Memo Arbitration

ALTERNATIVE DISPUTE RESOLUTION (ADR) MOOT, 2019.
On submission to the
NARNIA INTERNATIONAL CENTRE FOR ARBITRATION (NICA)
In the matter of:
Cooper and Hofstader (C&H) Architecture and Engineering Services Ltd.

…………………………………………………………… Claimant
Versus
Koothrappali Wolowitz (K&W) Foods Ltd…………………… Respondent
Counsel for Respondent:
-Aayush D. Desai A041
-Sameeksha R. Sharma A017
MEMORIAL ON BEHALF OF THE RESPONDENTS

TABLE OF CONTENTS
LIST OF ABBREVIATIONS…………………………………………………………………………...
INDEX OF AUTHORITIES…………………………………………………………………………….
JUDICIAL DECISIONS…………………………………………….......................................................
STATEMENT OF FACTS………………………………………………………………………………
SUMMARY OF ARGUMENTS……………………………………………...........................................
ARGUMENTS…………………………………………………………………………………………...
I. WHETHER THE ARBITRATOR HAS THE JURISDICTION TO HEAR THE DISPUTE.
a. The Arbitral Tribunal had no jurisdiction to decide the dispute in the
absence of prior good faith negotiations…………………………………………
II. Whether any Party is in breach of its obligations under the Agreement
a. The Claimant had failed to delivered the Area Plan and the Budget….
b. Request of Ex parte order by Claimant……………………………………
III. WHETHER THERE ARE ANY SUMS/DAMAGES DUE UNDER THE AGREEMENT
a. K&W is not liable to pay Rs. 50, 00, 000 to C&H pursuant to its invoice of 20th
December 2018 due to fundamental breach of contract…………………...
b. K&W's failure to perform its obligations under the Agreement was beyond its
control…………………………………………………………………………….
c. No certainty proved with regards to the loss profits…………………….
IV. WHETHER THERE BE A RISK OF ENFORCEMENT IF THE
AWARD WAS DELIVERED IN FAVOUR OF THE CLAIMANT.
a. Claimant has disregarded the sovereignty and established legal order of
the state ……………………………………………………………………
b. Against the essential economic interests of the state (public policy)
RELIEF REQUESTED……………………………………………………………………………

LIST OF ABBREVIATIONS
Art. / Arts. Article / Articles
CISG United Nations Convention on Contracts for the International
Sale of Goods, 11 April 1980
e.g. Exempli gratia (for example)
Ibid. ibidem (at the same place)
ICC International Chamber of Commerce
i.e. Id est (that is)
Inc. Incorporated
Model Law UNCITRAL Model Law on International Commercial
Arbitration, 1985
New York Convention United Nations Convention on the Recognition and

Enforcement of Foreign Arbitral Awards, New York,1958
No. / Nos. Number / Numbers
p. / pp. Page / Pages
para. / paras. paragraph / paragraphs
sect. section
UNCITRAL United Nations Commission on International Trade Law
UNCITRAL Rules United Nations Commission on International Trade

Law Arbitration Rules, 1976
v. versus (against)
Vol. Volume

INDEX OF AUTHORITIES
STATUES AND TREATIES
CISG Convention on Contracts for the International Sale of

Goods, Vienna, 1980.
New York Convention Convention on the Recognition and Enforcement of
Foreign Arbitral Awards, New York, 1958.
UNCITRAL Model Law UNCITRAL Model Law on International Commercial
Arbitration, 1985.
RULES, LEGISLATION, UN RESOLUTIONS AND CONVENTIONS
UNCITRAL Arbitration Rules on The United Nations Commission on

International Trade Law.
NYC NewYork Convention.
CISG Convection on International Sales of Goods.
JUDICIAL DECISIONS
Board of Control for Cricket in India Board of Control for Cricket in India v.
Cricket Association of Bihar, [(2015) 3
SCC 251]
K.K Modi K.K Modi v. K.N. Modi, [(1998) 3 SCC

573],

Bharat Bhushan Bansal Bharat Bhushan Bansal v. U.P. Small
Industries Corporation Ltd [(1999) 2 SCC
166],
Bihar State Mineral Development Corporation Bihar State Mineral Development

Corporation v. Encon Builders [(2003) 7
SCC 418],
State of Bihar State of Bihar v. Damodar Das (1996) 2

SCC 216 (2012) EWHC 1745 (Comm)
(2013) EWCA Civ 905]
Felthouse Felthouse v. Bindley [(1862) 142 E.R.

1037]
Jagdish Chander Jagdish Chander v. Ramesh Chander and

Ors [(2007) 5 SCC 719]
ONGC ONGC v. Saw Pipes [AIR 2003 SC 2629]
Renusagar Renusagar Power Co. Ltd. v. General

Electric Co. [1994 Supp. 1 SCC 644]
Cotton Corporation of India Cotton Corporation of India v. Bombay

Dyeing and Manufacturing [2006 (5) Bom
CR 105]
Surendra Kumar Dalmia Surendra Kumar Dalmia vs Suryaa Sponge

Iron Ltd. & Ors [2011 (162) CompCas 161
(CLB)]
Board of Control for Cricket in India Board of Control for Cricket in India v.
Cricket Association of Bihar, [(2015) 3
SCC 251]
COSID COSID v Steel Authority of India Ltd [AIR

1986 Delhi High Court]

BOOKS
Black's Law Dictionary Bryan A. garner, Black's Law Dictionary, Fourth pocket
Edition,West Publish (2011).
Born Gary B. Born, International Commercial Arbitration,
Second Edition, Kluwer Law International (2014).
Waincymer Jeff Waincymer, Procedure and Evidence in International
Arbitration, Kluwer Law International (2012).
JOURNALS
Gőmez Katia Fach Gőmez, Rethinking the Role of Amicus
Curiae in International Investment Arbitration: How to
Draw the Line Favorably For the Public Interest, 35
FORDHAM INTERNATIONAL LAW JOURNAL
510(2012).
Jones Doug Jones, Dealing with Multi-tiered Dispute
Resolution Process, 75 Arbitration 188(2009).
Kayali Didem Kayali, Enforceability of Multi-tiered Dispute
Resolution Clauses, 27 JOURNAL OF
INTERNATIONAL ARBITRATION 551(2010).
Paulsson Jan Paulsson, Jurisdiction and Admissibility, in Global
Reflection on International Law, Commerce and Dispute
Resolution Liber Amicorum in honour of Robert Briner,

ICC Publishing (2005).
ARTICLES
Richards Bradley J. Richards, “Note, Contracts for the
International Sale of Goods: Applicability of

the United Nations Convention”, 69 IOWAL.
REV. 209 (1983)
Samson Claude Samson, “La Convention des Nations

