on paper.
14:09:The judge interjects with the exception of Act of God in Article 4 to ask if liability still arises then. The speaker concisely answers that there is an admitted act of negligence committed
14:21: The first speaker of respondents’ side argues that the composition of the arbitration panel may even include a sole arbitrator considering the seat of arbitration.
VCR-8
14:24: The first speaker of respondents’ side responds to claimants’ arguments that the Hague Rules don’t apply on the parties and systematically responds to each of the submissions made by the claimants.
14:25: The judge interjects the speaker by outlining their higher degree of liability to preserve the cargo. However, the respondent is unable to satisfactorily respond.
14:33: The judge asks a complicated question regarding the impact of port of shipment and arrival on the laws applicable which wavers the confidence of the speaker.
14:38: The speaker representing Tawe breaks down the issue in simpler terms to say that the existence of Caspian was not made aware to Tawe in any terms. Therefore, they cannot be held liable. The judge fascinated by this novel argument engages with the speaker on various aspects
14:45: The Speaker engages on the Himalayan rule to argue that they enjoy the said exemptions and thus restrict their liability. The Judge again enters into an argumentative conversation wishing to engage in a discussion of the contract
14:54: The Speaker goes on to argue the limitation of their liability according to the Hague Visby rules and the judge asks for clarifications on their case
14:56: The claimants present rebuttals and in a surprising turn of events, the judge interjects the speakers on their rebuttals.
14:58: The round concludes with an engaging bout of sur-rebuttals presented by the claimants.
— NLUO International Maritime Arbitration Moot(IMAM) (@NLUO_IMAM) March 24, 2022
DAY 1 | 24TH MARCH 2022
PRELIMINARY ROUNDS
SESSION 2
VCR-1: 913 vs 924
17:40: The Courtroom is set, and the teams are ready. Session 2 of the Preliminary Round has begun in full swing in the courtroom, with an unbridled enthusiasm.
17:41: The first counsel begins with a brief narration of the facts involved in the dispute.
17:43: After the narration of facts, the first counsel laid down the structure following which claimants would present their issues.
17:44: Counsel is presenting her arguments in a very assertive and yet, understanding manner. This is helping judges to grasp the presented arguments with ease.
17:51: First counsel is already done with her arguments with minimal grilling before the completion of time. Now, the second counsel has taken the baton from the first counsel.
17:52: The courtroom largely has a calm and positive atmosphere with an agreeable approach adopted by the judges towards the counsel’s arguments.
17:54: The second counsel is having an elegant bearing over his arguments but somehow it seems that he is narrating the grounds verbatim, as in reading it aloud from something
18:00: The second counsel moves to the prayer. Claimants managed to put forth their arguments in a composed and timely manner and left with a time of over 3 min
18:01: The claimants concluded on a positive note, with only a few questions from the judges. The floor is now taken by the respondents.
18:04: After narrating the facts, first counsel started with the submission of their jurisdiction towards this court. It seems that the respondents are careful of every minor detail with which they can grab bonus points.
VCR-1
18:06: The first counsel started his arguments by relying on the particular sections of the respective act which therein bought him a series of question from the one of the judges.
18:11: The counsel is presenting his arguments by wholly focusing on the sections and specifically attracting the judges’ attention on pages of their presented compendium. In return, judges are also responding to counsel’s request in an agreeable manner.
18:13: A successful example of interaction with the judges? The counsel concluded his arguments with an ease and asked for the permission of judges to hand over the podium to the second counsel. The first counsel sets an example of courtroom etiquettes by successfully interacting with the judges.
18:17: It can be presumed that judges are getting convinced with what is presented by the counsel as there were no incoming questions from judges.
18:18: Counsel is using an effective approach in her presentation by relating each particular cited clause or rule with the facts of the present case and thereby justifying what she is presenting.
18:19: Judges found the grounds used by second counsel contradictory with what was presented by the first counsel, and questioned on the same contradiction.
18:20: The counsel fortunately convinced the judge with her explanation and proceeded with her second submission with the permission of the panel
18:21: Difference in Approach! It seems that respondents have presented their whole case on clauses and rules already existing and with a few judicial precedents, that also in the latter part. In contrast, claimants had gracefully used their cited judgements while putting forth their arguments.
18:23: The counsel proceeded with her last submission by effectively using her allotted time.
18:26: The counsel concluded her deliberations in a productive and timely manner.
18:29: As the rebuttals began, claimants are back on track, brimming with new energy and enthusiasm as they prepare to submit their arguments. They strike the very basis of respondents’ pleas and tried to negate the whole argument presented by the other party.
18:33: By taking full 5 minutes, claimants consciously highlighted every loophole left by the respondents during their arguments.
18:34: Following the intensive deliberations and minimal questioning, the courtroom is done with the rounds in the second session.
VCR-2: 920 vs 906
17:40: The stage has been set and all counsels are fiercely looking forward to submit their arguments before the esteemed tribunal.
17:41:The first Counsel has started off with impeccable confidence and is structurally covering all parts of the issues. The Counsel is building their case on the concept of party autonomy and citing authorities for the same.
17:45: The arguments are being submitted steadily without any interruptions till now, which shows that the judges have probably not been able to find any inconsistency in the arguments. The confident smile across the Counsel’s face shows that she is well-prepared and will not breakdown anytime soon.
17:48: The Counsel is now using the Doctrine of Equality to build on her case and is quoting landmark judgements for the same. Additionally, the Counsel has emphasized on the appointment of 3 arbitrators in the matter. The judges have not countered the first Counsel with any question.
17:51: The floor has been taken over by the second Counsel from the Applicants’ side now, who is vehemently advocating for the damages caused to the applicants as a result of the negligence on the part of the respondents.
17:54: The Counsel has been abruptly interrupted by one of the judges as the judge has a question on the Hague Rules. The Counsel looks shaken and a little nervous by the interruption and is fumbling for words to frame her answer. She has again been countered by another question fired from a Judge who is slowly shattering the confidence of the Counsel which was initially at its peak.
17:58: The Counsel is however seen commendably keeping her calm and slowly picking up her herself to answer the questions bombarded at her. Finally, after a pretty long discussion, the judge has been appeased with the answer of the Counsel.
18:01: The judge of VCR 2 is not one that can be easily satisfied and he has yet again impeded the pace of the Counsel by throwing more questions at her on the applicability of the Rules in the matter. These questions seem endless as the judge is constantly quoting the agreement between the parties and shooting more questions on the arrangement.
18:05: With 3 minutes left in hand, the Counsel is struggling to reach the end of her arguments and is acing her way through. There comes another question in the way of the Counsel regarding the quantum of damages claimed. The judge is reiterating his question as it seems that the Counsel was unable to comprehend the question and is babbling in a different direction. Maybe a bit of nervousness kicking in?
18:10: It’s no surprise that the time has elapsed with the Counsel still left with some parts of her arguments to be covered but fortunately, the judge has been kind enough to grant extension of a couple of minutes. Satisfying one specific judge would not be a cake walk for the second counsel as he is adamant on eliciting a response from the Counsel for a question she doesn’t have a concrete answer for.
VCR-2
18:15: It has been over 5 minutes since the time allotted for the second counsel of the applicant’s side has lapsed and yet the arguments seem endless. She has finally been warned and given a time window of only 3 seconds to wrap up and conclude her submissions.
18:20: The mic has now been passed over to the Respondents’ side and the first counsel is presenting her submissions with utmost care and diligence.
18:22: Within few minutes of start of the submissions on the Respondents’ side, the Counsel has been interrupted by a Judge who is questioning the application of the law and rules in the instant case. The answer given by the Counsel however seems to have quenched the Judge’s thirst.
18:25: The Counsel has been allowed to proceed to the next issue after she successfully argued on the appointment of a sole arbitrator in this matter. She has cited quite a few landmark precedents too in an attempt to establish her case.
18:31: Congratulations, you got congratulated in a moot round. Now that’s rare! Owing to the judge’s streak of unlimited questions, the Counsel’s time has elapsed and yet she has been granted an extension of another 90 seconds to answer a question spun at her. She has been appreciated by the panel for the brevity and accuracy of her answer.
18:36: The floor has been taken over by the second speaker from the Respondents’ side. the oral submissions have hardly started and the judge is armed with a lot of questions which have the potential to wreck the Counsel’s basis of arguments. The Counsel has yet been able to maneuver his way out.
18:44: A few more questions balled at the Counsel and the entire direction as well as structure of arguments is shattered. The judge pointed out that the answer given by the Counsel failed to satisfy his curiosity and lacked specifics.
18:49: The Counsel has finally been able to put forth his submissions for a couple of minutes without being interrupted by the Judge and has sought permission to present his prayer but has been countered with another question. The Counsel is seen floundering in the pool of questions.
18:53: The Counsel has been granted an extension of a couple of minutes so that the Counsel can comfortably present their prayer.
18:57:The limelight has now shifted to the applicant side again for the rebuttal rounds and the Counsel is seen contending the arguments of the defendant on the ground of priority given to certain clauses over the rest.
19:00: It seems like the respondent side was caught off-guard by the applicant side with their set of questions. Additionally, the Counsel of the Respondent has been countered with questions from the judge too. The sur-rebuttal rounds have finally been concluded with a blast leaving a smile of contentment on the face of the judges.
19:05: The judges have been sent to a separate room for deliberation and all the participants are eagerly looking forward to the feedback session to hear about their performance. With the feedback session completed, this fruitful session has also come to an end. This battle has witnessed a very satisfactory end and has raised bars for all the other participants.
VCR-3: 923 vs 905
17:43: After a slight delay owing to network issues from several sides, oral rounds of session-2 have finally started and the first counsel from claimants’ side begins with their submissions
17:48: The counsel completes their first limb of submissions smoothly without any clarifications being sought by any of the judges
17:52: The counsel seems to be performing in an extremely convincing manner as there has been no questions from the judges
17:53: The judge asks the first question regarding what seaworthiness means which baffles the otherwise confident counsel but they quickly recover from it and answer appropriately
17:57: The counsel seeks an extension of 1 minute in order to conclude their submissions which was granted by the judge
17:59: The second counsel for the claimants begins their submissions dealing with issues 3 and 4 respectively
18:01: The counsel begins with their submission as to why Cruze is liable to Caspian under two laws – Contract Law and Tort Law
18:08: The counsel has been unfortunately struggling as the judges face severe network issues causing such delays.
18:11: As the judge joins back, the counsel resumes with their argument directing the panel to para 3 of the case study regarding how the loss has occured and how the duty of care has been breached by the Cruze itself
18:15: Donoghue v Stevenson makes its way everywhere! The counsel yet again focuses on the essentials of the duty of care and further moves ahead to establish the three essentials in great detail using the case law of the infamous Donoghue v Stevenson
VCR-3
18:20: The counsel proceeds with their last submission regarding how the damages are to be decided after getting an extension of a minute.
18:22: The first counsel for the respondents begins with their submissions regarding issues 1 and 2 respectively
18:25: The counsel draws the attention of the arbitrators towards para 10 of the issue, substantiating that IAA rules will always be considered over institutional rules
18:28: The counsel further submits that the respondents are not liable for a breach of duty, moreover they plead that firstly, the Hague rules won’t apply ex proprio vigore and secondly, even if it does it will not prevail over tailor-made rules
18:35: The second counsel for the respondent side begins with their submissions dealing with three contentions regarding the liability of two defendants
18:46: The counsel proceeds with their last submission regarding how the damages are to be decided after getting an extension of a minute.
18:47: The counsel is able to complete their submissions smoothly as no clarifications were sought by the panel.
18:59: Both the counsels smoothly concluded their rebuttals respectively and the judges look pleased.
19:25: The rounds are over as both the teams received feedback from the respective judges.
VCR-4: 925 v 919
17:32: Session started! Let’s see if the participants are as refreshed as we are after the break.
17:33: The first speaker from Team 925 (claimants) has taken the floor.
17:35: After a brief recap of the facts, the Speaker has now started going through his arguments with commendable grace.
17:39: The Speaker was proceeding with significant flair, but was interrupted by the Bench with a very basic question with respect to the moot: “Is this an institutional arbitration?”
17:40: And concessions have already started! The Speaker answered that it was an ad-hoc arbitration and not an institutional one, but when cross questioned by the Bench, the speaker conceded pretty quickly.
17:42: Even though conceding to the Bench on a point, prima facie, may seem like a sound way to save time, in reality it does just the opposite! From the looks of it, the Bench seems to have squared down upon the institutional or ad hoc point and does not seem to be in any hurry to proceed to the next argument!
17:44: The questions coming the way of the Speaker now pertain entirely to the SCMA rules – from full form of SCMA to individual provisions, the Speaker seems to be in quite a tough spot, having to address all sorts of questions only on the SCMA rules!
17:47: Every time the Speaker regains his composure, the Bench throws another mind boggling question at him on the SCMA rules! However, it should also be noted that the Speaker is maintaining his cool despite the aggressive questioning by the Bench.
17:53: The Speaker needed a little more time to make his submissions, even after taking an extra 5 minutes. It was granted on the condition that the time taken by the Speaker would be deducted from his co-counsel’s speaking time.
VCR-4
17:57: Apologies or Arguments? The Bench continues to go very hard on the Speaker, ultimately pointing out that there were more apologies than arguments from his part. It is remarkable that the Speaker didn’t lose his composure even after that particularly caustic observation made by the Bench.
17:58: The floor has now been taken by the second speaker from Team Code 925.
18:01: The Bench requires the Speaker to establish that the Hague Rules are applicable because that is something the team still needs to prove.
18:03: The Speaker seems to be struggling in the face of the calm but the Bench keeps throwing complicated questions at her.
18:10: The Bench is not cutting any slack to any speaker so far! But truth be told, the Speaker is not all that flustered with the violent questioning and seems to be handling the situation pretty well!
18:12: The Speaker was given the grant to proceed with her second submission since, as the Bench correctly observed, the first submission, subsequent questioning and the respecting replies were eating up too much of the Speaker’s time.
18:14: The Speaker requested for 2 extra minutes and was granted the same by the Bench.
VCR-4: This is IMAM, not IMM: The Bench jokingly pointed out to the Speaker that they were not in a mediation and were not under any obligation to agree with her! #nluoimam
— NLUO International Maritime Arbitration Moot(IMAM) (@NLUO_IMAM) March 24, 2022
18:19: The Speaker contended that the Hague Visby Rules are applicable, and was immediately pounced upon by the Bench who insisted that she provide a case law to substantiate her argument, going as far as to declare that they would give her the argument to her if only she could provide just one argument in her favour. Unfortunately, the Speaker argued on the point of ambiguity and couldn’t provide a suitable case law in her favour.
18:27: The Speaker proceeded to her Prayer, however, the Bench categorically declared that though they didn’t have any more questions, they were not convinced by the team’s arguments.
