Memorandum for CLAIMANT

SVKM’S NMIMS KIRIT P. MEHTA SCHOOL OF LAW ARBITRATION MOOT

COOPER AND HOFSTADER (C&H) ARCHITECTURE

AND ENGINEERING SERVICES LTD. (CLAIMANT)

KOOTHRAPPALI AND WOLOWITZ (K&W)

FOODS LTD. (RESPONDENT)

MEMORANDUM FOR CLAIMANT

Counsel for CLAIMANT

HARSH PHOPHALIA

MAYANK SRIVASTAVA

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 Memorandum for CLAIMANT

TABLE OF CONTENTS
INDEX OF ABBREVIATIONS……………………………………………………..
INDEX OF AUTHORITIES……………………………………………………….
STATEMENT OF FACTS……………………………………………………….
SUMMARY OF ARGUMENT…………………………………………………..
ARGUMENT………………………………………………………………………
I. THE ARBITRATOR HAS THE JURISDICTION TO HEAR THE DISPUTE……….
II. THE RESPONDENT IS IN BREACH OF ITS OBLIGATIONS UNDER THE
AGREEMENT………………………………………………………………………….
III. UNDER THE AGREEMENT ARE THERE ANY SUMS/DAMAGES DUE…………………...

IV. THERE IS NO A RISK OF ENFORCEMENT IF THE AWARD IS DELIVERED IN

FAVOUR OF THE CLAIMANT……………………………………………………………….
REQUEST FOR RELIEF………………………………………………………….

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 Memorandum for CLAIMANT

INDEX OF ABBREVIATIONS

& And

¶ Paragraph(s)

Art (s). Articles

CISG United Nations Convention on Contracts for the

International Sales of goods
C&H Cooper and Hofstader

FN(s) Footnote(s)

GSPA Gas Supply and Processing Agreement

K&W Koothrappali and Wolowitz

Ltd. Limited

Model UNCITRAL Model Law

Law

NICA Narnia International Centre for Arbittration

NoA Notice of Arbitration

OHADAC Organization for the Harmonization of Business

Law in the Caribbean.
v Versus

UNCITRAL United Nations Commission on International

Trade Law
UNIDROIT The International Institute for the Unification of
Private Law The International Institute for the
Unification of Private Law

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 Memorandum for CLAIMANT

INDEX OF AUTHORITIES
Bharat Petroleum Bharat Petroleum Corp. Ltd. V Great Eastern
Shipping Co. Ltd.
AIR 2008 S.C. 357
Cited in ¶:
Corporacion Corporacion Transnacional de Inversiones,
S.A. de C.V. v. STET International,
S.p.A. (2000),
49 O.R. (3d) 414
Cited in ¶:
Demerara Demerara Distilleries Private Limited v
Demerara Distillers Limited
(2015) 13 SCC 610
Cited in ¶:
East Mediterranean East Mediterranean Gas S.A.E. v. Egyptian
General Petroleum Corporation and Egyptian
Natural Gas Holding Company and Israel
Electric Corporation Ltd
ICC, 18215/GZ/MHM
Cited in ¶:
Holloway Holloway v Chancery Mead
2007
EWHC 2495 (TCC)
Cited in ¶:
Industrial Industrial Developments Limited v. The
Ministry of Petroleum Resources of the
Federal Republic of Nigeria
January 2017
Cited in ¶:

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 Memorandum for CLAIMANT

Lord Lord Hailsham, L.C. in Cassel & Co. Ltd. v.

Broome,
1972
1 All ER 801 (HL) at 823e
Cited in ¶:
MC Dermott MC Dermott international Inc., vs burn
standard co. ltd
2006
11 SCC P.181
Cited in ¶:
Re Corporacion Re Corporacion Transnacional de Inversiones,
S.A. de C.V. et al. and STET International,
S.p.A. et al.
(1999), 45 O.R. (3d) 183
Cited in ¶:
Ronald Ronald Elwyn Lister Ltd. v. Dunlop Canada
Ltd. ,
1982 1 S.C.R. 726
Cited in ¶:
Strategic Outsourcing Strategic Outsourcing, Inc. vs. Continental
Casualty Company
414 F. Supp. 2d 545
Cited in ¶:
Sulamerica CIA Sulamerica CIA Nacional De Seguros S.A.
and others v EnesaEngenharia S.A. and
others
2012
1 Lloyd’s Rep 671
Cited in ¶:
Swiss Swiss Timing Limited v Commonwealth
Games 2010 Organizing Committee.

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 Memorandum for CLAIMANT

(2014) 6 SCC 677

Cited in ¶:
The Bank of India The Bank of India Ltd. V Rustom Fakirji
Cowasjee
AIR 1955 Bombay 419
Cited in ¶:
Travaux Travaux préparatoires, United Nations
Conference on International Commercial
Arbitration, Recognition and Enforcement of
Foreign Arbitral Awards, Comments by
Governments on the draft Convention on the
Recognition and Enforcement of Foreign
Arbitral Awards,
E/CONF.26/3/Add.1
UNCITRAL Rules UNCITRAL Arbitration Rules (2013)
Cited throughout
UNIDROIT Principles UNIDROIT Principles of International
Commercial Contracts Rome, 2010
Cited in ¶:
Visa Visa International Limited v Continental
Resources (USA) Limited
2009
2 SCC 55
Cited in ¶:
Yusuf Yusuf Ahmed Alghanim & Sons WLL v Toys
"R" Us Inc
RU (HK) Ltd 126 F.3d 15
Cited in ¶:

