R.K. Tankha Moot Respondent NLUO Team

TEAM CODE: 17R
5TH NLIU JUSTICE R.K. TANKHA
MEMORIAL INTERNATIONAL ARBITRATION MOOT 2020
Before
THE ARBITRAL TRIBUNAL,
BARATHEON CITY, STARK PROVINCE
IN THE MATTER OF
ARCEBOR POWER PVT LIMITED
CLAIMANT
Versus
RENVIDORA NATIONAL POWER COMPANY LIMITED
RESPONDENT
MEMORANDUM for RESPONDENT

5TH NLIU JUSTICE R K TANKHA
MEMORIAL INTERNATIONAL MOOT COURT COMPETITION 2020
TABLE OF CONTENTS
TABLE OF ABBREVIATION................................................................................................V
INDEX OF AUTHORITIES..................................................................................................XI
STATEMENT OF FACTS................................................................................................XXIII
ISSUES RAISED................................................................................................................XXV
SUMMARY OF ARGUMENTS......................................................................................XXVI
ARGUMENTS ADVANCED....................................................................................................1
ISSUE [I] THERE IS NO VALID AGREEMENT BETWEEN PARTIES WHICH

REFERS THE DISPUTE TO ARBITRATION UNDER THE AEGIS OF SIAC..........1
1. THERE IS NO MANIFESTATION OF UNEQUIVOCAL CONSENT TO ARBITRATE................1
A. RESPONDENT never agreed for resolution of disputes solely by arbitration.........2
B. The Addendum is not an agreement to arbitrate but only an extension to Clause

11.0.............................................................................................................................2
2. ALTERNATIVELY, THE DISPUTE CANNOT BE MAINTAINED UNDER THE AEGIS OF SIAC.

3
A. Clause 1.0 is uncertain and does not provide sufficient indication to invoke
arbitration...................................................................................................................4
i. Clause 1.0 is unenforceable owing to its uncertainty...................................4
ii. Alternatively, CLAIMANT did not comply with its obligation to negotiate.....4
B. Clause 1.0 does not refer to SIAC Rules but rather designates an inexistent
arbitral institution.......................................................................................................5
C. Additionally, ambiguities in Clause 1.0 must be interpreted against CLAIMANT. 5
ISSUE [II] THE INSOLVENCY PROCEEDINGS UNDERWAY AGAINST

RESPONDENT IN YEVADU BAR THE JURISDICTION OF THIS HONORABLE
TRIBUNAL ..........................................................................................................................6
1. RESPONDENT IS INCAPABLE TO PARTICIPATE IN THE PRESENT PROCEEDINGS.............6
A. Capacity of RESPONDENT is governed by its national laws.................................6
MEMORIAL for RESPONDENT PAGE | I

B. RESPONDENT is incapable to participate in the present proceedings owing to the
insolvency laws of Yevadu.........................................................................................7
i. Moratorium imposed expressly prohibits the continuation of any

arbitration proceedings.........................................................................................7
ii. RESPONDENT cannot be represented if the proceedings continue.................8
2. INTERNATIONAL PUBLIC POLICY PROHIBITS THE CONTINUANCE OF THE PRESENT
PROCEEDINGS......................................................................................................................8
3. THE TRIBUNAL SHOULD DECLINE JURISDICTION IN LIGHT OF UNENFORCEABILITY OF

THE AWARD........................................................................................................................9
A. The arbitrator has a duty to render an enforceable award..................................10
B. The Award would be unenforceable if the present proceedings continue..........10
C. The Tribunal should exercise its discretion to decline jurisdiction in light of

perceived unenforceability.......................................................................................11
ISSUE [III] CLAIMANT IS UNDER AN OBLIGATION TO DISCLOSE ITS

SOURCE OF FUNDING FOR PURSUING THESE ARBITRATION
PROCEEDINGS AND THE TRIBUNAL SHOULD ORDER SECURITY FOR
LEGAL COSTS..................................................................................................................11
1. THE TRIBUNAL SHALL ORDER CLAIMANT TO DISCLOSE THE THIRD PARTY FUNDING.
12
A. RESPONDENT has sufficient means to believe that CLAIMANT has concluded a

third party funding....................................................................................................12
B. The required disclosure is relevant and material................................................13
i. Existence of a third party funding is a relevant factor in assessing the

request for security of costs.................................................................................13
ii. Knowledge of existence of third party funding is necessary to determine the

existence of potential conflict of interests............................................................14
2. THE TRIBUNAL SHOULD ORDER CLAIMANT TO PRODUCE SECURITY FOR LEGAL
COSTS....................................................................................................................................
..................................................................................................................................15
A. The Tribunal has the power to order security for costs......................................15
MEMORIAL for RESPONDENT PAGE | II

B. RESPONDENT would suffer irreparable harm if the cost is not ordered and that
this harm would outweigh the potential harm caused to CLAIMANT.......................15
C. RESPONDENT has met its burden of proof in justifying the requirement of

security for costs......................................................................................................16
ISSUE [IV] THE MINISTRY OF POWER, GOVERNMENT OF YEVADU

SHOULD NOT BE JOINED AS A PARTY TO THE PRESENT ARBITRAL
PROCEEDINGS................................................................................................................17
1. THE MINISTRY CANNOT BE JOINED AS A PARTY TO THE PRESENT ARBITRAL
PROCEEDING UNDER SIAC RULES....................................................................................17
A. The Ministry is not prima facie bound by the Addendum.................................18
i. A valid arbitration clause does not exist....................................................18
ii. Alternatively, the Ministry is not bound by such arbitration clause...........18
a. The Ministry and RESPONDENT are separate legal entities.........................19
b. RESPONDENT is not an agent of the Ministry..............................................19
B. None of the Parties consented to the joinder of the Ministry to the pending
arbitration.................................................................................................................20
2. FORCED JOINDER IS AGAINST THE FUNDAMENTAL PRINCIPLES OF ARBITRATION.....20
ISSUE [V] CLAIMANT’S CONDUCT BREACHED THE AGREEMENT AND

RESPONDENT WAS JUSTIFIED IN TERMINATING THE AGREEMENT...........21
1. CLAIMANT’S FAILURE TO TIMELY DELIVER THE COMPONENTS AMOUNTS TO A
BREACH OF THE AGREEMENT...........................................................................................21
A. CLAIMANT’s failure to deliver the components on the fixed date breached the
obligations under Art. 30 and Art. 33 CISG.............................................................22
B. CLAIMANT’s failure to perform the contract is not exempted under Art. 79......22
i. The increase in costs is not an impediment rather is under CLAIMANT’s

control and within his sphere of risk....................................................................22
ii. Even if the increase in costs is regarded as an economic impediment

CLAIMANT could have overcome the said impediment.........................................23
MEMORIAL for RESPONDENT PAGE | III

2. RESPONDENT WAS JUSTIFIED IN TERMINATING THE AGREEMENT UNDER ART. 49
CISG.................................................................................................................................24
A. The delay in delivery amounted to a fundamental breach under Art. 25 CISG. 24
i. RESPONDENT suffered a detriment by receiving delayed delivery...............24
ii. The detriment substantially deprived it of what it was entitled to expect

under the Agreement............................................................................................25
iii. The substantial detriment was reasonably foreseeable by CLAIMANT........25
a. The contention of not foreseeing the detriment is invalid..........................25
b. Even if the contention is taken into account the detriment was foreseeable
for CLAIMANT...................................................................................................26
B. RESPONDENT has sufficient grounds to expect fundamental breach regarding

future deliveries........................................................................................................26
C. RESPONDENT could not reasonably be expected to await subsequent

performance.`...........................................................................................................27
i. Buyer’s Right to avoid takes priority over seller’s right to cure.................27
ii. The subsequent performance would cause unreasonable inconvenience to

the buyer...............................................................................................................28
iii. The additional period of time as per Art. 47 CISG is not a mandatory
requirement..........................................................................................................28
PRAYER.........................................................................................................................XXVIII
MEMORIAL for RESPONDENT PAGE | IV

TABLE OF ABBREVIATION
ABBREVIATION EXPANSION
% Percentage
& And
§ Section
© Copyright
¶ Paragraph
Addendum Addendum to the Agreement
Agreement Parts Supply Agreement
AIR All India Reports
AIR All India Law Report
Arb Arbitration
Art. Article
The United Nations Convention on
CISG Contracts for the International Sale of
Goods
CLAIMANT Arcebor Power Private Limited
Clause 1.0 of the Addendum to the
Clause 1.0
Agreement
Clause 11.0 Clause 11.0 of the Agreement
CLC Civil Law Cases
Journal du droit international (journal of
CLUNET
International Law)
E.C.R. European Court Reports
ECR European Court Law Report
Edn. Edition
United States District Court for the
EDNY
Eastern District of New York Law report
Et al. et alia (and others)
EWHC The High Court of Justice in London
EWHC High Court of England and Wales
F. 2d Federal Reporter, Second Series
F. 3d Federal Reporter, Third Series
F. Supp, F Supp. 2d West’s Federal Supplement
MEMORIAL for RESPONDENT PAGE | V

HKC Hong Kong Law report
Hon’ble Honourable
i.e. That is
International Bar Association Rules on the
IBA Taking of Evidence in International
Commercial Arbitration
Insolvency and Bankruptcy Code of
IBC
Yevadu, 2016
ICC International Chamber of Commerce
The International Council for
ICCA
International Centre for Settlement of
ICSID
Investment Disputes
Id. Idem
Inc Incorporation
Int’l International
LIX Belgrade Law Review
Lloyd's Rep Lloyd's Law Report
LLP Limited Liability Partnership
Ltd. Limited
The United Nations Commission on
Model Law International Trade Law Model Law on
International Commercial Arbitration
NCLT National Company Law Tribunal
No./Nos. Number/Numbers
Convention on the Recognition and
NY Convention Enforcement of Foreign Arbitral Awards,
1958
Ors. Others
Arcebor Power Private Limited and
Parties Renvidora National Power Company
Limited
PCA Permanent Court of Arbitration Reports
The Principles of International
PICC
Commercial Contracts 2016
Pvt. Private
QMUL Queen Mary University of London
RESPONDENT Renvidora National Power Company
MEMORIAL for RESPONDENT PAGE | VI

Limited
Rev Crit French Critical Review Reports
Rev. Arb Revue de l’Arbitrage (Arbitration Review)
SCC Supreme Court Cases
SCC OnLine Supreme Court Cases Online
SGHC Singapore High Court
SGHCLR Singapore High Court Law Report
SGHCR Singapore High Court Registrar
SIAC Singapore International Arbitration Centre
Singapore International Arbitration Centre
SIAC Rules
Rules, 2016
SICA Sick Industries Companies Act, 1985
SLR Singapore Law Report
Tribunal The Arbitral Tribunal
LexisNexis database for U.S. District
U. S. Dist. Lexis
Court cases
Law reports of Commercial Court of
UGCOMMC Uganda
United Kingdom House of Lords (UK

UKHL
parliament)
UN United Nation
United Nations Commission on
UNCITRAL
International Trade Law
United Nation Conference on Trade and
UNCTAD
Development
US United States
USD United States Dollars
v versus
Vol Volume
WL West Law Report
WLR Weekly Law Reports
Yearbook of the International Council for
YICCA
All ER (Comm) All England Reports (Commercial Cases)
FCLC First Civil Law cases
MEMORIAL for RESPONDENT PAGE | VII

Korean Commercial Arbitration case law
KCA
reports
SCL Supreme Court Law reports
CC Commercial Cases
LEXIS NEXIS law reports of United states
LEXIS
of America
Second Circuit cases of United states of
S.Ct.
America
CanLII Canadian Legal Information institute
Case-numbers of the BGH (German
ZR
Federal Court of Justice)
China International Economic and Trade
CIETAC
Arbitration Commission
G.S. Guideline
INDEX OF AUTHORITIESXARBITRAL AWARDS PG. NO.

