Honorable members of the Tribunal, Good Day.

My name is Felix Cherian Alex

and I together with my co-counsel Nithin Rajeev will be representing
respondents in today’s proceedings.

I will address the procedural issues of the matter while my co-counsel will
address the merits of the dispute and together, we are here on behalf of our
client, CamVir Ltd and Vector Vir Ltd, respondents in this arbitration.

Respondents respectfully requests the Tribunal to accept the joinder of Ross to

the pending arbitral proceeding between Claimant and Respondents as they are
indirectly involved in the pending proceeding.

Further, I also submit that in person hearing will naturally avoid difficulties
caused due to many factors which include shortcomings of virtual hearing.

And with that note I would like to make the following 2 submissions:

1. ROSS PHARMA SHOULD BE JOINED IN THE ARBITRAL

PROCEEDING

2. EXAMINATION OF WITNESS AND EXPERTS SHOULD BE

CONDUCTED IN PERSON

So, I will begin now with my 1st submission.

ROSS PHARMA SHOULD BE JOINED IN THE ARBITRAL

PROCEEDING

Moving on the 1st limb of my argument, that is, the tribunal has jurisdiction over
Ross. Majority of the most relevant international arbitration institutions have a
provision on the joinder of third parties as in case of the Court of Arbitration of
the Official Chamber of Commerce and Industry of Madrid 2008 Arbitration
Rules, 2010 UNCITRAL Arbitration Rules, Netherlands Arbitrations Institute
(NAI) Arbitration Rules and so on.

[Manuel Gomez Carrion, Joinder of third parties: new institutional developments

at483].

Likewise, in the instant case Ross pharmaceuticals can be allowed to join the
arbitral proceedings because it has the jurisdiction as per the above-mentioned
provisions of various rules.

There are arbitration laws and rules taking the approach that multiparty
proceedings will not require the consent of all the relevant parties; the agreement
between a third party and one of the parties to the arbitration would suffice for
the third party to be joined to the pending arbitration.

[The Netherland Code of Civil Procedure, art. 1046, see also Hong Kong
Arbitration Ordinance, No.341(1997) 3, see Italian Arbitration, art 816, Art
22.1(h) of the Arbitration rules of the London Court of International
Arbitration(“LCIA”), see Swiss Rules, art. 4(1), 4(2)].

This approach has also been endorsed by some national courts

[see Compania Espanola de Petroleos, S.A v. Nereus Shipping, S.A., 527 F.2d
966 (2d Cir 1975); Sociedad Anonima de Navegacion Petrolera v. Cia de
Petroleos de Chile, 634 F

Likewise, in the present case Arbitral tribunal can accept the request of
RESPONDENT for the joinder of Ross to the Arbitral proceedings even without
the consent of CLAIMANT as the Arbitral Tribunal has the jurisdiction.

Furthermore, JOINING OF ROSS WILL NOT AFFECT THE

CONFIDENTIALITY BETWEEN CLAIMANT AND RESPONDENTS.
Confidentiality may not be the insurmountable obstacle. [Commercial
Arbitration Rules of the Japan Commercial Arbitration Association].

The reality is that many potential third-party participants will already have full or
partial knowledge of the affairs at issue, thus eliminating many of the parties’
confidentiality concerns ab initio.

Privacy concerns can also be addressed by requiring intervenors and joined third
parties to sign confidentiality agreements that carry strict penalties for
noncompliance.

[See Baldwin, Protecting Confidential and Proprietary Commercial Information

in International Arbitration, 31 TEX, INT’L L.J 453, 460-61].

In the present scenario, by accepting the request of RESPONDENT for the

joining of Ross will not affect the issue of confidentiality.

It is difficult to see why confidentiality concerns should bar third party joinder or
intervention as of right if proper precautions are taken to protect the existing
parties’ legitimate privacy issues.

Now, moving on to the Second limb of the argument which is, ARBITRAL
TRIBUNAL CAN EXERCISE ITS DISCRETION TO JOIN ROSS
PHARMACEUTICALS TO THIS PROCEEDINGS.

The AAA international Rules states that if the continuation of the arbitration
becomes “impossible”, then the arbitral tribunal shall terminate the
proceedings [AAA International Rules, art. 30(2)].

This provision might be effective in persuading recalcitrant parties to consent to

intervention by or joinder of a third party, if arbitrators were willing and able to
hold that it would be impossible to proceed fairly without the participation of the
third party. [FED. R. CIV., defining joinder and intervention as of right, P.19].

In the instant, case preventing Ross Pharmaceuticals from the arbitral proceedings
will affect the fair and just manner of the proceedings.

THIRD PARTIES ARE AN INTEGRAL PART OF THE SUBSTANTIVE

BACKGROUND OF THE ARBITRATION.

The interests of the third parties should be taken into account on the basis of the
principle of “equality of the parties”, which should “be read to include all parties
to the contract, not just those who are participating in the arbitration”.

[see S.I. Strong, Intervention and Joinder as of Right in International Arbitration:

An Infringement of Individual Contract Right or a proper Equitable Measure at
926;).

The term “parties” will include third parties to arbitration that are substantively
intertwined in the dispute pending before the tribunal. Furthermore, it has been
argued that third parties should be allowed to intervene or to be joined to
arbitration proceedings by reference to due process [see S.I. Strong, Intervention
and Joinder as of Right in International Arbitration: An Infringement of
Individual Contract Right or a proper Equitable Measure at 927].