18:29: The first speaker from Team Code 919 takes the floor now.
18:34: Looks like the Bench has decided to give all the Speakers a particularly bad time! The Speaker tries very hard to convince the Bench of his arguments, but the Bench seems to be absolutely against everything the Speaker is trying to propose and refuses to be convinced easily!
18:39: The Courtroom atmosphere is getting more heated by the minute! The Bench refuses to see the Speaker’s point, the Speaker refuses to see the Bench’s point!
18:42: “Counsel, are we correct in understanding that you are representing both the Carriers?” The Bench asked the Speaker, to which the latter said yes. But the follow up was trickier than he expected it to be and the Bench had the upper hand right then!
18:47: The Speaker managed to get himself an extension but does not seem to be able to convince the Bench and the Bench keeps throwing more and yet more complicated questions at him!
18:55: Speaker 2 takes the floor now.
19:02: The back and forth questioning and answering continues between the Bench and the fourth Speaker of the round, which amazingly, the Speaker handles with astonishing flair and a smile!
19:09: With the arguments going strong on the sea worthiness or the un-sea worthiness, the Speaker, in the midst of all this, has managed to get an extension of 3 minutes! But looks like most of the extension time will go into the questions that the Bench is propelling at him!
19:17: The Speaker seems to be able to convince the quite well, considering the general trend of the Courtroom.
19:19:The two teams mutually agreed to not engage in the rebuttals or the sur-rebuttals, so the moot round essentially came to an end here itself. With this, we take a short break and we will be back for our third session later this evening.
VCR-5: 910 v 909
17:30: Round begins after the break with full enthusiasm in reciting the facts by the claimant
17:36: The counsel leads the tribunal through their written memorial referring to the UNICTRAL rules and the SCMA rules in particular.
17:39: The bench questions the counsel on why the SCMA rules should prevail over the other rules mentioned. The counsel is further questioned on Section 32 of the SCMA rules and its relevance in the current dispute
17:43: The counsel submits that English Law governs the contract and under English Law, the Hague Rules mandatorily apply.
17:49: Are we seeing a relay race here? The first counsel for the claimant happily passes on the questions asked to them to their co-counsel and stands down. The bench promises to ask these questions to the co-counsel. The counsel silently wishes luck to their co-counsel to deal with the bench’s grilling!
17:52: The co-counsel takes forward the enthusiasm shown by the first counsel and begins with their submissions
18:00:The counsel is questioned extensively on the applicability of the Hague Rules on states that are not party to these Rules. The Bench opines that even if the parties intend for the Hague Rules to apply, if the countries are not party to these rules, these rules cannot apply.
VCR5: Internet Explorer in Courtroom? In an amusing situation, the counsel pauses for 30 seconds while answering a question and the judges ask the counsel if they are waiting for their internet page to load to answer their question! #nluoimam
— NLUO International Maritime Arbitration Moot(IMAM) (@NLUO_IMAM) March 24, 2022
18:10: The counsel is questioned on whether the addendums were not approved by the claimant at the time of the contract.
18:14: The counsel for respondent is visibly nervous after the thorough grilling of the counsels for respondents. They begin regardless.
18:20: The counsel’s fears have come to life, where the judges have grilled them on where the procedural law prevails over the procedural rules. The counsel stands down having three minutes of time left.
VCR-5
18:24: The counsel on behalf of respondent seems more confident, and deals with the issue of applicability of the Hague rules.
18:26: The counsel carries on the streak and deals with questions calmly and submits relevant authorities to the bench.
18:33: After three minutes of confusing questioning and equally confusing answers, the judges finally understood the submissions of the counsel with regards to the applicability of the Hague rules. The judge laughingly praises the counsel for their language.
18:40: The counsel seeks an extension of 3 minutes to conclude their submissions.
18:45: The claimants now proceed with the rebuttals after a heated 5 minutes of grilling by the bench.
18:50: The round concludes peacefully, with calm sur-rebuttals by the respondent.
VCR-6: 921 v 911
17:32: Welcome back from the break! The rounds have commenced on time!
17:33: It’s not even been 2 minutes and the judges have already begun a line of questioning on the amount claimed and on the facts of the case.
17:35: The counsel has begun presenting his points and in spite of being questioned about the case’s complexities, he proceeds with confidence.
17:40: Troubles brewing already? With unfettering zeal, the counsel explains how there is a liability on the part of the first defendant to provide a seaworthy vessel. However, after the judges pointed out the loopholes in the legal arguments put forth by him, the counsel’s initial confidence seems to be fading.
17:43: The counsel relies extensively on the Hague rules. Time seems to be running out when the counsel is asked to read a specific rule. The judge steps in and saves the day by saving precious few minutes by reading it himself.
17:45: With just a few seconds left, the counsel attempts to redeem himself by presenting all the relevant Hague rules at his disposal to make his case stronger.
17:48: The Hague rules have a central role in the counsel’s arguments. The judges’ questions pour in and they seem satisfied with the counsel’s answers as he argues his way through all of these questions.
17:52: The second speaker takes the floor now. He first states that he will establish that being a sub-bailee, the second defendant was under a contractual obligation to provide a seaworthy vessel and then that they are not exonerated from their liability.
17:54: The judges pointed out and asked the counsel about numerous legal technicalities, prompting him to come up with a number of compelling arguments. The counsel provided detailed responses to the judges.
18:04: The judges posed multiple questions to the counsel regarding how hurricane is not a common weather phenomenon which were answered by the counsel in a not a very convincing manner.
18:06: The counsel seems perplexed after being questioned on the concept of seaworthiness. The counsel concedes.
18:09: Just like the first counsel, the second speaker also speaks extensively about the applicability of the Hague rules. When asked about unilateral incorporation of a specific rule, he contends that it was incorporated by the consent of all parties.
18:11: Having exhausted his time, the speaker was granted an extra minute by the judges to summarise his arguments.
18:12: The counsel representing the respondent begins.
18:17: The counsel seems unfazed in spite of being grilled by the judges about the crux of her contentions. She succeeds in maintaining her calm demeanour and the judges seem satisfied by her answers so far.
18:18: The counsel puts forth her arguments. The judges do not seem all that convinced right now with these arguments and ask her to move on to the second issue.
18:21: The counsel has been confident in her responses, and the judges have been impressed by her advocacy skills, but the legal technicalities of her arguments have been questioned.
18:24: The counsel starts rushing, given that her time is going to be exhausted soon.
18:25: Time has run out but looks like the counsel cannot escape the judges’ grilling without giving satisfactory answers.
18:26: The counsel continues citing cases although her time is up. The judge interrupts her to question which clause will prevail in the Combicon bill of lading.
18:29: The counsel seems to be unsure about a specific case but her teammates come to her rescue and she gets back on track with her line of argumentation.
18:31: The second counsel steps in to proceed with the rest of the arguments. She starts with establishing how she will be advancing her arguments.
18:32: Wrong Name but Right Arguments! The counsel is thrown off by the questions and addresses herself as the counsel for the claimant. She is corrected by the judges and is visibly nervous.
18:34: “Your stance is conflicting”, the judges point out. The counsel justifies this by stating that there is a printing mistake in the memorial. The judges do not seem impressed at all.
18:37: The rounds come to an abrupt halt since one of the judges faces technical difficulties and loses his network connectivity. The counsel sees this as an opportunity to skin through her arguments again to ensure that she’s thorough in all of them.
18:40:The counsel doesn’t seem very confident. The judges are also not on the same page with the counsel and question her further.
18:41: The judges don’t seem to be convinced by the counsel’s arguments. ‘There is a clear breach of your obligations!’ Nevertheless, the counsel tries her best to stand her ground.
18:45: The counsel is unable to substantiate her points very strongly. The judges do not seem to find credibility in her legal representations. The judges also have to patiently explain several questions to the counsel since she’s unable to comprehend them promptly.
18:46: The speaker is clearly struggling and having a tough time coming up with relevant cases to substantiate her case. She informs the judge of the lack of availability of any.
18:50: The counsel comes to the end of her submission. The judges do not seem impressed.
18:51: Somebody has been attentively listening to the respondents! The rebuttals begin. The counsel ruthlessly decimates the credibility of the respondent’s arguments. There is a lot of debate on whether the word ‘shall’ should be interpreted as ‘must’ or ‘may’.
18:53: The sur-rebuttals seem rather dull as compared to the rebuttals. The counsel herself does not seem very sure about them and takes a fairly large amount of time to put a single point across. A lot of questions were left hanging.
18:56: The judges discuss the shortcomings of the legal arguments put forth by the teams in order to be able to provide detailed feedback to them.
19:00: With this, the judges gave valuable feedback to the participants and we reach the conclusion of the second session of today’s oral rounds
VCR-7: 904 v 916
17:30: Welcome back everyone! It sure seems like the applicant has come refreshed as she begins with her submissions regarding the formation of the Arbitral Tribunal with very high energy.
17:32: The first question which comes the way of the counsel is the dilemma between applicability of SCMA Rules or International Arbitration Act in the present case. The counsel handles the question beautifully, while pointing towards cited authorities to back her arguments.
17:42: Due to the paucity of time, the counsel is asked to summarise her arguments in 30 seconds. The bench appears to be adhering to the time strictly now.
17:43: Co-counsel takes the floor. He first addresses the question regarding liability of defendant.
17:45:The counsel submits that Hague rules takes precedence over any other contractual obligations. When asked to present authorities for the same, the counsel was confidently able to convince the Tribunal with the cited judgement.
17:48: Inconsistencies cropping up! While the first speaker submitted that the contractual obligations will prevail over the law, the second speaker stated that the law prevails over the contractual obligations. The Tribunal questions on the standing of these contradictory statements being made by the counsels for the Applicants.
17:50: Having beautifully argued to clear the position of the Applicant party on the contradictory statements made before, the counsel proceeds to the next argument regarding the damages to be paid by the defendant to the aggrieved Applicant.
17:53: The Tribunal puts forward a tricky question as to why the Applicant wishes to seek restitution as a damage and not compensation. As a reply to the same, the counsel explains the same by clarifying that they are seeking restitution ad integram as a remedy.
VCR-7: “Arbitrators are creatures of contracts” exclaimed the Tribunal. He stressed on the fact that they do not have power to strike down obligations like a court.#nluoimam
— NLUO International Maritime Arbitration Moot(IMAM) (@NLUO_IMAM) March 24, 2022
17:58: The counsel submits that the other Tribunals have struck down provisions previously, and so the present Tribunal must consider the same with respect to the liability limitation clause and ordering for the appropriate remedy.
17:59: Continuing to stick to the time limit, the counsel is asked to briefly conclude his submissions in 30 seconds.
18:01: The speaker for the respondent begins with her submissions. She first submits that the International Arbitration Act prevails over the SCMA Rules. The Tribunal questions on the unclear stance of the counsel on the number of the arbitrators and the default position of the law with respect to the rules which will prevail to govern the issue. The counsel is visibly perplexed, and is unable to convince the Tribunal regarding her submissions.
18:08: The counsel assures that if left with time in the end, she would return to the queries of the Tribunal on this issue and would be more than happy to assist the Tribunal.
18:09: The counsel now proceeds to the next issue on the question of liability.
18:10: The Tribunal questions one of the authorities cited by the counsel pointing that the case being cited is a bit different than what the counsel states. The speaker clarifies the same, and comfortably moves forth with her submission.
18:15: Proceeding further, the counsel now moves on to the question of the quantum of damages. For the same, reliance is placed on the Hidalgo Bill of Lading.
18:17: The counsel rests her case, and the co-counsel takes over. She begins by addressing the conflict of laws in the present case.
18:24: The counsel sails smoothly to her last submission regarding the liability of the defendants and the quantum of damages. She is able to establish her argument with appropriate authorities.
18:30: Further substantiating arguments for the respondent, the counsel concludes by establishing that Bill of Lading overrides the Hague Rules.
18:32: The rebuttals begin by the Applicant outrightly refuting all the arguments given by the Respondents. The rebuttals made were to the point, and catered to all the submissions made previously by the opposing counsels.
18:38: The respondent party, in their sur-rebuttals, relied on the seat of arbitration being Singapore and therefore establishing that International Arbitration Act will be applicable. The counsel also clarified that they are not arguing the complete non-applicability of the Hague Rules.
18:39: The rounds ended successfully with the parties having presented their arguments to the best of their abilities.
VCR-8: 918 v 922
17:37: The judge starts with a question on whether the tribunal has locus standi but the speaker refuses to engage on the question and instead continues with their submissions. Quite a nervous start to the rounds after the break.
17:42: The counsels have a long way to go! The judge interjects with another question asking whether this is a validly constituted panel and can thus hear the dispute. A long pause ensues. The panel looks to be quite a tough one to impress.
17:44: Buckling under pressure? After bouts of complicated badgering by the panel, the speaker is finally forced to concede on the first issue.
17:49: The first speaker from applicant’s side finishes 5 minutes before time. Were they in some sort of hurry?
17:56: The second speaker engages in a classroom discussion of tort law and bailment in contracts eliciting a critical look from the panel.
18:12: The first speaker from the respondent side argues on the issues of composition of arbitral panel, and whether they are liable for maintaining seaworthiness of vessel. The bench appears to be not asking that many questions in stark contrast to the first half of the round
18:19: The second speaker argues on issues of their limited liability and quantum of compensation. The counsel’s constant requests for permission to move on to other issues elicits a mildly annoyed response from the panel.
18:27: The Applicants present their rebuttals and try to undermine the respondents’ arguments but the panel seems unsatisfied.
18:29: The respondents present their sur-rebuttals laced with accusations on the applicants marking the end of the rounds.
— NLUO International Maritime Arbitration Moot(IMAM) (@NLUO_IMAM) March 24, 2022
DAY 1 | 24TH MARCH 2022
PRELIMINARY ROUNDS
SESSION 3
VCR-1:911 vs 906
20:06: The Courtroom is set, and the teams are ready and we are back with Session-3. The Preliminary Round has begun in full swing in the courtroom, with an unbridled enthusiasm.
20:07: The first counsel started by laying down the structure of their submissions before proceeding with substantive arguments
20:08: The counsel presented her submission concerning the jurisdiction aspect of the case and found herself in the series of questions from one of the judges of the panel.
20:11: The first counsel answered the questions and clarified the doubts of the judge in a graceful manner as if she was waiting for the particular question to be asked upon and it seems that the counsel is succeeding in convincing the judge
20:13: After laying down the factual as well as the statutory context for her justification against the question, the counsel puts forth her arguments by citing the judicial precedent too which further shows her preparation level for the incoming questions.
20:16: One of the judges is busily endeavoring to analyze the arguments of the counsels, and pouring the questions on factual context as well as on the legal context.
