P issue D

LIST OF ABBREVIATIONS
WORD ABBREVIATION
SUPREME COURT SC
HIGH COURT HC
ARBITRATION ARB.
ALL INDIA REPORTER AIR
UNITED KINGDOM HOUSE OF LORDS UKHL

DECISION
OTHERS ORS.
ANOTHER ANR.
SECTION SEC
EDITION EDN.
LAUNCH SERVICE AGREEMENT L.S.A OR LSA
DIRECTOR DIR.
NATIONAL AERONAUTICS AND SPACE NASA

ADMINISTRATION
INDIAN SPACE RESEARCH AGENCY ISRO
DOCTOR DR.
APPEAL CASES AC
STATEMENT OF FACTS
1. JURISDICTION
At the outset, the Tribunal does not have jurisdiction over R2 Detour’s claims.
1.1 INVALID EXECUTION OF THE LAUNCH SERVICE AGREEMENT
ShuttleUp is an Indian startup which deals with the sector of satellite operations. For this very
purpose, Mrs Tania Vaidya introduced the C.E.O. of ShuttleUp, Mr Jeevs Patel, to Mr
Richard Ma. In October 2014, R2 Detour's Head of Legal, Hamish McLoughlin, gave
ShuttleUp a two-week deadline to finalise the key terms of a contract, indicating that R2
Detour was considering a contract with a different picosatellite manufacturer but would
prioritise ShuttleUp's project if an agreement could be reached within the given time frame.
Mr Patel reviewed the heads of terms with external counsel, Mr Amjad Munir. He confirmed
to R2 Detour that he was willing to expedite the negotiation process by reviewing the final
version of the contract. R2 Detour subsequently provided the final draft of the Launch
Services Agreement.
On the eve of the two-week strict deadline, Mr Patel was hospitalised with dengue fever on
the final day of the execution of the Launch Services Agreement with R2 Detour. Despite an
email from Mr McLoughlin warning that R2 Detour could not provide services if the contract
weren’t executed by midnight, the legal team for ShuttleUp could not reach Mr Patel or the
other full-time director, Ms Yulek Korzenski. At 11:50 pm, Mr Munir informed R2 Detour
that Dr Julius Goh, a part-time director of ShuttleUp, had executed the agreement in
accordance with English law, which R2 Detour accepted. ShuttleUp paid half of the
consideration due, but later the board of directors declared the contract void stating that
Indian law applies to determine the validity of Dr Goh's execution, which is deemed invalid
as a part-time director.
1.2 MORBUS CAPITAL IS NOT A PARTY TO THE ARBITRATION AGREEMENT
Morbus Capital did not influence R2 Detour to enter into the Launch Services Agreement. Dr
Vaidya and Mr Patel's relationship as a mentor and a mentee, respectively, began at a Queen's
College alumni event where Dr Vaidya was impressed with Mr Patel's work on satellite
constellations. Dr Vaidya has been mentoring Mr Patel even before ShuttleUp's incorporation
and continues to advise him. In 2014, Mr Patel asked Dr Vaidya for contacts in the launch
services space, and she responded with a delay due to competing deadlines.
Dr. Vaidya met Mr. Ma at a conference in 2014, where he was impressed by R2 Detour's
services. Mr. Ma explained that they provide low-cost launch services for picosatellite
constellations, ideal for start-ups like ShuttleUp. Morbus Capital had only provided funding
through a credit agreement, which doesn't necessarily mean they were a party to the
arbitration agreement.
2. SHUTTLEUP WAS INDUCED BY R2 DETOUR’S MISREPRESENTATIONS
R2 Detour is not entitled to compensation as it has made, whether negligently or fraudulently,

numerous misrepresentations during pre-contractual negotiations and persisted in those
representations throughout the contract’s lifespan. The false representations include but are
not limited to the following: (a) R2 Detour claimed that it is highly experienced, having
conducted 10 successful launches for picosatellites, and are well placed to cater to
ShuttleUp’s requirements; (b) R2 Detour indicated that it has a good reputation in the market;
and (c) ShuttleUp will benefit from its significant network across the globe.
The Launch Services Agreement between ShuttleUp and R2 Detour was found to be based on
false representations. Ms Korzenski discovered that R2 Detour had encountered regulatory
issues and concerns resulting in a major delay in its 10th launch, which was not disclosed to
ShuttleUp. Further research revealed that R2 Detour's capabilities were unsatisfactory and its
reputation had been declining since 2012. While R2 Detour provided contacts to ShuttleUp
during the design and manufacturing phase, they were dead ends, leading to ShuttleUp
paying GBP 7,000,000 in unbudgeted consultancy fees to third-parties with insufficient
expertise in the industry.
ShuttleUp was induced to enter into a Launch Services Agreement with R2 Detour based on
representations made by them, but suffered losses due to broken promises. After expressing
dissatisfaction with the services received, ShuttleUp reserved the right to challenge the
validity of the agreement due to misrepresentations made. They were justified in withholding
payment of the Milestone Payment. The Respondents state that the misrepresentation claim is
not time-barred under the Limitation Act 1980 or any other applicable limitation periods.
STATEMENT OF ISSUES
-I-
WHETHER THE TRIBUNAL HAS JURISDICTION TO DECIDE THIS DISPUTE:
A)
WHAT IS THE APPLICABLE LAW TO DETERMINE WHETHER DR GOH HAD CAPACITY TO EXECUTE
THE LAUNCH SERVICES AGREEMENT?
B)
IF INDIAN LAW WERE THE APPLICABLE LAW TO DETERMINE WHETHER DR GOH HAD CAPAC
ITY, DID SHUTTLEUP VALIDLY EXECUTE THE LAUNCH SERVICES AGREEMENT?
-II-
WHETHER MORBUS CAPITAL IS A PARTY TO THE ARBITRATION AGREEMENT.
-III-
WHETHER THE RESPONDENTS’ CLAIMS ARE BARRED BY THE RELEVANT LIMITATION PERIOD
-IV-
IN THE EVENT THAT THE RESPONDENTS’ CLAIMS ARE NOT TIME-BARRED, WHETHER THE
CLAIMANT IS LIABLE FOR MISREPRESENTATION.
SUMMARY OF ARGUMENTS
-I-
WHETHER THE TRIBUNAL HAS JURISDICTION TO DECIDE THIS DISPUTE:
A)
WHAT IS THE APPLICABLE LAW TO DETERMINE WHETHER DR GOH HAD CAPACITY TO EXECUTE
THE LAUNCH SERVICES AGREEMENT?
B)
IF INDIAN LAW WERE THE APPLICABLE LAW TO DETERMINE WHETHER DR GOH HAD CAPACITY,
DID SHUTTLEUP VALIDLY EXECUTE THE LAUNCH SERVICES AGREEMENT?
It is humbly submitted that under Indian Law Dr. Goh did not have the capacity to execute the
agreement and hence the agreement stands invalid. This is contested on the following heads –
Firstly, Dr. Goh was a non-executive director and did not see day-to-day functioning of the
company and secondly, Essentials of Contracts Law are not met while executing the
agreement.
ISSUE -II-
WHETHER MORBUS CAPITAL IS A PARTY TO THE ARBITRATION AGREEMENT.
It is humbly submitted that Morbus Capital is not a party to the arbitration agreement as it
was a non-signatory to the same and that they weren’t liable for the actions of ShuttleUp. The
argument is contended on the following subheads that firstly, English Law doesn’t allow
binding non-signatories to Arbitration agreement without express or implied consent,
Secondly, ShuttleUp’s Liability cannot be transferred to Morbus Capital and thirdly, Morbus
Capital is not obligated to take part in Arbitration Proceedings
-III-
WHETHER THE RESPONDENTS’ CLAIMS ARE BARRED BY THE RELEVANT LIMITATION PERIOD
Respondents’ claims are not barred by a limitation period as they are well-within the scope of
Limitation Act, 1980 and that there has been an active concealment of requisite information
on behalf of R2Detour. The argument will be contended on the following heads that firstly,
The limitation period does not apply from the date of the signing of the agreement, secondly,
Limitation period begins from the date of accrual of the cause of action.
-IV-
IN THE EVENT THAT THE RESPONDENTS’ CLAIMS ARE NOT TIME-BARRED, WHETHER THE
CLAIMANT IS LIABLE FOR MISREPRESENTATION.
The counsel for respondents submits that the claimant is liable for misrepresentation as they
had have made untrue statements during the course of the engagement and fraudulently
induced ShuttleUp to enter into an agreement with them. This will be contended on the
following heads – firstly, Existence of false statement of facts and secondly, Inducement and
reliance of ShuttleUp on these facts.
ISSUE I: WHETHER THE TRIBUNAL HAS JURISDICTION TO DECIDE THIS DISPUTE:
A. WHAT IS THE APPLICABLE LAW TO DETERMINE WHETHER DR GOH HAD CAPACITY TO

EXECUTE THE LAUNCH SERVICES AGREEMENT?
1A.1 ENGLISH CONFLICT OF LAW RULES WILL BE APPLIED TO DETERMINE THE

APPLICABLE LAW GOVERNING DR GOH’S CAPACITY
1a.1.1 Rome I Regulations will apply

The LSA between ShuttleUp and R2Detour was signed and executed by Dr. Goh on 13th of
November, 2014 at 11:59 PM. As per Clause 24 of the LSA the governing law of the
agreement is English Law.
In the case of Enka v Chubb1 the Supreme Court explained that under common law conflict
rules, a contract was governed by the law explicitly or implicitly chosen by the parties or, in
the absence of party choice, by the law with which the contract was most closely connected.
The law to be applied in answering the question of whether the parties had chosen a law to
govern their contract was the law of the forum – here, English law.
In the United Kingdom, Contracts (Applicable Law) Act 1990 gave effect to the provisions of
the Rome Convention on the Law Applicable to Contractual Obligations and the Rome I
Regulations in situations involving a conflict of laws, to contractual obligations in civil and
commercial matters. In the present case, the parties have expressly chosen English law as the
law governing the agreement and any non-contractual obligations arising out of it which is in
consonance with Article 3(1) of Rome I.
1A.1.2 CONFLICT OF LAWS REGARDING LEGAL CAPACITY OF A COMPANY OR OTHER BODY

