TC -21

DME NATIONAL MOOT COURT COMPETITION

(2024)

Before

THE HON’BLE HIGH COURT OF KUMBAI

AT KUMBAI, INDICA

C.C. No. of 2024

IN THE MATTER OF

PetroPrime Innovations Pvt. Ltd. ….PETITIONER

VERSUS

Apex Maritime Solutions Pvt. Ltd. ….RESPONDENT

UPON SUBMISSION TO THE HON’BLE JUDGES OF THE HIGH COURT

MEMORIAL ON BEHALF OF THE PETITIONER

COUNSEL APPEARING ON BEHALF OF THE PETITIONER

0
 TABLE OF CONTENTS

S. No.
Contents Page No.

1. LIST OF ABBREVIATIONS 2

2. INDEX OF AUTHORITIES 3-4

3. STATEMENT OF JURISDICTION 5

4. STATEMENT OF FACTS 6-7

5. ISSUES RAISED 8

6. SUMMARY OF ARGUMENTS 9-11

ARGUMENTS ADVANCED
1. Whether the present application for setting aside the arbitral
12-14
award is maintainable before this Hon’ble Court?
2. Whether the arbitral award dated 30.11.2023 as given by the
Hon’ble Arbitral Tribunal should be set aside?
a. What are the grounds for setting aside the award? 14-18
b. Whether this Hon’ble Court has the jurisdiction to set
aside the award?
3. Whether this Hon’ble Court has jurisdiction to entertain legal
7. proceedings against the arbitrator appointed by AMSPL,
namely, Dr. Robert Zane? 18-19
a. Whether initiation of legal proceedings against Dr.
Robert Zane is justified?
4. Whether this Hon’ble Court has the jurisdiction to entertain
legal proceedings against TSLPL?
a. Whether TSLPL is required to be impleaded in the
20-21
instant case?
b. Whether TSLPL is bound by the contract between
PPIPL and AMSPL?

8. PRAYER 22

1
 LIST OF ABBREVIATIONS

S. No. Abbreviation Meaning

1. & And

2. Vs. or V. Versus

3. u/s Under Section

4. Anr. Another

5. Ors. Others

6. SCC Supreme Court Cases

7. Para Paragraph

8. r/w Read With

9. AIR All India Reporter

10. No. Number

11. Ed. Edition

12. S. or Sec. Section

13. Hon’ble Honourable

14. Pvt. Ltd. Private Limited

15. ACA The Arbitration and Conciliation Act, 1996

United Nations Convention on Contracts for
16. CISG
the International Sale of Goods, 1980
17. ICA The Indian Contract Act, 1872

18. AMSPL Apex Maritime Solutions Pvt. Ltd.

19. PPIPL PetroPrime Innovations Pvt. Ltd.

20. TSLPL TransSwift Logistics Pvt. Ltd.

21. BMRPL Bradley Maritime Resources Pvt. Ltd.

2
 INDEX OF AUTHORITIES

STATUTES
1. The Arbitration and Conciliation Act, 1996
2. United Nations Convention on Contracts for the International Sale of Goods, 1980
3. The Indian Contract Act, 1872

BOOKS
1. Black’s Law Dictionary (9th Ed., 2009)
P.C. Markanda, LAW RELATING TO ARBITRATION AND CONCILIATION, pp.1-
2.
8, (8th Edn. 2013) LexisNexis
Vikramajit Sen and Satyajit Gupta, The Concept of Seat in International Arbitration-
3. Developments in India, in Shashank Garg (ed.) Alternative Dispute Resolution, The
Indian Perspective 187-248 (OUP 2018)
Sheila Ahuja, International Arbitration with an Indian Connection, in Shashank Garg
4.
(ed.) Alternative Dispute Resolution, The Indian Perspective 249-388 (OUP 2018)

JUDICIAL PRECEDENTS
S.No. Title of the Case Citation
1. State of Goa v. Western Builders (2006) 6 SCC 239
2. Union of India v. Bhavna Engg. Co. (2008) 13 SCC 546
3. HUDA v. Mehta Construction Co. (2022) 5 SCC 432
4. Union of India v. Simplex Infrastructures Ltd. (2017) 14 SCC 225
5. Chennai Metro Rail Ltd. v. Transtonnelstroy Afcons (JV) (2023) SCC OnLine
SC 1370
6. Ssangyong Engineering and Construction Co. Ltd. v. (2019) 15 SCC 131
National Highway Authority of India
7. Voestalpine Schienen Gmbh v. Delhi Metro Rail Corporation (2017) SCC OnLine
Ltd. Del 9639
8. Nikken Kosakusho Works Ltd. v. Hinduja Leyland Finance (2016) 6 SCC 278
Ltd.
9. Union of India v. Singh Builders Syndicate (2009) 4 SCC 523
10. S.B.P. & Co. v. Patel Engineering Ltd. (2005) (8) SCC 618