20:17: Without losing her calm, the first counsel is consciously listening to every question and gracefully responding by putting their grounds
20:19: TIME’S UP! Despite maintaining the upbeat atmosphere in the courtroom while putting forth her arguments, the first counsel loses the stance over her time liberty and now time is up.
20:20: One of the judges seems to be very impressed with the answers and the clarity of concept displayed by the first counsel. They further gave her extra time of 2 minutes to complete her argument.
20:22: Despite the time being up, questions still remain and the judge is now interrogating the counsel by asking them a series of questions in rapid succession. Meanwhile, the counsel does well to retain her composure.
20:24: Counsel further got the extension of 2 minutes and by relying on the judicial precedent, she tried to clarify the inquiries put forth by the judge.
20:26:The counsel concludes on a positive note, with the series of questions from one of the judges. The floor is now taken by the second speaker.
20:28: The second Counsel is presenting her arguments in an assertive manner by relying on the clauses of the particular act. This was immediately followed by questions from the judges, asking her to justify her state in the present case.
20:30: The counsel is confidently answering the enquiries of the judge. She is able to stay calm and composed in the courtroom and it seems like nothing can faze her right now.
20:32: The counsel is further enhancing the status maintained by the first counsel by deliberately answering each and every enquiry. The claimants may end up retaining some bonus points from judges for this significant improvement in courtroom ethics.
20:35: One of the judges seems to be satisfied with the presentation of her grounds and asked her to proceed with the second argument. But the point which isn’t get noted is that the second counsel asked to proceed with the “second defense” which if marked by judges can cost her points.
20:38: One of the judges encircled the second counsel with an array of questions and asked her to put forth some clarity in her arguments
20:40: TIME’s UP and the second counsel did not ask for an extension of time.
20:44: The second counsel is clarifying each and every enquiry of the judges in a balanced and prepared way. After intensive deliberations and questioning from the judges, the second counsel successfully completed the claimants’ case.
20:46: Respondents have now taken the podium and they have started presenting their stand in an elegant and professional manner.
20:47: The Respondent speaker has stated in a self-assured manner but the judges have been fairly active in asking the questions.
20:49: First counsel presented her answers in an assertive manner and deliberately attracting the attention of judges towards her assertions.
20:53: Fantastic display of composure! The way the first counsel is handling the incoming series of questions from the judges, it is reward worthy!
20:56: The Counsel is well versed with the judicial precedents as well as the clauses of concerned Act concerning her case. This can be seen with her elegant bearing and command over the arguments she is presenting.
20:59: The judges asked the counsel to repeat her stance over SCBA rules, to which Counsel presented her position ended with the satisfaction put forth by the judge
21:01: Counsel finished her part of arguments and asked the second counsel to take the podium.
21:02: The second counsel started his grounds by specifically clarifying the set of issues he will be dealing with, which further added to the clarity in response to the questions posed before him
21:04: Judge asked the second counsel to put his stance over ‘Special Clause’ aspect.
21:06: The counsel moved towards his grounds with the level-headed bearing in his assertions and victoriously satisfied the judge in his inquiries.
21:08: The counsel seemed very focused on whatever enquiry is put forth by the judge and preventing himself from missing the track of conversation.
21:10: The counsel is deluged with a number of question but he is still maintaining his calm and has not fazed out with questions coming in from all directions.
21:11: Before answering any question, the counsel makes sure that he understood the concerned context that the Judge has asked him to deliberate upon by repeating back the question of judge in a succinct way.
21:13: The Counsel proceeded toward his third ground by pleasing the judge with his stand after questions were raised regarding that ground.
21:18: The counsel seems to be very clear in his arguments and he is constantly trying to make the judge understand his points.
21:21: Time’s up! But the Counsel is engaged in presenting his stake and has managed to convince the judges to recognize his stance, without asking for time extension. Clever way of bargaining time, we must say!
21:24: The counsel completed his arguments but the queries of one of the judges isn’t completed with their questions. This is making this round more and more interesting.
21:26: We will now move on to the rebuttal and sur-rebuttal session following some very thorough deliberations and counter-questioning.
21:31: Rounds have been completed successfully. Judges have gathered in the judges room to discuss the marking scheme and feedback that will be provided to both teams.
VCR-2: 916 vs 905
20:05: The battle round 3 has begun with the first counsel from the applicant side taking the lead and is presenting the facts of the case concisely. She has now proceeded to challenging the number of arbitrators that should be appointed in this particular case.
20:09: Things have kicked off to a rocky start! The Counsel is carefully framing her arguments however the judges find the authorities cited vague and demand for more particulars and specifics of the authority. The answer given by the Counsel seems to leave the judges baffled and they seek for more clarification but seem disappointed given the ambiguity of the answer.
20:14: The judges look in full form and are prepared to throw questions at the Counsel. The Counsel has now been interrupted by the judge on the Liability and quantum of damages on the basis of HVR. The Counsel seems impatient to conclude her submissions and pass the baton to the second Counsel.
20:20: The baton is being carried by the second Counsel who is steadily walking through her arguments carefully drafted on the liability as set out under the Hague Rules.
20:25: The Counsel is now aggressively and firmly advocating for the applicability of the HVR in the particular case citing certain English law cases along with the Bill of Lading which mandate the applicability of such rules .
20:28: The issue of the quantum of damages as claimed by the applicants is now being presented and pondered upon. The judges have not yet interrupted the Counsel to counter any of the arguments made so far by the second counsel. There comes a query, every now and then, from the judges who are questioning the entire basis of damages claimed given that the market value has not been specified anywhere.
20:34: The time period allotted to the Counsel has come to an end but her spirit has not. She has sought an additional time window of 30 seconds to wrap up her arguments and has successfully completed the same.
20:37: The focus has now shifted to the Counsel of the Respondents who is briefly outlining the arguments and issues she intends to cover in the time allotted to her.
20:40: The Counsel is seen quoting an English judgement to emphasize on the venue or seat to be taken for this particular case. The judges however seem a little put off by the reliance of the Counsel on a particular authority which has thoroughly confused them.
20:48: The floor has been passed on to the second counsel now who is primarily arguing on the quantum of damages for the second defendant claiming that the Hague Rules cannot be made applicable and cannot be made mandatory either.
20:54: One of the judges has taken the lead and posed a question on whether the parties can contract out of the Bill to which the counsel answered in negative.
20:58: The counsel is harping on a landmark precedent which is quickly countered by the judge who does not seem satisfied with the details of the authority of the case and is demanding for more. The counsel does not have a prompt answer to the question and has requested for a minute to get back on it.
21:03: There is a creative turn in the course of submissions presented by the Respondents’ counsel who is extensively talking about implied consent of the parties involved in the case.
21:05: The Counsel is not limiting her arguments to just her memorial but is urging the judges to refer to the memo of the claimants too and is contending the same on the basis of lack of fact and proof. Additionally, the Counsel has come up with the answer to the question which was posed to her earlier by one of the judges and the same has been satisfactorily accepted by the judge.
21:08: The battle of rebuttal has commenced where the Counsel of the Applicants is firing at the Respondents saying that their stance is not clear and that they are just shifting blame to save their side.
21:11: The respondent side seems to be well-prepared with answers to the queries put forth by the claimants in the surrebuttal rounds.
21:15: The verbal battle between the parties has come to an end but the judges are in a fix deciding which side outweighs the other. There is no denying that both the sides put foth their best cases and fought tooth and nail to grab a place for themselves. With that, we come to an end to first enthusiastic day of the preliminary rounds of 9th IMAM. We hope to see the participants fight out their sides with more vigour and energy in the following days of the event.
VCR-3: 919 vs 922
20:08: The counsel for the claimants begins with their submissions stating the four contentions they will argue upon.
20:09: The judge asks the counsel to summarise the facts of the case in only two minutes
20:10: The judge asks the counsel regarding what further steps they will take if this particular issue regarding the arbitration fails. This fazes the counsel into utter and shocked silence
20:13: The judge continues with their query by asking for clarification regarding the definition of substantive law its distinction from procedural law. Much to the disappointment of the judges, he counsel could not deliver a satisfactory answer
20:16: The judges do not agree with the interpretation of the statute quoted by the counsel with no further substantive backing. In response, the counsel pleads to respond to this question later.
20:18: Due to the paucity of time, the counsel skips to the last limbs of their argument regarding deciding the liability of the defendants
20:19: The judge asks the counsel to relay their arguments primarily on the facts of the case rather than the law backing it up
20:21: The counsel seems unfazed even after the chain of questions put forth by the judges and the counsel smoothly puts forth their last limb of submissions
20:23: The judge continues to question the counsel regarding the facts of the issue about the diligence of the claimant itself. This throws off the counsel and the counsel is visibly shaken because of this intervention by the judge.
20:26: Who am I representing? What am I doing? The counsel is unable to respond to the question asked by the judge regarding who the counsel is actually representing – defendant 1 or defendant 2
20:27: The counsel makes a final attempt to satisfy the judges after getting a considerable period of extension in addition to the allocated time
20:29: The second counsel for claimants makes their submissions regarding issues 3 and 4 respectively.
20:31: The counsel attempts to establish sub-bailment in order to establish liability and the judges seem to consider this response satisfactory
20:33: The counsel furthers their submissions stating that the burden of proof is on the defendants in this particular case citing the Hague rules. However, the judges ask for more clarification as they are not convinced with the counsel’s argument.
20:36: The counsel stands confident amidst a chain of questions thrown in their way by the judges
20:37: Even after several attempts made by the counsel to establish the relevance of the Hague Rules in the two bill of ladings, they fail to give a satisfactory answer to the judges
20:39: The judges continue to quiz the counsel regarding the particular clauses mentioned in the bill of ladings
20:53: The counsel clubs the multiple questions asked by the judges regarding the need for a sole-member arbitration tribunal but fails to provide any merits for their arguments
20:57: The judge points out towards the contrasting arguments provided by the counsel regarding the SCMA rules and Hague rules which throws off the counsel a bit
21:00: The judge asks the counsel regarding the doctrine of approbation and reprobation but the counsel was unable to answer
21:06: The arbitrator asks the counsel to provide for a similar case where the Hague laws were not applicable to which the counsel responds with detailed arguments stating two precedents but the judges do not consider it as a satisfactory answer and consequently continue to quiz the counsel
21:09: Even after several attempts to clarify their arguments, the judges still consider the counsel’s case weak and contradictory to some of their own contentions
21:13: The second counsel for respondent begins with their submissions
21:21: The judge asks the counsel to state the relevance of the specific clauses given in the bill of lading. In response, the counsel managed to give a satisfactory answer
21:23: The counsel directs the panel’s attention towards the case study to point out when exactly the loss occured which resulted in no liability for Respondent No. 1
21:24: The judges though, do not agree with the counsel’s argument, as the counsel could not establish that they are to exonerated of the liability
21:26: On a lighter note, in response to the counsel’s defence that even if they are liable it will only be limited liability and that too, be considered as a sympathetic act by the respondents, the judge mentions that there is no room for sympathy in a courtroom
21:33: The counsel takes the judges through the last limb of her submission stating that they are not liable to pay for any of the converters as they have already reached agreement as per the mentioned contract
21:35: The Judge reviews the 2 questions asked to the first counsel for claimants which they were unable to answer before and they seem satisfied with the counsel’s response now
21:43: The counsels from both the sides conclude their respective rebuttals
21:50: That’s it for today. We will see you again and we will provide even further updates from tomorrow afternoon onwards. It’s bye-bye for today but with a promise to meet again tomorrow.
VCR-4:909 vs 924
20:05: Aaaanddd we are back with Session 3 of the first day here in VCR-4 of IMAM 2022
20:05: The first speaker of team code 909 has taken the floor and he is straightaway briefing the bench about the facts
20:09: Speaker 1 has dived into her submissions, but unfortunately, no small detail ever escapes the sharp vigilance of the Bench. The questions, as is naturally expected, have also started along with the submissions!
20:16: The Speaker continues with her submissions, while the Bench throws an occasional clarification and question at her.
20:18:The Speaker has concluded her submissions only to be met with the dissatisfied remark of the Bench that their question has not been answered.
20:20: Speaker 2 has taken up the floor now, taking up from where her co-counsel ended.
20:25: Speaker 2 continues with her submissions while the Bench keeps questioning her. Sea worthiness being the centre of discussion in the Courtroom at the moment, the questions and answers mostly revolve around that point.
20:36: The second speaker has almost concluded her present submission, but the Bench keeps throwing innovatively complicated brain teasers at her!
20:39: The Bench requires the Counsel to corroborate her present argument with her written submissions. The Counsel, however, was unable to present the same in her written submissions, thereby inviting a “Why should we listen to you when it is not there in your written submissions?” from the Bench.
20:42: The Speaker has concluded her submissions.
20:46: Speaker 1 of Team Code 924 has taken the floor now.
20:52: The Speaker is going strong with his arguments and has captivated the Bench with a relevant case law that he is citing pertinent to his case.
21:00: The Speaker continues with his earnest efforts to convince the Bench, but the Bench will not be swayed that easily. To make things even more interesting, the Bench is actually giving the Speaker a factual situation as an example to better understand his argument and simultaneously making him apply the logic of his argument to their factual situation!
21:02: The Speaker has been given the permission to continue with his submissions when the Bench declared that they weren’t convinced, despite the counsel’s best interests
21:09: The heated exchange continues. The Bench questions the Speaker on what he meant by the General Principles of Contractual Construction, when the former made a reference to that, but when the Speaker was unable to answer to the satisfaction of the Bench, the latter made the very pointed accusation of the Speaker squandering the time of both the Bench as well as the Speaker himself.
21:15: The second speaker of Team Code 924 takes the floor.
21:27: The Speaker tackles all the questions coming her way without skipping even a heartbeat!
21:30: The Bench continues to throw all sorts of questions, and while the complexity of the questions does not go down, the Speaker manages to handle all the questions to the best of her abilities, with impressive grace and incredible self assurance!
21:37: The Speaker has run out of time, but looks like she had more to say. But unfortunately, even her extension has run out!
21:38: The Bench does not feel there is any need of any rebuttals anymore, and the teams did not have any specific rebuttals to make either, except for a clarification from one team which the Bench addressed.
21:39: With this, the round comes to an end for today. We will tune in again from tomorrow afternoon! Cheerio!
VCR-5: 927 vs 913
20:03: The last preliminary round for the day starts with a bang and the judges seem excited for the submissions by the participants. Whether it is because it is the last preliminary round for the day or for the grilling of the counsel, we will never know.
20:06: It seems to be the latter, as the judges within three minutes have managed to question the very premise of the counsel’s submissions.
20:10: The counsel is extensively questioned on the seat of arbitration and Rule 32 of the SCMA Rules.