Unies sur les contrats de venteinternationale de
marchandise: Etude comparative des
dispositions de la Convention et des règles de
droitquébécois en la matière,” 23
CAHIERSDEDROIT927 (1982)
Holdsworth Judith L. Holdsworth, Practical Applications of

the
United Nations Convention on Contracts for

the International Sale of Goods (CISG [1]),
DEKIEFFER

STATEMENT OF FACTS
 Cooper and Hofstader (C&H) Architecture and Engineering Services Ltd. is an established
and highly profitable partnership firm based in the Republic of Narnia which specialises in
providing architecture services along with being a consultancy firm for home and office
spaces décor.
 Koothrappali and Wolowitz (K&W) Foods Ltd. is one of the biggest food chains based in
Zindia and is internationally recognized as one of the best food chains where State of Zindia
is a majority stake holder.
 On 15 September 2018, K&W and C&H entered into an agreement pursuant to which C&H
undertook to provide consultancy services to K&W in accordance with certain stages
specified in the Agreement, wherein the price was a fixed sum of Rs. 150 million to be paid
over two years and C&H expected to generate them in the second year.
 Stage I was scheduled on 30th November, 2018 involving the delivery of area plan and budget
which was priced at 10,00,000.
 Stage II took place on 20th October, 2018 where C&H sent an email to K&W with the
progress of their area plan and budget and further increase in requirements on K&W the
parameters of budget might increase which would cause interruption to site visit meantime.
 26th October 2018: New budget plan was drafted and initiated early meeting in the month of
November wherein they could discuss the new plan with K&W.
 30th October 2018: Election was conducted in the State of Zindia where Zindia was moved
out of the Union which ultimately led to the fall of the current Government.
 The change in the Government led to a change in managing board of K&W. The company
further appointed Mr.Homles who had sent uniform email to the firms about his appointment.
 The change in the management had a huge impact on services which led to the firms backing
out from the contracts with the company.
 18th November, 2018: There was a delay made by in submitting the budget due to the change
in circumstances by K&W which was communicated to them through telephonic
conversation.
 20th December 2018: Area plan and budget was sent to K&W wherein additional expenses
and requirements where mentioned due to the revised demands by K&W
 25th January 2019: Mr. Homles from K&W replied to the message. However further mails in
the month of February and March remained unanswered.

 15th April 2019: Termination Agreement notice was sent including the invoice of rs 50,00,000
along with the additional costs borne by the company between October 2018 to April 2019.
Further 30 million compensation was also claimed as K&W failed to fulfil the contractual
obligation of Stage I.
 The Agreement had the following provision:
“Article 15: Governing Law and Dispute Resolution: In the event of any dispute arising
under or in relation to this Agreement the Parties will use their best efforts to negotiate an
amicable result, the outcome of which shall be approved by the Zindian Ministry of Food
and Agriculture. Should negotiations not prove fruitful, any Party may refer the dispute to
arbitration under the UNCITRAL Arbitration Rules. The Arbitral Tribunal shall decide the
case applying the principles of lex mercatoria and good faith in contractual relations. Any
dispute relating to the interpretation of the Agreement shall be decided by the courts of
Narnia."
 10th June 2019 no replies were made by K&W as a result C&H sent Arbitration Notice which
was received and signed on 15th June 2019. The notice states that C&H 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.
 Further the notice was read as follows
a) Declare the Agreement terminated;
b) Order K&W to pay to C&H Rs. 50, 00, 000 pursuant to its invoice of 20th December 2018
c) Order K&W to pay Rs. 2, 00,000 of incremental costs incurred by C&H due to K&W's
failure to perform its obligations under the Agreement;
d) Order K&W to pay to C&H Rs. 30 million in lost profits that C&H undoubtedly would have
earned had it pursued the contract with Datsun instead of entering into a contract with K&W
 20th June 2019: NICA acknowledged receipt of Arbitration and invited comments from K&W
 5th July 2019: No communication was received from K&W. Further NICA appointed Ms.
Amy Farah Fowler as sole arbitrator.
 15th July 2019: Ms. Fowler wrote to the Parties to ask (1) whether C&H wished for its Notice
of Arbitration to serve as its Statement of Claim; (2) whether K&W intended to participate in
the proceedings; and (3) whether the Parties had comments on the place of arbitration.

 30th July 2019: Counsel for C&H replied that Notice of Arbitration would serve as its
Statement of Claim and that the place of arbitration should be Narnia on the basis the
Arbitration Agreement. Counsel for C&H also requested that the dispute be decided without
a hearing on the basis of the pleadings given K&W’s lack of participation in the proceedings,
in order to save costs.
 5th August 2019: No reply was made from K&W Procedural Order was issues by Ms. Fowler
that 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.
 15th August 2019: Baker Mckenzie, a Law Firm came on record on behalf of K&W stating:
a) The Arbitral Tribunal had no jurisdiction to decide the dispute in the absence of prior good
faith negotiations; b) C&H 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, K&W 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.
 19th August 2019: Counsel for C&H wrote in protest to stand by the Procedural Order as
K&W was out of time and calculated to subvert the arbitration proceedings in bad faith.

SUMMARY OF ARGUMENTS
1. WHETHER THE ARBITRATOR HAS THE JURISDICTION TO HEAR THE DISPUTE?
The Arbitral Tribunal had no jurisdiction to decide the dispute in the absence of prior good faith
negotiations as the claimant had injured the rights of respondent by breach of his duty such as
delaying the Area Plan and Budget, sending Area Plan and Tentative Budget instead of Final One,
tendering the invoice of 50 Lakhs of work done even when the budget and area plan was not
finalized and also requesting the Arbitral Tribunal to give an ex-parte order by portraying the
wrong image of Respondent in front of Tribunal that respondent didn’t appear in order to save the
costs. This clearly resulted in non-good faith negotiations. The agreement between both the parties
had required greater degree of cooperation especially after the change of management in K&W.
However, the claimant time and again have not fully cooperated with the respondent and rather
increase the burden of respondent by sending the invoice even when the budget was yet to be
finalized.
2. WHETHER ANY PARTY IS IN BREACH OF ITS OBLIGATIONS UNDER THE

AGREEMENT?
The delaying of plan and tentative budget by the claimant had led to the fundamental breach, because
there was a change in the management team of K&W, who were not aware of the earlier development.
The claimant had tendered an invoice of additional 50, 00,000 without any further notice of the work
which was going on. Since, there was limited working capital available after the ballot had occurred.
It had become difficult for the respondent to provide for both increased budget and invoice which led
to further delay of this project. Hence, leading to the fundamental breach on the part of claimant. On
the other hand, asking Ex parte order from tribunal is also violation of Principles of Natural Justice
i.e. all parties must be heard. Referred to as the hearing rule, the principle holds that each party must
be given adequate notice of proceedings, the opportunity to present and challenge evidence and to
have that evidence properly considered which was denied to the respondent therefore, claimant is in
breach of its obligations.

