IN THE SUPREME COURT OF INDIA,

AT NEW DELHI.

Civil Appeal No. 1437 of 2019

Indian Premier Bank Pvt. Ltd. … Appellant

v.
Wakanda Investment Corporation …Respondent

Written Submission on Behalf of Appellant,

90A,
Counsel for Appellant

Cases

Associate Builders v Delhi Development Authority...................................................................9

Bharat Aluminium Co. v. Kaiser Aluminium Technical Services Inc........................................1
CDC v Akzo Nobel and ors.........................................................................................................5
Deutsche Bank AG London Branch v Petromena ASA..............................................................7
Donohue v. Armco Inc & Ors....................................................................................................7
Enercon (India) Ltd. v. Enercon Gmbh......................................................................................1
Fiona Trust & Holding Corp v. Privalov...................................................................................7
Heyman v. Darwins....................................................................................................................4
Hyundai Merchant Marine Co Ltd. v. Americas Bulk Transport Ltd........................................4
Hyundai Merchant Marine Company Limited v Americas Bulk Transport Ltd ........................5
Indus Mobile Distribution Private Limited v. Datawind Innovations Private Limited and Ors1
Investors Compensation Scheme Ltd v West Bromwich Building Society.................................7

1
Kuldeep Singh v. Commr. Of Police..........................................................................................9
Lion Engineering Consultants v State of MP.............................................................................6
Michael Wilson & Partners v. Emmott .....................................................................................5
MSP Infrastructure v. Madhya Pradesh Road Development Corporation................................6
Renusagar Power Co. Ltd. v General Electric Co.....................................................................8
Shashoua v. Sharma...................................................................................................................1
Steel Authority Of India Ltd v. Gupta Brother Steel Tubes Ltd.................................................6
Union of India v. Salween Timber Construction........................................................................7

Statutes

Arbitration and Conciliation Act 1996.......................................................................................4

Books and Journals

Yeo Tiong Min, ‘ The Effective Reach of Choice of Law Agreements’[2008] Singapore
Academy of Law Journal.......................................................................................................7

STATEMENT OF JURISDICTION

Civil Appeal No. 1437 of 2019

The appellants have approached this Honourable Court under Art.136 of the Constitution of
India, 1950. Subsequently, the leave has been granted by the Court.

Civil Appeal No. 1437 of 2019

The appellants have approached this Honourable Court under Art.136 of the Constitution of
India, 1950. Subsequently, the leave has been granted by the Court.

2
 STATEMENT OF FACTS

I. The Players

Indian Premier Bank Pvt Ltd.- Indian Premier Bank was incorporated in Bangalore in
2009 by three businessmen who are household names in India. It specialises in making loans
to high risk ventures, usually start-ups in sectors that the more conventional banks would
avoid. The Bank had a very high paid-up share capital, which was necessary to balance the
losses that would incur from time to time because inherent risks in the bank’s business model.

Wakanda Investment Corporation(‘WIC’) – WIC is a sovereign wealth fund, created by

the government of Wakanda, under the Wakanda Investment Corporation Act 2013. Its
mandate under the legislation is to invest the assets entrusted to it for generating profits for
the welfare of Wakandan citizens. WIC is led by a Chief Executive Officer who reports to the
Prime Minister of Wakanda.

II. The Equity Derivative Agreement [EDA]

The EDA was entered into by both parties on 18 October 2014. The EDA was aresult of
constant efforts by the Bank to persuade WIC to enter into the agreement. In pursuance of the
EDA, WIC made an upfront payment of 100 million Pounds

To the Bank in exchange for notional exposure to three publicly listed shares chosen by the
WIC itself. The EDA had a term of 30 months. Which implied that the sum payable( if any)
to WIC would depend on the price of the underlying stocks on the date of maturity, i.e., 18
April 2017. Although, it was a risky investment, WIC was prepared to make it because it
believed that the share price of underlying stocks would rise. Besides the standard terms the
EDA also contained the provision as to the governing law and dispute resolution; Clause 19
of the agreement stated that the agreement shall be governed by Indian law and Clause 20
contained the provision relating to dispute resolution.