CORPORATE IS EXCLUDED FROM ROME I
Article 1(2)(f) of Rome I 2excludes “questions governed by the law of companies and other
bodies, corporate or unincorporated, such as the creation, by registration or otherwise, legal
1
Enka v. Chubb, [2020] UKSC 38.
2
capacity, internal organisation or winding-up of companies and other bodies, corporate or
unincorporated, and the personal liability of officers and members as such for the obligations
of the company or body;” from the scope of the regulations. Member states, therefore, apply
their domestic private international law rules to the issue of contractual capacity.
It is submitted therefore, that in order to determine whether Dr Goh had the capacity to
execute the LSA on behalf of ShuttleUp, the rules of English private international law
(conflict of law rules) need to be analyzed.
1A.2 ENGLISH CONFLICT OF LAW RULES PROVIDE FOR THE APPLICATION OF LEX
DOMICILII IN DETERMINING CAPACITY OF A CORPORATION TO ENTER INTO A
TRANSACTION
1a.2.1 Doctrine of Depacage provides for split-analysis of an agreement in common law

A French word, dépeçage (DE-PA-SAJ) is defined as a “cutting up, dismembering, carving
up.” In a legal setting “depecage” is “[a] court’s application of different state laws to
different issues in a legal dispute; choice of law on an issue-by-issue basis.” In private
international law it refers to the division of the contract so that different parts can be
governed by different laws.
Common law recognises that different parts of a contract can be governed by different laws.
In Hamlyn & Co v Talisker Distillery ([1894] AC 202) where Lord Herschell LC observed:
“where a contract is entered into between parties residing in different places, where different
systems of law prevail, it is a question, as it appears to me, in each case, with reference to
what laws the parties contracted, and according to what law it was their intention that their
rights under the whole or any part of the contract should be determined.” (p 207.)
In the case of In re Disaster at Detroit Metropolitan Airport on August 16, 1987 (“Detroit
Metro”), the court recognized the need for depecage in the choice-of-law problem presented.
The court found where there are legally significant facts which have occurred in more than
one state, the court must identify those states that have sufficient contacts with the litigation.
Once these states have been identified, the court must determine whether the various
substantive laws at issue differ with regard to the particular issues in contest. In other words,
is there a conflict? If so, this may result in the application of “the rules of different states to
determine different issues in the same case.”
Under the doctrine of dépeçage, party autonomy is available to parties for the improved
regulation of their interests where there has been a partial choice of applicable law and the
rest of the contractual obligations are left to be determined objectively. Rome I expressly
permits this partial choice, specifying that the parties may choose the law applicable to part of
the contract only (Article 3.1).
It is submitted therefore, that the doctrine of depacage is an established common law

principle which permits the application of laws from different jurisdictions to the terms of a
contract.
1a.2.2
The conflict of laws rules that govern the legal capacity of companies and other bodies
corporate or unincorporate with regard to contracts issues, are the English common law
conflict rules as stated in Dicey, Morris and Collins, at Rule 162(1) and (2):
Rule 162- (1)The capacity of a corporation to enter into any legal transaction is
governed both by the constitution of the corporation and by the law of the country
which governs the transaction in question.
(2) All matters concerning the constitution of a corporation are governed by the law
of the place of incorporation.
From this rule it can be construed that the power or capacity of a corporation is limited in a
two-fold manner:
1. Its capacity may be limited by its constitution. Any acts done on its behalf in
contravention of such provisions of the constitution are ultra vires and are not the acts
of the corporation.
2. Its capacity may be limited by the law of the country which governs the transaction in
question. (rule 209 for claimants) However, if a system of foreign law (lex causae)
may endow an individual with greater capacity than he possesses under his lex
domicilii, it follows from the other limb of Rule 162(1) that in the case of corporation,
it can only have a limiting effect, for a legal person cannot anywhere exercise any
greater power than is given to it by the legal system to which it owes its existence.
(Saudi Prince Case, First Russian Insurance Co case)
In Haugesund Kommune and Another v Depfa ACS Bank (Wickborg Rein and Co part 20
defendant) [2012] QB 549 a majority of the Court of Appeal held that both the terms
"capacity" and "company's constitution" in this context were to be given a broad
internationalist meaning: see Aikens LJ at [47] and [48]. Thus, in that case, a lack of
substantive power to enter into a contract of a particular type was to be regarded as a lack of
capacity despite the fact that the lack of the relevant power was imposed by national
legislation rather than the internal instruments of the company.
In the case of Risdon Iron and Locomotive works v Furness ([1906] 1 KB 49 (CA)) a
company incorporated in England entered into a contract in California, and under Californian
law a shareholder was liable to third parties for the liabilities of the company in proportion to
his holding in the company. It was held that English law will determine whether and to what
extent a shareholder of a company incorporated under English law could be held liable for the
liability of a company, and not Californian law.
Again in the case of Sierra Leone Telecommunications Co Ltd v Barclays Bank Plc ([1998]
All ER 821) it was held that the capacity of a company to enter into any legal transaction was
governed by the constitution of the company and the law of the State in which that company
was incorporated, in this case Sierra Leone (p. 473).
Scrutton LJ, in the case of ([1923] 2 KB 682 (CA)), observed that he was inclined to agree
with the formulation of the rule in the third edition of Dicey. That formulation was
substantially the same as r 162 referred to above. He further observed: “So that, for instance,
the lex loci contractus allows a corporation to own a land, if the constitution of the
corporation forbids it to own land, it cannot do so in spite of the law of the country where the
contract was made” p 690.
Domicile of ShuttleUp Limited

ShuttleUp was incorporated on 22 June 2012 under the (Indian) Companies Act 1956. Its
head office is addressed as 12th Floor, Cyber City, Tower Z, DLF Building 29, Phase III -
Gurgaon, 122002, Haryana.
The basic rule is that a company is domiciled in the country under whose laws it is
incorporated; and is resident where its central management and control is exercised. The
word domicile is used by analogy to the domicile of natural persons, and by domicile of a
corporation is meant the place under whose law it has been incorporated. (Carl Zeiss Stiftung
v Rayner & Keeler Ltd [1969] All ER 897) Moreover, a coporation cannot have more than
one domicile. (Saccharin Corpn Ltd case [1911] 2 KB 516).
Hence, from the factual matrix there is no ambiguity as to the domicile of ShuttleUp Limited
which is India and the lex domicilii of ShuttleUp is Indian law.
1A.3 English Company Law also applies lex domicilii in determining capacity to
contract
Having been incorporated in India, ShuttleUp falls within the definition of ‘overseas
company’ provided in Section 1044 of the ECA 2006.
It is submitted that Regulation 3 and 4 of the The Overseas Companies (Execution of
Documents and Registration of Charges) Regulations 2009 also support the application of the
lex domicilii principle in determining the validity of a contract made by an overseas
company. They do so by modifying sections of the (English) Companies Act 2006. The
relevant provisions have been reproduced below:
Company contracts
43.—(1) Under the law of England and Wales or Northern Ireland a contract may be made—
a. by an overseas company, by writing under its common seal or in any manner

permitted by the laws of the territory in which the company is incorporated for the
execution of documents by such a company, and
b. on behalf of an overseas company, by any person who, in accordance with the laws of
the territory in which the company is incorporated, is acting under the authority
(express or implied) of that company.
Execution of documents
44.—(1) Under the law of England and Wales or Northern Ireland a document is executed by
an overseas company—
a. by the affixing of its common seal, or
b. if it is executed in any manner permitted by the laws of the territory in which the
company is incorporated for the execution of documents by such a company.
(2) A document which—

a. is signed by a person who, in accordance with the laws of the territory in which an
overseas company is incorporated, is acting under the authority (express or implied)
of the company, and
b. is expressed (in whatever form of words) to be executed by the company,
has the same effect in relation to that company as it would have in relation to a company
incorporated in England and Wales or Northern Ireland if executed under the common seal
of a company so incorporated.
In the case of Azov Shipping Co v Baltic Shipping Co ([1999] 2 Lloyd’s Rep. 159) it was
held that “the manner of foreign corporations entering into binding contracts is as regards
matters of formal validity under English law governed, like questions of capacity to contract,
by the law of the place of incorporation”.
Therefore, in the present dispute, the validity of the execution process for the LSA will be
subject to the laws of the territory in which ShuttleUp is incorporated (India).
B) IF INDIAN LAW WERE THE APPLICABLE LAW TO DETERMINE WHETHER DR. GOH HAD
CAPACITY, DID SHUTTLEUP VALIDLY EXECUTE THE LAUNCH SERVICES AGREEMENT?

B.1 PART-TIME DIRECTORS CANNOT ENTER INTO AN AGREEMENT ON THEIR OWN
It is submitted that part time directors do not possess the capacity to enter into an agreement
by themselves and would require any such decision taken by them to be approved by the
Board of Directors
B.1 PART TIME DIRECTORS ARE DEEMED NON-EXECUTIVE UNDER THE INDIAN LAW
It is submitted that Dr Goh was a part of ShuttleUp in the capacity of a part-time director,
which is not defined in Indian law, and therefore would only be deemed a non-executive
director of ShuttleUp. The position of Dr Goh does not fall under the definition of either of
the types of executive directors, i.e, Managing Director [2(54)] 3or Whole-Time Director
[2(94)4], therefore can only be construed as a non-executive director. A non-executive
director is not responsible for running the day-to-day operations of a company and only
monitors the same.5
Moreover, under the ambit of non-executive directors, Dr Goh cannot be termed as a nominee
director as those are nominated by financial institutions or other relevant parties 6. [149 (7)]
Therefore the only categorisation for Dr Goh would be as an independent director 7 [149 (6)]
Dr Goh was only appointed as a part-time director due to his expertise in the space and
satellite-based regime, and his role was purely advisory in nature rather than that of holding
execution-based day-to-day affairs, which fits the definition of independent directors
mentioned in the Companies Act, 2013.
A non-executive independent director shall not be kept above the Managerial Director of the
Company, especially when they did not see the day-to-day affairs of the company 8 [Rajinder
Singh v SEBI,]. It is pertinent to note that this distinction is made to highlight the fact that Dr
Goh did not possess the same authority to execute an agreement as Jeevs or Yulek.
B.2 LSA WAS VOIDABLE AT THE OPTION OF THE BOARD