Whenever the presence of the third party is indispensable for one of the parties to
the arbitration proceeding to make its case before the tribunal

[see Ass’n of Contracting Plumbers v. United Ass’n of Journeymen, 841 F.2d

461, 466(2d Cir. 1988)].

Unless the third party is allowed to participate in the arbitration, the existing party
to the proceedings will be unable to present its case and therefore due process
will be violated.
 CONCLUSION

RESPONDENT respectfully requests the Tribunal to accept the joinder of Ross

to the pending arbitral proceedings between CLAIMANT and RESPONDENTS.
Ross can join the arbitral proceedings as the Tribunal has jurisdiction over it. In
any event, Ross should be joined since the joinder of Ross is necessary as they
are involved in the pending proceedings.

ISSUE 2:

Respondents are requesting the Arbitral Tribunal, an in-person hearing for the
examination of the witnesses and experts.
COVID-19 social distancing measures and travel restrictions have particularly
affected certain aspects of arbitral proceedings.
Under Article V (1) of the New York Convention, an arbitral award may be
challenged if “a party against whom the award is invoked . . . was otherwise
unable to present his case” or where “the arbitral procedure was not in accordance
with the agreement of the parties, or failing such agreement, was not in agreement
with the law of the country where the arbitration took place).
[United Nations Convention on the Recognition and Enforcement of Foreign
Arbitral Awards (June 10, 1958)].

Shortcomings of virtual hearings when evaluating witness or expert

testimony.
When evaluating witness or expert testimony, compromising the arbitrators’
ability to assess the evidence.

For example, during cross-examination, the members of the tribunal may not have
the same ability to analyse the answers and the body language of the witnesses or
experts as during in-person testimony, A witness unfamiliar with online meeting
platforms might not convincingly look directly at a questioner (through a
computer camera).

In a virtual setting, there is additionally the possibility that a witness is being

secretly advised off camera or reading documents without the knowledge of the
tribunal or opposing party.

It may even be the case that the challenges posed by hearings during the pandemic
could improve a panel’s assessment of the evidence. The procedures imposed by
the pandemic may force a tribunal to focus directly on the evidence itself,
unfiltered through any unconscious bias or affinity of the tribunal toward
particular witnesses. The visual, verbal and behavioural clues used to categorise
others based on age, gender or social background might be muted through online
witness testimony.

[Hague Conference on Private International Law, Draft Guide to Good Practice

on the Use of Video-Link under the Evidence Convention (December 8, 2018).]

A. Uneven Access to Technology

Witness situated in a developing country may not have access to the same
technology equipment or high-speed internet as a witness or expert in developed
countries.

B. Security & Confidentiality

Virtual hearings bring new issues of security and confidentiality.

Hackers could crash the proceedings through zoom bombing.

Zoom-Bombing may occur as it refers to an unwanted, disruptive intrusion by

hackers into a video conference call or the arbitral institution’s website or
electronic hearing bundle could be hacked.
In July 2015, well before the trend to move proceedings virtually, the Permanent
Court of Arbitration was hacked in the midst of an ongoing maritime border
dispute between China and the Philippines.

Malware was implanted on the PCA’s website which infected the computers of
visitors, potentially exposing them to data theft [Jason Healey and Anni
Piiparinen, Did China Just Hack the International Court Adjudicating Its South
China Sea Territorial Claims? The Diplomat (Oct. 27, 2015),]

The Remote Examination of Witnesses And Experts Will Be Affected By

The Time Zones Differences.

Virtual hearings can lead to video-conference fatigue and exacerbate time zone
differences, rendering unsustainable lengthy and intense cross examination
sessions. This fatigue hits all the participants such that the hearing days become
shorter which is a problem unless the overall duration of the hearing can be
extended. In a video context, participants become ‘headshot talkers’ who tend to
stare continuously at the screen to demonstrate attendance and participation in the
proceedings.

The integrity of the arbitral award stems from a fair process based on party
autonomy and a party’s reasonable opportunity to present its case. It is therefore
unsurprising that emerging guidance such as The Seoul Protocol and the AAA
model order on virtual hearings emphasize that virtual proceedings must be fair
to all parties in the dispute.

[Seoul Protocol on Video Conference in International Arbitration, 18 March

2020. AAA-ICDR Model Order and Procedures for a Virtual Hearing via
Videoconference]

Consideration for the Parties.

Before going to court, during or after arbitral proceedings, a party should be
careful not to waive procedural rights.

If the parties choose to implement a protocol or procedural order for virtual

hearings, each should consider its ability to conform with the protocol, the costs
and benefits of doing so.

A party with concerns about uneven access to technology, for instance, should
raise those concerns and propose solutions. The parties and the arbitrators have
an interest in ensuring that the arbitration proceeds fairly and smoothly

Conclusion

In Conclusion, in person hearing will naturally avoid many difficulties caused

due to many factors which includes Shortcomings of virtual hearings when
evaluating witness or expert testimony, the enforceability of the arbitral award,
time zones differences, issues of security and confidentiality etc.

With That the respondent concludes their submission on

the procedural issues of the matter. Thank You Members
of the Tribunal, it was a pleasure presenting Infront of
You.