3
Initially it seemed that WIC would make a good profit, as the price of the underlying stocks
was steadily rising. It seemed that the strike price would be reached and WIC would make a
good profit. But, due to some unforeseen measures taken by the US government, the price of
the underlying stocks fell heavily. As a result none of the underlying stocks could reach the
strike price on maturity date and therefore, nothing was payable to WIC.

III. Arbitration proceedings

On 18 August 2017 , the WIC served a request for arbitration on the Bank. WIC claimed
that the EDA was void because WIC lacked capacity under the Wakandan law to enter
into such a contract, therefore, Bank was under an obligation to make restitution of the
sum of 100 million pounds which WIC paid. WIC also claimed that the Bank was liable
in tort, according to Wakanda Business practices Act 2006 ( the 2006 act), to pay
damages to WIC for using unfair business practices to persuade WIC to enter into the
contract. WIC also filed an application in the Karnataka High Court seeking interim
measures under section 9 of the Arbitration and Conciliation Act( ‘ the 1996 Act’). The
relief was granted to WIC.

On 14 September Bank served its response. All the claims advanced by the WIC were
denied by the Bank and, the Bank reserved its right to challenge the jurisdiction of the
Tribunal over both the claims. But, the Bank challenged the Tribunal’s jurisdiction in its
statement of defence. The Tribunal heard the oral arguments in Mumbai in April 2018. It
was decided;

1- Restitution Claim
(a) The Bank its right to object to the jurisdiction of the tribunal, by not raising the
objection in its response.
(b) In any case the Tribunal does have jurisdiction to determine the claim. Also, the
invalidity of EDA does not affect the validity of clause 20 of the agreement.
(c) WIC’s capacity to enter into the EDA was governed by Wakandan law, not Indian
law. Therefore, the EDA was void ab initio.
(d) WIC is entitled to restitution of the payment which it made to the bank.
2- The Tort Claim

4
 (a) Since, the EDA does not contain any express choice of law for the tort claim, the
tribunal has the discretion to apply the law which it deems fit. The tribunal found
that Wakandan law is the appropriate law, therefore, 2006 Act is applicable
(b) The Bank used unfair business practices to persuade WIC, therefore, the Bank is
liable under section 4 of the 2006 Act
(c) Hence, WIC is entitled to damages of 2 million under section 4 and further 6
million under section 18.

IV. The Bank filed an application under section 34 , in Bombay High Court.
The hearing was conducted on 19th October in and the High Court decided that;
(a) The Bombay High Court has exclusive jurisdiction to deal with all
applications arising out of the agreement because the seat of arbitration was
Mumbai.
(b) The Bank could contest the jurisdiction of the Tribunal for the first time under
section 34.

V. Subsequently, WIC filed an appeal to the Commercial Appellate Division . The

appellate division held that any application under section 34 could be made only
to the Karnataka High Court.
VI. The present petition
The Bank filed a petition seeking special leave to appeal to the Supreme Court,
wherein the leave was granted. Therefore, now the appeals will be heard by the
Supreme Court.

5
 ISSUES RAISED
I.

Did the Bombay High Court have jurisdiction to determine the Bank’s application under
section 34 ?

II.

Did the Bank waive its objection to the Tribunal’s jurisdiction to determine the restitution
claim by failing to raise it in the Response ?

III.

If not, did the Tribunal have jurisdiction to determine this claim?

IV.

Was the Bank entitled to contest the jurisdiction of the Tribunal for the first time in its
application under section 34, not having done so in the Response, Statement of Defence or at
any other stage in the arbitration ?

V.

If so, did the tribunal have jurisdiction to determine the claim?

VI.

Was the Tribunal’s conclusion that the tort claim is governed by Wakandan law contrary to
public policy of India.?

VII.

In any event, was the Tribunal’s award of damages under section 4 and/or 18 of the 2006 Act
contrary to public policy?