Dr Goh would however, fall under the definition of “Key Managerial Person of ShuttleUp 9
[2(51)],”, which includes, (e) such other officer as may be prescribed; and upon construction
3
Companies Act, 2013, § 2 (54), Acts of Parliament, 2013 (India).
4
5
Pooja Ravinder Devidasani v. State of Maharashtra, [2015] 53 taxmann.com 434 (SC).
6
7
8
Rajinder Singh v. SEBI, Appeal No.360 of 2021.
9
of S 21 of the Companies Act, 201310, shall be held as a Key Managerial Person. This is
important to note as in the capacity of a Key Managerial Person, he could only enter into a
contract on behalf of the company subject to approval of the Board11.
It is submitted that without obtaining either the consent or approval of the Board, a contract
entered by Dr. Goh, Key Managerial Person, would be voidable at the option of the Board.
No director in his individual capacity and in the absence of the approval of the board or the
shareholders, as the case may be, would be empowered to execute an agreement on behalf of
the company. Since Dr. Goh did not hold any authority, agreements executed by him would
not be binding on ShuttleUp.
It is also contended that under the Indian Contract Act, contracts entered into due to consent
obtained out of misrepresentation would be voidable at the choice of the party whose consent
was so obtained12. While the substantial dealings of whether the submissions on
misrepresentation are valid would be dealt with separately as determined by the tribunal, it is
worth pointing out that even under Indian law, ShuttleUp’s claim for misrepresentation
would not be time barred. Indian law, as does English law, recognise that the accrual of cause
of action can be different from the date of entering into the contract. Indian law even goes
further to hold that the accrual of cause of action would not begin at the first instance or
discovery or correspondence but rather can also be construed as the last date of discovery or
correspondence.13
Since it is claimed that ShuttleUp was induced by the misrepresentations made by R2 Detour,
any agreement entered between the parties would be voidable at the option of the Board, an
option which was exercised on 6th of December, 2021, once the claims for misrepresentation
were substantiated. The intention of the Companies Act, 2013, to prevent unilateral,
unauthorised use of the powers of a director is evident from provisions such as Section
188(3)14, which mandates that even in related-party transactions, where the two companies
share a link such as common director or owner or key managerial person, the Board must
approve such transaction for it to be held valid. Therefore, any contract entered by any person
not authorised
10
Companies Act, 2013, § 21, Acts of Parliament, 2013 (India).
11
Messers Paras Traders and Ors. v. Fullerton Indian Credit Company Ltd., SA/112/2020.
12
Indian Contracts Act, 1872, § 19, Acts of Parliament, 1872 (India).
13
M/s Shakti Bhog Food Industries v. The Central Bank of India, CIVIL APPEAL NO. 2514 OF 2020.
14
B.3 CONTRACT WAS UNCONSCIONABLE
It is submitted that once it has been has been established that R2 Detour was in a position to
dominate the will of ShuttleUp and the LSA appears to be unconscionable, the burden of
proving that such contract was not induced by undue influence shall be upon the person in a
position to dominate the will of the other. Unconscionability, in relation to contracts, is
absence of a meaningful choice on the part of one of the parties to avoid the contractual terms
which unreasonably favour one party against the other party. Whether a meaningful choice is
present in a particular case can only be determined by consideration of all the circumstances
surrounding the transaction15.. A policy embodied in the equity unconscionability doctrine, is
that bargaining naughtiness, once it reaches a certain level, ought to avail the practitioner
naught16.
If a contract is stigmatised as 'unfair', it may be unfair by reason of the unfair manner in

which it was brought into existence; a contract induced by undue influence is unfair in this
sense and called 'procedural unfairness'17.
Procedural unfairness is determined by ascertaining whether there is unfairness in the manner

in which the terms of the contract are arrived at or are actually entered into by the parties, or
in the circumstances relating to the events immediately before the entering into the contract,
or in the conduct of the parties, their relative position, or literary knowledge, or whether one
party had imposed standard terms on the other or whether the terms were not negotiated18.
Therefore, a contract or a term is procedurally unfair if it has resulted in an unjust advantage

or unjust disadvantage to one party on account of the conduct of the other party, or the
manner in which or the circumstances under which the contract has been entered into or the
term thereof has been arrived at by the parties. Moreover, unjust advantage is defined as the
benefit or enrichment achieved via unlawful or unrighteous methods19.
After approving the heads of the agreement, Jeevs Patel received the final draft of LSA on
November 4, 2014, the same day that he fell sick, hence rendering him unable to review the
contents of the agreement, which can be seen from the fact that he did not even acknowledge
the receipt of the mail.
15
199TH LAW COMMISSION REPORT (LAW COMMISSION OF INDIA) | (2006).
16
Arthur Allen Leff, Asst. Prof. Washington University Law School, 'Unconscionability and the Code - The
Emperor's New Clause'. (1967) 115 UNIVERSITY OF PENNSYLVANIA LAW REVIEW, P 539.
17
Hart v. O'Connor, 1985 A.C. 1000, ¶ 1017-1018.
18
Supra at 15.
19
Ganesh Narayan Nagarkar v. Vishnu Ramchandra Saraf, (1908)ILR31BOM37.
Moreover, R2 Detour deprived ShuttleUp of a meaningful choice by presssurising ShuttleUp
into signing the agreement in the absence of their two whole-time directors, by threatening to
pull out if the agreement is signed. The scope of bargaining, including asking for extra time,
was completely removed, once they threatened to pull out of the agreement despite being
aware of the special circumstances that existed.
The displeasure in the manner in which the LSA was executed was explicitly mentioned by
both Dr. Goh and Jeevs Patel. Moreover, it was from this unfair execution that R2 Detout
enriched itself by obtaining the payment installment of the contract, thereby satisfying all the
element of unconscionability. Even if it is held that the agreement in itself was conscionable
and legally sound, if the manner in which the consent of both parties was obtained is unfair,
then that soundness and validity hold no value.
ISSUE -II- WHETHER MORBUS CAPITAL IS A PARTY TO THE ARBITRATION AGREEMENT.
2.1 ENGLISH LAW DOES NOT ALLOW BINDING NON-SIGNATORIES TO AN ARBITRATION
WITHOUT EXPRESS CONSENT AND INTENT.
It is submitted that the inclusion of non-signatories in an arbitration agreement is expressly

barred in English law, i.e, Arbitration Act 1996 and other applicable laws. This is further
substantiated in two facets, 2.1.1 The Arbitration agreement is governed by English law; 2.1.2
Application of group of companies is expressly barred; and 2.1.3 Express mention is required
to bind a non-signatory
2.1.1. The Arbitration agreement is governed by English law

It is submitted that, where the law applicable to the arbitration agreement is not specified, a
choice of governing law for the contract will generally apply to an arbitration agreement that
forms part of the contract.20 Clause 24 of the LSA states - This Agreement and any non-
contractual obligations arising out of or in connection with it are governed by, and shall be
construed in accordance with, English Law. Moreover, Clause 25 of the LSA also mentions
that, “….The seat, or legal place, of the arbitration shall be London, England.”
Even if a contract contains no choice of the law that is intended to govern the contract or the
arbitration agreement within it, the validity and scope of the arbitration agreement is
governed by the law of the chosen seat of arbitration, as the law with which the dispute
resolution clause is most closely connected 21. Since in the L.S.A., the law governing the
contract and the seat of the arbitration, both have been expressly mentioned to be English law
and London, England, respectively, there arises no question of conflict of which law would
apply, even in the absence of a clause mentioning the law governing the arbitration
agreement.
2.1.2. Application of group of companies is expressly barred in English Law

It is submitted that the "group of companies" theory states, in basic words, that a non-
signatory may be bound by an arbitration agreement if it is a member of the same group of
companies as the signatory and all of the arbitration agreement's parties mutually intend that
the non-signatory be bound by it22 (DOW Chemicals). The mere presence of an affiliate
20
Enka Insaat Ve Sanayi AS v. OOO Insurance Company Chubb, [2020] UKSC 38, ¶ 170.
21
Kebab – Ji SAL v. Kout Food Group, [2021] UKSC 48.
22
Dow Chemical Co. v. United States, 476 U.S. 227 (1986).
relationship between a signatory and a non-signatory cannot be used as a foundation for
consent.23
However, it is submitted that the group of companies' doctrine has no scope of application
under English law and the general language of the contract is of utmost importance 24. The
court further elaborated that even if it is established that the companies in question do form a
‘group’ in a general sense and the contract still only holds one or a subset of that group to be
liable, the obvious conclusion does not arise that the entire group shall be held liable for the
claim. In the present case, the LSA was specifically formed and executed between R2 Detour
and ShuttleUp with no mention of liability extending to Morbus Capital. The general
interpretation of the agreement would deem it to be an exclusive commercial agreement
between two companies with both agreeing to have obligations towards the other.
It is submitted that it is axiomatic at the time of determining when a question of this sort it is
a most useful to ask not just whether R2 Detour contracted with and had obligations to both
ShuttleUp and Morbus Capital but also to ask whether Morbus Capital intended to contract
with and have obligations to R2 Detour 25 It must also be determined whether it was Morbus
Capital’s intention to assume liability to R2 Detour. On the face of the agreement, it cannot be
established that such intention is apparent on either party.
2.1.3. Express mention is required.