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 Memorandum for CLAIMANT

SUMMARY OF FACTS
1. Cooper and Hofstader Architecture and Engineering Services ltd (The CLAIMANT) is a
highly profitable partnership firm comprising of two partners which is based in the
Republic of Narnia. It provides architecture service and consultancy for home and office
décor.
2. The RESPONDENT, Koothrappali and Wolowitz foods ltd. (The RESPONDENT) is one
of the biggest and internationally recognized food chains is based in Zindia and the state
of Zindia is a majority shareholder in it. RESPONDENT is building a new restaurant for
which it approached CLAIMANT and two other firms for providing services for the same.
3. RESPONDENT requested for proposal regarding the services from all the three firms.
CLAIMANT was already going through a tender process to provide services to Datsun Inc,
their regular customer, in connection with a new automobile plant that it was building in
Zindia. The project would have yielded a profit of Rs. 100 million and revenue of Rs. 500
million to CLAIMANT, but upon the request for proposal from RESPONDENT, it
withdrew its offer from Datsun.
4. RESPONDENT and CLAIMANT entered into an agreement on 15th September 2018,
where the stages of agreement were specified and price of Rs 150 million was fixed to be
paid over two years. RESPONDENT had to also pay CLAIMANT a guarantee amount of
Rs 5 lakhs within two weeks of entering into agreement. The stage 1 of the agreement
which involved delivery of an area plan and the budget for such a plan which required
cooperation between both the firms for on-site and off-site visits was priced at Rs.
10,00,000. CLAIMANT realized that there were a number of requirements of
RESPONDENT which were not specified by them at the time of agreement.
5. On 20th October 2018, CLAIMANT sent an email regarding the report on the progress of
the area plan and the budget, mentioning about the need to reassess the budget due the
increased requirements of the RESPONDENT and that there would be interruption in the
site visit due to the same to RESPONDENT. The CLAIMANT again emailed the
RESPONDENT requesting them for a meeting to discuss about the revised budget and the
new dates for the work to be done, but there was no reply to it by the RESPONDENT.

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6. On 30th October 2018, through an election the state of Zindia was voted to move out of
MERCOSUR, a union of neighboring states on agreement of trade and investment for
goods and services, which led the ruling government to step down. This move affected the
management board of the RESPONDENT and a new management was appointed to look
into its projects. The new representative appointed emailed all the firms they were dealing
with, about the change in the management and assured to revert back to them in some time.
7. The RESPONDENT started facing a lot of loses due to change in the management,
meanwhile due to lack of communication by the RESPONDENT, the CLAIMANT
continued working on the project and incurred additional expenses for the same. On 18th
November 2018, the CLAIMANT informed the RESPONDENT about the delay in
submitting the budget due to change in circumstance to which the RESPONDENT agreed.
8. On 20th December 2018, the CLAIMANT sent the Area plan and the tentative budget with
the additional expenses they had incurred along with an invoice of Rs 50,00,000 for the
work done. On 25th January 2019, the RESPONDENT acknowledged the email. The
CLAIMANT continued working and sent several mails in pursuant to the work in February
and March which remained unanswered by the RESPONDENT. Finally, being aggrieved
by the RESPONDENT’s conduct and non-payment of the dues, the CLAIMANT on 15th
April,2019 sent a notice declaring the contract terminated and an invoice of Rs 50,00,000
along with additional charges of Rs. 2,00,000 to the RESPONDENT. The CLAIMANT
also demanded damages of Rs. 30 Million for breach of contract in the first stage. The
RESPONDENT did not reply anything with regard to the notice.
9. On 10th June 2019, the CLAIMANT sent a Notice of Arbitration (hereinafter referred as
NoA) to the RESPONDENT which was received by them on 15th June 2019. In its NoA,
the CLAIMANT requested the Director of Narnia International Centre for Arbitration
(NICA) to act as Appointing Authority and appoint a sole arbitrator along with determining
the place of arbitration, also mentioning about its demand from the RESPONDENT.
10. On 20th June 2019, the NICA acknowledged receipt of the Notice of Arbitration and asked
from the RESPONDENT as to the designation of the Appointing Authority. On 5th July,
2019, having not heard from the RESPONDENT the NICA appointed Ms. Amy Farrah
Fowler, a well-respected arbitrator as the Sole Arbitrator. Ms. Fowler upon her
appointment mailed both the parties on 15th July 2019 , asking them (1) whether the

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CLAIMANT wished for its Notice of Arbitration to serve as its Statement of Claim; (2)
whether the DEFENDANT intended to participate in the proceedings; and (3) whether the
Parties had comments on the place of arbitration.
11. The CLAIMANT on 30th July 2019, replied that the NoA would serve as its Statement of
Claim that the place of arbitration should be Narnia on the basis of the Arbitration
Agreement and the ex-parte hearing of the case due to lack of participation from the
RESPONDENT. On 5th August 2019, due to lack of communication from the
RESPONDENT, the sole arbitrator ordered a) The Notice of Arbitration served as
Statement of Claim; b) The place of arbitration was Narnia; and c) The dispute would be
decided on the basis of the pleadings and without a hearing. She also declared the pleadings
closed and that she would proceed to render an Award.
12. On 15th August 2019, a law firm on behalf of the respondent came on record stating a)
The Arbitral Tribunal had no jurisdiction to decide the dispute in the absence of prior
good faith negotiations; b) CLAIMANT had breached the Agreement by failing to
deliver the Area Plan and the Budget and K&W’s silence was a clear sign that it
considered the Agreement had come to an end in light of changed circumstances; c)
In any event, the RESPONDENT was a State entity immune from liability in matters
to do with projects of national significance such as the current project; d) No further
sums were due pursuant to the Agreement or at all; e) No profits were lost given that
there had been no progress .
13. On 19th of August the CLAIMANT wrote to the sole arbitrator to uphold her Procedural
order as the contentions raised by the RESPONDENT was out of time and calculated to
subvert the arbitration proceedings in bad faith.

