10th National Moot Court Competition
TC-01
TC- 01
10TH NATIONAL MOOT COURT COMPETITION, 2023
IMS UNISON UNIVERSITY, DEHRADUN
BEFORE
THE HON’BLE HIGH COURT OF DELPHI
(COMMERCIAL DIVISION)
ORIGINAL JURISDICTION
PETITION NO._______ OF 2023
IN THE MATTER OF
READON PVT. LTD. ……………………………………...PLAINTIFF
v.
LITHIUM EXTRACTOR PVT. LTD. ….…………………..DEFENDENT
INVOKED UNDER S.10(2) r/w S.21 OF THE COMMERCIAL COURTS ACTS
UPON SUBMISSION TO THE HON’BLE BENCH OF HIGH COURT OF
DELPHI (COMMERCIAL DIVISION)
- MEMORIAL FILED ON BEHALF OF THE PETITIONERS 1
10th National Moot Court Competition
TC-01
TABLE OF CONTENTS
INDEX OF AUTHORITIES ................................................................................................. 3
CASES: ......................................................................................................................... 3
LIST OF ABBREVIATIONS................................................................................................ 6
STATEMENT OF JURISDICTION ...................................................................................... 7
STATEMENT OF FACTS .................................................................................................... 8
STATEMENT OF ISSUES ................................................................................................. 10
SUMMARY OF ARGUMENTS ......................................................................................... 11
ARGUMENTS ADVANCED ............................................................................................. 13
ISSUE I -WHETHER THE COURT CAN GRANT INTERIM RELIEF IN FAVOUR OF
RPL? ............................................................................................................................... 13
(1.1)
THE RIGHT TO APPLY FOR INTERIM RELIEF UNDER S. 9(1)(ii)(e) r/w S.
42 of the Arbitration & Conciliation Act, 1996 ............................................................ 14
(1.2)
GROUNDS FOR CHALLENGING THE ARBITRATOR UNDER S.12(3) HAS
BEEN FULFILLED. ................................................................................................... 16
(1.3)
FULFILLING THE CONDITIONS TO ASSERT INTERIM ORDER UNDER
RULE 1 OF ORDER XXXIX, CPC, 1908. .................................................................. 17
ISSUE 2- WHETHER THE COURT HAS JURISDICTION TO ENTERTAIN LEGAL
PROCEEDINGS AGAINST THE SOLE ARBITRATOR? ............................................. 19
(2.1) GROUNDS FOR CHALLENGE WERE FULFILLED BY THE SOLE
ARBITRATOR ........................................................................................................... 19
(2.2) NEGLIGENCE FROM THE SIDE OF ARBITRATOR PUTS QUESTION ON HIS
MANDATE................................................................................................................. 22
ISSUE 3 – WHETHER THE ARBITRATION AWARD CAN BE SET-ASIDE ON THE
GROUND OF LACK OF INDEPENDENCE AND IMPARTIALITY? ........................... 26
(3.1) NON- MAINTAINENCE OF INDEPENDENCE DURING THE PROCEEDING
.................................................................................................................................... 27
(3.2) FALIURE TO DISCLOSE RELEVANT INFORMATION LEADING TO
PARTIALITY ............................................................................................................. 31
(3.3) INELIGIBILITY OF DR BRUCE WAYNE DUE TO FAMILIAL AND
PROFFESSIONAL ASSOCIATIONS CREATING BIASEDNESS ............................ 34
PRAYER ............................................................................................................................ 37
2
10th National Moot Court Competition
TC-01
INDEX OF AUTHORITIES
CASES:
 M/s. Kamla Solvent v Manipal Finance Corporation Ltd AIR 2001 Mad 440
 Ashokan Managing Partner , Kartiyayni Oil Mills v. Jayan AIR 1998 Ker 256 (257)
 Suresh Dhanuka v. Sunita Mohapatra AIR 2012 SC 892 ; (2012) 1 SCC 578,
 Sundaram Finance Ltd v. M.K Kurian 2006 (1) RAJ 493 ;
 In house production Pvt Ltd v.Meediya Plus 2005 (1) RAJ ;
 Globe cogeneration power Ltd v. Hiranyakshi Sahakari Sankeshwar, AIR 2005 Kant
94 ;
 Archcon & others(M/s.) v. M/s. Sweda Construction Co. & others AIR 2005 Gau 58;
 Kohli Bros v. Atlantis Multiplex Pvt Ltd AIR 2008 All 43
 Deccan Asian Infrastructure (Mauritius) Inc v BPL Communications Ltd 2005 (2) Ard
LR 450
 Sasken communication technologies limited vs Prime Telesystems Ltd. 2003 (1) RAJ
317 (Del) Union of India vs Supreme Paper Moves Ltd 2005 (1) RAJ 85 (Del)
 Fateh Chand v Moti Ram AIR 1953 Punj 105
 DLF Industries Ltd vs Standard Charter Bank AIR 1999 Del 11
 Akla Builders Pvt Ltd v Cityscape Developers Pvt Ltd AIR 2003 NOC 264 (Cal)
 Universal Court and trading Company vs Garhwal Mandal Vikas Nigam Ltd AIR
2004 All 115
 Bulk Trading S. A. v Dalmia Cement (Bharat ) Ltd. 2006 (1) RAJ 54.
 Abhoy Sarkar v. UOI (1986) 2 Cal LJ 59
 N.K Bajpai v. UOI AIR 2005 RAJ (135)
 Swadeshi Cotton Mills v. UOI (1981) 1 SCC 664
 Tata Capital Financial Services Ltd. V. Unity Infra Projects Ltd and Others 2015
SCC Online Bom. 3597
 Natcrip Implememtation Society v. IVRCL Ltd, 2016 SCC Online 5023
 Sushil Pandit v. Adsert Web Solutions (P) Ltd. 2012 RAJ 556 (Del)
 O.N.G.C Ltd v. Jagson Intl. Ltd. 2005 (3) Arb LR 167 (Bom)
 Satyendra kumar v hindu construction Ltd. AIR 1952 Bom 227
3
10th National Moot Court Competition
TC-01
 Gopaldas Lalsingh AIR 1933 Sind 68
 Koshy v K.S.E. Board AIR1984 Ker 23.
 HRD Corporation v. Gail Ltd , (2018) 12 SCC 471
 Mohammed wahiduddin v hakiman ILR29 Cal 278
 Nihal Chand v shanti Lal 1935 Oudh 349
 Yusuf khan v Riyasat Ali AIR 1926 Oudh 307
 Kali Prosanno Ghose v Rajani Kant Chatterjee ILR (1897) 25 Cal 141
 S.K. chawla, law of arbitration & conciliation ,2nd etd , pg 334
 Union of India v. Reliance Industries Ltd 2023 SCC Online Del 2666,
 Suresh Chandra Maurya v. Rajendra Rajak (2006) 7 SCC 800
 Central coal fields limited versus Gauri Shankar Singh Ramshankar Singh and
company 1998 Raj 53
 I.A.E.C India limited v. Delhi Development Authority 1998 AIHC 1350
 Santa Sheela Devi vs Dhirendranath Sen AIR 1963 SC 1677
 Asadullah Makhdoomi v. Lassa Baba AIR 1966 J&K 1
 Salwan Furnishing Company v Delhi Development Authority 1987 ARB LR 36
 National Electric Supplying and Trading Corporation Pvt Ltd v Punjab State AIR
19603 Punj 56
 Oil and Natural Gas Corporation Ltd v . SAW Pipes Ltd 2003 (3) SC 449
 Smita Conductors Limited v. Euro Alloys Limited 2001 7 SCC 728
 Rail India Technical and Economic Services Limited v. Rani Constructions AIR 2002
NOC 30
 Devika Mehra v. Ameeta Mehra 2005 1 Raj 70
 Food Corporation of India v. A.M. Ahmed & Co AIR 2007 SC 829
 Joginder Singh Goolry v. Jaswinder Singhsinh AIR 1999 Guj 103
 Samantary Construction Pvt. Ltd v. State of Orissa 2007 (2) Arb LR 309
 Aloki India Ltd v. Mira Int’l 2006 (3) RAJ 517
 Ghulam Mahomed Khan v. Gopaldas Lalsing AIR 1933 Sind 68
 Nand Kishore v International Marcantile Corporation Limited AIR 1953 Cal 415
 Punjab State v. Chandrabhan Harbhajan Lal AIR 1964 Punj 424
 Turner v. Rose 1756 (1) Ld Ken 393
 Madan Lamba v. Jagdish Lamba 2003 (1)Arb LR 517
 Voestalpine Schienen GmbH v. Metro Rail Corpn. Ltd , 2017 4 SCC 665
4
10th National Moot Court Competition
TC-01
 Hasmukhlal H. Doshi v. M. L. Pendse, 2000 SCC OnLine Bom 242,
 Picture House Ltd v. Wednesbury Corp 1948 1 KB 223
 Haryana Space application centre (HARSAC) v Pan India consultants
Pvt Ltd.3 SCC 103
 Chintels India Ltd. v. Bhayana Builders Pvt. Ltd. (2018) 3 SCC 265;
 Hindustan Petroleum Corporation Ltd. v. Pinkcity Midway Petroleums (2003) 6
SCC 503;
 Manak Lal v. Dr. Prem Chand Singhvi AIR 1957 SC 425;
 S. Parthasarathi v. State of Andhra Pradesh AIR 1974 SC 2092;
 Krishna Kumar Birla v. Rajendra Singh Lodha (2015) 4 SCC 129;
 B.R. Kapoor v. State of Tamil Nadu (2001) 7 SCC 231
 Bharat Aluminium Co. v. Kaiser Aluminium Technical Service, Inc. (2012) 9 SCC
552;
 Rajasthan State Mines and Minerals Ltd. v. Eastern Minerals & Trading Agency
(2019) 9 SCC 544;
 M/s. Ambica Construction v. Union of India (2017) 14 SCC 74
 Union of India v. Tantia Construction Pvt. Ltd. (2016) 8 SCC 377;
 Datar Switchgears Ltd. v. Tata Finance Ltd. (2000) 8 SCC 151
 M/s Indian Farmers Fertilizer Cooperative Limited v. M/s Bhadra Products (2018) 2
SCC 534;
 Sasan Power Ltd. v. North American Coal Corporation India Pvt. Ltd. (2016) 10
SCC 813;
 Antrix Corporation Ltd. v. Devas Multimedia Pvt. Ltd. (2018) 2 SCC 732
BOOKS AND STATUES
 Code of Civil Procedure , 1908
 Arbitration and Conciliation Act,1996
 Commercial Courts Act 2015
 S.K, Chawla Law of Arbitration and Conciliation 2 nd Edn
 Law Relating to Arbitration and Conciliation by P C Markanda – 11th edition 2022.