6
 SUMMARY OF ARGUMENTS

I. Bombay High Court did have jurisdiction to determine the Bank’s

application under section 34.

It has been argued that Bombay High Court had the exclusive jurisdiction over the arbitration
proceedings, because the seat of the arbitration was in Bombay. Therefore, Bombay High
Court did have the jurisdiction to determine the Bank’s application under section 34.

II. Restitution Claim

(a) The Bank did not waive its objection to the Tribunal’s jurisdiction to determine
the restitution claim by failing to raise it in the response.

The Bank did not waive its right to object as according to both the LCIA rules and the
Arbitration and Conciliation Act, the was entitled to raise its objection in the statement of
defence.

(b) The tribunal did not have jurisdiction to determine the restitution claim.

The tribunal did not have jurisdiction because the doctrine of separability does not apply in
the instant case because the agreement was void ab initio. Also, the restitution claim was
outside the scope of the arbitration agreement because the restitution claim is not within
‘Submission to Arbitration’.

III. Tort Claim

(a) The Bank was entitled to contest the jurisdiction of the tribunal for the first time in its
application under section 34, after not having done so at any stage in the arbitration

The Bank was entitled to contest the jurisdiction because current position of law according to
the Supreme Court is that the jurisdiction can be contested under section 34 even if the same
was not done under section 16.

7
(b)The tribunal did not have the jurisdiction to determine the tort claim

The tort claim cannot be said to ‘ arise out of or under’ the contract. Rather, the tort preceded
the contract. The tort had already been committed when the agreement was formed, therefore,
it cannot be said to arise out of the agreement.

(c)The Tribunal’s conclusion that the tort claim is governed by Wakandan is contrary to the
public policy.

The parties had made an express choice of law in the agreement, but still the tribunal chose to
apply the Wakandan law, which was a wrong choice of law. The tribunal’s erroneous
conclusion led to the unjust punishment of the Bank.

(d)The tribunal’s award of damages under section 4 and 18 of the 2006 Act was contrary to
the public policy of India.

The award was contrary to the public policy because it was in contravention to the
fundamental policy of Indian law. Also, it was in conflict with the most basic notions of
justice.

(c)

8
 ARGUMENTS ADVANCED

I. Bombay High Court did have jurisdiction to determine the Bank’s application
under section 34.
Before determining whether Bombay High Court had the jurisdiction to determine the Bank’s
application[B], it is imperative to determine the seat of the arbitration.[A]

[A] Bombay was the seat of arbitration;

The arbitration clause does not expressly state the seat of the arbitration. The clause only
states the venue of the arbitration. In the instant case the venue of the arbitration should be
considered the seat of the arbitration, this can based on the English High Court judgement,
Shashoua v. Sharma.1 In this judgement the court held that venue should be considered the
seat of arbitration , if the parties do not specify the seat in the agreement. The decision was
based on the reasoning that if the parties had intended to name a ‘venue’ which was different
from the ‘seat’, they would have specifically named both , therefore, it can be concluded that
by not specifying the seat, the parties do not intend to differentiate seat from venue.

In the instant case, same reasoning can be applied to infer that the parties did not intend to
differentiate seat from the venue, hence Bombay is the seat of arbitration.

[B] Bombay High Court has exclusive jurisdiction over disputes which arise out of this
agreement.
Issues of jurisdiction have been dealt with in section 42 of the 1996 Act, therefore, If present
issue is assessed solely on the basis of section 42 of the 1996 Act it may be concluded that
only Karnataka High Court has jurisdiction over applications arising out of this agreement.
But, it is imperative that we consider the Supreme Court of India’s stance on this issue, it can
be easily concluded that Bombay High Court has exclusive jurisdiction over applications
arising out of this agreement. The Supreme Court of India is of the view that once the seat of
arbitration is determined, it would be in the nature of an exclusive jurisdiction clause.2

1
[2009] EWHC 957 (Comm)
2
Indus Mobile Distribution Private Limited v. Datawind Innovations Private Limited and Ors  [2017]
7 SCC 678; Bharat Aluminium Co. v. Kaiser Aluminium Technical Services Inc (2012) 9 SCC 552;
Enercon (India) Ltd. v. Enercon Gmbh (2014) 5 SCC 1

9
 II. Restitution Claim

(a) The Bank did not waive its objection to the tribunal’s jurisdiction to determine the
restitution claim by failing to raise it in response.