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 Memorandum for CLAIMANT

SUMMARY OF ARGUMENT
THE ARBITRATOR HAS THE JURISDICTION TO HEAR THE DISPUTE (I)
THE RESPONDENT IS IN BREACH OF ITS OBLIGATIONS UNDER THE
AGREEMENT. (II) Section 5 of the Indian Contract Act which deals with the Communication
of Revocation of Contract specifies that there has to be a communication of the Revocation. This
Section clearly states that once the period for Revocation of the contract has lapsed, the parties
cannot revoke the contract and then the contract will be binding on both the parties. Also another
important element of Section 5 of the Indian Contract Act, 1872 is the Communication of
Revocation of the contract. Without the communication, a contract cannot be revoked or
terminated. Also the argument of sub silentio that mere silence does not amount to an acceptance
but if there is a certain action or conduct from the opposite party’s side, which constitutes a positive
act, it can be considered as an acceptance. But in the present case there was no such express
communication nor there was any implied conduct which could be considered as acceptance of
termination of the contract. In fact the Respondent vide their email dated 25th January, 2019 have
given an indication that they are willing to continue the contract. Hence the default of payment to
the Claimant by the Respondent for the work completed as well as not abiding by the terms of the
contract by the Respondent is a clear indication of the Breach of Contract by the Respondent.
UNDER THE AGREEMENT ARE THERE ANY SUMS/DAMAGES DUE. (III)
Even after the constant efforts of the Claimant to enforce the contract and complete their part of
the contract, they were unable to do so due to the lethargic and ignorant attitude of the
Respondents. Even after the constant reminders of the Claimants vide their emails, there was no
response from the Respondent’s side. Due to this behavior of the Respondent, Claimant was forced
to terminate the contract and initiate Arbitral Proceedings which was the last resort available for
the Claimant. The termination of the contract has caused major losses to the Claimant in the form
that they lost a major project which was to be received from Datsun INC, whose revenue
generation was estimated to Rs.500 million with an estimated profit of Rs.100 million
approximately .The Claimant could neither proceed with the project offered by Datsun INC nor
could they generate profits from the existing contract with the Respondent. The Claimant has
already started working on the contract for which they have already paid a hefty sum of
Rs.50,00,000 with an addition incremental expense of Rs.2,00,000 paid due to the increased
requirements of the Respondents. The Claimants have made a number of attempts to negotiate

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 Memorandum for CLAIMANT

with the Respondents, with all the efforts going in vain due to the lack of interest of the
Respondent. The council would request the Hon’ble tribunal to pass the award in favor of the
Claimants and that the Respondents should be made liable to pay compensation for the damages
caused to the Claimants which amounts to Rs.30 million along with the additional working cost of
Rs.50,00,000 and Rs.2,00,000 of which invoice has already been sent..

THERE IS NO A RISK OF ENFORCEMENT IF THE AWARD IS DELIVERED IN

FAVOUR OF THE CLAIMANT. (IV)

Article V of the New York Convention sets forth the limited and exhaustive grounds on which
recognition and enforcement of an arbitral award may be refused by a competent authority in the
Contracting State where recognition and enforcement is sought. The Claimants are not found to be
in breach of any of the conditions as mentioned in the Article 5 of the New York convention and
hence there shall be no risk of enforcement if the award is delivered in favor of the Claimant. In
pursuance to the breach of contractual obligations, the Claimants have requested to declare the
contract terminated referring to the OHADAC principles on international commercial contracts
article 7.1.2 and UNIDROIT Principles of International Commercial Contracts 2016 section 7.3.1.
In pursuance to the breach of contractual obligations done by the Respondents, the Claimants have
merely asked the honorable court to direct the Respondent for restitution of costs incurred by
Claimant due to the Respondent's failure to perform its obligations under the agreement which is
also substantiated by international settled stances. There is no risk of enforcement of the same
either procedurally or by the application of substantive law. Hence the award can be directed in
the favor of the claimant.

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 Memorandum for CLAIMANT

ARGUMENTS

I. THE ARBITRATOR HAS THE JURISDICTION TO HEAR THE SUIT:

14. Article 16 of UNCITRAL model law states that “the arbitral tribunal may rule on its own
jurisdiction, including any objections with respect to the existence or validity of the
arbitration agreement. For that purpose, an arbitration clause which forms part of a contract
shall be treated as an agreement independent of the other terms of the contract.
15. The party objecting to the jurisdiction of the arbitrator has to raise the objection, as soon
as the arbitration proceeding is initiated and the arbitrators have to answer the issue as a
preliminary issue [MC Dermott international Inc., vs burn standard co. ltd (2006) 11 SCC
P.181]
16. The Respondent’s contention as to the jurisdiction of the arbitrator is that as per the Article
15, the governing laws and dispute resolution clause of the agreement between the
Claimant and the Respondent, which is, the condition that in case of any dispute the parties
will use their best efforts to negotiate an amicable result prior to proceeding for arbitration
and since, there was no prior good faith negotiation between the parties, therefore the
Arbitral Tribunal had no jurisdiction to decide the dispute. This position is completely
incorrect as:

(A) The conduct of the parties is such that any resolution process apart from arbitration
would be rendered futile:
17. The first communication regarding Stage 1 budget was made by the Claimants on 18th
November 2018. The Claimants communicated to the Respondent that owing to a change
in the circumstances, there shall be delay in submitting the budget. Pursuant to this, in a
telephonic interview the Respondent agreed to defer the date for Stage 1. On 20th December
2018 the claimants had sent the area plan and tentative Budget to Respondent wherein
additional expenses borne by the claimants were also incorporated on account of change in
requirements. Along with this an invoice of Rs.50,000,00 for work completed was sent.
18. On 25th January, 2019 an email was received by the Claimants from Mr. Holmes stating,
“Thank you for your message. We are reviewing it and will get back to you.” Pursuant to
that message, several follow up emails were sent by the Claimants throughout the months
of February and March, all of which remained unanswered. On account of such behavior