3
11. ONGC Ltd. v. Saw Pipes Ltd (2003) 5 SCC 705 (2003) 5 SCC 705
12. Cochin Shipyard Ltd. v. Apeejay Shipping Ltd. (2015) 15 SCC 522
13. ONGC v. WIG Bros. Builders & Engineers (P) Ltd. (2010) 13 SCC 377
14. State of A.P. v. Larsen & Toubro Ltd. (2008) 9 SCC 191
15. K. Gopinathan Nair v. State of Kerala (1997) 10 SCC 1
16. Bharat Aluminium Co. v. Kaiser Aluminium Technical (2010) 1 SCC 72
Service, Inc.
17. Bhatia International v. Bulk Trading S.A. (2002) 4 SCC 105
18. Vijay Karia & Ors v. Prysmian Cavi E Sistemi SRL & Ors, (2020) 4 SCC 17
19. Harmony Innovation Shipping Ltd. v. Gupta Coal India Ltd. (2018) 9 SCC 285
20. Associate Builders v. Delhi Development Authority (2015) 3 SCC 49
21. Konkan Railway Corporation Ltd. v. Mehul Construction Co. (2000) 7 SCC 201

4
 STATEMENT OF JURISDICTION

The Hon’ble High Court of Kumbai has the jurisdiction to try the present matter u/s 42,
r/w Sec. 2(1)(e)(ii), and Sec. 2(1)(f)(ii) of The Arbitration and Conciliation Act, 1996.

Section 42, ACA reads-: “42. Jurisdiction— Notwithstanding anything contained

elsewhere in this Part or in any other law for the time being in force, where with respect to
an arbitration agreement any application under this Part has been made in a Court, that
Court alone shall have jurisdiction over the arbitral proceedings and all subsequent
applications arising out of that agreement and the arbitral proceedings shall be made in
that Court and in no other Court.”

Section 2 sub-section (1) clause (e) sub-clause (ii), ACA reads-: “2. Definitions.—(1) In this
Part, unless the context otherwise requires,—
… (e) “Court” means—
… (ii) in the case of international commercial arbitration, the High Court in exercise of its
ordinary original civil jurisdiction, having jurisdiction to decide the questions forming the
subject-matter of the arbitration if the same had been the subject-matter of a suit, and in other
cases, a High Court having jurisdiction to hear appeals from decrees of courts subordinate to
that High Court;”

Section 2 sub-section (1) clause (f) sub-clause (ii), ACA reads-: “(f) “international
commercial arbitration” means an arbitration relating to disputes arising out of legal
relationships, whether contractual or not, considered as commercial under the law in force in
India and where at least one of the parties is—
… (ii) a body corporate which is incorporated in any country other than India”

As per the clause 8.4 of the contract between the parties, the seat of arbitration was
Kumbai, Indica. The present dispute has arisen out of the same arbitration proceedings. Further,
the respondents, Apex Maritime Solutions Pvt. Ltd. is a body corporate which is incorporated
in Kalaysia. The nature of contract between the parties is commercial. Therefore, the impugned
arbitration proceedings fall under the above definition of “International Commercial
Arbitration” which is triable by the High Court.

In view of the aforesaid facts, and the above cited provisions of the law, the counsel for
the petitioner most respectfully submits to the jurisdiction of this Hon’ble High Court.

5
 STATEMENT OF FACTS

1. The petitioner, PetroPrime Innovations Pvt. Ltd. (hereinafter referred to as PPIPL), is a

leading commercial entity engaged in exporting and importing diverse commodities,
including oil and other crude products. The company was incorporated on 10th of
September, 2004, in Indica, and is duly registered with the Registrar of Companies
(RoC) at Kumbai.

2. The respondent, Apex Maritime Solutions, Pvt. Ltd. (hereinafter referred to as AMSPL)
is a private corporation specializing in the manufacturing and export of oil. Its corporate
and registered office is situated in Kabah, Kalaysia.

3. The parties, i.e. PPIPL and AMSPL, entered into a contract dated 1st January 2022,
whereby AMSPL was to sell and supply 28 LR1 tankers, each having 445,000 barrels
of Kikeh oil having API of 35 degrees, each month from January 2022 till December
2024.

4. Further, the parties agreed to the Dealing Policy of AMSPL, the clause 6 of which
necessitates the utilization of services of their subsidiary unit Bradley maritime
Resources Pvt. Ltd. (BMRPL) for shipment of the oil barrels.

5. The clause 8 of the aforesaid contract stipulated the process to be followed in case of
any dispute or controversy arising therefrom, and mandated solving the same through
arbitration. It further specified that the seat of arbitration shall be Kumbai, Indica.

6. The first three shipments were delivered accordingly, with the quality of oil adhering to
the prescribed standards. However, with the fourth shipment, the quality of oil heavily
degraded from the standards agreed upon. Similarly, with the fifth shipment, there was
an inordinate delay in the delivery of the oil barrels to Kumbai.

