TC 17 (Petitioners)

TC-17
DME NATIONAL MOOT COURT COMPETITION 2024
Before The Hon’ble High Court of Kaharashtra
Application under Section 34 of the Arbitration and Conciliation Act, 1996
In the matter of
PetroPrime Innovations Pvt. Ltd……………………………………………….PETITIONER
V.
Apex Maritime Solutions Pvt. Ltd…..................................................................RESPONDENT
MOST RESPECTFULLY SUMBITTED TO THE HON’BLE CHIEF JUSTICE OF HIGH COURT OF

KAHARASHTRA AND OTHER COMPANION JUDGES OF HIGH COURT OF
KAHARASHTRA
MEMORIAL ON BEHALF OF THE PETITIONER

TABLE OF CONTENTS
LIST OF ABBREVIATIONS....................................................................................................3
INDEX OF AUTHORITIES......................................................................................................4
STATEMENT OF JURISDICTION..........................................................................................6
STATEMENT OF FACTS.........................................................................................................7
ISSUES RAISED.......................................................................................................................9
SUMMARY OF ARGUMENTS.............................................................................................10
ARGUMENTS ADVANCED..................................................................................................12
ISSUE 1: WHETHER THE SETTING ASIDE APPLICATION IS MAINTAINABLE

BEFORE THE COURT?..........................................................................................................12
I. Maintainability of the setting aside application...........................................................12
II. Principle of Natural Justice violated in appointing arbitrator......................................12
III. There lies a continuing relationship of Dr. Zane with Mr. Hardman...........................14
ISSUE 2: WHETHER THE COURT HAS JURISDICTION TO ENTERTAIN LEGAL

PROCEEDINGS AGAINST TSLPL?.....................................................................................16
I. TSLPL is bound by the arbitration agreement.............................................................16
II. TSLPL is bound by the virtue of ‘Group of Companies’ Doctrine..............................16
III. TSLPL is jointly liable along with AMSPL.................................................................17

PROCEEDINGS AGAINST THE ARBITRATOR APPOINTED BY AMSPL, NAMELY, DR.
ROBERT ZANE.......................................................................................................................19
I. The jurisdiction of the Court is dependent on the seat of arbitration.................................19
II. Challenge to the arbitrator can be made before the Court................................................20
ISSUE 4: WHETHER THE ARBITRAL AWARD DATED 30.11.2023 AS GIVEN BY

THE HON’BLE ARBITRAL TRIBUNAL SHOULD BE SET ASIDE?...............................21
I. There lies an apprehension of bias of the arbitrator, Dr. Robert Zane.........................21
II. Inadequate stamping of the award further creates reasonable apprehensions..............22
III. There was a breach of contract by AMSPL.................................................................23
PRAYER..................................................................................................................................25
MEMORIAL for PETITIONER
2
LIST OF ABBREVIATIONS
@ Alias
AIR All India Reporter
Anr. Another
AMSPL Apex Maritime Solutions Pvt. Ltd
Art. Article
BMRPL Bradley Maritime Resources Pvt. Ltd
Dr. Doctor
Ed. Edition
HC High Court
Hon’ble Honourable
Mr. Mister
Ors. Others
PPIPL PetroPrime Innovations Pvt. Ltd
§ Section
Sd/- Signed
SC Supreme Court
TSLPL TransSwift Logistics Pvt. Ltd
CISG United Nations Convention on Contracts for

the International Sale of Goods
v. Versus
Vol. Volume

3
INDEX OF AUTHORITIES
Cases:
1) Baidyanath Mahapatra v. State of Orissa, (1989) 4 SCC 664......................................12

2) A.K. Kraipak v. Union of India, (1969) 2 SCC 262....................................................12
3) Jaipur Zila Dugdh Utpadak Sahari Sangh Ltd. v. Ajay Sales & Suppliers,
(2021) 17 SCC 248.......................................................................................................13
4) Govt. of T.N. v. Munuswamy Mudaliar, 1988 Supp SCC 651....................................14
5) HRD Corporation v. GAIL (India) Ltd., MANU/SC/1066/2017.................................14
6) Cox & Kings Ltd. v. SAP India (P) Ltd., (2022) 8 SCC 1...........................................16
7) ONGC Ltd. v. Discovery Enterprises (P) Ltd., (2022) 8 SCC 42................................17
8) Indus Mobile Distribution Private Limited vs. Datawind Innovations Private Limited
and Ors., MANU/SC/0456/2017..................................................................................19
9) BGS Soma JV v. NHPC Ltd., (2020) 4 SCC 234........................................................19
10) Aniket SA Investments LLC v. Janapriya Engineers Syndicate, (2021)
SCC OnLine Bom 919.................................................................................................19
11) Vinod Bhaiyalal Jain v Wadhwani Parmeshwari Cold Storage Pvt. Ltd, (2020)
15 SCC 726..................................................................................................................20
12) Venture Global Engineering. v. Satyam Computer Services Ltd., (2010) 8 SCC 660.21
13) Ram Kumar and Ors. vs. Shriram Transport Finance Co. Ltd.,
MANU/DE/4941/2022.................................................................................................22
14) Interplay between Arbitration Agreements under the Arbitration & Conciliation Act,
1996 & the Indian Stamp Act, 1899, In re, 2023 SCC OnLine SC 1666.....................23
Statues:
1. The Arbitration and Conciliation Act, 1996.

2. The Stamps Act, 1899.
International Convention(s):
1. United Nations Convention on Contracts for the International Sale of Goods.
Books:
1. EBC Law of Arbitration and Conciliation and Alternative Dispute Resolution

Systems Avtar Singh Ed. 12.