WEBSITES / LINKS
 https://www.scconline.com/
 https://www.manupatrafast.com/
5
10th National Moot Court Competition
TC-01
LIST OF ABBREVIATIONS
SR.NO.
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
12.
13.
14.
15.
16.
17.
18.
19.
20.
21.
22.
23.
24.
25.
ABBREVIATIONS
AIR
ANR
APPl.
A&C
Art.
C.J.
COI
Const.
Cal
Del
Ed.
HC
Hon’ble
J&K
No.
Ors.
P.
Para
SC
SCC
Sec.
r/w
RAJ
UOI
U/S
FULL FORM
All India Report
Another
Application
Arbitration and conciliation
Article
Chief Justice
Constitution of India
Constitution
Calcutta
Delhi
Edition
High Court
Honourable
Jammu and Kashmir
Number
Others
Page no.
Paragraph
Supreme Court
Supreme Court Case
Section
Read with
Rajasthan
Union of India
Under section
6
10th National Moot Court Competition
TC-01
STATEMENT OF JURISDICTION
The Petitioner humbly approaches the Hon’ble High Court of Delphi (Commercial
Division) of Indiana under Section 10(2) r/w Section 21 of the Commercial Courts Acts ,
2015 .
10(2). Jurisdiction in respect of arbitration matters.—Where the subject-matter of an
arbitration is a commercial dispute of a Specified Value and––
(2) If such arbitration is other than an international commercial arbitration, all applications or
appeals arising out of such arbitration under the provisions of the Arbitration and Conciliation
Act, 1996 (26 of 1996) that have been filed on the original side of the High Court, shall be
heard and disposed of by the Commercial Division where such Commercial Division has been
constituted in such High Court.
21. Act to have overriding effect.—Save as otherwise provided, the provisions of this Act
shall have effect, notwithstanding anything inconsistent therewith contained in any other law
for the time being in force or in any instrument having effect by virtue of any law for the time
being in force other than this Act
7
10th National Moot Court Competition
TC-01
STATEMENT OF FACTS
BACKGROUND
The state of Indiana is a sovereign, democratic, republic country situated in the southeastern
part of Masia. The entire world is facing a transition from fuel ignited engines in automobiles
to battery/ electronically powered vehicles. The state of Indiana aims to introduce an EV policy
2030, as mentioned by the Prime Minister whereby Indiana plans to replace all the fuel ignited
vehicles by electrical vehicles. The further facts are explained below :
SR.NO
DATES/ YEAR
1.
2005
EVENTS
The Government of Indiana, through the Ministry of
Mining and Extraction (MoME), discovered one of the
world's largest lithium reserves in Indiana. This discovery
was made with the intention of securing the Lithium supply
for the benefit of the people of Indiana for the next 60
years..
2.
August , 2006
MEP in collaboration with MoME launched a special
purpose vehicle( SPV), Lithium Extractor Pvt Ltd (LEPL)
for extracting and mining of lithium.
3.
19.01.2007
Readon Pvt. Ltd. (“RPL”), a leading company in Indiana's
Lithium
battery
Collaboration
market,
Agreement
entered
with
into
LEPL.
a
25-year
Under
this
agreement, LEPL agreed to provide Lithium to RPL at
subsidized prices, allowing RPL to maintain its market
leadership and RPL provides the technology for Lithium
extraction.
8
10th National Moot Court Competition
4.
January , 2015
TC-01
RPL entered into a joint-venture with an England based
automobile company SINO Automobiles Ltd and formed a
SPV in the name of E-Wheel Pvt. Ltd (“EPL”) appeared to
align with the promotion of sustainable energy, consistent
with the global transition to electric vehicles.
5.
22.01.2016
The Joint venture made was alleged for not being in line
with the initial understanding of the Collaboration
Agreement. LEPL immediately sent
a termination
(“Notice”) pertaining to the Collaboration Agreement to the
RPL and stopped the supply of Lithium to the RPL with
immediate effect. RPL's immediately approaches the High
Court of Delphi after receiving the termination notice
seeking legal remedies
6.
22.01.2020
The court granted relief to RPL stating that LEPL should be
refrained from terminating the collaboration agreement.
RPL issues an arbitration notice an appoints Mr Harry
Gujral although it was not consented by LEPL. Later the
sole arbitrator Mr. Bruce Wayne was appointed by the
Hono’ble High Court
7.
21.03.2023
All the Arbitration proceedings were concluded.
8.
21.05.23
The Hon’ble sole arbitrator rejecting all the claims of RPL
vide its award held that the joint-venture with SINO
Automobiles were against the intent of the Collaboration
Agreement.
9.
After 21.05.23
RPL's allegations of bias against the appointed arbitrator,
Dr. Bruce Wayne, were made after the arbitration
proceedings concluded. These allegations may be seen as
an attempt to challenge the award retrospectively. A
challenge application along with an interim application for
stay was made before the court. RPL also files an
9
10th National Moot Court Competition
TC-01
application for recovery of money against the sole
arbitrator.
STATEMENT OF ISSUES
I
WHETHER THE COURT CAN GRANT INTERIM RELIEF IN FAVOUR OF RPL?
II
WHETHER THE COURT HAS JURISDICTION TO ENTERTAIN LEGAL
PROCEEDINGS AGAINST THE SOLE ARBITRATOR?
III
WHETHER THE ARBITRATION AWARD CAN BE SET- ASIDE ON THE
GROUND OF LACK OF INDEPENDENCE AND IMPARTIALITY?
10
10th National Moot Court Competition
TC-01
SUMMARY OF ARGUMENTS
ISSUE I. WHETHER THE COURT CAN GRANT INTERIM RELIEF IN FAVOUR OF
RPL?
In this legal submission, the petitioner, Readon Pvt. Ltd. (RPL), seeks interim relief from the
court due to concerns about the fairness of the arbitration process and potential bias of the
arbitrator, Mr. Bruce Wayne. The petitioner argues that, under the Arbitration & Conciliation
Act, 1996, they have the right to apply for interim relief before the enforcement of the arbitral
award. The grounds for challenging the arbitrator under Section 12(3) have been fulfilled,
citing non-disclosure of relationships raising doubts about independence. The court's
jurisdiction under Section 42 to pass orders against the arbitral award is emphasized.
Additionally, the petitioner asserts the fulfillment of conditions under Order XXXIX Rule 1 of
CPC, 1908, due to the imminent danger of harm to RPL's business operations following the
abrupt termination of a Collaboration Agreement concerning the supply of lithium. The
petitioner argues for the court's intervention to prevent irreparable harm, uphold fairness, and
safeguard sustainable energy initiatives in Indiana.
ISSUE 2- WHETHER THE COURT HAS JURISDICTION TO ENTERTAIN LEGAL
PROCEEDINGS AGAINST THE SOLE ARBITRATOR?