CIETAC Case No. 07 of 2007 41
ICC Case No. 5622 of 1988 25
ICC Case No. 12739 of 2008 21
ICC Case No. 1434 of 1975 28
ICC Case No. 1986 of 1990 26
ICC Case No. 4695 of 1984 26
ICC Case No. 4727 of 1987 22
ICC Case No. 6281 of 1989 38
ICC Case No. 6709 of 1991 18
ICC Case No. 8128 of 1995 41
ICC Case No. 8261 of 1996 22
ICC Case No. 9977 of 2003 21
ICC Case. No. 178 of 1997 22
ICSID Case No. 03/24 of 2005 32
IUSCT Case No. 64 of 1985 33
MEMORIAL for RESPONDENT PAGE | VIII

XCASES PG. NO.
Alchemist Asset Reconstruction Company Ltd. v. Hotel Gaudavan Pvt. Ltd. 24
et Al. [2018] 16 SCC 94
Bank Mellat v. GAA Development Construction Co.[1988] 2 Lloyd's Rep 44 26
Cable and Wireless v. IBM United Kingdom [2002] 2 EWHC 2059 21
Dallah Real Estate and Tourism Holding Company v. The Ministry of 35
Religious Affairs, Government of Pakistan [2010] 1 UKSC 46
Deutsche Hochseefischerei GmbH v. Reederei Mond Hochseefischerei 18
Nordstern AG [1982] E.C.R. 1095
Diversitel Communications Inc. v. Glacier Bay Inc. [2003] CanLII 49351 39
Dunlop v. Selfridge [1915] 2 AC 847 35
Enercon Ltd. v. Enercon Gmbh et Al. [2014] 5 SCC 1 22
Gasque v. I.R.C. [1940] 2 K.B. 80 23
Hays and Co. v. Merrill Lynch [1999] 885 F.2d 1149 25
Heavy Engineering Mazdoor Union v.State of Bihar [1969] 1 SCC 765 35
HKL Group Co Ltd v. Rizq International Holdings Pte Ltd [2013] SGHCR 22
5
In re U.S. Lines, Inc. [1999] 197 F.3d 631 25
Jharkhand Bijli Viltran Nigam Ltd. v. IVRL Ltd et Al. [2018] SCC Online 25
18197
K.S. Oils Ltd. v. The State Trade Corporation of India Ltd. et Al. [2018] 146 24
SCL 588
Laboratorios Grossman S.A. v. Forest Laboratories Inc. [1968] 295 N.Y.S. 18
2d 756
Lajpat Rai Mago v. State of Haryana [1971] 41 SCC 693 35
M/S Lion Engineering Consultants v. State of M.P. et Al. [2018] AIR 1895 25
Mandataires Judiciaires Associés, in the person of Mrs. X et Al. v. 25
International Company for Commercial Exchanges [2010] 35 YICCA 353
Marks 3 Zet-Ernst Marks Gmbh & Co.KG v. Presstek, Inc. [2006] 455 F.3d 22
7
Mastrobuono v. Shearson Lehman Hutton Inc. [1995] 514 U.S. 52 22
Nokia Maillefer S.A. v. Mazzer [1996] 21 YICCA 687 22
Québec Inc. v. Fafard [2004] QJ No. 4085 19
S. Ltd v. P. Gmbh [2011] 23 KCA 10113 22
Steelworkers v. American Mfg. Co. [1960] 80 S.Ct. 1343 36
Steelworkers v. Enterprise Wheel & Car Corp. [1960] 80 S.Ct. 1358 36
Steelworkers v. Warrior & Gulf Nav. Co. [1960] 80 S.Ct. 1347 36
MEMORIAL for RESPONDENT PAGE | IX

Stolt-Nielsen S.A. v. Animal Feeds International Corp [2010] 2 LEXIS 36
3672
Sudarshan Chopra et Al. v. Company Law Board et Al. [2004] 2 Arb LR 19
241
Tang Chung Wah v. Grant Thornton International Ltd. [2013] 1 All ER 21
(Comm) 1226
Victrix Steamship Co., S.A. v. Salen Dry Cargo A.B. [1987] 825 F.2d 709 25
Walford v. Miles [1992] 2 WLR 174 21
Wellington Associates Ltd. v. Mr. Kirit Mehta [2000] 4 SCC 272 19
Westland Helicopters Ltd. v. The Arab Organization for Industrialization, 34
the United Arab Emirates, the Kingdom of Saudi Arabia, the State of Qatar
and the Arab Republic of Egypt [1991] 25 YICCA 174
X GmbH v. Y Sàrl [2011] 4 FCLC 46 21
Zechman v. Merril Lynch 742 F. Supp. 1359 [1990] 21
XBULGARIAN AND GERMAN CASES PG. NO.

Bulgarian Case No. 11/1996 of 1998 38
German Case No. 1 U 167/95 of 1997 38
German Case No. 29 U 70 of 1994 22
German Case No. 8 ZR 394/12 of 2014 40
XINTERNATIONAL CONVENTIONS AND RULES PG. NO.

Convention on the Recognition and Enforcement of Foreign Arbitral 19
Awards 1958
International Bar Association Guidelines on Conflicts of Interest in 30
International Arbitration 2004
International Bar Association Rules on the Taking of Evidence in 29
International Commercial Arbitration 2010
International Centre for Dispute Resolution Arbitration Rules 2006 31
International Chamber of Commerce Arbitration Rules 2010 26
London Court of International Arbitration Rules 36
Singapore International Arbitration Centre Rules 2016 28
UNIDROIT Principles of International Commercial Contracts 2016 22
United Nations Commission on International Trade Law Model Law on 19
International Commercial Arbitration 1985
United Nations Convention on Contracts for the International Sale of 37
Goods 1980
MEMORIAL for RESPONDENT PAGE | X

XBOOKS PG. NO.

Alan Redfern et Al., Redfern and Hunter on International Commercial 18
Arbitration (6th edn., Oxford University Press 2004)
Albert Jan Van den Berg, 50 Years of the New York Convention: ICCA 36
International Arbitration Conference (1st edn., ICCA & Kluwer Law
International 2009)
Albert Jan van den Berg, New Horizons in International Commercial 26
Arbitration and Beyond (1st edn., Kluwer Law International 2005)
Alexander Jolles, Consequences of Multi-tier Arbitration Clauses: Issues of 20
Enforcement (2nd edn., Sweet & Maxwell 2006)
Andrea M Steingruber, Consent in International Arbitration (3rd edn., 23
Oxford University Press, 2012)
Anirudh Wadhwa et Al., Wadhwa Guide to Insolvency and Bankruptcy 25
Code (1st edn., Wadhwa Chambers 2019)
Antje Baumann, Practitioner's Handbook on International Commercial 19
Arbitration (3rd edn., Oxford University Press 2000)
Bernardo Cremades, Third Party Funding in International Arbitration (1st 30
edn., Kluwer Law International & Business 2013)
Bernstein & Lookofsky, Understanding the CISG in Europe (2nd edn., 42
Kluwer Law International 2003)
Bühler et Al., Handbook of ICC Arbitration: Commentary, Precedents, 23
Materials (2nd edn., Sweet & Maxwell 2008)
C Benicke, Munich Commentary on the Commercial Code: HGB (2nd edn., 40
CHBeck 2007)
D. P. Simpson, Cassell's Latin Dictionary Latin-English English-Latin (5th 19
edn., Continuum International Publishing Group Ltd. 2000)
Deyan Draguiev, The Effect of Insolvency on Pending International 23
Arbitration: What Is and What Should Not Be (2nd edn., Kluwer Law
International 2015)
E. Alan Farnsworth, Farnsworth on Contracts (4th edn., Kluwer Law 22
International 2019)
Eugenio Minoli, Commercial Arbitration: Essays in Memoriam Eugenio 22
Minoli (1st edn., Torinese Printing-Publishing House, 1974)
Frank-Bernd Weigand et Al., Practitioner’s Handbook on International 23
Arbitration (1st edn., C.H. Beck Verlag München 2002)
G. Petrochilos, Procedural law in International Arbitration (1st edn., 19
Oxford University Press 2004)
Gary B. Born, International Commercial Arbitration (2nd edn., Kluwer Law 19
International 2014)
MEMORIAL for RESPONDENT PAGE | XI

Herbert Kronke, Recognition and Enforcement of Foreign Arbitral Awards: 27
A Global Commentary on the New York Convention (2nd edn., Kluwer Law
International 2010)
Herzberg et Al., Practice comment on the arbitration rules(1st edn., 29
Dr.Otto Schmidt 2014)
IDM Danmark, Cambridge Advanced Learner's Dictionary (4th edn., 20
Cambridge University Press 2013)
Ingeborg Schwenzer, Commentary on the CISG (4th edn., Oxford University 37
Press 2016)
Jan Van den berg, The New York Arbitration Convention of 1958 (1st edn., 18
Jeffrey Maurice Waincymer, Procedure and Evidence in International 29
Arbitration (3rd edn., Kluwer Law International 2012)
Joannes Robert et Al., The French Law of Arbitration (5th edn., Mathew 18
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John Choong et. al., A Guide to the SIAC Arbitration Rules (2nd edn., 36
Jonas von Goeler, Third- Party Funding in International Arbitration and its 28
Impact on Procedure (2nd edn., Kluwer Law International 2016)
Julian D.M. Lew, Applicable Law in International Commercial Arbitration: 26
A Study in Commercial Arbitration Awards (1st edn., Dobbs Ferry Oceana
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Julian Lew et Al., Comparative International Commercial Arbitration (2nd 23
edn., Kluwer Law International 2003)
Karl-Heinz Böckstiegel, Public Policy and Arbitrability in Comparative 23
Arbitration Practice and Public Policy in Arbitration (2nd edn., Kluwer
Law International 1987)
Klaus Lionnet et Al., Handbook of International and National Arbitration 18
(3rd edn., Richard Boorberg Verlag GmbH & Co KG 2005)
Larry A. Di Matteo, The Law of International Contracting (4th edn., 22
Margaret Deuter et Al., Oxford Advanced learners dictionary (9th edn., 19
Martin Domke, Domke on Commercial Arbitration, The law of Practice of 21
Commercial Arbitration (1st edn., Dorothy O Callagahn 1984)
Nadja Erk, Parallel Proceedings, in International Arbitration: A 25
Comparative European Perspective (2nd edn., Kluwer Law International
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Hugh Baele, Chitty on Contracts (30th edn., Sweet & Maxwell 2008) 29
Peter Huber et. Al., The CISG a New Textbook for Students and 38
Practitioners (3rd edn., Sellier European Law Publishers 2007)
MEMORIAL for RESPONDENT PAGE | XII

Philippe Fouchard et Al., International Commercial Arbitration (1st edn., 18
R. Doak Bishop et Al., Foreign Investment Disputes: Cases, Materials and 33
Commentary (2nd edn., Kluwer Law International 2014)
Reinmar Wolff, New York Convention on the Recognition and Enforcement 18
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Richard Garnett et Al., A Practical Guide to International Commercial 22
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Schlechtriem et. Al., International UN Sales Law, Article 25 (6th edn, Mohr 40
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Simon Vorburger, International Arbitration and Cross-Border Insolvency: 27
Comparative Perspectives (4th edn., Kluwer Law International 2014)
Stefan Kroll, Arbitration and Insolvency Proceedings (2nd edn., Kluwer 25
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Stefan M Kröll et Al., Comparative International Commercial Arbitration 22
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Stefan Vogenauer, Commentary on the UNIDROIT Principles of 22
International Commercial Contracts (2nd edn., Oxford University Press
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Ulrich Magnus, Commentary on the Civil Code With the Introduction of the 39
Law and By-Laws, Vienna (CISG) (13th edn., Sellier de Gruyter 1994)
Vesna Lazić, Insolvency Proceedings and Commercial Arbitration (1st edn., 25
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XSTATUTES PG. NO.

Civil Code of Russian Federation 1994 23
French New Code of Civil Procedure 2011 31
German Code of Civil Procedure 2005 31
Insolvency and Bankruptcy Code 2016 24
Reform of the Italian System of Private International Law 1995 23
Switzerland's Federal Code on Private International Law 1987 23
MEMORIAL for RESPONDENT PAGE | XIII

The Code of Private International Law of Belgium 2004 23
XARTICLES AND JOURNALS PG. NO.

Antonio Crivellaro, ‘Third-Party Funding and Mass Claims in Investment 30
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XONLINE SOURCES PG. NO.
MEMORIAL for RESPONDENT PAGE | XIV

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XOTHER AUTHORITIES PG. NO.

Australian Federal Court’s Practice Note CM 17 [13 December 2013] 30
SIAC Practice Note on Arbitrator Conduct in Cases Involving External 28
Funding [31 March 2017]
MEMORIAL for RESPONDENT PAGE | XV

STATEMENT OF FACTS
PARTIES:
Arcebor Power Pvt. Ltd. [hereinafter to as “CLAIMANT”] incorporated under the laws of
Xanier. It is the market energy leader and has a major manufacturing unit in Xanier. It sources
its raw materials from Zorastra.
Renvidora National Power Company Ltd. [hereinafter to as “RESPONDENT”] is a

Government Company. It has an objective to provide energy in the remote and hilly regions
of Yevadu. It owns and operates three thermal power plants in Tullyland, Lanniport and
Asshai.
AGREEMENT:
RESPONDENT entered into a Parts Supply Agreement [hereinafter referred to as

“Agreement”] with the CLAIMANT in 2015.Under the Agreement, the CLAIMANT was
supposed to supply parts and components on or before 31st of each quarterly ending. Further,
CLAIMANT had the entire obligation of inspecting, testing and monitoring the 15X turbines at
the Tullyland Power Plant annually and supplying parts and components to be replaced in the
turbines in instalments throughout the year.
CLAIMANT was made aware of the strategic importance of the Tullyland Power Plant. Even
the RESPONDENT stressed the need for ensuring that the delivery of the parts is made on time,
such that duration for which the power plant is closed is reduced to minimum number of
days.
ENSUING EVENTS:
On 29th December 2017, CLAIMANT in the garb of a new restructuring policy did not send the
officials for inspection. The RESPONDENT agreed to it. However, the remote inspection was
not in line with the quality expected of it.
On 20th August 2018, the CLAIMANT relying on a mere price fluctuation started demanding to
renegotiate the terms of the Agreement. In response to which, the RESPONDENT clarified that
the pricing was in line with the current market and mere fluctuations in cost shall not affect
the long term Agreement.
MEMORIAL for RESPONDENT PAGE | XVI

th
On 14 December 2018, the RESPONDENT reiterated and clarified that it would not be able to
renegotiate the terms of the Agreement. Further, it specified the requirement of a timely
delivery else it would be constrained to initiate actions under the Agreement.
On 20th January 2019, even after knowing the importance of prescribed delivery date, the
CLAIMANT failed to deliver the consignment in the stipulated time period. Therefore, the
RESPONDENT had to terminate the agreement.
On 11th February 2019, the RESPONDENT came across the notice by the global arbitration
news. Wherein the managing director of Viability Finance Limited Claimed to have assumed
the costs of arbitration for Fresh grounds Lockhardt Bodinger LLP which is the firm
representing CLAIMANT. There is ambiguity regarding the information and extent of the
funding.
On 21st February 2019, moratorium was imposed on the RESPONDENT by the National
Company Law Tribunal [hereinafter referred to as the “NCLT”] of Nedista by virtue of
which the initiation or continuation of any legal proceedings including arbitration
proceedings against the RESPONDENT is prohibited.
The RESPONDENT reiterates that its termination of the Agreement was based on the
fundamental breach of the Agreement committed by the CLAIMANT.
MEMORIAL for RESPONDENT PAGE | XVII