4
2. Justice SB Malik Commentary on the Arbitration and Conciliation Act Ed. 8.

3. P.C. Markanda, LAW RELATING TO ARBITRATION AND CONCILIATION, (8th
Edn. 2013) LexisNexis.
4. Vikramajit Sen and Satyajit Gupta, The Concept of Seat in International Arbitration
Developments in India, in Shashank Garg (ed.) Alternative Dispute Resolution, The
Indian Perspective (OUP 2018).
5. Sheila Ahuja, International Arbitration with an Indian Connection, in Shashank Garg
(ed.) Alternative Dispute Resolution, The Indian Perspective (OUP 2018).
Reports:
1. 222nd Report of the Law Commission of India on NEED FOR JUSTICE-
DISPENSATION THROUGH ADR, etc. (2009).
2. 246th Report of the Law Commission of India on AMENDMENTS TO THE
ARBITRATION AND CONCILIATION ACT 1996 (2014).
Commentaries:
1. Commentary on Arbitration & Conciliation Act in 2 Vols. by Justice R.P. Sethi – 4th
Edition 2023.
2. Commentary on The Arbitration And Conciliation Act by Justice S.M. Jhunjhunwala (10th
Edition 2023).
3. Arbitration and Conciliation, A Commentary (EBC Webstore).
Legal Databases:
1. www.epw.in
2. www.jstor.org
3. www.manupatra.com
4. www.scconline.com
5. www.westlawindia.com

5
STATEMENT OF JURISDICTION
The jurisdiction of the Hon’ble High Court of Kaharashtra has been invoked under Section
34 of the Arbitration and Conciliation Act, 1996 of Indica.

6
STATEMENT OF FACTS
1. Kalaysia is a Southeast Asian country with significant oil and gas reserves. Kabah and
Karawak, located on the island of Korneo, are pivotal areas for the oil and gas industry
in Kalaysia.
2. Apex Maritime Solutions Pvt. Ltd. (“AMSPL”), a leading private corporation

specializing in oil manufacturing and export, is based in Kabah, Kalaysia.
3. Clause 6 of AMSPL's "Dealing Policy" mandates utilizing its subsidiary, Bradley

Maritime Resources Pvt. Ltd. (‘BMRPL”), for transportation services. Further, Clause
6.1 of the "Dealing Policy" stipulates additional surcharge for not availing
its transportation facility.
4. PetroPrime Innovations Pvt. Ltd (“PPIPL”), a commercial entity based in Indica,

engaged in exporting and importing oil has a unit in Kalaysia. PPIPL and AMSPL
entered a Long-Term Contract for Sale on 1st Januray 2022, stipulating monthly oil
shipments from January 2022 to December 2024, with BMRPL handling transportation.
Each shipment had a 50-day performance window. Initial deliveries were executed per
the contract terms, with PPIPL paying accordingly.
5. For the fourth transaction, AMSPL enlisted an alternative transporter to BMRPL i.e.
TransSwift Logistics Pvt. Ltd. (“TSLPL”), and this resulted in oil barrels deviating from
agreed standards upon delivery. Similarly, the fifth transaction was also carried out by
TSLPL which faced delayed delivery due to weather conditions.
6. PPIPL issued a “Dispute Notice” on 05.08.2022 seeking their responses, clarifications

compensation for the issues in the fourth and fifth transactions from AMSPL, which
failed to respond. Consequently, on 17.08.2022 PPIPL issued a “contract termination
notice” and “Arbitration Notice”.

7
7. PPIPL designated Mr. Vipin Asari & AMSPL appointed Dr. Robert Zane as its
arbitrator. Due to disagreement, apex court appointed Ms. Donna Paulson as the
presiding arbitrator.
8. PPIPL sought performance or compensation from AMSPL during arbitration, while

AMSPL contested contract termination and sought payments for the transactions.
9. The Arbitral Tribunal ruled in favour of AMSPL, awarding payments for the fourth and
fifth shipments, along with interest and costs, rejecting PPIPL's claims.
10. Post-award, PPIPL discovered undisclosed potential conflicts of interest regarding Dr.
Robert Zane, the arbitrator appointed by AMSPL. PPIPL is challenging the award in
court, alleging Dr. Robert Zane's potential conflict of interest based on his law firm's
past representation of AMSPL and his professional relationship with Mr. Daniel
Hardman.

8
ISSUES RAISED
- ISSUE 1-
WHETHER THE SETTING ASIDE APPLICATION IS MAINTAINABLE

BEFORE THE COURT?
-ISSUE 2-
WHETHER THE COURT HAS JURISDICTION TO ENTERTAIN LEGAL

PROCEEDINGS AGAINST THE TSLPL?
-ISSUE 3-
WHETHER THE COURT HAS JURISDICTION TO ENTERTAIN LEGAL

PROCEEDINGS AGAINST THE ARBITRATOR APPOINTED BY AMSPL,
NAMELY, DR. ROBERT ZANE?
-ISSUE 4-
WHETHER THE ARBITRAL AWARD DATED 30.11.2023 AS GIVEN BY THE

HON’BLE ARBITRAL TRIBUNAL SHOULD BE SET ASIDE?

