O.P.

Jindal Global University

Jindal Global Law School
End-term Examination

Course Name : Alternative Dispute Resolution

Course Code : L-CC-001
Programme : BA LLB; BBA LLB, LLB
Duration : 3 hours
Maximum Marks : 50

This question paper has five (5) printed pages only.

Instructions to students:

 This is a take-home examination.

 Please do not write your name, JGU Id or any identification text inside your submission document.
 Please ensure that your submission strictly adheres to JGU plagiarism/ Similarity guidelines.
 Sharing of the answer scripts with each other is not permissible unless results are declared.
 The submissions submitted as drafts on UMS will not be considered for evaluation. Students should make sure
the submission submitted on UMS are properly submitted.
 Ensure the submissions are done in a compatible file format pdf, docs etc.
 There are two sections in this paper. Please ensure that you read the instructions carefully and answer questions
from both sections as per the instructions.
________________________________________________________________________________________

JGLS [End-term Examination – Spring’2022] Page 1

 Section I
Please attempt 2 of three questions. Each question is 15 marks and must be answered in 900 words.

Question 1
Avan SA (‘Avan’) is one of the largest producers of RSPO-certified palm kernel oil based in Beijing, China. Akri Ltd
(‘Akri’) is a well-established but small producer of biofuel based in India. The two parties have entered into a contract in
2021, which was to last until 2025, with potential renewal upon the parties’ agreement at that time. Pursuant to the
contract, Avan would supply Akri with palm kernel oil in pre-agreed instalments, occurring once a month. Delivery of
the cargo was agreed to be done by sea.
The contract at hand has the following choice of law (section 20) and dispute resolution (section 21) provisions:

Section 20: CHOICE OF LAW

‘This Agreement is governed by the UN Convention on the International Sale of Goods (CISG). For
issues not dealt with by the CISG the UNIDROIT Principles of International Commercial Contracts
(UPICC) are applicable.’

Section 21: DISPUTE RESOLUTION

‘All disputes, differences and/or claims, arising out of this Agreement, whether during its subsistence
or thereafter shall be settled by arbitration in accordance with the provisions of the Indian Arbitration
& Conciliation Act, 1996 or any statutory amendments thereof. The arbitration venue will be in
Beijing and the proceedings shall be conducted in accordance with the Singapore International
Arbitration Centre Rules for International Commercial Arbitration. The award given by such an
arbitrator shall be in accordance with Chinese Law and shall be final and binding on all the parties to
this agreement.’

Post the signing of this contract, but even before the first delivery, Avan repudiates the contract, having found a better
offer, hence Akri initiates arbitral proceedings under section 21 of the contract. Nonetheless, before the tribunal, Avan
raises the following objections:

a. As to section 20, the choice of law clause is invalid, given that the contract should be governed by a domestic law of
either of the parties’ countries, namely China or India. And, secondarily, that the parties intended for Chinese
contract law to govern the contract, given the elements found in section 21, creating an implied link to Chinese law.
b. As to section 21 per se, the dispute resolution clause is invalid, because the parties did not specify the applicable law
to the arbitration agreement, thereby making it pathological ipso facto, and also because they did not specify the
number of arbitrators vested with the jurisdiction to adjudicate the case.

Akri approaches you seeking your legal advice. Advise Akri as to the potential legal issues arising out of Avan’s
objections, highlighting the arguments that Akri should go with in this case.
(15 marks, 900 words)

Question 2
Two companies, Tamble Pharmaceuticals Limited (“TPL”), incorporated in Mumbai, Maharashtra and RaxoWatson
Pharmaceuticals Co (“RWP”) incorporated in Delaware, United States, enter into a contract in 2020 for TPL to
manufacture certain medications patented in United States for export to RWP, which would be subsequently branded
and sold by RWP in the United States. The arbitration agreement between the two parties contains a clause whereby
arbitration would take place in Singapore under the Singapore International Arbitration Centre (“SIAC”) and the
Arbitral Tribunal would comprise three arbitrators.

JGLS [End-term Examination – Spring’2022] Page 2

In January 2021, RWP finds that TPL, although it has been meeting all its contractual requirements, has also been
manufacturing the same medication under its own brand in India for sale in India, as the medication is patented in USA
but not in India, RWP terminates the contract and demands USD 5 million as damages for the alleged breach of contract
committed by TPL. TPL then sends a Request for Arbitration to RWP on 1 st March 2021, and three arbitrators are
appointed as per SIAC Rules. The Arbitral Tribunal requests TPL to send its Statement of Claim on 1 st May 2021, and
upon its receipt, requests RWP to send a Statement of Defence by 1 st June 2021. RWP does not provide the Statement of
Defence on 1st June, and despite being provided with 2 extensions, RWP does not provide a Statement of Defence till 1 st
October 2021. The Arbitral Tribunal then issues notice to both parties that it would be delivering an ex parte award and
RWP sends its Statement of Defence and other necessary evidence on 1 st November 2021.

On 21st November 2021, after having deliberated upon the Statement of Claims and Defence, the Arbitral Tribunal
makes an award in favour of TPL stating that they had not breached the terms of the contract and awarding them
damages of USD 5 million for wrongful termination of contract and orders RWP to pay all the costs of arbitration.
Aggrieved by this award, RWP initiates a challenge to the award in Singapore, which is rejected by the courts and TPL
files an application under Section 48 of the Arbitration and Conciliation Act, 1996 for the recognition and enforcement
of the arbitral award on 20th March 2022. RWP resists the recognition and enforcement on two grounds:

a. That it had not been provided an opportunity to present its case as the Arbitral Tribunal made its award immediately
after receiving the Statement of Defence; and,
b. That the award was in violation of public policy as it allowed TPL to infringe upon RWP’s patents and manufacture
medication which was the intellectual property of RWP.