The Contracts (Right of third-party acts) 1999 allows for a person or entity not party to a
contract to enjoy the same treatment as a party to the contract and this extends to arbitration
26
agreements as well. Section 8 (a) of the act states "Where – a right under section 1 to
enforce a term ("the substantive term") is subject to a term providing for the submission of
disputes to arbitration ("the arbitration agreement"), the third party shall be treated for the
purposes of that Act as a party to the arbitration agreement as regards disputes between
himself and the promisor relating to the enforcement of the substantive term by the third
party."
23
Dallah Real Estate and Tourism Holding Company v. The Ministry of Religious Affairs, Government of
Pakistan, [2010] UKSC 46, ¶140.
24
Peterson Farms v. C & M Farming Limited & Anr., [2003] EWHC 2298.
25
Supra at 5, ¶ 32.
26
The Contracts (Right of third-party) Act, 1999, § 8 (a), Acts of Parliament, 1999 (United Kingdom).
The intent behind introducing such a clause was done as the provisions of the Arbitration Act
of 1996, by their literal interpretation, leave no scope for the inclusion of third parties who
were not part of the contract. Section 8 ensures that, where appropriate, the provisions of the
Arbitration Act 1996 apply in relation to third party rights under this Act. 27 Without this
section, the main provisions of the Arbitration Act 1996 would not apply because a third party
is not a party to the arbitration agreement between the promisor and the promisee 28. (but find
these notes, don’t cite the cases)
Moreover, the legislation specifically mentions that for such a provision to apply, there must
be express intent of both the parties, with express identification of the non-signatory party by
name, as a member of a class or as answering a particular description 29[1(3) 1999 act)]. If the
terms of the contract confer a benefit on the third party, which does not exist in the present
L.S.A., but on a proper construction of the contract, it appears that the parties did not intend
the term to be enforceable by the third party, the third party is still barred from becoming a
party to the arbitration 30[1(2) 1999].
The L.S.A. contains no mention of Morbus Capital and no indication that the financing
entities of either party are conferred with any rights or liabilities that can be claimed by either
party to the contract or the third party. Furthermore, the intent of the legislation regarding the
scope of the arbitration act is also abundantly clear as it does not envision a third party being
made a party to the arbitration.
It is also pointed out that the contention that it can be established by way of conduct of both
parties that they intended to make Morbus Capital a party bearing rights and obligations holds
no merit as the conduct was a contractual mandate, not free will of the parties to establish
intention
It is submitted that the fact that Tania Vaidya was CC’ed on all major correspondence
between ShuttleUp and R2 Detour, cannot establish the conduct required to bind a non-
signatory to an arbitration agreement. While under normal circumstances being a part of all
pre-contractual negotiations and the correspondences, a court of law could reasonably hold
27
The Lord Chancellor's Department issued Explanatory Notes which were made available to members of
Parliament and peers before the debates which in respect of Section 8 contained the following advice: "
28
Nisshin Shipping Co. Ltd., v. Cleves & Co. Ltd. and Ors., [2003] EWHC 2602, ¶ 36.
29
Arbitration Act, 1996, § 1 (3), Acts of Parliament, 1996 (United Kingdom).
30
that this conduct shows the intent of the parties to be held liable to each other and, therefore,
be bound by the arbitration agreement.
However, in the current case, all such conduct on both ShuttleUp and R2 Detour’s part to
involve Morbus Capital in all their correspondence was contractually mandated.(find case
law- contractual mandate, compulsion, does not establish behaviour). Clause 22 of the
agreement reads as follows- ‘....... R2 Detour shall provide to any ShuttleUp’s lenders or
Financing Entities any information that such Financing Entity reasonably requires and shall
reasonably cooperate with such Financing Entity and ShuttleUp to implement such
financing’.
It is by virtue of this clause, that R2 Detour involved Morbus Capital in all the
correspondence and it cannot reasonably be construed that this shows intention on either side,
to be contractually obligated to the other. This is substantiated by the hypothetical scenario,
that had R2 Detour failed to comply with this clause, it would be deemed to be a breach of
contract against ShuttleUp and not Morbus Capital, or any other financing entity, and they
would not have any right to bring a claim of action against R2 Detour.
2.2 SHUTTLEUP’S LIABILITY CANNOT BE TRANSFERRED TO MORBUS

It is submitted that ShuttleUp is a separate legal entity, with distinct owners from Morbus
Capital, that conducted its operations independently and with no outside control and
influence. Being a separate legal entity from Morbus Capital, it cannot have any liability
transferred to it. This is substantiated in two facets. 2.2.1 English Law follows the principle
of separate legal entity; and 2.2.2 A financing entity is not party to the contract.
2.2.1 English Law follows the principle of separate legal persons
It is submitted that English law follows the principle of separate legal personality, which
means that a company is considered a separate legal entity from its shareholders and other
affiliated companies. This principle was established in the landmark case of Salomon v A
Salomon & Co Ltd 31(1897), where the House of Lords held that a company is a distinct legal
person with its own rights and liabilities. Therefore, each company within a group is
31
Salomon v. A Salomon & Co Ltd., [1896] UKHL.
considered a separate legal entity and cannot be held responsible for the actions of another
company within the group.
English courts further extend this doctrine to hold that a parent company, being a separate
legal entity, shall be absolved of liabilities incurred by its subsidiary. If the group of
companies doctrine were to be applied, it would mean that the liabilities of one company
within the group could be attributed to the other companies, undermining the principle of
limited liability. This principle was highlighted in Chandler v Cape plc 32 the court held that
the parent company was a separate legal entity and could not be held responsible for the
actions of its subsidiary. In the instant case, it cannot be said that ShuttleUp is a subsidiary of
Morbus Capital, a fact which is evident from the knowledge available. Hence it is even more
outside th
e scope of the Group of Companies doctrine.
2.2.2 A financing entity is not a party to the contract

It is clearly mentioned that financing entities would not be considered in the ambit of Related
Third Parties, which is clearly defined in the LSA as (a) the Parties’ respective contractors
and subcontractors involved in the performance of this Agreement and their respective
directors, officers, employees, and agents; (b) the Parties’ respective directors, officers,
employees, and agents; and (c) any entity or person with any legal or beneficial interest in
the CubeSats or the ground support equipment. For the avoidance of doubt, the Related
Third Parties of ShuttleUp shall be deemed to include the manufacturer of the Dispenser but
shall not include any investor or financier of ShuttleUp. This clearly shows that both parties
did not intend to treat Morbus Capital as even a related third party, nevertheless a party to any
future arbitrations.
By the mere fact that Morbus Capital was financing ShuttleUp’s operations, it cannot be said
to be a party to the arbitration33. The UK Supreme Court has further gone on to state that even
if it is established that the very existence of an entity was completely dependent on the
financing entity and by conduct, involvement could also be established, it still would not be
enough material to justify finding that there was a common intention that the financing entity
should be bound by the arbitration agreement. By the plain reading of the judgment, it can be
32
Chandler v. Cape PLC, [2012] EWCA Civ 525.
33
Supra at 4.
ascertained that unless and until it is explicitly mentioned in the contract, tribunals should be
extremely careful and positively reluctant to bind a non-signatory to an arbitration 34.
In the present case, the relationship between Morbus Capital and ShuttleUp was strictly that
of a financing entity and the loanee. The guidance and assistance provided by Tania Vaidya to
Jeevs Patel were strictly in a personal capacity owing to Taniya being Jeev’s Alumni.
Moreover, if the tribunal were to hold Morbus Capital as a party to the arbitration agreement,
it would have to be on the principle that all financing entities can be made parties to an
arbitration agreement, something that goes against established jurisprudence and
reasonableness. ShuttleUp was an entirely independent entity and even by conduct, it cannot
be expressly stated that all parties possessed a common intention to be bound by the
arbitration. Even if the fact of independence and way of conduct is negated, it still would not
suffice to deem Morbus Capital as a party to the arbitration.
2.3 MORBUS CAPITAL IS NOT OBLIGATED TO TAKE PART IN THE ARBITRATION
PROCEEDINGS
It is submitted that the Arbitration Act 1996, draws a distinction between someone who
participates in arbitration proceedings and someone who does not, i.e, the objector. Section
72(1)35 states that, “A person alleged to be a party to arbitral proceedings but who takes no
part in the proceedings may question—(a)whether there is a valid arbitration agreement,
(b)whether the tribunal is properly constituted, or (c)what matters have been submitted to
arbitration in accordance with the arbitration agreement; by proceedings in the court for a
declaration or injunction or other appropriate relief”.
While a party’s ability to challenge an award shall be subject to time limits prescribed in the
act or in the agreement, the objector is entitled to await an application to enforce the award
before raising any objections to the tribunal’s jurisdiction 36. A respondent who takes the view
that the arbitral tribunal lacks jurisdiction may opt not to participate in the arbitration itself.
Thus, there is no legal obligation on the non-signatory to entertain the proceedings even if the
arbitral tribunal holds them to be a part of the proceeding. This principle was cemented by the
United Kingdom Supreme Court in the Dallah 37Case, wherein even after the arbitral tribunal
34
Supra at 4.
35
36
London Steam Owners’ Mutual Insurance Association Ltd. v. M/T ‘Prestige’, [2022] EWCA Civ 238, ¶ 117 –
119.
37
Supra at 4.
held that a non-signatory was a party to the arbitration, the right to abstain from the
proceedings for the third party was upheld.
In the present case, even if the tribunal holds that Morbus Capital would become a party to
the arbitration, either by conduct or by ascertaining common intent, it would not compel
Morbus Capital to be involved in the proceedings whilst reserving the right to challenge the
jurisdiction when the claim for enforcement is applied before a court.38
ISSUE III: WHETHER THE RESPONDENTS’ CLAIMS ARE BARRED BY THE RELEVANT
LIMITATION PERIOD
3.1 The limitation period does not apply from the date of the signing of the agreement
It is submitted that in the present case, ShuttleUp is excluded from maintaining a claim for
misrepresentation due to the limitation period prescribed under section 2 39 of the Limitation
Act, 1980. The exception 40lies in section 32(1)(b) which states that- ‘where in the case of
any action for which a period of limitation is prescribed in this Act, …any fact relevant to the
plaintiff's right of action has been deliberately concealed from him by the defendant,…the
period of limitation shall not begin to run until the plaintiff has discovered the fraud,
concealment or mistake (as the case may be) or could with reasonable diligence have
discovered it.’. Section 3241 deprives a defendant of a limitation defence…where he takes
active steps to conceal his own breach of duty after he has become aware of it42.
It is contended that since R2 Detour actively concealed details of its 9th and 10th launch and
the failure and setbacks they encountered during these launches, and failed to disclose that
they did not enjoy a good market reputation. This active concealment removes the bar of
section 2 of the 1980 act. Where the requirement is that the fact must be "deliberately
concealed". It is plain that, for concealment to be deliberate, the defendant must have
considered whether to inform the claimant of the fact and decided not to. The fact which he
decides not to disclose either must be one which is his duty to disclose, or must at least be
one which he would ordinarily have disclosed in the normal course of his relationship with
38
Supra at 16.
39
Limitation Act, 1980, § 2, Acts of Parliament, 1980 (United Kingdom).
40
Limitation Act, 1980, § 3 (1) (b), Acts of Parliament, 1980 (United Kingdom).
41
Limitation Act, 1980, § 32, Acts of Parliament, 1980 (United Kingdom).
42
Cave v. Robinson Jarvis & Rolf, [2002] UKHL 18.
the claimant, but in the case of which he consciously decided to depart from what he would
normally have done and to keep quiet about it43."
Furthermore, the test for active concealment was cemented in the Kriti Palm case 44 to
consider three major questions, which are put forth as follows- a) Was R2 Detour under a
duty to ShuttleUp to reveal the details of all the pre-negotiation representations? b) Did R2
Detour, knowing of that duty, decide not to reveal the details of the pre-negotiation
representations? C) Were the pre-negotiational representations relevant to any, and if so,
which of the rights of action asserted by ShuttleUp are otherwise statute-barred?
a) Was R2 Detour under a duty to ShuttleUp to reveal the details of all the pre-
negotiation representations?
At the time of making the representations, it is the duty of the representor to ensure the
veracity of all the representations made by him. Moreover, if the representor has active
knowledge() that the representations made by him are not correct, or only makes partial
representation actively excluding the part which would be to its detriment, then the same
shall be construed as active concealment(). Furthermore, active concealment entails
continuing duty, i.e, it is the defendant's duty to correct or qualify false representations made
by them, and such circumstances enable the claimant to side-step the limitation period. 45
In the present case, applying the standard proof of balance of probabilities 46, it can be
established that having faced failures during the launch of 2012, and similar issues in the
launch of 2014(), it was well within the ambit of knowledge of R2 Detour that it had not
completed ten successful launches- both by the virtue of the launch of 2012 being a failure
and the tenth launch being slated after the representation was made. Moreover, having under-
delivered to their previous clients, they were aware that their market reputation has also
suffered. There existed a continuing duty upon R2 Detour to correct or qualify false
misrepresentations, which they did not.
b) Did R2 Detour, knowing of that duty, decide not to reveal the details of the pre-
negotiational representations?
It is submitted that the claimant need not concentrate on the allegedly concealed facts but can
instead concentrate on the commission of the breach of duty. If the claimant can show that the
43
Williams v. Fanshaw Porter & Hazelhurst, [2004] EWCA] Civ 157, ¶ 14.
44
AIC Ltd., v. ITS Testing Services (UK) Ltd., [2006] EWCA Civ 1601.
45
Supra at 25.
46
Supra at 24.
defendant knew he was committing a breach of duty, or intended to commit the breach of
duty; each would constitute, a deliberate commission of the breach for bringing a case within
section 32(1)(b)47
It is submitted that R2 Detour was aware of its duty to disclose all the relevant information as
it is a company which has been in business for such a long time, has entered into multiple
agreements and had a fully equipped legal team.() The pre-negotiational representations were
facts relevant to ShuttleUp’s right of action as they were specifically portrayed by R2 Detour
to be the facts which ShuttleUp was intended to rely upon. Furthermore, the details of such
representations were deliberately concealed by R2 Detour with the intention of concealing the
fact or facts in question.48 Therefore, it can be construed that R2 Detour knowingly decided
not to reveal the details to ShuttleUp.
c) Were the pre-negotiational representations relevant to any and if so which of the rights
of action asserted by ShuttleUp that are otherwise statute-barred?
The pre-negotiational representations made by R2 Detour were critical to form the false-
image which then induced ShuttleUp to enter into an agreement. This shall be dealt separately
in the subsequent issue, however, for the sake of brevity, it is hereby clarified that ShuttleUp
relied on the pre-negotiational representations made by R2 Detour and that the same were
actively present in the mind of ShuttleUp at the time of entering into the contract. Therefore,
the claim of misrepresentation which is otherwise statutorily-barred are the rights of action
asserted by ShuttleUp.
From the satisfaction of the above three tests, R2 Detour actively concealed material facts
related to representations, and therefore, it can be concluded that ShuttleUp’s claim of
misrepresentation enjoys the exception enshrined under 32(1)(b), and is therefore, not barred
by section 2 of the 1980 act. For the sake of clarity, it is hereby mentioned that the
respondents are not contending that their claim for misrepresentation is free from limitation.
However, the provisions of the limitation act shall only apply once the active concealments
have been revealed to the respondents and they have sufficient material to present a claim for
misrepresentation.
47
Limitation Act, 1980, § 32 (1) (b), Acts of Parliament, 1980 (United Kingdom).
48
Supra at 24.
3.2 Limitation period begins from the date of accrual of the cause of action
It is submitted that cause of action is defined as from earlier times to mean every fact which
is material to be proved to entitle the plaintiff/ claimant to succeed and every fact which the
defendant would have a right to traverse 49”. A cause of action is simply a factual situation 50,
the existence of which entitles one person to obtain from the court a remedy against another
person51.
In order to substantiate the accrual of cause of action, firstly, one must first establish that
when was sufficient knowledge gathered to enable a claim of misrepresentation; secondly,
incurring future risk is not enough to give rise to a cause of action and thirdly, that a cause of
action does not arise until the claimant suffers damage52.
3.2.1 Sufficient material should be available to enable a claim