3. WHETHER THERE ARE ANY SUMS/DAMAGES DUE UNDER THE AGREEMENT?
K&W should not be made liable to pay any damages to C&H as firstly, there was a fundamental
breach of contract by C&H due to delay in providing area and budget plan. Secondly, due to
unforeseeable impediment, K&W is liable to be exempted from liability arising due to non-
performance and lastly, there was no certainty with regards to the profits that C&H had claimed to
have earned had it pursued to continue its project with Datsun.
4. WHETHER THERE BE A RISK OF ENFORCEMENT IF THE AWARD WAS

DELIVERED IN FAVOUR OF THE CLAIMANT?
Since K&W falls within the sovereignty of the state, the tribunal should refrain from issuing the award
as the position of the state was clear that the enforcement will violate the public policy of State of
Zindia. If the arbitral award were to be issued in favour of the Claimant, the tribunal would be
disregarding the sovereignty and the established legal order of the State of Zindia. Since the Claimant
disregarded the terms and conditions of the agreement, he had breached the contract. Also,
disregarding the economic condition of a state would lead to breach of fundamental principles under
public policy.

ARGUMENTS ADVANCED
1. WHETHER THE ARBITRATOR HAS THE JURISDICTION TO HEAR THE

DISPUTE.
It is submitted that Tribunal does not have the jurisdiction to deal with the present dispute as:
a) An amicable resolution is a mandatory condition that requires good faith negotiation before
commencing arbitration and claimant bypassed the amicable settlement and directly proceeded to
arbitration.
b) The arbitration agreement is not valid.
c) The Tribunal has no jurisdiction.
d) The Tribunal has no competence to declare the agreement valid.
a) The Amicable Resolution Provision in the Dispute Resolution Clause is a mandatory

condition for Arbitration.
The prerequisite condition of amicable resolution provision, which the language demonstrates is that
it has the mandatory nature of firstly settling disputes amicably. “In the event of any dispute arising
under or in relation to this Agreement the Parties will use their best efforts to negotiate an amicable
result”.
The contract reflects the intention of the Parties i.e., the contract clearly mentions that Parties should
use their best efforts to negotiate an amicable result. The parties should only go to arbitration when
they have used the pre-arbitration mechanism as a communication between the parties in conflict in
the form of good faith negotiation. The contract clearly mentions that the parties may refer the dispute
to the Arbitration only when the dispute was not solved by the negotiation.
Thus, claimant’s failure to comply with the amicable settlement provision affects jurisdiction.
Claimant’s failure to attempt reaching amicable resolution excludes Respondent’s consent to proceed
into arbitration. It has been held that the pre-arbitral process which both parties had agreed upon
voluntarily were to be interpreted as strictly binding upon both parties and that if a claim does not
satisfy the prerequisite of the first and second tiers, the request for arbitration is premature and shall
be inadmissible and also not adhering to the agreement.

The Tribunal should refuse to adjudicate the dispute since Respondent’s consensus for arbitration has
not been taken. Commencing arbitration prior to reaching amicable resolution eliminates the essence
of the two-tiered clause, e.g. cost reduction and better business relationship. The Tribunal has no
jurisdiction because of the violation of the precedent condition. Respondent have no consensus to
arbitrate since parties never attempted to resolve amicably. Thus, the Tribunal does not have
jurisdiction over the dispute.
b) The arbitration agreement is not valid.
Since, an arbitration under the agreement is optional there exists no obligation to arbitrate and hence
consensus to arbitrate. Under the laws of Narnia, which have been made applicable for interpretation
of the arbitration clause, a party cannot be compelled to arbitrate unless the evidence establishes a
clear, explicit and unequivocal agreement to resolve disputes through arbitration. In the present case
there is no consensus between the parties to arbitrate and hence they are under no obligation to
compulsorily submit their disputes to arbitration. This makes the arbitration agreement for
Respondent unenforceable for want of consensus.
Respondent further submits that the parties have given the courts of Narnia the jurisdiction to settle
all disputes arising out of or in connection with the agreement. Thus, there is overlapping of
jurisdiction as the parties can opt between litigation and arbitration. The same is not valid under the
laws of the State of Narnia as the parties are not required to arbitrate if the arbitration agreement gives
them the option to arbitrate or to litigate.
It was observed that the intention of the parties to enter into an arbitration agreement shall have to be
gathered from the terms of the agreement. It has been held that where there is merely a possibility of
the parties agreeing to arbitration in future, as contrasted from an obligation to refer disputes to
arbitration, there is no valid and binding arbitration agreement. In the present case it is ambiguous
that the parties will go to the arbitration tribunal. They need to be specific in a valid arbitration
agreement. [K.K Modi v. K.N. Modi, (1998) 3 SCC 573], [Bharat Bhushan Bansal v. U.P. Small
Industries Corporation Ltd (1999) 2 SCC 166], [Bihar State Mineral Development Corporation
v. Encon Builders (2003) 7 SCC 418], [State of Bihar v. Damodar Das (1996) 2 SCC 216].
In Jagdish Chander v. Ramesh Chander and Ors [(2007) 5 SCC 719], the Hon’ble Supreme Court
of India laid down fundamental guidelines and principles relating to a valid arbitration agreement
along with reference to the above-mentioned cases. An arbitration agreement will not be made by just
the use of the word “arbitration” or “arbitrator” in a clause, if it requires or contemplates a further or
fresh consent of the parties for reference to arbitration. For example, use of words such as “parties

can, if they so desire, refer their disputes to arbitration” or “In the event of any dispute, the parties
may also agree to refer the same to arbitration” or if any disputes arise between the parties, they shall
consider settlement by arbitration” in a clause relating to settlement of disputes, indicate that the
clause is not intended to be an arbitration agreement.
The Privy Council held that an arbitration clause providing that “any party may submit a dispute to
arbitration” was not a binding agreement to arbitrate. Instead, (i) in the first instance, either party
could commence litigation, but (ii) this was subject to an option, exercisable by either party, to submit
the dispute to arbitration, whereupon binding agreement would come into existence and any litigation
would have to be stayed (Anzen Ltd & Ors).
c) The Tribunal has no competence to declare the arbitration agreement valid.
The question whether the parties agreed to arbitrate is to be decided by the court unless the parties
have exclusively conferred such power on the tribunal. In the present case the parties have submitted
all disputes relating to the dispute resolution clause to the courts of Narnia and have only given the
tribunal the authority to deal with payment disputes, if any. Thus, only the courts of Narnia have the
jurisdiction to uphold the validity of the arbitration agreement and not this Tribunal.