Based on the facts provided above along with the relevant statutory provisions and case laws, determine whether the
Section 48 application would be successful.

(15 marks, 900 words)

Question 3
Sara and Pratham started a sustainable lifestyle brand together called Live Light Life by entering into a brand partnership
in 2012. This instantly became a very profitable venture. In May 2021, Sara discovered that Pratham siphoned some
funds from their business for unknown reasons. This not only drained their personal relations but also affected the
business. Sara filed a suit in the High Court of Delhi for dissolution of partnership and rendition of accounts. After the
completion of pleadings, the judge stated that they would refer the parties to one of the ADR mechanisms enlisted in
Section 89 of CPC to explore the possibility of an out-of-court settlement. Immediately the legal counsel on behalf of
Sara objected to settlement through ADR and said “We believe the relations between the parties have become too bitter
to be arrive at a compromise. Also, what use is ADR? It is no different from its first cousin – the courts.”
a. In this backdrop, as the Judge, what will your approach be to refer the parties to one of the ADR mechanisms under
Section 89?
b. Critically analyse the role of ADR and the blurring of procedural and other differences between ADR and litigation
in the current times.

(15 marks, 900 words)

JGLS [End-term Examination – Spring’2022] Page 3

 Section II
Please attempt 2 of three questions. Each question is 10 marks and must be answered in 600 words.

Question 4
‘The UNCITRAL Model Law does not contain provisions prescribing any particular category of disputes as
nonarbitrable. That reflects in part the recognition that, as a matter of principle, almost any dispute is capable of
resolution by arbitration, and in part, the recognition that there is not yet any uniform or model international principle
that would clearly designate particular disputes as non-arbitrable’ (Gary Born, International Commercial Arbitration,
3rd edn 2021).

Discuss considering the Indian Arbitration and Conciliation Act, 1996, especially in light of recent jurisprudence on the
matter.
(10 marks, 600 words)

Question 5
M/s Zifi Carriers and M/s Aroma Sea Foods entered into a contract for transportation of certain commodities from the
Port of Eugenia to Port of Chennai. The Bill of Lading stated that the shipper is M/s Aroma Sea Foods and M/s Zifi
Carriers is the agent that facilitates transport. The very opening clause of the Bill of Lading specifies:

"In accepting this Bill of Lading, the Merchant expressly agrees to be bound by all the terms,
conditions, clauses and exceptions on both sides of the Bill of Lading whether typed, printed or
otherwise."

The arbitration clause, which is Clause 20, being a printed condition annexed to bill of lading states:

“The contract evidenced by the Bill of Lading shall be governed by the laws of India, and subject to
the exclusive jurisdiction of court in Chennai only. Disputes/difference arising out of this contract
and/or connection with the interpretation of any of its clauses shall be settled by arbitration in
India, in accordance with the Arbitration & Conciliation Act, 1996. The No. of Arbitrators shall be
three, and, the venue for arbitration shall be Chennai."

M/s Aroma Sea Foods filed a suit before the concerned court to recover a sum of Rs. 20 Lacs. M/s Zifi Carriers asserts
that the correct remedy is not a civil suit but arbitration between the parties in view of Clause 20 stated above. M/s
Aroma Sea Foods has challenged the validity of arbitration clause on the ground that arbitral clause is in an agreement
not signed by the parties. In light of these facts and using relevant statutory provisions and case law, discuss the
following:

a. Whether M/s Aroma Sea Foods can file a civil suit?

b. What is the remedy available to M/s Zifi Carriers?
c. Comment on whether Clause 20 can be relied upon.

(10 marks, 600 words)

Question 6
Nissun Motors (Japan) enters into a contract with Tataa Motors (India) for manufacturing 9000 three-wheeler vehicles in
India. The contract contained the following arbitration clause:

Any dispute arising out of or in connection with this contract, including any question regarding its
existence, validity or termination, shall be referred to and finally resolved by arbitration in

JGLS [End-term Examination – Spring’2022] Page 4

 accordance with the Arbitration Rules of the Mumbai Centre for International Arbitration (“MCIA
Rules”), which rules are deemed to be incorporated by reference in this clause.
The seat of the arbitration shall be New Delhi.
The Tribunal shall consist of three arbitrators.
The language of the arbitration shall be English.
The law governing this arbitration agreement shall be Indian law.
The law governing the contract shall be Indian law.

After the delivery, the three-wheeler vehicles are found to be having defective engines. As a result, Tataa Motors
initiated arbitration under the MCIA Rules. The tribunal rendered an award dt. 2nd March 2022 in which Nissun Motors
were ordered to pay Rs. 1 Crores as damages based on the arguments made by both parties. In the three-member
tribunal, 2 arbitrators were in favour of Tataa Motors and 1 arbitrator was in favour of Nissun Motors.

Aggrieved by the award, Nissun Motors filed a petition in the Delhi High Court under Section 34 of the Arbitration and
Conciliation Act, 1996 for setting aside the award. The Delhi High Court rejected the challenge.

Afterwards, Nissun Motors appealed to Supreme Court and requested for modification of the arbitral award. Precisely,
requesting the Supreme Court to upheld the minority view of the arbitral award. In light of these facts and using relevant
statutory provisions and case law, discuss the following:

a. Whether the courts have the power to modify the award under Section 34 of the Act?
b. Whether courts shall follow minimum judicial intervention principle while hearing Section 34 petition?

(10 marks, 600 words)

JGLS [End-term Examination – Spring’2022] Page 5