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by the Respondent and non-payment, aggrieved the claimants sent a notice on 15th April,
2019 declaring termination of the agreement and claiming payment of the invoice of Rs.
50,00,000 along with payment of additional costs of Rs. 2,00,000 incurred by the Claimants
between October 2018 to April 2019. The Claimants also sought damages of Rs. 30 million
for failure to perform contractual obligations.
19. Yet, not heard from the Respondents, on 10th June, 2019 a notice of arbitration was served
on the Respondents which was signed and received by them on 15th June, 2019. The notice
was simultaneously delivered to NICA, that acknowledged its receipt on 20th June,
2019.Finally, on not having heard from the Respondents, the NICA appointed sole
Arbitrator on 5th July, 2019 Ms. Amy Farah Fowler. She wrote to both parties especially
asking the Respondents if they intended to participate in the arbitration proceedings. On,
30th July, 2019 the Claimants wrote to the arbitrator that Notice of Arbitration would serve
as the statement of claim. Finally, on 5th August, 2019 not having heard from the
Respondents the Arbitrator passed a procedural order which was contested by the
Respondents on 15th August, 2019.
20. From the conduct of the Respondents, it is clearly noticeable that they did not pay attention
to any of the emails or any communications made by the Respondents until a procedural
order was passed. Thus, it is very evident that any other process apart from arbitration
would have been futile.

B) The un-certainty and non-determinative nature of the negotiation:

21. The non-determinative nature of negotiation makes the procedure completely contingent
upon the voluntary participation of the parties to the process. Without the participation of
one of the parties, there will be no negotiation procedure. Therefore, these dispute
resolution procedures are not enforceable under judicial supervision. Furthermore, it is
fruitless to constrain a reluctant party to negotiate because it would be an unsuccessful
attempt without the cooperation and consent of both parties. To be enforceable, the dispute
resolution process should at least meet the following requirements:
i. The process must be sufficiently certain, i.e. there should not be the need for an
agreement at any stage before the matters can be proceeded.

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ii. The administrative processes for selecting a party to resolve the dispute and to pay
that person should be defined
iii. The process or at least a model of the process should be set out so that the detail of
the process is sufficiently certain [Holloway v Chancery Mead (2007) EWHC
2495(TCC)]
24. In Sulamerica CIA Nacional De Seguros S.A. and others v EnesaEngenharia S.A. and
others [2012] 1 Lloyd’s Rep 671 (“Sulamerica“), the English Court of Appeal held that an
enforceable agreement to mediate must define the parties’ rights and obligations with
sufficient certainty. It found the mediation clause unenforceable as it did not set out any
defined mediation process or refer to the procedure of a specific mediation provider. The
dispute resolution clause [¶16] specifies for the parties to negotiate an amicable result but
the clause does not specify for a model of the process for negotiation nor does it refer to a
specific process for negotiation to make it binding and enforceable.
25. It is evident from the facts of the instant case that the Claimant made efforts to
communicate every detail to the respondent right from the stage 1 of the contract to the
Notice of Arbitration. But even after several attempts of the claimant the respondent did
not reply to any of the communications made to them, it was only after the procedural order
was passed, the Respondent contested it. This non-participatory conduct of the Respondent
shows that any kind of negotiation with would not have been of any help for the claimant
or fruitful for both the parties and would have led to further delay in payment of dues by
the Respondent, therefore in order to prevent further delay and uncertainty in the payment
of dues by the Respondent, the Claimant proceeded for arbitration. Thus, the Claimant had
made sufficient efforts to comply with the negotiation obligation and therefore it had
jurisdiction to proceed for arbitration.
26. In a case where the clause provided amicable settlement before reference to arbitration, the
Supreme Court referred to letters exchanged between parties and inferred that attempts
were made for amicable settlement with no result, leaving no option but to invoke
arbitration. [Visa International Limited v Continental Resources (USA) Limited (2009) 2
SCC 55]. A similar view was taken by the Supreme Court in Swiss Timing Limited v
Commonwealth Games 2010 Organizing Committee. [(2014) 6 SCC 677].

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27. In another case the Supreme Court had, while dealing with an application seeking
appointment of an arbitrator, rejected the plea that invocation of arbitration was premature.
Under the agreed mechanism, the parties had decided that the differences would be
resolved first by mutual discussions, followed by mediation, and only if mediation failed
would they arbitrate. The court inferred from the correspondence between the parties that
any attempt at that stage to resolve disputes by mutual discussions and mediation would be
an empty formality and proceeded to appoint an arbitrator. [Demerara Distilleries Private
Limited v Demerara Distillers Limited (2015) 13 SCC 610].

II. THE RESPONDENT IS IN BREACH OF ITS OBLIGATIONS UNDER THE

AGREEMENT
28. According to Section 5 of the Indian Contract Act, 1872 it has been stated that:
“A proposal may be revoked at any time before the communication of its acceptance is
complete as against the proposer, but not afterwards. An acceptance may be revoked at
any time before the communication of the acceptance is complete as against the acceptor,
but not afterwards.”
29. This Section clearly states that once the period for Revocation of the contract has lapsed
the parties cannot revoke the contract and that the contract is binding on the parties. Also
another important element of Section 5 of the Indian Contract Act, 1872 is the
Communication of Revocation of the contract. Without the communication, a contract
cannot be revoked or terminated. Pertaining to the facts of the case and the chain of emails
presented by Claimant it can be clearly seen that the Respondent have not been responding
to any of the mails and there was no communication of revocation of the contract neither
was there any implied action or conduct of the Respondent through which the Claimants
could construe the contract to be terminated from the opposite party’s side.
30. Claimant on the other hand have been performing their part of the contract quite diligently
where they have also incurred additional expenses on behalf of the Respondent as there
was no response from their side. Also mere silence on part of the Respondent is by no
means an indication to Claimant that the Respondent intended to revoke the contract, there
has to be an express communication of revocation which was to be made by the Respondent
which they failed to make.