20:18: Although the bench seems dissatisfied with the counsel’s submissions on the applicability of the Hague rules, the counsel’s knowledge of facts have apparently impressed the judges.
20:21: The co-counsel begins the submissions and tries to keep up with the flow that their co-counsel had set 15 minutes earlier.
20:24: The bench questions the counsel on the liability of the sub-bailee to the sub-bailee. They are further questioned on the master-servant relationship between Tawe and Cruze.
20:30: Immediately after the counsel’s answer, the bench nudges the counsel towards the right answer but the counsel doesn’t take the bait.
20:32: Face-Palm! The bench is visibly frustrated, with both of them face-palming at the counsel’s answers.
20:38: The counsel then proceeds to make their submissions regarding the unseaworthiness of the ship and the issues of due diligence
20:45: The counsel is inching towards the right answer, but fails again. The bench continues to grill the counsel on the limitation of liability.
20:51: The counsel for respondent begins with their submissions now.
20:54: The bench questions the counsel on the contradictions between the application of the Hague Rules and the limited liability clause being valid.
20:59: The counsel answers questions regarding the applicability of Equity under English Law with regard to duty of care and the absolute denial of relief to the claimant
21:03: The bench continues to grill the counsel on the basics of the addendums and the Hague Rules.
21:10: After repeated questioning on whether the addendums will prevail or the Hague Rules, the counsel took the bait and changed their answer. The bench then grilled the counsel on the new answer after observing the change in their stance.
21:16: The co-counsel for the respondent begins the submission of their issues on arbitration.
21:20: The bench questions the counsel on whether the SCMA rules deal with multi-party arbitrations, like the current dispute before the tribunal.
21:25: The SCMA rules and the procedure laid under it has been extensively discussed back and forth by the judges and the counsel with regards to the number of arbitrators to be appointed. The bench concludes that there is no inconsistency between the parties’ agreement and the SCMA Rules.
21:31: Despite the late hour, both the bench and the counsel seem as enthusiastic as ever. The counsel refers to the breach of contract as a draconian effect. The judge remarks that a draconian effect only applies to society and not a commercial contract.
21:37: The bench grills the counsel on the damages that they claim to not have liability for.
21:45: The respondent post conclusion of submissions thanks the bench for a patient hearing and kind questions. The bench playfully remarks that it was an honour troubling the counsel with questions
21:49: The counsels move forward with respectful rebuttals and conclude. The bench also spares the counsels from grilling in the rebuttals.
VCR-6: 915 vs 918
20:03: Welcome back! The rounds have commenced after a short break! We hope that the judges are feeling refreshed as well
20:05: All of the teams are ready to put forth their arguments with renewed vigour and enthusiasm.
20:08: The judges were finally able to locate the case. However, precious time has already been lost in what could otherwise be considered to be a fairly simple point to get across.
20:11: The counsel was asked to skip this on the issue on the basis of kompetenz-kompetenz and move on to the next issue.
20:15: With the competition proceeding, we can see the counsel asking the judges several times to refer to the memorial which results in time running out.
20:17: Slowly and steadily, we are getting there as this round has proceeded at a rather slow pace till now.
20:19: Exactly one minute was granted to the counsel to summarise the rest of his submissions. Flustered, he attempts to condense months of research into a few sentences to convince the judges in his favour.
20:21: Just as he concludes, he is quizzed about the Hague rules and whether or not they have the force of law. His request for extension is also denied while the judges do not look very convinced with respect to his arguments.
20:22: Speaker 2 joins to address issues 3 and 4.
20:25: The speaker takes the help of case laws to assert that damage could have been avoided had the respondent provided the seaworthiness of the vessel.
20:26: The counsel directs the attention of the judges to the wrong page numbers. Again, precious time is lost looking for specific citations.
20:30: The speaker faces a bout of questions regarding the agreed terms between the claimant and respondent.
20:34: Albeit not very skillfully, the counsel manages to answer the judges questions. The rounds proceed with the counsel seeming dazed throughout. The counsel again makes the mistake of mentioning the wrong citation. Wrong Citation? We have all been there!
20:36: The judges deny granting the counsel one and a half minutes more. They ask him to wrap it up within a minute. The counsel makes it evident that he’s not happy about it. ‘But I have to conclude one more issue!’ The judges do not seem at all impressed by this behaviour.
20:39: The speaker appears to be confused on the connection of the Mucaster Castle case in light of clause 15, but shifts his attention to another area of the argument in an attempt to satisfy the judges. Despite being subjected to a lot of criticism on this topic for a long time, the speaker maintains a cool demeanour.
20:42: Before she could begin, the first speaker of the respondent is quizzed about the legal technicalities. However, she is unable to hear anyone due to internet issues. The judges allow her to give a monologue.
20:45: Due to exceptional circumstances, the speaker is allowed to proceed with her arguments with only minimal questioning by the judges at the end.
20:53: The counsel seems to be clueless about her arguments. She stops midway and loses her train of thought. As a result, the judges are visibly not happy with him.
20:56: After a rather lukewarm 12-minute segment in the round, the counsel finishes her submissions with time to spare. The researcher is asked to convey the questions of the judges to the speaker.
20:57: The second speaker commences arguing the final two issues.
21:02: The judges are listening intently to the speaker and ask her to shed some light on the loopholes in her arguments. The counsel answers them coolly and proceeds without any stutter.
21:07: The counsel stammers quite a lot while answering the questions posed by the judges. She doesn’t sound very convincing and appears to be unsure about her arguments.
21:08: The counsel is extremely nervous and desperately attempts to calm her nerves in order to be able to answer the question coherently. She is unable to explain why Tawe is liable if they are not privy to the contract.
21:11: Flustered because she’s unable to satisfactorily answer the judge’s questions, the counsel is told ”You have wasted our time, why should we not impose damages on you?” The counsel stammers her way through the few sentences that she manages to speak
21:13: The judges remind the first speaker of the respondent that she is yet to answer their questions. After apologizing for the technical glitches, she proceeds to defend the respondent.
21:16: We proceed to rebuttals and sur-rebuttals. The counsels are informed that there is a constraint of time. However, they fail to keep them restricted to relevant points only and are interrupted midway due to the same for a series of questioning.
21:21:The counsel for the respondent chooses to tell the prayer instead of opting for sur-rebuttals.
21:22: The counsel insists on the panel giving her additional time to present her sur-rebuttals after her prayers. The judges deny the request.
21:23: The judges deliberate among themselves in order to be able to provide feedback to the participants.
21:25: We have reached the last stop of the day. All the rounds of the first day have concluded.
VCR-7:926 vs 923
20:01: The Applicant begins by summarising the factual scenario before the Tribunal today.
20:05: Moving to the submissions, the counsel begins by the issue of number of arbitrators to be appointed in the Tribunal. The counsel substantiates her argument by means of the factual statement as well as refutes that there is no conflict of law in SCMA rules and International Arbitration Act due to the addendum introduced.
20:08: “Parties have not consciously applied their minds to agree to the number of arbitrators to be appointed” states the Tribunal, however the counsel caters to the question posed by contending that the wordings of the provision point to the fact that its not a compulsory provision, and in case of express contract the same cannot be applied.
20:14: The counsel, while catering to the queries of the Tribunal, moves forth with her next submission.
20:16: An extension of 1 minute has been granted to the counsel to conclude her submissions before the proceedings are taken forth by the second speaker for the Applicant
20:17: An interesting turn took place when the Tribunal asked the counsel whether it can be inferred if the applicant was themselves negligent when they agreed to go forth the trans shipment without any safeguards.
20:20: The co-counsel takes the floor and begins by addressing the query of the Tribunal regarding negligence committed by the claimant. She is able to substantiate the same with confidence for their party’s case and thereafter moves forth with her submissions regarding damages and liability.
20:26: The counsel interestingly establishes her case regarding the liability of the defendent by drawing a story line. The submissions made were further strengthened by a landmark cases decided by the House of Lords.
20:28: The counsel agreed with the bench that the duty to ensure the seaworthiness of the ship was with Cruze. The counsel argued the same beautifully in a three fold manner!
20:33: The counsel puts forth the next issue before the Tribunal now.
20:35: Due to the paucity of time, the counsel is asked to summarize the arguments in less than 30 seconds.
20:38: The respondents’ counsel takes the floor. The submissions begin on the issue of the constitution of the Arbitral Tribunal
20:46: Moving to the next submission, the counsel continues her submission by refuting any liability of Tawe in the present case. She submits that she represents Tawe and jointly with her co-counsel is here for Tawe and Cruz
20:56: An extension of 30 seconds is granted to the counsel to conclude her submissions.
20:57: The second speaker for the respondent takes the floor and begins with the question of liability of the respondent in the present case
21:02: The submissions by the counsel continues and she confidently establishes further in favor of the respondents.
21:05: The counsel now proceeds to the issue of damages and the quantum of the same.
21:08: The counsel is questioned on the privity of contract and agent-principal relationship
21:09: An extension of a minute was granted, after which an additional 30 seconds granted to the counsel to sum up her submissions.
21:10: The applicants begin with their rebuttals. The counsel highlights that Cruz has not refuted the present arbitration process. Also, there is no conflict as per the counsel therefore raising no question of applicability of IAA. Moreover, the counsel states that the respondent’s liability ends in Chennai and not Columbia as per the factual background. The counsel established a strong case for her party by making the rebuttals.
21:15: The counsel for the respondent begins her sur-rebuttals by stating that IAA is very well applicable to the present case which was backed up by authorities. She also states several other points which cater to the points raised by the applicants in their rebuttal.
21:19: The rounds conclude with both the teams having made their case brilliantly. It was indeed a round full of interesting arguments and strong advocacy skills.
VCR-8: 902 vs 920
20:20: This round in VCR-8 has been cancelled for now. We will update the teams with future developments regarding the rounds.
DAY 1 | 24TH MARCH 2022
PRELIMINARY ROUNDS – SESSION 3 CONCLUDES!
Greetings!
Day-1 for the 9th NLUO IMAM ends on a high note with the culmination of Session-3! You can follow the live updates of the rounds on SCC online blog.https://t.co/sIRzhpIgFEpic.twitter.com/TAZqE50adp
— NLUO International Maritime Arbitration Moot(IMAM) (@NLUO_IMAM) March 24, 2022
DAY 2 | 25TH MARCH 2022
PRELIMINARY ROUNDS
SOS SESSION
VCR-8: 902 vs 920
9:59: Welcome back! It’s an unusually early morning for us, slightly unplanned sure but we are very excited to bring you the coverage from the SoS session which will start very shortly. Do note that this round is being held as session 3 in VCR 8 had to be canceled due to unforeseen issues. Those teams will go head-to-head today in the SoS session after which we shall resume normal service of Sessions 4 and 5.
10:01: The SOS round starts with a lot of trepidation after the rescheduling. The judge tries to unnerve the counsel by asking them to state facts crisply.
10:09: Looks like it’s getting tense in the morning! The judge asks a complicated question on the applicability of Hague Rules in the dispute causing the first speaker to pause and think. Unsatisfied with the response, the judge seeks to follow-up constantly causing the counsel to stutter. This judge seems like a tough nut to crack.
10:14: A verbal parry has ensued between the Counsel and judge on the issue of the nature of Hague Rules for the last ten minutes. The judge makes a sarcastic comment, “I didn’t know there were COMSTAT rules for 1994 as well.” Counsel apologises and says it must be the 1971 rules.
10:19: The first speaker requests a 5 minute extension but the judge is disinclined to provide one. He proceeds to begrudgingly provide a 3 minute extension due to the Counsel’s inability to reach the next issue.
10:22: The judge asks twice whether Tawe is an underlying carrier but counsel proceeds to argue that they are a sub-contractor. Judge comments, “I believe I have to speak louder” and laughs.
10:28: The judge engages in some banter with the teams, “Are you enjoying the moot?” Counsel complains about the SoS rounds to which he replies, “Other teams had 3 rounds so you must adjust as well”. The judge encourages the respondents to speak after seeing them sitting quietly.
10:32: Claimants start arguing that we need a sole arbitrator for the dispute and the judge interjects “I believe you need to argue that you need 3 arbitrators on the panel”
10:35: The second speaker has conceded that SCMA rules would apply, the judge points out that rule 30 of the relevant rules would apply and consequently, the International Arbitration Act would apply. However, the counsel counters that it is a non-mandatory provision by citing a jurist’s writing. Upon questioned by the judges, counsel has no answer as to whether a jurist’s writing would have any value in a tribunal/court applying English Common Law. Unsatisfied with the lack of proof provided by the counsel in this regard whether the relevant provision of the International Arbitration Act is mandatory, the judge goes on to barrage the counsel with multiple questions.
10:42: The judge accuses the counsel of complete ignorance of relevant facts of the problem by citing the addendum which states that the relevant provision that the counsel is citing, stands deleted. As a result, their arguments regarding the valuation of damages are invalidated.
10:48: The second speaker is unable to convince the panel regarding the applicability of the relevant rules and the Hague rules as force of law and that they’re merely a contractual obligation. The judge tries to seek clarifications, however, the speaker ignores and moves on to their further submissions.
10:53: Visibly annoyed, the judge in a teaching moment clarifies to the counsel that the Hague Visby rules are inapplicable to this dispute and the same cannot be used by them to escape the clear negligence committed by them.
10:59: In contrast to the first half of the rounds, the panel listens attentively to the respondents’ first speaker’s submissions. The judge interjects by saying that they must abide by the SCMA rules which provide for multiple arbitrators. Therefore, there is no inconsistency as the counsel states.
11:03: Rules 9.1 and 9.2 of SCMA clearly states that 3 arbitrators have to be appointed in cases of multi-party arbitrations. However, counsel argues that section 9 of the International Arbitration Act is mandatory in nature in terms of statutory interpretation and thus would prevail over SCMA. The judge asks for some relevant case law that would substantiate the same but Counsel pleads ignorance.
11:10: Bluff masters in the house? The first Speaker 1 from the respondents’ side cites a case to support their submissions. But when the judge probes about the case, the principles cited by the counsel from the case are not present anywhere in the case law itself. The judge remarks, “So you have been bluffing all this time?”.
11:14: The judge remarks, “Are you questioning the prudence of this tribunal by insisting on a single arbitrator on the grounds that you’re broke? Give us some money, fill our pockets we’ll give you an expeditious solution.” The panel finally remarks that the counsel was unable to convince them substantially.
11:20: The judge questions the second speaker as they start their submissions that, “Can you deny your liability on the basis of equity since you were negligent?”
11:26: When asked what laws under Common law would be applicable to the parties, the parties cite a case to show that not all acts are mandatorily applicable upon parties simply because they’ve submitted to Common Law. However, the panel finds the conclusions stated to be ludicrous and asks for specific reference to the page in the compendium. The judge contends that any and all acts under English Common law would be inapplicable.
