''[6:39 am, 14/9/2025] Anushree: ARGUMENTS ADVANCED

ISSUE 1

WHETHER THE TRIBUNAL'S JURISDICTION UNDER CONTRACT 1 Is NARROWER THAN THAT UNDER
CONTRACT 2, AND WHETHER THIS MAKES A DIFFERENCE TO THE TRIBUNAL'S ABILITY TO DECIDE THE
CURRENT DISPUTES?

1. It is humbly submitted that the Tribunal does possess jurisdiction to hear disputes under both
Contract 1 and Contract 2, as the scope of both arbitration clauses is functionally equivalent, and this
submission is elaborated in a three-fold manner: [I.1| The arbitration clauses in both contracts are
compatible and wide in scope; (1.2) Validity of arbitration; [1.3) The negotiation precondition in
Contract 1 is directory and deemed satisfied by futility.

[1.1| THE ARBITRATION CLAUSES IN BOTH CONTRACTS ARE COMPATIBLE AND WIDE IN SCOPE

2. It is a settled principle that arbitration clauses must be given a liberal construction.

In Fiona Trust v. Privalov, the House of Lords held that rational businesspersons intend all disputes
relating to their commercial relationship to be decided in a single forum. Similarly, in Tjong Very
Sumito v. Antig Investments,' the Singapore Court of Appeal confirmed that "arising out of or in
connection with" covers all disputes with a sufficient nexus, including validity and termination.
Courts are slow to permit parties to escape the scope of an arbitration clause on fine textual
distinctions, preferring a commercially sensible interpretation that avoids fragmentation of
proceedings.

3. It has been noted that the phrase "arising out of" in arbitration clauses should not be narrowly
confined to post-contractual claims, since that would exclude pre-contractual disputes and defeat
commercial sense. Parties intend a single forum to resolve all disputes connected to their legal
relationship, avoiding a split between courts and arbitration. Courts have also upheld this principle,
including in Maniach Pte Lid v L

s Fiona Trust v. Privalov [2007] UKHL 40.

"Nigel Blackaby et al., Redfern and Hunter on International Arbitration 122-24 (7th ed. 2022), pp.
450.

Tjong Very Sumito v. Antig Investments [2009) SGCA 41.

§ International Commercial Arbitration: An Asia-Pacific Perspective (Cambridge University Press,

2011) at para

9 Margaret L. Moses, The Principles and Practice of International Commercial Arbitration (4th ed.
2023).

A DEUALE OF PETITIONER -

[6:39 am, 14/9/2025] Anushree: SYMBIOSIS LAW SCHOOL PUNF - CHALLENGERS II SELECTION, 25-26

Capital Jones Ltd 10 holding that the phrase "connected with is wide enough to cover any matter
with a prima facie link to the contract, even if it does not strictly "arise

under" it.
4. In the absence of any clear exclusion, the interpretation of arbitration proceedings must favour the
intention of parties to resolve all commercial disputes arising out the contracts to be resolved by an
arbitration tribunal."' Therefore, minor variations and drafting do not necessarily signify different
intentions unless expressly stated.

5. In light of the given context, it is observed that both contracts, which means Contract | and
Contract 2, entered into between Indica Steel and WorldCoal were concluded for related coal supply
obligations, under identical governing law, which is Indican law, procedural law of Singaporia, and
arbitral institution at Singapore International Arbitration Centre, (hereinafier, SIAC), with Singaporia
as the seat. While, the dispute resolution clause under Contract 1 states disputes "arising out of or in
connection with";12 Contract 2 stipulates "any and all disputes including existence validity or
termination" of dispute arising out of the contract.!3 Although there is an apparent difference in
drafting, yet, the addition of the words "existence, validity or termination" in Contract 2 merely
reflects drafting prudence, inserted to avoid disputes of interpretation. It cannot be construed as a
substantive narrowing of Contract 1, and thus, to interpret otherwise would undermine the parties'
clear commercial expectation of a single, consistent arbitral forum.

6. Therefore, the Tribunal's jurisdiction under Contract 1 is not materially narrower than under
Contract 2. The supposed difference in language is stylistic rather than substantive, and consistent
with international jurisprudence, both clauses should be read harmoniously to confer jurisdiction
over all disputes arising from performance, validity, or termination.

[1.2] VALIDITY OF ARBITRATION

7. It is humbly contended that the arbitration clauses under both the contracts are absolutely valid,
and this is elaborated in a four-fold manner: [1.2.1] Kompetenz-Kompetenz allows arbitral power
over disputes regarding validity; [1.2.2] Wide

1º Maniach Pte Ltd v. L Capital Jones Ltd [2016] 3 SLR 801.

" Premium Nafta Products Limited (20th Defendant) and others (Respondents) v. Fili Shipping
Company Limited

(14th Claimant) and others (Appellants)[2007] UKHL 40.

i2 Moot Proposition, Cl. 10.2, Contract 1, Symbiosis Law School, Pune Challenger II 2025-26.

13 Moot Proposition, Cl. 10.2, Contract 2, Symbiosis Law School, Pune Challenger I 2025-26.

MEMORIAL ON RELALE OF PETITIANIER

[6:40 am, 14/9/2025] Anushree: SYMBIOSIS LAW SCHOOL PUNE - CHALLENGERS II SELECTION, 25-26

interpretation of "in connection with encompasses validity disputes [1.2.31 Doctrine of Severability
applicable; [1.2.4] Arbitration is most preferred in commercial disputes.