7. It is pertinent to mention that the fourth and fifth shipments were not carried out by
BMRPL, as had been agreed upon by the parties. Instead, AMSPL unilaterally entrusted
another shipment company, TransSwift Logistics Pvt. Ltd. (TSLPL) for shipping the
consignment.

6
8. Aggrieved by the repeated deviation from the terms of the contract, the present
petitioner issued a “Dispute Notice” to AMSPL on 05.08.2022, but no reply thereto was
received to this request for dialogue and amicable resolution.

9. After following all due diligence, the present petitioners issued an Arbitration Notice to
AMSPL on 17.08.2022, along with a notice to terminate their contract. Mr. Vipin Asari
was designated as the arbitrator from the side of PPIPL. AMSPL appointed Dr. Robert
Zane as the arbitrator from their side. AMSPL also appointed Mr. Daniel Hardman as
their legal counsel. Ms. Donna Paulson was appointed as the presiding arbitrator by the
Hon’ble Supreme Court.

10. On 16.11.2023, the arbitral proceedings concluded, and on 30.11.2023, the arbitral
award was passed, inter alia granting AMSPL the full payment of USD 62,320,000
along with 24% interest and cost of arbitration. The liability for sub-standard
consignment was shifted towards the transporting company, i.e. TSLPL, and no relief
was awarded to the present petitioner despite the claim being absolutely legitimate and
cogently presented.

11. After the passing of the arbitral award, it came to the notice of the petitioner, that Dr.
Robert Zane, the arbitrator appointed by AMSPL had failed to disclose the following
before being appointed as arbitrator in the present case-:

a. That his law firm represented AMSPL on 22nd April 2019, before the Indica
Commercial Court, i.e. he has a previous engagement with AMSPL.

b. That he has served as fellow-speaker with Mr. Daniel Hardman (Legal Counsel
for AMSPL) at many arbitration-institutional conferences, and therefore, they
both share a pre-existing professional relationship.

12. The above facts, and their purported deliberate failure to disclose them, raise bona-fide
concerns about the impartiality of Dr. Robert Zane as an arbitrator in the present matter.
The same were duly intimated to him through e-mail and a response was sought from
him. Dr. Zane provided an unsatisfactory response to the same vide e-mail dated
30.03.2024. Thus aggrieved, this petition has been filed before this Hon’ble Court.

7
 ISSUES RAISED

5. Whether the present application for setting aside the arbitral award is maintainable
before this Hon’ble Court?

6. Whether the arbitral award dated 30.11.2023 as given by the Hon’ble Arbitral Tribunal
should be set aside?
a. What are the grounds for setting aside the award?
b. Whether this Hon’ble Court has the jurisdiction to set aside the award?

7. Whether this Hon’ble Court has jurisdiction to entertain legal proceedings against the
arbitrator appointed by AMSPL, namely, Dr. Robert Zane?
a. Whether initiation of legal proceedings against Dr. Robert Zane is justified?

8. Whether this Hon’ble Court has the jurisdiction to entertain legal proceedings against
TSLPL?
a. Whether TSLPL is required to be impleaded in the instant case?
b. Whether TSLPL is bound by the contract between PPIPL and AMSPL?

8
 SUMMARY OF ARGUMENTS

ISSUE 1: Whether the present application for setting aside the arbitral award is
maintainable before this Hon’ble Court?

The counsel for the Petitioner humbly submits that the present application for setting aside the
arbitral award is most certainly maintainable before this Hon’ble High Court. According to
S.34 r/w S.2(1)(e)(ii) & S.2(1)(f)(ii) of ACA, 1996, this Hon’ble Court has the jurisdiction to
try this case. The application has been filed merely some days after the three-month limit as
fixed by S.34(3), however, the proviso to the same section vests this Hon’ble Court with the
discretion to entertain this petition if it is satisfied that there was a sufficient cause for delay. It
is most humbly submitted that Dr. Robert Zane’s response to the notice issued to him was
received only on 30.03.2024, i.e. after the three-month period was over. Thus, the petitioner
was rendered with no other option than to file this petition despite the delay. It is the respectful
submission of the petitioner that this may be treated as sufficient cause for delay. Further, as
will be conclusively demonstrated to the full satisfaction of this Hon’ble Court in the
subsequent issues, that all necessary ingredients as per S.34, ACA, for setting aside the arbitral
award are clearly present in the instant matter. Therefore, the present application is
maintainable before this Hon’ble Court.

ISSUE 2: Whether the arbitral award dated 30.11.2023 as given by the Hon’ble Arbitral
Tribunal should be set aside?

