Memorial For The Petitioner

ANNUAL INTRA-COLLEGE RAGHAVENDRA PHADNIS MOOT COURT
COMPETITION, 2022
CODE–SH9
BEFORE THE HON’BLE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION

IN ITS COMMERCIAL DIVISION
COMM. ARBITRATION PETITION (L) NO. 000 OF 2022
IN THE MATTER OF –
DOBBY-SHIFU PVT. LTD. … PETITIONER
V.
BABY COBRA PVT. LTD. & ORS. … RESPONDENTS

COMPETITION, 2022
MEMORIAL ON BEHALF OF THE PETITIONER
COUNSEL APPEARING ON BEHALF OF THE PETITIONER

COMPETITION, 2022
TABLE OF CONTENTS
LIST OF ABBREVIATIONS ................................................................................................. II
INDEX OF AUTHORITIES .................................................................................................. IV
STATEMENT OF JURISDICTION ..................................................................................... VI
STATEMENT OF FACTS ................................................................................................... VII
ISSUES RAISED .................................................................................................................... IX
SUMMARY OF ARGUMENTS .............................................................................................. X
ARGUMENTS ADVANCED ...................................................................................................1
I. FOREIGN-SEATED EMERGENCY AWARD QUALIFIES FOR ENFORCEMENT UNDER PART-II

OF ARBITRATION & CONCILIATION ACT, 1996.......................................................................1
II. EMERGENCY AWARD PASSED BY THE ESTONIA-SEATED ARBITRATION CAN BE
CONSIDERED A “FOREIGN AWARD” UNDER PART-II OF ARBITRATION & CONCILIATION ACT,
1996 ........................................................................................................................................3
A. The dispute in the present matter is “Commercial” in nature ......................................4
B. The Award is pursuable to a written arbitration agreement .........................................5
C. The dispute between the parties (“persons”) arose out of legal relationships ..............6
D. The arbitration was conducted in a New York Convention country .............................6
III. IT IS REASONABLE TO ENFORCE FOREIGN-SEATED EMERGENCY AWARD IN INDIA ... 10
PRAYER ................................................................................................................................ XI
ANNUAL INTRA-COLLEGE RAGHAVENDRA PHADNIS MOOT COURT COMPETITION, 2022
LIST OF ABBREVIATIONS
ABBREVIATIONS DESCRIPTION
Pvt. Ltd. Private Limited
Co. Company
MOU Memorandum Of Understanding
SSA Share Subscription Agreement
v. Versus
SHA Shareholders Agreement
Del Delhi
Bom Bombay
Annex. Annexure
ICC International Court of Arbitration
No. Number
Aug August
Sept September
INR Indian Rupee
Dt. Dated
& And
SIAC Singapore International Arbitration Centre
Hon’ble Honorable
EA Emergency Arbitration
LLC Limited Liability Company
Anr. Another
Mr. Mister
I.E. That Is
SC Supreme Court
HC High Court
§ Section
PAGE | II
¶ Paragraph
SCC Supreme Court Cases
Cl. Clause
PAGE | III
INDEX OF AUTHORITIES
INDIAN CASES
Alka Chandewar v. Shamsul Ishrar Khan, (2017) 16 SCC 119 (India) .................................................... 12
Amazon.com NV Investment Holdings LLC v. Future Retail Limited and Others, (2022) 1 SCC 209
(India) .................................................................................................................................... 10, 14, 15
Avitel Post Studioz Ltd. & Ors. v. HSBC PI Holdings (Mauritius) Ltd., (2021) 4 SCC 713 (India) ........ 16
BGS SGS Soma JV v. NHPC Ltd., (2019) SCC OnLine SC 1585 (India) ................................................. 7
HSBC PI Holdings (Mauritius) Ltd. v. Avitel Post Studioz Ltd & Ors., 2014 SCC OnLine Bom 102
(India) ............................................................................................................................................... 12
Indiabulls Financial Services v. Jubilee Plots, (2009) SCC OnLine Del 2458 (India) ........................ 12, 14
Mr. Ashwani Minda & Anr. v. U-Shin Ltd. & Anr., (2020) SCC OnLine Del 721 (India) ................ 11, 12
Priya Malay Sheth v. VLCC Health Care Ltd., (2022) 4 Bom CR 331 (India) .......................................... 8
R.M. Investments & trading Co. P. Ltd v. Boeing Co., (1994) SCC (4) 541 (India) .................................. 4
Sri Krishan v. Anand, (2009) SCC OnLine Del 2472 (India) ............................................................ 12, 14
Transocean Shipping Agency Pvt. Ltd. v. Black Sea Shipping Co., (2009) SCC OnLine Bom 1214 (India)
............................................................................................................................................................ 9
STATUTES
Arbitration & Conciliation Act, 1996 .................................................................VI, 1, 3, 11, 12, 13, 14, 15
Civil Procedure Code, 1908 ............................................................................................................. 12, 13
Commercial Courts Act, 2015................................................................................................................ VI
Companies Act, 1956 .............................................................................................................................. 6
Contempt of Courts Act, 1971 ............................................................................................................... 12
Foreign awards (Recognition and Enforcement) Act, 1961....................................................................... 9
RULES
SIAC Rules, 2016.............................................................................................................................. 2, 15
INTERNATIONAL CONVENTIONS
Convention on the Recognition and Enforcement of Foreign Arbitral Awards, 1958 ............. 1, 2, 4, 5, 6, 8
UNCITRAL Model law on International Commercial Arbitration, 1985 .................................................. 4
MOOT PROPOSITION
PAGE | IV
Moot Proposition ................................................................................................................................. 5, 6