ISSUES RAISED
ISSUE 1
WHETHER THERE IS A VALID AGREEMENT IN EXISTENCE BETWEEN THE PARTIES WHICH
REFERS THE DISPUTES TO ARBITRATION UNDER THE AEGIS OF SIAC?
ISSUE 2
WHETHER THE INSOLVENCY PROCEEDING UNDERWAY AGAINST THE RESPONDENT IN YEVADU
BARS THE JURISDICTION OF THIS TRIBUNAL?
ISSUE 3
WHETHER THE CLAIMANT IS UNDER AN OBLIGATION TO DISCLOSE ITS SOURCE OF FUNDING
FOR PURSUING THESE ARBITRATION PROCEEDINGS AND SHOULD THE TRIBUNAL ORDER
SECURITY FOR LEGAL COSTS?
ISSUE 4
WHETHER THE MINISTRY OF POWER, GOVERNMENT OF YEVADU MAY BE JOINED AS A PARTY
TO THE PRESENT ARBITRAL PROCEEDINGS?
ISSUE 5
WHETHER THE CLAIMANT’S CONDUCT BREACHED THE AGREEMENT AND WHETHER THE
RESPONDENT WAS JUSTIFIED IN TERMINATING THE AGREEMENT?
MEMORIAL for RESPONDENT PAGE | XVIII

SUMMARY OF ARGUMENTS
ISSUE 1: THERE EXISTS NO VALID AGREEMENT BETWEEN PARTIES WHICH REFERS THE
DISPUTE TO ARBITRATION UNDER THE AEGIS OF SIAC.
The Arbitral Tribunal derives its jurisdiction solely from an arbitration agreement.
RESPONDENT contests the existence and validity of such arbitration agreement. There exists
no unequivocal intent to arbitrate between the Parties for arbitration as the sole method of
dispute resolution. Further, even if there is a valid arbitration agreement, the dispute is not
maintainable under the aegis of SIAC. This is in light of unenforceability of the assumed to
be valid arbitration clause and incorrect reference to the SIAC Rules.
ISSUE 2: THE INSOLVENCY PROCEEDINGS UNDERWAY AGAINST RESPONDENT IN YEVADU
BARS THE JURISDICTION OF THIS HON’BLE TRIBUNAL.
It is submitted that the insolvency proceedings underway against RESPONDENT in Yevadu

bars the jurisdiction of this Hon’ble Tribunal in light of incapacity of RESPONDENT owing to
the insolvency proceedings being initiated. The continuance of the present proceedings would
be in breach of international public policy and render an unenforceable award. Further, the
Tribunal has the duty to render an enforceable award and should exercise its discretion to
decline the jurisdiction in light of the prevalent circumstances.
ISSUE 3: CLAIMANT IS UNDER AN OBLIGATION TO DISCLOSE ITS SOURCE OF FUNDING FOR

PURSUING THESE ARBITRATION PROCEEDINGS AND THE TRIBUNAL SHOULD ORDER
SECURITY FOR LEGAL COSTS.
The Tribunal shall order CLAIMANT to disclose the third party funding. The RESPONDENT has
a reasonable means to believe that CLAIMANT has concluded a third party funding. Disclosure
and production of third party funding is a relevant factor for the assessment of request for
security of costs and to determine the existence of potential conflict of interest. Further,
RESPONDENT contends that the Tribunal has the power to order security for costs. The
RESPONDENT would suffer irreparable damages if the cost is not ordered and this harm would
outweigh the potential harm caused to other party. RESPONDENT has met its burden of proof
of producing the best evidence possible.
ISSUE 4: THE MINISTRY OF POWER OF GOVERNMENT OF YEVADU CAN NOT BE JOINED AS

A PARTY TO THE PRESENT ARBITRAL PROCEEDINGS
MEMORIAL for RESPONDENT PAGE | XIX

The CLAIMANT has contended that the Ministry of Power, Government of Yevadu should be
joined as a party to the present arbitral proceedings under SIAC Rules 2016. However, the
Ministry cannot be joined as a party as it is not prima facie bound by the arbitration
agreement. Since none of the Parties have consented to the joinder of the Ministry to arbitral
proceedings, such joinder will violate the fundamental aspects of arbitration. Thus, the
Ministry should not be joined as a party to the dispute without its approval.
ISSUE 5: THE CLAIMANT’S CONDUCT BREACHED THE AGREEMENT AND THE RESPONDENT
IS JUSTIFIED IN TERMINATING THE AGREEMENT.
It is submitted that CLAIMANT’S conduct breached the agreement and RESPONDENT is

justified in terminating the agreement. RESPONDENT contends that failure to timely deliver
the components amounts to breach of agreement as per Art. 30 and Art. CISG. Further, the
failure to perform the contract is not exempted under Art. 79 CISG. Moreover, the
RESPONDENT is justified in terminating the agreement under Art. 49 CISG. The delay in
delivering amounts to a fundamental breach under Art. 25 of the convention and has
substantial grounds to expect fundamental breach regarding future deliveries. Additionally,
RESPONDENT could not reasonably be expected to await subsequent performance.
MEMORIAL for RESPONDENT PAGE | XX

ARGUMENTS ADVANCED
ISSUE [I] THERE IS NO VALID AGREEMENT BETWEEN PARTIES WHICH

REFERS THE DISPUTE TO ARBITRATION UNDER THE AEGIS OF
SIAC.
[¶1.] Arcebor Power Pvt. Ltd. [hereinafter referred to as “CLAIMANT”] and Renvidora
National Power Company Ltd. [hereinafter referred to as “RESPONDENT”] entered into an
Agreement pertaining to supply of parts and components on 14 th January 2015 [hereinafter
referred to as “Agreement”]. An Addendum to the Agreement was signed on the same date
[hereinafter referred to as “Addendum”]. The arbitral tribunal derives its jurisdiction1 solely
from an arbitration agreement.2 RESPONDENT contests the existence and validity of such an
arbitration agreement under the aegis of Singapore International Arbitration Centre Rules,
2016 [hereinafter referred to as “SIAC”] on the following grounds: first, there is no
manifestation of unequivocal consent to arbitrate [1]; alternatively, the dispute cannot be
maintained under the aegis of SIAC [2].
1. THERE IS NO MANIFESTATION OF UNEQUIVOCAL CONSENT TO ARBITRATE.
[¶2.] The legitimacy of an arbitration agreement can only be preserved 3 if the common
intent and consent4 of the parties to arbitrate is established.5 Intent to arbitrate should be
unambiguously expressed.6 RESPONDENT submits that: first, RESPONDENT never agreed for
1 Philippe Fouchard et Al., International Commercial Arbitration (1st edn., Kluwer Law International 1999)
648.
2 Alan Redfern et Al., Redfern and Hunter on International Commercial Arbitration (6th edn., Oxford
University Press 2004) 29; Klaus Lionnet et Al., Handbook of International and National Arbitration (3rd edn.,
Richard Boorberg Verlag GmbH & Co KG 2005) 179.
3 Varady Tibor, ‘Appointing Authorities in International Commercial Arbitration’ [1988] 2 EMORY JOURNAL OF
INTERNATIONAL DISPUTE RESOLUTION 311.
4 Jan Van den berg, The New York Arbitration Convention of 1958 (1st edn., Kluwer Law International 1981)
231.
5 ICC Case No. 6709 of 1991; Laboratorios Grossman S.A. v. Forest Laboratories Inc. [1968] 295 N.Y.S. 2d
756; Deutsche Hochseefischerei GmbH v. Reederei Mond Hochseefischerei Nordstern AG [1982] E.C.R. 1095;
Philippe Fouchard et Al., International Commercial Arbitration (1st edn., Kluwer Law International 1999) 485;
Reinmar Wolff, New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards 1958-
Commentary (1st edn., C.H. Beck Hart Nomos Publications 2012) 85; The International Council for Commercial
Arbitration, ‘Guide on New York Convention 1958, A Handbook for Judges’ [2012] <https://www.arbitration-
icca.org/media/0/13365477041670/judges_guide_english_composite_final_revised_may_2012.pdf> accessed
on 9 January 2020; W. Laurance Craig et Al., International Chamber of Commerce Arbitration (3rd edn., Oxford
University Press 2000) 85.
485; Reinmar Wolff, New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards
1958- Commentary (1st edn., C.H. Beck Hart Nomos Publications 2012) 128; The International Council for
Commercial Arbitration, ‘Guide on New York Convention 1958, A Handbook for Judges’ [2012]
MEMORIAL for RESPONDENT PAGE | 1

resolution of disputes solely by arbitration [A]; and second, Addendum is not an agreement to
arbitrate but only an extension to Clause 11.0 of the Agreement [hereinafter referred to as
“Clause 11.0”] [B].
A. RESPONDENT NEVER AGREED FOR RESOLUTION OF DISPUTES SOLELY BY

ARBITRATION.
[¶3.] The parties must inform each other of their respective intentions to arbitrate. 7
Unilateral communications are not sufficient to satisfy the requirements of such exchange. 8 A
dispute resolution clause which bestows jurisdiction to the national courts along with
arbitration cannot be construed as an arbitration clause.9 This is because resolution of disputes
by arbitration must not only be parties’ rights, but also their obligations 10 to not to resort to
courts.11
[¶4.] Here, Clause 11.0 states that courts “shall have jurisdiction over any disputes under
the agreement.”12 It is submitted that Clause 11.0 provides the Parties with an option to either
opt for arbitration or litigation. CLAIMANT while raising concerns regarding Clause 11.0,
admitted that it did not refer to one single forum. 13 The intention of the Parties with respect to
final and binding nature of arbitration is absolutely essential. Clause 11.0 does not lead to any
obligation of the Parties to arbitrate but only a right as a matter of mutual choice.
[¶5.] Thus, RESPONDENT never agreed for resolution of disputes solely by arbitration.
B. THE ADDENDUM IS NOT AN AGREEMENT TO ARBITRATE BUT ONLY AN EXTENSION TO

CLAUSE 11.0.
<https://www.arbitrationicca.org/media/0/13365477041670/judges_guide_english_composite_final_revised_ma
y_2012.pdf> accessed on 9 January 2020; Joannes Robert et Al., The French Law of Arbitration (5th edn.,
Mathew Bender 1983) 134.
7 Jan Van den berg, The New York Arbitration Convention of 1958 (1st edn., Kluwer Law International 1981)
231.
8 ibid.
9 Convention on the Recognition and Enforcement of Foreign Arbitral Awards 1958, [“NY Convention”] Art.
II(3); United Nations Commission on International Trade Law Model Law on International Commercial
Arbitration 1985, [“Model Law”] Art. 8.
University Press 2004) 288; Wellington Associates Ltd. v. Mr. Kirit Mehta [2000] 4 SCC 272; Sudarshan
Chopra et Al. v. Company Law Board et Al. [2004] 2 Arb LR 241.
11 G. Petrochilos, Procedural law in International Arbitration (1st edn., Oxford University Press 2004) 78; Gary
B. Born, International Commercial Arbitration (2nd edn., Kluwer Law International 2014) 1020; NY
Convention, Art. II(3); Model Law, Art. 8; Philippe Fouchard et Al., International Commercial Arbitration (1st
edn., Kluwer Law International 1999) 648; Antje Baumann, Practitioner's Handbook on International
Commercial Arbitration (3rd edn., Oxford University Press 2000) 20; Québec Inc. v. Fafard [2004] QJ 4085.
12 Case Record, Exhibit C1, 13.

[¶6.] The contract between the parties is the fundamental constituent of arbitration. 14 The
addendum is only a section of extra information 15 added at the end of the contract.16 Further, a
clause providing for negotiation before arbitration is a multi tier clause.17 By including such a
clause, the parties indicate that arbitration will be sought only as a last resort.18
[¶7.] Here, CLAIMANT vide a correspondence,19 raised concerns for further clarity in the
Agreement with respect to dispute resolution. RESPONDENT assured CLAIMANT about the
workability of the clause and offered to mitigate its concerns at a later stage.20
[¶8.] It is submitted that RESPONDENT never agreed to settle the disputes via arbitration
even at this stage. Thereafter, CLAIMANT offered to add an Addendum regarding the dispute
resolution aspect.21 Hence, RESPONDENT signed the Addendum only to provide clarity to the
arbitration limb of the forum selection clause, in case arbitration is opted by the Parties later.
Further, there was no mention of ousting the jurisdiction of the courts even in the
Addendum.22
[¶9.] Thus, the Addendum is not an agreement to arbitrate but only an extension to Clause
11.0.
2. ALTERNATIVELY, THE DISPUTE CANNOT BE MAINTAINED UNDER THE AEGIS OF

SIAC.
[¶10.] It is submitted that even if the Addendum is construed as a valid arbitration

agreement, the dispute cannot be maintained under the aegis of SIAC because it is
pathological: first, Clause 1.0 of the Addendum [hereinafter referred to as “Clause 1.0”] is
uncertain and does not provide sufficient indication to invoke arbitration [A]; second, Clause
1.0 does not refer to SIAC but designates an inexistent arbitral institution [B]; and
446.
15 Margaret Deuter et Al., Oxford Advanced learners dictionary (9th edn., Oxford University Press 2015) 78; D.
P. Simpson, Cassell's Latin Dictionary Latin-English English-Latin (5th edn., Continuum International
Publishing Group Ltd. 2000) 29.
16 IDM Danmark, Cambridge Advanced Learner's Dictionary (4th edn., Cambridge University Press 2013) 53.
18 Alexander Jolles, Consequences of Multi-tier Arbitration Clauses: Issues of Enforcement (2nd edn., Sweet &
Maxwell 2006) 329; Oliver Krauss, ‘The Enforceability of Escalation Clauses Providing for Negotiations in
Good Faith Under English Law’ [2015] 2 MCGILL JOURNAL OF DISPUTE RESOLUTION 142 ; Craig Tevendale et
Al., ‘Mutli-tier Dispute Resolution Clauses and Arbitration’ [2015] 1 TURKISH COMMERCIAL LAW REVIEW 31.