It is submitted that the discovery of all facts relevant to the representations, that is, the day
that the misrepresentee realizes that he has sufficient material to claim misrepresentation, is
the date from which the limitation period of misrepresentation is applicable upon him. A
claimant does not `discover' a fraud until he has `material sufficient to enable him properly to
plead it53.
The fact that the claimant's agent could, with reasonable diligence, have discovered the
alleged deceit does not start the limitation period running 54. If s.32(1) did involve a statutory
assumption that the claimant was on notice of something meriting investigation, it would
make it very difficult for many claimants to satisfy the s.32(1) test. Further, the application of
s.32(1) involves an enquiry into whether the claimant was on notice of something which
merited investigation, with the court's holding that in the absence of such a “trigger”, the
claimant could not be said to have failed to exercise reasonable diligence in its
investigations.55
It is also submitted that the phrase "the plaintiff has discovered the fraud" in section 32(1)
refers to knowledge of the precise deceit which the claimant alleges had been perpetrated on
him56. It follows that knowledge of fraud in a more general sense is not enough to start the
49
Cooke v. Gill, (1873) LR 8 CP 107, ¶ 116.
50
Latang v. Cooper, [1965] 1 QB 232 CA, ¶ 242 -243.
51
Steamship Mutual Underwriting Association v. Trollop & Colls, [1986] 33 BLR 77, ¶ 92.
52
Spice Girls Ltd v. Aprilia World Service BV, [2002] EWCA Civ 15.
53
Law Society v. Sephton, [2005] QB 1013, ¶ 110.
54
Allison v. Horner, [2014] EWCA Civ 117.
55
Granville Technology Group Ltd & Ors. v. Infineon Technologies AG & Anor., [2020] EWHC 415.
56
Barnstaple Boat Co Ltd v. Jones, [200]7 EWCA Civ 727
limitation period running under section 32(1). From the construction of section 32(1) that
there must be an assumption that the claimant desires to discover whether or not there had
been a fraud committed on him. Not making such an assumption would rob the word "could"
in the section of much of its significance. Moreover, the concept of "reasonable diligence"
carried with it the notion of a desire to know and, indeed, to investigate57.
To negate the contention that ShuttleUp possessed reasonable diligence or that they ‘should’
have discovered the truth behind the representations made, it is asserted that ShuttleUp was
not obligated to undertake extraordinary measures to discover them 58.The test suggested to
determine whether the misrepresentee could have discovered the falsity of the representations
is how a person carrying on a business of the relevant kind would act if he had adequate but
not unlimited staff and resources and were motivated by a reasonable but not excessive sense
of urgency.
ShuttleUp’s directors endeavoured to gather as much information as they could to ascertain

the veracity of R2 Detour’s claims and despite finding anomalies, ShuttleUp, at that point in
time did not believe that they had sufficient knowledge to materialise the claim of
misrepresentation.
Moreover, in order to be able to plead a claim properly: a) any professional obligations which
attach to making allegations of a particular kind must be satisfied; b) the pleaded case must
be one which would not be struck out on the basis that it has no sufficient evidential basis or
was not sufficiently arguable; and c) he pleading must be one capable of being supported by
a statement of Truth.59
In order to satisfy the three conditions laid down, ShuttleUp would have had to spend time
and effort which it could not dedicate a lot of resources to as it could not afford to expend any
staff on the same. Over periods of time, it accrued more and more material to substantiate its
claim and only then could it confidently bring forth a claim of misrepresentation. Therefore,
it was only on 5th July, 2021 that ShuttleUp used the term ‘misrepresentation’ in its
correspondence with R2 Detour. This exhibits that on this date ShuttleUp made the claim for
misrepresentation since it believed that it accrued the cause of action necessary to bring a
claim. It was only after consultation with the legal team and subsequent attempts at
57
Supra at 34.
58
Paragon Finance v. DB Thackerar, [1998] EWCA Civ 1249.
59
OT Computers v. Infenion Technologies and Micron Europe Ltd., [2021] EWCA Civ 501.
negotiation and amicable resolutions that delayed ShuttleUp from bringing a claim for
misrepresentation.
Therefore, ShuttleUp’s claims of misrepresentation are not barred by limitation beginning on

the 13th November, 2014. Even after discovering some documents and some articles
asserting that R2 Detour had made many misrepresentations ShuttleUp further investigated to
find out as much as they could about the truth of the representations.
3.2.2 Cause of action arises when actual damage occurs and not a possibility of
incurring a future risk
Actual damage is defined as any detriment, liability or loss capable of assessment in
monetary terms and it includes liabilities which may arise on a contingency, particularly a
contingency over which the plaintiff has no control; things like loss of earning capacity, loss
of a chance or bargain, loss of profit, losses incurred from onerous provisions or covenants in
leases. The term 'actual' is really used in contrast to 'presumed' or 'assumed'. Whereas damage
is presumed in trespass and libel, it is not presumed in negligence and has to be proved60.
It is submitted that if a claimant suffers no loss as result of misrepresentation but merely a