Moot Proposition (Annex.I) ................................................................................................................. 2, 6
ARTICLE
Ciccu Mukhopadhaya, Special Supplement 2012: ICC Guide to National Procedures for Recognition and
Enforcement of Awards under the New York Convention, ICC DIGITAL LIBRARY (2013) ................ 8
REPORT
Law Commission of India, 246th Law Commission Report, Report No. 246 (5 August 2014) .......... 15, 16
OFFICIAL WEBSITE
THE NEW YORK ARBITRATION CONVENTION .............................................................................. 8
PAGE | V
STATEMENT OF JURISDICTION
The petitioner has filed this petition under § 10(1) of the Commercial Courts Act, 20151 invoking
the Ordinary Original Civil Jurisdiction of the HC of Judicature at Bombay in its Commercial
Division. 2
§ 10(1) of the above Act reads as under:
10. Jurisdiction in respect of arbitration matters.—
Where the subject-matter of an arbitration is a commercial dispute of a Specified Value

and–– (1) If such arbitration is 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 in a HC, shall be heard and
disposed of by the Commercial Division where such Commercial Division has been
constituted in such HC.
The Petitioner humbly submits that this court has the appropriate jurisdiction to hear the
matter and adjudicate accordingly.
1
Commercial Courts Act, 2015, § 10(1)
2
Arbitration & Conciliation Act, 1996
47. Evidence.—(1) The party applying for the enforcement of a foreign award shall, at the time of the application,
produce before the court—
(a) the original award or a copy thereof, duly authenticated in the manner required by the law of the country in
which it was made;
(b) the original agreement for arbitration or a duly certified copy thereof; and
(c) such evidence as may be necessary to prove that the award is a foreign award.
(2) If the award or agreement to be produced under sub-section (1) is in a foreign language, the party seeking to
enforce the award shall produce a translation into English certified as correct by a diplomatic or consular agent of
the country to which that party belongs or certified as correct in such other manner as may be sufficient according to
the law in force in India.
…
Explanation.—In this section and in the sections following in this Chapter, “Court” means the HC having original
jurisdiction to decide the questions forming the subject-matter of the arbitral award if the same had been the subject-
matter of a suit on its original civil jurisdiction and in other cases, in the HC having jurisdiction to hear appeals from
decrees of courts subordinate to such HC.
PAGE | VI
STATEMENT OF FACTS
For the sake of brevity and convenience of Hon’ble Court, the facts pertinent to the instant case
are summarized as follows:
DOBBY–SHIFU PVT. LTD. AND BABY COBRA GROUP
I. Dobby-Shifu Pvt. Ltd. is an investment holding company for the principal investments of
the Dobby-Shifu Group. It is incorporated under the provisions of Companies Act, 1956,
and has its registered office at Mumbai.
II. Baby Cobra Group provides multimedia solutions, typically to production houses,
exhibitors, streaming platforms and media/ad agencies. It has 4 entities under it, namely –
Baby Cobra Pvt. Ltd., Baby Cobra Studios Pvt. Ltd., and two others. Baby Cobra Pvt.
Ltd. is a parent company in the Baby Cobra Group. It is incorporated under the
provisions of Companies Act, 1956, and has its registered office at Mumbai. It owns
100% of the shares in Baby Cobra Studios Pvt. Ltd, a company incorporated in India and
having its registered office at Noida. The other two companies are promoters of Baby
Cobra Group. All four are collectively referred as “Respondents”
III. In mid-2021, the Baby Cobra Group observed an extraordinary spike in demand for (and
consequently, the value of) their post-production and digitisation services. The boom in
consumption of OTT services over the COVID-19 lockdown appears to have driven this
trend. The Baby Cobra Group decided to cash-in on the valuation by bringing in an
investor and Baby Cobra Pvt. Ltd. decided to approach the Dobby-Shifu Pvt. Ltd. in
November 2021.
THE AGREEMENT
IV. Baby Cobra Group had represented to the Dobby-Shifu Pvt. Ltd. during negotiations that
Baby Cobra Studios Pvt. Ltd. was in advanced stages of finalizing a five year contract
with Red-Panda – a leading OTT platform. A MOU had been signed between both
parties to convert Red Pandas’ Film library from 2D to 3D, and the contract was expected
to generate revenue in excess of INR 950 crores.
PAGE | VII
V. On January 11, 2022, a Share Subscription Agreement (“SSA”) was entered into between
the Dobby-Shifu Pvt. Ltd. and the Respondents, by which the Dobby-Shifu Pvt. Ltd.
made an investment in the equity capital of the Baby Cobra Pvt. Ltd. for an aggregate
consideration of INR 102 crores in order to acquire 15% of its paid-up capital.
Simultaneously, the Dobby-Shifu Pvt. Ltd. and Respondents also entered into a
Shareholders Agreement (“SHA”) dt. January 11, 2022. Cl. 16 of the SSA provides for
arbitration in Cl. 16. The SHA provides that the arbitration Cl. at Cl. 16 of the SSA
stands consciously and specifically incorporated by reference in the SHA. On April 2,
2022, the entire investment proceeds of INR 102 crores was received from the Dobby-
Shifu Pvt. Ltd. by Baby Cobra Pvt. Ltd.
THE DISPUTE, EMERGENCY PROCEEDINGS AND COURT PROCEEDINGS
VI. Shortly after the completion of payments, audit firm of Baby Cobra Studios Pvt. Ltd.
resigned due to serious concerns over the authenticity of key customers and suppliers and
lack of financial records, also leading to loss of trust which is essential.
VII. The report submitted by the independent forensic investigator raised by the auditor who
had resigned – including concerns over the legitimacy of the Baby Cobra Group’s
business. This also claimed that the contract between Red Panda and Baby Cobra Studios
Pvt. Ltd. was non-existent. The money which was obtained for purchasing the equipment
for service was siphoned off to the companies in which the promoters of Baby Cobra
Group had stake.
VIII. On August 2, 2022, Dobby-Shifu Pvt. Ltd. issued a notice of arbitration and subsequently
filed an application for urgent relief under emergency arbitration provisions of SIAC
rules.
IX. Proceedings were held in online format. On August 19. 2022, the emergency arbitrator
passed the emergency award in the favor of Dobby-Shifu Pvt. Ltd.
X. The Petitioner has filed the petition for the enforcement proceedings in HC of Judicature
at Bombay under its commercial Division, because the Respondents have refused to
comply with the Emergency Award. The petition seeks recognition and enforcement of
an "Interim Award on Emergency Measures" dt. August 19, 2022.
PAGE | VIII
ISSUES RAISED
ISSUE I
WHETHER A FOREIGN-SEATED EMERGENCY AWARD QUALIFIES FOR ENFORCEMENT UNDER PART-II

OF ARBITRATION & CONCILIATION ACT, 1996 OR NOT?
ISSUE II
WHETHER EMERGENCY AWARD PASSED BY THE ESTONIA-SEATED ARBITRATION CAN BE