additionally, ambiguities in Clause 1.0 must be interpreted against CLAIMANT[C].
A. CLAUSE 1.0 IS UNCERTAIN AND DOES NOT PROVIDE SUFFICIENT INDICATION TO INVOKE
ARBITRATION.
[¶11.] It is submitted that arbitration should not be allowed to proceed because primarily
Clause 1.0 is unenforceable owing to its uncertainty [i]; and alternatively, CLAIMANT did not
comply with its obligation to negotiate [ii].
i. Clause 1.0 is unenforceable owing to its uncertainty.
[¶12.] A clause providing for negotiation before arbitration is a multi tier clause. 23 Such
clauses should contain guidance as to the quality or nature of the attempts to be made to
resolve a dispute.24 The clause is highly uncertain25 if a procedural framework for negotiation
proceedings or a time limit for the initiation of such proceedings is not provided. 26 Such a
clause lacks sufficient objective criteria to decide whether one or both parties were in
compliance of such a provision.27 Therefore, such clauses cannot be effectively interpreted 28
and are unenforceable.29
[¶13.] Here, Clause 1.0 contains no guidance as to the quality or extent of the attempts to be
made to resolve a dispute and does not provide any procedural framework or time limit for
the initiation of negotiation proceedings. Hence, it lacks sufficient objective criteria.
[¶14.] Thus, Clause 1.0 is unenforceable owing to its uncertainty.
ii. Alternatively, CLAIMANT did not comply with its obligation to negotiate.
[¶15.] The mandatory obligations of negotiations or other procedural steps have to be
24 Tang Chung Wah v. Grant Thornton International Ltd. [2013] 1 All ER (Comm) 1226; Alan Redfern et Al.,
Redfern and Hunter on International Commercial Arbitration (6th edn., Oxford University Press 2004) 287.
25 Cable and Wireless v. IBM United Kingdom [2002] 2 EWHC 2059; Zechman v. Merril Lynch 742 F. Supp.
1359 [1990]; Martin Domke, Domke on Commercial Arbitration, The law of Practice of Commercial
Arbitration (1st edn., Dorothy O Callagahn 1984) 120; Alan Redfern et Al., Redfern and Hunter on
International Commercial Arbitration (6th edn., Oxford University Press 2004) 367; Gary B. Born, International
Commercial Arbitration (2nd edn., Kluwer Law International 2014) 189; Philippe Fouchard et Al., International
Commercial Arbitration (1st edn., Kluwer Law International 1999) 471; W. Laurance Craig et Al., International
Chamber of Commerce Arbitration (3rd edn., Oxford University Press 2000) 131.
26 X GmbH v. Y Sàrl [2011] 4 FCLC 46.
27Alan Redfern et Al., Redfern and Hunter on International Commercial Arbitration (6th edn., Oxford
485.
29 Walford v. Miles [1992] 2 WLR 174.

30
adhered to, where regard must be given to the wording of the clause. The combined use of
‘if’ and ‘will’, unequivocally demonstrate a mandatory condition precedent.31
[¶16.] Here, Clause 1.0 explicitly states that “…If these discussions prove unsuccessful...will
be…”It is submitted that the peremptory nature of the negotiation proceedings is evident.
Hence, arbitration cannot be invoked without fulfilling the mandatory conditions precedent.
[¶17.] Further, CLAIMANT’s assertion that it sent emails as an attempt to negotiate 32 does not
hold water. The dispute revolves around the termination of the Agreement. However, all the
attempts at negotiation pertain to unviability of the project.
[¶18.] Thus, CLAIMANT did not comply with its obligation to negotiate.
C. CLAUSE 1.0 DOES NOT REFER TO SIAC RULES BUT RATHER DESIGNATES AN
INEXISTENT ARBITRAL INSTITUTION.
[¶19.] Courts have been reluctant to refer the parties to arbitrate under a specific arbitral
institution merely because it is the closest possible designation 33where such designation is
ambiguous or inexistent34 with regard to the name of the institution or set of arbitration rules.
Courts and arbitral tribunals have found such agreements invalid.35
[¶20.] Here, Clause 1.0 refers the dispute to “Singapore Arbitration Centre.”36 It is
submitted that referral to such institution is vague and non- existent. It renders Clause 1.0
pathological in nature, extent and scope.
[¶21.] Thus, Clause 1.0 does not refer to SIAC Rules but rather designates an inexistent
arbitral institution.
D. ADDITIONALLY, AMBIGUITIES IN CLAUSE 1.0 MUST BE INTERPRETED AGAINST

CLAIMANT.
30 ICC Case No. 12739 of 2008; ICC Case No. 9977 of 2003.
31 Klaus Peter Berger, ‘Law and Practice of Escalation Clauses’ [2006] 22 ARBITRATION INTERNATIONAL 4;
Gary B. Born, International Commercial Arbitration (2nd edn., Kluwer Law International 2014) 841.
32 Case Record, Notice of Statement of Claim, 7.
33 German Case No. 29 U 70 of 1994; Nokia Maillefer S.A. v. Mazzer [1996] 21 YICCA 687.
34 Marks 3 Zet-Ernst Marks Gmbh & Co.KG v. Presstek, Inc. [2006] 455 F.3d 7.
35 S. Ltd v. P. Gmbh [2011] 23 KCA 10113; Enercon Ltd. v. Enercon Gmbh et Al. [2014] 5 SCC 1; HKL Group
Co Ltd v. Rizq International Holdings Pte Ltd [2013] SGHCR 5; German Case No. 29 U 70 of 1994; Stefan M
Kröll et Al., Comparative International Commercial Arbitration (1st edn., Kluwer Law International 2003) 75;
Eugenio Minoli, Commercial Arbitration: Essays in Memoriam Eugenio Minoli (1st edn., Torinese Printing-
Publishing House, 1974) 57; Benjamin G Davis, ‘Pathological Clauses: Frédéric Eisemann’s Still Vital Criteria’
[1991] 7 JOURNAL OF INTERNATIONAL ARBITRATION 365.

[¶22.] The rule of contra proferentem37 provides that any ambiguous clause, which has not
been specifically negotiated,38 has to be interpreted against the drafting party.39
[¶23.] Here, CLAIMANT drafted the Addendum and informed RESPONDENT about the same
on the day of signing the Agreement. 40 It is submitted that due to paucity of time,
RESPONDENT couldn’t have negotiated the terms of the Addendum. CLAIMANT has to borne
uncertainty in the procedure of negotiation and the unqualified reference to the inexistent
institution, ‘Singapore Arbitration Centre.’ Thus, ambiguities in Clause 1.0 must be
interpreted against CLAIMANT.
[¶24.] In conclusion, there is no valid agreement between the Parties which refers the dispute
to arbitration under the aegis of SIAC.
ISSUE [II] THE INSOLVENCY PROCEEDINGS UNDERWAY AGAINST

RESPONDENT IN YEVADU BAR THE JURISDICTION OF THIS
HONORABLE TRIBUNAL
[¶25.] It is submitted that the insolvency proceedings underway against RESPONDENT in

Yevadu bars the jurisdiction of this Hon’ble Tribunal on the following grounds: first,
RESPONDENT is incapable to participate in the present proceedings [1]; second, international
public policy prohibits the continuance of the present proceedings [2]; third, the Tribunal
should decline jurisdiction in light of unenforceability of the Award [3].
1. RESPONDENT IS INCAPABLE TO PARTICIPATE IN THE PRESENT PROCEEDINGS.
[¶26.] It is submitted that first, capacity of RESPONDENT is governed by its national laws
[A]; second, RESPONDENT is incapable to participate in the present proceedings owing to the
37 ICC Case No. 8261 of 1996; ICC Case No. 4727 of 1987; ICC Case. No. 178 of 1997; Philippe Fouchard et
Al., International Commercial Arbitration (1st edn., Kluwer Law International 1999) 479; UNIDROIT
Principles of International Commercial Contracts 2016, [“PICC”] 4.6; Richard Garnett et Al., A Practical
Guide to International Commercial Arbitration (2nd edn., Oceana Publications 2000) 46.
479; PICC, Art. 4.6; Sykes, ‘The Contra Proferentem Rule and the Interpretation of International Commercial
Arbitration Agreements – the Possible Uses and Misuses of a Tool for Solutions to Ambiguities’ [2004] 11
VINDOBONA JOURNAL OF COMMERCIAL LAW AND ARBITRATION 79; Larry A. Di Matteo, The Law of
International Contracting (4th edn., Kluwer Law International 2000) 202; E. Alan Farnsworth, Farnsworth on
Contracts (4th edn., Kluwer Law International 2019) 287.
39 ICC Case No. 4727 of 1987; German Case No. VIII ZR 410/12 of 2014; Mastrobuono v. Shearson Lehman
Hutton Inc. [1995] 514 U.S. 52; Stefan Vogenauer, Commentary on the UNIDROIT Principles of International
Commercial Contracts (2nd edn., Oxford University Press 2015) 20; Sykes, ‘The Contra Proferentem Rule and
the Interpretation of International Commercial Arbitration Agreements – the Possible Uses and Misuses of a
Tool for Solutions to Ambiguities’ [2004] 11 VINDOBONA JOURNAL OF COMMERCIAL LAW AND ARBITRATION
66.

insolvency laws of Yevadu [B].
A. CAPACITY OF RESPONDENT IS GOVERNED BY ITS NATIONAL LAWS.
[¶27.] Capacity has to be interpreted in a broad sense, meaning the capability to act, the
ability to be sued before the court and the valid power of attorney. 41 The status of a
company including as to whether it is capable of participating in certain pending procedures,
is governed by the law of the place where the company is incorporated.42
[¶28.] Here, RESPONDENT has been incorporated in Yevadu. RESPONDENT has its principal
office at Tridentland inYevadu.43 It is submitted that the national laws of Yevadu are
applicable in the context of capacity.
[¶29.] Thus, capacity of RESPONDENT is governed by its national laws.
E. RESPONDENT IS INCAPABLE TO PARTICIPATE IN THE PRESENT PROCEEDINGS OWING TO

THE INSOLVENCY LAWS OF YEVADU.
[¶30.] It is submitted that first, moratorium imposed expressly prohibits the continuation of
any arbitration proceedings [i]; second, RESPONDENT cannot be represented if the
proceedings continue [ii].
i. Moratorium imposed expressly prohibits the continuation of any arbitration

proceedings.
[¶31.] Insolvency laws of Yevadu are pari materia to Insolvency and Bankruptcy Code of
India 2016 [hereinafter referred to as “IBC”].44 The mandate of IBC is that the moment an
insolvency petition is admitted, a moratorium is imposed under §13 IBC. Under §14(1)(a)
IBC,45 the adjudicating authority expressly prohibits continuation of proceedings against
41 Frank-Bernd Weigand et Al., Practitioner’s Handbook on International Arbitration (1st edn., C.H. Beck
Verlag München 2002) 231; Bühler et Al., Handbook of ICC Arbitration: Commentary, Precedents, Materials
(2nd edn., Sweet & Maxwell 2008) 109.
534; Gasque v. I.R.C. [1940] 2 K.B. 80; Julian Lew et Al., Comparative International Commercial Arbitration
(2nd edn., Kluwer Law International 2003) 276; UNCTAD,‘Dispute Settlement by International Commercial
Arbitration’ [2005] < https://unctad.org/en/Docs/edmmisc232add39_en.pdf> accessed on 25 December 2019;
Andrea M Steingruber, Consent in International Arbitration (3rd edn., Oxford University Press, 2012) 319; Karl-
Heinz Böckstiegel, Public Policy and Arbitrability in Comparative Arbitration Practice and Public Policy in
Arbitration (2nd edn., Kluwer Law International 1987) 181; Reform of the Italian System of Private International
Law 1995, Art. 25; The Code of Private International Law of Belgium 2004, Art. 110; Switzerland's Federal
Code on Private International Law 1987, Art. 154; Civil Code of Russian Federation 1994, Art. 1202;
Deyan Draguiev, The Effect of Insolvency on Pending International Arbitration: What Is and What Should Not
Be (2nd edn., Kluwer Law International 2015) 542.
43 Case Record, Notice of Arbitration and Statement of Claim, 8.
44 Case Record, Procedural Order No. 1, 40.
45 Insolvency and Bankruptcy Code 2016, § 14.

corporate debtors during the moratorium. The effect is that the arbitration that has been
instituted before46 or after the aforesaid moratorium is non est in law.47
[¶32.] Here, the Statement of Claim was filed on 15th February 2019.48 The order of
moratorium has been pronounced by the National Company Law Tribunal, Special Bench of
Nedista [“NCLT”] on 21st February 2019.49 It is submitted that the present arbitration
proceedings initiated before the imposition of moratorium are non est in law.
[¶33.] Thus, moratorium imposed expressly prohibits the continuation of any arbitration
proceedings.
III. RESPONDENT cannot be represented if the proceedings continue.
[¶34.] After the imposition of moratorium, an IRP50 takes over the management of affairs of
the CD.51 Subsequently, a RP is appointed.52 The RP represents and acts on behalf of the CD
with third parties and exercises rights for the benefit of the CD in arbitration proceedings. 53
The RP is duty bound to preserve and protect the assets of the CD.54 Thus, if on determination
of claims it is understood that the CD is liable to pay, then the award cannot be executed
during the period of moratorium.55
[¶35.] Here, RESPONDENT is a CD and RP has been appointed. 56 Therefore, RESPONDENT is

not represented by the board of directors but by a RP. It is submitted that presently,
RESPONDENT cannot be benefitted from the proceedings since there are no counter claims of
RESPONDENT. RP, bound by the internal law, cannot represent CD.
[¶36.] Thus, RESPONDENT cannot be represented if the proceedings continue.
3. INTERNATIONAL PUBLIC POLICY PROHIBITS THE CONTINUANCE OF THE PRESENT