9
SUMMARY OF ARGUMENTS

BEFORE THE COURT?
The application to set aside the arbitration is considered valid under the Arbitration and
Conciliation Act, 1996. The petitioner challenges the arbitral award on grounds of
procedural irregularities and potential bias of the arbitrator, Dr. Zane. The petitioner
asserts that Dr. Zane's appointment raises concerns about impartiality due to his firm's
prior representation of AMSPL, one of the parties involved, in a separate legal matter. This
relationship should have been disclosed as mandated by Section 12 of the Act. Failure to
disclose violates principles of natural justice and undermines confidence in the arbitration
process. Moreover, Dr. Zane's ongoing professional relationship with Mr. Daniel Hardman
constitutes a conflict of interest under Schedule Seven, Item 6 of the Act. This ongoing
connection was not revealed, depriving the petitioner of the chance to assess potential bias.
According to Section 14(1) of the Act, an arbitrator found ineligible must be replaced. In
light of these arguments, the petitioner requests the court to set aside the arbitral award and
recognize Dr. Zane's ineligibility as an arbitrator due to his undisclosed relationships with
AMSPL and Mr. Hardman.
ISSUE 2: WHETHER THE COURT HAS JURISDICTION TO ENTERTAIN

LEGAL PROCEEDINGS AGAINST THE TSLPL?
The argument addresses the question of whether the court can hear legal proceedings
against TransSwift Logistics Pvt. Ltd. (TSLPL) regarding a dispute over oil barrel
delivery. Despite not directly signing the contract, TSLPL's participation as an alternative
transporter for specific transactions warrants their involvement in the dispute. This claim
is supported by the Group of Companies doctrine, which allows non-signatories to be
bound under certain conditions. TSLPL's relationship with AMSPL can be seen as an
agency agreement, justifying their role in the proceedings. Additionally, TSLPL's failure
to fulfil contract obligations establishes its liability and necessitates legal recourse.
Therefore, the petitioner argues that the court has jurisdiction to entertain legal
proceedings against TSLPL to seek compensation for losses resulting from their breach
of contract.
10
ISSUE 3: WHETHER THE COURT HAS JURISDICTION TO ENTERTAIN

LEGAL PROCEEDINGS AGAINST THE ARBITRATOR APPOINTED BY
AMSPL, NAMELY, DR. ROBERT ZANE?
The arbitration agreement between PPIPL and AMSPL is guided by the Arbitration and
Conciliation Act,1996. The seat of arbitration being Kumbai India, as the parties were
free to choose given under Section 20, gives inherent jurisdiction to the High Court of
Kaharashtra over all aspects related to the arbitration proceedings. The High Court of
Kaharashtra derives its civil original jurisdiction from Section 2 ((1)(e)(ii). As per the
guidelines of the SC in Indus Mobile Distribution Private Limited v. Datawind
Innovations Private Limited, the court of the place where the seat of arbitration is has
jurisdiction to regulate the arbitral proceedings. Section 13 provides the procedure to
challenge an arbitrator. An application for setting aside an arbitral award can be made
under Section 34, before the Court. An arbitral award can be set aside on grounds of
“reasonable apprehension of bias” of the arbitrator’s partiality in the arbitration
proceedings. The prior representation of AMSPL by Dr. Robert Zane’s law firm and the
continuing relationship between Dr. Zane and Legal Counsel Daniel Hardman,
establishes an apprehension of bias. The court can decide the arbitrator’s entitlement of
fees after an arbitral award is set aside as per section 13(6). High Court of Kaharashtra
can initiate legal proceedings against the arbitrator, Dr. Robert Zane.
ISSUE 4: WHETHER THE ARBITRAL AWARD DATED 30.11.2023 AS GIVEN

BY THE HON’BLE ARBITRAL TRIBUNAL SHOULD BE SET ASIDE?
The petitioner seeks to set aside the arbitral award dated 30.11.2023, presenting multiple
grounds for contestation. Dr. Zane's prior relationship with AMSPL, undisclosed at the
time of his appointment, raises concerns about his impartiality. The failure to disclose
this relationship violates standards of independence and impartiality, creating doubts
about the fairness of the arbitration process. The arbitral award was inadequately
stamped, indicating a potential procedural flaw that undermines its validity. AMSPL
breached the contract by delivering substandard quality oil barrels late for the fourth and
fifth transactions.
Despite PPIPL's issuance of a notice and termination of the contract due to AMSPL's
breach, the arbitral award favoured AMSPL's claims. The rejection of PPIPL's claims

11
despite AMSPL's breach raises concerns about the fairness of the arbitration process and
the adequacy of the award. In conclusion, the petitioner argues that the combination of
potential bias of the arbitrator, procedural irregularities, and the rejection of PPIPL's valid
claims necessitates setting aside the arbitral award dated 30.11.2023.

12
ARGUMENTS ADVANCED

BEFORE THE COURT?
I. Maintainability of The Setting Aside Application
1. The Arbitration and Conciliation Act, 1996 (“Act”), governs the arbitration
proceedings between the parties. Clause 8.2 of the Long-Term Contract for sale 1
explicitly stipulates that disputes unresolved through negotiation shall be referred to
arbitration. Therefore, the arbitration agreement is a binding contract between the
parties, and any challenge to the arbitral award falls within the jurisdiction of the
Kaharashtra High Court as per the Act.
2. The petitioner submits that there are valid grounds for challenging the arbitral award,
including procedural irregularities and potential bias on the part of the appointed
arbitrator. These grounds are recognized under Section 34 of the Act, 2, which allows
for the setting aside of an arbitral award under certain conditions. 3
II. Principle of Natural Justice violated in appointing arbitrator:
3. Nemo Judex In Causa Sua which stands for rule against bias, is a core principle of
Natural Justice. It is the minimal requirement of natural justice that the authority
giving decisions must be composed of impartial persons acting fairly, without
prejudice and bias.4
4. Dr. Zane was appointed as arbitrator by AMSPL 5, his law firm represented AMSPL in
a separate legal matter before the Indica Commercial Court. 6 This prior representation
and connections with AMSPL raise concerns about his ability to be impartial in the
current arbitration involving the same company. In the case of Baidyanath
1
Exhibit A, Clause 8, 8.2, Moot Proposition.
2
Arbitration And Conciliation Act, 1996, § 34.
3
Baidyanath Mahapatra v. State of Orissa, (1989) 4 SCC 664.
4
A.K. Kraipak v. Union of India, (1969) 2 SCC 262.
5
Para XI, Moot Proposition.
6
Para XV (1), Moot Proposition.