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31. According to sec.53 of the Indian Contract Act, 1872

“53. Liability of party preventing event on which the contract is to take effect.—When a
contract contains reciprocal promises, and one party to the contract prevents the other
from performing his promise, the contract becomes voidable at the option of the party so
prevented: and he is entitled to compensation from the other party for any loss which he
may sustain in consequence of the non-performance of the contract.
Illustration: A and B contract that B shall execute certain work for A for a thousand rupees.
B is ready and willing to execute the work accordingly, but A prevents him from doing so.
The contract is voidable at the option of B; and, if he elects to rescind it, he is entitled to
recover from A compensation for any loss which he has incurred by its non-performance.”
32. On 15th Sept. 2018, Claimant and Respondent entered into an agreement pursuant to which
Claimant undertook to provide consultancy services to Respondent in accordance with
certain stages specified in the agreement. Claimant started their work and according to the
plan on 20th October, 2018 they email the report on the progress of the area plan and the
budget but the Respondent didn’t revert back to any of the emails and due to this Claimant
stopped their work. According to the above section Respondent prevent Claimant from
doing the work by not replying to the mails and Respondent has breached the contract and
is liable to compensate the loss occurred by Claimant.
33. Stage 1 of the Agreement scheduled on 30th November 2018, involved the delivery of an
area plan and budget for which required intense cooperation between representatives of
both the firms on-site as well as off-site which was priced at Rs.10,00,000. The preparation
of area plan involved various site visits by representatives of both the firms and it became
apparent to Claimant that Respondent had a number of requirements which were not
anticipated at the time of entering into the Agreement.
34. The additional requirements of the Respondent were not a part of the initial agreement
which created an inevitable need for frequent meetings and on-site visits by representatives
of both parties. Even though there was no response made by the Respondent and an increase
in the requirements by them, Claimant still continued to perform their part of the contract
by paying for the additional expenses incurred due to the additional requirements from
their own pockets. Even after the repeated reminders for meetings and updates sent to the
Respondent by the Claimant via email dated 20th October, 2018 and 26th October, 2018,

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there was no reply from the Respondent’s side. Also the invoices sent by the Claimant via
email dated 20th December, 2018 wherein the Claimant submitted the Area plan and the
budget were also left unanswered by the Respondent.
35. Even after the repeated reminders, the Respondent seemed extremely uninterested as well
as the Respondent defaulted in the payment of the work which was duly completed by the
Claimant. Thus there was a breach of contract committed by the Respondent as they
defaulted in timely payments and meetings which was to be carried out as per the terms of
the contract.
36. In the case of Bharat Petroleum Corp. Ltd. V Great Eastern Shipping Co. Ltd. [AIR 2008
S.C. 357] and The Bank of India Ltd. V Rustom Fakirji Cowasjee [AIR 1955 Bombay 419]
it was stated that mere silence does not amount to assent in a contract. But in certain
situations, silence coupled with the conduct of the person, takes the form of a positive act,
which may constitute an acceptance. This is the principle of an agreement ‘sub silentio’
which was substantiated in these cases. Similarly, even though the Claimant sent the
following emails to the Respondent:-

a) The email dated 20th October, 2018, mentioned that keeping in mind the number of
requirements of K&W, there was a need to reassess the parameters for the Budget.
b) The email dated 26th October, 2018, indicated that the revised parameters demanded a
significant increase in the Budget, for which the Claimant demanded a meeting in early
November wherein they could chalk down the new schedule of dates along with the
Budget.
c) The email dated 20th December, 2018, the Claimant sent the Area plan report and a
tentative budget to the Respondents wherein they incorporated the additional expenses
of Rs.50,00,000 borne due to the revised requirements of the Respondent.
d) There were a number of mails sent by the Claimant to the Respondent in the month of
February and March.
37. The mere silence of the Respondent was construed as an action of ‘sub silentio’, since in
the email dated 25th January, 2019 sent by the Respondent to the Claimant in reply to the
mail dated 20th December, 2019, the Respondent had said that, “Thank you for your
message. We are reviewing it and will get back to you”.

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 Memorandum for CLAIMANT

38. This mail of the Respondent dated 25th January, 2019 is an instance of the conduct of the
Respondent that acts as a positive act which constitutes an acceptance to the contract and
the on-going work which was being performed by the Claimant. The mail dated 25th
January, 2019 sent by the Respondent to the Claimant is a clear indication that the
Respondent had no intention of terminating the contract and that there was unnecessary
delay and ignorance on part of the Respondent.
39. In the case of Strategic Outsourcing, Inc. vs. Continental Casualty Company [414 F. Supp.
2d 545] the Court of Appeal stated that when a party loses a substantial amount of money
under the contract and the negotiation is impossible, then a motive to terminate the contract
is neither wrongful nor unconscionable. It further specifically held that "a party's desire to
avoid financial losses constitutes reasonable grounds for declining to perform otherwise
applicable contractual obligations."
40. The Claimant sent a number of mails to the Respondent which remained unanswered. The
invoice sent by the Claimant to the Respondent also remained unpaid as well as there was
no reply to the Area Plan and Budget which was sent along with invoice also remained
ignored by the Respondent. Finally, being aggrieved by this behaviour and non-payment
on the Respondent’s side, Claimant sent a notice to the Respondent on 15th April, 2019
declaring the agreement terminated and claiming payment of the invoice of Rs. 50, 00, 000
along with the payment of additional costs of Rs. 2,00,000 incurred by C&H between
October 2018 to April 2019.
41. Furthermore, they also demanded damages Rs. 30 million for the failure of the Respondents
to perform its contractual obligations in relation to Stage 1 and loss of profits. Though
according to Article 15 of Agreement, there should be best efforts made by the parties to
negotiate an amicable solution in occurrence of any dispute, but it was impossible to get
into any kind of negotiations with the Respondent as there was no response from the
Respondent’s side to any of the mails as well as the notice sent to the Respondent.
42. Hence it can be said that the Claimant approaching the Arbitral Tribunal is after all efforts
made to initiate negotiation but which could eventually not be held due to the lack of
involvement from the Respondent. There were major losses caused to the Claimant due to
which they were left with no option but to terminate the contract and initiate an Arbitration
to recover the compensation for the damages caused to Claimant. So it is clear from the