/1.2.1/ Kompetenz-kompetenz allows arbitral power over disputes regarding validity 8. It is

submitted that Article 16(1) of the UNCITRAL Model Law, l4 which both Indica and Singaporia have
adopted specifically, empowers an arbitral tribunal with the authority to decide its own jurisdiction,
including "any objections with respect to the existence or validity of the arbitration agreement."I5
This is in fact, echoed in R. 31 of the SIAC Rules, l6 which empower the arbitral Tribunal to rule on its
own jurisdiction, including any objections with respect to the existence, validity, applicability, or
scope of the arbitration agreement.

9. For instance, the Supreme Court in the recent N.N. Global Mercantile Pvt. Ltd. V. M/S Indo Unique
Flame Ltd,'' ruled that the doctrine of kompetenz-kompetenz implies that the arbitral tribunal has
the competence to determine and rule on its own jurisdiction, including objections with respect to
the existence, validity, and scope of the arbitration agreement, in the first instance. The approach has
also been followed in Malini Ventura v. Knight Capital Pte Ltd,!& wherein, court held that the tribunal
has authority to determine both the validity and existence of an arbitration agreement; if a prima
facie case is established.

10. In this context, the arbitration tribunal constituted under Contract 1 is authorised by Model Law
to decide on matters of jurisdiction or authority to hear disputes arising out of the contract, even
though it contains no express words such "validity or termination". The prima facie existence of a
valid arbitration clause under both the contracts are proved, thus, there is no reason why the
tribunal in the first case shall not have jurisdiction to decide disputes related to validity of arbitration
clause.

14 United Nations Commission on International Trade Law, Model Law on International Commercial
Arbitration

art. 16 (1) (1985). 11. In any dispute arising between parties who have already signed an arbitration
clause. the stance is always inclined towards effectuating the arbitration clause. The Courts have
reinforced the said interpretation in numerous cases such wherein they hi emphasised that a
commercial document, such as a contract having an arbitration clause has to be interpreted in such a
manner as to give effect to the agreement rather than invalidate it. 1º Moreover, in A. Ayyasamy v. A.
Paramasivam,20 the SC of India held that arbitration clauses must receive a liberal construction
except for disputes obviously

excluded by law. [6:40 am, 14/9/2025] Anushree: invalid. thus, acting as a procedural mechanism
aimed at ensuring the arbitration agreement's survival rather than disintegrating the legal framework
governing the contract 24 This follows the same logic as PIATCO v GOP, where Singapore law was
applied to preserve the arbitration agreement despite the main contract's alleged nullity.

16. In the present factual matrix. WorldCoal contends that repudiation or non-performance of
Contract 1 extinguishes the arbitration agreement. However, under the principle of separability,
Clause 10.2 of Contract 1 continues to bind the parties irrespective of tha contract's performance
status. Any disputes concerning repudiation, termination, or validity are matters "in connection with"
the contract and must be referred to the Tribunal. Moreover, since both contracts select Singaporia
as the seat, Singaporia law governs the arbitration agreements, and Singaporia jurisprudence
consistently upholds separability.

[1.2.4] Commercial policy supports arbitral validity determination

17. It is respectfully submitted that in the context of increasingly expanding global trade and
investment, arbitration assumes a pivotal role in providing certainty, impartiality, and maintenance of
commercial relationships. In contrast to litigation, which tends to break up commercial relationships,
arbitration provides for resolution of disputes by an impartial private tribunal selected by the parties,
whose competence on complicated commercial issues ensures sensible and commercially sound
decisions.26
18. Arbitration is essentially a voluntary assumption of an obligation by contracting parties to resolve
their disputes through a private tribunal.27 The Court also points out that the obligation of courts is
to uphold this commercial understanding by giving "business efficacy" to the process of
arbitration.28 This philosophy of judges explains unequivocally that arbitration is not just a
procedural device, but a necessary means of ensuring predictability and efficiency in international
trade.29

19. The vast adoption of arbitration to resolve commercial disputes justifies a liberal interpretation of
the arbitration clause incorporated under Contract 1. In the absence of a liberal interpretation,
parties would otherwise be confronted with divided

24 BCY v. BCZ (2016) SGHC 249.

25 PIATCO v. Philippines, [2006] SGHC 206.

26 Harisankar K.S, Contemporary International Arbitration in Asia: A Stock Take, 3.1 IJAL (2014) 1.

27 A. Ayyasamy v. A. Paramasivam (2016) 10 SCC 386.

28 Prima Paint Corp. v. Flood & Conklin Mfg. Co., 388 U.S. 395 (1967).

29 Gary B. Born, International Commercial Arbitration 1607 (3d ed. 2021). 1000.

- MEMORIAL ON BEHALF OF PETITIONER -

[6:40 am, 14/9/2025] Anushree: SYMBIOSIS LAW SCHOOL PUNE - CHALLENGERS II SELECTION, 25-26

proceedings, whereby arbitral tribunals would be restricted to addressing issues of performance,

while courts would be burdened with independently deciding on validity.

This duplicity works against efficiency, raises costs, and threatens incoherent results, all of which go
against the building blocks of arbitration.