13
Mohapatra v. State of Orissa7, the Supreme Court quashed the order of the tribunal
confirming premature retirement on the ground that the chairman of the tribunal was
also a member of the review committee which had recommended premature
retirement.
5. Section 12 of the Act8 imposes a duty on arbitrators to disclose any circumstances that
may give rise to doubts regarding their independence or impartiality. This includes
past or present relationships with any party involved in the arbitration.
6. Dr. Zane's firm's representation of AMSPL in a separate legal matter constitutes a

significant relationship that should have been disclosed at the time of his appointment
as arbitrator. This failure to disclose violates the provisions of Section 12(3)(a) of the
Act.9
7. It is humbly submitted that Dr. Zane's continuous relationship with AMSPL creates
reasonable apprehensions as to his impartiality as an arbitrator. It was the duty of Dr.
Zane, at the stage of appointment to inform regarding the existence of any relationship
or interest that is likely to give rise to reasonable doubt which Dr. Zane failed to do
and was later discovered by PPIPL by its reliable sources which is a clear violation of
the principles of appointing a neutral arbitrator.
8. The essence of any arbitration process lies in the arbitrator's independence and
impartiality, which are fundamental principles of justice. 10 These principles are akin to
the rule against bias in judicial and quasi-judicial settings. The failure to disclose a
prior relationship with one of the parties undermines the perception of impartiality
and erodes public confidence in the arbitration process. The inviolable requirement of
independence and impartiality in arbitral decision making have been emphasized by
the Supreme Court inter alia in Voestalpine and Jaipur Zila Dugdh Utpadak Sahkari
Sangh Limited v. Ajay Sales & Suppliers.11
9. It is humbly submitted that as per Section 12(1)(a) of the Act 12, it has to be given in
writing that Dr. Zane has a prior relationship with AMSPL which was not provided in
7
Baidyanath Mahapatra v. State of Orissa, (1989) 4 SCC 664.
8
9
Arbitration and Conciliation Act, 1996, § 12(3)(a).
10
Jaipur Zila Dugdh Utpadak Sahari Sangh Ltd. v. Ajay Sales & Suppliers, (2021) 17 SCC 248.
11
Id.
12
Arbitration And Conciliation Act, 1996, § 12(1)(a).

14
writing. The petitioner contends that the failure to disclose Dr. Zane's previous
professional relationship with AMSPL constitutes a violation of the principles of
Natural Justice. Natural Justice requires that parties to a dispute have confidence in
the impartiality of the decision-maker.
10. Reasonable apprehension of bias in the mind of a reasonable man can be a ground for
removal of the arbitrator.13
III. There lies a continuing relationship of Dr. Zane with Mr. Hardman:
11. The petitioner contends that Dr. Zane's ongoing professional relationship with Mr.
Daniel Hardman, who serves as AMSPL's legal counsel 14, establishes a continuing
connection with AMSPL. This relationship raises concerns about Dr. Zane's
impartiality and renders him ineligible for appointment as an arbitrator under the Act.
12. Section 12(5) of the Act15, in conjunction with Schedule Seven, Item 6 16, provides that
an arbitrator is considered ineligible for appointment if they fall under any of the
categories listed in the Seventh Schedule.17
13. Dr. Zane shares a professional relationship with Mr. Daniel Hardman, AMSPL's legal
counsel by being speakers at conference18, establishing a continuing relationship. This
continuing professional relationship falls within the purview of Schedule Seven, item
6, which prohibits the appointment of individuals who have a close connection with
any of the parties to the dispute.
14. Dr. Zane's failure to disclose his ongoing professional relationship with AMSPL's
legal counsel constitutes a violation of his duty to disclose under Section 12 of the
Act.19
15. The failure to disclose this continuing relationship deprived the petitioner of the
opportunity to assess Dr. Zane's potential bias and make an informed decision
regarding the arbitration process.
13
Govt. of T.N. v. Munuswamy Mudaliar, 1988 Supp SCC 651.
14
15
Arbitration and Conciliation Act, 1996, § 12(5).
16
Arbitration and Conciliation Act, 1996, sch. 7, item 6.
17
HRD Corporation v. GAIL (India) Ltd., MANU/SC/1066/2017.
18
19
Arbitration and Conciliation Act, 1996, § 12.

15
16. Section 12(5)20 read with the Seven Schedule makes it very clear that if the arbitrator
falls under any of the categories mentioned under the Seventh Schedule, the arbitrator
is considered ineligible for the appointment as an arbitrator to the dispute and will be
substituted by another arbitrator under Section 14(1) of the Act21.
17. In light of these arguments, Dr. Zane's continuing relationship with AMSPL which he
failed to disclose makes him ineligible to be appointed as arbitrator. Ergo, the
petitioner humbly submits that this makes the application for setting aside the arbitral
award maintainable before the court.
20
See av note 9.
21
Arbitration and Conciliation Act, 1996, § 14(1).

