047P

IN THE

HON’BLE APEX COURT OF RASHTRA

AT CASTERLY ROCK

IN THE MATTERS OF

MS. RANGANA KANAUT

(PETITIONER)

(RESPRESENTED BY HERSELF)

v.

STATE OF RASHTRA

(RESPONDENT)

(REPRESENTED BY EXECUTIVE, NATIONAL HUMAN RIGHTS COUNCIL)

Writ Petition No. XXX/2020

[BROUGHT UNDER ARTICLE 32 OF THE CONSTITUTION OF RASHTRA, 1950 READ WITH ORDER

XXXVIII, RULE 1 OF THE SUPREME COURT RULES, 2013]

 AND

DIVANI & CO

(PETITIONER)

(REPRESENTED BY MR. AMISH, CEO, DIVANI & CO.)

v.

RAKU & CO

(RESPONDENT)

(REPRESENTED BY MR. RAMESH, CEO, RAKU & CO.)

Special Leave Petition (Civil) No. YYY/2020

[BROUGHT UNDER ARTICLE 136 OF THE CONSTITUTION OF RASHTRA, 1950 READ WITH ORDER

XXI, RULE 1 OF THE SUPREME COURT RULES, 2013]

THE MATTERS ARE CLUBBED TOGETHER UNDER ARTICLE 142 OF THE CONSTITUTION OF

RASHTRA, 1950

MEMORIAL ON BEHALF OF THE PETITIONER

 TABLE OF CONTENTS

TABLE OF CONTENTS................................................................................................................3

INDEX OF AUTHORITIES...........................................................................................................5

STATEMENT OF JURISDICTION...............................................................................................9

STATEMENT OF FACTS............................................................................................................10

ISSUES FOR CONSIDERATION................................................................................................12

SUMMARY OF ARGUMENTS...................................................................................................13

Arguments Advanced.......................................................................................................................i

1. The ingredients of crime against humanity, as understood by Art. 7 of the Rome Statute,

were being met to convict Mr. Shri Chaa and Mr. Patol Babu.....................................................i

1.1. Murder of protestors by use of chemical gas................................................................ii

1.2. Rape and torture of detained protestors.......................................................................iii

1.3. Persecution of Rashtrian citizens who were against the amendment to the citizenship

law

1.4. Enforced disappearances of the protestors...................................................................iv

1.5. Other inhumane acts of a similar character, causing intentional harm and suffering...v

2. Such a case would not be barred by Art. 17 of the Rome Statute........................................v

3. The Seat of arbitration is Braavos......................................................................................vii

3
 3.1. Party Autonomy.........................................................................................................viii

3.2. Exclusive jurisdiction.................................................................................................viii

4. Bifurcation of Courts is legally permissible........................................................................ix

5. Disputes arising under or related to issues arising under lease agreements are arbitrable.. xi

5.1. Landlord-tenant disputes are right in rem or right in personam..................................xii

5.2. Jurisdiction conferred upon certain courts.................................................................xiii

PRAYER........................................................................................................................................xv

4
 INDEX OF AUTHORITIES

Cases

A v. B, (2007) 1 All ER (Comm) 591............................................................................................ix

Alka Chandewar v. Shamshul Ishrar Khan, 2017 SCC OnLine SC 758.........................................x

Article 17(2)(a), Rome Statute, International Criminal Court, 1998..............................................vi

Bharat Aluminum Company v. Kaiser Aluminium Technical Services Inc., (2012) 9 SCC 552. .xi

Bharat Aluminum Company v. Kaiser Aluminum Technical Services Inc., (2012) 9 SCC 552.. vii

Booz Allen and Hamilton Inc. v. SBI Home Finance Ltd., (2011) 5 SCC 532............................xii

Emmar MGF Land Ltd. v. Aftab Singh, 2018 SCC OnLine SC 2771.........................................xiii

Enercon (India) Ltd. v. Enercon Gmbh, (2014) 5 SCC 1..............................................................vii

Indus Mobile Distribution Pvt. Ltd. v. Datawind Innovations Pvt. Ltd., (2017) 7 SCC 678.........xi