11.31 THE NECOTATION PRECONDION IN CONTRACT IS DIRECTORY AND DELE

SATISFIED BY FUTILITY

20. An arbitration proceeding is often preceded by other forms dispute resolution mechanisms. Such
pre-arbitral steps like negotiation or conciliation are normally directory, rather than being obligatory,
unless the clause is specific, time-bound, and objectively enforceable. Thus. such procedural
prerequisites cannot negate the substantive right to arbitrate. In Demerara Distilleries (P) Ltd v
Demerara Distilleries Ltd,30 the Court made it clear that escalation steps are not jurisdictional bars,
which essentially indicates that non-exhaustion of pre-arbitral negotiations does not render an
arbitration clause nugatory. This principle has also been widely acknowledged and upheld in Wah y
Grant Thornton International Ltd, ' wherein it was emphasised that that only clauses with certainty
and precise timelines can constitute true conditions precedent.

21. Notably, courts, also often distinguish between directory and mandatory preconditions, for
instance, in International Research Corp v. Lufthansa Systems,32 the Singapore Court of Appeal
noted that negotiation requirements are enforceable only if clearly drafted as strict conditions
precedent.
22. The policy that governs arbitration is efficiency, finality, and upholding party autonomy. Thus,
rigid enforcement of imprecise preconditions belies these goals by causing delay and procedural
uncertainty. Furthermore, since limitation periods are also taken into account by courts, if
preconditions were strictly implemented, a party may lose its substantive right to arbitrate merely by
following lengthy procedural steps.

23. In the instant factual matrix, the clause of negotiation in Contract 1 merely specifies a general
requirement of "mutual negotiation" without laying down duration, procedure, or objective
standards33 Therefore, such a clause is an indefinite one, and in12. Therefore, the intention of courts
have been to allow arbitrability of any dispute arising in connection with or out a contract,
irrespective of what the clause exactly states. For instance, the Singapore High Court took a
purposive approach in AYH v CI,? and it held that the language "in connection with covers up
disputes that are not immediately

contractual but nevertheless have a reasonable nexus.

13. In conclusion, arbitration is the most sought after means of dispute resolution in a commercial
dispute, hence, the inclination is towards providing greater powers to the arbitral Tribunals to
adjudicate any or all disputes that may be reasonably well-connected with the subject-matter of the
contract. Therefore, any challenge for validity, enforceability, or termination are thus "connected
with" the contract and are arbitrable under Contract 1, even though not expressly provided for.

/1.2.3/ Doctrine of Severability applicable

14. The doctrine of separability (or severability) holds that the arbitration clause is legally
autonomous from the underlying contract Thus, any allegation relating to the main contract being
void, voidable, terminated, or repudiated do not automatically extinguish the arbitration agreement.
Instead, the arbitration agreement survives to determine whether such allegations are valid. This
ensures that parties cannot avoid their agreed arbitral forum simply by attacking the validity of the
main contract. 23

15. It has been observed that the separability doctrine serves a specific and limited purpose within
arbitration law, which is to preserve the arbitration clause from being rendered [6:41 am, 14/9/2025]
Anushree: furtherance of the settled jurisprudence, such indefinite clauses will fail the test of
certainty and have to be construed as directory.

34 Therefore the parties need not prove the actual taking place of negotiation. The lack of
framework in Contract I's clause, added to the intransigent stand of the parties, renders further
negotiations useless. The Tribunal has the powers to deal with the dispute of non-performance by
WorldCoal at this stage.

ISSUE 2

WHETHER THE CLAIMS MADE BY INDICA STEEL AGAINST WORLDCOAL ARISING OUT OF CONTRACT 1
SHOULD BE CONSOLIDATED WITH THE CLAIMS ARISING OUT OF CONTRACT 2?

25. It is humbly contended that the claims made against WorldCoal arising out of Contract

1 should be consolidation with the claims arising out of Contract 2, for the reasons that:

[2.1] Laws of Singaporia govern the arbitration proceedings; [2.2] Consolidation under the laws of
Singaporia; [2.3] Essentials for consolidation satisfied; [2.4] Consolidation of claims shall be a more
effective mechanism.
[2.1| LAWS OF SINGAPORIA GOVERN THE ARBITRATION PROCEEDINGS

26. It is submitted that the principle that the seat of arbitration, or often called the lex arbitri, is the
juridical home of the arbitration, is well-settled in the eyes of law. Once the parties designate a
country as the seat of arbitration, the necessary implication is that arbitral proceedings is governed
by the procedural law established in the designated country, unless any contrary choice is made. 34

27. Notably, Singaporia courts have consistently upheld this "seat-centric" approach. In the case of
BCY v BCZ,35 a Singaporia High Court confirmed that the law of the seat will generally apply to the
arbitration clause unless parties expressly choose otherwise. In Overseas Union Insurance Ltd v
Turegum Insurance Co.,36 court emphasised on the

34 C v. D. [2022] HKCA 729.

35 BCY v. BCZ [2016] SGHC 249.

36 Overseas Union Insurance Ltd v. Turegum Insurance Co. (2001] 2 SLR(R) 285.

- MEMORIAL ON BEHALF OF PETITIONER -

[6:41 am, 14/9/2025] Anushree: SYMBIOSIS LAW SCHOOL PUNE - CHALLENGERS I SELECTION, 25-26

first step of identifying the governing law of the contract as being the express provision

in the contract itself.37

28. It is pertinent to note the choice of seat made in the contracts by Indica Steel and WorldCoal, to
determine the procedural law of the arbitration agreements, which shall further allow determination
of validity of consolidation of claims made by Indica Steel.