11:32: The counsel hurriedly tries to answer the barrage of questions posed by the panel and the judge requests, “Counsel pause for a while and take a deep breath. Please understand the question”. In a teaching moment, the judge says that the counsel must educate themselves about lex arbitri, procedural laws and contractual interpretation and how it may be applied. Due to the counsel’s constant interruptions the judge annoyedly points out, “Please let the judges finish their questions.”
11:37: The second speaker argues that Tawe has no liability in this case whatsoever and shifts the entire burden on Cruze at which the judge laughs and comments, “So the claimant is without any remedy?”
11:41: In yet another attempt at educating the counsels, the judges point out the constant points of negligence committed by Tawe including failure to include a radar and providing a seaworthy vessel, they have a certain liability under Hague rules that override the COMBICON rules according to the contract. However, the judge is seemingly dissatisfied with the submissions. The judge points out that the respondents should have done their due diligence while agreeing to the the terms of the contract.
11:47: Annoyed with the extensive submissions given on the issue of lack of Tawe’s liability, they direct counsel to proceed to the quantum of damages. The counsel’s subsequent attempts to satisify the panel are held to be in complete ignorance of facts.
11:49: The second speaker refuses to concede on applicability of any of the rules. Judge remarks, “If you wanted to contract out of applicability of any and all rules you should’ve gone for a mediation.”
11:55: The judge is reminded that counsels may present rebuttals to which he replies, “I feel we have exhausted every argument that was to be said but they may proceed.”
12:02: In a surprising turn of events, the panel asks questions to the counsel on their sur-rebuttals and clarifies the rebuttals presented by applicants. However, the sur-rebuttals provided are unsatisfactory and the judge points out that the counsels are egregiously wrong on their understanding of the applicability and interpretation of law.
12:02: The rounds finally conclude on a slightly nervous note. This brings an end to an engaging round where there was a lot of back and forth discussions between the judges and the counsels. We will be back from 1:30 pm onwards for Session-4!
DAY 2 | 25TH MARCH 2022
PRELIMINARY ROUNDS – SOS SESSION CONCLUDES!
DAY 2 | 25TH MARCH 2022
PRELIMINARY ROUNDS
SESSION-4
VCR-1: 927 vs 910
13:23: The Courtroom is set, and the teams are ready. The Preliminary Round has begun in full swing in the courtroom, with an unbridled enthusiasm!
13:24: The first Counsel begin with her submissions. She provides a succinct and concise outline of the structure of her arguments.
13:26: The counsel is putting forth her grounds by keeping the attention of judges on specific clauses cited by her.
13:28: As the Counsel is moving ahead with her submissions, she retains a balanced bearing on the factual context of the present case. She seems to be well versed with each and every fact involved in the proposition.
13:29: The counsel moves to her second submission with no incoming questions from the panel. It seems that the judges are having no queries in response to the case presented by the counsel.
13:31: After almost 11 minutes of submissions, finally the counsel received a question from the panel which she countered in an elegant manner and the counsel was able to satisfy the judges with her submission.
13:33: Rather than limiting her submissions to either factual context or legal context, it can be observed that the counsel is following a balanced and prepared approach by taking both the contexts in a graceful way.
13:35: With no queries from the panel, the counsel successfully submitted her grounds. The floor is now open for the second speaker to take the podium.
13:36: Second Counsel starts with the fourth issue.
13:38: With uninterrupted presentation from the second Counsel, the courtroom is maintaining a positive atmosphere. Though with no questions from the panel, it may seem that there are slightly less productive discussions taking place.
13:41: While both the counsels are well versed with what they intend to present, it can be concluded from the external view that the first counsel was more certain and composed in her approach.
13:44: There seems to be a similarity and extensive background work from submissions of both the Counsels as both of them are following the same approach in their submissions, i.e., citing legal precedents and attaching it to the facts of the present case.
13:45: Judges still pose no queries. Counsel is maintaining his hold over his submissions and constantly keeping check with the satisfaction of the judges.
13:47: The second Counsel completed his submission by presenting claimant’s prayer before the allotted time.
13:48: The first counsel of respondents proceeded with his submissions after laying down the structure which he will be following in his presentation.
13:50: There arises no queries from the part of panel. Counsel is presenting his submissions relentlessly.
VCR 1
13:54: In the Courtroom, the atmosphere is becoming more and more monotonous. An energetic response is in utmost need from the panel.
14:00: Finally a question came from the panel regarding the intention of the parties in the present case. The second Counsel answered the query in a positive note.
14:01: The first counsel asked for an extra 30 seconds to complete his second argument.
14:02: The first counsel completes his presentation. Judges, who are as cool as before, gives the permission to the respondents’ second counsel to take the floor.
14:05: The second counsel retains the attention of the panel on her submissions by referring to particular sections and facts of the case.
14:09: The counsel is proceeding with her submissions in a graceful manner, while at the same time asking for satisfaction of the panel time to time.
14:13: The judge asked the 2nd counsel to expand her argument over the intention aspect in her submissions.
14:14: One of the judges directly questioned the liability behind the actions which respondents are trying to protect.
14:16: The counsel answered the query which was met with a satisfactory response from the panel and thereafter proceeded with the 4th submission.
14:17: Counsel asked for an extension of time of 2 minutes to complete her submission.
14:18: It is to be noted that while the claimants completed their submission before the completion of their time limit, both the counsels of respondents have asked for extra time.
14:20: Time’s up but prayer is still left. The counsel proceeded to complete her prayer. Time management could be the effective tool in deterring the position or marking scheme of both the parties in the present case.
14:21: Following the extensive deliberations on part of all the counsels, we will proceed to the rebuttal and sur-rebuttal stage.
14:22: Claimants put forward their rebuttals in less than 1 min. It seems either they are fast in putting across their submission or they have failed to find loopholes in the respondents’ case.
14:25: Rounds have been completed successfully. Judges have gathered in the judges room to discuss the marking scheme and feedback that will be provided to both teams.
VCR-2: 902 vs 921
13:35: The war bell has rung and the fierce oral rounds for session 4 has started. The first counsel is enthusiastically proceeding with his arguments. The absence of research on the applicants’ side does not seem to have brought down their spirit in any way.
13:38: The counsel has taken pace and is confidently proceeding with submissions on basis of the IAA. The counsel is aggressively arguing on the mandatory clause of the agreement.
13:42: The arguments have taken a turn where the counsel can be seen resorting to their own memo and citing parts of the Hague Visby Rules too. The Counsel has an air of confidence engulfing him which is enabling him to present his arguments smoothly and structurally.
13:45: The internet connection issues are severe and haven’t spared the judges either! It may be difficult to judge the Counsel given the constant disruptions but hopefully the scenario will change in some time.
13:47: One of the judges in this particular Court room is engaging with the Counsel at some points seeking clarification on arguments and posing relevant questions too. The Counsel, in every way tried to, frame answers for the same but abruptly got disconnected.
13:50: The Counsel has returned in full swing and is knocking away the questions spun at him proceeding to the final limb of his argument. The Counsel is seen emphasizing on the liability of the defendants claiming an exorbitant sum in the form of damages. It seems like the judges were satisfied with the submission before them since they refrained from asking any questions further.
13:55: The second counsel of the applicants has taken the floor. She looks equally confident and has started with her arguments blazingly. She has, however, been stopped by one of the judges with a genuine and brief question which has been excellently answered by the counsel citing a prominent case law.
14:00: The counsel is seen carefully building up on her arguments using concepts of bailment and sub-bailment. She has strided onto her final submission regarding the due diligence and breach of duty on part of the defendants justifying the claim made by the applicants.
14:05: The Counsel can be seen emphasizing on modern technology wielded in weather radars but this limb of the argument is objected by one of the judges who intends to question the accuracy of technology altogether.
14:08: After the Counsel has presented her submissions, she is countered with a question on the Himalayan clause which has been beautifully cleared by the Counsel with a soothing smile.
14:11: The baton has passed on to the Respondent side but the first counsel has encountered severe connectivity issues and the respondent side has proposed a unique solution of starting off with the submissions of the second counsel.
VCR-2
14:15: The second counsel is thus seen aggressively defending his party but there are certain gap areas identified by one of the judges who is politely asking for more more clarification on the same.
14:17: The initial arguments entail the nitty-gritties of the limitation of liability along with the intricacies of the bill of lading in question. With 5 minutes left in hand, the Counsel is being fired with questions from the judges.
14:21: The Counsel is seen quoting and elaborating on the various rules and provisions used in their memorial in an attempt to substantiate the Respondents’ side.
14:24: Finally after resenting the last two arguments, the mic has been passed on to the first Counsel who has finally been able to get hold of a stable connection. He looks a little nervous due to the rocky start and is advocating for the appointment of a sole arbitrator.
14:28: It seems like the Counsel has still not got hold of a stable internet connection because the persistent disruptions have made it difficult for judges and the other participants to comprehend his submissions. Despite the minor consistencies, the show is going on.
14:30: The Counsel has been thrown off-track by one of the judges who has posed a query which doesn’t seem to have been answered with conviction. Nonetheless, the judge has been kind enough to let the Counsel proceed with his other arguments.
14:33: The network glitches seem impossible to be tackled on the part of the first counsel who has been struggling to submit his arguments from the very beginning of the rounds. There has been a turn of events where the first speaker has given up on his network and resorted to his co-counsel for aid. The second counsel has thus lent his device to his co-counsel.
14:38: The first counsel is now pacing with his arguments and his voice can finally be heard with clarity and lesser impediments. The counsel ended his submissions with a sincere apology for the inevitable virtual world issues.
13:43: The rebuttal rounds have commenced and the first counsel from the applicant side is seen vehemently refuting certain parts of the arguments used by the defendants. The defendants have successfully catered to the questions put forth by the applicant side in the sur-rebuttal round.
13:48: With an end to this wonderfully quirky and consistently inconsistent round, the judges have been sent to their respective rooms to deliberate upon the scoresheet and performance of the participants, we hope that the internet connection is kind to the participants in the following rounds!
VCR-3: 915 vs 925
13:43: Due to connectivity issues from the judges’ side, there was a delay in the initiation of oral rounds.
13:44: The first counsel from the claimants’ side begins with their submissions regarding issues 1 and 2 respectively.
13:46: The arbitrator asks the counsel to furnish more clarification regarding the application of judgements in this particular case.
13:38: Even after incessant questioning by the judges, the counsel proceeds with great confidence makes seemingly satisfactory arguments
13:51: The counsel submits that the SCMA rules will precede and there should be 3 arbitrators appointed, the counsel goes on to explain in great detail and substantiate their arguments suing several case laws.
13:55: The arbitrator again attempts to baffle the counsel with an intensely long question but the counsel seems unfazed and gives a satisfactory response.
13:59: The counsel proceeds to establish their last limb of the submissions stating that, the Hague Rules supersede any other rule as it has force of law in the present contract.
14:02: The second counsel begins with their submissions regarding issue numbers 3 and 4 respectively regarding the liability of the respondents and the amount of damages the claimants are entitled to.
14:05: The judge asks the counsel to furnish any fact findings regarding how exactly the loss occurred and in what specific circumstances. Also, the judge asked the counsels about the exact meaning of ‘seaworthiness’.
14:06: The counsel attempts to respond to the judge’s two-fold question and draws their attention towards the case study but unfortunately the counsel is not able to give a satisfactory answer.
VCR-3
14:12: The counsel proceeds to submit that Respondent 2 is liable due to lack of due diligence and cruise is rendered unseaworthy which was the duty of the respondent.
14:16: The judge asks the counsel to apply the Hague Rules in the current case and establish a direct connection between the bill of lading and the loss occurred.
14:19: The counsel receives an extension of 2 minutes to summarise their submissions.
14:21: The first counsel for the respondent side begins with their submissions regarding the first issue and a sub issue of the second issue.
14:26: The counsel disagrees with the judge’s contention regarding what law will govern the arbitration and submits that the institutional laws will not override the International Arbitration Act of Singapore.
14:30: The judge asks the counsel that why would the party autonomy be overridden? They also asked to justify how the International Arbitration Act will have precedence over SCMA rules?
14:36: The counsel receives an extension of 2 minutes to summarise their submissions.
14:39: The second counsel for respondents’ side begins with their submissions regarding the remaining issues.
14:42: The counsel continues to establish the overriding effect that the Hague rules will have over SCMA rules.
14:46: The judge again interjects to ask the counsel to establish how in the current case the applicability of Hague Rules will take place in order to decide the liability
14:50: The counsel seems utterly baffled by the question asked by the judge but smartly attempts to evade it by moving on with their submissions.
14:53: The judge directs the counsel to clarify the position regarding who is the carrier and the consignee to further establish the liability of the respondents. In response, the counsel seemingly gives an unsatisfactory answer.
14:56: The counsel makes the last limb of their submissions by submitting that the Himalaya clauses can be considered valid exemptions with regards to establishing liability
15:00: The counsel concludes their submissions by submitting the final arguments regarding the damages to be decided in the current case
15:04: The counsel for the claimants conclude their case by submitting their rebuttals.
VCR-4: 920 vs 911
13:31: The round has started. The first speaker from team code 920 has taken the floor.
13:33: The speaker has confidently taken charge of the courtroom. Maybe, they are very assured about their chances in this round.
13:36: The Bench has taken to questioning as well. Till now, the speaker has been handling those questions with perfect composure.
13:40: The Speaker braved through the network glitches she was facing and continued with her submission in full force!
13:41: The Bench directed a “Where is the seat of arbitration, Counsel?” at the Speaker and a follow up question after that, which the Speaker breezed through!
13:43: Good going! The Speaker continues keeping the Bench and the Court captivated with her crisp submissions!
13:45: The Speaker has concluded her submissions and the floor now belongs to the second speaker.
13:48: The Speaker has a slight tremor in her voice while answering the question directed by the Bench at her, but she has been putting up a very brave face and keeping it under control!
13:50: “Why are you so adamant that it serves the Claimants better if the Hague Visby Rules apply instead of the Hague Rules?” The Bench asked the Speaker, which the Speaker started to address, only to become prey to yet another connected question from the Bench!
13:53: After a certain point raised by the Speaker, the Bench continued to go just as hard on her by directing a “We suggest you abandon that line of argument, Counsel.” However, the Speaker, this time, had a case law up her sleeve to substantiate her argument with!
14:00: The Speaker is rapidly running out of time! Will she have enough time to complete her submissions to the best of her abilities?
14:02: Less than a minute left for the Speaker to finish her submissions and the desperation on her face is showing! But she still manages to articulate her thoughts and arguments perfectly!
14:08: It has been several minutes since the time was up for the Speaker, but her arguments managed to enthrall the Bench enough for them to take no notice of it. The judges allow her to continue with her speech.
VCR-4
14:10: 911 S1 has now taken the floor.