risk of loss or a contingent liability as a result of any subsequent misrepresentation, the cause
of action does not arise in that instance. The first step in answering this question of when a
claimant "first sustains a measurable relevant loss" involves identifying "the relevant measure
of loss", which in turn involves identifying the defendants scope of duty 61
If a party enters into a contract which exposes him or her to a contingent loss or liability, the
party sustains no actual damage until the contingency is fulfilled and the loss becomes actual;
until that happens, the loss is prospective and may never be incurred.(law society) It is unjust
and unreasonable to expect the claimant to commence proceedings before the contingency is
fulfilled. If an action is commenced before that date, it will fail if the events so transpire that
it becomes clear that no loss is, or will be, incurred 62. Mere entry into the transaction under
which "Financial loss is possible, but not certain" is not sufficient detriment and will not
constitute as damage.63
It is submitted that even when there was suspicion on ShuttleUp’s end that they might incur
losses that may arise out of the representations which were turning out to be untrue, this
60
Forster v. Outred & Co., [1982] 1 W.L.R. 86.
61
Nykredit Mortgage Bank PLC v. Edward Erdman Group Ltd, [1997] UKHL 53.
62
Wardley Australia Limited v. State of Western Australia, (1992) 175 CLR 514.
63
Supra at 42, ¶ 73.
suspicion in itself could not give rise to a cause of action. Only when it was clear that loss
had occurred due to the misrepresentations of R2 Detour could any claim for
misrepresentation be made out. It was only on 5th July, 2021 that ShuttleUp used the term
‘misrepresentation’ in its correspondence with R2 Detour, when they had realized that they
have been fraudulently misrepresented and thus, have suffered material loss as a result of
such misrepresentation. Therefore, the cause of action arose on 5th July, 2021, i.e, within the
limitation period.
ISSUE 4. IN THE EVENT THAT THE RESPONDENTS’ CLAIMS ARE NOT TIME-BARRED,
WHETHER THE CLAIMANT IS LIABLE FOR MISREPRESENTATION?
Misrepresentation is an act of making an untrue statement, written or oral, performed by one

party, done to induce the other party who, relying upon such inducement, enters into the
contract and thereby causes loss to the induced party64.
Section 2(1) of the limitation Act provides, “Where a person has entered into a contract after
a misrepresentation has been made to him by another party thereto and as a result thereof he
has suffered loss, then, if the person making the misrepresentation would be liable to
damages in respect thereof had the misrepresentation been made fraudulently, that person
shall be so liable notwithstanding that the misrepresentation was not made fraudulently,
unless he proves that he had reasonable ground to believe and did believe up to the time the
contract was made that the facts represented were true.”
The elements required for establishing fraudulent misrepresentation are submitted below.
These include (a) false statement made:
(i) knowingly, or
(ii) without belief in its truth, or
(iii) recklessly, careless about whether it be true or false65 –
(d). That the fraudulent misrepresentation was made with the intention that the plaintiff rely
on it, (e) That the plaintiff did rely on the fraudulent misrepresentation, 66That the plaintiff
suffered harm as a result of the fraudulent misrepresentation and (d) an absence, at the time
the contract was made, of a belief or reasonable grounds therefor in the truth of the facts
64
Supra at 33.
65
Derry v. Peek, [1889] UKHL 1.
66
Supra at 25.
represented67. It is submitted that R2 Detour made a number of misrepresentations which
induced ShuttleUp to enter into the contract and caused it to suffer damage, therefore making
R2 Detour liable for misrepresentation.
4.1 EXISTENCE OF FALSE STATEMENT OF FACTS

In the first facet of the argument, it is humbly submitted that all the major representations
made by claimant in their presentation addressed to ShuttleUp which it relied upon were
unequivocally false. It is further submitted that all the types of representations, i.e, implicit or
explicit or by conduct, must be considered as material representations by R2 Detour. Any
representation, whether expressed in words, implied from words, or implied from conduct, is
a representation which ultimately – directly or indirectly – involves words.
That is because there must be some articulation of the representation; and that is done by
stating it in words. With an express representation the articulation is direct, it is obviously the
express words which are used. With an implied representation, the relevant representation has
to be articulated indirectly, either from being spelled out from words or from being spelled
out from conduct (or both). (Leeds v Barclays)
It is therefore necessary, in analyzing a claim for misrepresentation, to identify the false

statement for which the defendant is responsible, and which was communicated to the
representee". The point is that in each case the court must be satisfied that there is a
representation, articulated in words, which forms the basis of the cause of action. Cartwright
puts it, at paragraph 3-06 of (Misrepresentation, Mistake and Non-Disclosure (5th edn,
2019):)
Moreover, the disclaimer in the said presentation that regarding the ‘Forward Looking
Statements’ does not absolve the claimant from any liability arising out of such
misrepresentations; and it is further submitted that the claimant that even after being aware
that the representations made by the claimant were false, the claimant continued to make such
representations to ShuttleUp, and the same would be substantiated by the following
contentions:
4.1.1 All representations made during the pre-negotiation stage were false and
fraudulent in nature
a. Highly experienced, conducted 10 successful launches
67
Supra at 33.
It is contended that the claimant made false statements in asserting their high level of
experience, having conducted 10 successful launches for picosatellites, and being well-placed
to cater to the needs of ShuttleUp. These statements were made with the purpose of inducing
ShuttleUp into entering into the contract. However, it is also argued that these claims are
unfounded as evidenced by the following.
Firstly, it is noted that the 10th launch was slated after the representation had been made, and
also after the execution of the LSA. An article published by Space UK News on December
17th, 2014, highlighted the delay faced in the 10th launch, which occurred more than a month
after the LSA had been executed. Therefore, the figure of successful launches claimed by R2
Detour is inaccurate.
Secondly, R2 Detour's claim of being a 'highly experienced' company in the launch service
sector was also misrepresented. It is pointed out that R2 Detour had faced a launch failure in
the year 2012, which resulted in significant media and client backlash. Furthermore, in the
year 2014, they faced a similar launch failure issue with Pictoverse. It is notable that these
issues were concealed from ShuttleUp during the negotiations, indicating that R2 Detour was
aware that the knowledge of such facts would adversely affect ShuttleUp's decision.68
https://hsfnotes.com/litigation/2021/03/19/high-court-finds-that-a-claimants-awareness-of-a-
representation-is-an-essential-prerequisite-to-a-claim-for-misrepresentation/ )
It is also submitted that the claim of R2 Detour of possessing a ‘good market reputation’ was
also misrepresented. This can be substantiated from the article dated 4th January 2015,
wherein it has been published that firstly, the customer satisfaction score for R2 Detour is
continuously deteriorating, i.e, it went from a score of 75% in 2013 to 66% in 2014.
Secondly, two consecutive launch failures, i.e, in 2012 and 2014 made R2 Detour receive
significant backlash from their clients and the media. The article clearly states that other
former clients of R2 Detour have been vocal about R2 Detour’s substandard performance.
For example Wired-Up, a UK telecoms player, commented on a recent Investor Relations call
that due to R2 Detour’s “inability to provide timely launch services”, they no longer approach
them as part of their tendering processes. Thus, it is established that the representations made
by the claimant regarding their good market reputation were also fabricated to induce
ShuttleUp into trusting them as suitable launch service providers.
b. global contact network

68
Leeds v. Barclays, [2021] EWHC 363 (Comm).
It is humbly contended that the contacts provided by Richard Ma, namely Alek Rebane
(Kolirbi Engineering, Singapore) and Sanjid (Suerella Architects) were both incompetent in
assisting ShuttleUp in the manufacturing and designing process of Picosattlelites. The
requirements highlighted by ShuttleUp were explicitly stated in the email conversation
between Jeeves Patel and Richard Ma, namely that the companies be based in the UK or US
and that they are highly experienced in the design and manufacturing of Picosatellites.
However, all contacts provided by Richard Ma on behalf of R2 Detour were neither based in
the UK or the US nor were they predominantly a part of the satellite industry.
It is pertinent to note that Alek Rebane was an engineer in the oil and gas industry and Sanjid
Suerella was primarily engaged in the designing of smart cities, with little experience in the
designing of Telecom satellites and no experience handling the satellites of Cubesat variety.
This indicates that the representation of R2 Detour that they possess a significant global
network of contacts that may be tapped to assist in manufacturing and assisting launch
services of Picosatellites specifically was also false.
The above-made contentions satisfy the test for fraud laid down 69 which states; Firstly, in
order to sustain an action in deceit, there must be proof of fraud and nothing short of that will
suffice. Secondly, fraud is proved when it is shown that a false representation has been made:
a) knowingly, b) without belief in its truth, or recklessly, careless whether it be true or false.
4.1.2 Addressed to counterparty

One of the essential elements of misrepresentation is that the representation must be made
from one party to the other party to induce that party to enter into the contract 70. It is humbly
submitted that the presentations made by R2 Detour were addressed directly to ShuttleUp, as
is evident from the wordings ‘Private and Confidential- Marketing Material’ mentioned on
the first slide.
Moreover, the second slide explicitly mentions that ‘This presentation (this “Presentation”)
relates to a proposed agreement between ShuttleUp and R2 Detour regarding the future
provision of launch services.’ Further, on the fifth slide, R2 Detour specifically mentions its
alternative proposal to ShuttleUp, keeping in mind ShuttleUp’s inexperience and the fact that
this was its first design and manufacturing process. From the aforementioned facts, it can be
firmly established that all the representations were addressed directly to ShuttleUp by
R2Detour.
69
Derry v. Peek, (1889) 14 App Cas 337.
70
Charan-Jyothi Ramamurthie Naidoo v. David Barton and Lucinda Jane Barton, [2023] EWHC 500 (Ch).
4.1.3 Continued misrepresentation
It is well-established that a representation, once made, is likely to have a continuing effect,
and if made for the purpose of an intended transaction, it will continue until the transaction is
completed or abandoned or the representation ceases to be operative on the mind of the
represented. In case the representor discovers that the representation was false when made or
has become false since, it is incumbent upon them to correct it. 71 (Court of Appeal ([2007] 2
Lloyd's Rep 449),28)(Change of Circumstances Brownlie v Campbell HL 1880)(Active
Concealment)(Spice Girls Limited v Aprilia World Service BV)
It is contended that R2Detour failed to disclose the failures in the 10th launch to ShuttleUp,
despite claiming to have conducted 10 successful launches for picosatellites. Furthermore,
R2Detour asserted that it had close connections with the personnel of the UK Space Agency,
while ShuttleUp received no response from the deputy chief executive of the Space Agency,
Heather Sharpstone, despite trying to establish a contact with her multiple times.
It is pertinent to note that R2 Detour had faced setbacks and delays in the 10th launch due to
regulatory issues, but failed to communicate the same to ShuttleUp. Furthermore, Heather
Sharpstone had retired from her position in 2016, but R2 Detour made no attempt to inform
ShuttleUp, thereby continuing the misrepresentation. Evidently, no attempts were made by
R2Detour to rectify these misrepresentations, which amounts to continued misrepresentation
on the part of the claimant and active concealment of represented facts which ShuttleUp had
relied upon while entering into the agreement.
4.2 INDUCEMENT AND RELIANCE- SHUTTLE UP RELIED ON FACTS PRESENTED TO IT BY R2