The Hon’ble Arbitrator appointed by AMSPL, Dr. Robert Zane, failed to establish his
impartiality in the case. The S.34(2)(v) of ACA clearly states that an arbitral award may be set
aside if the constitution of the arbitral tribunal was not in accordance with the agreement of the
parties and/or the ACA. In the present case, PPIPL and AMSPL had, by virtue of clause 8 of
their contract, agreed to resolve any of their disputes through arbitration governed by The
Arbitration and Conciliation Act, 1996. S.12, ACA, lays down the grounds for challenge of the
appointment of an arbitrator. As elucidated in the next sub-issue, these grounds are clearly
present in this case. Therefore, the arbitral award dated 30.11.2023 as given by the Hon’ble
Arbitral Tribunal should be set aside.

ISSUE 2(a): What are the grounds for setting aside the award?

9
The S.12(1)(a), ACA, manifestly states inter alia that any existence, direct or indirect, of a past
or present relationship with any of the parties to the arbitration proceedings, which might create
justifiable doubts as to his independence or impartiality, is required to be disclosed in writing
by the potential arbitrator when he is approached for the appointment. In the present case, such
justifiable doubts as regards Dr. Robert Zane, are raised in not one but two ways: (a) his law
firm had represented AMSPL before Indica Commercial Court in a separate matter on
22.04.2019, i.e. barely three years before he was appointed as arbitrator in the present case;
and (b) he shares a close professional relationship with Mr. Daniel Hardman, Legal Counsel
for AMSPL. Therefore, the impartiality of Dr. Zane in the present matter is questionable.
Furthermore, the failure of Dr. Zane to disclose his previous association with AMSPL and his
relationship with Mr. Hardman, also make his conduct dubious, and indicate the intention of
concealing the same to be mala-fide and not in good faith. Such conduct most evidently brings
into question the legitimacy of the entire arbitration proceedings in the present case.

ISSUE 2(b): Whether this Hon’ble Court has the jurisdiction to set aside the award?

The S.34, ACA, lays down the procedure for setting aside of arbitral award under certain
circumstances. “Court”, as per S.2(1)(e)(ii) r/w S.2(1)(f)(ii), means the High Court, since this
is a matter arising out of International Commercial Arbitration. Also, the seat of arbitration was
Kumbai, Indica. Therefore, it is submitted that this Hon’ble High Court of Kumbai is the
competent court for adjudicating this matter and setting aside the arbitral award on the grounds
specified above.

ISSUE 3: Whether this Hon’ble Court has jurisdiction to entertain legal proceedings
against the arbitrator appointed by AMSPL, namely, Dr. Robert Zane?

The legal proceedings are being brought against Dr. Robert Zane, not in his personal capacity,
but only in his capacity as arbitrator in the dispute between AMSPL and PPIPL. The seat of the
said arbitration tribunal was at Kumbai, Indica. Therefore, it is the counsel’s respectful
submission that in accordance with S.34 and S.12 of ACA, this Hon’ble Court has the absolute
jurisdiction to entertain legal proceedings against Dr. Robert Zane as the arbitrator appointed
by AMSPL.

ISSUE 3(a): Whether initiation of legal proceedings against Dr. Robert Zane is justified?

10
According to S.12(1) of ACA, it was incumbent on Dr. Robert Zane to disclose in writing, any
of his previous engagements with AMSPL and his relationship with their legal counsel Mr.
Hardman. Since, it is primarily his failure to disclose these beforehand which has led to the
present application for setting aside the arbitral award, it is humbly submitted that it is
completely justified to initiate legal proceedings against Dr. Zane.

ISSUE 4 & 4(a): Whether this Hon’ble Court has the jurisdiction to entertain legal
proceedings against TSLPL?
and Whether TSLPL is required to be impleaded in the instant case?

TSLPL is a shipment company, whose services have been utilized by AMSPL in lieu of
BMRPL for the transportation of the oil barrels. The present petitioner, i.e. PPIPL has not
entered into any contract whatsoever with TSLPL. In fact, AMSPL has unilaterally altered the
terms of its own dealing policy, whereby PPIPL and AMSPL had mutually agreed to utilize the
services of BMRPL for transportation, instead TSLPL has been employed by AMSPL for fourth
and fifth of the consignments. Therefore, it is respectfully submitted that this Hon’ble Court
has no jurisdiction to initiate legal proceedings against TSLPL in the present matter, and also,
that there is no requirement to implead TSLPL in the same.

ISSUE 4(b): Whether TSLPL is bound by the contract between PPIPL and AMSPL?

As mentioned previously as well, the contract for the sale and purchase of oil barrels had been
entered into by PPIPL and AMSPL. Originally, as per clause 6 of the Dealing Policy of
AMSPL, BMRPL was supposed to be entrusted with the transportation and shipping of the
consignment. However, it was a unilateral decision of AMSPL to employ TSLPL for the same
purpose with effect from fourth consignment. Further, the impugned arbitral award is an
outcome of the arbitration clause which is the part of the contract between PPIPL and AMSPL.
TSLPL is not a party to the same. Therefore, it is humble submission on the part of the petitioner
that TSLPL is not bound by the contract between PPIPL and AMSPL as per the Doctrine of
Privity of Contract.