Indus Mobile Distribution Pvt. Ltd. v. Datawind Innovations Pvt. Ltd., (2017) 7 SCC 678;

Swastik Gases Pvt. Ltd. v. Indian Oil Corp. Ltd., (2013) 9 SCC 32........................................viii

Itera International Energy LLC and Itera Group NV v. Georgia, (ICSID ARB/08/7), Decision on

admissibility of ancillary claims, 4 December 2009, para. 34.....................................................x

LG&E v. Argentina (ICSID ARB/02/1), CME Czech Republic B. V. v. Czech Republic

(UNCITRAL), Partial Award, 13 September 2001, para. 46, Mr William Nagel (United

Kingdom) v. Czech Republic, Ministry of Transportation and Telecommunications, SSC No.

049/2002, Award on Jurisdiction issued on 30 April 2010, Austrian Airlines AG v. Th e

5
 Slovak Republic, Final Award, 9 October 2009 (the tribunal held that it lacked jurisdiction

after bifurcating jurisdiction on basis of merit)...........................................................................x

Natraj Studios (P) Ltd. v. Navrang Studios, 1981 (1) SCC 523...................................................xiii

Prosecutor v Bemba, ICC PT. Ch. II, ICC-01/05-01/08-424, Decision Pursuant to Article 61(7)

(a) and (b) of the Rome Statute on the Charges of the Prosecutor Against Jean-Pierre Bemba

Gombo, 15 June 2009, para. 75...................................................................................................ii

Prosecutor v. Francis Kirimi Muthaura, Uhuru Muigai Kenyatta and Mohammed Hussein Ali

(Case No. ICC-01/09- 02/11-274)..............................................................................................vi

Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui (Case No. ICC-01/04-01/07-1497

OA 8.............................................................................................................................................v

Prosecutor v. Thomas Lubanga (Case No. ICC-01/04-01/06).......................................................vi

Reliance Industries Ltd. v. Union of India, (2014) 7 SCC 603....................................................viii

Situation in the Republic of Kenya in the Case of the Prosecutor v. William Samoei Ruto, Henry

Kiprono Kosgey and Joshua Arap Sang - Decision on the Application by the Government of

Kenya Challenging the Admissibility of the Case Pursuant to Article 19(2)(b) of the

Statute, ICC-01/09-01/11, International Criminal Court (ICC), 30 May 2011............................i

Suez v. Argentina.............................................................................................................................x

SVG Molasses Co. BV v. Mysore Mercantile Co. Ltd., 2007 (9) SCALE 89.............................viii

Vidya Drolia and Ors. v. Durga Trading Corporation, 2019 SCC OnLine SC 358.....................xiii

Statutes

6
Article 17(1)(d), Rome Statute, International Criminal Court,.......................................................v

Article 17(2)(a), Rome Statute, International Criminal Court, 1998..............................................vi

Article 30, Rome Statute, International Criminal Court, 1998........................................................ii

Article 44 of ICSID.........................................................................................................................x

Article 7 (1) (g)-1, Rome Statute, International Criminal Court, 1998..........................................iii

Article 7(1)(f), Rome Statute, International Criminal Court, 1998................................................iii

Article 7(1)(h), Rome Statute, International Criminal Court, 1998...............................................iii

Article 7(2)(e), Rome Statute, International Criminal Court, 1998...............................................iii

Article 7(2)(i), Rome Statute, International Criminal Court, 1998................................................iv

Section 108, Transfer of Property Act, 1882.................................................................................xii

Section 17, Arbitration and Conciliation Act, 1996.....................................................................xiv

Other Authorities

Akhil Mahesh and Girish Deepak, Party Autonomy in Alternative Dispute Resolution: Is

Derogation from Indian Law Permissible, RMLNLU Law Review Blog, September 30, 2015.