16

PROCEEDINGS AGAINST TSLPL?
I. TSLPL is bound by the arbitration agreement:
1. TSLPL is the company that was enlisted as an alternative transporter to BMRPL for
the Fourth and the Fifth Transactions, for the delivery of oil barrels to PPIPL.22
2. The petitioner acknowledges that TSLPL was not a direct party to the Long-Term
Contract for Sale between PPIPL and AMSPL. However, TSLPL became involved in
the dispute when AMSPL enlisted them as an alternative transporter for the fourth and
fifth transactions.23
3. Despite not being a signatory to the contract, TSLPL's actions directly impacted the
delivery and quality of the commodity, which are central issues in the arbitration
proceedings.
4. Therefore, the petitioner asserts that TSLPL should be considered a necessary and
proper party to the dispute, and legal proceedings against TSLPL fall within the
jurisdiction of the court.
II. TSLPL is bound by the virtue of ‘Group of Companies’ Doctrine:
5. In Cox & Kings Ltd. v. SAP India (P) Ltd., 24 the court examined the ‘Group of
Companies’ doctrine, binding non-signatories to an arbitration agreement, based on
Section 2(h)25 and Section 7 of the Act. 26 In the judgement it was held “an arbitration
agreement may be binding on parties, whether signatories or non-signatories,
provided there is sufficient legal basis to bind them. Most legal bases for binding non-
signatories to an arbitration agreement are of contractual origin, like agency.”
6. It is humbly submitted before the court that, TSLPL is under a contract of agency
22
Para VIII, Moot Proposition.
23
Id.
24
Cox & Kings Ltd. v. SAP India (P) Ltd., (2022) 8 SCC 1.
25
Arbitration and Conciliation Act, 1996, § 2(h).
26
Arbitration and Conciliation Act, 1996, §7.

17
with AMSPL, which can be substantiated by the issuing of bill of lading, is covered
under the ambit of the ‘Group of Companies’ doctrine.
7. Clause 6.1 of AMSPL's Dealing Policy imposes an additional surcharge if its

transportation facility is not utilized.27 This provision signifies that AMSPL intended
for its transport services, including those provided by TSLPL, to be governed by its
policies and agreements. By extension, TSLPL can be considered as part of the group
of companies associated with AMSPL for the purpose of this transaction, thereby
falling under the "Group of Companies" doctrine.
8. In the case of ONGC Ltd. v. Discovery Enterprises (P) Ltd.28, the Supreme Court held
that “there are multiple factors that ought to be considered before binding non-
signatories to arbitration. This included the parties ‘mutual intent, relationship of a
non-signatory to the signatory, commonality of subject matter, composite transaction,
and performance of the contract.”
III. TSLPL is jointly liable along with AMSPL:
9. The involvement of TSLPL in the transportation of the commodity demonstrates a

mutual intent between AMSPL and TSLPL to fulfill the contractual obligations of
delivering the Kikeh Oil to PPIPL. Additionally, the subject matter of the contract,
i.e., the transportation of the oil barrels, is common to both AMSPL and TSLPL.
10. It is humbly submitted before the court that TSLPL had a contractual relationship to
facilitate the transport services for AMSPL establishing a relationship between the
non-signatory to the signatory.
11. TSLPL's failure to deliver the commodity per the agreed-upon standards outlined in
the Contract constitutes a breach of their contractual obligations. As such, they may
be held liable for damages or other remedies arising from this breach. By failing to
deliver the commodity by the contractual terms, TSLPL breached its obligations and
may be held liable for damages or other remedies.
12. TSLPL's involvement in the transaction, their contractual relationship with AMSPL,
and the application of the Group of Companies doctrine justify their inclusion as a
27
Para III, Moot Proposition.
28
ONGC Ltd. v. Discovery Enterprises (P) Ltd., (2022) 8 SCC 42.

18
necessary and proper party to the dispute. Legal proceedings against TSLPL are
necessary to seek redress for the losses incurred due to their failure to fulfill their
contractual obligations.

19

PROCEEDINGS AGAINST THE ARBITRATOR APPOINTED BY AMSPL,
NAMELY, DR. ROBERT ZANE?
I. The jurisdiction of the court is dependent upon the seat of

arbitration-
1. The mechanism for dispute resolution, in the contract of sale, between PPIPL and
AMSPL, stipulates that the parties shall refer the dispute to arbitration as per the
Arbitration and Conciliation Act, 1996.29 Any disputes arising out of the arbitration
proceedings thus must be governed by this Act.
2. As per Section 2(1)(e)(ii)30 the “Court” means - in the case of international
commercial arbitrations, the High Court in exercise of its ordinary civil jurisdiction,
having jurisdiction to decide the questions forming the subject matter of arbitration.
3. As per Section 2031, the parties are free to choose the seat of arbitration. The seat of
arbitration as decided by the parties in the contract was Kumbai, Indica.32
4. In the case of Indus Mobile Distribution Private Limited v. Datawind Innovations
Private Limited33, the Supreme Court held that “once the seat is determined, the Court
of that place would have exclusive jurisdiction to regulate the arbitration proceedings
arising out of the agreement between the parties.”
34
5. In BGS Soma JV v. NHPC Ltd wherein the Supreme Court once again clarified
that "as the seat of the arbitration was designated as Mumbai, it would carry with it the
fact that Courts at Mumbai alone would have jurisdiction over the arbitration process."
6. In Aniket SA Investments LLC v. Janapriya Engineers Syndicate 35, the Bombay
High court relied on the BGS Soma judgement, that “A choice of seat, as the Supreme
Court has explained, is itself an expression of party autonomy and carries with it the
effect of conferring exclusive jurisdiction on the Courts of the seat".
7. It is humbly submitted, that the seat of arbitration being Kumbai, Kaharashtra,
Indica36 as determined in the contract, the High Court of Kaharashtra has inherent
29
Exhibit-A, Clause 8.3, Moot Proposition.
30
Arbitration And Conciliation Act, 1996, § 2(1)(e)(ii).
31
32
33
Indus Mobile Distribution Private Limited vs. Datawind Innovations Private Limited and Ors.,
MANU/SC/0456/2017.
34
BGS Soma JV v. NHPC Ltd.,(2020) 4 SCC 234.
35
Aniket SA Investments LLC v. Janapriya Engineers Syndicate, (2021) SCC OnLine Bom 919.
36