CONSIDERED A “FOREIGN AWARD” UNDER PART-II OF ARBITRATION & CONCILIATION ACT, 1996
OR NOT?
ISSUE III
WHETHER IT IS REASONABLE TO ENFORCE FOREIGN-SEATED EMERGENCY AWARD IN INDIA OR

NOT?
PAGE | IX
SUMMARY OF ARGUMENTS
I. FOREIGN-SEATED EMERGENCY AWARD QUALIFIES FOR ENFORCEMENT UNDER PART-II

OF ARBITRATION & CONCILIATION ACT, 1996
It is most humbly submitted that interpretation of statutes shows that foreign-seated

emergency award qualify for enforcement under Part-II of Arbitration & Conciliation Act,
1996. The arbitration agreement in consonance with Arbitration & Conciliation Act, 1996,
New York Convention, 1958 and the SIAC Rules, 2016 shows that emergency award
issued in foreign seat are enforceable under Part-II of Arbitration & Conciliation Act, 1996.
II. EMERGENCY AWARD PASSED BY THE ESTONIA-SEATED ARBITRATION CAN BE
CONSIDERED A “FOREIGN AWARD” UNDER PART-II OF ARBITRATION & CONCILIATION

ACT, 1996
It is most humbly submitted that the emergency award passed by the Estonia-seated
arbitration qualifies for all of the conditions for “foreign award” mentioned under § 44
Arbitration & Conciliation Act, 1996. Therefore, it is submitted firstly, the dispute in the
matter is “Commercial” in nature. Secondly, the award is pursuable to a written arbitration
agreement. Thirdly, the dispute between the parties arose out of the legal relationship and
fourthly, the arbitration took place in a New York Convention country.
III. IT IS REASONABLE TO ENFORCE FOREIGN-SEATED EMERGENCY AWARD IN INDIA

It is most humbly submitted that the current legal literature recognizes the presence and
importance of EA and the same is reflected in the jurisprudence of the field of arbitration. It
is contended that appellate courts of India has recognized the existence of EA and place
high reliance on its correctness. Furthermore, the nature of emergency awards is quite
similar to the interim reliefs passed by the courts. Therefore, it is submitted that it is
reasonable to enforce foreign-seated emergency award in India.
PAGE | X
ARGUMENTS ADVANCED
I. FOREIGN-SEATED EMERGENCY AWARD QUALIFIES FOR ENFORCEMENT UNDER PART-II OF

ARBITRATION & CONCILIATION ACT, 1996
This argument deals with the interpretation of different statues for the purpose evaluating
whether a foreign-seated emergency award qualifies for enforcement under Part – II of
Arbitration & Conciliation Act, 1996.3
§ 44 of the Arbitration & Conciliation Act, 1996 states4 –
Definition.—In this Chapter, unless the context otherwise requires, “foreign award”
means an arbitral award on differences between persons arising out of legal
relationships, whether contractual or not, considered as commercial under the law in
force in India, made on or after the 11th day of October, 1960—
(a) in pursuance of an agreement in writing for arbitration to which the Convention set
forth in the First Schedule applies, and
(b) in one of such territories as the Central Government, being satisfied that reciprocal
provisions have been made may, by notification in the Official Gazette, declare to be
territories to which the said Convention applies.
As per § 44, India is under an obligation to enforce at least those foreign arbitral awards in India,
which are delivered in arbitrations seated in countries signatories to Convention on the
Recognition and Enforcement of Foreign Arbitral Awards, 1958 5 (‘New York Convention’).
This is so because India itself is a signatory to the New York Convention.
Article 1(2) of the New York Convention states6 –
“The term ‘arbitral awards’ shall include not only awards made by arbitrators appointed
for each case but also those made by permanent arbitral bodies to which the parties have
submitted.”
3
Arbitration & Conciliation Act, 1996.
4
Arbitration & Conciliation Act, 1996, § 44.
5
Convention on the Recognition and Enforcement of Foreign Arbitral Awards, 1958, 10 June, 1958.
6
Convention on the Recognition and Enforcement of Foreign Arbitral Awards, 1958, Article 1(2) 10 June, 1958.
PAGE | 1
Going by the above provision, it can be reasonably argued that the New York Convention is
wide enough to involve not only arbitral awards made by arbitrators, but also interim awards
made by the emergency arbitrators who are appointed by the concerned arbitral institution.
Emergency arbitrators (EAs) are indeed made by the arbitral institutions only, as it is the arbitral
institution who appoints the emergency arbitrator.
Pertaining to the present matter, it becomes essential to examine the SIAC Rules, 20167 as both
the parties have willingly agreed onto for the arbitration agreement.
According to Schedule 1(3) of the SIAC Rules, 20168 it is the president of the SIAC who shall
appoint the emergency arbitrator, once an application has been made to the SIAC for
appointment of the emergency arbitrator.
Schedule 1(3) of the SIAC Rules, 2016 states –
The President shall, if he determines that SIAC should accept the application for
emergency interim relief, seek to appoint an Emergency Arbitrator within one day of
receipt by the Registrar of such application and payment of the administration fee and
deposits.
Moreover, Cl. 16.3 of the SSA reads as follows9 –
16.3 Final and Binding
It is agreed by the parties that any award made by the Arbitration Tribunal shall be final
and binding on each of the parties that were parties to the dispute.
As per the above-mentioned rules, a conclusion can be made out that it is the arbitral tribunal
who appoints the emergency arbitrator and thus, such awards are made by the arbitral institutions
only and are recognised under Article 1(2) the New York Convention. 10
7
SIAC Rules, 2016 (Sing.).
8
SIAC Rules, 2016, Schedule 1(3) (Sing.).
9
Moot Proposition (Annex.I), Cl. 16.3.
10
Convention on the Recognition and Enforcement of Foreign Arbitral Awards, 1958, Article 1(2), 10 June, 1958.
PAGE | 2
Part – II of the Arbitration & Conciliation Act, 1996 that is in consonance with the New York
Convention lays down that for an award to be enforceable, it needs to be “binding” and not
necessarily “final”, under § 46 of the Arbitration & Conciliation Act, 1996.
When foreign award binding.—Any foreign award which would be enforceable under
this Chapter shall be treated as binding for all purposes on the persons as between whom
it was made, and may accordingly be relied on by any of those persons by way of
defence, set off or otherwise in any legal proceedings in India and any references in this
Chapter to enforcing a foreign award shall be construed as including references to
relying on an award.
Therefore emergency arbitrations are binding on the parties, and are thus, enforceable.
Thus, it is humbly submitted before this Hon’ble Court that a foreign-seated emergency award
qualifies for enforcement under Part – II of Arbitration & Conciliation Act, 1996.
II. EMERGENCY AWARD PASSED BY THE ESTONIA-SEATED ARBITRATION CAN BE CONSIDERED