2. WHETHER ANY PARTY IS IN BREACH OF ITS OBLIGATIONS UNDER THE
AGREEMENT.
C&H is in breach of its obligation under the agreement as:
a) C&H is liable for the breach of its contractual obligations by failing to submit the area plan and
budget within the time frame.
b) C&H is liable for the breach of its contractual obligations by breaching certain provisions of
Indian Contracts Act.
c) C&H failed to comply with Article 15 of the agreement.
2.1. C&H is liable for the breach of its contractual obligations by failing to submit the area plan
and budget within the time frame.
C&H has failed to comply with the contractual terms agreed upon by both the parties by failing to
submit the area plan and the budget within the time frame.
C&H and K&W entered into a contract of performance. Therefore, both the parties are governed by
the Indian Contracts Act, 1872. Section 55 of the Indian Contracts Act provides for the effect of
failure of either of the party to perform any contractual obligation where time is essential in the
contract. Section 55 reads as;
“When a party to a contract promises to do a certain thing at or before a specified time, or certain
things at or before specified times, and fails to do any such thing at or before the specified time, the
contract, or so much of it as has not been performed, becomes voidable at the option of the promisee”
In the case of Orissa Textile Mills Ltd. V Ganesh Das [AIR 1961 Pat 107], the Hon’ble Court held
that laid down conditions under which time will be considered an essence of the contract;
1. Where the parties have expressly agreed to treat it as of the essence of the contract;
2. Where delay operates as an injury;
3. Where the nature and necessity of the contract requires it to be so construed, for example, where
the party asks for extension of time for performance.
It has been submitted that, in the present case time is an essence of the contract because of the nature
of the contract wherein it has been divided into stages and the completion of Stage I had not been
done by the Claimant within the given time till 30th November, 2018. The Claimant has submitted

the Area plan and increased budget on 20th December, 2018 which is after the prescribed deadline
failing to comply with it.
Moreover, the Council submits that the Claimant failed to ask for extension of submitting the
increased budget but merely informed of a delay in submitting the budget and the Respondent being
unaware of the increase in budget, never agreed to extension of the time period for the submission of
increased budget but mere extension for the area plan of the originally decided budget. Therefore, the
Claimant has violated Section 55 of the Indian Contract Act and has breached the terms of the
contract. Therefore, the contract between the Claimant and the Respondent becomes voidable at the
option of the Respondent.
2.2 C&H is liable for the breach of its contractual obligations by breaching certain provisions
of Indian Contracts Act.
Respondent (K&W) and Claimant (C&H) had entered into an agreement according to which C&H
had to provide consultancy services to K&H by abiding with the stages specified in the Agreement.
Stage 1 that involved the delivery of an area plan and budget was scheduled on 30th of November.
This Stage required intense cooperation between the representatives of the both the firms on-site and
off-side that was priced at Rs. 10,00,000. C&W on 20th October 2018 sent an email to K&W
requesting for reassessment of the parameters of the Budget which would bring a halt to the site visit
for the meantime. On 26th October 2018, this email was followed by another email by C&H stating
that on reassessment of the parameters, a significant change in the Budget is required along with a
new schedule of dates. Both these emails were not acknowledged by K&W. This clearly signifies that
the part of intense cooperation was lacking between the parties. However, irrespective of the fact that
K&W had not replied for both their mails that were addressed by C&H, they continued to work on
the project on the grounds that no communication was made to them. On 18th November 2018 C&H
again sent a mail stating that due to the changed circumstances, there will be a delay in submitting
the Budget but at this point also they did not consented to the fact of increase in the budget given by
C&H. K&W agreed to defer the date of Stage 1 through a telephonic conversation. On 20th December
2018 C&H sent the area plan report and tentative budget, incorporated the additional expenses borne
by it due to the revised requirements and an invoice for the work completed to the date of Rs.
50,00,000.
1) The Claimants are a small firm comprising of merely two partners due to which it undertakes only
one project at a time providing assistance on a fixed-price contract basis. Fixed Price Contract

clearly means ‘a contract that provides for a price which normally is not subject to any adjustment
unless certain provisions such as contract change, economic pricing, or defective pricing are
included in the agreement. These contracts are negotiated usually where reasonably definite
specifications are available, and costs can be estimated with reasonable accuracy.’ Respondent
and Claimant had entered into an agreement whereby Claimant undertook to provide consultancy
services to Respondent wherein a fixed sum of Rs 150 million was to be paid over two years.
Furthermore, the Stage 1 of the Agreement was priced at Rs. 10,00,000. However, it became
apparent after the conversations between the representatives of both the firms that there was a
need to reassess the parameters for the Budget. None of the parties could anticipate the costs for
completing Stage 1 but the respondents were made aware of an increase in the Budget at the
completion of Stage 1. The invoice, which included the additional costs borne, amounts to Rs
50,00,000 which is five times more than the pre-decided price of the project. The increase in price
was unreasonable and inconsiderable and could not have been reasonably foreseen by the
Respondents especially when the Claimants were involved in fixed price contracts wherein the
costs are more or less accurately anticipated.
2) The Respondents humbly pleaded that on looking into the facts of the case, Claimants in the month
of October had requested for increase in the Budget and new schedule of the dates which would
result in alteration of the present contract, attracting Section 62 of the Indian Contract Act, 1872.
This section deals with ‘Effect of Novation, Rescission and Alteration of Contract’ under which it
lays down that ‘the parties by mutual consent can substitute the existing contract with a new
contract in circumstances where the parties need to bring it a change in the terms of the contract.’
This request of increase in the Budget and new schedule was not acknowledged by the
Respondents. Claimants continued with the project and on 18th November informed Respondents
of the delay in submitting the Budget and agreed to defer the date of the Stage 1.
It can be inferred from these circumstances that firstly; the Claimants had requested for a material
alteration. This material alteration was made without the consent of the Respondents as the
Respondents hadn’t replied to the emails. Both the parties had previously agreed in the agreement
that the delivery of Area Plan and Budget which required intense cooperation between the
representatives of both the firms on-site and off-site and various visits. In order to proceed with Stage1
it is important that the consent and recommendations from the parties is taken into consideration,
however the claimants did not wait for the Respondents reply and carried on with the job. In the case
of Magnum Films v. Golcha Properties Ltd [AIR 1984 Del 162], the parties by a mutual agreement
had fixed the rates of hiring a cinema hall and no one party was allowed to subsequently alter