DETOUR AND WERE INDUCED72.
Another element of a cause of action in misrepresentation, inducement, is all about the causal
link between the conduct of the defendant and the conduct of the claimant.
If it is proved that the defendants, with a view to induce the plaintiff to enter a contract made
a statement to the plaintiff of such a nature as would be likely to induce a person to enter into
a contract, and it is proved that the plaintiff did enter into the contract, it is a fair inference of
fact that he was induced to do so by the statement 73. This contention will be substantiated in 3
facets:
71
Change of Circumstances Brownlie v. Campbell, HL 1880.
72
Supra at 49.
73
Smith v. Chadwick, (1884) 9 A.C. 187.
4.2.1 R2Detour had the intention to induce ShuttleUp into entering into the contract
It is submitted that inducement, in fact, is shown by proof that the representation was made
both with the object and with the result, of inducing the representee to alter his position.
Neither element suffices without the other. To prove the representer’s intention to produce the
effect comes to nothing unless the effect itself be proved; and to establish the result is idle,
unless it is shown that the representor actually, or presumptively, intended to bring it about 74.
(3rd Edn Spencer Brown). The requirement that a representation must be made with the
intention that it should be acted on by the other party applies equally under s 2(1) of the
Misrepresentation Act 196775as in a fraud case
In the present case, R2 Detour had the knowledge that these representations were being made
to persuade ShuttleUp to enter into the contract. These representations enabled ShuttleUp to
alter their position, i.e, rely upon these representations and enter into an agreement with R2
Detour, thereby constituting the intention of inducement.
4.2.2 claimant’s “awareness” of a representation is an essential prerequisite to a claim

for misrepresentation
It is submitted that to establish a case of misrepresentation, the alleging party must prove that
the alleged representations were actively present in their mind while entering into the
contract. ((leeds v barclays yaha bhi add)) Recognizing the difficult nature of ascertaining the
true motive of a party at the time of entering into the contract, the courts rely upon
establishing what the party would have done if the misrepresentations were absent ]. It is, of
course, notoriously difficult to prove a negative, plus there is a high evidential burden in any
case involving fraud. USE PARA NUMBER OF NEDERLANDSE)
Therefore, the relevant test is whether, ‘but for’ the representation, the representee would not
have entered into the contract. In addition, the court specifically clarified that it is sufficient
for a representee to establish that a misrepresentation was a factor in its decision to enter the
contract – importantly it need not be the only or the deciding factor 76. All that effectively
translates to there being a presumption that the fraudulent misrepresentation did induce the
claimant to enter the contract. Courts have further held that in the absence of a representation
which induced the other party to enter into the contract, the induced party would have
refrained from entering into such a contract.77
74
Nautamix BV v. Jenkins of Retford Ltd., [1975] FSR 385.
75
Misrepresentation Act, 1967, § 2, Acts of Parliament, 1967 (United Kingdom).
76
BV Nederlandse Industrie Van Eiprodukten v. Rembrandt Enterprises Inc., [2018] EWHC 1857 (Comm).
77
Raiffeisen Zentralbank v. The Royal Bank of Scotland, [2010] EWHC 1392 (Comm).
In the present case, it is undisputed that had ShuttleUp been aware of the true nature of R2
Detour’s unprofessional conduct, history as a failed launch service provider and diminishing
market reputation, they would not have entered into a contract.
4.2.3 It is not a requisite for the Representee to actually believe that a particular statement
was a misrepresentation to establish inducement
Netherlendse- 40. The later case of Zurich Insurance v Hayward [2017] AC 142 was the main
case relied on by the judge. Insurers had settled a personal injury case despite doubts about
the claimant's injuries. They later discovered that the claimant had fully recovered a year
before the settlement had been reached and brought an action in deceit claiming that he had
fraudulently misrepresented the extent of his injuries. The Court of Appeal held that the
insurers had not relied on the representation in reaching the settlement agreement because
they had always had their suspicions about the claim. The Supreme Court allowed the
insurers' appeal holding that the fact that the insurers had not wholly believed the claimant
did not preclude them from having been induced to reach the settlement by the claimant's
misrepresentation; they only had to prove that the misrepresentation had been "a material
cause" of their reaching the settlement. Since the judge had held that it was a material cause,
his order in their favour would be restored.
The question to be resolved was whether a representee had to show he believed the
representation to which the Supreme Court returned a negative answer and, in one sense, the
case is no more than an example of the principle set out in Edgington v Fitzmaurice78 that the
representee only has to show that the representation was "a cause" of his entering the relevant
contract.
Indeed, Lord Clarke of Stone-cum-Ebony (with whom Lord Neuberger PSC, Baroness Hale
DPSC and Lord Reed JSC agreed) cited Barton v Armstrong 79for that very proposition. More
importantly, for the present purpose, Lord Clarke relied on the existence of the presumption
of inducement and agreed with the insurers' submission that the presumption would have
little value if the representee had to show that he believed the misrepresentation. He cited the
relevant paragraph of Chitty (now para 7-041 of the 33rd edition) to the effect that it was a
fair inference of fact though not of law that the representee will have been influenced by the
representation:-
78
Edgington v. Fitzmaurice, 29 Ch D 459.
79
Barton v. Armstrong, UKPC 27.
"and the inference is particularly strong where the misrepresentation was fraudulent."
4.2.3 Inclusion of non-reliance statement during pre-negotiations cannot absolve the claimant
of the liability of misrepresentation
It is submitted that the disclaimer of forward-looking statements provided in the presentation

(C3) made by R2 Detour, which was addressed to ShuttleUp, and the existence of a non-
reliance clause(26)(b)by the claimant to absolve itself of liability for its representations,
80
constitutes an effort to circumvent the provisions of Section 3 of the 1967 Act. Such
circumvention cannot be permitted, as it would enable parties to make misleading or
exaggerated claims without accountability.
Section 3 was included with the purpose of preventing parties from being excluded from any
form of liability by the inclusion of a non-reliance clause. Any attempt to avoid responsibility
through a disclaimer or other means must be analyzed in light of the provisions of Section 3.
Consequently, while a disclaimer may serve as a cautionary note, it does not exempt the
claimant from liability for false or misleading statements made in the presentation, especially
when such statements are made with the purpose of inducing the other party to enter into a
contract81.
Section 3 of the 1967 Act must be interpreted so as to give effect to its evident policy to
prevent contracting parties from escaping from liability for misrepresentation unless it is
reasonable for them to do so. A term which negates a reliance which in fact existed is a term
which excludes a liability which the representor would otherwise be subject to by reason of
the misrepresentation. If that were wrong, it would mean that section 3 could always be
defeated by including an appropriate non-reliance clause in the contract, however
unreasonable that might be82.
Thus, any attempt from R2 Detour to be absolved from the liability arising out of its
representations by merely including the disclaimer of forward-looking statements hold no
merit.
The only scenario in which the circumvention of the section 3 of the 1976 act is permissible
is when the terms satisfy the requirement of reasonableness, which is to be satisfied by the
party claiming it to be reasonable, as stated in section 11 (1) of the Unfair Contract Terms Act
80
Misrepresentation Act, 1967, § 3, Acts of Parliament, 1967 (United Kingdom).
81
Supra at 59.
82
Government of Zanzibar v. British Aerospace (Lancaster House) Ltd., [2000] 1 WLR 2333.
1977 83namely that: “the term shall have been a fair and reasonable one to be included having
regard to the circumstances which were, or ought reasonably to have been, known to or in the
contemplation of the parties when the contract was made."
In the case of First tower, withholding one’s own knowledge of a serious problem and
requiring the other party to carry out their own due diligence and then meeting them with a
contractual estoppel was deemed as highly unreasonable. Moreover, such practice of
inclusion of a non-reliance clause, would render the whole exercise of making inquiries and
relying on answers thereto all but nugatory.
In the present case, by recognising the validity of clause 26(b), the entire presentation made
by R2 Detour and the reliance placed upon it by ShuttleUp would be deemed a worthless, and
more importantly, a positively misleading exercise which highlights the lack of reasonability
of the clause. Therefore, the FLS as well as clause 26(b) cannot be circumvented to exclude
R2 Detour from the liability of misrepresentation.
4.3 Loss
4.3.1 The loss of USD 400 million is a direct loss
It is submitted that the principle governing damages arising out of a fraudulent
misrepresentation are not dissimilar to the principle governing damages for breach of
contract84.
In fraud, the defendant has been guilty of a deliberate wrong by inducing the plaintiff to act to
his detriment. The object of damages is to compensate the plaintiff for all the loss he has
suffered, so far, again, as money can do it. The defendant is bound to make reparation for all
the actual damages directly flowing from the fraudulent inducement85.
The rule as to recoverability of damages for breach of contract was set out in Hadley v
Baxendale86 as per Alderson B at 354: "Where two parties have made a contract which one of
them has broken, the damages which the other party ought to receive in respect of such a
breach of contract should be such as may fairly and reasonably be considered either arising
naturally, i.e. according to the usual course of things, from such breach of contract itself, or
such as may reasonably be supposed to have been in the contemplation of both parties, at the
time they made the contract, as the probable result of the breach of it." It is contended that the
83
Unfair Contract Terms Act, 1967, § 11 (1), Acts of Parliament, 1967 (United Kingdom).
84
Clark v. Urguhart, 1930 A.C. 28, ¶ 67.
85
Doyle v. Olby, [1969] EWCA Civ 2.
86
Hadley v. Baxendale, (1854) 9 Ex 341, ¶ 354.
loss of USD 400 million to ShuttleUp falls under the first limb of Hadley, i.e arising naturally
according to the usual course of things.
Direct damage is that which flows naturally from the breach without other intervening cause
and independently of special circumstances87.The word "consequential" means "merely
consequential" and refers to something which is not the direct and natural result of the
breach88.The word "consequential" does not cover any loss which directly and naturally
resulted in the ordinary course of events 89. and a clause excluding "responsibility for
consequential damages" does not exclude liability for damage occurring naturally or directly,
i.e. falling within the first limb of Hadley v Baxendale90.
To satisfy the test of remoteness and include these losses in the first limb, it has to be
established that it has been in the reasonable contemplation of both the parties at the time of
making the contract, that such loss would occur as the probable result of the breach of it 91.
Moreover, additional costs of borrowing can also be claimed as direct losses92.
The USD 400 million credit-loan by Morbus Capital to ShuttleUp was given for the purpose
of developing six state-of-the-art picosatellites and ShuttleUp utilized all of it for that very
purpose. The reason that ShuttleUp could not launch these satellites was because of the
misrepresentations and the unprofessional behavior of R2 Detour and therefore those losses
are directly attributable to them.
Infrastructure banaya + Employees hire kiye + give description of what all money was spent
on it.
Moreover, through its due-diligence, R2 Detour was well aware that ShuttleUp had entered
into such a loan agreement, and that liability for the same will also be incurred in the event of
breach of contract or failure to execute the agreement. Therefore, it was also in the reasonable
contemplation of both the parties that such loss would occur as the probable result of the
breach of contract.
It is submitted that while a precise quantification of the distribution of USD 400 million
cannot be provided, all the funds were utilized for the production of picosatellites and
87
Saint Line Ltd v. Richardsons Westgarth and Co Ltd., [1940] 2 KB 99.
88
Millar's Machinery Co Ltd v. David Way and Son, (1935) 40 Com. Cas. 204 (CA).
89
Croudace Construction Limited v. Cawoods Concrete Products Ltd., [1978] 2 Lloyds Rep. 55.
90
Millar’s Machinery Co. Ltd. v. David Way and Son, CA 1935.
91
Supra at 67.
92
GB Gas Holdings Ltd v. Accenture (UK) Ltd., [2010] EWHC 2928 (Comm).
expenses for all the functions undertaken for the same shall be attributable to the production
of the six picosatellites. The difficulties of quantification do not prevent damage from being
said to have occurred93, since they are all attributable to the design and manufacturing of
picosatellites, R2 Detour is liable for all the damages arising out of them.
Hence, it is submitted that all the losses faced by ShuttleUp occur naturally or directly, i.e,
they fall within the first limb of Hadley v Baxendale 94, and therefore do not fall under the
clause excluding responsibility for consequential damages, i.e Clause 14(a).
4.3.2 The limited liability clause is unreasonable

