Moot Problem

Promit Chaterjee

Senior Associate, P&A Law Offices

On 2 October 2018, the government of Sikkim awarded a contract to Garrison & Toubro India
Private Limited (G&T) for building a state-of-the art hydroelectric power plant channeling water
from the Teesta river. G&T is a reputed engineering and construction consulting company
registered in Mumbai, and is the subsidiary of the UK headquartered Garrison & Toubro
Limited.

On 4 January 2019, G&T entered into a contract with Martinium Electronics Pte Ltd
(Maritnium) for procuring turbines for the power project (the Turbines Contract). Martinium
is the Singapore incorporated subsidiary of German electronics corporation, Martinium GmbH.

Clause 17 of the Turbines Contract states:

“17. Governing Law and Dispute Resolution

17.1 This contract including this Clause 17 shall be governed in accordance with Indian law.

17.2 The courts in Maharashtra, India have exclusive jurisdiction over any dispute arising out
of or in connection with this contract, including any question regarding its existence,
validity or termination, subject to G&T’s right to go to arbitration pursuant to clause
17.3.

17.3 G&T has the right to refer any dispute arising out of or in connection with this contract,
including any question regarding its existence, validity or termination, to arbitration in
Singapore under the Rules of the International Chamber of Commerce Arbitration Rules 2012
(ICC Rules), which Rules are deemed to be incorporated by reference into this clause.”

The first batch of turbines was delivered to G&T’s project site in Sikkim on 1 April 2019.
However, all of these turbines failed G&T’s quality control test. Being dismayed by this, G&T’s
CEO, Mr Jim Daniels engaged a forensic investigations company, Cosmopolitan Investigations
LLP (Cosmopolitan) to conduct an investigation into the affairs of Martinium. The investigative
report submitted by Cosmopolitan to G&T on 1 May 2019 noted that Martinium had deliberately
misrepresented and forged all documents pertaining to quality of the raw materials used in
production, the industry body certificates for the quality and efficiency of its production
machinery, regulatory approvals for its plants, etc. Mr Daniels became very aggrieved by this
report given that G&T had entered into the Turbines Contract solely on the basis of Martinium’s
representation about the quality of its turbines and the reliability of its production process.

Pursuant to the unanimous decision taken at an emergent board meeting on 10 May 2019, G&T
initiated arbitration under the ICC Rules. This arbitration was seated in Singapore and an award
on jurisdiction and merits was passed by the tribunal on 31 December 2019 (the Award).
Maritinium never participated in the arbitral process out of protest.

On 25 March 2020, G&T filed a petition before the Bombay High Court for enforcing the above
award and notice was issued to Martinium on that day itself.

Please draft a memorandum on behalf of Martinium (the Martinium Memo) resisting

enforcement of the Award as well as another memorandum on behalf of G&T replying to the
Martinium Memo.

Work on two issues of law for this proposition.