11
 ARGUMENTS ADVANCED

ISSUE 1: Whether the present application for setting aside the arbitral award is
maintainable before this Hon’ble Court?

Introduction and Analysis of Facts

• The clause 8 of the contract between the parties PPIPL and AMSPL stated that in case
of any dispute arising out of the same, it would be resolved through arbitration, the seat
of which shall remain at Kumbai, Indica.
• The arbitral proceedings concluded on 16.11.2023, and the arbitral award was passed
on 30.11.2023.1 After this passing, it came to the knowledge of the petitioner that Dr.
Robert Zane, the Hon’ble Arbitrator had some pre-existing professional relationship
with AMSPL and their legal counsel Mr. Daniel Hardman.
• AMSPL addressed an e-mail to Dr. Zane seeking his clarifications on the same.
However, the response to the same was received on 30.03.2024, i.e. almost after four
months had lapsed since passing of the award.2

Provisions of Law
• Section 34(3), ACA3 reads: “34. Application for setting aside arbitral award.—
… (3) An application for setting aside may not be made after three months have elapsed
from the date on which the party making that application had received the arbitral
award or, if a request had been made under section 33, from the date on which that
request had been disposed of by the arbitral tribunal:
Provided that if the Court is satisfied that the applicant was prevented by
sufficient cause from making the application within the said period of three months it
may entertain the application within a further period of thirty days, but not thereafter.”

Application of Law to Facts

• Since, the facts creating doubts on the impartiality and independence of the Hon’ble
Arbitrator Dr. Robert Zane came to light after passing of the arbitral award, and his

1
Moot Proposition, Para XIII (Page 3)
2
Moot Proposition, Exhibit-C (Page-9)
3
The Arbitration and Conciliation Act, 1996, No. 26, Acts of Parliament (India)

12
 reply to the notice was received only on 30.03.2024, it is humbly submitted that PPIPL
could not have filed the present application within the three month period as mentioned
in S.34(3), which ended on 01.03.2024.

• In view thereof, it is the respectful submission of the petitioner that it was prevented by
sufficient cause, namely the lack of knowledge/clarity on independence and impartiality
of Dr. Zane, till 30.03.2024, to file the present application.
• Therefore, it is humbly submitted that the present petition should be allowed as the
same is maintainable.

Judicial Precedents
1. In State of Goa v. Western Builders, (2006)4, the dispute arose from a construction
project contract between the parties. Arbitration was chosen as the means to settle the
dispute. An arbitral award was made in favor of Western Builders, which was
challenged. The Hon’ble Supreme Court ruled in favor of Western Builders.
The Hon’ble Court clarified that Section 14 of the Limitation Act, 1963 applies to
proceedings under the Arbitration and Conciliation Act, 1996 (unless a different
limitation period is specified in the Act itself). This means there is a time limit for
challenging arbitral awards, but can be extended from the three months if there is
sufficient cause.

2. In Union of India v. Bhavna Engg. Co., (2006)5, the Hon’ble Supreme Court decided
on whether the three-year limitation period under Section 14 of the Limitation Act
applied to applications seeking to set aside an arbitral award. The Court considered the
legislative intent behind the Limitation Act, which aims for speedy disposal of disputes.
It was held that the parties have a three-year window from receiving an arbitral award
to file an application to set it aside under the Limitation Act.

3. In Haryana Urban Development Authority, Karnal v. Mehta Construction Company

& Anr. (2022)6, the Hon’ble Supreme Court held that a delay, if falling within the 30-
day period as specified in the proviso to S.34(3), ACA, may be condoned if sufficient
cause is shown therefor, and the case should not be dismissed without proper and full

4
State of Goa v. Western Builders, (2006) 6 SCC 239
5
Union of India v. Bhavna Engg. Co., (2008) 13 SCC 546
6
HUDA v. Mehta Construction Co., (2022) 5 SCC 432

13
 application of mind by the Court. HUDA v. Mehta Construction Co., (2022) 5 SCC 432

4 In Union of India v. Simplex Infrastructures Ltd., (2017) 14 SCC 225, the Hon’ble
Supreme Court upheld the condonation of delay of 131 days, since sufficient cause,
though of a different nature as compared to the present case, was successfully shown.

ISSUE 2: Whether the arbitral award dated 30.11.2023 as given by the Hon’ble Arbitral
Tribunal should be set aside?

2(a): What are the grounds for setting aside the award?