In the given case, both the contracts entered into, evidently designate Singaporia as the seat of the
arbitration by allowing arbitration rules of Singaporia to govern any dispute between the two parties
in Contract 1, and by allowing any questions of existence, validity. or termination to be administered
by Singapore International Arbitration Centre. giving effect to Singaporia law as the governing law of
the arbitration agreement. 38 Therefore, the question of consolidation, which is primarily a
procedural question shall be governed by the laws of Singaporia, in essence, the SIAC Rules, 2025.

[2.21 CONSOLIDATION UNDER LAWS OF SINGAPORIA

29. It is humbly contended that all the requisite essentials of a consolidation under the laws of
Singapore are satisfied in the given factual matrix, and this is elaborated in a twofold manner - [2.2.1]
Singapore International Arbitration Act, 2001 empowers consolidation where parties agree; [2.2.2]
Consolidation is allowed under Singapore International Arbitration Rules, 2025.

/2.2. 1/ Singapore International Arbitration Act, 2001 empowers consolidation where parties agree

30. Section 26 of the Singapore International Arbitration Act (Cap. 143A)39 states that parties can
agree to consolidate arbitral proceedings or to conduct concurrent hearings, and also makes it clear
that in the absence of such agreement, the tribunal does not have the authority to direct
consolidation. In the current case, both Contract 1 and Contract 2 specifically make reference to the
SIAC Rules, which under R. 16.1(c) and R. 16.8, bestow consolidation jurisdiction on the institution
and tribunal, before and after the constitution of the tribunal, respectively. In adopting the SIAC
Rules contractually. [6:41 am, 14/9/2025] Anushree: SYMBIOSIS LAW SCHOOL PUNE - CHALLENGERS
II SELECTION, 25-26
according to Section 26. The statutory threshold for Singaporia law is thereby fulfilled, and
consolidation is procedurally valid.

2.2.2/ Consolidation is allowed under Singupore International Arbitration Rules, 2025.

31. Consolidation is a recognized tool for efficiency, avoiding inconsistent awards, and preventing
multiplicity of proceedings under SIAC. Thus, under R. 16.1 (e) and R. 16.841 of SIAC Rules (7th Ed.)
consolidation is permitted if (i) all arbitration agreements are compatible: and (ii) the disputes arise
out of the same legal relationship, or out of a series of contracts consisting of a principal and
ancillary contracts). In the given case, both these essentials are followed, which is fu…

[6:42 am, 14/9/2025] Anushree: SYMBIOSIS LAW SCHOOL PUNE - CHALLENGERS // SELECTION, 25-26

12.3.2/ Contract 2 is collateral bargain to Contract 1

34. Sinpaporian courts have consistently recognithough not treabily of colton

34. Singaporian courts have consistently recognised the enforceability of collateral bargains where a
promise or side arrangement, though not forming part of the main contract, nevertheless arises in
the course of negotiations and satisfies the requirements of a binding agreement. In Konica Minolta
Business Solutions Asia Pte Lid v NPE Print Communications Pte Ltd 42 the High Court observed that
a statement, even if not a term of the principal contract, may still constitute a collateral bargain. This
builds on Citicorp Investment Bank (Singapore) Ltd v Wee Ah Kee, 43 where an option outside

the contract was treated as a valid collateral bargain.

35. Furthermore, the courts have also clarified that such collateral agreements must still meet the
traditional requirements of contract formation, including promissory intent, certainty of terms,
intention to create legal relations, and consideration 44

36. Notably, in the given factual matrix, Contract 2 was negotiated only because WorldCoal failed to
deliver under Contract 1, and was intended to supplement the same supply arrangement to secure
Indica Steel's operational continuity. 45 WorldCoal's assurance was clearly promissory in nature, the
terms were definite, in terms of quantity, price, laycan, and payment, both parties intended legal
enforceability, and consideration flowed in the form of Indica Steel's continued commitment.
Therefore, the subsequent contract clearly satisfies all necessary essentials of a collateral contract.

[2.3.3/ Two contracts arise out of the same legal relationship

37. Two contracts may be treated as part of the same legal transaction wherein they share a
common commercial purpose, are mostly interdependent in performance, and contain no conflicting
dispute resolution clauses. 46 The test is one of commercial construction, rather than formal
separation. In the English case of Terre Neuve, such interdependent commercial transactions have
been called a "single package". Therefore, courts look for a package discussed almost at the same
time, same subject, or conditionality between the parts."

47

12 Konica Minolta Business Solutions Asia Pte Ltd v, NPE Print Communications Pte Ltd (2023] SGHC
144.

43 Citicorp Investment Bank (Singapore) Ltd v. Wee Ah Kee [1997] 2 SLR(R) 1.

44 Lemon Grass Pte Ltd v. Peranakan Place Complex Pte Ltd [2002] 2 SLR(R) 50.
45 Moot Proposition, 12, Symbiosis Law School, Pune Challenger II 2025-26.