unilaterally. In the present case, the price for delivery of area plan and budget was fixed by both the
parties at Rs, 10,00,000 and therefore, an increase in the Budget could not have taken place without
the consent of the Respondents.
3) Moving forward, on 18th November 2018 Claimants again sent a mail stating that due to the
resultant change in circumstances, there would be a delay in submitting the Budget. The
Respondents through the telephonic conversation agreed to defer the date of Stage 1 however,
there wasn’t an indication by the Respondents with respect to acceptance to the increase in the
Budget and the new schedule of dates. The Respondents remained silent on the matter and
according to the Indian Contract Act, 1872 silence does not amount to acceptance. In the case of
Cotton Corporation of India v. Bombay Dyeing and Manufacturing [2006 (5) Bom CR 105],
the defendant placed an order to purchase 2500 bales of California Arizona cotton. Thereafter an
agreement was sent to the defendants requiring them to accept the same by signing it and returning
the duplicate copy of the agreement within seven days. Under the clause 33 of the agreement it
was stated that if the copy of the agreement was not returned within the stipulated time, it would
have deemed that the mill (Bombay Dyeing) had accepted the agreement. On delivery, the
defendant refused to accept the delivery of the goods on the grounds that they had neither accepted
the condition nor had they given a bank guarantee. This proves the principle that where a proposal
expressly says that acceptance will be presumed if no reply is to be received, the mere absence of
a reply is no acceptance of the offer.
Another example where silence does not amount to acceptance of offer was seen in the case of
Felthouse v. Bindley [(1862) 142 E.R. 1037], where it was held that there was no contract for the
horse between the complainant and his nephew. There had not been an acceptance of the offer; silence
did not amount to acceptance and an obligation cannot be imposed by another. Any acceptance of an
offer must be communicated clearly. Although the nephew had intended to sell the horse to the
complainant and showed this interest, there was no contract of sale. Thus, the nephew’s failure to
respond to the complainant did not amount to an acceptance of his offer.
4) In the agreement which was signed between Claimants and Respondents there was a provision,
“Article 15: Governing Law and Dispute Resolution” which states that in the event of any dispute
arising between the parties they will first use their best efforts to negotiate an amicable result,
which would only then be approved by the Zindian Ministry of Food and Agriculture. In this case
the Claimants did not wait for the Respondents to reply and give their answer nor did they indulge

in having a discussion which could result in an amicable settlement but instead proceeded directly
towards Arbitration. Therefore, taking into consideration the above facts the Respondents
contended that there exists a breach of contract on the part of the Claimants because of the
following reasons:
1. Claimants has failed to comply with the contractual terms agreed upon by both the parties by failing
to submit the area plan and the budget within the time frame which was 30th November. The
Claimant submitted the area plan and increased budget on 20th December which is after the
prescribed deadline failing to comply with it.
2. Any material alteration or novation to the Agreement cannot be brought unilaterally.
3. The non-reply of the Respondents to the emails or communication by the Claimants does not
amount to Acceptance because under the Indian Contract Act, mere silence does not amount to
acceptance.
2.3: Failure to comply with Article 15 of the agreement.
Non-Fulfilment of Pre-Arbitration Procedure.
The Respondent humbly submits that the Tribunal lacks jurisdiction to deal with the dispute at hand,
as the Parties have not fulfilled the mandatory pre-arbitration dispute settlement procedure set out in
the underlying Contract. A pre-arbitration negotiation requirement is not so much a procedural
requirement, as it is a ‘very much jurisdictional one’.
Under the plain language of the contract, the arbitration provision is not triggered until one of the
partie’s request mediation. Consequently, because the claimants never attempted to have a mediation
with regards to this dispute, the respondent cannot be compelled to submit to arbitration.
Non – Compliance of Article 15 renders the tribunal a lack of jurisdiction to hear the case.
Where the parties agree to a specific procedure and mode for settling their dispute by way of
arbitration and prescribe certain pre-conditions for referring the matter to arbitration, they must
comply with those pre-conditions and only then can they refer the matter to arbitration. It is

noteworthy that the specified pre-arbitration step in this case was conciliation which was never
undertaken by either of the parties.
Conciliation in the State of Zindia, is a recognized form of Alternate Dispute Resolution. The
Arbitration and Conciliation Act 1996 (India), provides structure and clarity to the process of
Conciliation. Firstly, there is a defined process for conciliation, governed by the Arbitration and
Conciliation Act 1996. Secondly, that in the Article 15 of the agreement, the parties stipulated that
the matter which can be set to arbitration is restricted to that which was sent to conciliation. Thus, it
was mandatory for the pre-condition to be fulfilled before the arbitration tier could be enforced.
3. Whether there are any sums/damages due under this agreement?
I. Rs. 50,00,000 pursuant to invoice
1. The Respondents humbly submit that, no sum is due to the Claimant pursuant to the invoice dated
20th December, 2018. The Respondent aver that Stage 1 of the Agreement scheduled on 30th
November, 2018 involved delivery of an area plan and budget which was priced at Rs. 10,00,000 and
after a few site visits, it had somehow become apparent to the Claimant that the Respondents had a
number of requirements which were not anticipated at the time of entering the Agreement and
subsequently decided that there was a need to reassess the parameters for the budget and site visit was
to be interrupted. On 26th October, 2018, during which the site visits were at a standstill, the
Claimants sent an email to the Respondents indicating that a significant increase in the Budget was
required and requested a meeting wherein they could chalk down new schedule of dates along with
the Budget. Thus, the Claimants failed to deliver the Area plan and decided to halt the site visits in
an attempt to fulfil unexpected and uncalled requirements of the Respondents. Later, on 18th
November, 2018 the Claimants informed that there would be a delay in submitting the Budget but
failed to communicate any detail about the progress in their Area Plan.
2. The Respondents most humbly aver that, due to the current Government of Zindia stepping down,
the working of the capital was paralysed for 72 hours. This change in the Government and opting out
from the MERCOSUR led to a change in the managing board of Respondents as well, and a new
management was appointed to look into the undergoing projects. Mr. Holmes, the new representative
of the firm communicated to the Claimants about the changes in the company and said that they would
revert shortly. However, the absence of further communication by the Respondents was incorrectly