A “FOREIGN AWARD” UNDER PART-II OF ARBITRATION & CONCILIATION ACT, 1996
§ 44 of the Part – II of the Arbitration & Conciliation Act, 1996 states the conditions for a
“foreign award” needed to be fulfilled in order to make the award enforceable.
44. Definition.—In this Chapter, unless the context otherwise requires, “foreign award”
means an arbitral award on differences between persons arising out of legal
relationships, whether contractual or not, considered as commercial under the law in
force in India, made on or after the 11th day of October, 1960—
(a) in pursuance of an agreement in writing for arbitration to which the Convention set
forth in the First Schedule applies, and
11
12
PAGE | 3
(b) in one of such territories as the Central Government, being satisfied that reciprocal
provisions have been made may, by notification in the Official Gazette, declare to be
territories to which the said Convention applies.
The counsel for the petitioner contends that the Estonia-seated emergency award fulfills all the
necessary conditions for the “foreign award” namely –
1. The dispute must be considered to be a commercial dispute under the law in force in
India
2. It must be made pursuant to a written arbitration agreement
3. The dispute must arise between “persons” (without regard to their nationality, residence,
or domicile)
4. The arbitration must be conducted in a New York Convention country13 and in one of
such territories as the Central Government, being satisfied that reciprocal provisions have
been made may, by notification in the Official Gazette, declare to be territories to which
the said Convention applies.
Moving forward, the counsel on behalf of petitioner contends that –
A. The dispute in the present matter is “Commercial” in nature
The SC in R.M. Investments & trading Co. P. Ltd v. Boeing Co.14 observed that while construing
the expression of ‘commercial relationship’, guidance can also be taken from UNCITRAL
Model law.
As per the explanation given in Article 1(1) of Part – 1 of UNCITRAL Model law on
International Commercial Arbitration15 –
The term “commercial” should be given a wide interpretation so as to cover matters

arising from all relationships of a commercial nature, whether contractual or not.
Relationships of a commercial nature include, but are not limited to, the following
transactions: any trade transaction for the supply or exchange of goods or services;
13
14
R.M. Investments & trading Co. P. Ltd v. Boeing Co., (1994) SCC (4) 541 (India).
15
UNCITRAL Model law on International Commercial Arbitration, 1985, Article 1(1) of Part – 1, 1996.
PAGE | 4
distribution agreement; commercial representation or agency; factoring; leasing;

construction of works; consulting; engineering; licensing; investment; financing;
banking; insurance; exploitation agreement or concession; joint venture and other forms
of industrial or business cooperation; carriage of goods or passengers by air, sea, rail or
road.
As per this explanation, SHA and SSA are within the ambit of “commercial” nature as they are
related to financing and investment activities.
Therefore, it is humbly submitted before this Hon’ble Court that the dispute in the present matter
is “commercial” in nature.
B. The Award is pursuable to a written arbitration agreement
¶ 2 of Article 2 of the New York Convention is read as follows16 –
2. The term “agreement in writing” shall include an arbitral Cl. in a contract or an

arbitration agreement, signed by the parties or contained in an exchange of letters or
telegrams.
In the present matter, going by the facts of the case17 –
“On January 11, 2022, a Share Subscription Agreement (“SSA”) was entered into
between the Petitioner and the Respondents, by which the Petitioner made an investment
in the equity capital of the Respondent No. 1 company for an aggregate consideration of
INR 102 crores in order to acquire 15% of its paid-up capital. Simultaneously, the
Petitioner and Respondents also entered into a Shareholders Agreement (“SHA”) dt.
January 11, 2022. Cl. 16 of the SSA provides for arbitration. The SHA provides that the
arbitration Cl. at Cl. 16 of the SSA stands consciously and specifically incorporated by
reference in the SHA, and clarifies that a single/consolidated arbitration shall be
conducted in respect of disputes arising under the SSA and SHA.”
16
Convention on the Recognition and Enforcement of Foreign Arbitral Awards, 1958, Article 2 ¶2, 10 June, 1958.
17
Moot Proposition, ¶ 3.4.
PAGE | 5
Therefore, it is humbly submitted before this Hon’ble Court that the award is pursuable to the
written arbitration agreement.
C. The dispute between the parties (“persons”) arose out of legal relationships
According to the facts of the case, both the parties to the contract were incorporated under the
provisions of the Companies Act, 195618 and were competent to contract19. They had willing
entered into a valid contractual relationship. The dispute in the present case was related to SSA
on the terms of misrepresentation and fraud, which was further entertained by emergency
arbitrator.
Thus, it is humbly submitted before this Hon’ble Court that the dispute between the parties arose
out of legal relationships.
D. The arbitration was conducted in a New York Convention country
According to § 44(b) of the Arbitration & Conciliation Act, 1996 there are two pre-requisites for
enforcement of foreign awards under the New York Convention. These are:
a. The country must be a signatory to the New York Convention. 20

b. The award shall be made in the territory of another contracting state which is a
reciprocating territory and notified as such by the Central Government.
The counsel on behalf of the petitioner contends that, here “country”, also referred as ‘Seat’ of
the arbitration, is considered to be Estonia.
The arbitration agreement (Cl. 16 of the SSA) mentions in Cl. 16.1.221 –
“The venue of arbitration shall be Estonia.”
The arbitration agreement does not explicitly mention about the ‘Seat’ of the arbitration.
The counsel directs the Hon’ble Court to the following case laws for better clarity on the issue –
18
Companies Act, 1956.
19
Moot Proposition, ¶ 3.1.
20
21
Moot Proposition (Annex.I), Cl. 16.1.2.
PAGE | 6
1. BGS SGS Soma JV v. NHPC Ltd.22
The SC prescribed the following bright-line test for determining whether a chosen venue
could be treated as the seat of arbitration:
i. If a named place is identified in the arbitration agreement as the “venue” of