PROCEEDINGS.
[¶37.] Regardless of the parties’ choice57 or the tribunal’s discretion, public policy concerns
46 K.S. Oils Ltd. v. The State Trade Corporation of India Ltd. et Al. [2018] 146 SCL 588.
47 Alchemist Asset Reconstruction Company Ltd. v. Hotel Gaudavan Pvt. Ltd. et Al. [2018] 16 SCC 94.
48 Case record, Notice of Arbitration and Statement of Claim, 9.
49 Case Record, Exhibit R2, 36.
53 Insolvency and Bankruptcy Code 2016, § 25(2).
54 Insolvency and Bankruptcy Code 2016, § 25(1).
55 Jharkhand Bijli Viltran Nigam Ltd. v. IVRL Ltd et Al. [2018] SCC Online 18197.
57 ICC Case No. 5622 of 1988.

and overriding rules deriving from such concerns should be given effect. 58 The principle that
individual actions are suspended in bankruptcy matters pertains to international public
policy.59 Continuance of arbitral proceedings will as a direct consequence jeopardize the very
objective of a collective insolvency law.60 Therefore, continuance of parallel foreign
arbitration proceedings would be in breach of international public policy principles of
equality.61
[¶38.] Here, it is submitted that suspension of individual actions in insolvency matters

pertain to international public policy. Continuance of the present proceedings will provide
CLAIMANT with the opportunity to bypass the entire collective system of verification of
claims, asset distribution thereto being held in Yevadu. This would violate the principle of
equality.
[¶39.] Thus, international public policy prohibits the continuance of the present proceedings.
4. THE TRIBUNAL SHOULD DECLINE JURISDICTION IN LIGHT OF UNENFORCEABILITY

OF THE AWARD.
[¶40.] Enforceability of the award is the raison d'etre [the reason for being] of the arbitration
process.62 It is submitted that the Tribunal should decline jurisdiction in light of
unenforceability of the Award because first, the arbitrator has a duty to render an enforceable
award [A]; second, the Award would be unenforceable if the present proceedings
continue[B]; third, the Tribunal should exercise its discretion to decline jurisdiction in light of
357; Gary B. Born, International Commercial Arbitration (2nd edn., Kluwer Law International 2014) 2634; Alan
Redfern et Al., Redfern and Hunter on International Commercial Arbitration (6th edn., Oxford University Press
2004) 204; D. Hochstrasser, ‘Choice of Law and “Foreign” Mandatory Rules in International Arbitration’ [1994]
11 JOURNAL OF INTERNATIONAL ARBITRATION 57.
59 Mandataires Judiciaires Associés, in the person of Mrs. X et Al. v. International Company for Commercial
Exchanges [2010] 35 YICCA 353.
60In re U.S. Lines, Inc. [1999] 197 F.3d 631; Hays and Co. v. Merrill Lynch [1999] 885 F.2d 1149; Anirudh
Wadhwa et Al., Wadhwa Guide to Insolvency and Bankruptcy Code (1st edn., Wadhwa Chambers 2019) 361;
M/S Lion Engineering Consultants v. State of M.P. & Ors. [2018] AIR 1895; Nadja Erk, Parallel Proceedings,
in International Arbitration: A Comparative European Perspective (2nd edn., Kluwer Law International 2014)
215; Vesna Lazić, Insolvency Proceedings and Commercial Arbitration (1st edn., Kluwer Law International
1998) 432.
61 Victrix Steamship Co., S.A. v. Salen Dry Cargo A.B. [1987] 825 F.2d 709; Stefan Kroll, Arbitration and
Insolvency Proceedings (2nd edn., Kluwer Law International 2006) 357; Vesna Lazić, Insolvency Proceedings
and Commercial Arbitration (1st edn., Kluwer Law International 1998) 137; W. Laurance Craig et Al.,
International Chamber of Commerce Arbitration (3rd edn., Oxford University Press 2000) 68; Vesna Lazić,
Insolvency Proceedings and Commercial Arbitration (1st edn., Kluwer Law International 1998) 147; Nadja
Erk, Parallel Proceedings in International Arbitration: A Comparative European Perspective (2nd edn., Kluwer
Law International 2014) 215.
62 Yves Derains et Al., A Guide to the New ICC Rules of Arbitration (2nd edn., Kluwer Law International 1998)
353.

perceived unenforceability [C].
A. THE ARBITRATOR HAS A DUTY TO RENDER AN ENFORCEABLE AWARD.
[¶41.] Apparent enforceability of awards is the elementary reason why international

commercial arbitration is chosen over litigation. 63 Hence, the ultimate purpose of an arbitral
tribunal is to render an enforceable award.64 If an arbitrator's award is not enforceable, the
arbitrator would have failed the responsibility vested in him.65
[¶42.] Here, it is submitted that the Parties reasonably expected that the award will be
enforceable. There is a duty casted upon the Tribunal to render an enforceable award.
Otherwise, the purpose of arbitration will be defeated.
[¶43.] Thus, the arbitrator has a duty to render an enforceable award.
F. THE AWARD WOULD BE UNENFORCEABLE IF THE PRESENT PROCEEDINGS CONTINUE.
[¶44.] The award is enforced at a place where the debtor company holds assets. 66 Under Art.
V NY Convention and Art. 34(2) UNCITRAL Model Law, recognition and enforcement of an
award may be refused by the enforcing states in light of their own laws. 67 If the party
furnishes that it was under some incapacity under the law applicable to it, the award may be
refused by the enforcing state.68 Further, the award may be refused enforcement on public
policy grounds, i.e. the law in force of the state,69 if the domestic law at the place of the
enforcement of the award has mandatory provisions on the effect of insolvency,70
63 Albert Jan van den Berg, New Horizons in International Commercial Arbitration and Beyond (1st edn.,
Kluwer Law International 2005) 291; William R. Spiegelberger, The Enforcement of Foreign Arbitral Awards in
Russia: An Analysis of Relevant Treaties, Laws, and Cases (2nd edn., The American Review of International
Arbitration 2005) 262; Marcus Wang, ‘Dancing With the Dragon: What U.S. Parties Should Know About
Chinese Law When Drafting a Contractual Dispute Resolution Clause’ [2009] 309 NORTHWESTERN JOURNAL OF
INTERNATIONAL LAW AND BUSINESS 329.
University Press 2004) 343; Julian D.M. Lew, ‘The Law Applicable to the Form and Substance of the
Arbitration’ [1999] 9 ICCA CONGRESS SERIES 114; Bank Mellat v. GAA Development Construction Co. [1988] 2
Lloyd's Rep 44; International Chamber of Commerce Arbitration Rules 2010, [“ICC Rules”] Art. 41.
65 ICC Case No. 1986 of 1990; Julian D.M. Lew, Applicable Law in International Commercial Arbitration: A
Study in Commercial Arbitration Awards (1st edn., Dobbs Ferry Oceana 1978) 537; Alan Redfern et Al., Redfern
and Hunter on International Commercial Arbitration (6th edn., Oxford University Press 2004) 362; ICC Case
No. 4695 of 1984.
66 Victrix Steamship Co., S.A. v. Salen Dry Cargo A.B. [1987] 825 F.2d 709.
67 NY Convention, Art. V; Model Law, Art. 34(2).
68 NY Convention, Art. V(1)(a); Model Law, Art. 34(2)(a)(i).
69 M/S Lion Engineering Consultants v. State of M.P. et Al. [2018] AIR 1895.
70 Herbert Kronke, Recognition and Enforcement of Foreign Arbitral Awards: A Global Commentary on the
New York Convention (2nd edn., Kluwer Law International 2010) 381; Gary B. Born, International Commercial
Arbitration (2nd edn., Kluwer Law International 2014) 3676; Simon Vorburger, International Arbitration and
Cross-Border Insolvency: Comparative Perspectives (4th edn., Kluwer Law International 2014) 218.

[¶45.] Here, as already established, RESPONDENT is under incapacity due to the moratorium
imposed by the NCLT and subsequent lack of representation of RESPONDENT. It is submitted
that enforcement of the award shall be refused on the same grounds. Further, it is submitted
that IBC pertains to law in force in Yevadu. Suspension of individual actions is a mandatory
provision in Yevadu on the effect of moratorium under IBC.
[¶46.] Thus, if the present proceedings continue, the award would be unenforceable in
Yevadu which is the only place of enforcement.
G. THE TRIBUNAL SHOULD EXERCISE ITS DISCRETION TO DECLINE JURISDICTION IN LIGHT

OF PERCEIVED UNENFORCEABILITY.
[¶47.] When the parties draw tribunal's attention to a specific jurisdiction as a likely place of
enforcement, the tribunal should consider the law of this place out of abundant caution. 71 The
tribunal should take into consideration the domestic public policy of this place as well 72 as it
may also affect the application of rules of arbitral procedure. 73
[¶48.] Here, it is submitted that the tribunal cannot reasonably foresee the enforceability of
the Award as it is not an ordinary circumstance. Rather, it is a grave circumstance where
insolvency proceedings have been initiated against RESPONDENT which poses a high risk of
perceived unenforceability. This satisfies the standards of ‘abundant caution’ to be adopted by
the Tribunal. Thus, the Tribunal should exercise its discretion to decline jurisdiction in light
of perceived unenforceability.
[¶49.] In conclusion, the insolvency proceedings underway against RESPONDENT in Yevadu

bars the jurisdiction of this Hon’ble Tribunal.
ISSUE [III] CLAIMANT IS UNDER AN OBLIGATION TO DISCLOSE ITS

SOURCE OF FUNDING FOR PURSUING THESE ARBITRATION
PROCEEDINGS AND THE TRIBUNAL SHOULD ORDER SECURITY
FOR LEGAL COSTS.
[¶50.] A third-party funding agreement is a documentary evidence that may need to be

disclosed in order for the tribunal to decide on the respective procedural issue, provided that
1193; Gary B. Born, International Commercial Arbitration (2nd edn., Kluwer Law International 2014) 2158.
73 Model Law, Art. 36(1)(b)(ii); Deyan Draguiev, The Effect of Insolvency on Pending International
Arbitration: What Is and What Should Not Be (2nd edn., Kluwer Law International 2015) 542.

the arbitral tribunal has power to order production of documents. 74It is submitted that
CLAIMANT should be ordered to disclose its source of funding pursuant to Rule 27(c) SIAC
Rules75 and SIAC Practice Note.76 Further, it is a legitimate concern that if a party is
successful in arbitration and a costs order is made in its favor the other party will be unable to
meet the costs. Consequently, the third-party funder will disappear as it is not a party to the
arbitration.77 Additionally, the Tribunal has the power to order such costs pursuant to SIAC
Rules.78 Therefore, RESPONDENT submits that first, the Tribunal shall order CLAIMANT to
disclose the third party funding [1]; and second, it should order CLAIMANT to produce
security for legal costs [2].
1. THE TRIBUNAL SHALL ORDER CLAIMANT TO DISCLOSE THE THIRD PARTY FUNDING.
[¶51.] The opponent is required to satisfy the standards of specificity, relevance, and
materiality governing production of information.79 Further, CLAIMANT has the duty to
cooperate in good faith in the taking of evidence.80 Thereby, RESPONDENT submits that
CLAIMANT should be ordered to disclose the existence of third party funding as, first,
RESPONDENT has sufficient means to believe that CLAIMANT has concluded a third party
funding [A]; Second, the required disclosure is relevant and material [B].
A. RESPONDENT HAS SUFFICIENT MEANS TO BELIEVE THAT CLAIMANT HAS CONCLUDED A

THIRD PARTY FUNDING.
[¶52.] If a party has reasonable means to believe that the other has concluded a third party
funding the former is required to demonstrate the same,81 along with the description of
documents that are reasonably believed to exist.82Further, as per the doctrine of apparent
authority, where a party can reasonably rely on external representation which imply that the
latter has the authority to make such representation.83 Subsequently, it forms sufficient means
74 Jonas von Goeler, Third- Party Funding in International Arbitration and its Impact on Procedure (2nd edn.,
Kluwer Law International 2016) 133.
75 Singapore International Arbitration Centre Rules 2016, [“SIAC Rules”] Rule 27(c).
76 SIAC Practice Note on Arbitrator Conduct in Cases Involving External Funding [31 March 2017].
77 ICSID Case No. 12/6 of 2015.
78 SIAC Rules, Rule 27(j).
80 ICC Case No. 1434 of 1975.
81 ICSID Case No. 10/6 of 2010; Jeffrey Maurice Waincymer, Procedure and Evidence in International
Arbitration (3rd edn., Kluwer Law International 2012) 863.
82 International Bar Association Rules on the Taking of Evidence in International Commercial Arbitration
2010, Art. 3(a).
83 Hugh Beale, Chitty on Contracts (30th edn., Sweet & Maxwell 2008) 350.

to credit the stated prospect.
[¶53.] Here, CLAIMANT is being represented by FLB who is funded by an external funder,
namely VF as evidenced by the managing director of VF in a newspaper article. 84 It is
submitted that any statement made by the managing director of a company is ‘sufficient
means’ to believe in the prospect.
[¶54.] Thus, RESPONDENT has sufficient means to believe that CLAIMANT has concluded a
third party funding.
H. THE REQUIRED DISCLOSURE IS RELEVANT AND MATERIAL.
[¶55.] Relevance pertains to conclusive legal documents. Materiality refers to documents

required for assessment by the arbitral tribunal. 85 Further, the tribunal can order any
document which it considers relevant to the case and material to its outcome. 86 Hence,
disclosure and production of third party funding is relevant as well as material in the present
case. First, existence of a third party funding is a relevant factor in assessing the request for
security of costs [i]; second, knowledge of existence of a third party funding is necessary to
determine existence of potential conflict of interests [ii].
i. Existence of a third party funding is a relevant factor in assessing the request for
security of costs.
[¶56.] Security for costs applications against funded parties require disclosure of existence
of external funding87. Parties are expected to disclose any agreement by which a litigation
funder is to pay or contribute to the costs of the proceeding, any security for costs or any
adverse costs order.88 It is usually the impecunious parties who make use of third party
funding in order to pursue their claims.89The tribunal has the power to enquire whether or not
the external funder has committed to undertake adverse costs liability.90Furthermore, tribunals