Available at: https://rmlnlulawreview.com/2015/09/30/party-autonomy-in-alternative-dispute-

resolution-is-derogation-from-indian-law-permissible/...........................................................viii

Braes of Doune, (2008) EWHC (TCC) 426 [4]–[8] (Eng.); See, e.g., Bharat Aluminum Company

v. Kaiser Aluminium Technical Services Inc., [2012] 9 SCC 552, 106, 110 (India) (affirming

Braes of Doune and Shashoua UK); A v. B, [2007] 1 Lloyd’s Rep. 237 [111] (Eng.)..............ix

International Criminal Court, Elements of Crimes, art. 7(1)(a) (2011)...........................................ii

7
International Criminal Court, Elements of Crimes, Article 7 (1) (f) (2011)..................................iii

International Criminal Court, Elements of Crimes, Article 7(2)(i) (2011)....................................iii

Location, Oxford English Dictionary, Pg. - 326, 7th Ed., 2011....................................................vii

Report No. 246, Amendments to the Arbitration and Conciliation Act, 1996, Law Commission of

India, 2014. Available at http://lawcommissionofindia.nic.in/reports/Report246.pdf..............vii

Rohan Marathe and Tapan Radkar, Arbitrability of Tenancy Matters - Ignoring out the wrinkles,

Arbitration and Corporate Law Review, July 14, 2020.

https://www.arbitrationcorporatelawreview.com/post/arbitrability-of-tenancy-matters-ironing-

out-the-wrinkles........................................................................................................................xiii

RS Bachawat, Law of Arbitration and Conciliation, Preliminary, Part A, Vol. 1, Ed. 2019..........x

See CHARLES CHATTERJEE, The Reality of Party Autonomy Rule in International Arbitration,

20(6) J. INT’L ARB. 539, 557 (2003)........................................................................................viii

8
 STATEMENT OF JURISDICTION

Rangana Kanaut, Petitioner in Writ Petition No. XXX of 2020 most humbly and respectfully

submits to the jurisdiction of the Hon’ble Apex Court of Rashtra at Casterly Rock under Article

32 of the Constitution of Inida, 1950 read with Order XXXVIII Rule 1 of the Supreme Court

Rules, 2013.

Divani and Co., Petitioner in Special Leave Petition (Civil) No. YYY of 2020 most humbly and

respectfully submits to the jurisdiction of the Hon’ble Apex Court of Rashtra at Casterly Rock

under Article 136 of the Constitution of Rashtra, 1950 read with Order XXI Rule 1 of the

Supreme Court Rules, 2013.

All the aforesaid matters have been clubbed and brought before this Hon’ble Court under Article

142 of the Constitution of Inida, 1950.

Memorial on behalf of the Petitioners

9
 STATEMENT OF FACTS

In February, 2020, a Citizenship Amendment Act was introduced in Rashtra under which led to

loss of citizenship to new Godians and widespread protests and Special Forces were deployed.

Protestors gathered in Camus Nagar, Winterfell and Highgarden and there were unverified

reports of them amassing weapons.

On 8th March, violence, causing heavy casualties on both sides, happened. Next day, after a

warning, the sites were bombed with chemical gas.

The Rashtrian government, following the UNSC resolution of 10th March, then quietly arrested

several protestors on grounds of terrorism and sedition. Violent clashes and social media outrage

continued. In April, international media reported that arrested protestors, were being raped and

tortured. The Rashtrian government denied all accusations.

A Writ Petition was filed before the Rashtrian Apex Court, to refer the matter to the International

Criminal Court (“ICC”) as per the Rome Statute, to which Rashtra is Party. The matter was listed

before a five-judge bench of the Apex Court.

Previously, in January, 2020, Divani & Co, for establishing its business in Volantis, signed a

Lease Agreement with Raku & Co., for a period of ten years with a security deposit of Rs. 50

lakhs.

10
Soon GOVID-19 spread as a pandemic and reached Rashtra, leading to a lockdown in the state

and the country that led to great loss to Divani & Co., leading to a default in payment to Raku &

Co.

Divani & Co. issued a notice to Raku & Co., invoking force majeure to suspend its obligations

but was later forced issue a termination notice and sought a refund of security. Raku & Co.

alleged breach and refused any refund.

Divani & Co. invoked the arbitration clause, sent a notice nominating, Mr. Samuel Joseph, as the

sole arbitrator. Raku & Co. denied claims and instead nominated Mr. Neil Verma.