“arbitration proceedings”, the use of the expression “arbitration proceedings”
signifies that the entire arbitration proceedings (including the making of the
award) is to be conducted at such place, as opposed to certain hearings. In such a
case, the choice of venue is actually a choice of the seat of arbitration.
ii. In contrast, if the arbitration agreement contains language such as “tribunals are
to meet or have witnesses, experts or the parties” at a particular venue, this
suggests that only hearings are to be conducted at such venue. In this case, with
other factors remaining consistent, the chosen venue cannot be treated as the seat
of arbitration.
iii. If the arbitration agreement provides that arbitration proceedings “shall be held”
at a particular venue, then that indicates arbitration proceedings would be
anchored at such venue, and therefore, the choice of venue is also a choice of the
seat of arbitration.
iv. The above tests remain subject to there being no other “significant contrary
indicia” which suggest that the named place would be merely the venue for
certain proceedings and not the seat of arbitration.
v. In the context of international arbitration, the choice of a supranational body of
rules to govern the arbitration (for example, the ICC Rules) would further
indicate that the chosen venue is actually the seat of arbitration. In the context of
domestic arbitration, the choice of the Indian Arbitration and Conciliation Act,
1996 would provide such indication.
Applying the reasoning of Bright-line test (point i and iii) in the present case, Estonia
can be reasonably considered as the seat of the arbitration.
22
BGS SGS Soma JV v. NHPC Ltd., (2019) SCC OnLine SC 1585 (India).
PAGE | 7
2. Priya Malay Sheth v. VLCC Health Care Ltd.23

In this case the recently, the Bombay HC upheld the line of reasoning of BGS SGS Soma
JV v. NHPC Ltd.
Therefore, it is humbly submitted before this Hon’ble Court that the ‘Seat’ of the arbitration is
taken as Estonia (“Country”).
Coming back to the pre-requisites for enforcement of foreign awards under the New York
Convention, it is humbly submitted that –
a. Estonia is a signatory to the New York Convention
Date provided by official website of New York Convention, 1958 is a follows 24 –
Country – Estonia
Instrument of ratification – The Estonian Parliament ratified the Convention on

16 June 1993
Date of accession - 30 August 1993
Date of entry into force - 28 November 1993
Thus, Estonia is signatory to New York Convention, 1958.25
b. Estonia is considered as reciprocating territory
The Special Supplement 2012: ICC Guide to National Procedures for Recognition and
Enforcement of Awards under the New York Convention26 provides the list of the list of
23
Priya Malay Sheth v. VLCC Health Care Ltd., (2022) 4 Bom CR 331 (India).
24
THE NEW YORK ARBITRATION CONVENTION, https://www.newyorkconvention.org/countries (last visited
Sept. 10, 2022).
25
26
Ciccu Mukhopadhaya, Special Supplement 2012: ICC Guide to National Procedures for Recognition and
Enforcement of Awards under the New York Convention, ICC DIGITAL LIBRARY (2013),
https://library.iccwbo.org/content/dr/COUNTRY_ANSWERS/CA_SUPP_0029_31.htm?l1=Country+Answers&l2=
India.
PAGE | 8
'reciprocating territories' notified by the Government of India in the Gazette of India, for
the purposes of s. 44 of the Arbitration and Conciliation Act 1996 ('1996 Act')
The list comprises of –
Austria, Belgium, Botswana, Bulgaria, Central African Republic, Chile, Cuba,