85 Nedden Herzberg et Al., Practice comment on the arbitration rules (1st edn., Dr.Otto Schmidt 2014) 354;
Jeffrey Maurice Waincymer, Procedure and Evidence in International Arbitration (3rd edn., Kluwer Law
International 2012) 858.
86 SIAC Rules, Rule 27(f).
88 Australian Federal Court’s Practice Note CM 17 [13 December 2013].
89 Shahdadpuri, ‘Third-Party Funding in International Arbitration: Regulating the Treacherous Trajectory’
[2016] 12 ASIAN INTERNATIONAL ARBITRATION JOURNAL 81; Nadia Darwazeh et Al., ‘Disclosure and Security
for Costs or How to Address Imbalances Created by Third-Party Funding’ [2016] 33 JOURNAL OF
INTERNATIONAL ARBITRATION 125; Jonas von Goeler, Third- Party Funding in International Arbitration and its
Impact on Procedure (2nd edn., Kluwer Law International 2016) 333.

have ordered the disclosure of third party funding upon the possibility of application for
security for costs.91
[¶57.] Here, RESPONDENT has applied for security of costs 92 on the basis of unequal position
of the Parties due to the existence of third party funding. It is submitted that there is a
possibility of CLAIMANT being an impecunious party. In order to assess the application, the
Tribunal would require the information and extent of the third party funding.
[¶58.] Thus, existence of a third party funding is a relevant factor in assessing the request for
security of costs.
iv. Knowledge of existence of third party funding is necessary to determine the

existence of potential conflict of interests.
[¶59.] Disclosure of third-party funder,93particularly where such involvement conflicts with

the independence and impartiality of an arbitrator, guarantees due process and procedural
good faith with which parties should conduct themselves.94
[¶60.] Furthermore, the tribunal has duty to disclose any circumstances that may give rise to
justifiable doubts as to impartiality or independence, including any relationship with an
external funder and has power to order disclosure about involvement of the funder from the
disputant parties.95 International Bar Association Rules on the Taking of Evidence in
International Arbitration [hereinafter referred to as “IBA Rules”] require the parties to
mandatorily disclose involvement of third party-funders with respect to potential conflict of
interests.96
[¶61.] Here, the discreet existence and identity of an external funder creates justifiable
doubts as to existence of conflict of interest of the Parties and/or the Arbitral Tribunal
regarding the funder. It is submitted that there is a duty cast on the Tribunal and the Parties to
disclose in order to prevent conflict of interests.
[¶62.] Thus, knowledge of existence of third party funding is necessary to determine the

92 Case Record, Response to Notice of Arbitration and Statement of Defence, 33.
93 Jennifer A Trusz, ‘Full Disclosure? Conflicts of Interest Arising from Third Party Funding in International
Commercial Arbitration’ [2013] 101 GEORGETOWN JOURNAL OF INTERNATIONAL LAW 1649.
94 Bernardo Cremades, Third Party Funding in International Arbitration (1st edn., Kluwer Law International &
Business 2013) 751; Antonio Crivellaro, ‘Third-Party Funding and Mass Claims in Investment Arbitrations’
[2013] 149 ICC DOSSIER NO. 752E 149.
96 International Bar Association Guidelines on Conflicts of Interest in International Arbitration 2004, G.S. 7(a).

existence of potential conflict of interests.
5. THE TRIBUNAL SHOULD ORDER CLAIMANT TO PRODUCE SECURITY FOR LEGAL

COSTS.
[¶63.] Cost of presenting or defending a claim in international arbitration is huge and if the
tribunal affirms the existence of a valid arbitration agreement, RESPONDENT despite any
circumstances would have no luxury of choice but to drain its resources. In such
circumstances, RESPONDENT is justified in seeking assurance that if awarded the costs, there
will be a fund from which costs award will be paid. 97 Thereby, RESPONDENT submits that,
first, the Tribunal has the power to order security for costs [A]; second, RESPONDENT would
suffer irreparable harm if the cost is not ordered and that this harm would outweigh the
potential harm caused to CLAIMANT[B]; third, RESPONDENT also met its burden of proof
justifying the requirement of security for costs [C].
A. THE TRIBUNAL HAS THE POWER TO ORDER SECURITY FOR COSTS.
[¶64.] The power to order security for costs is anchored in its inherent power to preserve the
integrity of the proceedings.98 Further, when the parties agree to arbitrate under certain
arbitration rules containing a general clause for interim measures 99it positively encompasses
the scope of tribunals for ordering such security. The general clauses of the two most relevant
legal regimes, ICSID Convention100 and Model Law101 make the same sufficiently clear.
[¶65.] Here, the Tribunal under SIAC Rules is authorized to order a party to provide security
for costs.102 It is submitted that the Tribunal can take into account the involvement of an
external funder by ordering all or a part of the legal costs of a disputant party be paid by
another disputant party.103
[¶66.] Thus, the Tribunal has the power to order security for costs.
98 W. Laurance Craig et Al., International Chamber of Commerce Arbitration (3rd edn., Oxford University
Press 2000) 467; ICSID Case No. 09/17 of 2012.
99 International Commercial Chamber Rules 2010, [“ICC Rules”] Art. 28(1); International Centre for Dispute
Resolution Arbitration Rules 2006, [“ICDR Rules”] Art. 21(1); German Code of Civil Procedure 2005, §
1041(1); French New Code of Civil Procedure 2011, Art. 1468; Switzerland's Federal Code on Private
International Law 1987, Art. 183(1).
100 ICDR Rules, Art. 47.
101 Model Law, Art. 26(2)(c).
102 SIAC Rules, Rule 27(j).

I. RESPONDENT WOULD SUFFER IRREPARABLE HARM IF THE COST IS NOT ORDERED AND
THAT THIS HARM WOULD OUTWEIGH THE POTENTIAL HARM CAUSED TO CLAIMANT.
[¶67.] Model Law states a party requesting a measure needs to show that it would suffer
irreparable harm if the measure is not ordered and that this harm would outweigh the
potential harm caused to the opposite party by such measure.104
[¶68.] The tribunal observed that the most common situation of such harm is where a
corporate entity’s existence itself is at stake. 105 Further, where a party’s arbitration fees and
expenses are being covered by an external funder, but would not be liable to meet any
potential award of costs, is a compelling grounds for security for costs. 106Security for costs
application has been ordered because of its concern of an undisclosed external funder
escaping an adverse costs ruling.107If there is evidence of a funding arrangement that is likely
to impact on the non-funded party’s ability to recover costs, it is reasonable to demand
costs108
[¶69.] Here, RESPONDENT is likely to suffer the risk of becoming insolvent which is a threat
to its existence.109It is submitted that RESPONDENT would suffer irreparable harm if the
measure is not ordered. Additionally, CLAIMANT’s country is under a trade war with the
country that servers it as the major exporter of raw materials and they have incurred huge
losses globally.110In consequence, there is a potential threat of non-compliance with the award
in light of the losses incurred by CLAIMANT. This would further the harm of RESPONDENT.
CLAIMANT, on the other hand, is being externally funded. 111Hence, harm caused to CLAIMANT
would be comparatively lesser.
[¶70.] Thus, RESPONDENT would suffer irreparable harm if the cost is not ordered and that
this harm would outweigh the potential harm caused to CLAIMANT.
J. RESPONDENT HAS MET ITS BURDEN OF PROOF IN JUSTIFYING THE REQUIREMENT OF

SECURITY FOR COSTS
104 Model Law, Art. 17A(1)(a).

105 ICSID Case No. 03/24 of 2005.
106 J.E. Kalicki, ‘Security for Costs in International Arbitration’ [2006] <https://www.transnational-dispute-
management.com/article.asp?key=827> accessed on 19 December 2019.
108 ICC Commission, ‘Report on Decisions on Costs in International Arbitration’ [2015]
<https://iccwbo.org/content/uploads/sites/3/2015/12/Decisions-on-Costs-in-International-Arbitration.pdf>
accessed on 13 January 2020.

[¶71.] It lies within the tribunal’s discretion to weigh the evidentiary value of submitted
documents.112 Thereby, it should consider whether the submitted evidence was the most
suitable at this point in time. 113Further evidence can be called for, if required, at a later stage
but for the time being a newspaper article can be considered sufficient evidence.114
[¶72.] Here, RESPONDENT submitted its request as soon as the necessity became apparent,
i.e. along with the Statement of Defence.115RESPONDENT presented the best evidence available
at that time by including the newspaper article which constitutes sufficient proof. Thus,
RESPONDENT has met its burden of proof in justifying the requirement of security for costs.
[¶73.] In conclusion, CLAIMANT is under an obligation to disclose its source of funding for
pursuing these arbitration proceedings and the Tribunal should order security for legal costs.
ISSUE [IV] THE MINISTRY OF POWER, GOVERNMENT OF YEVADU SHOULD

NOT BE JOINED AS A PARTY TO THE PRESENT ARBITRAL
PROCEEDINGS
[¶74.] CLAIMANT has sought joinder of the Ministry of Power of the Government of Yevadu
[hereinafter referred to as “Minstry”] under Rule 7.8 SIAC Rules.116 It is submitted that first,
the Ministry should not be joined as a party to the present arbitral proceeding under SIAC
Rules and [1]; second, such joinder will violate the fundamental aspects of arbitration [2].
1. THE MINISTRY CANNOT BE JOINED AS A PARTY TO THE PRESENT ARBITRAL

PROCEEDING UNDER SIAC RULES.
[¶75.] Rule 7.8 of SIAC Rules enumerates two conditions wherein a party or a non-party to
the arbitration can apply to the Tribunal for the joinder of an additional party to the pending
arbitration proceedings. It is submitted that the Ministry cannot be joined to the Arbitral
proceedings. First, the Ministry is not prima facie bound by the arbitration agreement [A];
second, none of the Parties consented to the joinder of the Ministry to the pending arbitration
112 Jeffrey Maurice Waincymer, Procedure and Evidence in International Arbitration (3rd edn., Kluwer Law
International 2012) 793; Gary B. Born, International Commercial Arbitration (2nd edn., Kluwer Law
International 2014) 2309.
University Press 2004) 380; Jeffrey Maurice Waincymer, Procedure and Evidence in International Arbitration
(3rd edn., Kluwer Law International 2012) 794; Gary B. Born, International Commercial Arbitration (2nd edn.,
114 IUSCT Case No. 64 of 1985; R. Doak Bishop et Al., Foreign Investment Disputes: Cases, Materials and
Commentary (2nd edn., Kluwer Law International 2014) 325; Jeffrey Maurice Waincymer, Procedure and
Evidence in International Arbitration (3rd edn., Kluwer Law International 2012) 794.
116 SIAC Rules, Rule 7.8.

[B].
A. THE MINISTRY IS NOT PRIMA FACIE BOUND BY THE ADDENDUM.
[¶76.] The reference to ‘prima facie’ establishes a relatively low threshold for Rule 7.8(a)
SIAC Rules to be engaged.117 The tribunal only needs to consider whether there is a valid
arbitration clause covering the existing dispute and the non-party concerned. 118 It is submitted
that primarily, a valid arbitration clause does not exist [i]; alternatively, the Ministry is not
bound by such arbitration clause [ii].
i. A valid arbitration clause does not exist.
[¶77.] A valid arbitration clause covering the existing dispute and the non-party concerned is
necessary to be established.119 For an arbitration clause to be valid there must be
manifestation of unequivocal consent of the parties to arbitrate.120
[¶78.] Here, as already established, the Addendum is not a valid arbitration clause. There
existed no manifestation of unequivocal consent of the Parties to arbitrate. Clause 11.0 does
not refer the dispute solely to arbitration but rather confers a choice upon the Parties to opt
between arbitration and litigation. Addendum is intended by the Parties as merely an
explanation regarding the arbitral procedure, in case the Parties choose to arbitrate.
[¶79.] Thus, a valid arbitration clause does not exist.
v. Alternatively, the Ministry is not bound by such arbitration clause.
[¶80.] The joinder of a third party to an arbitration clause cannot be permitted if it did not
sign it. Only way to cover such a third party under the arbitration clause, is if the party
signing the agreement was acting on behalf of the third party and was further permitted by the
third party to enter into arbitration clauses with other parties.121
[¶81.] It is submitted that first, the Ministry and RESPONDENT are separate legal entities [a];
117 John Choong et Al., A Guide to the SIAC Arbitration Rules (2nd edn., Oxford University Press 2018) 115.
118 ibid.
119 ibid.
485; Reinmar Wolff, New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards
1958- Commentary (1st edn., C.H. Beck Hart Nomos Publications 2012) 54; The International Council for
Commercial Arbitration, ‘Guide on New York Convention 1958, A Handbook for Judges’ [2012]
<https://www.arbitration-
icca.org/media/0/13365477041670/judges_guide_english_composite_final_revised_may_2012.pdf> accessed
on 9 January 2020; Joannes Robert et Al., The French Law of Arbitration (5th edn., Mathew Bender 1983) 134.
121 Westland Helicopters Ltd. v. The Arab Organization for Industrialization, the United Arab Emirates, the
Kingdom of Saudi Arabia, the State of Qatar and the Arab Republic of Egypt [1991] 25 YICCA 174.

second, RESPONDENT is not an agent of the Ministry [b].
a. The Ministry and RESPONDENT are separate legal entities.
[¶82.] A corporation and the State are two distinct entities even if the corporation is owned
or controlled by the State.122
[¶83.] Here, it is submitted that the senior management123 was consulted while rejecting
CLAIMANT’s request for renegotiation of the Agreement and not the Ministry. RESPONDENT’s
obligation to issue purchase order after consulting with the Ministry was further omitted
through practice of both the Parties.124 In consequence, the involvement of the Ministry in
performance of the Agreement was a mere formality. Further, the dispute resolution through
negotiation under Clause 1.0 did not concern the Ministry. There is no evidence on record to
show that there was an explicit agreement between the Ministry and RESPONDENT permitting
the latter to enter into arbitration agreements on behalf of the former. The same cannot be
taken to be complied.
[¶84.] Thus, the Ministry and RESPONDENT are separate legal entities.
b. RESPONDENT is not an agent of the Ministry.
[¶85.] The rights and obligations in an arbitration agreement apply only to its parties. 125 A
government company cannot be presumed to be an agent of the State. 126 It is reaffirmed by
the doctrine of privity.127
[¶86.] Agency, an exception of privity, is derived from a specific contract which confers
authority upon the agent in the form of consent to enter into agreements on its behalf. 128 It
does not arise from any other relationship between the parties or their affiliates. 129 The
involvement and functioning of all the parties during the negotiation, performance and
termination of the underlying agreement should be determined to ascertain the common intent
of the parties.130
122 Lajpat Rai Mago v. State of Haryana [1971] 41 SCC 693.