20
jurisdiction over all aspects of the arbitration process, including challenges to

arbitrators.
II. Challenge to the arbitrator can be made before Court-
8. Section 1337 provides a procedure to challenge an arbitrator. Section 13(5) states that
“the party challenging the arbitrator may make an application for setting aside such an
arbitral award in accordance with Section 34.”38
9. Section 3439 provides for recourse to a court against an arbitral award by an
application for setting aside such award, on various grounds stated in the section.
10. One of the grounds for the same is stated in Section 34(2)(b)(ii) 40 when the arbitral
award is in conflict with the public policy of India, which includes conflict with the
most basic notions of morality or justice.
11. The prior representation of AMSPL by Dr. Robert Zane’s law firm and the continuing
relationship between Dr. Zane and Legal Counsel Daniel Hardman, establishes an
apprehension of bias, which is a reasonable ground for setting aside an arbitral
award.41
12. Section 13(6), states that “When an arbitral award is set aside on an application made
under sub-section (5), the court may decide as to whether the arbitrator who is
challenged is entitled to any fees.”42
13. This Section, clearly illustrates the Court’s jurisdiction to decide on the matters
concerning an arbitrator, including the fees.
14. It is thereby, submitted before the court, that the High Court of Kaharashtra, having
ordinary civil jurisdiction in the matter of international commercial arbitration
between PPIPL and AMSPL, may initiate legal proceedings against the arbitrator, Dr.
Robert Zane.
37
38
Arbitration And Conciliation Act, 1996, § 13(5).
39
40
Arbitration And Conciliation Act, 1996, § 34(2)(b)(ii).
41
Vinod Bhaiyalal Jain v Wadhwani Parmeshwari Cold Storage Pvt. Ltd, (2020) 15 SCC 726.
42
Arbitration And Conciliation Act, 1996, § 13(6).

21
ISSUE 4: WHETHER THE ARBITRAL AWARD DATED 30.11.2023 AS GIVEN BY

HON’BLE ARBITRAL TRIBUNAL SHOULD BE SET ASIDE?
I. There lies an apprehension of bias of the arbitrator, Dr. Robert Zane-

(a) Prior relationship of Dr. Robert Zane’s law firm with AMSPL-
1. Dr Zane’s law firm’s prior representation of AMSPL in proceedings before the Indica
Commercial Court in a separate contract, even though unrelated to the current dispute,
creates reasonable suspicion of bias. This bias can lead to lack of impartiality in
deciding the arbitral award and constitutes as procedural unfairness.
2. Section 34(2)(b)(ii)43 states reasons to set aside an arbitral award if “the arbitral award
is in conflict with the public policy of India.” which includes a “conflict with the most
basic notions of morality and justice”
3. In Vinod Bhaiyalal Jain v Wadhwani Parmeshwari Cold Storage Pvt. Ltd 44, the
Supreme Court, deciding on the “reasonable apprehension of bias” of an arbitrator to
set aside an arbitral award, held that “an award can be set aside if the parties have a
reasonable basis to doubt the arbitral tribunal’s ability to be independent and impartial
in pronouncing the award. There should be no room for potential perceived bias…”
4. In the case of Venture Global Engineering v. Satyam Computer Services Ltd 45., the
Court held that an arbitral award could be set aside “if it is conflicting with the
fundamental policies of Indian laws or the justice, morality or interest of India.”
5. It is humbly submitted that, the prior relationship of AMSPL with Dr. Zane’s law firm
establishes a reasonable apprehension of procedural unfairness and impartiality of
arbitrator in deciding the arbitral award.
(b) Non- disclosure of prior association by Dr. Zane raises concern about
impartiality-
43
Arbitration and Conciliation Act, 1996, § 34(2)(b)(ii).
44
Vinod Bhaiyalal Jain v. Wadhwani Parmeshwari Cold Storage (P) Ltd., (2020) 15 SCC 726.
45
Venture Global Engineering. v. Satyam Computer Services Ltd., (2010) 8 SCC 660.

22
6. Dr. Zane’s failure to disclose his prior relationship with AMSPL at the time of his
appointment, or throughout the arbitral proceedings, is a serious lapse on the part of
Dr. Zane and creates further suspicions on the intentions and impartiality of Dr. Zane.
7. Section 12(1)(a)46 requires a person approached in connection with his possible
appointment as an arbitrator, to disclose in writing any circumstances that are likely to
give justifiable doubts as to his independence or impartiality as an arbitrator. Section
12(3)(a)47 lays out the grounds of challenge to an arbitrator if “justifiable doubts” exist
in relation to his “independence or impartiality”.
8. The Delhi High Court, in the case of Ram Kumar and Anr. v Shriram Transport
Finance Co. Ltd48., on an arbitrator’s failure to disclose under Section 12(1), held
that: “since the grounds giving rise to justifiable doubts as to impartiality exist, failure
to make such disclosure vitiates the arbitral proceedings and the impugned award.”
9. “It is necessary to note that the language of Section 12(1) of the Act does not leave it
at the discretion of any person, approached in connection with being appointed as an
arbitrator, to make the necessary disclosures. The use of the words “he shall disclose”
in Section 12(1) of the Act makes it mandatory for the person who is approached in
connection with his possible appointment as an arbitrator, to disclose all
circumstances that may give rise to justifiable doubts as to his independence and
impartiality.”49
10. No such disclosure was made by Dr. Zane at the time of his appointment or
throughout the course of the arbitral proceedings.
II. Inadequate Stamping of the award further creates reasonable