Czechoslovak Socialist Republic, Denmark, Ecuador, The Arab Republic of
Egypt, Finland, France, German Democratic Republic, Federal Republic of
Germany, Ghana, Greece, Hong Kong, Hungary, Italy, Republic of Ireland,
Japan, Republic of Korea, Kuwait, Malagasy Republic, Malaysia, Mexico,
Morocco, The Netherlands, Nigeria, Norway, Philippines, Poland, Romania, San
Marino, Singapore, Spain, Sweden, Switzerland, Syrian Arab Republic, United
Republic of Tanzania, Thailand, Trinidad and Tobago, Tunisia, UK, the United
States of America and USSR
The counsel on behalf of the petitioner contends that, though there is no direct mention of
Estonia in the above list, still Estonia would be considered as a reciprocating territory.27
Estonia was a territory of USSR, before its disintegration in 1991, when Government of
India issued a notification on 2 July, 1972 under § 2(b) of the Foreign awards
(Recognition and Enforcement) Act, 196128 declaring reciprocal territories. The
Government of India declared that the award made in the territory of USSR could be
enforced in India under the Arbitration & Conciliation Act, 1996.
The same was held by the SC of India in Transocean Shipping Agency Pvt. Co. v. Black
Sea Shipping Co.29
¶ 12 of the above judgment states –
12. The appellants contend that on the break-up of the USSR in 1991-92 it was
necessary that a new notification under § 2 should have been issued by India
recognising Ukraine as a reciprocal territory. In its absence awards made in
27
Transocean Shipping Agency Pvt. Ltd. v. Black Sea Shipping Co., (2009) SCC OnLine Bom 1214 (India).
28
Foreign awards (Recognition and Enforcement) Act, 1961, § 2(b).
29
Transocean Shipping Agency Pvt. Ltd. v. Black Sea Shipping Co., (2009) SCC OnLine Bom 1214 (India).
PAGE | 9
Ukraine cannot be enforced in India under the Foreign Awards (Recognition and
Enforcement) Act, 1961. This contention has no merit. The notification of 7-2-
1972 covers awards made in the territories of the then existing USSR which
included Ukraine as a part of it. Although various republics which formed a part
of the territories of the USSR may have separated, the territories continue to be
covered by the notification of 7-2-1972. Prior to 1992 an award made in Ukraine
was an award made in a reciprocating territory as notified and this position
continues even after the political separation of various Soviet Socialist Republics.
Ukraine continues to be a signatory to the New York Convention and the
notification of 7-2-1972 continues to operate in the territories then forming part
of the USSR, including the territory of Ukraine. Although the appellant has relied
upon various agreements between India and the Russian Republic where India
has recognised Russian Republic as a successor of the old State of USSR, this
makes no difference to the recognition granted under the notification of 7-2-1972
to the entire territory of USSR as then in existence as a reciprocating territory for
the purposes of § 2 of the Foreign Awards (Recognition and Enforcement) Act,
1961. There is no implied curtailment of the notification of 7-2-1972 as now
applying only to that territory which forms a part of the Russian Republic.
Thus, Estonia is considered as reciprocating territory.
Therefore, the arbitration was conducted in a New York Convention Country.
Thus, it is humbly submitted before this Hon’ble Court that Emergency award passed by the
Estonia-seated arbitration can be considered a “Foreign Award” under Part-II of Arbitration &
Conciliation Act, 1996.
III. IT IS REASONABLE TO ENFORCE FOREIGN-SEATED EMERGENCY AWARD IN INDIA
The SC held in Amazon.com NV Investment Holdings LLC v. Future Retail Limited and Others30
that emergency award in the Indian seated arbitrations is enforceable under Part – II of
Arbitration & Conciliation Act, 1996. As half of the battle is won through this celebrated
30
Amazon.com NV Investment Holdings LLC v. Future Retail Limited and Others, (2022) 1 SCC 209 (India).
PAGE | 10
judgment, this argument shall attempt to make a case for winning the other half of the battle, i.e.
the enforcement of EAs in foreign seated arbitrations, by way of structured analysis and
derivation of inferences from the available authorities and legal literature.
Firstly, the Delhi HC held in Mr. Ashwani Minda & Anr. v. U-Shin Ltd. & Anr31, held that
interim relief under § 9 of the Act32 could not be granted to the applicant on the premise that the
applicant had already availed the option of an EA, wherein the applicant was denied remedy. The
court said that the applicant is taking “two bites at the cherry”.
¶ 55 of the above-mentioned judgment states –
55. Correctly understanding and perceiving that appropriate remedy to seek interim
measures was by invoking the jurisdiction of the Emergency Arbitrator under JCAA
Rules, Applicants on 13.03.2020 filed an application for emergency measures and on
19.03.2020 the Emergency Arbitrator was appointed. On 23.03.2020, the Applicants
invoked Regular Arbitration by submitting a request for Arbitration with the JCA.
Applicants had raised all issues before the said Forum, as are being raised here and even
the relief was identical. After hearing the parties, the Emergency Arbitrator passed a
very detailed and reasoned order on 02.04.2020, declining to grant relief to the
Applicants. Respondents, in my view, are right in their contention that having invoked the
mechanism of the Emergency Arbitrator and invited a detailed and reasoned order, it is
not open for the Applicants to take a second bite at the cherry. There has been no change
of circumstance after the said order as none has been pleaded or even argued. Having
excluded the applicability of Part I of the Act and agreeing to be governed by different
Rules and procedures, binding on the parties and having invoked the same, jurisdiction
of this Court under § 9 of the Act cannot be invoked and the petition is not maintainable.
The noteworthy fact here is that the remedy under § 9 of the Act33 was denied to the applicant on
the premise of him already having availed the remedy of EA in a foreign seated arbitration. Thus,
the clear implication of this judgment being that the court is recognising the EA in a foreign
31
Mr. Ashwani Minda & Anr. v. U-Shin Ltd. & Anr., (2020) SCC OnLine Del 721 (India).
32
33
PAGE | 11
seated arbitration as an effective/enforceable remedy in India, thereby, disallowing a second

remedy in the shape of an interim award by the court under § 9 of the Act.34
Secondly, apart from the recognition of EAs, a high degree of reliance is placed on the
correctness of EAs. In HSBC PI Holdings (Mauritius) Ltd. v. Avitel Post Studioz Ltd & Ors 35,
though the award of the emergency arbitrator in foreign seated arbitration was not directly
enforced by the Bombay HC, it granted relief under § 9 of the Act36 to the applicant by
reproducing the EA verbatim.
It is therefore, submitted before this Hon’ble Court that the enforcement of EAs in foreign seated
arbitrations is highly warranted as that would have also led to the same outcome minus the
current procedural delay.
Thirdly, an alternate way for establishing the enforceability of EAs in foreign seated arbitrations
could be through the route of contempt of court. The SC of India in Alka Chandewar v. Shamsul
Ishrar Khan37 held that parties not complying with the interim orders of the arbitral tribunal are
to be held liable for contempt of court under § 27(5) of the Act38 and that the court is empowered
to deal with such persons as if such persons stand guilty of contempt of court, either under the
Contempt of Courts Act, 197139 or under Order XXXIX, Rule 2A of the Civil Procedure Code,
1908.40
¶ 48 of the above-mentioned judgment states –
48. In the face of such categorical judicial opinion, the Delhi HC attempted to find a
suitable legislative basis for enforcing the orders of the arbitral tribunal under § 17 in
the case of Sri Krishan v. Anand41, (2009) 3 Arb LR 447 (Del) (followed in Indiabulls
Financial Services v. Jubilee Plots, OMP Nos.452-453/2009 Order dated 18.08.2009)42.
34
Mr. Ashwani Minda & Anr. v. U-Shin Ltd. & Anr., (2020) SCC OnLine Del 721 (India).
35
HSBC PI Holdings (Mauritius) Ltd. v. Avitel Post Studioz Ltd & Ors., 2014 SCC OnLine Bom 102 (India).
36
37
Alka Chandewar v. Shamsul Ishrar Khan, (2017) 16 SCC 119 (India).
38
Arbitration & Conciliation Act, 1996, § 27(5).
39
Contempt of Courts Act, 1971.
40
Civil Procedure Code, 1908, Order XXXIX, Rule 2A.
41
Sri Krishan v. Anand, (2009) SCC OnLine Del 2472 (India).
42
Indiabulls Financial Services v. Jubilee Plots, (2009) SCC OnLine Del 2458 (India).
PAGE | 12
The Delhi HC held that any person failing to comply with the order of the arbitral
tribunal under § 17 would be deemed to be “making any other default” or “guilty” of
any contempt to the arbitral tribunal during the conduct of the proceedings” under §
27(5) of Act. The remedy of the aggrieved party would then be to apply to the arbitral
tribunal for making a representation to the Court to mete out appropriate punishment.
Once such a representation is received by the Court from the arbitral tribunal, the Court
would be competent to deal with such party in default as if it is in contempt of an order of
the Court, i.e., either under the provisions of the Contempt of Courts Act or under the
provisions of Order 39 Rule 2A Code of Civil Procedure, 1908.
§ 27(5) of the Arbitration & Conciliation Act, 1996 is read as follows43 –
(5) Persons failing to attend in accordance with such process, or making any other
default, or refusing to give their evidence, or guilty of any contempt to the arbitral
tribunal during the conduct of arbitral proceedings, shall be subject to the like
disadvantages, penalties and punishments by order of the Court on the representation of
the arbitral tribunal as they would incur for the like offences in suits tried before the
Court.
Order XXXIX Rule 2A Code of Civil Procedure, 1908 states44 –
2A. Consequence of disobedience or breach of injunction.—(1) In the case of