interpreted by the Claimants. In the instant case, the Claimants have transcended the principle of mere
silence not amounting to acceptance of alteration or novation to agreement. The Supreme Court in
Bharat Petroleum Corn Ltd v Great Eastern Shipping Co. Ltd [AIR 2008 S.C 357] held that an any
offer is not said to be accepted unless it is coupled with the conduct of the party which takes form of
a positive act. It was held that agreement in sub silentio cannot be said to be a valid form or
acceptance and thus does not amount to a valid agreement.
3. The Respondents assert that, between the period, none of their conduct implied a positive act to
confirm the alterations to the initial Budget of the contract. Both the correspondences with the
Claimants were in regards to acceptance of changes in dates only. The Respondents had stopped any
activity with respect to the Agreement and were in a stage of review and sent general responses to all
its contractors. The Respondents most humbly submit that, both the parties agreed in the initial stages
of the agreement that the delivery of Area Plan and the Budget required intense cooperation between
the representatives of the both the firms on-site as well as off-site. The preparation of area plan also
involved various site visits by representatives of both firms which was halted by the Claimants
themselves pursuant to their assessment without any understanding between the parties. It is clear
from the Agreement that consent and recommendations from both the sides was necessary in order to
proceed further with Stage 1. The Claimants, not paying heed to this, continued to work on the project
without waiting for approval or recommendations by the Respondents and the additional costs were
borne without the knowledge of the Respondents.
4. The Respondents humbly aver that, on a telephonic conversation with the representatives of the
Claimants, the Respondents only agreed to defer the date of Stage 1. However, the Respondents
neither explicitly nor in an implied manner approved the revised Budget as was required pursuant to
the assessment by the Claimants. On 20th December, 2018 the Claimants finally sent the Area Plan
report and a tentative Budget wherein they incorporated the additional expenses borne by them which
weren’t mutually decided by both parties. The Claimants also tendered the invoice of 50,00,000 for
the work which was completed. The requirements of Respondents were considered till the 20th
October, 2018 whereas the costs were calculated till the 20th December, 2018. In Surendra Kumar
Dalmia vs Suryaa Sponge Iron Ltd. & Ors [2011 (162) CompCas 161 (CLB)], at every stage the
respondent clearly stated that since the tender was not finalized, as per usual practice pending
finalization of a new charter, the existing terms and conditions of the charter party continue to apply.
Ultimately, on failure of all negotiations, the respondent called upon the appellant to pay balance
amount of Rs. 4.4 crores to them as charter hire in respect of vessel in question for the period from
1.9.1998 to 31.8.1999 within a specified time. With this background, the Court established the general

rule is that an offer is not accepted by mere silence on the part of the offeree, yet it does not mean
that an acceptance always has to be given in so many words. Herein, it was held that it would not
amount to implied acceptance and thus the order was dismissed with no costs.
5. In spite of the nature of the project and need for reassessment by the Respondents as well, the
Claimants proceeded with the Area plan bearing additional costs on their own will which were not
anticipated by either of the parties at the time of entering the agreement. Hence, no sums are due
pursuant to the invoice of December’18 as the costs borne by the Claimants were not mutually agreed
upon by both the parties.
II. 2,00,000 incremental costs due to failure to perform obligations:
6. As has been submitted by the Respondents in Issue 2, the Respondents humbly assert that they are
not in breach of any of its obligations and hence are not bound to pay any incremental costs in lieu of
the same. However, the Claimants have failed to perform their part in the contract and therefore, can’t
claim costs incurred from the same.
7. It is submitted that, by failing to submit the Area plan and the Budget within the time frame, the
Claimants have failed to comply with the contractual terms agreed upon by both the parties. Herein,
any material alteration or novation to the Agreement cannot be brought unilaterally, and thus the
incremental costs incurred were in absence of consent nor were they pre-anticipated between the
parties. Moreover, the non-reply of the Respondents to the emails or communication by the Claimants
does not amount to acceptance as under the Indian Contract Act, mere silence does not amount to
acceptance.
8. The Respondents humbly aver that; the Claimants have failed to ask for extension of submitting
the increased Budget and have merely informed of a delay in submitting the Budget on their own
accord. The Respondents being unaware of the increase in Budget, never agreed to the extension of
the time period for the submission of increased Budget and only deferred the timeline for the Area
plan of the originally decided Budget. Therefore, the Claimants has violated Section 55 of the Indian
Contract Act which provides for the effect of failure of either of the party to perform any contractual
obligation where time is essential in the contract, and have breached the terms of the contract.
9. Thus, the Respondents are not liable to pay any costs incurred by breach of obligations as the
Claimant themselves are in breach of their obligations under the contract and cannot take advantage
of their own default.

III. 30 million in lost profits – Datsun Contract
10. The Respondent aver that, when the Claimants submitted their proposal, they were going through
the second, out of 5 stages, of a tender process to provide services to Datsun Inc. in connection with
a new automobile plant that they were building in Zindia. However, having received the request for
proposal from the Respondents in connection with the Zindia project, withdrew their offer to Datsun
on their own will.
11. The Respondents humbly submit that no profits were lost given that “loss of profits can be
awarded only when it is clear that the rescission is invalid and illegal. Moreover, no evidence was led
in respect of loss of profits and only an estimate has been awarded. Compensation for loss of profits
cannot be based on conjecture, and has to be based on real evidence.”
12. The Supreme Court in Bharat Coking Coal Ltd vs L.K. Ahuja on 12 April, 2004 opined that
it should be established that had someone received the amount due under the contract, he could have
utilised the same for some other business in which he could have earned profit. Unless such a plea is
raised and established, claim for loss of profits could not be granted. In this case, no such material is
available on record and in the absence of any evidence, the arbitrator could not have awarded the
same".
13. In Ahluwalia Contract (India) vs The Union of India, the arbitrator had also rejected ACIL's
claim for loss of profits during the extended period. The arbitrator found such claim to be hypothetical
and the High Court was unable to accept the contention that the aforesaid view is not a plausible one.
It is well settled that the claim for loss of profits is in the nature of damages and it would be incumbent
on any party claiming such damages to establish the same with reasonable certainty.
Hence, the Respondents are not liable to pay any damages on the basis of a hypothetical claim made
by the Claimants of loss of profits as there had been no progress at all.