The petitioner asserts before the Hon'ble Court that legal proceedings against the sole arbitrator
are justified due to lack of independence and bias. Grounds for challenge include the arbitrator's
failure to fulfill disclosure requirements under Section 12(2) and involvement in a significant
financial transaction during arbitration. The petitioner argues that the arbitrator's familial ties,
undisclosed relationships, and violation of Section 12(5) render him ineligible. The petitioner
further contends that the arbitrator's non-disclosure violates the principles of natural justice,
impacting the fairness of the arbitration proceedings. The overall argument emphasizes the
11
10th National Moot Court Competition
TC-01
necessity for the court to entertain the case, given the arbitrator's alleged lack of qualifications,
independence, and impartiality.
ISSUE 3 – WHETHER THE ARBITRATION AWARD CAN BE SET-ASIDE ON THE
GROUND OF LACK OF INDEPENDENCE AND IMPARTIALITY?
It is Humbly Submitted that , the Arbitration and Conciliation Act, 1996, defines an arbitral
award and sets grounds for setting it aside under Section 34, including public policy violations.
Fairness, a vital element of public policy, intertwines morality and justice. Natural justice
principles require impartiality, crucial for trust in arbitration. Bias types include peculiar
(financial), personal, and official, poses integrity a threat. Dr. Bruce Wayne's connections to
Lithium mining, undisclosed familial ties to the Ministry of Mining and Energy, and oversight
of the Ministry of Energy's current Managing Director question his impartiality. Section
12(1)(a) mandates arbitrators to disclose facts impacts his impartiality, as Section 12(3)(a)
permits arbitrator challenge if justifiable doubts exist regarding independence or impartiality.
Disclosures must create reasonable doubts to challenge an arbitrator. Dr. Wayne's familial and
professional connections were a breach to this duty. Section 12(5) and the Seventh Schedule
disqualify arbitrators with close family links to parties or significant financial interests. Dr.
Wayne's familial ties and potential financial interests in Lithium and government decisions
deem him ineligible. So, Dr. Wayne's arbitrator eligibility can be questioned under Section
12(5), making the award challengeable for lacking independence, preserving arbitration's
integrity.
12
10th National Moot Court Competition
TC-01
ARGUMENTS ADVANCED
TO,
THE HON’BLE BENCH OF THE HIGH COURT OF DELPHI (COMMERCIAL
DIVISION), INDIANA
THE HUMBLE SUBMISSIONS OF THE PETITIONERS
MOST RESPECTFULLY SHOWETH:
ISSUE I -WHETHER THE COURT CAN GRANT INTERIM RELIEF IN FAVOUR OF
RPL?
1. It is humbly submitted before this hon’ble court that the court indeed can grant interim
relief in favour of RPL . Interim relief encompasses temporary measures issued by a
court during ongoing proceedings to offer immediate assistance or protection to a party.
Its primary purpose is to maintain the status quo, prevent irreparable harm, and ensure
fairness throughout the resolution process. The pivotal role in preserving rights and
enforcing compliance until a final judgment is rendered in a legal dispute. By doing so,
interim relief serves as a crucial tool in upholding justice and safeguarding the interests
of parties involved in legal proceedings.
2. The petitioners , here , unsatisfied with the rejected claims by the sole arbitrator and
upon learning new information about the arbitrator's potential bias 1, had valid concerns
about the fairness of the arbitration process. These undisclosed connections between
the arbitrator, Mr. Bruce Wayne, and key figures involved in the discovery and
management of the lithium reserves raised serious doubts about his independence and
impartiality. This critical information, revealed after the arbitration, formed the basis
for RPL's challenge to the award and their request for interim relief. They also moved
1
Factsheet Para 16
13
10th National Moot Court Competition
TC-01
an application to stay the termination notice to protect their position during the legal
proceedings2.
3. Hereby , it is contended that the court has complete authority to provide interim relief
in favour of the petitioners. The same shall be argued in a 3 fold contention (1.1)The
right to apply for interim relief under S.9(ii)(e) r/w S.42 pf the Arbitration and
Conciliation Act 1996; (1.2) Grounds for Challenging the Arbitrator has been fulfilled
under S 12(3) and (1.3)Fulfilling the conditions to assert the interim order under Rule
1 of Order XXXIX of CPC, 1908
(1.1)
THE RIGHT TO APPLY FOR INTERIM RELIEF UNDER S. 9(1)(ii)(e) r/w S.
42 of the Arbitration & Conciliation Act, 1996
a) INVOCATION OF S. 9(1)(ii)(e)
4. It is strongly contended that the parties are subjected to claim for interim measures from
the court as per the provisions laid down in the Arbitration & Conciliation act ,1996.
Section 9 (1) states – “ A party may, …..any time after the making of the arbitral award
but before it is enforced in accordance with section 36, apply to a court- ”3 which
explicitly derives the fact that even after the arbitration tribunal has issued its final
decision (the arbitral award), but before it is formally enforced, a party still has the
option to seek interim measures from a court. This recognizes that there may be a gap
between the award and its enforcement, during which parties may require
protective measures. Similar to our case , the petitioners , being unsatisfied with the
award presented and being acknowledged about the lack of independence of the
arbitrator, has complete authority to plead before this Hon’ble court for the grant of
interim relief as the award has yet not been enforced .
5. Under Section 9(1)(ii)(e) 4 provides for "such other interim measure of protection as
may appear to the Court to be just and convenient.", grants courts wide discretion in
providing interim measures during arbitration. It allows for various protective
measures, tailored to the specific case, to safeguard parties' rights. As held in the
2
Factsheet Para 18
Suresh Dhanuka v. Sunita Mohapatra AIR 2012 SC 892 ; (2012) 1 SCC 578,
Sundaram Finance Ltd v. M.K Kurian 2006 (1) RAJ 493 ;
In house production Pvt Ltd v. Meediya Plus 2005 (1) RAJ ;
Globe cogeneration power Ltd v. Hiranyakshi Sahakari Sankeshwar, AIR 2005 Kant 94 ;
Archcon & others(M/s.) v. M/s. Sweda Construction Co. & others AIR 2005 Gau 58;
Kohli Bros v. Atlantis Multiplex Pvt Ltd AIR 2008 All 43
4
Arbitration and Conciliation Act, 1996
3
14
10th National Moot Court Competition
TC-01
landmark judgement of M/s. Kamla Solvent v Manipal Finance Corporation Ltd. It
was hailed by the high court of Chennai5, The high court of Chennai held that under
section 9(2)(e) of the Act, High Court is vested with the jurisdiction to pass an interim
order to safeguard and protect the interest of the parties The court's decision hinges on
whether the measure is deemed just and convenient. "Just" signifies fairness and equity,
while "convenient" implies practicality in the given circumstances. Also, in the case of
Ashokan Managing Partner , Kartiyayni Oil Mills v. Jayan 6, It was held that a
plaintiff has to take steps to file an application for interim relief under section 9 of the
act.
6. In the present case, it is contended that RPL is entitled to interim relief as this is of
critical importance to prevent irreparable harm to RPL's business operations caused by
the abrupt termination of the Collaboration Agreement.7 The sudden termination
disrupts established business operations and places at risk the substantial investments
made by the petitioner in the technology and infrastructure for Lithium extraction.
b) JURISDICTION OF COURT UNDER S.42 TO PASS AN ORDER AGAINST
ARBITRAL AWARD
7. It is humbly contended that the Hon’ble High Court of Delphi, has the complete
jurisdiction to entertain such an application and give any judgement in respect to the
dispute. This has been exclusively supported by the Section 42 of the Arbitration and
Conciliation Act, 1996, which grants exclusive jurisdiction to the court where an
application related to an arbitration agreement has been filed 8. This section avoids
conflicts between the various courts before, during or after the completion of
arbitration9. This jurisdiction extends not only to the initial application but also to all
subsequent matters arising from the agreement and the arbitration proceedings. 10
Therefore, the court, having been properly invoked under Section 42, possesses the
5
AIR 2001 Mad 440
AIR 1998 Ker 256 (257)
7
Deccan Asian Infrastructure (Mauritius) Inc v. BPL Communications Ltd 2005 (2) Ard LR 450
8
Sasken communication technologies limited v. Prime Telesystems Ltd. 2003 (1) RAJ 317 (Del) ; Union of India
vs Supreme Paper Moves Ltd 2005 (1) RAJ 85 (Del)
9
Fateh Chand v. Moti Ram AIR 1953 Punj 105
10
DLF Industries Ltd v. Standard Charter Bank AIR 1999 Del 11;
Akla Builders Pvt Ltd v. Cityscape Developers Pvt Ltd AIR 2003 NOC 264 (Cal) ;
Universal Court and trading Company v. Garhwal Mandal Vikas Nigam Ltd AIR 2004 All 115 ;
Bulk Trading S. A. v. Dalmia Cement (Bharat ) Ltd. 2006 (1) RAJ 54.
6
15
10th National Moot Court Competition
TC-01
authority to adjudicate and pass orders against an arbitral award. This includes the
power to set aside, modify, or enforce the award as deemed appropriate under the law.
It also reinforces the principle of party autonomy, as the parties have consciously
chosen a specific court to oversee the arbitration proceedings.