[A] IN ACCORDANCE WITH LCIA RULES-

The article 23 of LCIA states that the respondent is required to raise the objection on
jurisdiction of a tribunal ‘ as soon as possible’ but not later than the statement of defence. 3
Therefore, according to the LCIA rules it is not mandatory to raise the objection in the
response. The rule clearly states that the Bank was allowed to raise the objection the
objection in the statement of defence, which it did. Hence, the Bank did not waive its claim to
raise objection to the jurisdiction of the tribunal.

[B] IN ACCORDANCE WITH THE ARBITRATION AND CONCILIATION ACT 1996

As per the section 16(2) of the 1996 Act, the respondent shall not raise the objection to the
jurisdiction of an arbitral tribunal later than the statement of defence. In the instant case it is
important to take into account the 1996 Act despite the fact that this is a procedural issue and
it should be governed by LCIA rules, because in a recent judgement,  A v. B, the tribunal
interpreted ‘ as soon as possible’ to mean that the objection should be raised in the response
itself.4 This decision was overturned by the High Court. The Court was of the view that when
the LCIA rules are applied in conjugation with the English laws, it is found that the objection
can be raised in the statement of defence. Therefore, in the present case when LCIA rules are
applied in conjugation with the section 16 of the 1996 Act it is found that the Bank did not
waive its right to object to the jurisdiction of the tribunal.

3
London Court of International Arbitration, article 23
4
 A v B [2017] EWHC 3417 (Comm)

10
 (b) The tribunal did not have jurisdiction to determine the restitution claim

[A] THE DOCTRINE OF SEPARABILITY DOES NOT APPLY IN THE INSTANT CASE.
The primary reason for which the tribunal may have decided that it had the jurisdiction to
determine the restitution claim would have been the doctrine of separability. This doctrine is
enshrined in section 16(1) (b) of the 1996 act. 5 The section expounds that the arbitration
clause in the contract should be treated as independent from other terms of the contract and
that the validity of the contract, of which the arbitration clause is a part does not affect the
validity of the arbitration clause. In the instant case section 16 and hence the doctrine of
separability does not apply because WIC claims that id did not have the capacity to enter the
contract. Which essentially means that the contract was void ab initio, it never came into
existence owing to the incapacity of WIC to enter into the contract. Therefore, along with the
EDA, the arbitration agreement never came into existence and hence, the question of
separability does not arise.

A similar stance was taken by the court in Heyman v. Darwins where the court found that the
arbitration clause cannot operate when the contract is void ab initio. 6 Also, the contract never
became binding on the parties due to incapacity of WIC to enter into the contract. Therefore,
the arbitration clause never became binding.7

Therefore, the arbitration agreement was not separable from the EDA in the instant case.
Hence, the tribunal did not have jurisdiction to determine the restitution claim.

[B] THE RESTITUTION CLAIM IS OUT OF THE SCOPE OF THE ARBITRATION AGREEMENT
The restitution claim should be considered to be out of the scope of the arbitration agreement
because the Bank never intended to include a claim for restitution in the agreement. Neither
could the bank foresee such claim arising out of the agreement. 8 Therefore, there was a lack
of consensus between both the parties, hence, the arbitration agreement never came into
existence owing to the lack of consensus between the parties. In Hyundai Merchant Marine
Company Limited v Americas Bulk Transport Ltd  the court found that lack of consensus
invalidates the arbitration agreement.9 
5
Arbitration and Conciliation Act 1996, s16(1)(b)
6
[1942] 1 AER 337 (HL)
7
Hyundai Merchant Marine Co Ltd. v. Americas Bulk Transport Ltd.[2013] EWHC 470 (Comm)
8
The incapacity of WIC could not have been, reasonably, foreseen by the Bank
9
 [2013] EWHC 470 (Comm)

11
[C] The parties neither had the intention to include the restitution claim in the jurisdiction
clause, nor could the parties foresee such claims at the time of the creation of the jurisdiction
clause.