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 Memorandum for CLAIMANT

facts that the Claimant have not filed the Arbitration suit with any malafide intentions and
that the Arbitral Tribunal should pass an award in favour of the Claimants
III. UNDER THE AGREEMENT ARE THERE ANY SUMS/DAMAGES DUE
43. C&H Architecture and Engineering Services Ltd. is a highly profitable partnership firm
and specialize in providing architectural services for home and office décor. Claimant is a
small firm that provides assistance on a fixed-price contract basis. In the agreement, the
price fixed for providing the consultancy services was a fixed sum of Rs. 150 million i.e.
1500 lakhs, plus a guarantee amount of Rs. 5 lakhs was required to be paid within two
weeks of entering into the agreement.
44. The stage I which involved the delivery of budget and area plan and required intense
cooperation was priced at a consideration of Rs. 10 lakhs. However, during this stage,
Claimant realized that Respondent had a few other requirements which were not
anticipated at the time of entering into the agreement. However, Claimant decided to pursue
their services and emailed the report on progress on budget and plan to the Respondent
saying that the parameters of the budget need to be changed owing to the new requirements.
45. Claimant again emailed to the Respondent stating significant increase in budget and
requested a meeting to chalk down the schedule with respect to the same. Again, there was
no reply from the Respondent. After the change in management of Respondent, which was
not informed to Claimant, they continued working on their project with K&W and had to
bear additional expenses with regard to the same.
46. Claimant had to bear the brunt of change in the management of the Respondent and had to
bear the additional expenses. When Claimant stated that there would be delay in submitting
the budget, Respondent agreed to defer the Stage I of the agreement. If the Respondent had
provided the requirements that it wanted prior itself, the execution of the stage would not
have taken place and both the parties would not have had to go through the difficult
situation. It was especially financially draining for Claimant, considering it only had this
project and had given up on all other lucrative projects for this project with Respondent.
47. Short after, Claimant sent the Area plan report and a tentative budget to K&W which
incorporated the additional expenses borne by them due to the revised requirements of the
Respondent and tendered an invoice of Rs. 50 lakhs. While an email did come from Mr.

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Holmes, the new manager, saying they would get back after review, several emails
pursuant to which remained unanswered.
48. Even after constant reminders sent by Claimant about the increase in requirements and that
there was an urgent need to increase the budget, Respondent neglected the series of emails
sent by Claimant between July 2018 to April 2019. Since Claimant had performed their
part of the contract with utmost diligence, they duly deserved their payment for the work
performed. Even after the constant reminders about the meetings and requirements about
increased budgets, since there was no reply from the Respondent, Claimant stopped the
work and asked for their due payments which were willfully neglected by the Respondent.
Thus there was a breach of the contract which was committed by K&W as they failed in
paying C&H for the amounts which it duly deserved.
49. Article 30(2) and Article 30(3) of the UNCITRAL Model Law, 2013 states that:

30(2): If a party, duly notified under these Rules, fails to appear at a hearing, without
showing sufficient cause for such failure, the arbitral tribunal may proceed with the
arbitration.
30(3): If a party, duly invited by the arbitral tribunal to produce documents, exhibits or
other evidence, fails to do so within the established period of time, without showing
sufficient cause for such failure, the arbitral tribunal may make the award on the evidence
before it.
50. Since there was no involvement by the Respondent in replying to Claimant’s mails, the
Claimant had sent an Arbitration Notice to the Respondent on 10th June, 2019 being
aggrieved by the unprofessional behavior of the Respondent. Subsequently, on 5th July,
2019 having not neither heard from the Respondent nor received indications that the emails
sent by the Claimant had bounced back, the Director of Narnia International Centre for
Arbitration (NICA) appointed Ms. Amy Farah Fowler as the Sole Arbitrator. Even after
repeated reminders from the Arbitral Tribunal the Respondent never showed up for
pleadings. Eventually after the time had lapsed, the Respondent appeared before the
Arbitral Tribunal through Baker Mckenzie, a law firm.
51. The period for appearance before the Tribunal has already been lapsed and the Respondent
do not have a sufficient cause for their delayed appearance. These actions of the
Respondent have already caused major losses to the Claimant and hence, the Respondent