Introduction and Analysis of Facts

• The arbitral award dated 30.11.2023 as given by the Hon’ble Arbitral Tribunal deserves
to be set aside, since the very constitution of this tribunal was vitiated.
• Independence and impartiality of an arbitrator are sine qua non for upholding the
legitimacy and sanctity of an arbitral award. However, circumstances created by Dr.
Robert Zane, Hon’ble Arbitrator, in the present case have rendered the legitimacy of
this arbitral award completely obliterated, and unacceptable in the eyes of the law.
• Dr. Zane was appointed as arbitrator from the side of AMSPL, i.e. the present
respondent. As a matter of undisputed fact, the law firm of Dr. Zane had represented
AMSPL before Indica Commercial Court on 22nd April 2019 in a separate unrelated
case.8
• Over and above that, it is also not disputed that Dr. Zane shares a close and proximate
pre-existing professional relationship with Mr. Daniel Hardman. They have together
served as fellow-speakers at many arbitration-institutional conferences.9
• However, neither did AMSPL, nor did Dr. Zane, disclose these crucial and cardinal
facts at the time of beginning of the arbitral proceedings in August 2022. No such
disclosure was made at any stage throughout the proceedings. The petitioner only got
to know about this fact through its reliable sources.
• The mere existence of such a proximate professional relationship is per se enough to
discredit the impartiality and independence of Dr. Zane. But, conscious and deliberate

7
Union of India v. Simplex Infrastructures Ltd., (2017) 14 SCC 225
8
Moot Proposition, Para XV
9
Ibid. 8.

14
 attempt to conceal the same from the petitioner by not disclosing these details, further
exacerbates and amplifies the doubt cast on his independence and impartiality.

Provisions of Law
• Section 12(1), ACA10 – It reads as (relevant portions being quoted)-:
“12. Grounds for challenge.— (1) When a person is approached in connection with
his possible appointment as an arbitrator, he shall disclose in writing any
circumstances,—
(a) such as the existence either direct or indirect, of any past or present relationship
with or interest in any of the parties or in relation to the subject-matter in dispute,
whether financial, business, professional or other kind, which is likely to give rise to
justifiable doubts as to his independence or impartiality; and
…Explanation1.—The grounds stated in the Fifth Schedule shall guide in determining
whether circumstances exist which give rise to justifiable doubts as to the independence
or impartiality of an arbitrator.”
• The Fifth Schedule, ACA reads-: “The following grounds give rise to justifiable
doubts as to the independence or impartiality of arbitrators:(relevant entries quoted):
…23. The arbitrator’s law firm has within the past three years acted for one of the
parties or an affiliate of one of the parties in an unrelated matter without the
involvement of the arbitrator.
…26. The arbitrator was within the past three years a partner of, or otherwise affiliated
with, another arbitrator or any of the counsel in the same arbitration.”
• Section 34(2)(v), ACA reads – “(2) An arbitral award may be set aside by the Court
only if —
…(v) the composition of the arbitral tribunal or the arbitral procedure was not in
accordance with the agreement of the parties, unless such agreement was in conflict
with a provision of this Part from which the parties cannot derogate, or, failing such
agreement, was not in accordance with this Part”

Application of Law to Facts

• In the present case, the above law clearly applies. Dr. Zane’s law firm represented
AMSPL on 22nd April 2019, i.e. just about three years and four months before the
initiation of the impugned arbitration.

10
Ibid. 3.

15
 • It may be noted that the words used in the Explanation 1 to S.12(1)(a) are “shall guide”.
Therefore, the time period of three years in Entry-23 of Fifth Schedule should not be
interpreted strictly, since it is only illustrative, mentioned in order to act as a guiding
light for determining as to what constitutes a past professional affiliation. The passing
of additional four months in the present case do not waive off the duty of Dr. Zane to
disclose the professional relationship his firm shared in the past with AMSPL, as
mandated in S.12(1), ACA.
• Furthermore, the professional relationship that Dr. Zane shares with Mr. Hardman most
clearly falls under the category mentioned in Entry-26 of the Fifth Schedule of ACA.
• Therefore, there is a two-fold basis for challenging and setting aside the arbitral award
dated 30.11.2023, as per S.34(2)(v) r/w S.12(1) & Fifth Schedule, ACA.

Judicial Precedents

1. In Chennai Metro Rail Ltd. v. Transtonnelstroy Afcons (JV)11, (2023), it was

observed that an arbitral award can be set aside on the basis of lack of independence
and impartiality, only on the grounds mentioned under S.12(1) and The Fifth Schedule
of ACA.

2. In Ssangyong Engineering and Construction Co. Ltd. v. National Highway Authority

of India (2019)12, it involved a challenge to the appointment of an arbitrator due to the
arbitrator’s failure to disclose a conflict of interest, thus raising doubts about
impartiality.

3. In Voestalpine Schienen Gmbh v. Delhi Metro Rail Corporation Ltd. (2017)13, the
case involved a challenge to the appointment of an arbitrator based on justifiable doubts
about impartiality and independence. The Hon’ble Court reiterated the importance of
independence and impartiality of an arbitrator.