14:14: “Counsel, I will stop you right here and ask you a very simple question. What according to you is the procedural law for arbitration?” the Bench has directed this brain stormer at the Speaker, which turned out to be a trick question and looks like the Speaker walked right into that one!
14:26: Looks like this Speaker also has a lot to submit! Several minutes since her time was up and the Bench continues to listen to her without interrupting!
14:28: The second speaker has now taken the floor representing team code 911.
14:30: The Bench has a lot of questions for this speaker it seems, answers to which need to be substantiated and corroborated upon with the written submissions!
14:37: The Speaker continues with her submissions, not deterred by the plethora of questions coming her way!
14:45: The Speaker is finally done with her submissions, and now it is time for the rebuttals.
14:46: Team code 920 is back with a slew of rebuttals!
14:50: Team code 920 is done with their rebuttals and boy, there were so many of them! Enough for the Team to actually ask for an extension of 10 seconds!
14:51: Team code 911 is now slicing through the rebuttals of Team code 920!
14:52: After an epic fight in the rebuttals round, we conclude session 4 in VCR-4. Stay tuned for more sessions and more mooting!
VCR-5: 923 vs 916
13:40: The counsel for claimant starts off the first preliminary round for the day here in VCR-4 by making their submissions on the composition of the Arbitral Tribunal.
13:45: In a tense atmosphere, the counsel makes submissions of the implicit agreement between the parties on the application of the SCMA Rules.
13:49: Submissions regarding the unseaworthiness of the vessel supplied by the respondents are made by the counsel. Further, the applicability of the Hague Rules is discussed by the counsel.
13:55: Yielding the floor to their co-counsel, the first counsel for the claimant escapes from rigorous questioning.
14:00: The counsel makes comprehensive submissions on the duty of care that flows from the contract and the liability of the carrier.
14:06: The bench questions the counsel on the tests of negligence and asks for authorities on the same.
14:10: With an extension of time, the counsel races to the finish mark, concluding with their submissions on causation and liability.
14:14: The counsel for respondent begins confidently and explains the facts for the panel.
14:17: Submissions regarding the application of the International Arbitration Act and the liability clause are made.
14:22: The applicability of Hague Rules is submitted to be only valid from tackle-to-tackle period. Further, the counsel submits that reasonable endavours were made to prevent damage.
VCR-5
14:26: The bench aggressively questions the counsel on the duty of care of the respondents and the failure to perform the same. However, the counsel does not crack under pressure and continues to answer calmly.
14:29: The counsel addresses the bench’s questions on the applicability of the Himalaya clause and the unseaworthiness of the vessel.
14:32: The co-counsel now takes the floor and makes their submissions regarding the conflict of laws, contractual intention of applicability and the liability of Tawe and Cruze.
14:39: After some technical issues, the counsel resumes their submissions on how the bill of lading saves the respondents from liability.
14:49: The counsel makes their submissions on the non-applicability of the Hague Rules.
14:50: Trying their best to battle technical glitches and the intensity of the questioning, the counsel races towards the end of submissions on the side of the respondent.
14:54: The claimants’ rebuttals contribute further to the tense atmosphere in the room.
14:54: The respondents do not back down from a fight and submit an equally fiery rebuttal, concluding an extremely intense round.
VCR-6: 926 vs 904
13:36: The rounds have commenced! It’s a new day and every is here with renewed zeal and vigor to win this. May luck be in their favour and may the best team come out as the winner!
13:38: The first counsel gracefully answers the question regarding the ‘clause paramount’ and was apparently able to satisfy the judges with the answer.
13:41: Confident and poised, she puts her point across and deals with tricky questions skillfully. So far, so good!
13:44: Oops! Looks like the counsel is being grilled by both the judges regarding the application of the SCMA rules. While this can seem intimidating to most, the speaker seems to have no problem answering their questions. Her confidence is unwavering.
13:47: The speaker continues, her team members nodding in unison. The judges ask her to provide some precedents. The counsel answers in affirmative but doesn’t specify what the precedents are. After some probing by the judges, she very vaguely directs them to her compendium. All this while, the team have been losing precious time.
13:51: The clock is ticking and looks like the counsel is rushing to finish her arguments in whatever little time she is left with.
13:52: Jurisdictional Importance! “But we are not in UK, so why should be follow this?” The judges are intrigued to know why the counsel is basing her arguments on just the presuasive value of UK law, as the counsel contends.
13:53: The counsel is quizzed regarding the facts of the case. Turns out, she’s very well-versed in them and has no problem coming up with the right answers!
13:55: “Show me another rule or something else, this is not applicable!” The counsel seems flustered after the judge’s remarks but she quickly gains composure and answers the question. But looks like her answers aren’t good enough and the judges do not seem very happy about it.
13:58: The second speaker begins and the judges have started their line of questioning already.
VCR-6
14:01: The grilling has begun! The counsel however seems very unfazed by it. Her overall demeanour is very calm and poised which must’ve sure helped her score brownie points.
14:05: The rounds seem to be progressing smoothly, with minimal questioning.
14:13: “So you agree that you have failed to provide them with all the details when you didn’t tell them to the value of the goods?” The counsel agrees, albeit reluctantly. The counsel pleads on the basis of morality and contends that they should be concerned about the people on the vessel. “How can they send a vessel to the seas that is not seaworthy? Think of the people!” The counsel seems enraged.
14:09: “I am sorry, but is this an appropriate forum to deal with torts?”, ask the judges. The counsel answers that even if not with tort, the claimant would like to go ahead with bailment. When asked to provide a precedent, the counsel denies by stating that she has two more issues to cover. Turns out, this isn’t a smart move. After some more questions, she decides to abandon this argument. The judges do not seem very impressed by this.
14:14: Seems like the counsel can already predict what the respondents will argue and tries to provide satisfactory counters during her pleadings.
14:18: The judges do not look very happy. “You haven’t satisfied us with respect to our jurisdiction, so I don’t understand how you are proceeding?” The researchers come to the rescue and save the day by providing an answer for the same.
14:21: Uh-oh! The counsel is flustered, the judges are not impressed and she has already exceeded her time limit by a huge margin. The counsel tries to pacify it by ensuring the judges that she will read about every answer that she has been unable to give during the rebuttal rounds. What good will that do, one might wonder.
14:25: From the looks of it, time is an illusion for the counsel and she proceeds with her submissions, even after exceeding her time limit by a huge margin.
14:28: “You should have reminded us and asked us for extensions!” The judges are enraged and ask her to wrap it up quickly.
14:30: “Not at all satisfactory.” The flustered counsel quickly summarises her arguments and steps down after what seems like an eternity.
14:33: The judges are baffled! “You say its an honour to argue before the Tribunal but your co-counsel says in the chat that it is a gross miscarriage of justice!”
The drama just keeps flowing in when the respondent team makes a desperate attempt to convey their agony to the judges. The judges look very amused because of such behaviour. #nluoimam
— NLUO International Maritime Arbitration Moot(IMAM) (@NLUO_IMAM) March 25, 2022
14:37: The virtual courtroom is in chaos! When unable to answer the question, muffled whispers which eventually proceeded to become loud screams could be heard from the speaker’s background.
14:44: The counsel suddenly becomes quiet and tries peeking at previously prepared material by her team when she’s unable to answer the judges.
14:47: The counsel is shivering, she goes completely still when the judges grill her. There’s complete silence and her other team members are in distress.
14:50: She accepts defeat! “Madam arbitrator, I do not have an answer for that. I apologise.”
14:51: Apparently exceeding time limits is the defining feature of the teams in this courtroom. The respondent’s first counsel also has exceeded her time limit by a considerable amount.
14:53: After a lot of shaky remarks like “I am not sure Mister arbitrator” and “I don’t know”, the counsel tries to explain how all sorts of hurricanes are natural disasters. The judges think otherwise.
VCR-6
14:54: The second counsel steps in. Let’s watch if he can undo the damage and redeem the rounds for the team
14:57: So far, so good! The counsel argues confidently and everyone in the courtroom listens in awe.
15:02: The round is progressing smoothly with minimal questioning.
15:06: The judges seem impressed by the counsel and do not question him regarding his arguments.
15:08: Trouble has started brewing for the counsel! His arguments lack proper legal reasoning and the judges grill him regarding the loopholes in the arguments.
15:13: Following suit, the counsel has been speaking for more time than what was originally allotted to him.
15:19: The counsel concludes with the prayer.
15:20: Speaker for the claimant begins with her rebuttals. She has kept her promise – she indeed has come prepared with answers that she was previously unable to answer during her submissions.
VCR-6 Counsel: “It’s just like taking a helmet with you when you ride your bike. When you take the ship to the sea, you must take the weather radar along for your own safety.” #nluoimam
— NLUO International Maritime Arbitration Moot(IMAM) (@NLUO_IMAM) March 25, 2022
15:26: The counsel is one of the lucky few who get extensions during the rebuttals also. But just like last time, she goes on and on. The judges however, do not seem to mind that and are intrigued to listen to her arguments.
15:29: There is a total disregard of time limits in this courtroom. The counsel for the respondent finishes with his sur-rebuttals. But the judges need more clarity and have more questions for him.
15:32: The teams have joined the prep rooms and the judges deliberate among themselves.
15:39: We are beginning with the feedback for the participants. For the readers, we will resume our live-blogging in session 5 which starts from 5:30 pm. We are so excited for the last preliminary round i.e. Session 5 before we start with the knockout rounds tomorrow!
VCR-7: 918 vs 919
13:31: The new day begins with energized teams making their submissions with full confidence.
13:33: The applicant is asked not to deal with the submissions regarding the number of arbitrators since the respondent has already agreed to have Singapore as the seat of arbitration.
13:35: The counsel proceeds with her further submissions stating that SCMA rules will govern the proceedings today.
13:38: The next point raised by the applicant is that the panel shall consist of three members instead of one.
13:39: The Tribunal is perplexed regarding the application of International Arbitration Act since the seat is already decided to be Singapore. Moreover, the counsel is also asked to justify the same with the help of a test as proposed by law.
13:40: The counsel handles the question well and is able to convince the Tribunal with her explanation
13:45: While a slight technical glitch halted the proceedings in the courtroom, it has now resumed in full swing.
13:46: The submissions continue with the counsel’s argument regarding the damages caused by the defendant and the counsel lays reliance on the Hague Visby Rules and Bill of Lading
13:47: The Tribunal questions on the basis of the addendum which provides for discharge of liability (which ends when goods leave Odyssefs)
13:50: A long series of questions follows on the arguments put forth in this regard, and the authorities being cited by the counsel are also heavily questioned. The counsel dodges the questions, however the judges do not appear to be convinced with her line of reasoning.
13:52: With a little skepticism on the part of the judges for the submissions of the first counsel, it is now time to judge the second speaker. Time will tell if the second speaker is able to turn the tables!
13:54: The second counsel begins by addressing the issue of liability. She makes her primary submission confidently.
13:57: The judges cite their difficulty in understanding the submissions being made in the regard of Hague Rules being applicable vide a contract, and how the defendants cannot use the Bill of Lading for their defence.
13:59: The counsel puts forth the justification for the same in terms of the relationship of bailment which exists. However, the judges do not appear to be convinced.
14:00: “There exists a legal impediment” the judges exclaim! The Tribunal continues to pose questions to the counsel and express their hesitance to uphold the arguments being made by the counsel.
14:03: After a nail-biting series of questions, the counsel finally proceeds to her last submission regarding the damages that the applicant is entitled to.
14:04: The counsel heavily relies on judgements of the past from different courts and authorities to establish that the sum of 6 million dollars as damages is justified, and must be paid by the defendants at the earliest.
14:05: The counsel manages her time well, and is able to complete her submissions and further her prayer to the Tribunal.
14:10: The respondent begins with his submissions by stating that the parties have not agreed to multi-member arbitration, and hence only a sole arbitrator must preside over the proceedings.
VCR-7
14:13: “It is a solvable problem” as stated by the Tribunal. From the same judgment that the counsel pointed to previously, the Tribunal cites a few lines which highlights the issue they have with the arguments being made.
14:15: An interesting situation develops in the courtroom, and it is with finesse that the counsel tries to tackle the rapid questioning. He continues to maintain his stance, and justify the same.
14:17: The Tribunal continues with their questions on the issue. The counsel handles them beautifully.
14:19: The counsel finally proceeds to the next submission regarding the question of liability.
14:20: The counsel begins by reiterating the same concern that the Tribunal had raised when the claimant was making their submissions in this regard. Relevant cases are also cited to strengthen their stance.
14:21: “What is your position on Article 3 Rule 8 of the Hague Rules?” asks the Tribunal. The same guides the counsel to move to his next submission which very well addresses the concern of the Tribunal
14:24: The counsel yields the floor to the second speaker who takes over to address the issues of liability and damages payable thereafter.
14:28: The counsel sails smoothly through his submissions. Just when it looked like the Tribunal is convinced, the judge questions the counsel stating that he was unable to comprehend his submissions and his party’s stance on the issue
14:29: The counsel quickly caters to the issues of the Tribunal and proceeds to the issue of damages and its quantum.
14:30: To establish their case, the respondent outlines the factual background to enable the Tribunal to appreciate the facts in light of which the defendants submit their arguments.
14:32: “Greater weight is to be attached to the contractual obligations.” submits the counsel. He states that the contract between the parties must prevail over the Hague Rules.
14:33: The counsel now proceeds to his prayer.
14:34: Before the round ends, the counsel encounters one last question from the Tribunal regarding the gold value. The counsel clarifies that the clause paramount in the addendum clearly states that the stance taken by the respondent is justified.
13:37: With a little less than one minute remaining on the clock, the respondents step down.
13:38: The applicant makes few befitting points as rebuttals on the submissions made by the respondent.
13:39: The respondent now states their points of sur-rebuttals. He keeps it short and to-the-point.
13:40: The rounds concluded successfully, with both the teams having put forth their points meticulously.
VCR-8:913 vs 909
13:31: The round starts with speaker 1 from claimant’s side confidently stating facts. The judge however, insists that the first point to be shown is whether this Arbitration Tribunal has jurisdiction in order for them to proceed.
13:33: Merits before Jurisdiction, is that even possible? The counsel insists that their next speaker would cover the jurisdiction issue. In a teaching moment, the judge clarifies that the jurisdiction issue must be taken up first in order to proceed on merits.
13:36: Nervously, the first speaker tries to proceed on the jurisdiction issue. However, their ignorance of the same is caught on by the panel. Dissatisfied, the panel begrudgingly allows the first speaker to proceed with other issues.