46 Gary B. Born, International Commercial Arbitration 1616 (3d ed. 2021), pp. 1000.

47 Terre Neuve SARL & Ors v. Yewdale Ltd & Ors, [2020] EWHC 772 (Comm).

10

- MEMORIAL ON REUAL E OE DETITIAAITT

[6:42 am, 14/9/2025] Anushree: SYMBIOSIS LAW SCHOOL PUNE - CHALLENGERS II SELECTION, 25-26

28. WorldCoal was obligated to ship coal from Indonesian in between March 15 to 31. however, it
failed to do so. Up until the end of March, WorldCoal's nominated vessel dud had not arrived at the
discharge port, thus, anticipating operational hindrances, India Steel entered into a subsequent
contract to bridge the gap between its coal requirements for the urgent supply of thermal coal from
Chonga.48 Moreover, the parties themselves have regarded Contract 2 as a contingency measure
resulting out of the non-performance under Contract 1 by reasons of continued global supply chain
disruption. 49

39. In conclusion, the above facts indicate that the two contracts are not separable bargains but part
of an integrated commercial agreement. This is primarily because Contract 2 did not arise in a
vacuum, rather was an immediate contingent plan that was triggered by WorldCoal's default in
executing Contract 1 within the specified laycan. Both agreements were entered between identical
parties, dealt in identical commodity, and served the same commercial objective, which is the
continuity of supply of coal to Indica Steel's captive power plants. They in fact, form part of a "single
package," where the second agreement is only understandable and apprehensible in the context of
the first agreement. Most importantly, neither contract has any contradicting dispute resolution
clause to prevent the disputes under each to be decided collectively. Thus, on a fair construction,
Contract 1 and Contract 2 form a single transaction agreement under SIAC R. 16.1(c) and R. 18 that
deserves consolidation of proceedings to give effect to the commercial intent of the parties and
avoid inconsistent or split awards.

03

[2.4] CONSOLIDATION OF CLAIMS SHALL BE A MORE EFFECTIVE MECHANISM

40. It is submitted that consolidation for the claims made by Indica Steel under Contract 1 and
Contract 2 shall result be a more effective mechanism to resolve the dispute, and this contention is
submitted in a four-fold manner: [2.4.1] Arbitration clauses of two

contracts resonate; [2.4.2] Consolidation avoids duplicity; [2.4.3] No prejudice to opposite party.

48 Moot Proposition, 113, Symbiosis Law School, Pune Challenger II 2025-26.

* Moot Proposition, 914, Symbiosis Law School, Pune Challenger II 2025-26.

1]

- MEMORIAL ON BEHALF OF PETITIONER - [6:42 am, 14/9/2025] Anushree: 41. It is to be noted that
the dispute resolution clause under both the contracts entered ins between Indica Steel and
WorldCoal resonate in terms of the means of resolution to is arbitration, and further the substantive
and procedural law, and the language y arbitration are all similar. Thus, Contract 1 and Contract 2
both have arbitration claus that elearly state Singapore as the seat of arbitration and SIAC Rules as
the proced nor do they narrow down the ambit of arbitration by excluding exceptions. In contras the
clauses are congruent in terms of substance and effect: both prescribe that "any governing rules.
Neither contract presents a conflicting forum or law of governance. disputes arising out of or in
connection with the agreement" shall be submitted in arbitration prior to SIAC in Singapore. This
textual congruity reflects that the parties, clearly chose to have a shared mechanism of dispute
resolution in both contract emphasising their commercial design for preventing fragmentation and
settling all disputes before one unified, cohesive forum. Thus, the clauses for dispute resolution in
the two agreements resonate perfectly, removing any procedural hindrance to

consolidation.

2.4.2/ Consolidation avoids duplicity

42. It is respectfully submitted that consolidation of the disputes under Contract I and Contract 2
would be in the interests of justice and efficiency, which is one of the fundamental aims of
arbitration under any law. ° International practice in arbitain. including under Singapore law, accepts
that split proceedings not only email duplicating effort and cost but also expose an unfortunate risk
of inconsistent resus. especially where disputes relate to interrelated contracts.s1

43. In Tomolugen Holdings Ltd v Silica Investors Ltd,s2 the Court acknowledged that arbitral
procedure has to tread carefully between party autonomy and avoiding multiplicity of actions. The
need for efficiency and consistency in arbitral proceedings have been time and again upheld, as
against procedural ineffectiveness and reasonably justified delivery of arbitral awards.53

50 Roussel-Uclaf v. G.D. Searle & Co [1995] 1 Lloyd's Rep 375.

Sl Société Nationale, Turner v. Grovit, [2001] UKHL 65.

52 Tomolugen Holdings Ltd v. Silica Investors Ltd [2016] 1 SLR 373.

53 PT First Media TBK v. Astro Nusantara International BV [2013] 1 SLR 372.

12

- MEMORIAL ON BEHALF OF PETITIONER -

[6:43 am, 14/9/2025] Anushree: d into

1 that ge of uses

Tural

nce,

ast, any to ies

ts,

all

to

SYMBIOSIS LAW SCHOOL PUNE - CHALLENGERS II SELECTION, 25-26

44. Therefore, fragmented arbitration in the instant case would not only be duplicative but also
illogical. Both contracts share the same parties, the same subject-matter (thermal coal). and factually
and legally connected disputes. The evidence on Contract 1 performance breaches will inevitably fall
within the Contract 2 contingency measures.

Thus, two different arbitrations would compel the tribunal to repeat the same witnesses, review the
same commercial context again, and calculate duplicative damages. Even worse, parallel proceedings
may result in conflicting awards on risk apportionment and liability. In this context, consolidation
shall prevent this duplicity and allow the tribunal to consider the disputes in their entirety, with an
understanding of Contract 2 in relation to Contract 1, and hence deliver an award that reflects the
actual commercial deal between the parties.