Claims which the party never intend to include in the jurisdiction clause cannot be
determined by the arbitral tribunal if they arise.10 In the instant case no reasonable party
would intend to include claims which are based on the inherent incapacity of a party 11 to enter
into a contract because such an intention would imply that the parties are knowingly making
an agreement which holds no value in the eyes of the law, which is absurd.

Also, claims which no party could have reasonable foreseen are not included within the scope
of the jurisdiction clause.12 A reasonable party could never have foreseen such a claim,
because no party could expect a state sovereign fund to enter into a contract, when it cannot
do so because of its legal incapacity. Therefore, the tribunal did not have the jurisdiction to
determine the restitution claim because the parties never intended it to be included in the
jurisdiction clause.

III. Tort Claim

(a) The Bank was entitled to contest the jurisdiction for the first time in its application
under section 34, not having done so in the response, Statement of Defence or at any
other stage in the arbitration.
Section 16 of the 1996 Act provides that arbitral tribunals have the power to decide on
their jurisdiction, which implies that a party should raise the question of jurisdiction of
the tribunal during the arbitration process.13

But, in a recent judgement The Supreme Court of India held that even if jurisdictional
objection is not raised under section 1614, the same can be raised under section 34 of the
1996 Act.15

10
Michael Wilson & Partners v. Emmott [2018] EWHCA 51
11
¶ 13, Fact sheet
12
CDC v Akzo Nobel and ors.[2015] QB 906
13
Arbitration and Conciliation Act 1996, s 16
14
ibid
15
Lion Engineering Consultants v State of MP.

12
 This judgement overruled a previous judgement by the Supreme Court of India, where the
court found that objections related to jurisdictions have to be raised before the
Tribunal.16The court stated that section 16 does not in any way bars a party to object to
the jurisdiction of a tribunal for the first time under section 34. Therefore, the current
position of law on the matter of objecting to the jurisdiction of the arbitration tribunal
sides with the appellant.

Hence, in the instant case the Bank was entitled to contest the jurisdiction of the Tribunal
for the first time in its application under section 34.

(b) The Tribunal did not have jurisdiction to determine the claim.

[A] THE TORT CLAIM WAS BEYOND THE SCOPE OF THE ARBITRATION TRIBUNAL BECAUSE THE
TORT CLAIM DID NOT FALL WITHIN THE TERMS OF THE SUBMISSION TO ARBITRATION.

According to section 16(3), an arbitral tribunal exceeds its authority if it deals with disputes
not submitted to it.17 A tribunal can be said exceed its authority under section 16(3) 18 if it
decides on a dispute which neither contemplated at the time when the agreement was
formed.19 Therefore, the arbitral tribunal did not have jurisdiction to determine the tort claim
as it was beyond the scope of the ‘ submission to arbitration’.

[B] THE TORT CLAIM DOES NOT ARISE ‘OUT OF OR UNDER THE AGREEMENT’
According to clause 20 of the agreement only those disputes can referred to the tribunal
which arise out of or under the agreement. In the instant case the tort claim does not arise out
of the agreement, rather it precedes the agreement. 20 The tort can never arise out of the
agreement because at the time when the agreement was made, the tort had already been
committed. Also, the use of the term ‘ arising out of’ cannot be presumed to include claims
preceding the agreement, even if the claims are linked to the contract. 21 The tort occurred
even before the contract there it cannot be said to be within the means of clause 20 of the
agreement.