It is submitted that for a limited liability clause to be enforceable, it must pass the test of
reasonability enumerated under Schedule 2 of the UCTA, 197795. The main test out of the
tests mentioned under Schedule 2 is that the parties must possess equal bargaining strength.
There are various ways to determine unequal bargaining strength, such as the experience of
the buyer and the seller96 access to solicitor to both the parties 97 and lack of alternative
contracting parties etc.(schedule 2)It should be noted that the determination of the bargaining
strength is fact sensitive and is done taking into account the circumstances at the time of
entering into the agreement.
In XYZ, the court held that lack of experience of one of the parties is determinative to deem
the limited liability clause unreasonable. In the instant case, ShuttleUp was a startup company
which had no prior experience of being part of an agreement of a similar nature and R2
Detour had entered into multiple such contracts. It is also submitted that the agreement was
drafted by R2 Detour, therefore, they were more aware of the implications of the terms
included in the agreement.
Moreover, another test for determining reasonability is to ascertain whether there has been an
inducement by one party to the other to agree to the terms of the contract(schedule 2 (b)). It is
submitted that if it is established that inducement to enter into the agreement also
encompasses inducement to agree to all the particular terms of the contract, and therefore by
failing to satisfy the test of inducement(), clause 14(b) is also termed as unreasonable.
93
Michael Charles Polley v. Warner Goodman & Streat, [2003] EWCA Civ 1013.
94
Supra at 67.
95
Watford Electronics Ltd. v. Sanderson CFL Ltd., [2001] EWCA Civ 31.
96
Id at 77.
97
FoodCo UK LLP v. Henry Boot Developments Ltd., [2010] EWHC 358 (Ch).
Furthermore, clause (d) of schedule 2 prohibits the exclusion or limitation of any relevant
liability arising out of non-compliance with any particular condition that was reasonably
expected to be complied with. It is submitted that ShuttleUp expected that R2 Detour would
follow through on the representations made by it at the pre-contractual stage. ShuttleUp
expected to be put in touch with a global network of contacts who have a plethora of
experience that would assist ShuttleUp in its operations.
This turned out not to be the case when the contacts turned out to be inexperienced and
incompetent and a waste of funds. Moreover, the contacts in the UK Space Agency also did
not engage with ShuttleUp regarding any assistance, casting aspersions on the claim that R2
Detour in fact possessed close relationship and ties to personnel in the UK Space Agency and
UK Government.
4.3.3 The Limited Liability Clause is ambiguous in its interpretation

The wording of clause 14(a) states that in no event shall either ShuttleUp or R2 Detour be
liable to the other Party for any indirect, special, incidental, exemplary, punitive or
consequential damages arising directly from its own actions or inactions. There are certain
thumb rules that are used by the courts for contractual interpretations. One of such canons is
the use of ‘clear words’. The courts have held that unambiguous language is required to
exclude certain contractual remedies98. In Arnold v Britton,99 following the general rules of
contractual interpretation, the court held that the worse the drafting of a particular clause, the
more readily a court will depart from its natural meaning. In the present case, the
juxtaposition presented in clause 14(a) in indirect losses arising ‘directly’ out of one’s own
actions or inactions defeats any logical interpretation that can be given to this clause.
It is contended that any liability cannot be excluded or limited by interpreting this clause to
benefit the wrongdoer. Since there exists ambiguity and lack of clarity in the language of the
clause, it cannot be interpreted to give the clause its true meaning and therefore, must be
interpreted in favour of the party that did not draft it or against the party seeking to take
benefit of an exclusion or limitation of a liability. Therefore, ShuttleUp must be given the
right to claim all damages arising out of R2 Detour’s actions without being limited by the
aforementioned clause.
98
WRM Group Ltd v. Wood, [1998] CLC 189.
99
Arnold v. Britton, [2013] EWCA Civ 902

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LIST OF ABBREVIATIONS

ALL INDIA REPORTER AIR

UNITED KINGDOM HOUSE OF LORDS UKHL

LAUNCH SERVICE AGREEMENT L.S.A OR LSA

NATIONAL AERONAUTICS AND SPACE NASA

1.1 INVALID EXECUTION OF THE LAUNCH SERVICE AGREEMENT

1.2 MORBUS CAPITAL IS NOT A PARTY TO THE ARBITRATION AGREEMENT

2. SHUTTLEUP WAS INDUCED BY R2 DETOUR’S MISREPRESENTATIONS

R2 Detour is not entitled to compensation as it has made, whether negligently or fraudulently,

WHETHER THE TRIBUNAL HAS JURISDICTION TO DECIDE THIS DISPUTE:

ITY, DID SHUTTLEUP VALIDLY EXECUTE THE LAUNCH SERVICES AGREEMENT?

WHETHER MORBUS CAPITAL IS A PARTY TO THE ARBITRATION AGREEMENT.

WHETHER THE TRIBUNAL HAS JURISDICTION TO DECIDE THIS DISPUTE:

WHETHER MORBUS CAPITAL IS A PARTY TO THE ARBITRATION AGREEMENT.

A. WHAT IS THE APPLICABLE LAW TO DETERMINE WHETHER DR GOH HAD CAPACITY TO

1A.1 ENGLISH CONFLICT OF LAW RULES WILL BE APPLIED TO DETERMINE THE

1a.1.1 Rome I Regulations will apply

1A.1.2 CONFLICT OF LAWS REGARDING LEGAL CAPACITY OF A COMPANY OR OTHER BODY

1a.2.1 Doctrine of Depacage provides for split-analysis of an agreement in common law

It is submitted therefore, that the doctrine of depacage is an established common law

Domicile of ShuttleUp Limited

a. by an overseas company, by writing under its common seal or in any manner

(2) A document which—

CAPACITY, DID SHUTTLEUP VALIDLY EXECUTE THE LAUNCH SERVICES AGREEMENT?

B.2 LSA WAS VOIDABLE AT THE OPTION OF THE BOARD

If a contract is stigmatised as 'unfair', it may be unfair by reason of the unfair manner in

Procedural unfairness is determined by ascertaining whether there is unfairness in the manner

Therefore, a contract or a term is procedurally unfair if it has resulted in an unjust advantage

2.1 ENGLISH LAW DOES NOT ALLOW BINDING NON-SIGNATORIES TO AN ARBITRATION

WITHOUT EXPRESS CONSENT AND INTENT.

It is submitted that the inclusion of non-signatories in an arbitration agreement is expressly

2.1.1. The Arbitration agreement is governed by English law

2.1.2. Application of group of companies is expressly barred in English Law

2.1.3. Express mention is required.

2.2 SHUTTLEUP’S LIABILITY CANNOT BE TRANSFERRED TO MORBUS

2.2.1 English Law follows the principle of separate legal persons

e scope of the Group of Companies doctrine.

2.2.2 A financing entity is not a party to the contract

2.3 MORBUS CAPITAL IS NOT OBLIGATED TO TAKE PART IN THE ARBITRATION

3.2.1 Sufficient material should be available to enable a claim

ShuttleUp’s directors endeavoured to gather as much information as they could to ascertain

Therefore, ShuttleUp’s claims of misrepresentation are not barred by limitation beginning on

It is submitted that if a claimant suffers no loss as result of misrepresentation but merely a

WHETHER THE CLAIMANT IS LIABLE FOR MISREPRESENTATION?

Misrepresentation is an act of making an untrue statement, written or oral, performed by one

4.1 EXISTENCE OF FALSE STATEMENT OF FACTS

It is therefore necessary, in analyzing a claim for misrepresentation, to identify the false

b. global contact network

4.1.2 Addressed to counterparty

4.2 INDUCEMENT AND RELIANCE- SHUTTLE UP RELIED ON FACTS PRESENTED TO IT BY R2

4.2.2 claimant’s “awareness” of a representation is an essential prerequisite to a claim

It is submitted that the disclaimer of forward-looking statements provided in the presentation

4.3.2 The limited liability clause is unreasonable

4.3.3 The Limited Liability Clause is ambiguous in its interpretation

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