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 Memorandum for CLAIMANT

should be directed to pay for the damages caused to the Claimant. Also since the period for
appearance has already lapsed, the Tribunal shall stand by its Procedural Order passed on
5th August, 2019 wherein it was stated that the award shall be decided without a hearing as
the Respondent did not appear before the Tribunal in time.
52. The term ‘Damages’ has been defined by McGregor ‘as the pecuniary compensation,
obtainable by success in an action, for a wrong which is either a tort or a breach of contract,
the compensation being in the form of a lump sum which is awarded unconditionally.’ This
definition was adopted by Lord Hailsham, L.C. in Cassel & Co. Ltd. v. Broome, [(1972) 1
All ER 801 (HL) at 823e]. The Claimant have incurred huge amount of damages due to the
breach of contract which has been committed by the Respondents. The damage caused to
the Claimant include the following amounts:
i. The additional costs incurred by the Claimant between October 2018 to April
2019 which were due to the additional requirements of the Respondent, amount
to Rs.2,00,000.
ii. Payment of the Invoice for the work already completed by the Claimants which
amounts to Rs.50,00,000.
iii. The breach of contract committed by the Respondents and loss caused as the
Claimants missed out on the project offered by Datsun INC which has led to
huge damages caused to the Claimants. These damages caused by the
Respondents to the Claimants amount to a loss of Rs.30 million.
53. These damages caused by to the Claimants should be duly compensated by the
Respondents with immediate effect.
54. Section 73 of the Indian Contract Act states that:
When a contract has been broken, the party who suffers by such breach is entitled to
receive, from the party who has broken the contract, compensation for any loss or damage
caused to him thereby, which naturally arose in the usual course of things from such
breach, or which the parties knew, when they made the contract, to be likely to result from
the breach of it. —When a contract has been broken, the party who suffers by such breach
is entitled to receive, from the party who has broken the contract, compensation for any
loss or damage caused to him thereby, which naturally arose in the usual course of things

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 Memorandum for CLAIMANT

from such breach, or which the parties knew, when they made the contract, to be likely to
result from the breach of it.
55. The Respondent has committed a major breach of contract by defaulting in payment of the
dues which were payable to the Claimant. The Respondents have committed a breach by
not abiding to the terms of contract and defaulting in the payments which makes the
Respondents liable to pay compensation for damages caused to the Claimants as per the
provisions of Section 73 of the Indian Contract Act, 1872.

IV. THERE IS NO A RISK OF ENFORCEMENT IF THE AWARD IS DELIVERED IN

FAVOUR OF THE CLAIMANT

4.1 There was no breach of the standard for enforcement of arbitral award in
pursuance to international law.
56. Article V of the New York Convention sets forth the limited and exhaustive grounds on
which recognition and enforcement of an arbitral award may be refused by a competent
authority in the Contracting State where recognition and enforcement is sought. The final
text of article V reflects the recommendation of the Dutch delegation to eliminate the
requirement of double exequatur, to restrict the grounds for refusal of recognition and
enforcement as much as possible and to place the burden of proving such grounds on the
party opposing recognition and enforcement. [Travaux préparatoires, United Nations
Conference on International Commercial Arbitration, Recognition and Enforcement of
Foreign Arbitral Awards, Comments by Governments on the draft Convention on the
Recognition and Enforcement of Foreign Arbitral Awards, E/CONF.26/3/Add.1, para. 7.]
57. The New York Convention contains an exhaustive list of the grounds upon which courts
in the Contracting States may refuse recognition and enforcement. The grounds for refusal
under article V do not include an erroneous decision in law or in fact by the arbitral tribunal.
A court seized with an application for recognition and enforcement under the Convention
may not review the merits of the arbitral tribunal’s decision. This principle is unanimously
confirmed in the case of Trading Company (Israel) v. Buyer (Germany). Courts of the
Contracting States have also consistently found that the Convention does not allow refusal
to recognize and enforce based on procedural grounds other than those listed in article V.

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 Memorandum for CLAIMANT

58. As discussed earlier the Claimant are not found to be in breach of any of the conditions as
mentioned in the article 5 of the New York convention and hence there shall be no risk of
enforcement if the award is delivered in favor of the Claimant.

4.2 The feasible nature of the pleadings by the claimant.

59. In pursuance to the breach of Contractual obligations, the Claimants have requested to
declare the contract terminated which they have an absolute right to as derived by the Lex
Mercatoria referring to the OHADAC principles on international commercial contracts
article 7.1.2 and UNIDROIT Principles of International Commercial Contracts 2016
section 7.3.1.
60. In pursuance to the breach of contractual obligations done by the Respondent, the
Claimants have merely asked the honorable court to direct Respondent to pay a sum of Rs.
50,00,000 pursuant to its invoice of 20th December 2018; Further the Claimant ask for
restitution of Rs.2,00,000 of incremental costs incurred by Claimant due to the
Respondent's failure to perform its obligations under the Agreement.
61. The general principles of the Model Law have been set forth by Lax J. in the case of Re
Corporacion Transnacional de Inversiones, S.A. de C.V. et al. and STET International,
[S.p.A. et al. (1999), 45 O.R. (3d) 183: Governing Principles of the Model Law]. The
Model Law is a collaborative effort among nations to facilitate the resolution of
international commercial disputes through the arbitral process. Article 5 of the Model Law
expressly limits the scope for judicial intervention except by application to set aside the
award or to resist enforcement of an award under one or more of the limited grounds
specified in Articles 34 or 36. Under Article 34 of the Model Law, the applicants bear the
onus of proving that the awards should be set aside. If the applicants fail to satisfy this
onus, Articles 35 and 36 of the Model Law expressly require this court to recognize and
enforce the awards.
62. In the given case, it is not established that there has been any breach of the enumerated
grounds in article 34 and 36 of the UNCITRAL model law. party against whom the award
is invoked was given proper notice of the appointment of an arbitrator or of the arbitral
proceedings and it cannot be established from the facts that the respondents were otherwise
unable to present his case due to a valid reason; the composition of the arbitral tribunal or