As the tort claim does not arise out of or under the contract, it is not covered by clause 20 and
hence, the tribunal did not have the jurisdiction to determine the tort claim.
16
MSP Infrastructure v. Madhya Pradesh Road Development Corporation [2015] 13 SCC 713
17
Arbitration and Conciliation Act 1996, s16(3)
18
ibid
19
Steel Authority Of India Ltd v. Gupta Brother Steel Tubes Ltd
20
¶ 6, Fact sheet.
21
Donohue v. Armco Inc & Ors. [2001] UKHL 64; Union of India v. Salween Timber Construction
1969 (2) SCR 224; Deutsche Bank AG London Branch v Petromena ASA [2015] EWCA 226

13
 (c) Tribunal’s conclusion that the tort claim is governed by Wakandan law was contrary
to public policy of India.

[A] THE TORT CLAIM WAS GOVERNED BY INDIAN LAW

Determining whether choice of law clause includes tortious liability is a matter of
construction of contract.22It is a common law tendency to bind parties to their choice of law
agreement , it extends to all disputes which arise out of a relationship, and not just to
contractual disputes.23 In common law the choice of law clause is interpreted in view of the
intentions of the contracting parties.24 Besides, the general tendency of common law, the tort
claim would be governed by Indian law because:

(i) The choice of law clause of the EDA would cover both contractual and tortious
claims
In the Fiona Trust case the court stated that reasonable parties would want their entire
relationship to be governed by one system of law and would intend to resolve all kinds of
disputes under the same law.

[B] WRONG CHOICE OF LAW BY THE ARBITRAL TRIBUNAL WAS CONTRARY TO THE PUBLIC

POLICY OF INDIA.

Section 34(2)(b)(ii) of the 1996 act provides grounds for setting aside an arbitral award on the
basis of public policy.25 The section states the grounds on which an award can be said to be in
contravention to the public policy of India. 26 Two of the grounds on which an award can said
to be against public policy are; Contravention to the fundamental policy of Indian law and
conflict with the most basic notions of morality and justice. These heads were first laid down
in Renusagar Power Co. Ltd. v General Electric Co 27 and were later included in section 34.
Further, fundamental policy of Indian law was defined by the Supreme Court and the court
said that ‘miscarriage of justice’ comes within the purview of public policy grounds on which
an award can be set aside.28 In this decision the court used ‘ miscarriage of justice ‘ in relation
to fundamental policy of Indian law. Therefore, it can be concluded that:

22
Fiona Trust & Holding Corp v. Privalov [2007] UKHL 40
23
Yeo Tiong Min, ‘ The Effective Reach of Choice of Law Agreements’[2008] Singapore Academy
of Law Journal.
24
Investors Compensation Scheme Ltd v West Bromwich Building Society [1998] 1 WLR 896
25
Arbitration and Conciliation Act 1996 , s 34(2)(b)(ii)
26
ibid
27
[1994] AIR 860 (SC)
28
ONGC Ltd v Western GECO Ltd  [2015] AIR 363 (SC)

14
 (i) The wrong choice of law by the tribunal would lead to ‘ Miscarriage of Justice’
and would therefore be in contravention to fundamental policy of Indian law and
the most basic notions of morality and justice.
In the instant case the parties have expressly chosen Indian law to govern the relationship
between the parties. Therefore, it would be unjust for the Bank to be punished under
Wakandan law because of wrong choice of law by the Tribunal. 29 The conclusion that the tort
claim is governed by Wakandan law despite the express choice of law stated in the contract
would lead to ‘Miscarriage of Justice’. Hence, the award would be in contravention to the
public policy of India as defined section 34.

Therefore, the conclusion that the tort claim is governed by Wakandan law would be contrary
to public policy as it would lead to unjust punishment of the Bank.

(d) The Tribunal’s award of damages under section 4 and section 18 of the 2006 Act was
contrary to the public policy of India.
Section 34 of the 1996 Act has laid down grounds on the basis of which it can be determined
if an award is against the public policy of India. The award by the tribunal is in contravention
with two of those grounds; Fundamental Policy of Indian Law[A] and Basic notions of
justics[B].