8. The petitioners , therefore , being the legitimate party to the award , approached the
Hon’ble High Court of Delphi, being the court properly invoked under Section 42,
possesses the authority to pass orders concerning the arbitral award, including the
power to set it aside, modify it, or enforce it, as per the dictates of the law. This
reinforces the principle of party autonomy, affirming that the parties consciously
selected this specific court to oversee the arbitration proceedings, ensuring a coherent
and consistent resolution process.
(1.2)
GROUNDS FOR CHALLENGING THE ARBITRATOR UNDER S.12(3) HAS
BEEN FULFILLED.
9. It is humbly submitted that the petitioners have challenged the hon’ble arbitrator and
his decision making, subsequently asking for an interim relief as he has found to be
clearly complying with the grounds under S. 12(3)(a) and S. 12(3)(b) to challenge an
arbitrator the ground star circumstances give rise to justifiable doubts as to his
independence or impartiality and also that he does not possess the qualifications as
agreed by the parties11. It is imperative to note that Section 12(3)(a) of the Arbitration
and Conciliation Act, 1996, sets forth a mandatory requirement for arbitrators to
disclose any circumstances that could give rise to justifiable concerns regarding their
impartiality or independence 12. This provision assumes paramount importance in
upholding the integrity of the arbitration process by ensuring an equitable and unbiased
resolution. In light of Dr. Wayne's failure to disclose these pertinent relationships, a
legitimate query arises concerning whether his award may have been influenced by
undisclosed factors. This lack of transparency poses a significant question regarding
the integrity of the arbitration process and the subsequent award.
10. It is humbly submitted that Dr. Bruce Wayne's omitted to divulge his familial and
academic connections with individuals associated with the Ministry of Mining and
11
12
Abhoy Sarkar v. UOI (1986) 2 Cal LJ 59
N.K Bajpai v. UOI AIR 2005 RAJ (135)
16
10th National Moot Court Competition
TC-01
Extraction (MoME) and the Ministry of Energy and Power (MEP). This failure also
constitutes to a breach of the principle of natural justice, a fundamental legal tenet that
underpins the essence of fair and equitable decision-making. “NEMO JUDEX IN
CAUSA SUA” meaning "no one should be a judge in his own cause”13. asserts that a
person with a vested interest or bias in a case should not preside over it, as it undermines
fairness and natural justice. This principle ensures that judges, arbitrators, or decisionmakers maintain objectivity and integrity, free from any personal or financial influence.
Failure to adhere to this principle can lead to a loss of trust in the legal process and may
warrant a challenge to the decision rendered.
11. By not providing this information, Dr. Wayne effectively denied the petitioner the
opportunity to evaluate any potential bias or conflicts of interest that may have
influenced his judgment. The principle ensures that those tasked with rendering
decisions do so with complete neutrality and independence, devoid of any personal or
financial influence. To violate this principle erodes the bedrock of trust in the legal
process, potentially leading to challenges or appeals against decisions.
(1.3)
FULFILLING THE CONDITIONS TO ASSERT INTERIM ORDER UNDER
RULE 1 OF ORDER XXXIX, CPC, 1908.
12. The petitioners respectfully assert that they hold a legitimate interest in seeking interim
relief from the Court, drawing on provisions within the Code of Civil Procedure. Order
XXXIX Rule 1 allows a court to issue temporary injunctions. This empowers a plaintiff
to request an order preventing a defendant from taking a particular action or compelling
them to perform a specific task temporarily, until the case reaches a final judgment. The
court can grant this relief if it deems the plaintiff's case justifiable and believes that
without the injunction, the plaintiff would face irreparable harm. The rule stands vital
in preserving the interests of parties in civil disputes and maintaining the current state
of affairs until the case concludes.
13. Order XXXIX Rule 1(a)14 reads : “that any property in dispute in a suit is in danger of
being wasted, damaged or alienated by any party to the suit, or wrongfully sold in
execution of a decree”, stating that a court may issue a temporary injunction if it
believes that any property involved in a lawsuit is at risk of being wasted, damaged, or
13
14
Swadeshi Cotton Mills v. UOI (1981) 1 SCC 664
Code of Civil Procedure, 1908
17
10th National Moot Court Competition
TC-01
transferred by any party to the suit, or wrongly sold as part of executing a decree. This
provision aims to prevent any harm or unjust disposal of property that could potentially
affect the outcome of the case.15 Conferring to our case , the petitioners, Readon Pvt.
Ltd. (RPL), have ample grounds to argue that the property in dispute, which primarily
concerns the supply of lithium, is indeed in imminent danger of being wasted, damaged,
or wrongfully alienated. 16
14. RPL holds a Collaboration Agreement with Lithium Extractor Pvt Ltd (LEPL),
establishing a clear contractual obligation for LEPL to supply lithium at subsidized
prices17. Any deviation from this agreement, such as LEPL's sudden termination of the
Collaboration Agreement, jeopardizes RPL's access to a crucial resource for its
operations. Moreover, RPL commands a significant market share of approximately
56% in Indiana's lithium battery market 18. Termination of the agreement not only
disrupts RPL's current operations but also has far-reaching implications for the broader
market. Given RPL's dominant position in the market and its contribution to the electric
vehicle sector, any disruption in its lithium supply directly impacts the sustainable
energy initiatives promoted by the State of Indiana. Additionally, the termination of the
Collaboration Agreement has immediate and severe consequences, potentially leading
to financial losses and even legal disputes due to breached contracts with other entities,
including the England-based SINO Automobiles Ltd. This sudden breach threatens
RPL's stability and disrupts the overall trajectory of its operations.
15. In light of these compelling reasons, it is indisputable that the property in dispute,
namely the reliable supply of lithium, is facing imminent peril. This precarious situation
warrants the intervention of the Hon’ble High Court of Delphi to safeguard the interests
of RPL and ensure the continued progression of sustainable energy initiatives in the
State of Indiana. Granting a temporary injunction under Rule 1, Order 39 of the CPC is
thus imperative to prevent any further potential harm or damage to the
property in question.
16. In conclusion, The case of Readon Pvt. Ltd. (RPL) highlights the crucial role of interim
relief in safeguarding parties' interests during legal proceedings. Valid concerns about
15
Tata Capital Financial Services Ltd. v. Unity Infra Projects Ltd and Others 2015 SCC Online Bom. 3597 ;
Natcrip Implememtation Society v. IVRCL Ltd, 2016 SCC Online 5023 ;
Sushil Pandit v. Adsert Web Solutions (P) Ltd. 2012 RAJ 556 (Del)
16
O.N.G.C Ltd v. Jagson Intl. Ltd. 2005 (3) Arb LR 167 (Bom)
17
Factsheet Para 5
18
Factsheet Para 2
18
10th National Moot Court Competition
TC-01
the potential bias of the arbitrator, arising post-arbitration, underscore the need for
immediate protective measures. The undisclosed relationships of the arbitrator raise
significant questions about the integrity of the arbitration process. Additionally, the
imminent threat to the supply of lithium, a vital resource, necessitates prompt
intervention to prevent potential harm to RPL's operations and the wider market. The
legal basis for seeking interim relief is firmly established. Ultimately, court intervention
is not only justifiable but imperative to maintain fairness, protect parties' rights, and
ensure the continuity of sustainable energy initiatives in Indiana. Granting a temporary
injunction is essential to prevent further potential damage to the property in dispute and
uphold principles of justice and equity in dispute resolution.
ISSUE 2- WHETHER THE COURT HAS JURISDICTION TO ENTERTAIN LEGAL
PROCEEDINGS AGAINST THE SOLE ARBITRATOR?
The petitioners humbly present their argument before the Hon’ble Court that the court has
jurisdiction to entertain legal proceedings against the sole arbitrator because the arbitrator
appointed by the court was not independent and unbiased. He was left with certain
qualifications for appointing as an arbitrator. This issue is submitted by the petitioner under the
two contentions as follows
(2.1) GROUNDS FOR CHALLENGE WERE FULFILLED BY THE SOLE
ARBITRATOR
17. Section 2(6) of the Arbitration and Conciliation Act stipulates that parties engaged in
arbitration have the liberty to authorize any person or institution to make determinations
on issues within their purview. This includes the selection of arbitrators, defining
procedures for their appointment, establishing mechanisms for challenging such
appointments, and deciding on crucial aspects like the location and language of the
arbitration proceedings. The provision essentially recognizes and upholds the autonomy
of parties in shaping various elements of the arbitration process. 19
18. The authority granted by this section, RPL is positioned to contest the jurisdiction of a
sole arbitrator. In this context, RPL has leveled accusations against the sole arbitrator,
19
S.K, Chawla Law of Arbitration and Conciliation 2 nd Ed. Pg. 160 ,
19
10th National Moot Court Competition
TC-01
contending that the arbitrator displayed bias and lacked independence, particularly due
to undisclosed relationships with the opposing party within a specified timeframe.