[2.4.3/ No prejudice to opposite party

45. It is further submitted that consolidation of the two arbitration proceedings would not cause any

prejudice to WorldCoal, as the opposite party here. Prejudice is a

consideration of relevance both under Singapore law and arbitral practice, inasmuch as tribunals
have to ensure that procedural efficiency does not lead at the expense of fairness. In BBA v BAZ,54
the Singaporia Court of Appeal held that prejudice must be real and substantial, as opposed to
speculative, to warrant resisting a procedural mechanism in arbitration. Furthermore, in Soh Beng
Tee & Co Pte Ltd v Fairmont Development Pte Ltd,55 it was observed that an act or process must
surpass the boundaries of legitimate expectation and propriety, culminating in actual prejudice to
the party.

46. In this case, consolidation does not encroach on WorldCoal's procedural rights, neither will
consolidation result in prejudice to WorldCoal's rights. Again, as both contracts have the same
parties, the same governing law, and uniform arbitral institution.

WorldCoal had freely consented to SIAC arbitration in both agreements, and consolidation only
directs those disputes into one forum without broadening the scope of its obligations. There is no
danger of WorldCoal being pushed into an unexpected forum, nor of introducing any new cause of
action.

47. Therefore, consolidation not only does not prejudice the parties procedurally but actually
protects the parties' interested and legitimate rights to cost-effectiveness,

S4 BBA v. BAZ [2020] SGCA 53.

35 Soh Beng Tee & Co Pte Ltd v. Fairmont Development Pte Ltd, [2007] 3 SLR(R) 86.

13

MEMORIAL ON BEHALF OF PETITIONER -

[6:43 am, 14/9/2025] Anushree: SYMBIOSIS LAW SCHOOL PUNE - CHALLENGERS II SELECTION, 25-26

consistency, and fairness.

The Respondent has no basis to complain of disadvantage

very forum WorldCoal itself chose under both agreements.

from consolidation since it only guarantees that the disputes be tried together in the

ISSUE 3
WHETHER INDICA STEEL IS ENTITLED TO CLAIM DAMAGES AGAINST WORLDCOAL AMOUNTING TO A
TOTAL OF USD 4.410,000, INCLUDING THE CLAIM OF:

1. USD 2,840,000 UNDER CONTRACT 1

II. USD 1,570,000 UNDER CONTRACT 2

48. It is humbly submitted that Indica Steel is indeed entitled to claim damages against Worldcoal
amounting to a total of US Dollar 4,410,000 including the claims of Us»

2,840,000 arising out of the delayed delivery under Contract 1 and USD 1,570,000

arising out of non-performance under contract 2. The submission is elaborated in a fivefold manner:
[3.11 Indican law allows the claim of damages; [3.2] Force Majeure clause is not satisfied under
Contract 1 133) Consequential damages under Contract are recoverable; [3.41 Breach of obligations
under Contract 2; [3.5] Damages under

Contract 2 are recoverable.

[3.1| INDICAN LAW ALLOWS THE CLAIM OF DAMAGES

49. Governing law, sometimes referred to as the "proper law of the contract," is the material law
which applies to the interpretation, validity, performance, and enforcement of the contractual
obligations and rights of the parties. It is settled that the law governing the contract should be
separated from the law of the seat of arbitration (lex arbitri).

While the latter controls intellectual arbitral conduct and procedure, the former has control over the
substantive rights and liabilities of parties. In Bharat Aluminium Co. v Kaiser Aluminium Technical
Services Inc.,56 the Supreme Court has emphasised this difference by holding that the law applicable
to the arbitration agreement and the lex arbitri are notionally distinct from the law controlling the
contract.

50. Indican law has always acknowledged the pre-eminence of the parties direct choice of the
governing law. In NTPC v Singer Co.,57 the Court reiterated that where parties have specified a
governing law, that law alone shall govern substantive rights and

56 Bharat Aluminium Co. v. Kaiser Aluminium Technical Services Inc. (2012) 9 SCC 552.

57 NTPC v. Singer Co. (1992) 3 SCC 551.

14,[6:44 am, 14/9/2025] Anushree: obligations, regardless of the arbitral seat. More recently, in
Union of India v Hardy Exploration & Production (India) Inc.58 the Court made it clear that a tribunal
will have to apply the law explicitly opted by the parties to the contract while ascertaining liability.
breach, and damages. These adjudications show that party autonomy in selecting governing law is
absolute and needs to be honoured by arbitral tribunals.

51. It is submitted that the law governing both the contracts in the given factual matrix, being Indian
law requires the tribunal to decide liability, breach, and damages in the context of the Indian
Contract Act, 1872, other relevant statutes and relevant Indican judicial precedents. The Singapore
law only applies to the procedure of arbitration. whereas substantive rights are decided under Indian
law. Therefore, non-performance of obligation under Contract 1 and Contract 2 by WorldCoal under
the and need to be analysed based on the well-settled Indian doctrine of contractual performance
and breach, and the damages entitled thereto shall be on the basis of these laws.
13.21 FORCE MAJEURE CLAUSE IS NOT SATISFIED UNDER CONTRACT 1

52. It is humbly submitted that the force majeure clause incorporated in Contract is not fully satisfied
and therefore, the non-delivery of coal by WorldCoal results in breach of contract. The submission is
therefore, made in a three-fold manner - [3.2.1] Time of essence in Contract 1; [3.2.2] No Notice
served; [3.2.3] Doctrine of frustration not applicable.