[A] THE AWARD IS IN CONTRAVENTION WITH THE FUNDAMENTAL POLICY OF INDIAN LAW
According to section 34(2)(b)(ii) an award would be contrary to public policy if it is
contravention with the Fundamental policy of Indian law. 30But the section does not define
fundamental policy of Indian law.

Fundamental policy of Indian law has been defined by the Supreme Court in ONGC Ltd v
Western GECO Ltd .31 The Supreme Court expounded that fundamental policy of Indian law
comprises of three of three heads – “ duty to adopt a judicial approach”, “adhering to
principles of natural justice” and decision of the tribunal must not be “ perverse or irrational
that no reasonable person would have arrived at the same”.

It is submitted that the decision made by the tribunal in the instant case is so perverse that no
reasonable person would have arrived at the same. The meaning of ‘perverse decision’ has

29
Kingspan v. Borealis [2012] EWHC 1147
30
Arbitration and Conciliation Act 1996, s34
31
 [2015] AIR 363 (SC)

15
been envisaged in the Supreme Court Judgement; Kuldeep Singh v. Commr. Of Police32 . In
this case the Supreme Court expounds that “ if a decision is arrived at on no evidence or
evidence which is thoroughly unreliable and no reasonable person would act upon it, the
decision would be perverse”. In same case the Supreme Court also makes a distinction that a
decision would not be perverse even if some evidence is considered, howsoever unreliable it
may be. In the instant case the tribunal did not consider any evidence as to the loss suffered
by WIC (if any) because of the unfair business practices by the Bank. 33 The tribunal awarded
damages without even the considering whether or not WIC suffered any damage because of
the unfair business practices.

Therefore, it can be concluded that the tribunal’s decision was perverse, and hence it was
contrary to the fundamental policy of Indian Law.

[B] THE AWARD WAS IN CONFLICT WITH THE BASIC NOTIONS OF MORALITY AND JUSTICE
An award can be set aside under the grounds of ‘justice’ when the award is such that it ‘shock
the conscience of the court’.34 In the instant case the award under the sections 4 and 18 has
been made without considering whether or not WIC has suffered any loss because of unfair
business practices by the Bank. Also, the treble damages have been imposed on the Bank
without any just cause, and without considering whether the Bank gained any commercial
advantage because of its acts.35

Also, section 18 itself is against the basic notions of morality and justice as it requires a party
to pay treble damages just because the party has been found guilty under section 4 of the act,
therefore, the decision of the arbitral tribunal should shock the conscience of the court.

Hence, the award for damages under section 4 and 18 is contrary to the public policy of India
as it is in contravention with the fundamental policy of Indian law and also in conflict with
the most basic notions of morality and justice.

32
[1999] 2 SCC 10
33
Footnote number 4, Fact Sheet
34
Associate Builders v Delhi Development Authority  [2015] AIR 620 (SC)
35
Footnote number 4, Fact Sheet

16
 PRAYER
Wherefore in light of issues raised, arguments advanced and authorities cited, it is humbly
prayed that this Honourable Court may be please to adjudge and declare that:

I. Bombay High Court did have jurisdiction to determine the Bank’s application
under section 34;
II. Restitution Claim;
(a) The bank did not waive its objection to the tribunal’s jurisdiction to determine
the restitution claim by failing to raise it in the response;
(b) The Tribunal did not have the jurisdiction to determine the restitution claim
III. Tort Claim;
(a) The Bank was entitled to contest the jurisdiction of the tribunal for the first
time in its application under section 34, after not having done so at any stage
in the arbitration;
(b) The Tribunal did not have jurisdiction to determine the tort claim;
(c) The Tribunal’s conclusion that tort claim is governed by Wakandan law is
contrary to the public policy of India;
(d) The Tribunal’s award of damages under section 4 and 18 of 2006 Act was
contrary to public policy;

And pass any other order that this Honourable Court may deem fit in the interests of justice,
equity and good conscience.

90A, Counsel for Appellant

17