19. Consequently, the argument is put forth that the sole arbitrator lacked the necessary
qualifications, leading to the assertion that the arbitrator was ineligible for the role. This
underscores concerns about the integrity of the arbitration process, emphasizing the
importance of a fair and impartial resolution of the underlying dispute.
a) CONDITIONS MENTIONED UNDER SECTION 12(2) WERE SET ASIDE BY
THE ARBITRATOR
20. An arbitrator is legally obligated to promptly disclose in writing to all parties any
relevant circumstances, as outlined in sub section 1, from the moment of their
appointment and throughout the arbitration proceedings. This disclosure is not required
if the parties were already made aware of these circumstances by the arbitrator 20.
21. Voestalpine Schienen GmbH v. Metro Rail Corpn. Ltd 21it was held by the court that
Section 12 (2) obligates the arbitrator to remain neutral and not to disclose to the parties
any acts or omission that were likely to fall foul of the mandate .
22. The contention here is that Dr. Bruce Wayne, the sole arbitrator, failed in his duty by
not disclosing any statements regarding his relationships with any of the involved
parties at the commencement of the arbitration. This omission is argued to have
deprived the petitioner of the opportunity to make well-informed decisions.
23. The legal principle at play is the doctrine of "Uberrima fides," which mandates that an
arbitrator must exhibit the utmost good faith to the parties who have entrusted their
disputes to be arbitrated. The arbitrator is expected to disclose all facts that may
potentially influence or bias them in favor of one party over the other. In the realm of
arbitration, where parties place their trust in the arbitrator as their chosen forum,
absolute disinterest and impartiality on the part of the arbitrator are crucial. 22
24. Therefore, it is imperative for arbitrators to act with transparency and candor, ensuring
that parties have full knowledge of any circumstances that might impact the neutrality
and fairness of the arbitration process. The essence of this duty lies in maintaining a
20
Section 12(2) , Arbitration and Conciliation Act 1996
Voestalpine Schienen GmbH v. Metro Rail Corpn. Ltd , 2017 4 SCC 665
22
Satyendra kumar v hindu construction Ltd. AIR 1952 Bom 227
Gopaldas v. Lalsingh AIR 1933 Sind 68
Koshy v K.S.E. Board AIR 1984 Ker 23.
21
20
10th National Moot Court Competition
TC-01
high standard of trust and integrity in arbitrations, where parties rely on the arbitrator
for a just and unbiased resolution of their disputes.
b) MONETARY TRANSACTION DURING THE PENDENCY OF ARBITRAL
PROCEEDING
25. The petitioner argues that a substantial financial transaction amounting to INR 500
Crores occurred between LEPL and Magnetic Rovers Pvt Ltd, an entity owned by
individuals closely associated with the arbitrator, Dr. Bruce Wayne, during the ongoing
arbitration proceedings. 23
26. This financial transaction holds significant implications for several reasons. Firstly, the
substantial monetary value involved indicates a potentially considerable financial
interest, giving rise to reasonable concerns about the arbitrator's impartiality,
particularly if the transaction is linked to one of the parties engaged in the arbitration.
27. Secondly, the timing of this financial transaction, taking place concurrently with the
arbitration proceedings, is noteworthy. It suggests a contemporaneous financial
relationship that may influence the arbitrator's objectivity or potentially introduce bias.
28. The petitioner contends that the failure to disclose this material financial transaction
represents a serious breach of transparency and good governance. In any arbitration
process, it is fundamental for the arbitrator to disclose any relationships or affiliations
that could be reasonably perceived as compromising their impartiality. The nondisclosure of this financial transaction deprives the petitioner of the opportunity to raise
valid concerns about potential bias. In the case Hasmukhlal H. Doshi v. M.L.Pendse
it was held that “Bias may be defined as a preconceived opinion or a predisposition or
predetermination to decide a case or an issue in a particular manner so much so that
such predisposition does not leave the mind open to conviction.’ 24
29. Furthermore, the omission to disclose this material financial transaction could be
regarded as a circumstance under Section 12(3) of the Indian Arbitration and
Conciliation Act, 1996. This might provide grounds for the petitioner to challenge the
arbitrator's appointment based on reasons that surfaced after the appointment was made.
23
24
Factsheet para 19
Hasmukhlal H. Doshi v. M. L. Pendse, 2000 SCC OnLine Bom 242,
21
10th National Moot Court Competition
TC-01
30. In essence, the petitioner alleges that the undisclosed financial transaction introduces a
potential conflict of interest, raising questions about the arbitrator's impartiality and,
consequently, the integrity of the arbitration proceedings.
(2.2) NEGLIGENCE FROM THE SIDE OF ARBITRATOR PUTS QUESTION ON HIS
MANDATE
31. It is argued that Dr. Wayne's failure to disclose his familial relationship with Mr. Nylo
Wayne during the initial stages of the arbitration process deprived the petitioner of the
opportunity to make an informed decision about Dr. Wayne's suitability as the
arbitrator. This lack of disclosure undermines the transparency and integrity of the
arbitration proceedings, as parties have a legitimate right to be informed about any
circumstances that could potentially impact the arbitrator's impartiality.
32. The non-disclosure of Dr. Wayne's familial tie with Mr. Nylo Wayne, who held
influential positions in MoME and MEP during 2001-2002 and played a significant role
in matters related to Lithium reserves and policies, raises concerns about Dr. Wayne's
ability to remain impartial in the arbitration. 25 The familial connection to a key figure
in the government bodies involved in the dispute creates reasonable doubts about the
arbitrator's objectivity.
33. Furthermore, it is highlighted that the awareness of the familial relationship came to
light only after Dr. Wayne's appointment. The disclosure made by the sole arbitrator,
as per [EXHIBIT C] under SIXTH SCHEDULE Section 12(1) B of ACA, reveals basic
facts about the sole arbitrator but fails to include information about his relationships
with any party involved at any time.
34. In addition, Section 12(5) of the Act26 states that individuals with relationships falling
under categories specified in the seventh schedule are ineligible for appointment as
arbitrators. However, parties can waive the applicability of this subsection through a
subsequent written agreement, provided it is done after disputes have arisen between
them. This legal framework emphasizes the necessity for arbitrators to be impartial and
to disclose any circumstances that could cast doubt on their impartiality or
independence. The overarching goal is to ensure transparency and uphold the integrity
of the arbitration process.Haryana Space application centre (HARSAC) v. Pan India
consultants Pvt Ltd. has very clearly stated that the importance of section 12 (5) of the
25
26
Factsheet Para 16(a)
Arbitration and Conciliation Act 1996
22
10th National Moot Court Competition
TC-01
Arbitration and Continuation act ,1996 the arbitrator being the most crucial part of the
arbitrator proceeding are expected to be unbiased in the decision making if arbitrators
have the element of bias then the whole idea of arbitration will go into vain.27
35. At this point, it is contended that, according to Section 12(5), the sole arbitrator is
deemed ineligible for appointment due to relationships falling within the categories
specified in the seventh schedule. Specifically, the relationships of the sole arbitrator
correspond to the criteria outlined in items 10, 13, and 18 of schedule 7. This
categorization renders him ineligible to serve as an arbitrator under the provisions of
the law.
36. Elaborating further, the relationships identified under items 10, 13, and 18 of schedule
7 likely involve circumstances that may compromise the arbitrator's impartiality and
independence. This aligns with the legislative intent of Section 12(5) to preclude
individuals with certain specified relationships from assuming the role of an arbitrator.
In the context of this case, the identified relationships likely give rise to justifiable
doubts about the arbitrator's ability to remain neutral, thus supporting the argument for
his ineligibility. This interpretation ensures adherence to the legal framework designed
to maintain the integrity of the arbitration process and uphold the principles of fairness
and impartiality. 28
37. In the case associated Picture House Ltd v. Wednesbury Corp it was held that if the
arbitrator has fouled off the duty of disclosure of facts that could lead to justifiable
doubts which lead to the danger and probability of the bias test and thus the court set
aside the arbitration award 29.
38. Furthermore, the court has clarified that, following the 2016 Amendment Act, the
Arbitration and Conciliation Act distinguishes between individuals who are "ineligible"
to be appointed as arbitrators and those about whom justifiable doubts regarding their
independence or impartiality exist. Post the amendment, Section 12(5) in conjunction
with the Seventh Schedule 30 explicitly states that if an arbitrator falls within any
category specified in the Seventh Schedule, they are deemed "ineligible" to serve as an
arbitrator.
27
Haryana Space application centre (HARSAC) v Pan India consultants Pvt Ltd.3 SCC 103
HRD Corporation v. GAIL INDIA Ltd . (2018)12 SCC 471
29
Picture House Ltd v. Wednesbury Corp 1948 1 KB 223
30
Arbitration and Conciliation Act 1996
28
23
10th National Moot Court Competition
TC-01
39. Once an arbitrator is declared ineligible, Section 14(1)(a) mandates that they are de jure
unable to perform their functions. In legal terms, their status is defined as "ineligible."