apprehensions-
11. The arbitral award dated 30.11.2023, was passed without a stamp. 50 Inadequate
stamping of the award, raises doubts about the finality of the award and cannot be
relied upon by the courts as admissible evidence.
12. The Supreme Court in Re: Interplay between Arbitration Agreements under the
Arbitration and Conciliation Act, 1996 and the Indian Stamp Act, 1899 51, held that
46
47
48
Ram Kumar and Ors. vs. Shriram Transport Finance Co. Ltd., MANU/DE/4941/2022.
49
Id.
50
Para XIII, Moot Proposition.
51
Interplay between Arbitration Agreements under the Arbitration & Conciliation Act, 1996 & the Indian Stamp
Act, 1899, In re, 2023 SCC OnLine SC 1666.

23
an instrument which is unstamped or insufficiently stamped would be inadmissible in

52
evidence. The Court focused on Section 35 of the Stamp Act,1899 which rendered
unstamped and insufficiently stamped instruments inadmissible in evidence. Section
35 is significant because it gives teeth to the Stamp Act by ensuring that stamp duty is
paid before rights and obligations arising from an agreement are enforced.53
III. There was a breach of contract by AMSPL-

13. The fourth transaction for the delivery of 445,000 oil barrels of Kikeh Oil, by TSLPL,
an alternative transporter to BMRPL, the subsidiary unit of AMSPL, to PPIPL, at the
Kumbai Factory, were not up to the agreed upon standards of Kikeh oil, as per the
contract between AMSPL and PPIPL.54
14. Further, the fifth transaction for the delivery of 445,000 oil barrels of Kikeh Oil, to
55
PPIPL, at the Kumbai Factory, was delivered late and the quality of the oil was also
significantly below the contractual standards.
15. The deviation from the standard quality of oil of an API of 35 56, in the fourth and fifth
transactions, constitutes a breach of contract by AMSPL.
16. Further, the Contract of Sale between PPIPL and AMSPL, requires the seller to notify
the Buyer of any circumstances that may impact the agreed-upon shipment schedule.
57
The same was not done by AMSPL, for the purpose of the fifth transaction. This
again constitutes a breach of contractual duties by AMSPL.
17. The issuance of a “claused bill of lading” by the carrier TSLPL to AMSPL for the
purpose of the fifth transaction,58 is conclusive evidence to the discrepancies on the
part of AMSPL at the time of delivering the oil barrels to the carrier, TSLPL. There is
a possibility of damages to the cargo, which were noticed by TSLPL at the time it
received them, or some other discrepancy such as the goods being packaged in a
different manner than required, which lead to TSLPL issuing a “claused bill of
lading.”
52
The Indian Stamp Act, 1899, § 35.
53
Interplay between Arbitration Agreements under the Arbitration & Conciliation Act, 1996 & the Indian Stamp
Act, 1899, In re, 2023 SCC OnLine SC 1666.
54
Para VIII, Moot Proposition.
55
Para IX, Moot Proposition.
56
57
58
Para IX, Moot Proposition.

24
18. Article 35(1) of the United Nations Convention on Contracts for the International Sale
of Goods, requires that “The seller must deliver goods which are of the quantity,
quality and description required by the contract and which are contained or packaged
in the manner required by the contract.”59
19. It is humbly submitted before the Court that the deviation of the quality of oil barrels
in the fourth and fifth transactions, as well as the late delivery of the barrels of oil to
PPIPL in the fifth transaction, constitutes a breach of the contract by AMSPL.
20. The contract further states that, in case of a breach of any provisions of the contract
by any party, the non-breaching party may issue a written notice to the defaulting
60
party, specifying the breach and demanding its remedy. The same was done by
PPIPL, as it served a notice to AMSPL on 05.08.2022, seeking their response and
61
clarifications concerning the fourth and fifth transactions. The defaulting party was
accorded ten working days from the receipt of such notice to remedy the breach, as
per the contract. Failure to do so, allows the non-breaching party to terminate the
62 63
contract. AMSPL failed to respond to PPIPL’s notice and hence, PPIPL in
conformity to the provisions of the contract terminated the contract after the lapse of
the deadline of ten days, on 17.08.2022.
21. It is humbly submitted that PPIPL followed the proper procedure as stated under the
contract between PPIPL and AMSPL, and hence contestation of PPIPL’s termination
of contract64, by ASMPL is inadequate.
22. Despite the breach of contract by AMSPL, all claims of PPIPL were rejected in the
Arbitral Award.
23. It is humbly submitted before the court that, the complete rejection of all claims of
PPIPL, and the ruling in favour of AMSPL, the grant of payment of the fourth and
fifth transactions to AMSPL, along with interest, the costs of arbitration, and
additional compensations, accompanied with the potential biasness of the arbitrator,
Dr. Robert Zane in favour of AMSPL, raises serious questions about the procedural
fairness and the adequate granting of arbitral award by the arbitral tribunal.
59
United Nations Convention on Contracts for the International Sale of Goods art. 79(4), Apr. 11, 1980, 1489
U.N.T.S. 3.
60
Exhibit A, Clause 7,7.2, Moot Proposition.
61
Para X, Moot Proposition.
62
Exhibit A, Clause 7,7.2, Moot Proposition.
63
Para X, Moot Proposition.
64
Para XII, Moot Proposition.