4. THERE WOULD BE A RISK OF ENFORCEMENT IF THE ARBITRAL TRIBUNAL
WERE TO ISSUE AN AWARD IN FAVOUR OF THE CLAIMANT.
Article V of the NYC [ New York Convention, 1958] reads as follows,
“Recognition and enforcement of an arbitral award may also be refused if the competent authority
in the country where recognition and enforcement are sought finds that:
a) The subject matter of the difference is not capable of settlement by arbitration under the law of
that country; or
b) The recognition or enforcement of the award would be contrary to the public policy of that
country.”
In addition to this, Section 34 (2) (b) (ii) of the Arbitration and Conciliation Act states, “An arbitral
award may be set aside by the Court only if— the arbitral award is in conflict with the public policy
of India.” and Section 48 (2) (b) of the Arbitration and Conciliation Act states that the enforcement
of a foreign awards may also be refused if the court finds that, “the enforcement of the award would
be contrary to the public policy of India.”
Narnia and Zindia, both the countries are signatories to Convention on the Recognition and Enforcement of
Foreign Arbitral Awards. The said convention deals with the enforcement of Foreign Arbitral Awards and acts
as a legislation to that extent.
Since both Narnia and Zindia are signatories to the said convention, if an award is passed by the current arbitral
tribunal, such award will be governed by the said convention. As the claimant is located in Narnia and the
respondent is a partnership firm in Zindia.
As per the NYC the recognition and enforcement of the award may be refused at the request of the party against
whom it is invoked, if the party furnishes to the competent authority proof that warrants the same.
The counsel humbly submits that the Notice of Arbitration was sent along with the proposal of appointing
authority (15th June 2019) as under the UNCITRAL Model Law, however 30 days were not given to the
respondents to comment on the same and of 5th July, 2019 before the completion of 30 days the NICA
(Paragraph 19) appointed the Arbitrator therefore it is humbly submitted that the procedure laid down under
UNCITRAL Model Law as to the Designation of Appointing Authority has not been followed. Further to add
to it, in the notice of arbitration that was received by the respondent on 15th June 2019, the claimants requested
NICA to become the appointing authority and to appoint a sole arbitrator. Under the UNCITRAL Model Law
post the receiving the Notice of Arbitration if the parties do not agree that one arbitrator is to be appointed with
in 30 days then three Arbitrator’s shall be appointed, however in the current case even before the completion
of the period of 30 days to decide the appointing authority and number of arbitrators, a sole arbitrator was

appointed. Further where 3 arbitrators are to be appointed, one is to be appointed by the claimants and one by
the respondents. If one party appoints one arbitrator and the other party fails to do so, the second arbitrator
shall be appointed by an appointing authority at the request of one of the parties. The entire arbitration
procedure laid down in the UNCITRAL Model Law has been subverted, this part which severely affects the
jurisdiction of the arbitral tribunal so constituted.
The respondents would like to bring to the arbitrators notice the Convention on the Recognition and
Enforcement of Foreign Arbitral Awards, and it needs to be viewed in relation to the subject matter mentioned
previously, which is covered under Article V of the said convention which states, “The composition of the
arbitral authority or the arbitral procedure was not in accordance with the agreement of the parties, or, failing
such agreement, was not in accordance with the law of the country where the arbitration took place.”
Therefore, it is humbly submitted that in light of Article V of the Convention of the Recognition and
Enforcement of Foreign Arbitral Awards, it is quite evident that the above criteria is fulfilled, which would act
as a risk of enforcement if the award is passed in the favour of the claimant.
In the present case, if the arbitral tribunal were to issue an award in favour of the claimant, there
would be a risk of enforcement as it would be against the public policy as it would be against the
interest of Zindia since the governing law is the same as that of Narnia which is Pari-Materia to the
law of India.
In the case of Renusagar Power Co. Ltd. v. General Electric Co. [1994 Supp. 1 SCC 644] the
Supreme Court elaborately dealt with the concept of public policy and stated that enforcement of a
foreign award would be refused on the ground that it is contrary to public policy if such enforcement
would be contrary to:
(i) fundamental policy of Indian law; or

(ii) the interests of India; or
(iii) justice or morality.
Another landmark case is that of ONGC v. Saw Pipes [AIR 2003 SC 2629] can be safely classified
as one of the most celebrated cases determining the concept of ‘public policy’ under the Arbitration
Act. The Court in the case held that the term ‘public policy’ could not be given a narrower meaning.
The Court’s observation in the case was that the phrase ‘Public Policy of India’ used in Section 34 in
context is required to be given a wider meaning. It can be stated that the concept of public policy
connotes some matter which concerns public good and the public interest. What is for public good or
in public interest or what would be injurious or harmful to the public good or public interest has
varied from time to time. However, the award which is, on the face of it, patently in violation of

statutory provisions cannot be said to be in public interest. Such award/judgment/decision is likely to
adversely affect the administration of justice. Hence, in our view in addition to narrower meaning
given to the term ‘public policy’ in Renusagar’s case, it is required to be held that the award could
be set aside if it is patently illegal. Result would be – award could be set aside if it is contrary to: –
(a) fundamental policy of Indian law; or
(b) the interest of India; or
(c) justice or morality, or
(d) in addition, if it is patently illegal.
Respondent submits that any potential award in favour of Claimant would most probably be refused
enforcement by the domestic courts in India on the basis of Article V (2)(b) 27 of the New York
Convention (the Convention), i.e. contradiction with Indian public policy, for two reasons:[A] a
violation of procedural public policy and [B] contradiction with the most basic principles of Indian
legal system.
A. A VIOLATION OF PROCEDURAL PUBLIC POLICY.
The Respondent humbly submits that the enforcement of the award may also be refused
on the basis of Article V(2)(b) [ New York Convention, 1958] of the conventions which reads
as,
“Recognition and enforcement of an arbitral award may also be refused if the competent
authority in the country where recognition and enforcement is sought finds that:
a) The subject matter of the difference is not capable of settlement by arbitration under the
law of that country; or
b) The recognition or enforcement of the award would be contrary to the public policy of
that country.”
Thus, because of the illegality of the contract according to Bill 275 of India, the contract violates the
public policy of India and an award of enforcing the liquidated damage clause of such illegal contract
cannot be enforced by the court. Further, it is an accepted principle that ‘public policy’ as a ground
of Article V (2)(b) of the Convention covers also procedural aspects.

Article V (2) (b) of the New York Convention of 1958 and Section 7(1)(b)(ii) of the Foreign Awards
Act do not postulate refusal of recognition and enforcement of a foreign award on the ground that it
is contrary to the law of the country of enforcement and the ground of challenge is confined to the
recognition and enforcement being contrary to the public policy of the country in which the award is
set to be enforced. Applying the said criteria, it must be held that the enforcement of a foreign award
would be refused on the ground that it is contrary to public policy if such enforcement would be
contrary to:
(i) Fundamental policy of Indian law; or
(ii) the interests of India; or
(iii) justice or morality.
The Delhi High Court in the case of, COSID v Steel Authority of India Ltd [AIR 1986 Delhi High
Court] held that the award given violated Indian public policy by imposing damages for actions that
would have supposedly breached Indian export control legislation and hence declared the award to
be unenforceable.
Public policy as defined by the Supreme Court of India is “The principles of law that ensure justice,
fair play and bring transparency and objectivity and promote probity in the discharge of public
functions would also constitute public policy. It follows that any rule, contract or arrangement that
actually defeats or tends to defeat the high ideals of fairness and objectivity in the discharge of public
functions.” [Board of Control for Cricket in India v. Cricket Association of Bihar, (2015) 3 SCC
251]
The Respondent humbly submits that the Bill 275 was passed with the intention tocontrol the
increasing percentage of people smoking in India as well as to reduce the pollution caused by such
smoking activities. Bill 275 falls under the category of public policy rules because it is mandatory
and at the same time form part of the State’s public policy. It is the view of the legislation in India
that Bill 275 is part of the public policy of the Indian government to protect public health & safety.
Since it falls within the sovereignty of the state, the tribunal should refrain from issuing the award as
the position of the state was clear that the enforcement will violate the public policy of India.
It is further contended that if the Tribunal renders an award in the present proceedings without
redirecting the Parties to negotiation, such award would be made contrary to the procedure agreed