13:41: To show that Tawe and Cruze do have some liability the speaker relies on Article 4 of the Hague Rules. However the judge points out that, “This article goes against you to protect the respondents from any liability”. One of the judges directs the first speaker to Art.4(1) of the rules to show that they must rely on the same for their arguments
13:46: The judge points out that the speaker has well exceeded their time and they must ask for an extension of time. The panel then allows for a 5 minute extension
13:49: The judges point out that there is lack of privity of contract since the party involved does not have a contract with Tawe and thus, they can’t hold them liable. The judge loudly proclaims, “How are you holding Tawe liable in the lack of a contract with them?” The judges are visibly annoyed with the counsel’s lack of understanding of the question and their attempt at circumventing the questions.
13:53: The judges point out that the Counsel fails to clearly mention whether Hague Rules or Hague Visby Rules apply since only Hague Rules are directly applied through a clear contractual provision. Their memorial also reflects this confusion.
14:02: Typos exist everywhere! The first speaker seeks to conclude their arguments by stating that the liability of Tawe applies as a carrier in this case by relying on relevant paragraphs. The judge points out that the applicants have contradicted themselves in their memorial by stating that the applicants were negligent in the transactions as well and therefore must suffer liability. The first speaker apologies for the typographical error and the judge remarks, “Please be careful about the liability you impose on yourself”.
14:06: The second speaker of applicants’ side proceeds with the issue of number of arbitrators to be appointed. However, the judge insists that they get back to the jurisdiction issue.
14:09: Counsel argues that by prior agreement the seat of arbitration is Singapore and the judge contends whether rule 32 of the SCMA would apply or not. The counsel confidently answers the question that SCMA would override the International Arbitration Act through the applicability of relevant laws.
14:14: The second speaker proceeds on the second issue relating to the due diligence liability on the carrier which is non-delegable in nature.
VCR-8
14:17: The judge proceeds to badger the speaker on how they’re arriving at such a huge valuation for the goods in the absence of nature and value of goods being declared. The judge points out that Article 4 of the Hague Rules state how the valuation is to be done and the applicants are claiming in excess of that.
14:24: The judge, while reading from the factsheet, points out that in failure to declare value before shipping, they cannot claim an excess amount. Counsel argues that Article 9 of the Hague Rules have to be applied to arrive at the amount. The second speaker’s faux paus has come to a height of claiming an amount of 600 dollars instead of 600,000 dollars from the respondents.
14:29: Unsurprisingly, the judge proceeds to ask questions on the prayers presented by the counsel. Rattled by the constant questions, speaker 2 requests permission to proceed to prayers in the middle of stating his prayers.
14:33: The judge insists that the jurisdiction issue needs to be argued, then the judge requests that whether Section 9 of SCMA is mandatory be argued by the respondents
14:36: After a nervous start, the first speaker from respondents’ side proceeds to confidently argue the issues of mandatory nature of Section 9 of SCMA.
14:41: The first speaker concludes their submissions by relying on Maxwell’s rules of statutory interpretation to show the non-mandatory nature of Section 9 of SCMA.
14:48: The second speaker argues on the lack of liability of Tawe and the judge points out, “If they’re not liable then Cruze must be liable”. This is in accordance with Common law. Counsel proceeds to rely on a jurist’s writing to say that parties may only be compelled to follow relevant portions of Hague rules as they may agree.
14:55: Speaker 2 argues that Cruze enjoys an exemption from liability on the grounds that the same is supported by relevant laws. But even in the presence of liability, the quantum of damages is much reduced.
15:03: Applicants confidently rebutted each of the points presented by the respondents.
15:05: The respondents end the round on a high note by presenting their sur-rebuttals.
15:07: With this, we have concluded session 4 in VCR-8. Do join in for more updates regarding session 5 which will be starting later this evening!
— NLUO International Maritime Arbitration Moot(IMAM) (@NLUO_IMAM) March 25, 2022
DAY 2 | 25TH MARCH 2022
PRELIMINARY ROUNDS
SESSION-5
VCR-1: 905 vs 926
17:29: The Courtroom is arranged and the teams are ready. The last session of the preliminary round has begun in full swing!
17:30: First counsel from the claimants’ side provides a succinct and concise outline of the structure of her argument. she proceeds with her submission after providing a brief narration of facts.
17:32: The counsel relied on the SCMA Rules in her submissions. In response, the judge objected.
17:33: The judge questioned the basis of arguments, i.e., how can claimants consider it an arbitration seat and asked for a judicial precedent to confirm her grounds.
17:35: The first counsel provided a judicial precedent which she didn’t mention in claimant’s compendium. The judge chose to consider that judicial precedent after hearing the relevant part of the judgment and accepted the argument.
17:37: The counsel is relying on the clauses of different arbitration act to further her grounds. Judges apparently seem satisfied by the counsel’s submissions.
17:38: The counsel moved to her second argument and claimed the liability on the part of defendants.
17:40: The judges are busily endeavoring to analyze the arguments of the counsels, and pouring the question on the basis of addendum provided by the claimants. But the counsel hurried over the question of the judge by saying that she is coming to that point.
17:44: Without listening to the judge calmly, the counsel is again and again interrupting the judge between his queries, which brought a series of questions in rapid succession.
17:47: With the completion of her time limit, the counsel asked for a time extension of 1 more minute to complete her submission.
17:48: Though the Counsel is successful in presenting her grounds, she seems to lose the grace of courtroom ethics.
17:49: Following the extensive deliberations and counter-questioning, the floor is handed over to the second counsel from the applicants’ side.
17:53: The second counsel is proceeding with her submissions with ease and clarity.
17:55: The bench has questioned the counsel on the the very basis of her argument and the counsel has remained undisturbed. The counsel provided succinct responses to the enquiries made by the judges. After ensuring the satisfaction of judges, the second counsel proceeded with her submissions.
17:57: The counsel is showing her elegant bearing over the arguments and is covering her for every submission step-by-step with a balanced and prepared approach, gaining a good impression of the judges.
17:58: In response to the counsel’s argument’s nature, the judge has posed a query and questioned the whole arguments. Unless the counsel provides compelling evidence, her arguments may be dismissed.
17:59: It has happened again! even the second counsel lost her patience during the questions put forward by the judge!
18:00: Upon being questioned over the issue which has to be covered by the first counsel. The second counsel, though visibly shaken, is doing everything she can to keep a calm manner. But she is not able to answer the queries and asked the permission of the judge to allow her co-counsel to clear the respective in rebuttals. This causes apparent dissatisfaction for the judges.
18:02: The Bench is now interrogating the participants by asking them a series of questions in rapid succession. Meanwhile, the speaker retains her composure.
18:04: In order to complete his or her presentation, the second counsel requests an additional two minute of time. The reply appears to have lost her ability to maintain her calm and control, and she rushes to finish her points before the time limit. Meanwhile, respondents appear to be in a state of calm, maybe trying to manifest positive things out of these rounds?
18:06: One of the judges is questioning the second counsel on the basis of arguments which she has already provided and the second counsel instead of listening to his queries calmly at first hand, tries to impose her answers by stating that is precisely the information she wishes to convey.
18:07: A better argument has been presented, but the judge does not agree with it and has given up hope of hearing it again and asks the counsel to continue with the rest of their arguments.
18:08: The judges are still alive! Questions about technical issues are being batted about.
18:10: The judge is constantly trying to explain what he wants to hear but the counsel is taking time to come to the point and satisfy the panel with her answers.
18:11: Time is already up. Claimants have still not concluded their arguments. This is not good time management by the claimants.
18:11: The second counsel concluded her submission by saying ‘I am concluding my arguments’ but forgot to present her prayer! This faux pas will definitely cost the marks to the claimants.
18:12: Respondents took the floor with brimming energy and started her arguments confidently.
18:14: The judges are paying close attention to the submissions of the first counsel who is successfully presenting her grounds by backing them up with relevant legal grounds.
18:16: Upon being questioned by the judge, the first counsel satisfies the panel and asks to move ahead. But here we go, the judge is again in the field with his grilling!
18:20: Upon being asked by the judge on the liability aspect, respondents quickly choose to answer that they are not at all liable and in accordance with the cited rules, they are not liable to pay anything.
18:21: The second counsel is back with her confidence, but the judge is analyzing each and every argument with careful scrutiny and they directly attack the very basis of her arguments.
18:23: Though the counsel is trying to answer the queries, another level of nervousness can be seen on the side of claimants.
18:23: A member of the bench has questioned counsel on the technicalities of her case, and the counsel has stayed calm and delivered short crisp responses to the enquiries.
18:24: With only 30 seconds left, the second counsel is quickly trying to complete her submissions.
18:25: Times up! And even the respondents fail to adhere to the time limits.
18:26: In order to wrap up her submissions, respondent 2 requests an additional two minutes of time.
18:27: Something different can be seen in the presentation of the first counsel, that he is able to display higher listening capability.
18:28: The judge is again and again stressing over any liability to be taken by the respondents. But in response to this, the first counsel is very clear with her factual as well as legal version that they are not liable.
18:29: Panel seems to be satisfied and now the floor is handed over to the second counsel.
18:30: Something unique can be observed in the presentation style of the second Counsel. She is extremely clear in her submissions and she gracefully proceed with her issue to let the panel understand her stance.
18:32: The second counsel with certainty strikes the claimants’ arguments. In response, the judges seem to be agreeable with the contentions put forth by the second counsel.
18:33: The judge who has set the ground in this courtroom with his grilling is carefully listening to the submissions presented by the second counsel with a consenting tone.
18:35: Strength is visible in the submissions of the second counsel by how she is whacking the already set grounds of claimants.
18:37: New energy can be seen in the courtroom when the judge brought up the criminal aspect on negligence in the ground presented by the second counsel, but counsel seems not to get shaken with the bombardment of extra questions.
18:40: “Where there is a right, there is a remedy”, the second counsel very confidently answers the query of judge and satisfies the panel.
18:44: The second counsel is proceeding with her submissions in a delicate way and has succeeded in inviting satisfaction of the panel.
18:45: The second counsel concluded her arguments with the prayer and she stands down after taking assurance that the panel is satisfied.
18:47: Both the teams are back on track, brimming with new energy and enthusiasm as they prepare to submit their rebuttals and sur-rebuttals.
18:54: Following the extensive deliberations and counter-questioning, the round is now concluded!
VCR-2: 922 vs 915
17:40: Before the start of this glorious battle, one of the judges raised a very pertinent point on whether, he can judge one of parties again since he had adjudged them in another session formerly. However, that has been ruled out as a trivial issue given that the parties do not have any problem with that.
17:45: The first speaker from the claimants’ side has kickstarted the round but she has been interrupted by one of the judges on the ground that they deem some parts of the arguments and issues raised as futile and unnecessary.
17:48: The Counsel has quickly moved on to the other arguments and is requesting the judges to take note of certain parts mentioned in the memorial and the judges are enthusiastically engaging in a discussion with the speaker on certain relevant concepts and phraseology.
17:50: There is a full fledged debate between the judges and the counsel of the claimants on certain clauses of HVR as well as the Bill of Lading. The judge in this room is quite pro-active as he is not only posing relevant questions and elucidating his query but he is also expressing his expectations from the counsel.
17:54: The judge seems difficult to appease and he refuses to let the counsel off the hinge easily and is continuously firing questions on the clauses of the contract entered into by the parties and questioning its validity as well as its effect on the case.
17:58: Though the time has elapsed, the judge is still grilling the counsel on a question of law seeking clarification on the ratio of a particular judgment which the judge clearly does not find relevant. Despite seeking extension to wrap up the arguments, the judge seems more fascinated by the authority cited by the court and is enjoying building up more questions on the same sensing the nervousness of the Counsel.
18:00: It appears that the questions of the judges have started to affect the counsel who is slowly seen losing out on her confidence and is reading out incorrect clauses and rules. After a long and tiring discussion on a particular point of law, the floor has finally been passed to the second counsel from the claimants’ side.
18:05: The floor has been taken over by the second speaker who has been able to muster up courage and pace through her arguments after the long grilling session endured by her co-counsel. She, however, was nervous enough to not be able to differentiate between afternoon and evening and ended up incorrectly greeting the judges.
18:09: It seems like the judge won’t go easy on the second counsel either and has been constantly nagging for more information and clarification on certain authorities cited by the counsels. Time is running out but the judge doesn’t seem to run out of questions!
18:12: The counsel is trying her best to cover up and is citing other landmark judgements to substantiate the Claimants’ side. The judge is demanding for the particular case in the compendium, which the researcher from the Claimants’ side could not produce. The judge however was generous enough to let go of it momentarily and has allowed the counsel to proceed to her next argument.
18:16: The judge has struck another endless debate on the applicability of the Rules used by the Claimants. In a couple of minutes, the judge has however allowed the Counsel to proceed with the next limb of arguments. More questions have however poured in on the point used by the claimants highlighting party autonomy.
18:20: “Do you have the Minutes of the last meeting?”, one of the Judges questioned the counsel of the claimants. It seems like the arguments presented by the claimants have confused the judges as they are now questioning the entire purpose of setting up of the arbitral tribunal for this particular matter.
18:24: The judge doesn’t seem much intrigued to go into the prayer of the claimants and is asking if the counsel has more submissions to present so that there can be more substance for the judge to throw questions on. The counsel from the claimants’ side has however stepped down.
18:28: The floor has been taken over by the first counsel of the respondents’ side who appears slightly more confident in presenting his arguments but he has quickly been stopped by the judge the moment he cites an authority. It seems like every authority cited attracts a volley of questions from the judge.
18:31: The counsel from the respondent side has however been able to produce the authority cited in the compendium. It is however unfortunate that the argument used by the counsel could not please the judge and instead elicited more questions from the judge.
18:33: The counsel is quoting more authorities and provisions from his memorial which has simultaneously increased the excitement between both the judges who are hunting for the provisions in the compendium so that they can frame more relevant questions.
18:39: The counsel of the respondents’ side is of the opinion that the fact sheet is silent on a number of issues to be argued whereas the judge pointed out that the claimant side presented 5 issues.
18:42: The baton has been passed on to the second counsel from the Respondents’ side who has been immediately warned by the judge that the burden on the counsel is immense given that he is meant to cover major chunks of the issues at hand.
18:44: There comes another authority from the Respondent side. It appears that the judge is in the zone to scrutinize every detail of the authority cited in the compendium. Furthermore, the judge has posed a very pertinent question on the term “repugnancy” used in the matter.
18:49: The counsel has made it clear that he is not aware of the meaning of “repugnancy” and has sought some time to search for the meaning of the same. The judge has been considerate enough to not only spare a couple of minutes to search for the meaning of the term but has even granted the counsel the permission to gulp down some water to calm his nerves.
18:52: Though the researcher from the respondents’ side has been successful in furnishing the judge with the meaning of “repugnancy”, the argument used in relation to the same could not satisfy the judge.