125 NY Convention, Art. II(1).
126 Heavy Engineering Mazdoor Union v.State of Bihar [1969] 1 SCC 765.
127 Dunlop v. Selfridge [1915] 2 AC 847; PICC, Art. 1.3.
128 Hugh Beale, Chitty on Contracts (30th edn., Sweet & Maxwell 2008) 506.
129 Gary B. Born, International Commercial Arbitration (2nd edn., Kluwer Law International 2014) 254.
130 Dallah Real Estate and Tourism Holding Company v. The Ministry of Religious Affairs, Government of
Pakistan [2010] 1 UKSC 46.

[¶87.] Here, the Agreement was entered into by the Parties and not by the Ministry.131 As
already established, it was not involved in the negotiation and performance of the Agreement.
It is submitted that RESPONDENT is not an agent of the Ministry as there is no agreement
defining such relationship between them. The mere fact that RESPONDENT is a government
company does not conclude that the Ministry will be bound by every contract entered into by
RESPONDENT. Any interpretation to the contrary would amount to a baseless presumption,
[¶88.] Thus, RESPONDENT is not an agent of the Ministry.
K. NONE OF THE PARTIES CONSENTED TO THE JOINDER OF THE MINISTRY TO THE

PENDING ARBITRATION.
[¶89.] The consent of the parties is the very basis of the voluntary system of arbitration. 132 In
consequence, to join a party to the arbitral proceedings, mandatory consent of all the parties
including the additional party to be joined, is required.133 The prior agreement of the parties to
be bound by SIAC Rules does not amount to consent.134
[¶90.] Here, it is submitted that both the Ministry and RESPONDENT have not consented to
the joinder of the Ministry to the arbitral proceedings since the Ministry has not signed the
Agreement. Moreover, the Agreement is silent about the addition of non-signatory to the
arbitral proceedings.
[¶91.] Thus, both the Ministry and RESPONDENT have not consented to the joinder of the
Ministry to the arbitral proceedings.
6. FORCED JOINDER IS AGAINST THE FUNDAMENTAL PRINCIPLES OF ARBITRATION.
[¶92.] Arbitration is a matter of consent.135 Party autonomy is the prevailing right of the
contracting parties136 to choose the governing law, rules and principles applicable to their

133 SIAC Rules, Rule 7.8(b); John Choong et. Al., A Guide to the SIAC Arbitration Rules (2nd edn., Oxford
134 ibid.
135 Stolt-Nielsen S.A. v. Animal Feeds International Corp [2010] 2 LEXIS 3672; Steelworkers v. American
Mfg. Co. [1960] 80 S.Ct. 1343; Steelworkers v. Warrior & Gulf Nav. Co. [1960] 80 S.Ct. 1347; Steelworkers v.
Enterprise Wheel & Car Corp. [1960] 80 S.Ct. 1358; ICC's Commission on International Arbitration, ‘Final
Report on Multi Party Arbitrations’ [1995] <
https://library.iccwbo.org/content/dr/COMMISSION_REPORTS/CR_0007.html> accessed on 26 January 2020.
136 Model Law, Art.10,11(2); Gary B. Born, International Commercial Arbitration (2nd edn., Kluwer Law
International 2014) 84; Albert Jan Van den Berg, 50 Years of the New York Convention: ICCA International
Arbitration Conference (1st edn., ICCA & Kluwer Law International 2009) 343.

137
arbitration. Privacy of the proceedings and confidentiality of the award are the desired
advantages of arbitration.138 Forcing a joinder upon such process will result in loss of
autonomy. Therefore, the request for joinder is generally rejected on the grounds of
deprivation of the right of the additional party to take part in the formation of the tribunal,
unless all the parties agree otherwise.139
[¶93.] Here, the initiation of arbitration though disputed, is pursuant to the Addendum signed
by both the Parties.140 Ms. Ruth Greene has been appointed as the sole arbitrator in its
furtherance.141 It is submitted that the Ministry did not participate in the procedure of
arbitration. Any joinder to such effect will lead to violation of the fundamental principles of
arbitration i.e. party autonomy. Further, RESPONDENT’s reasonable expectation of privacy and
confidentiality in the arbitral proceedings will be infringed. Thus, a forced joinder of the
Ministry under SIAC Rules violates the fundamental principles of arbitration.
[¶94.] In conclusion, the Ministry of the Government of Yevadu should not be joined as a
party to the present arbitral proceedings.
ISSUE [V] CLAIMANT’S CONDUCT BREACHED THE AGREEMENT AND

RESPONDENT WAS JUSTIFIED IN TERMINATING THE AGREEMENT
[¶95.] RESPONDENT submits that first, CLAIMANT’s failure to timely deliver the components
amounts to a breach of the Agreement. [1]; second, RESPONDENT was justified in terminating
the Agreement under Art. 49 CISG [2].
1. CLAIMANT’S FAILURE TO TIMELY DELIVER THE COMPONENTS AMOUNTS TO A BREACH

OF THE AGREEMENT.
[¶96.] RESPONDENT asserts, first, that CLAIMANT’s failure to deliver the components on the
fixed date breached the obligations under Art. 30 and Art. 33 CISG [A]; Second, CLAIMANT’s
failure to perform is not exempted under Art. 79 CISG [B].
A. CLAIMANT’S FAILURE TO DELIVER THE COMPONENTS ON THE FIXED DATE BREACHED THE
OBLIGATIONS UNDER ART. 30 AND ART. 33 CISG.
137 Bühler et Al., Handbook of ICC Arbitration: Commentary, Precedents, Materials (2nd edn., Sweet &
Maxwell 2008) 109; Gary B. Born, International Commercial Arbitration (2nd edn., Kluwer Law International
2014) 84.
139 ICC Rules, Art. 7; London Court of International Arbitration Rules, Art. 22.1(viii).

[¶97.] Pursuant to CISG142, the seller is obliged to deliver the goods as per the terms of the
contract. If the provisions under CISG and if the contract fixes date for delivery, then the date
will be conclusive.143 The said date helps to determine when the buyer can exercise its right to
remedies in the case of non-performance, any delivery after this date is a breach of
contract.144
[¶98.] Here, as per the Agreement, CLAIMANT agreed to supply the parts and components on
the basis of the Requisition List and purchase order issued by RESPONDENT on or before the
31st of each quarter ending.145 It is submitted that, CLAIMANT evidently failed to perform the
said obligation as it did not abide by the said deadline prescribed by the agreement.
[¶99.] Thus, CLAIMANT’s failure to supply the components on the fixed date amounts to a
breach of contract under Art. 30 and Art. 33 CISG.
L. CLAIMANT’S FAILURE TO PERFORM THE CONTRACT IS NOT EXEMPTED UNDER ART. 79.
[¶100.] A party’s failure to perform its contractual obligations is not exempted from liability
under Art. 79 CISG. RESPONDENT asserts that, first, the increase in costs is not an
impediment rather is under CLAIMANT’s control and within his sphere of risk [i]. Second,
even if the increase in costs is regarded as an economic impediment CLAIMANT could have
overcome the said impediment [ii].
i. The increase in costs is not an impediment rather is under CLAIMANT’s control and
within his sphere of risk.
[¶101.] Pursuant to CISG, in order to amount to an economic impediment, the increase in

costs has to cross a limit of sacrifice above which the party cannot reasonably be expected to
fulfil the contract.146
[¶102.] A 100 per cent increase in cost does not constitute an economic impediment, 147and a
party may even have to accept a tripled market price. 148The seller must exhaust all
possibilities which do not exceed the ultimate limit of sacrifice to acquire them. 149 Further,
142 United Nations Convention on Contracts for the International Sale of Goods 1980, [“CISG”] Art. 30.
143 ibid Art. 33(a).
144 Ingeborg Schwenzer, Commentary on the CISG (4th edn., Oxford University Press 2016) 573.
146 CISG-Advisory Council, ‘Exemption of Liability for Damages’ [2007] <Cisg.law.pace.edu/cisg/CISG-AC-
op7.html> accessed on 12 January 2020.
147 Bulgarian Case No. 11/1996 of 1998.
148 German Case No. 1 U 167/95 of 1997; ICC Case No. 6281 of 1989.
149 Peter Huber et. Al., The CISG a New Textbook for Students and Practitioners (3rd edn., Sellier European
Law Publishers 2007) 262.

even if the increase in costs is sufficient to create financial hindrances, it cannot be a reason
to hold exemption. The scope of promisor’s liability can be based on his typical sphere of
risk, which includes responsibility for his financial capacity.150 A loss of a specific amount of
money can be irrelevant to a bigger operator in the field of international trade.
[¶103.] Here, CLAIMANT faced a mere increase in its costs of production 151. Further
CLAIMANT is the market energy leader in Xanier and provides approximately 75% of the
power utilities in Xanier.152 The limit of sacrifice is not to be looked at as a matter of
numbers. It is submitted that a mere increase in cost cannot be held as an economic
impediment for a company as huge and financially capable as CLAIMANT. Rather, it was
within their sphere of risk as CLAIMANT is responsible for its financial capacity and it did not
exhaust all possibilities.
[¶104.] Thus, the increase in costs was not an impediment and was under CLAIMANT’s
control.
vi. Even if the increase in costs is regarded as an economic impediment CLAIMANT

could have overcome the said impediment.
[¶105.] It is expected to overcome an impediment in spite of the increased costs and resultant
losses in order to perform the contract in the agreed manner.153 Furthermore, depending upon
the circumstances, promisor may be obliged to acquire the goods at a higher price.154
[¶106.] Here, CLAIMANT could have overcome the impediment even if resulted in alleviation
of prices or a loss. For CLAIMANT even after incurring such costs the limit of sacrifice would
not have been reached. It is submitted that CLAIMANT was obliged to obtain the goods at a
higher price as mere alleviation of cost form no grounds to commit a breach.
[¶107.] Thus, CLAIMANT could have paid the increased prices and overcome the impediment.
7. RESPONDENT WAS JUSTIFIED IN TERMINATING THE AGREEMENT UNDER ART. 49

CISG.
[¶108.]The buyer can terminate the contract if the seller’s breach was fundamental in
154 Ulrich Magnus, Commentary on the Civil Code with the Introduction of the Law and By-Laws, Vienna
(CISG) (13th edn., Sellier de Gruyter 1994) 257.

155
nature. Contrary to CLAIMANT’s contentions, first the delay in delivery amounted to a
fundamental breach under Art. 25 CISG [A]; Second, RESPONDENT had good grounds to
expect fundamental breach regarding future deliveries [B]; and third, RESPONDENT could not
reasonably be expected to await subsequent performance [C].
A. THE DELAY IN DELIVERY AMOUNTED TO A FUNDAMENTAL BREACH UNDER ART. 25 CISG.
[¶109.] The delayed delivery of parts and components by CLAIMANT amount to a fundamental
breach of the Agreement. A breach of contract is fundamental if it results in such detriment to
the other party as to substantially deprive it of what it is entitled to expect under the contract.
156
Further, late delivery has been held to constitute a fundamental breach of contract when it
violates the agreed delivery schedule which as the seller knows has to be strictly observed. 157
Thus, RESPONDENT asserts, first, it suffered a detriment by receiving delayed delivery [i];
Second, the detriment substantially deprived it of what it was entitled to expect under the
Agreement [ii]; and third, this substantial detriment was reasonably foreseeable by
CLAIMANT [iii].
I. RESPONDENT suffered a detriment by receiving delayed delivery.
[¶110.] The requirements for a detriment are met if there is a measurable damage and when
the seller's behaviour results in an unfavourable situation for the buyer.158
[¶111.] Here, RESPONDENT identified three regions which required immediate attention due to
the lack of infrastructure and development in these areas which included Tullyland. 159
CLAIMANT was made aware of the strategic importance of the Plant. It is submitted that, time
was of essence to RESPONDENT as was evident when it stressed that the parts are delivered on
time so that the Plant is shut for minimum number of days.
[¶112.] Thus, a delay by CLAIMANT in a sensitive area of Tullyland caused an immense

detriment to the cause of RESPONDENT as the intention of RESPONDENT to provide immediate
relief was substantially harmed.
vii. The detriment substantially deprived it of what it was entitled to expect under the
Agreement.
155 CISG, Art. 49.