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 Memorandum for CLAIMANT

the arbitral procedure was in accordance with the agreement of the parties as indicated by
Article 15 (¶ 16) in the contract between the two parties.
63. Hence there are no grounds under which the Respondents may approach the court to set
aside the given order hence there shall be no risk in the enforcement of the given order.
64. In the case of Ronald Elwyn Lister Ltd. v. Dunlop Canada Ltd. , [1982 1 S.C.R. 726] it
was again emphasized about the enforcement of contracts and has stated that, Where parties
experienced in business have entered into a commercial transaction and then set out to
crystallize their respective rights and obligations in written contract drawn up by their
respective solicitors, it is very difficult to find or to expect to find a legal principle in the
law of contract which will vitiate the resultant contracts. Certainly where the parties have
capacity in law to enter into the contract, where the terms of the contract are clear and
unambiguous, where there is a valid consideration passing between the parties, and where
there is no evidence of oppression or operative misrepresentation, the law recognizes no
principle which fails to enforce the validity of such a contract. In pursuance to this stance
by the court and the principle of ex aequo et bono which is expressly written in the article
15 of the agreement between two parties, the claimants reiterate the fact that granting of
the relief claimed by C&H is in no Manner unenforceable in nature.
65. The notion that the declaration of award for the claimants would be bad in public policy
and the case that there were no hearings and the matter would be decided based on
pleadings is unmerited. In the case of Corporacion Transnacional de Inversiones, S.A. de
C.V. v. STET International, [S.p.A. (2000), 49 O.R. (3d) 414] is was quoted that : Article
15(2) of the International Chamber of Commerce Rules of Arbitration provides that if one
of the parties is absent without valid excuse the arbitrator shall proceed with the arbitration
and “such proceedings shall be deemed to have been conducted in the presence of all
parties”. It hardly offends our notions of fundamental justice if a party that had the
opportunity to present its case and meet the opposing case forfeits that opportunity by
withdrawing from the arbitration.
66. The final relief claimed by Claimant is to order the Respondent to pay Rs. 30 million in
lost profits that Claimant undoubtedly would have earned it pursued the contract with
Datsun instead of entering into a contract with the Respondent. In pursuance to this claim
it is necessary to establish that the future profit is certain in nature and not just a mere

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 Memorandum for CLAIMANT

speculation. To substantiate the same the counsel would like to refer to the strong relations
of C&H with Datsun Inc (¶3). In the words of the Tribunal in East Mediterranean Gas
S.A.E. v. Egyptian General Petroleum Corporation and Egyptian Natural Gas Holding
Company and Israel Electric Corporation Ltd [ICC, 18215/GZ/MHM]: The important fact
is not whether [Claimant] can prove its profitability in the past, but rather whether it is
reasonable to presume that, were it not for [Respondent]’s wrongdoing, it would have
obtained a foreseeable stream of income in the future.
67. This approach is illustrated in Process and Industrial Developments Limited v. The
Ministry of Petroleum Resources of the Federal Republic of Nigeria [January 2017]. In that
case, the parties entered into a 20-year Gas Supply and Processing Agreement (GSPA) in
2010, whereby Nigeria would supply Wet Gas to P&ID (the Claimant) which would
process it in a newly-built facility and return it in the form of Lean Gas. The Claimant
estimated that the project would produce a net profit of US$5 billion to US$6 billion over
a 20-year period. The Respondent objected stating that the Claimant should only be entitled
to nominal damages as it had not fully performed its obligations under the GSPA at the
date of the repudiation. The Respondent also insisted that damages could only be awarded
for a period of three years as the Claimant had a duty to mitigate its loss and it should have
pursued other investment opportunities.
68. Despite the repudiation occurring at a very early stage of the contract, the Tribunal
considered that there was no evidence that the Claimant would not have performed its
obligations if it had been supplied with Wet Gas. In other words, the evidence indicated
that Claimant would have been able to operate a profitable business, and the lack of past
operating history was not a decisive factor for the Tribunal in the circumstances. The
Tribunal awarded full compensation over the full length of the contract, so US$6.6 billion
before interest.
69. The claimants put forth the argument to apply the international principle of lucrum cessans.
The term ‘income’ covers both positive income, which is to be construed as a gain for the
individual concerned, and negative income, which denotes a loss or lucrum cessans for that
individual. The applicant asserts that the damage suffered by it consists of three elements,
namely, the loss sustained (damnum emergens), loss of profit (lucrum cessans) and harm
to its image.

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 Memorandum for CLAIMANT

70. In breach of contract cases, not involving any expropriation, the value of the loss will often
be computed on the basis of loss of profits or consequential liability to a third party. The
alternative of capital expenditure will not be relevant. Thus in the case of a sale of goods,
a purchaser who has not received the goods will be entitled to the loss of profits which he
could have made from the resale. Similar law would apply to services.
71. An example of this principle in practice is the decision of Yusuf Ahmed Alghanim & Sons
WLL v Toys "R" Us Inc [RU (HK) Ltd 126 F.3d 15]. The dispute concerned a Supply
Agreement and a License and Technical Assistance Agreement through which the
claimant, a privately owned Kuwaiti business opened a Toys "R" Us store in Kuwait and
13 other countries located in and around the Middle East. A dispute arose between the
parties which led to the termination of the agreement and arbitration. The respondent was
found to be at fault and the tribunal was required to determine the appropriate level of
damages to award the claimant. While in this case the claimant did have an operating
history, the business had to date operated at a loss. However, the arbitral tribunal found
that it would have expected profits in the future, and therefore that it had suffered a loss for
which it should be compensated.
72. Hence the enforcement of the relief is not in contravention of any lex marcatory law and
the enforcement of the same is not at any foreseeable risk.

REQUEST FOR RELIEF

Wherefore in the light of the foregoing arguments and CLAIMANT’s prior written pleadings,
CLAIMANT respectfully requests the Tribunal to adjudge and declare that:

1. Declare the Agreement terminated.

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 Memorandum for CLAIMANT

2. Respondent to pay Rs. 50, 00, 000 pursuant to its invoice and Rs. 2,00,000 of incremental
costs incurred by Claimant due to Respondent’s failure to perform its obligations under the
Agreement
3. Respondent to pay the Claimant Rs. 30 million in lost profits that Claimant undoubtedly
would have earned it if pursued the contract with Datsun instead of entering into a contract
with K&W;

And pass any such order or direction as the Tribunal deems fit and proper, for this the CLAIMANT
duty bound prays.

Gopika Mundra Vaibhav Gwalani

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