4. In Nikken Kosakusho Works Ltd. v. Hinduja Leyland Finance Ltd. (2016)14, the
Bombay High Court reiterated the importance of Section 12(1)(a), ACA, in ensuring
the integrity of the arbitration process by allowing parties to challenge arbitrators if

11
Chennai Metro Rail Ltd. v. Transtonnelstroy Afcons (JV), 2023 SCC OnLine SC 1370
12
Ssangyong Engineering and Construction Co. Ltd. v. National Highway Authority of India (2019) 15 SCC 131
13
Voestalpine Schienen Gmbh v. Delhi Metro Rail Corporation Ltd (2017) SCC OnLine Del 9639
14
Nikken Kosakusho Works Ltd. v. Hinduja Leyland Finance Ltd. (2016) 6 SCC 278

16
 there are reasonable doubts about their impartiality or independence.

5. In Union of India v. Singh Builders Syndicate (2009)15, the Supreme Court held that
the test for determining whether there are justifiable doubts about an arbitrator’s
independence or impartiality under Section 12(1)(a) is whether a reasonable person,
having knowledge of the relevant facts, would conclude that there is a real danger of
bias.

6. In S.B.P. & Co. v. Patel Engineering Ltd. (2005)16, the Supreme Court of India clarified
the scope of Section 12(1)(a), ACA, emphasizing that parties are entitled to challenge
the appointment of an arbitrator if circumstances exist that give rise to justifiable doubts
regarding the arbitrator’s impartiality or independence.

7. In ONGC Ltd. v. Saw Pipes Ltd. (2003)17, a landmark case, the Supreme Court clarified
that an arbitral award could be set aside if it is in contravention of the fundamental
policy of Indian law or the interests of justice.

ISSUE 2(b): Whether this Hon’ble Court has the jurisdiction to set aside the award?

Provisions of Law
• Section 34(1), ACA18 reads: “34. Application for setting aside arbitral award.—(1)
Recourse to a Court against an arbitral award may be made only by an application for
setting aside such award in accordance with sub-section (2) and sub-section (3)”.
• Section 2(1)(e)(ii), ACA reads: “2. Definitions.—(1) In this Part, unless the context
otherwise requires,—
… (e) “Court” means—
… (ii) in the case of international commercial arbitration, the High Court in exercise
of its ordinary original civil jurisdiction, having jurisdiction to decide the questions
forming the subject-matter of the arbitration if the same had been the subject-matter
of a suit, and in other cases, a High Court having jurisdiction to hear appeals from
decrees of courts subordinate to that High Court;”

15
Union of India v. Singh Builders Syndicate (2009) 4 SCC 523
16
S.B.P. & Co. v. Patel Engineering Ltd. (2005) (8) SCC 618
17
ONGC Ltd. v. Saw Pipes Ltd (2003) 5 SCC 705
18
Ibid. 3.

17
 • Section 2(1)(f)(ii), ACA reads: “(f) “international commercial arbitration” means
an arbitration relating to disputes arising out of legal relationships, whether
contractual or not, considered as commercial under the law in force in India and
where at least one of the parties is—
… (ii) a body corporate which is incorporated in any country other than India”

Application of Law to Facts

• As per the clause 8.4 of the contract between the parties, the seat of arbitration was
Kumbai, Indica. The present dispute has arisen out of the same arbitration proceedings.
Therefore, this Hon’ble High Court has absolute territorial jurisdiction to set aside the
arbitral award.
• Apex Maritime Solutions Pvt. Ltd. is a body corporate which is incorporated in
Kalaysia, i.e. a country other than Indica. The parties have entered into a contract related
to sale of goods, thus, the nature of contract between the parties is commercial.
Therefore, the impugned arbitration proceedings fall under the above definition of
“International Commercial Arbitration” which is triable by the High Court.
• Therefore, it is humbly submitted that this Hon’ble High Court is fully competent and
has the required jurisdiction to adjudicate upon this matter and set aside the impugned
arbitral award.

ISSUE 3: Whether this Hon’ble Court has jurisdiction to entertain legal proceedings
against the arbitrator appointed by AMSPL, namely, Dr. Robert Zane?

3(a): Whether initiation of legal proceedings against Dr. Robert Zane is justified?

Introduction and Analysis of Facts

• The very concept of arbitration is premised upon the impartiality and independence of
the arbitrators, who apply their mind towards reaching a solution to a dispute based on
the principles of justice, equity, and good conscience.
• As has been conclusively established in the previous issue, that Dr. Robert Zane’s
credentials as an arbitrator were certainly not independent and more certainly not
impartial, his actions have not only caused lasting damages to the petitioner, but have
also brought disrepute to the very revered idea of arbitration.
• Therefore, taking strict legal action against him is imperative for ensuring the dignity
of arbitration.