156 CISG, Art. 25.
157 Diversitel Communications Inc. v. Glacier Bay Inc. [2003] CanLII 49351.
158 Peter Schlechtriem et. Al., International UN Sales Law (6th edn., Mohr Siebeck 2016) 436; C Benicke,
Munich Commentary on the Commercial Code: HGB (2nd edn., CHBeck 2007) 76.

[¶113.] Art. 33(a) CISG states that the seller must deliver the goods if a date is fixed by or
determinable from the contract, on that date. The issue of fundamental breach has to be
considered when determining whether a party is substantially deprived of what it was entitled
to expect under the contract.160 Furthermore, it is primarily for the parties themselves to make
clear what importance is to be attached to each obligation and to the corresponding interest of
the promise.161
[¶114.] Here, during the negotiations of the Agreement, RESPONDENT made it clear to
CLAIMANT about the importance of the Plant. Further, RESPONDENT’s expectation was also
conveyed to CLAIMANT beforehand. It is submitted that, the failure of CLAIMANT to deliver
the specified parts for the fourth quarter within the stipulated time caused substantial
detriment to RESPONDENT. Time was of essence to RESPONDENT as was evident from the
Agreement.162
[¶115.] Thus, RESPONDENT had reasonable grounds to expect a timely delivery and is
substantially deprived it of what it was entitled to expect under the contract.
viii. The substantial detriment was reasonably foreseeable by CLAIMANT.
[¶116.] The foreseeability requirement is considered as an additional ‘filter’ 163it functions

only when the breach is not fundamental in nature. Additionally, where contractual agreement
on a fixed delivery date has been clearly reached the party in breach cannot prevent
avoidance of the contract by arguing that he did foresee any detriment to the promisee. 164
Thus, first, the contention of not foreseeing the detriment is invalid [a]; and second, even if
the contention is taken into account the detriment was foreseeable by CLAIMANT [b].
a. The contention of not foreseeing the detriment is invalid.
[¶117.] A party agreeing to a fundamentally important date is a sufficient condition in itself. 165
Therefore, where the date of delivery is specified it is immaterial that the breaching party
could have been aware of the further consequences
[¶118.] Here, RESPONDENT wanted the parts to be supplied by 31 st of each quarter ending.
This condition was clearly specified in the agreement, leaving no scope for ambiguity based
161 German Case No. 8 ZR 394/12 of 2014.
162Case Record, Exhibit C1, 2.
164 ibid 432.
165 ibid.

on subjective interpretation. It is submitted that CLAIMANT was aware of the importance of
delivering the parts in the already agreed time period to which they failed.
[¶119.] Thus, disregarding the clearly mentioned date leaves no scope for CLAIMANT to argue
upon the foreseeability of the detriment.
c. Even if the contention is taken into account the detriment was foreseeable for
CLAIMANT.
[¶120.] If the importance of the contract has been stated in the contract or the negotiations a
detriment arising out of the breach becomes foreseeable for the party in breach.166A definite
date for delivery may either be stated in the contract to be ‘fixed’ or it may be essential
because of the parties’ negotiation.167
[¶121.] Here, RESPONDENT not only through a clause in the Agreement set a fixed delivery
date but also through negotiations discussed the importance of the date of delivery towards
the conclusion of the Agreement. Further, CLAIMANT was made aware of the importance of
energy in the area and the consequences of a delay. It is submitted that, CLAIMANT was made
aware of the importance of the date of delivery and therefore, it should have foreseen the
detriment.
[¶122.] Thus, having been aware of all these circumstances, the arising detriment to
RESPONDENT was reasonably foreseeable by CLAIMANT.168
M. RESPONDENT HAS SUFFICIENT GROUNDS TO EXPECT FUNDAMENTAL BREACH

REGARDING FUTURE DELIVERIES.
[¶123.] If a party commits a fundamental breach of contract with respect to an instalment

it gives good grounds to conclude same will occur with respect to future instalments.
169
With regards to the same, the contract may be avoided. Furthermore, plausible reasons for
expecting a future fundamental breach of contract are sufficient.170
[¶124.] Here, the breach in obligations is said to have occurred due to the intense trade war
between Xanier and Zorastra.171 The said trade war has neither ended and no speculations
regarding the conclusion of the trade war can be made. This could be used by CLAIMANT to
166 CIETAC Case No. 07 of 2007.

167 ICC Case No. 8128 of 1995.
169 CISG, Art. 73.
170 Bernstein & Lookofsky, Understanding the CISG in Europe (2nd edn., Kluwer Law International 2003) 114.

vindicate itself from liability, and subsequently delay future deliveries as well. It is submitted
that the present circumstances would further put the obligation of timely performance at
jeopardy at every quarter ending i.e. at delivery of each instalment.
[¶125.] Thus, RESPONDENT has sufficient reasons to avoid the Agreement for the future under
Art. 73 CISG so that it doesn’t suffer any loss.
N. RESPONDENT COULD NOT REASONABLY BE EXPECTED TO AWAIT SUBSEQUENT

PERFORMANCE.
[¶126.] Faced with the consequences of the breach of contract, it was unreasonable for
RESPONDENT to await subsequent performance. First, right to avoid takes priority over
seller’s right to cure [i]; Second, the subsequent performance would cause unreasonable
inconvenience to the buyer [ii]; and third, the additional period of time as per Art. 47 CISG is
not a mandatory requirement [iii].
i. Buyer’s Right to avoid takes priority over seller’s right to cure.
[¶127.] Seller’s right to remedy is excluded by the existence of a fundamental breach of

contract172. To establish the exclusion, it is submitted that, if a buyer has the right to avoid the
contract, the seller cannot thwart this right by offering to remedy. 173Furthermore, the time at
which the buyer has acquired the right to avoid pursuant to Art. 49(1) CISG is the decisive
factor.174
[¶128.] Here, in the contract, a Party reserves the right to terminate the Agreement in the
event of a material breach of the Agreement by the other Party. 175 Further, it has been
established that there is a fundamental breach of contract. It is submitted that, RESPONDENT
holds the right to terminate at the time of fundamental breach. Further, this right of
termination based upon contravention of obligations came into force along with the
commencement of the contract.
[¶129.] Thus, in absence of any right to remedy, RESPONDENT’s right to avoid would take
priority over CLAIMANT’s right to cure.
ix. The subsequent performance would cause unreasonable inconvenience to the

buyer.
173 ibid 773.
174 ibid 778.
175 Case Record, Exhibit, C1, 13.

[¶130.] The subsequent performance is not permitted to cause the buyer any unreasonable
inconvenience.176 Such serious inconveniences include disruption of buyer’s production due
to repairs.
[¶131.] Here, the plant has to be shut down for maintenance as it causes disruption and
therefore, shall be limited to least possible time. This prospect was also conveyed to
CLAIMANT at the time of negotiations for conclusion of the Agreeement. It is submitted that,
the disruption would cause stagnation in the working and subsequently huge harm to the
energy sensitive area.
[¶132.] Thus, there is no scope for subsequent performance as it would cause unreasonable
inconvenience to RESPONDENT.
x. The additional period of time as per Art. 47 CISG is not a mandatory

requirement.
[¶133.] The buyer may fix an additional period of time of reasonable length for performance
by the seller of his obligations.177 Therefore, it is safe to infer that the choice of fixing an
additional period is upon RESPONDENT and is not mandated to do so by the Art 47.
Furthermore, in cases of seller’s breach of obligation, the buyer has a right to avoid contract
if the breach of contract is fundamental. The fixing of an additional period is of no
consequence in that regard.178
[¶134.] Here, RESPONDENT was not bound to fix an additional period. Further it is submitted
that, as CLAIMANT made a fundamental breach it the requirement of an additional period was
of no regard.
[¶135.] Thus, RESPONDENT’S right to terminate under fundamental breach takes priority over
the discretionary provision of additional period of time and it was justified in terminating the
Agreement.
[¶136.] In conclusion, CLAIMANT’S conduct breached the Agreement and RESPONDENT was
justified in terminating the Agreement.
177 CISG, Art. 47.

[¶137.] PRAYER
[¶138.] RESPONDENT respectfully requests this Tribunal, on the basis of prior and foregoing
written submissions to FIND and DECLARE that:
1. The Tribunal does not have jurisdiction over the dispute owing to the absence of a
valid arbitration clause between the Parties which refers the disputes to arbitration
under the aegis of the SIAC or alternatively,
2. The Tribunal is devoid of jurisdiction owing to the order of the NCLT dated 21 st
February, 2019.
3. The Ministry of Power, Government of Yevadu cannot be joined as a party to the

present arbitral proceedings.
4. RESPONDENT has rightfully avoided the Agreement.
5. CLAIMANT’S request for liquidated damages should be dismissed.
[¶139.] And consequently, ORDER CLAIMANT:
1. To disclose it source of funding and furnish security for legal costs for defending the
arbitration by RESPONDENT.
[¶140.]
[¶141.] Or any other order and/or declaration that the Tribunal may deem fit in light
of justice, equity and good conscience
[¶142.]
[¶143.] Dated: 22-23 February, 2020 S/d-
[¶144.] Place: Baratheon City, Stark Province COUNSELS for

RESPONDENT
[¶145.]
MEMORIAL for RESPONDENT PAGE | XXVIII

R.K. Tankha Moot Respondent NLUO Team

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TEAM CODE: 17R

5TH NLIU JUSTICE R.K. TANKHA

MEMORIAL INTERNATIONAL ARBITRATION MOOT 2020

THE ARBITRAL TRIBUNAL,

BARATHEON CITY, STARK PROVINCE

ARCEBOR POWER PVT LIMITED

RENVIDORA NATIONAL POWER COMPANY LIMITED

MEMORANDUM for RESPONDENT

ISSUE [I] THERE IS NO VALID AGREEMENT BETWEEN PARTIES WHICH

1. THERE IS NO MANIFESTATION OF UNEQUIVOCAL CONSENT TO ARBITRATE................1

A. RESPONDENT never agreed for resolution of disputes solely by arbitration.........2

B. The Addendum is not an agreement to arbitrate but only an extension to Clause

2. ALTERNATIVELY, THE DISPUTE CANNOT BE MAINTAINED UNDER THE AEGIS OF SIAC.

i. Clause 1.0 is unenforceable owing to its uncertainty...................................4

C. Additionally, ambiguities in Clause 1.0 must be interpreted against CLAIMANT. 5

ISSUE [II] THE INSOLVENCY PROCEEDINGS UNDERWAY AGAINST

1. RESPONDENT IS INCAPABLE TO PARTICIPATE IN THE PRESENT PROCEEDINGS.............6

A. Capacity of RESPONDENT is governed by its national laws.................................6

MEMORIAL for RESPONDENT PAGE | I

i. Moratorium imposed expressly prohibits the continuation of any

ii. RESPONDENT cannot be represented if the proceedings continue.................8

2. INTERNATIONAL PUBLIC POLICY PROHIBITS THE CONTINUANCE OF THE PRESENT

3. THE TRIBUNAL SHOULD DECLINE JURISDICTION IN LIGHT OF UNENFORCEABILITY OF

A. The arbitrator has a duty to render an enforceable award..................................10

B. The Award would be unenforceable if the present proceedings continue..........10

C. The Tribunal should exercise its discretion to decline jurisdiction in light of

ISSUE [III] CLAIMANT IS UNDER AN OBLIGATION TO DISCLOSE ITS

A. RESPONDENT has sufficient means to believe that CLAIMANT has concluded a

B. The required disclosure is relevant and material................................................13

i. Existence of a third party funding is a relevant factor in assessing the

ii. Knowledge of existence of third party funding is necessary to determine the

2. THE TRIBUNAL SHOULD ORDER CLAIMANT TO PRODUCE SECURITY FOR LEGAL

A. The Tribunal has the power to order security for costs......................................15

MEMORIAL for RESPONDENT PAGE | II

C. RESPONDENT has met its burden of proof in justifying the requirement of

ISSUE [IV] THE MINISTRY OF POWER, GOVERNMENT OF YEVADU

1. THE MINISTRY CANNOT BE JOINED AS A PARTY TO THE PRESENT ARBITRAL

PROCEEDING UNDER SIAC RULES....................................................................................17

A. The Ministry is not prima facie bound by the Addendum.................................18

i. A valid arbitration clause does not exist....................................................18

ii. Alternatively, the Ministry is not bound by such arbitration clause...........18

a. The Ministry and RESPONDENT are separate legal entities.........................19

b. RESPONDENT is not an agent of the Ministry..............................................19

2. FORCED JOINDER IS AGAINST THE FUNDAMENTAL PRINCIPLES OF ARBITRATION.....20

ISSUE [V] CLAIMANT’S CONDUCT BREACHED THE AGREEMENT AND

1. CLAIMANT’S FAILURE TO TIMELY DELIVER THE COMPONENTS AMOUNTS TO A

BREACH OF THE AGREEMENT...........................................................................................21

i. The increase in costs is not an impediment rather is under CLAIMANT’s

ii. Even if the increase in costs is regarded as an economic impediment

MEMORIAL for RESPONDENT PAGE | III

A. The delay in delivery amounted to a fundamental breach under Art. 25 CISG. 24

i. RESPONDENT suffered a detriment by receiving delayed delivery...............24

ii. The detriment substantially deprived it of what it was entitled to expect

iii. The substantial detriment was reasonably foreseeable by CLAIMANT........25

a. The contention of not foreseeing the detriment is invalid..........................25

B. RESPONDENT has sufficient grounds to expect fundamental breach regarding

C. RESPONDENT could not reasonably be expected to await subsequent

i. Buyer’s Right to avoid takes priority over seller’s right to cure.................27

ii. The subsequent performance would cause unreasonable inconvenience to

MEMORIAL for RESPONDENT PAGE | IV

MEMORIAL for RESPONDENT PAGE | V

MEMORIAL for RESPONDENT PAGE | VI

United Kingdom House of Lords (UK