There is no need to refer such a case to the Arbitral Tribunal under Section 13 to
determine the de jure inability of the arbitrator. Given the lack of inherent jurisdiction
to proceed further in such a scenario, an application can be filed under Section 14(2)
directly to the court to decide on the termination of the arbitrator's mandate based on
this ground.
40. This interpretation underscores the clear intention of the legislator in drafting the
statute. It emphasizes that individuals associated with either of the parties or its
affiliated entities in the past are explicitly barred from acting as arbitrators. This legal
framework aims to uphold the integrity of the arbitration process and prevent any
potential conflicts of interest arising from prior associations with the disputing parties
or their affiliates.
a) LACK OF INDEPENDENCE AND IMPARTIALITY
41. Section 12(3)(a) r/w 12(5)31 establishes a significant basis for challenging the
appointment of a sole arbitrator. Arbitration and Conciliation Act, 1996 empowers a
party to challenge the appointment of an arbitrator under certain circumstances that
raise reasonable concerns about the arbitrator's impartiality or independence. This
provision is designed to uphold the integrity of arbitration proceedings by allowing
parties to address potential conflicts of interest.
42. The circumstances such as arbitrator being related to a party or inducted to him or
having worked as lawyer, counsel or conciliator for the party earlier are interested in
the subject matter of arbitration etc. would be sufficient to disqualify him for being
appointed as arbitrator.32
43. When an arbitrator was found to be acting as Mukhtar-am of one of the parties without
any remuneration, 33 was related to a party, 34 was related to one of the defendants and
had monetory dealings with another of the defendants, 35or was indebted to one of the
31
Arbitration and Conciliation Act 1996
Dr. N.V. Paranjape , Law related to Arbitration and Conciliation in India, 8 th Ed. Pg 188
33
Mohammed Wahiduddin v. Hakiman ILR29 Cal 278
34
Nihal Chand v. shanti Lal 1935 Oudh 349
35
Nihal Chand v.shanti Lal 1935 Oudh 349
32
24
10th National Moot Court Competition
TC-01
parties at the time of the reference, 36 or become interested in the subject matter of the
litigation,37 or was retained pleader of the plaintiff 38and these facts were not disclosed
to the other party, the award were held to be invalid . The ground for setting aside in
such cases would be covered ,it is submitted by clause (v) of section 34(2)(a) of the
present Act.
44. The Supreme Court has observed that it is well settled that there must be purity in
administration of Justice as well as in the administration of quasi justice as are involved
in the adjudicatory process before the arbitrators. It is well said that once the arbitrator
enters in an arbitration the arbitrator must not be guilty of any act which can possibly
be construed as indicative of partiality or unfairness it is not a question of the fact effect
which misconduct on his part had in fact upon the result of the proceeding but of what
effect it might possibly have reduced it is not enough to show that even if there was
misconduct on his part the award was unaffected by and was in reality just arbitrator
must not do anything which is not in itself fear and impartial 39
45. In the case of arbitration where the parties interest their feet into the hand of an arbitrator
of an arbitrator it is essential that there must be abundant good faith the arbitrator must
be absolutely disinterested and impartial40
46. The Delhi High Court held that an issue as to the bias of an arbitrator can be raised only
before the tribunal under Section 13 of the Act. Further, u/s 14, the Court can decide on
the mandate of the arbitrator only if it is challenged on any grounds under the 7 th
Schedule of the act.41
b) VOILATION OF THE PRINCIPLE OF NATURAL JUSTICE
47. Moreover, the failure to disclose the familial connection constitutes a blatant
infringement of the principle of natural justice, which is often encapsulated in the
phrase, "Natural Justice is nothing but a fair play in action." The fundamental tenet of
natural justice is the requirement for all parties involved in a legal proceeding to be
accorded a fair and impartial hearing. It is an indispensable element of fairness and
reasonableness in any legal process. Additionally, it is commonly asserted that the
36
Mohammed wahiduddin v. Hakiman ILR29 Cal 278
Yusuf khan v. Riyasat Ali AIR 1926 Oudh 307
38
Kali Prosanno Ghose v. Rajani Kant Chatterjee ILR (1897) 25 Cal 141
39
S.K. chawla, law of arbitration & conciliation ,2nd etd , pg 334
40
S.K. chawla, law of arbitration & conciliation ,2nd etd , pg 334
41
Union of India v. Reliance Industries Ltd 2023 SCC Online Del 2666,
37
25
10th National Moot Court Competition
TC-01
principles of natural justice should be implied into the gaps or unaddressed areas of a
statute unless there is a clear directive to the contrary. In the case Suresh Chandra
Maurya v. Rajendra Rajak its was held that natural justice represents the core of
equitable adjudication, deeply embedded in legal tradition and moral consciousness. 42
48. In the context of setting aside an arbitral award, the court must be convinced, firstly,
that the arbitral tribunal violated a tenet of natural justice in rendering the award.
Secondly, and more crucially, the court must ascertain that the breach of natural justice
resulted in tangible or actual prejudice to the party challenging the award. In simpler
terms, the violation of natural justice must have genuinely impacted the outcome of the
arbitral proceedings before judicial intervention becomes justified .If the same result
could or would have been reached even with proper conduct by the arbitrator, there
exists no grounds for nullifying the specific arbitral award in question. This underscores
the principle that setting aside an arbitral award on the basis of a breach of natural
justice requires a showing that the breach materially altered the course of the arbitration
proceedings.
Therefore it is argued by the petitioner that the present petition which has been filed by
them laid all the necessary figures and statutes which clearly states that the sole arbitrator
was not well qualified neither independent nor impartial so the court has authority to
entertain legal proceedings against the sole arbitrator.
ISSUE 3 – WHETHER THE ARBITRATION AWARD CAN BE SET-ASIDE ON THE
GROUND OF LACK OF INDEPENDENCE AND IMPARTIALITY?
It is humbly submitted before this honourable court that under
49. Definition of Arbitral Award under Section 2(c) of the Arbitration and Conciliation
Act, 1996, defines an
arbitral award as follows "Arbitral award" includes an interim
award, but does not include a separate award on an agreed claim. An "arbitral award"
thus encompasses both the final decision rendered by an arbitral tribunal as well as any
interim awards issued during the course of arbitration proceedings. It is important to
42
Suresh Chandra Maurya v. Rajendra Rajak (2006) 7 SCC 800
26
10th National Moot Court Competition
TC-01
note that an arbitral award, once rendered, holds significant legal weight 43 and is
enforceable as a decree of the court, subject to certain limited grounds for challenge
and set-aside as outlined in the Act.
50. Setting Aside of an Award Section 34 of the Arbitration and Conciliation Act, 1996,
governs the grounds upon which an arbitral award may be set aside. Specifically,
Section 34(2) outlines the grounds for setting aside an award, and one such ground is
the lack of independence and impartiality of the arbitrator or the arbitral process.
Section 34(2)(b)(ii)(iii) reads as follows:
(b) the Court finds that—
(ii)the arbitral award is in conflict with the public policy of India.
(iii)
it is in conflict with the most basic notions of morality or justice.
Explanation 2. - For the avoidance of doubt, the test as to whether there
is a contravention with the fundamental policy of Indian law shall not
entail a review on the merits of the dispute.]
(3.1) NON- MAINTAINENCE OF INDEPENDENCE DURING THE PROCEEDING
51. We contend that the arbitral award rendered must be set aside on the grounds that it is
in conflict with the public policy of India, particularly with regard to fundamental
principles of morality and justice This contention is firmly rooted in the recognition
that fairness is an indispensable component of public policy, closely intertwined with
the broader ideals of morality and justice.
a) FUNDAMENTAL POLICY OF INDIAN LAW
52. The concept of public policy44, as enshrined in Section 34(2)(b)(ii) of the Arbitration
and Conciliation Act 1996, is not a mere legal technicality but rather a reflection of the
43
Central coal fields limited v. Gauri Shankar Singh Ramshankar Singh and company 1998 Raj 53 ;
I.A.E.C India limited v. Delhi Development Authority 1998 AIHC 1350;
Santa Sheela Devi v. Dhirendranath Sen AIR 1963 SC 1677 ;
Asadullah Makhdoomi v. Lassa Baba AIR 1966 J&K 1;
Salwan Furnishing Company v Delhi Development Authority 1987 ARB LR 36;
National Electric Supplying and Trading Corporation Pvt Ltd v Punjab State AIR 19603 Punj 56
44
Oil and Natural Gas Corporation Ltd v . SAW Pipes Ltd 2003 (3) SC 449;
Smita Conductors Limited v. Euro Alloys Limited 2001 7 SCC 728 ;
Rail India Technical and Economic Services Limited v. Rani Constructions AIR 2002 NOC 30 ;
27
10th National Moot Court Competition
TC-01
fundamental policy of Indian law. This fundamental policy invariably encompasses the
bedrock principle of fairness as a cornerstone of the Indian legal framework. Fairness
is an intrinsic facet of morality and justice. It is a principle that finds deep resonance
within the ethos of Indian society and its legal system. Any arbitral award that deviates
from the standards of fairness not only undermines the sanctity of arbitration but also
transgresses the larger public policy objectives set by Indian law as suggested in the
case Chintels India Ltd. v. Bhayana Builders Pvt. Ltd.45 , where the Supreme Court
reiterated the importance of maintaining trust in arbitration proceedings and the role of
impartial arbitrators in achieving this objective. It emphasized the need for arbitrators
to act fairly and without bias. Fairness extends beyond the mere adherence to procedural
rules; it embodies equitable treatment, transparency, and a commitment to upholding
societal trust in the arbitration process. An award that is perceived as unfair or unjust
not only erodes trust in the arbitration system but also contravenes the essence of public
policy.
b) IMPORTANCE OF NATURAL JUSTICE
53. The principles of natural justice, which encompass fairness, impartiality, and
reasonableness, are intrinsically connected to the concepts of morality and justice.