18:54: Both the judges have joined hands in harmony and are striking at the counsel with questions on the agreement between the parties on particular clauses of the contract. Both the judges have outright dismissed the argument used by the Counsel saying that it lacks conviction and clarity.
18:57: The counsel has sought an extension of a couple of minutes to wrap up his contentions and submissions. The nervousness and cold sweat of the second counsel can be perceived from the screen yet he is putting on a brave face and attempting to somehow wobble his way out of this.
19:00: The respondent side attempts to frame an argument on the unpredictability of hurricane which has been rejected by the judge on the ground that there are ways to predict and ascertain time of hurricanes.
19:10: With that, we come to the end of another exhausting yet fun-filled day of adventure of IMAM. We look forward to many more such enthusiastic and engaging rounds in the days ahead.
VCR-3: 924 vs 927
17:30: The first counsel begins with their submissions by discussing the first two issues of the proposition.
17:32: The counsel submits that the Arbitral Tribunal should consist of three arbitrators as the SCMA rules should take predence over the others.
17:34: The judge asks the counsel that whether the lex curie should be followed just by the virtue of it. In response, the counsel seems a little fazed and is unable to provide a satisfactory answer
17:36: The judge asks the counsel to provide for any legal backing to decide: What rules should be considered mandatory and what rules should be considered non-mandatory?
17:38: It seems like the counsel was stunned into silence by this question but they recover quickly to give a detailed answer
17:43: The judge asks the counsel to clarify regarding the bill of lading, who becomes the carrier to which the counsel gives quite an under-confident answer
17:45: The second counsel from the claimants’ side begins with their submissions regarding Issues 3 and 4 respectively.
17:48: The counsel submits that the Hague Rules are incorporated in the contract itself but the judge questions whether it has a force of law. In response to the judge’s question, the counsel seemingly could not give a legal backing to substantiate their submissions.
17:51: The counsel continues to fail to provide any authorities to substantiate their arguments when asked by the judge.
17:56: The counsel moves ahead to submit their final submissions regarding the damages that the claimants are entitled to, by way of application of the Hague Rules.
18:00: Yet again a small technical glitch throws the counsel off their flow! But they do well to recover fast and then continue with their submissions.
18:02: The counsel for respondents begin with their submissions by submitting that the Arbitration Tribunal should be a single arbitrator panel as the International Arbitration Act of Singapore will be applicable.
18:08: The judge asks the counsel to provide the justification for considering the clause mandatory and also provide why SCMA rules should be applicable in this case
18:10: The counsel seems unfazed with the layered question and responds confidently to the judge’s question.
18:13: The judge asks the counsel to clarify the facts regarding how the liability is set with regard to the discharge of the goods to which the counsel gives a seemingly satisfactory response.
18:17: The counsel submits their last limb of their argument while taking the judges to several case laws to establish the liability with regards to how the goods were discharged.
18:20: The second counsel for the respondents begins with their submissions regarding Issues 3 and 4 respectively.
18:23: The counsel submits that the applicability of Himalaya clause is valid.
18:26: The judge points the counsel to clarify whether it’s the due diligence on the part of the respondents that will decide to seaworthiness or unseaworthiness to which the counsel cleverly gives vague answers and skips directly to the next submission.
18:31: The counsel proceeds with establishing the validity of Hague Laws but the judges do not seem very satisfied with this argument.
18:36: The judge seems to be not satisfied by the last limbs of the arguments presented on Bill of Ladings and that is how the counsel concludes their submissions.
18:39: The counsel for claimants conclude their rebuttals.
18:41: the counsel for respondents conclude their rebuttals and move into the prep room as the deliberation begins.
18:50: Finally the rounds are over as the judges provide the teams with detailed feedback. This brings us to the end of Session 5.
VCR-4: 906 vs 902
17:29: Welcome back people! Let us see how it goes in the last session of the preliminary round! The teams are ready, judges are ready and it’s showtime!
17:30: The first speaker from Team 906 has taken the floor and has started with her submissions without a moment’s delay!
17:36: The Bench directed a question at the speaker which seemed to throw the speaker off her balance for a while, but admirably, she quickly regained control and answered the question with grace.
17:40: The speaker continues with her submissions, substantiating the same with a case law every now and then.
17:48: The floor has now been taken by the second speaker.
18:05: The first speaker of team code 902 takes the floor.
18:06: The Speaker before beginning with his submissions enquired if the Bench had any preliminary enquiries to make. When replied to in the negative, the speaker dives into his submissions with full vigour.
18:15: After some significant network issues, team code 902 is back with their arguments!
18:23: The speaker continues with his submissions, addressing all questions thrown at him, and still managing to find enough time for his arguments!
18:26: “If the Arbitrators have any questions, the Counsel would be more than happy to answer them”, the Speaker concluded with flair, getting an answer in the negative from the Bench! One of those rare times, a bench has no parting questions for a speaker it seems!
18:27: The second speaker has now taken the floor and is delivering arguments just as smoothly as her teammate!
18:30: The speaker continues with her submissions, linking her arguments together to form a chain defence for her side!
18:31: Looks like the bench does not go without question for too long and is back to hurling complexities at the speakers!
18:38: The Bench, upon directing a particularly amusing comment at the speaker, ended up making the speaker smile, with her confessing that she could not help but smile at that! It is just how the facts have been arranged!
18:40: The speaker has been given an extension of 30 seconds to sum up her arguments, which she managed to do well.
18:41: It’s time for the rebuttals again! Team code 906 is back with a three-part question for their opponent team.
18:43: Team code 902 has again taken the floor with an air of enviable confidence, but this time to specifically address the rebuttals!
18:46: As we are done with the rebuttal sessions, the round has ended for this session.
VCR-5: 925 vs 918
17:37: The counsel for claimant starts off the round enthusiastically, proceeding with their submissions regarding the applicability of the SCMA rules.
17:43: After an intense period of counter questioning, the counsel proceeds with their submissions on the express agreement of the parties on the seat of the arbitration.
17:47: The bench questions the counsel extensively on the governing law and the procedural law applicable and the counsel tries their best to answer to the satisfaction of the bench. However, the counsel ultimately fails to do so.
17:50: In a line of questioning on whether the SCMA rules will apply or the International Arbitration Act of Singapore, the bench asks the counsel to humour them by presenting arguments in favour of the International Arbitration Act instead of and against it.
17:58: The co-counsel takes the floor after some technical glitches, Nevertheless, they start their submissions regarding liability of the respondents with confidence.
18:08: Post technical glitches, the counsel takes the floor again and continues with their submissions regarding the duty of care under bailment.
18:12: The bench takes a back seat and also spares the counsel from difficult lines of questioning owing to continuing technical glitches.
18:17: The counsel defends the locus standi of the claimants to sue the defendants on the basis of the bailor-bailee relationship.
18:20: The bench pursues a thorough line of questioning regarding the privity of contract and the jurisdiction of the tribunal on resolving a dispute where Cruze is involved.
VCR-5: The bench remarks that the claimants are being very altruistic by claiming only the market price of $600,000 and not the higher amount!#nluoimam
— NLUO International Maritime Arbitration Moot(IMAM) (@NLUO_IMAM) March 25, 2022
18:39: The counsel for respondent begins their submissions regarding the conflict of laws and the precedence of the International Arbitration Act.
18:42: The co-counsel takes the floor and makes their submissions regarding the liability of the respondents in this dispute.
18:45: The counsel contends that the clause existing in the Bill of Lading saves the respondents from liability. The bench is skeptical on the enforceability of this unfair clause.
18:49: The counsel submits that the terms of the contract cannot be unfair if both parties agreed to it. The counsel contends that the claimants cannot “cut the cake and eat it too”.
18:55: With an extension, the counsel inches towards the end of their submissions regarding the liability of the respondents.
19:02: Owing to a technical glitch, the co-counsel again takes the floor and makes their submissions regarding the seaworthiness of the vessel
19:11: The counsel proceeds with rebuttals in a calm atmosphere and concludes the round.
VCR-6: 910 vs 913
17:32: For one last time today, the rounds have begun and here we go!
17:33: The speaker begins by thanking the judges for facilitating this event during COVID-19. He is asked to provide a short recap of the facts and he obliges.
17:35: Proceeding with his submissions, the client advocates for the adoption of SCMA institutional rules.
17:36: With the speaker proceeding with his arguments, there is anticipation of the result that awaits the teams. He comes up with very sound legal backing at his disposal to strengthen his arguments.
17:41: In what can be classified as a series of questions by the judges about the applicable law, the speaker emerges victorious by providing satisfactory answers in response.
17:42: The counsel makes references to several cases to satisfy the judges about the legal backing of his arguments.
17:44: The judges test the legal wit of the speaker and commence a tough round of questioning. He is asked to elaborate on the various provisions that he has relied on. The researcher aids him and they manage to answer a significant number of questions to the judges’ satisfaction.
17:46: The rounds are extremely engaging. However, the judges are extremely particular about the allotted time and the first speaker has to step down gloomily since he has not been able to present an entire issue.
17:49: When the second speaker suggests that she will be dealing with the third and fourth issue, they remind her that the second issue is yet to be dealt with.
17:51: The second speaker has already lost her composure. She’s stammering and seems very unsure about her arguments. Wonder what the situation will be like, when the questions come pouring in!
17:53: In what can be described as a truly nail-biting moment for the team, the judges seem extremely well versed with the intricacies and the minute technicalities of the case. Wish the same could be said about the claimant, given that she is clearly struggling to come up with answers that can satisfy the judges. Presenting the claimants’ side, the speaker sits completely quietly, staring at the screen, trying to fathom an answer for the questions asked. Finally, she breaks the silence and manages to come up with a decent answer.
17:56: The judges seem extremely well versed with the intricacies and the minute technicalities of the case. Wish the same could be said about the claimant, given that she is clearly struggling to come up with answers that can satisfy the judges.
17:59: The counsel tries to establish the principles of natural justice over the principles of party autonomy. The judges reject this contention by stating that in the present case, they fail to understand how the principles of natural justice are applicable.
18:01: The judges ask the counsel to refresh their memory regarding the facts of the case that she has cited. “The participants have to be ready with their papers because due to them, we are struggling!” The counsel seems extremely confused about whether the case is even present in the written submissions or not. The judges are displeased with this attitude and ask her to move on.
18:06: The rounds seem extremely grueling. But there are no hotly contested deliberations because the counsel seems to be unable to produce the maximum number of answers.
18:07: Visibly scared and anxious, the counsel’s teammates wait with bated breath for her to finish her arguments in an acceptable manner.
18:09: Just as the counsel concludes, the judge quizzes her about how they apportion liability as joint and several. This is an answer that the speaker seems to know. After listening to the question, she looks relieved and provides an answer. She finishes off her submissions with the prayer.
18:11: The judges warn the respondent’s researcher to be alert and ask him to put the relevant provisions in the chatbox for the judges’ convenience.
18:12: The judges ask their first question, “What is a hydrogen cell converter?” The counsel isn’t aware of its utility and seems to be speechless, which annoys the judges and they ask him to admit that he isn’t aware of the answer and not waste the court’s time.
18:14: After what cannot be classified as a very good start, the counsel proceeds to articulate his arguments efficiently.
18:16: The judges seek for authorities to back the counsel’s arguments. The counsel replies in negative. He relies on the Interpretation of Statutes but the judges are of a different opinion. In such a high-pressure situation, the counsel seems to have lost his composure and has started stuttering.
18:19: “The researcher isn’t doing his job!” When reprimanded for not pasting the authority in the chatbox, the counsel jumps to the defence of his researcher by stating that there is a problem in the chatbox and that no such option exists. The judges do not buy it.
18:21: An abrupt halt! One of the judges faces technical glitches. The counsel sees this as an opportunity to brush up on his arguments and fervently starts reading his material.
18:25: The counsel is being grilled extensively about the principles of law. The various replies provided by the counsel to satisfy the judges indicate that even though he is nervous, his arguments are well-researched.
18:27: If you don’t have an answer, don’t waste the time and just move on!’ The counsel concedes and jumps to the next issue.
18:29: After an onslaught of questions by the judges, the counsel does not do justice to the answers and passes the liability for providing satisfactory answers to his co-counsel.
18:31: The counsel seeks four minutes to summarise his submissions. He gets thirty seconds. Talk about high expectations!
18:33: The counsel yields the floor to his co-counsel.
18:35: “You and your counsel are giving us contradictory answers.” Oops, looks like there has been a rocky start. We can only hope that the speaker will maintain her composure and give the judges the answer that they want.
18:37: The counsel laughs at her answers when reprimanded and moves on to the next issue. Maybe she took the quote “Laughter can solve all your problems” a bit too seriously?
18:42: Flustered and puzzled, the counsel stammers while trying to come up with an answer that will help stop the plethora of questions being fired at her at the moment. It does not, however, look like she is succeeding.
18:46: The counsel tries to twist her words and term what the judge called ‘gross negligence’ as a minor issue. The judges don’t seem impressed by this act of her downplaying their mistakes. She is grilled on the same but can you blame the judges really?
18:48: Now that she is done with her submissions, the counsel seeks an additional minute to conclude with her prayer. Turns out, she was disputing the facts that were provided in the fact sheet. The judges point this out and look displeased.
18:51: The judges ask questions that seem to have demolished the entire line of the reasoning of the respondent. The speaker however continues maintaining her calm.
18:54: After failing to answer most of the judges’ questions, the counsel is asked to conclude by stating their prayer.
18:55: The rebuttals have begun. The applicants have come up with some really well-articulated and top-notch rebuttals to decimate the credibility of the respondents’ arguments.
18:57: The respondents are equally good with their sur-rebuttals. They give convincing replies while also pointing out the fallacies in the claimants’ rebuttals.
18:59: In what can be termed as one of the most hotly-debated segment and highlight of the entire rounds, the rebuttals and sur-rebuttals have begun. However the judges seem to not be satisfied. ‘Counsel, it’s the 21st century! What are you even saying? Hurricanes can be detected even 7 days prior to their occurrence.’
19:01: The judges move to the judges’ room and begin their deliberations. With a lot at stake, we hope that may the odds be in favour of the better team!
VCR-7: 921 vs 920
17:30: The applicant begins with his submission on the number of judges in the present case
17:35: The counsel makes his submissions without any hindrance.
17:36: The speaker now moves to the second issue of the conflict of law. He submits that the Hague Rules shall prevail in the present case. He reiterates the point with utmost confidence.
17:38: Upon being questioned by the Tribunal, the counsel clarifies that they are not seeking damages based on law of torts and that the same shall be dealt extensively by his co-counsel.
17:40: The counsel continues with his submissions and addresses the issue regarding the liability of the defendants.
17:41: Booming with confidence, the counsel lays heavy reliance on judgments and authorities.
17:42: The judges question the counsel regarding how they will rebut the justification of how Hague Rules wil