disobedience of any injunction granted or other order made under rule 1 or rule 2 or
breach of any of the terms on which the injunction was granted or the order made, the
Court granting the injunction or making the order, or any Court to which the suit or
proceeding is transferred, may order the property of the person guilty of such
disobedience or breach to be attached, and may also order such person to be detained in
the civil prison for a term not exceeding three months, unless in the meantime the Court
directs his release.
43
Arbitration & Conciliation Act, 1996, § 27(5).
44
Civil Procedure Code, 1908, Order XXXIX, Rule 2A.
PAGE | 13
(2) No attachment made under this rule shall remain in force for more than one year, at
the end of which time, if the disobedience or breach continues, the property attached may
be sold and out of the proceeds, the Court may award such compensation as it thinks fit
to the injured party and shall pay the balance, if any, to the party entitled thereto.
The said rule has also been upheld by the Delhi HC in Sri Krishan v. Anand45 and Indiabulls
Financial Services v. Jubilee Plots.46
The argument to be made herein is that as per the 2015 amendment to the Act 47, § 27 of the Act48
is also applicable to Part II of the Act and thus, even to foreign seated arbitrations (vide the
amendment to proviso to § 2(2)).
According to the 2015 amendment to the Arbitration & Conciliation Act, 1996 –
Amendment to proviso to § 2(2), the following proviso shall be inserted49 –
Provided that subject to an agreement to the contrary, the provisions of sections

9, 27 and Cl. (a) of sub-section (1) and sub-section (3) of §37 shall also apply to
international commercial arbitration, even if the place of arbitration is outside
India, and an arbitral award made or to be made in such place is enforceable and
recognised under the provisions of Part II of this Act.
Therefore, parties not complying with the EAs in foreign seated arbitrations are to be held guilty
for contempt of court under § 27 of the Act. Hence, even EAs in foreign seated arbitrations are
enforceable in India in consonance with the abovementioned ratio.
Fourthly, The SC shed some light on the matter of nullity of awards in the case of Amazon.com
NV Investment Holdings LLC v. Future Retail Limited and Others.50
¶ 36 of the judgment reads as –
45
Sri Krishan v. Anand, (2009) SCC OnLine Del 2472 (India).
46
Indiabulls Financial Services v. Jubilee Plots, (2009) SCC OnLine Del 2458 (India).
47
Arbitration & Conciliation Act, 1996 (2015 Amendment).
48
Arbitration & Conciliation Act, 1996 (2015 Amendment), § 27.
49
Arbitration & Conciliation Act, 1996 (2015 Amendment), § 2(2).
50
PAGE | 14
A party cannot be heard to say, after it participates in an Emergency Award proceeding,

having agreed to institutional rules made in that regard, that thereafter it will not be
bound by an Emergency Arbitrator’s ruling. As we have seen hereinabove, having agreed
to ¶ 12 of Schedule 1 to the SIAC Rules51, it cannot lie in the mouth of a party to ignore
an Emergency Arbitrator’s award by stating that it is a nullity when such party
expressly agrees to the binding nature of such award from the date it is made and further
undertakes to carry out the said interim order immediately and without delay.
Therefore, the party resisting the enforcement of the EA cannot claim nullity, when they had
previously agreed to binding nature of these awards.
Lastly, according to the Amazon.com NV Investment Holdings LLC v. Future Retail Limited and
Others, SC of Indian lays down the following line of reasoning 52 -
¶ 26 of the judgment states –
“No doubt, as has been submitted, the 246th Law Commission Report53 did provide for
the insertion of an Emergency Arbitrator’s orders into § 2(1)(d)54 of the Arbitration
Act as follows:
“Amendment of § 2
In § 2 of the Arbitration and Conciliation Act, 1996 –
In sub-section (1), Cl. (d), after the words “panel of arbitrators” add “and, in the
case of an arbitration conducted under the rules of an institution providing for
appointment of an emergency arbitrator, includes such emergency arbitrator;”
[NOTE: This amendment is to ensure that institutional rules such as the SIAC
Arbitration Rules which provide for an emergency arbitrator are given statutory
recognition in India.]”
51
SIAC Rules, 2016, Schedule 1 ¶ 12 (Sing.).
52
53
Law Commission of India, 246th Law Commission Report, Report No. 246 (5 August 2014).
54
Arbitration & Conciliation Act, 1996, § 2(1)(d).
PAGE | 15
¶ 27 of the judgment states –
As it has been held in Avitel Post Studioz Ltd. & Ors. v. HSBC PI Holdings (Mauritius)
Ltd.55, the mere fact that a recommendation of a Law Commission Report is not followed
by Parliament, would not necessarily lead to the conclusion that what has been suggested
by the Law Commission cannot form part of the statute as properly interpreted.
The SC further held in the Avitel Post Studioz Ltd. & Ors. v. HSBC PI Holdings (Mauritius) Ltd.
that the development of the law by the SC cannot be thwarted merely because a certain provision
recommended in a Law Commission Report56 is not enacted by the Parliament. Parliament might
have felt, that it was unable to make up its mind and instead, leave it to the courts to continue,
case by case, deciding the matter at hand. 57
This similar line of reasoning can be very well applied to the case for enforcement of a foreign
seated emergency award in India.
Thus, it is humbly submitted before this Hon’ble Court that it is reasonable to enforce foreign-
seated emergency award in India.
55
Avitel Post Studioz Ltd. & Ors. v. HSBC PI Holdings (Mauritius) Ltd., (2021) 4 SCC 713 (India).
56
Law Commission of India, 246th Law Commission Report, Report No. 246 (5 August 2014).
57
Avitel Post Studioz Ltd. & Ors. v. HSBC PI Holdings (Mauritius) Ltd., (2021) 4 SCC 713 (India).
PAGE | 16
PRAYER
Wherefore, in the light of the facts stated, issues raised, arguments advanced and authorities
cited, it is humbly prayed before this Hon’ble Court that it may be pleased to hold, adjudge and
declare that:
1. Foreign-seated emergency award qualifies for enforcement under Part-II of Arbitration &
Conciliation Act, 1996.
2. Emergency award passed by the Estonia-seated arbitration can be considered a “Foreign
Award” under Part-II of Arbitration & Conciliation Act, 1996.
3. It is reasonable to enforce foreign-seated emergency award in India.
4. Emergency award passed by the Estonia-seated arbitration is enforceable under § 49 of
the Arbitration & Conciliation Act, 1996.
AND/OR
Pass any other Order, Direction or Relief that it may deem fit in the best interests of Justice,
Fairness, Equity, and Good Conscience.
For this Act of Kindness, the Petitioner as in Duty Bound, shall forever Pray.
DATE: Eleventh Day of September 2022 Sd/- n
PLACE: Mumbai, India ( COUNSEL FOR THE PETITIONER )
PAGE | XI