For interim relief, Divani & Co. approached Civil Court of Braavos. Raku & Co. contended

court in Casterly Rock only had jurisdiction, disagreeing on location of arbitration.

The Civil Court held the “seat” of arbitration as Casterly Rock, and that the dispute was

inarbitrable. Divani & Co. approached the High Court of Kings Landing on appeal, which upheld

Civil Court’s order. Subsequently, Divani & Co. preferred a Special Leave Petition before the

Apex Court, which referred the dispute before the same five-judge bench.

11
 ISSUES FOR CONSIDERATION

1. Whether the ingredients of crime against humanity, as understood by Art. 7 of the Rome

Statute, were being met to convict Mr. ShriChaa and Mr. Patol Babu?

2. Whether such a case would be barred by Art. 17 of the Rome Statute?

3. What would amount to a “seat” of arbitration in a purely domestic arbitration dispute

when there is no explicit designation of a place as “seat” in an arbitration

clause/agreement, and when there exist myriad indicia incapable of designating one

particular location as “seat”?

4. Is it legally permissible to bifurcate the jurisdiction of courts to entertain requests for

interim relief on the one hand, and to entertain other arbitration-related court proceedings

on the other?

5. Are disputes arising under or related to issues arising under lease agreements arbitrable

12
 SUMMARY OF ARGUMENTS

1. The ingredients of crime against humanity, as understood by Art. 7 of the Rome Statute,

were being met to convict Mr. ShriChaa and Mr. Patol Babu.

Mr. ShriChaa and Mr. Patol Babu will be convicted under the Article 7 of the Rome statute as

their conduct fulfilled the ingredients required for an ordinary crime to be considered as Crimes

against humanity , and the alleged crimes will fall under the acts enumerated under the said

statute.

2. Case would not be barred by Art. 17 of the Rome Statute.

The present matter passes the admissibility test as it is clear that there is unwillingness on part of

government and the acts here were of grievous nature, which should be the concern of

International Community.

3. The seat of Arbitration shall be Braavos.

The arbitration clause in the lease agreement explicitly states that Braavos has been conferred

with exclusive jurisdiction to hear the matters of injunctory and equitable relief. Where the

exclusive jurisdiction rests, that is only the seat of arbitration.

13
4. Bifurcation of jurisdiction of courts to entertain requests for interim relief on the one

hand, and to entertain other arbitration-related court proceedings on the other is legally

permissible.

Bifurcation is legally permissible. If the issue will be divided on the basis of jurisdiction of

merits, it will save an ample amount of efforts put by parties as well as the cost. This is the sole

purpose of opting arbitration as a dispute mechanism.

5. Disputes arising under or related to issues arising under lease agreements are arbitrable.

Lease disputes are right in personam and in personam disputes can be arbitrated. Parties should

have the right to opt into arbitration despite being protected by public welfare legislations

because tribunals and courts have been given the same powers by Section 17(1)(ii)(e) of

Arbitration Act. Therefore, disputes under lease agreement are arbitrable.

14
 ARGUMENTS ADVANCED

1. The ingredients of crime against humanity, as understood by Art. 7 of the Rome

Statute, were being met to convict Mr. Shri Chaa and Mr. Patol Babu.

Crimes against humanity were criminalized because they constitute a threat to international

peace and security and because they shock the conscience of mankind

For an Act to be considered as a crime against humanity under Art.7, there are five elements that

needs to be fulfilled and are as follows,

i. an attack directed against any civilian population,

ii. State or organizational policy,

iii. the widespread or systematic nature of the attack

iv. a nexus between the individual act and the attack, and

v. knowledge of the attack1

With respect to the ingredients, an attack means a course of conduct 2. In the present case the acts

of bombardment of Civilian population with chemical gas, further persecution of Student leaders,

mutilation of detainees, rape and torture of prisoners, fall under the element of attack.