3.2.1/ Time of essence in Contract 1

53. In the law of contract, the term "time is of the essence" means that timely performance is not
just procedural but essential to the bargain. Where time is of the essence, any delay from the
contracted timeline defeats the very purpose of the agreement and warrants the aggrieved party to
declare the contract as broken. $9

54. In Indican law, whether "time is of the essence" will be a matter of intention of the parties, to be
inferred from terms of the contract, nature of the transaction, and the surrounding facts. The general
rule of Section 55 of the Indian Contract Act, 1872,60 is that where time is expressly made of the
essence, non-performance within such time

8° Indian Contract Act, 1872, § 55, No. 9, Acts of 1872, (India).

A REHALF OF PETITIONER -

[6:44 am, 14/9/2025] Anushree: renders the contract voidable at the promise's discretion. Where
time is not technically stated to be of the essence, but timely performance is essential to the
commercial nature of the contract, courts are willing to imply this. It is recognised that in commercial
contracts for sale of goods. particularly where the commodity is subject to market fluctuations or
tied to downstream obligations, time is ordinarily of the essence."

55. Additionally, the Supreme Court in Hind Construction v. State of Maharashtrag clarified that
whether time is of the essence depends on the intention of the parties, to be gathered from the
terms of the contract. Even when time is expressly made essential, the clause must be read in
harmony with the rest of the contract to see if timely performance was intended to be fundamental.
Parallelly, in Phulchand Exports Ltd. v.

0.0.0. Patriot,63 the Court held that in the case of a CIF contract, shipment within the laycan period
is a basic obligation and delay in shipment is a threshold breach.

56. The Court also relied on English authorities, such as Lamprell v. Billericay Union, which establish
that failure to comply with stipulated time frames constitutes breach

Where timely completion goes to the root of the agreement.

57. Now, in Contract 1, Clause 3.2 mandated that shipment be made within the laycan of 15 March
2025 to 31 March 2025, and expressly stated that "failure to deliver the goods within this period
shall constitute a breach, unless otherwise mutually agreed in writing" , reflecting the intention of
the parties to treat time as essence in the contract 6s

58. The contracts here are CIF supply agreements for thermal coal, whereby, any delay directly
disrupts electricity generation and downstream steel supply obligations.

WorldCoal's shipment under Contract 1 arrived almost two months late. Therefore, the Respondent's
failure to deliver within the stipulated laycans constitutes a breach going to the root of the
agreements
[3.2.2/ No Notice served

59. Under the Indican law, force majeure is mainly a contractual concept and not an independent
statutory doctrine. It is only to the extent that the contract itself expresses so that relief can be
granted, and procedural preconditions in the force majeure clause must be followed. Often, prior
notice is to be served as a pre-condition to claim

6 China Cotton Exporters v. Beharilal Ramcharan Cotton Mills AIR 1961 SC 1295.

62 Hind Construction v. State of Maharashtra (1979) 2 SCC 70.

63 Phulchand Exports Ltd. v. 0.0.0. Patriot (2011) 10 SCC 300.

64 Lamprell v. Billericay Union, (1849) 3 Exch 283.

65 Moot Proposition, Cl. 3.2, Contract 1, Symbiosis Law School, Pune Challenger I| 2025-26.

16

- MEMORIAL ON REA

[6:45 am, 14/9/2025] Anushree: cally

ture

Cial

Ket

, 02

to

ly

1.

SYMBIOSIS LAW SCHOOL PUNE - CHALLENGERS I SELECTION, 25-26

protection for non-performance under a contract containing force majeure clause. The court has
allowed opposite parties to claim relief on grounds of failure to provide notice for non-supply of
promised good within stipulated time. 66

60. The provision to serve notice in a force majeure clause exists to enable the unaffected Darty to
safeguard its commercial interests by mitigating losses and arranging alternative supplies. Courts
have consistently upheld this rationale, observing that failure to notify unjustly deprives the
counterparty of the opportunity to take timely remedial steps to prevent losses.

61. In the case at hand, Indica Steel relied on a constant supply of thermal coal in order to continue
operations within its captive power plants. If WorldCoal had given timely notice of the global supply
chain disruption, Indica Steel would have been able to arrange replacement cargoes earlier at more
favourable prices. WorldCoal never gave notice within the 10 days of occurrence of the supervening
event as per the mandate under Clause 9.2, and by not doing so, WorldCoal put Indica Steel in a
position of facing mounting spot-market prices, uncertainty of operations, and default of its
downstream commitments." This failure also prejudiced Indica Steel directly, by compromising its
capacity to plan fuel stock, causing plant underutilisation, financial loss, and disconnection in supply
undertakings to third parties.

L3.2.3/ Doctrine of frustration not applicable

62. In cases of default of performance due to an event beyond the control of parties, courts have
often tried to narrowly apply the doctrine of frustration to determine whether or not a contract
becomes frustrated when there is mere hindrance in the performance of contract.68 It is clear that a
more onerous method of performance by itself would not amount to a frustrating event. 9
Furthermore, in Satyabrata Ghose v. Mugneeram Bangur & Co.,º the court held that a contract is
frustrated only when the impacted party can no longer achieve its intent for the transaction, all
parties to the contract were aware of the impacted party's primary purpose for entering into the
contract; and the frustration was caused by a qualifying supervening event. Thus, again, mere
hardship does not frustrate contract or exempt a party from the performance. Therefore, the [6:46
am, 14/9/2025] Anushree: SYMBIOSIS LAW SCHOOL PUNE - CHALLENGERS II SELECTION, 25-26

global supply chain disruptions cited by WorldCoal at the most equate to commercial delay and
hardship, rather than impossibility. The purpose of both the contracts was to supply coal to Indica
Steel's plants, which was still within reach, as demonstrated bu Indica Steel's capacity to arrange
alternative supplies on the spot market.