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ANNUAL INTRA-COLLEGE RAGHAVENDRA PHADNIS MOOT COURT

BEFORE THE HON’BLE HIGH COURT OF JUDICATURE AT BOMBAY

ORDINARY ORIGINAL CIVIL JURISDICTION

DOBBY-SHIFU PVT. LTD. … PETITIONER

BABY COBRA PVT. LTD. & ORS. … RESPONDENTS

ANNUAL INTRA-COLLEGE RAGHAVENDRA PHADNIS MOOT COURT

MEMORIAL ON BEHALF OF THE PETITIONER

COUNSEL APPEARING ON BEHALF OF THE PETITIONER

LIST OF ABBREVIATIONS ................................................................................................. II

INDEX OF AUTHORITIES .................................................................................................. IV

STATEMENT OF JURISDICTION ..................................................................................... VI

STATEMENT OF FACTS ................................................................................................... VII

ISSUES RAISED .................................................................................................................... IX

SUMMARY OF ARGUMENTS .............................................................................................. X

ARGUMENTS ADVANCED ...................................................................................................1

I. FOREIGN-SEATED EMERGENCY AWARD QUALIFIES FOR ENFORCEMENT UNDER PART-II

II. EMERGENCY AWARD PASSED BY THE ESTONIA-SEATED ARBITRATION CAN BE

CONSIDERED A “FOREIGN AWARD” UNDER PART-II OF ARBITRATION & CONCILIATION ACT,

A. The dispute in the present matter is “Commercial” in nature ......................................4

B. The Award is pursuable to a written arbitration agreement .........................................5

D. The arbitration was conducted in a New York Convention country .............................6

III. IT IS REASONABLE TO ENFORCE FOREIGN-SEATED EMERGENCY AWARD IN INDIA ... 10

SIAC Rules, 2016.............................................................................................................................. 2, 15

Moot Proposition ................................................................................................................................. 5, 6

THE NEW YORK ARBITRATION CONVENTION .............................................................................. 8

§ 10(1) of the above Act reads as under:

10. Jurisdiction in respect of arbitration matters.—

Where the subject-matter of an arbitration is a commercial dispute of a Specified Value

DOBBY–SHIFU PVT. LTD. AND BABY COBRA GROUP

THE DISPUTE, EMERGENCY PROCEEDINGS AND COURT PROCEEDINGS

WHETHER A FOREIGN-SEATED EMERGENCY AWARD QUALIFIES FOR ENFORCEMENT UNDER PART-II

WHETHER EMERGENCY AWARD PASSED BY THE ESTONIA-SEATED ARBITRATION CAN BE

WHETHER IT IS REASONABLE TO ENFORCE FOREIGN-SEATED EMERGENCY AWARD IN INDIA OR

I. FOREIGN-SEATED EMERGENCY AWARD QUALIFIES FOR ENFORCEMENT UNDER PART-II

It is most humbly submitted that interpretation of statutes shows that foreign-seated

II. EMERGENCY AWARD PASSED BY THE ESTONIA-SEATED ARBITRATION CAN BE

CONSIDERED A “FOREIGN AWARD” UNDER PART-II OF ARBITRATION & CONCILIATION

III. IT IS REASONABLE TO ENFORCE FOREIGN-SEATED EMERGENCY AWARD IN INDIA

I. FOREIGN-SEATED EMERGENCY AWARD QUALIFIES FOR ENFORCEMENT UNDER PART-II OF

§ 44 of the Arbitration & Conciliation Act, 1996 states4 –

Article 1(2) of the New York Convention states6 –

Schedule 1(3) of the SIAC Rules, 2016 states –

16.3 Final and Binding

§ 46 of the Arbitration & Conciliation Act, 1996 states11 –

II. EMERGENCY AWARD PASSED BY THE ESTONIA-SEATED ARBITRATION CAN BE CONSIDERED

§ 44 of the Arbitration & Conciliation Act, 1996 states12 –

Moving forward, the counsel on behalf of petitioner contends that –

A. The dispute in the present matter is “Commercial” in nature

The term “commercial” should be given a wide interpretation so as to cover matters

distribution agreement; commercial representation or agency; factoring; leasing;

B. The Award is pursuable to a written arbitration agreement

¶ 2 of Article 2 of the New York Convention is read as follows16 –

2. The term “agreement in writing” shall include an arbitral Cl. in a contract or an

In the present matter, going by the facts of the case17 –

D. The arbitration was conducted in a New York Convention country

a. The country must be a signatory to the New York Convention. 20

The arbitration agreement (Cl. 16 of the SSA) mentions in Cl. 16.1.221 –

“The venue of arbitration shall be Estonia.”

1. BGS SGS Soma JV v. NHPC Ltd.22

i. If a named place is identified in the arbitration agreement as the “venue” of

2. Priya Malay Sheth v. VLCC Health Care Ltd.23

a. Estonia is a signatory to the New York Convention

Date provided by official website of New York Convention, 1958 is a follows 24 –