18
 Legal Action Sought
• It is humbly submitted that the primary relief sought by the petitioner regarding legal
action against Dr. Robert Zane is that he may be permanently disqualified to be
designated as an arbitrator in the state of Kumbai, so that he may not be able to repeat
his mala-fide actions.
• Secondarily, the petitioner humbly seeks monetary compensation from Dr. Zane, for
the losses it had to face due to his misconduct in the arbitration proceedings. It is further
sought that arbitration costs may be recovered from him.

Jurisdiction to initiate legal proceedings

• The legal proceedings are being brought against Dr. Robert Zane, not in his personal
capacity, but only in his capacity as arbitrator in the dispute between AMSPL and
PPIPL.
• The seat of the said arbitration tribunal was at Kumbai, Indica. As already established
in Issue-1, as well as the Statement of Jurisdiction, that this Hon’ble Court has the
competency and jurisdiction to try this dispute.
• Therefore, it is the counsel’s respectful submission that in accordance with S.34 and
S.12 of ACA, this Hon’ble Court has the absolute jurisdiction to entertain legal
proceedings against Dr. Robert Zane as the arbitrator appointed by AMSPL, since these
proceedings are in consequence to his misconduct in his role as arbitrator in the
impugned proceedings.

Judicial Precedents

1. In Cochin Shipyard Ltd. v. Apeejay Shipping Ltd., (2015)19, the Hon’ble Supreme
Court observed that legal misconduct of an arbitrator includes deciding against the
principles of natural justice, colourable exercise of power, and acting with mala-fide
intentions.

2. In ONGC v. WIG Bros. Builders & Engineers (P) Ltd., (2010)20, it was held by the
Hon’ble Supreme Court that if there was apparent error in the award or misconduct by
the arbitrator, the award could be set aside.

19
Cochin Shipyard Ltd. v. Apeejay Shipping Ltd., (2015) 15 SCC 522
20
ONGC v. WIG Bros. Builders & Engineers (P) Ltd., (2010) 13 SCC 377

19
ISSUE 4: Whether this Hon’ble Court has the jurisdiction to entertain legal proceedings
against TSLPL?

ISSUE 4(a): Whether TSLPL is required to be impleaded in the instant case

ISSUE 4(b): Whether TSLPL is bound by the contract between PPIPL and AMSPL?

Introduction and Analysis of Facts

• TSLPL is a shipment company, whose services have been utilized by AMSPL in lieu of
BMRPL for the transportation of the oil barrels. The present petitioner, i.e. PPIPL has
not entered into any contract whatsoever with TSLPL. In fact, AMSPL has unilaterally
altered the terms of its own dealing policy, whereby PPIPL and AMSPL had mutually
agreed to utilize the services of BMRPL for transportation, instead TSLPL has been
employed by AMSPL for fourth and fifth of the consignments.
• Further, the impugned arbitral award is an outcome of the arbitration clause which is
the part of the contract between PPIPL and AMSPL. TSLPL is not a party to the same.

Provisions of Law
• Doctrine of Privity of Contract – Only the parties to a contract can sue each other for
the non-performance of the terms of the contract. This, though not expressly provided
in the Indian Contract Act, 1872, is a common law principle which is extensively
followed in Indica.

Application of Law to Facts

• Since there is no contract between PPIPL and TSLPL for the transportation of the oil,
the petitioner cannot implead TSLPL in the present case as per the above doctrine.
• Therefore, it is respectfully submitted that this Hon’ble Court has no jurisdiction to
initiate legal proceedings against TSLPL in the present matter, and also, that there is no
requirement to implead TSLPL in the same.

Judicial Precedents

1. In State of A.P. v. Larsen & Toubro Ltd., (2008)22, it was observed that the sale of goods
included its proper delivery under the obligations of the contract for sale. No third-party

21
The Indian Contract Act, 1872, No. 9 of 1872, An Act of Parliament (India)
21
State of A.P. v. Larsen & Toubro Ltd., (2008) 9 SCC 191

20
 agency could be held liable.

2. In K. Gopinathan Nair v. State of Kerala, (1997), it was held that since there was no
privity of contract between the local users and the foreign users, the same of goods did not
amount to sale in course of import. Hence, privity doctrine was held valid.

22
K. Gopinathan Nair v. State of Kerala, (1997) 10 SCC 1

21
 PRAYER

Wherefore, in light of the issues raised, arguments advanced, and authorities cited, it is
humbly prayed that this Honourable Court may, by its wisdom, be pleased to adjudge and
declare-:

1. That the present petition is maintainable as there was sufficient cause for being
unable to make the application within three months of arbitral award

2. That the Hon’ble Arbitrator Dr. Robert Zane was not independent and impartial in
conducting the arbitration proceedings

3. That the termination of mandate and substitution of arbitrator is necessary in the

present circumstances

4. That there is no requirement of impleading TSLPL in the instant case

5. That fair compensation is due from AMSPL towards PPIPL, for fourth and fifth
consignments, along with arbitration and legal costs

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

All of which is humbly prayed

TC-21
Counsels for the Petitioner

22