upon by the Parties which is set out in Clause 65 of the Contract. Non adherence to the pre- arbitration
procedure served as a ground of enforcement in the decisions of national courts.
In the present case, the state of Zindia holds majority shares in K&W and hence K&W is a state entity
as per Article 12 of the Constitution of India. The respondent’s restaurant was meant for public good
and therefore if the arbitral tribunal allows an award in favour of the claimant, it will be against the
interest of the state since not only will the state unnecessarily lose out money but also face
unwarranted criticism despite no fault on its behalf. The interest of the state is extremely important
and enforcement of an award that does not keep said interest in mind will therefore be against the
public policy of Zindia.
In the present case, given the status of the State of Zindia as a majority shareholder in K&W, the
Respondent can be construed as an agency or instrumentality of the State, and therefore is capable of
pleading the defence of sovereign immunity.
Being one of the biggest food chains in Zindia, and recognized as one of the best food chains in the
world, K&W’s contribution to the economy has a significant impact on the economic conditions of
the State. Economic instability in the State of Zindia has already ensued given its exit from
MERCOSUR. Additionally, the stepping down of the government of the State of Zindia, which led
to massive protests and the shutting down of the capital for 72 hours pushed the country into a state
of political turmoil which further compromises the interest of the State.

CONCLUSION ON THE MERITS
The Arbitral Tribunal does not have jurisdiction to deal with this dispute in light of the failure of
pre—arbitration condition i.e., negotiation mentioned in the agreement. Respondent is not liable to
pay liquidated damaged as the conditions prevalent for the loss of the claimant as respondents did not
consent to proceed with the increase in the budget. There would be a risk of enforcement if the arbitral
tribunal were to issue an award in favour of the claimant, as the agreement is punishable India under
after the Bill 275 has been enforced and it is also, against the public policy of India.
REQUEST FOR RELIEF
In the light of the arguments advanced the Respondent requests the tribunal to find and declare
that:
1. The Arbitral Tribunal had no jurisdiction to decide the dispute in the absence of prior good faith
negotiations.
2. C&H 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.
3. Decide that the Respondent is not liable to pay INR 50,00,000 as alleged termination penalty.
4. The award if rendered in favour of Claimant will suffer from risk of non-enforcement
Respectfully signed and submitted by the counsel,
_________________________________
Counsel on behalf of the Respondent

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ALTERNATIVE DISPUTE RESOLUTION (ADR) MOOT, 2019.

NARNIA INTERNATIONAL CENTRE FOR ARBITRATION (NICA)

In the matter of:

Cooper and Hofstader (C&H) Architecture and Engineering Services Ltd.

Koothrappali Wolowitz (K&W) Foods Ltd…………………… Respondent

Counsel for Respondent:

-Aayush D. Desai A041

-Sameeksha R. Sharma A017

MEMORIAL ON BEHALF OF THE RESPONDENTS

I. WHETHER THE ARBITRATOR HAS THE JURISDICTION TO HEAR THE DISPUTE.

a. The Arbitral Tribunal had no jurisdiction to decide the dispute in the

absence of prior good faith negotiations…………………………………………

b. Request of Ex parte order by Claimant……………………………………

c. No certainty proved with regards to the loss profits…………………….

IV. WHETHER THERE BE A RISK OF ENFORCEMENT IF THE

AWARD WAS DELIVERED IN FAVOUR OF THE CLAIMANT.

a. Claimant has disregarded the sovereignty and established legal order of

the state ……………………………………………………………………

b. Against the essential economic interests of the state (public policy)

MEMORIAL ON BEHALF OF THE RESPONDENTS

Art. / Arts. Article / Articles

CISG United Nations Convention on Contracts for the International

Sale of Goods, 11 April 1980

e.g. Exempli gratia (for example)

Ibid. ibidem (at the same place)

ICC International Chamber of Commerce

i.e. Id est (that is)

Model Law UNCITRAL Model Law on International Commercial

New York Convention United Nations Convention on the Recognition and

No. / Nos. Number / Numbers

p. / pp. Page / Pages

para. / paras. paragraph / paragraphs

UNCITRAL United Nations Commission on International Trade Law

UNCITRAL Rules United Nations Commission on International Trade

MEMORIAL ON BEHALF OF THE RESPONDENTS

STATUES AND TREATIES

CISG Convention on Contracts for the International Sale of

RULES, LEGISLATION, UN RESOLUTIONS AND CONVENTIONS

UNCITRAL Arbitration Rules on The United Nations Commission on

NYC NewYork Convention.

CISG Convection on International Sales of Goods.

K.K Modi K.K Modi v. K.N. Modi, [(1998) 3 SCC

MEMORIAL ON BEHALF OF THE RESPONDENTS

Bihar State Mineral Development Corporation Bihar State Mineral Development

State of Bihar State of Bihar v. Damodar Das (1996) 2

Felthouse Felthouse v. Bindley [(1862) 142 E.R.

Jagdish Chander Jagdish Chander v. Ramesh Chander and

ONGC ONGC v. Saw Pipes [AIR 2003 SC 2629]

Renusagar Renusagar Power Co. Ltd. v. General

Cotton Corporation of India Cotton Corporation of India v. Bombay

Surendra Kumar Dalmia Surendra Kumar Dalmia vs Suryaa Sponge

COSID COSID v Steel Authority of India Ltd [AIR

MEMORIAL ON BEHALF OF THE RESPONDENTS

Edition,West Publish (2011).

Born Gary B. Born, International Commercial Arbitration,

Second Edition, Kluwer Law International (2014).

Waincymer Jeff Waincymer, Procedure and Evidence in International

Arbitration, Kluwer Law International (2012).

Gőmez Katia Fach Gőmez, Rethinking the Role of Amicus

Curiae in International Investment Arbitration: How to

Draw the Line Favorably For the Public Interest, 35

FORDHAM INTERNATIONAL LAW JOURNAL