13.3| CONSEQUENTIAL, DAMAGES UNDER CONTRACT I ARE RECOVERABLE

63. The governing principle of damages is compensatory, which is essentially aimed to place the
injured party in the same financial position as if the contract had been performed." Section 73 of the
Indian Contract Act, 1872,72 is built on this principle as it sufficiently provides for compensation for
losses that arise naturally in the usual course of transaction, and also the losses that the parties knew
to be likely at the time of contracting. 7Thus, in doing so, the court also applies the test of
remoteness as propounded in Hadley v. Baxendale, whereby any loss remotely associated with a
breach of contract or non-performance is usually not compensated.

64. This principle becomes relevant here as Contract 1 fixed a strict laycan of 15 to 31 March 2025,
with time made of the essence, however, WorldCoal's vessel arrived only on 25 May 2025, nearly
two months late. As previously highlighted, Indica Steel's captive power supply and steel production
were disrupted, causing operational backlog, downstream contractual penalties, demurrage, and
increased costs. Such losses arise directly from late delivery. In a CIF commodity supply contract,
delay in shipment naturally interrupts the buyer's production line. For a steel plant dependent on
timely coal imports, disruption in power supply inevitably causes production backlog and penalties.
These are the ordinary and natural consequences of breach,

65. However, even if such losses are treated as consequential, they are in fact, well within the
reasonable contemplation of both parties. WorldCoal knew, from the very start, that Indica Steel
relied on imported coal for running its captive power plants. A trader in WorldCoal's position would
foresee that delays would trigger contractual penalties and extra costs.

66. Accordingly, Indica Steel is entitled to consequential damages under Contract 1. The disruption,
penalties, and backlog were foreseeable and quantifiable, and flowed

" Robinson v. Harman (1848) 1 Ex Rep 850

12 Indian Contract Act, 1872, § 73, No. 9, Acts of 1872, (India)

73Pollock & Mulla, The Indian Contract and Specific Relief Acts (15th ed. 2017, LexisNexis), pp. 1144-
1165.

74 Hadley v. Baxendale, (1854) 156 Eng. Rep. 145 (Exch.).

18

MEMORI.

[6:46 am, 14/9/2025] Anushree: al

SYMBIOSIS LAW SCHOOL PUNE - CHALLENGERS II SELECTION, 25-26

directly from WorldCoal's breach. Under Section 73 and established common law, the claim for USD
2,840,000 is recoverable in full.

[3.4| BREACH OF OBLIGATIONS UNDER THE CONTRACT 2

67. In a CIF contract, the seller's obligations are not only documentary but also substantive: the seller
must ship goods conforming to the contract description on a vessel bound to the stipulated
destination within the agreed laycan. A late shipment, or shioment on a vessel not committed to the
agreed port, constitutes a breach at the threshold.?5 Section 26 of the Sale of Goods Act, 1930,76
reinforces this principle by providing that where delay is due to the seller's fault. risk continues to
rest with the seller, and is only passed to the buyer when they are put in transit for delivery.

68. The principle is also recognised on an international level, for instance, in Cargill International SA v.
Bangladesh Sugar and Food Industries Corp,?8 the seller's failure to adhere to the shipment window
was treated as a breach of the contract and the court held seller liable to pay damages. The English
CIF jurisprudence, which Indian courts frequently rely upon, therefore, also underscores that timely
shipment is of the essence in a contract.?9

69. Notably, WorldCoal failed to perform its fundamental obligation under Contract 2 by refusing to
accept payment via Letter of Credit (L/C) and insisting, contrary to the express terms of the contract,
on a Telegraphic Transfer (TT). 8º The payment clause in Contract 2 provided that payment would be
through an irrevocable L/C, with only limited scope for variation, and Indica Steel remained ready
and willing to comply. By unilaterally altering the agreed mode of payment, WorldCoal repudiated
the bargain and disabled performance. This amounted to a fundamental breach because it struck at
the core of the contract's financial structure.

70. The failure to perform under Contract 2 had severe commercial consequences. The laycan was
fixed for 1 to 15 May 2025, but no vessel ever arrived, and no coal was delivered. Indica Steel was left
with an acute shortage of thermal coal, essential for its Article 75 of CISG, Opinion No. 8 entitles
recovery of the disparity between the contract price and the price in a cover transaction, subject to
the cover being made reasonably and within reasonable time: additional damages under Article 74
may further be recovered. Indica Steel bought substitute coal at then-prevailing market price (USD
115.08/MT), in a reasonable and timely way, when the contract was breached by WorldCoal. The
contract settled the price expressly (USD 62.75/MT), fulfilling the requirements for Articles 75. Indica
Steel executed a cover purchase (substitute transaction) soon after repudiation, in good faith, and at
open market price, satisfying the two basic requirements. Therefore, damages claimed are equal to
the price difference.''