25
24. As per Section 79(4) of the United Nations Convention on Contracts for the
International Sale of Goods65, AMSPL had a duty towards PPIPL to provide notice of
any impediment preventing its performance under the contract. By failing to fulfill
this duty, AMSPL should be held liable for damages resulting from its non-receipt of
notice.
25. It is most respectfully pleaded before the honorable court that, in light of the biasness
of the arbitrator, the inadequate stamping of the arbitral award and the rejection of all
claims by PPIPL, despite the breach of contract by AMSPL, the arbitral award dated
30.11.2023, be set aside.
65
United Nations Convention on Contracts for the International Sale of Goods art. 79(4), Apr. 11, 1980, 1489
U.N.T.S. 3.

26
PRAYER
Wherefore, in light of the issues raised, arguments advanced and authorities cited, it is
humbly and respectfully submitted that this Hon’ble Court may be pleased to:
I. DECLARE that the setting aside application is maintainable for violating

the principles of natural justice and having prior relationships with AMSPL.
II. EXECUTE legal proceedings against TSLPL.
III. EXECUTE legal proceedings against the arbitrator appointed by AMSPL, viz.
Dr. Robert Zane.
IV. SET ASIDE the arbitral award dated 30.11.2023 as given by the Hon’ble Arbitral
Tribunal.
And, pass any such order or decree that the court may deem fit in the light of justice, equity
and good conscience.
For this act of kindness, the Petitioner shall duty bound forever pray.
All of which is respectfully submitted.
SD/-
COUNSELS FOR THE PETITIONER

27

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TC-17

DME NATIONAL MOOT COURT COMPETITION 2024

Before The Hon’ble High Court of Kaharashtra

Application under Section 34 of the Arbitration and Conciliation Act, 1996

PetroPrime Innovations Pvt. Ltd……………………………………………….PETITIONER

Apex Maritime Solutions Pvt. Ltd…..................................................................RESPONDENT

MOST RESPECTFULLY SUMBITTED TO THE HON’BLE CHIEF JUSTICE OF HIGH COURT OF

MEMORIAL ON BEHALF OF THE PETITIONER

ISSUE 1: WHETHER THE SETTING ASIDE APPLICATION IS MAINTAINABLE

ISSUE 2: WHETHER THE COURT HAS JURISDICTION TO ENTERTAIN LEGAL

ISSUE 3: WHETHER THE COURT HAS JURISDICTION TO ENTERTAIN LEGAL

ISSUE 4: WHETHER THE ARBITRAL AWARD DATED 30.11.2023 AS GIVEN BY

AIR All India Reporter

AMSPL Apex Maritime Solutions Pvt. Ltd

BMRPL Bradley Maritime Resources Pvt. Ltd

PPIPL PetroPrime Innovations Pvt. Ltd

TSLPL TransSwift Logistics Pvt. Ltd

CISG United Nations Convention on Contracts for

MEMORIAL for PETITIONER

1) Baidyanath Mahapatra v. State of Orissa, (1989) 4 SCC 664......................................12

1. The Arbitration and Conciliation Act, 1996.

1. United Nations Convention on Contracts for the International Sale of Goods.

1. EBC Law of Arbitration and Conciliation and Alternative Dispute Resolution

MEMORIAL for PETITIONER

2. Justice SB Malik Commentary on the Arbitration and Conciliation Act Ed. 8.

MEMORIAL for PETITIONER

MEMORIAL for PETITIONER

2. Apex Maritime Solutions Pvt. Ltd. (“AMSPL”), a leading private corporation

3. Clause 6 of AMSPL's "Dealing Policy" mandates utilizing its subsidiary, Bradley

4. PetroPrime Innovations Pvt. Ltd (“PPIPL”), a commercial entity based in Indica,

6. PPIPL issued a “Dispute Notice” on 05.08.2022 seeking their responses, clarifications

MEMORIAL for PETITIONER

8. PPIPL sought performance or compensation from AMSPL during arbitration, while

MEMORIAL for PETITIONER

WHETHER THE SETTING ASIDE APPLICATION IS MAINTAINABLE

WHETHER THE COURT HAS JURISDICTION TO ENTERTAIN LEGAL

WHETHER THE COURT HAS JURISDICTION TO ENTERTAIN LEGAL

WHETHER THE ARBITRAL AWARD DATED 30.11.2023 AS GIVEN BY THE

MEMORIAL for PETITIONER

ISSUE 1: WHETHER THE SETTING ASIDE APPLICATION IS MAINTAINABLE

ISSUE 2: WHETHER THE COURT HAS JURISDICTION TO ENTERTAIN

ISSUE 3: WHETHER THE COURT HAS JURISDICTION TO ENTERTAIN

ISSUE 4: WHETHER THE ARBITRAL AWARD DATED 30.11.2023 AS GIVEN

MEMORIAL for PETITIONER

MEMORIAL for PETITIONER

ISSUE 1: WHETHER THE SETTING ASIDE APPLICATION IS MAINTAINABLE

I. Maintainability of The Setting Aside Application

II. Principle of Natural Justice violated in appointing arbitrator:

MEMORIAL for PETITIONER

6. Dr. Zane's firm's representation of AMSPL in a separate legal matter constitutes a

MEMORIAL for PETITIONER

MEMORIAL for PETITIONER

MEMORIAL for PETITIONER

ISSUE 2: WHETHER THE COURT HAS JURISDICTION TO ENTERTAIN LEGAL

I. TSLPL is bound by the arbitration agreement:

II. TSLPL is bound by the virtue of ‘Group of Companies’ Doctrine:

MEMORIAL for PETITIONER

7. Clause 6.1 of AMSPL's Dealing Policy imposes an additional surcharge if its