These principles46 ensure that parties to arbitration are provided a fair and equitable
opportunity to present their case and receive a just outcome. The Latin maxim "Nemo
judex in causa sua" which translates to "No one shall be an arbitrator in their own
cause," embodies a fundamental principle of impartiality in the realm of dispute
resolution also in the case Manak Lal v. Dr. Prem Chand Singhvi 47 the Supreme
Court held that bias, either pecuniary or otherwise, would disqualify a person from
Devika Mehra v. Ameeta Mehra 2005 1 Raj 70
45
Chintels India Ltd. v. Bhayana Builders Pvt. Ltd. (2018) 3 SCC 265; Hindustan Petroleum Corporation Ltd.
v. Pinkcity Midway Petroleums (2003) 6 SCC 503;
46
Food Corporation of India v. A.M. Ahmed & Co AIR 2007 SC 829;
Joginder Singh Goolry v. Jaswinder Singhsinh AIR 1999 Guj 103 ;
Samantary Construction Pvt. Ltd v. State of Orissa 2007 (2) Arb LR 309
47
Manak Lal v. Dr. Prem Chand Singhvi AIR 1957 SC 425;
S. Parthasarathi v. State of Andhra Pradesh AIR 1974 SC 2092;
Krishna Kumar Birla v. Rajendra Singh Lodha (2015) 4 SCC 129;
B.R. Kapoor v. State of Tamil Nadu (2001) 7 SCC 231
28
10th National Moot Court Competition
TC-01
being a judge in his own cause. This case emphasized the importance of impartiality
and the rule against bias in judicial proceedings. This principle, also known as the
Doctrine of Bias, is predicated on the notion that the authority or Arbitrator assigned to
a case should be entirely unbiased and act without any semblance of favoritism or
prejudice. To instill trust in the judicial or arbitral system, it is imperative that justice is
not only done but is also perceived to be done in a fair and even-handed manner.Bias,
in its various forms, poses a significant threat to the integrity of the adjudicative
process, and it can be categorized into three primary categories: peculiar bias, personal
bias, and official bias.
54. Biasedness that are involved in the Arbitral Award are as followes:
Peculiar Bias: Peculiar bias pertains to a situation where the Arbitrator or arbitrator
has a direct financial or proprietary interest in the subject matter of the proceedings.
When an Arbitrator has a pecuniary stake in the outcome of a case, it creates a clear
conflict of interest that can significantly influence the decision-making process.
Such a bias undermines the core principle that the Arbitrator must be wholly
impartial and detached from any financial considerations related to the case. In
essence, it compromises the ability of the Arbitrator to render an objective and
unbiased judgment.
Personal Bias: Personal bias refers to instances where the Arbitrator may harbor
personal feelings or animosities towards one of the parties involved in the dispute.
These personal biases can arise from prior interactions, personal relationships, or
other non-financial factors. Personal bias, like peculiar bias, jeopardizes the
impartiality of the Arbitrator and can lead to decisions that are tainted by subjective
considerations rather than a strict adherence to the law and facts of the case.
Official Bias: Official bias occurs when the Arbitrator holds a position or office
that could reasonably lead to a perception of bias. Even if there is no direct financial
or personal interest at stake, the mere appearance of partiality can erode trust in the
process. It is essential that the Arbitrator not only be impartial in reality but must
also be seen as such by the parties involved and the public at large.
55. One of the key grounds illustrating Dr. Bruce Wayne's potential bias is his familial
connection to the Ministry of Mining and Extraction (MoME) and the Ministry of
29
10th National Moot Court Competition
TC-01
Energy and Power (MEP). It has been revealed that Mr. Nylo Wayne, Dr. Bruce
Wayne's brother, held positions of authority in both MoME and MEP during the years
2001 and 200248, which included the period when the significant Lithium reserves were
discovered. Although Mr. Nylo Wayne retired from his office in 2013, the familial
connection and his past involvement in pivotal roles raise concerns about potential
influence or bias in favor of the government's interests during the arbitration
proceedings. Another aspect contributing to doubts about Dr. Bruce Wayne's
impartiality is his role as the supervisor of the current Managing Director of the
Ministry of Energy (MoE). The Managing Director in question completed his Ph.D.
under Dr. Bruce Wayne's supervision in 2010. This academic mentorship, along with
their professional connections, implies a close relationship between the two, potentially
affecting the perception of fairness and independence in the arbitration process.
56. The fundamental tenets of arbitration underscore the indispensability of an independent
and impartial arbitrator. Section 34(2)(b)(ii) of the Arbitration and Conciliation Act,
1996, expressly allows for an award to be set aside if it is in conflict with the most
basic notions of morality or justice, as given in the case of Bharat Aluminium Co. v.
Kaiser Aluminium Technical Service, Inc.49 the Supreme Court emphasized the
importance of impartiality in arbitration. It stated that arbitrators must not only be
unbiased but also appear to be so to ensure the fairness of the process. Arbitration, as
an alternative dispute resolution mechanism, thrives on the trust and confidence of the
public. Any perceived lack of independence and impartiality on the part of an arbitrator
can erode this trust and cast doubts on the fairness of the arbitration process . Moreover,
the concept of public policy considerations may be invoked to challenge an award if
the arbitration process is believed to have violated principles of fairness and
transparency. The preservation of these principles is not only a legal obligation but also
a moral imperative.
48
49
Para 16 of factsheet
Bharat Aluminium Co. v. Kaiser Aluminium Technical Service, Inc. (2012) 9 SCC 552;
Rajasthan State Mines and Minerals Ltd. v. Eastern Minerals & Trading Agency (2019) 9 SCC 544;
M/s. Ambica Construction v. Union of India (2017) 14 SCC 74
30
10th National Moot Court Competition
TC-01
(3.2) FALIURE TO DISCLOSE RELEVANT INFORMATION LEADING TO
PARTIALITY
57. Petitioners respectfully submit that the arbitral award in question should be set aside
due to serious concerns regarding the impartiality and independence of Mr. Bruce
Wayne, the sole arbitrator in this matter. These concerns arise from Mr. Wayne's
familial and professional associations with individuals closely connected to the Lithium
discovery, as well as his failure to disclose these associations during the arbitration
proceedings.
58. Section12. 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
meaning of Section 12(1)(a) is that
this provision sets forth a
fundamental requirement that an individual approached for possible appointment as an
arbitrator must adhere to. It establishes the duty of the arbitrator to disclose 50, in writing,
any circumstances that could reasonably be perceived as affecting their independence or
impartiality as in the case Union of India v. Tantia Construction Pvt. Ltd 51, the
Supreme Court held that the failure of an arbitrator to disclose his connections with one of
the parties may be a ground for setting aside an award if it can be shown that such nondisclosure resulted in a reasonable apprehension of bias. These circumstances encompass
various aspects, including past or present relationships and interests. Section 12(1)(a) is
designed to uphold the core principles of arbitration, which include impartiality and
Aloki India Ltd v. Mira Int’l 2006 (3) RAJ 517 ;
Ghulam Mahomed Khan v. Gopaldas Lalsing AIR 1933 Sind 68
51
Union of India v. Tantia Construction Pvt. Ltd. (2016) 8 SCC 377;
Datar Switchgears Ltd. v. Tata Finance Ltd. (2000) 8 SCC 151
50
31
10th National Moot Court Competition
TC-01
independence of the arbitrator. It recognizes that an arbitrator should not only be impartial
but should also be seen as impartial by the parties involved. To achieve this, the law
mandates the arbitrator to proactively disclose information that might raise doubts about
their neutrality.
59. The provision broadly covers a wide range of circumstances that must be disclosed.
These circumstances include not only direct relationships with the parties but also
indirect ones. Indirect relationships can involve connections through financial interests,
business affiliations, professional associations, or any other type of connection that
could reasonably cast doubt on the arbitrator's impartiality or independence.The
overarching goal of this disclosure requirement is transparency. By mandating the
arbitrator to provide written disclosure of such circumstances, the law ensures that all
parties have access to essential information about the arbitrator's potential biases or
interests. This transparency helps build trust in the arbitration process and allows parties
to make informed decisions about the appointment of arbitrators.
60. Also with the support of Section 12 (3)(a) that says:
(3) An arbitrator may be challenged only if— (a) circumstances exist that give
rise to justifiable doubts as to his independence or impartiality
Section 12(3)(a) of the Arbitration and Conciliation Act, 1996, specifies the grounds
for challenging an arbitrator based on the existence of circumstances that give rise to
justifiable doubts as to their independence or impartiality . This provision outlines the
specific grounds upon which an arbitrator may be challenged. It stipulates that an
arbitrator can be challenged if circumstances exist that create justifiable doubts
regarding their independence or impartiality in the eyes of the parties involved in the
arbitration.
61. Section 12(3)(a) employs the standard of "justifiable doubts" as the threshold for
challenging an arbitrator. This standard implies that the doubts raised about the
arbitrator's independence or impartiality must be reasonable and well-founded, rather
than merely speculative or unfounded. The provision recognizes that perceptions of
independence and impartiality can be as important as the actuality of these qualities.
Therefore, it allows parties to challenge an arbitrator if the circumstances would
objectively lead a reasonable person to question the arbitrator's ability to act neutrally
and independently in the arbitration process extracts from the case M/s Indian
32
10th National Moot Court Competition
TC-01
Farmers Fertilizer Cooperative Limited v. M/s Bhadra Products 52 says that the
Supreme Court reiterated that an arbitrator must disclose any circumstances that could
lead to a reasonable apprehension of bias or lack of impartiality. Failure to disclose
such circumstances may provide valid grounds for setting aside an award . The
provision's purpose is to safeguard the trust and confidence that parties place in the
arbitration process. By allowing challenges on the grounds of justifiable doubts, it
ensures that parties have a mechanism to address any concerns that may arise during
the arbitration, thereby maintaining the integrity and fairness of the process.
Circumstances that might give rise to justifiable doubts about an arbitrator's
independence or impartiality can vary widely. They may include undisclosed conflicts
of interest, prior professional or personal relationships with one of the parties, financial
interests in the outcome of the arbitration, or any other factors that suggest a lack of
neutrality53.
62. It is a matter of record that Mr. Bruce Wayne's brother, Mr. Nylo Wayne, held
significant positions in the Ministry of Mining and Extraction (MoME) and the Ministry
of Energy and Power (MEP) during the years 2001 and 2002. Moreover, Mr. Nylo
Wayne was a key member of the team responsible for discovering the Lithium reserves.
While Mr. Nylo Wayne retired in 2013, his role in the Lithium discovery remains
substantial. Additionally, Mr. Bruce Wayne's professional connection to the current
Managing Director of MoE, who obtained his Ph.D. under Mr. Bruce Wayne's
supervision in 2010, underscores a close professional relationship that may raise
concerns about Mr. Wayne's impartiality54. Mr. Bruce Wayne's failure to disclose his
familial and professional associations with individuals closely tied to the Lithium
discovery and the government entities involved represents a clear contravention of this
statutory requirement
63. The facts presented above provide compelling evidence to support the contention that
Dr. Bruce Wayne's role as the Sole Arbitrator in this case may be tainted by a lack of
impartiality and independence. His familial connections to individuals who held
significant positions in the MoME and MEP during the crucial period of Lithium
52
M/s Indian Farmers Fertilizer Cooperative Limited v. M/s Bhadra Products (2018) 2 SCC 534;
Sasan Power Ltd. v. North American Coal Corporation India Pvt. Ltd. (2016) 10 SCC 813;
Antrix Corporation Ltd. v. Devas Multimedia Pvt. Ltd. (2018) 2 SCC 732
53
Nand Kishore v International Marcantile Corporation Limited AIR 1953 Cal 415;
Punjab State v. Chandrabhan Harbhajan Lal AIR 1964 Punj 424
54
Para 16 of factsheet
33
10th National Moot Court Competition
TC-01
discovery, coupled with his professional association with the current Managing
Director of MoE, create reasonable doubts about his ability to act neutrally and
independently in the arbitration proceedings. Moreover, his failure to disclose these
substantial familial and professional associations, as required by the law, constitutes a
clear breach of the statutory obligation to provide full and honest disclosures. In light
of these circumstances, it is imperative to address these serious concerns about Dr.
Bruce Wayne's impartiality and independence. The fairness and integrity of the
arbitration process demand that any doubts regarding the arbitrator's neutrality be
thoroughly examined and resolved. Consequently, we assert that the award rendered by
Dr. Bruce Wayne should be subject to careful scrutiny, and the challenge against his
appointment as the Sole Arbitrator is not only valid but essential to ensure a just and
unbiased resolution of the dispute at hand.
(3.3) INELIGIBILITY OF DR BRUCE WAYNE DUE TO FAMILIAL AND
PROFFESSIONAL ASSOCIATIONS CREATING BIASEDNESS
64. Under Section 12(5) of the Arbitration and Conciliation Act, 1996, and the relevant
Seventh Schedule,
Section12. Grounds for challenge
[(5) Notwithstanding any prior agreement to the contrary, any person whose
relationship, with the parties or counsel or the subject-matter of the dispute, falls under
any of the categories specified in the Seventh Schedule shall be ineligible to be
appointed as an arbitrator:
Seventh Schedule(Entries)
9. The arbitrator has a close family relationship with one of the parties and in the case
of companies with the persons in the management and controlling the company.
10. A close family member of the arbitrator has a significant financial interest in one
of the parties or an affiliate of one of the parties.
18. A close family member of the arbitrator has a significant financial interest in the
outcome of the dispute.
34
10th National Moot Court Competition
TC-01
65. This stipulates that an arbitrator with certain relationships and financial interests is
ineligible for arbitration. This contention supports the argument that the arbitrator is not
independent and, therefore, the arbitral award can be set aside on this basis that the
arbitrator, Dr. Bruce Wayne, should be deemed ineligible for arbitration based on the
grounds delineated in Section 12(5) of the Arbitration and Conciliation Act, 1996, and
the corresponding Seventh Schedule. These grounds expressly disqualify an arbitrator
who possesses close family relationships with the parties involved, significant financial
interests in one of the parties or the outcome of the dispute, or close family members
with such financial interests. The application of these disqualification criteria to Dr.
Bruce Wayne is evident from the familial connections to individuals closely associated
with the Lithium discovery and the government entities concerned.
As stipulated in the Seventh Schedule, an arbitrator is ineligible if they have a close
family relationship with one of the parties involved. In this case, Mr. Bruce Wayne's
familial ties to his brother, Mr. Nylo Wayne, who played a significant role in the
Ministry of Mining and Extraction (MoME) and Ministry of Energy and Power (MEP)
during the Lithium discovery, establish such a close family relationship. This
relationship, combined with Mr. Nylo Wayne's pivotal role in the matter at hand, raises
valid concerns about Mr. Bruce Wayne's impartiality55.
66. Significant Financial Interest in a Party: Furthermore, the Seventh Schedule renders
an arbitrator ineligible if a close family member has a significant financial interest in
one of the parties or the outcome of the dispute. In the present case, the substantial
financial interests tied to the Lithium reserves and the government's decisions regarding
their allocation constitute a significant financial interest. Given Dr. Bruce Wayne's
familial connections and the lack of disclosure of these interests, his impartiality
becomes questionable.The rationale behind these disqualification criteria is to
safeguard the independence and neutrality of the arbitration process. Arbitrators must
not only be impartial in fact but must also be perceived as such by the parties involved.
By disqualifying arbitrators with such close relationships and financial interests, the
law aims to prevent conflicts of interest and biases that could compromise the integrity
of arbitration proceedings.
55
Turner v. Rose 1756 (1) Ld Ken 393;
Madan Lamba v. Jagdish Lamba 2003 (1)Arb LR 517
35
10th National Moot Court Competition
TC-01
67. the application of Section 12(5) and the Seventh Schedule provides compelling
grounds to assert that Dr. Bruce Wayne's eligibility as an arbitrator should be
questioned. His familial connections and the related financial interests in the Lithium
matter and government entities create reasonable doubts about his independence and
impartiality. Consequently, we contend that the arbitral award rendered by an arbitrator
who does not meet the statutory criteria for eligibility can be set aside on the basis of a
lack of independence, ensuring the fairness and credibility of the arbitration process.
36
10th National Moot Court Competition
TC-01
PRAYER
Wherefore in the light of the issue raised, arguments advanced and authorities cited may this
Hon’ble Court be pleased to adjudge and declare that:
1. The court has the authority to provide temporary relief in support of RPL.
2. The Court is competent to hear legal proceedings against the Sole Arbitrator.
3. The arbitration award may be invalidated due to a perceived lack of independence
and impartiality.
And/ Or
Pass any other order, writ or direction which it deems fit in the interest of justice, equity and
good conscience.
The counsel humbly bound ever pray.
All of which is humbly submitted.
S/dCounsel for the Petitioner
37
10th National Moot Court Competition
TC-01
38