1
Situation in the Republic of Kenya in the Case of the Prosecutor v. William Samoei Ruto, Henry Kiprono Kosgey
and Joshua Arap Sang - Decision on the Application by the Government of Kenya Challenging the Admissibility of
the Case Pursuant to Article 19(2)(b) of the Statute, ICC-01/09-01/11, International Criminal Court (ICC), 30 May
2011.
2
Prosecutor v Bemba, ICC PT. Ch. II, ICC-01/05-01/08-424, Decision Pursuant to Article 61(7)(a) and (b) of the
Rome Statute on the Charges of the Prosecutor Against Jean-Pierre Bemba Gombo, 15 June 2009, para. 75.
i
These operations were carried out as part of implementing policy and were encouraged by state,

these were performed frequently to douse out the protests and resulted in large number of loss of

human life, mental and physical suffering. Thus, it can be said that the attack was widespread,

systematic, and a part of state policy. Home ministry issued the statement that police and special

forces are on standby, Mr. Shri Chaa himself said the protestors shall be dealt firmly, on that

very day over 1.5 lakh people were left dead due to chemical onslaught, thus it can be concluded

that both the accused Mr. Srichaa and Mr. Patol Babu had the knowledge and the Requirement of

mental element is achieved as well since they had the intention to commit these deeds. The

following acts enumerated under Article 7 were Committed;

1.1. Murder of protestors by use of chemical gas

The elements of murder 3 are realized as the perpetrators killed lakhs of people by use of

Chemical gas, it was a widespread attack. As per the pre trial Chamber, Article 30 of the

Rome statute applies that is the material elements must be performed with intent and

knowledge4 , In this Scenario both Mr. Patol babu and Mr. Shrichaa both were aware

that the use of chemical gas will result in killing civilians and they had the intent to do so

as can be conclusively drawn from the statements made such as protestors shall be dealt

firmly .

3
International Criminal Court, Elements of Crimes, art. 7(1)(a) (2011).
4
Article 30, Rome Statute, International Criminal Court, 1998.
ii
 1.2. Rape and torture of detained protestors

Article 7(1)(f)5 recognizes torture as a crime against humanity. According to Article 7(2)

(e)6 and Elements of Crimes7, torture means ‘the intentional infliction of severe pain or

suffering, whether physical or mental, upon a person in the custody or under the control

of the accused’. As per the reports and social media, detainees were subjected to torture

and their bodies were mutilated in the custody and many had succumbed to the injuries

inflicted.

Elements of crime states Article 7 (1) (g)-1 8 that is crimes against humanity of rape

occur when ‘the perpetrator invades the body of a person by conduct resulting in

penetration’, the ‘invasion was committed by force or by threat of coercion such as fear

of detention and violence’. It is well established from the facts that detained individuals

were raped and were subjected to coercion due to violence, fear and detention.

Thus, it is conclusively proven that the practice of rape and torture were being followed,

and another crime against humanity was executed due to the acts of Accused persons.

1.3. Persecution of Rashtrian citizens who were against the amendment to the

citizenship law

Persecution9 means the ‘intentional and severe deprivation of fundamental rights

contrary to international law by reason of the identity of the group or collectivity’. 10

5
Article 7(1)(f), Rome Statute, International Criminal Court, 1998.
6
Article 7(2)(e), Rome Statute, International Criminal Court, 1998.
7
International Criminal Court, Elements of Crimes, Article 7 (1) (f) (2011).
8
Article 7 (1) (g)-1, Rome Statute, International Criminal Court, 1998.
9
Article 7(1)(h), Rome Statute, International Criminal Court, 1998.
10
International Criminal Court, Elements of Crimes, Article 7(2)(i) (2011).
iii
 As specified by the Resolution 2560 and 2561 passed by UNSC, the Rashtrian

Government’s inhumane treatment of political prisoners is a blatant violation of accepted

norms of International law. It also acknowledged the widespread violation of

internationally recognized fundamental rights occurring in Rashtra in connection with

the citizenship law protests.

1.4. Enforced disappearances of the protestors

In accord with Article 7(2)(i) , “Enforced disappearance of persons” means ‘the arrest,

detention or abduction of persons by, or with the authorization, support or acquiescence

of, a State or a political organization, followed by a refusal to acknowledge that

deprivation of freedom or to give information on the fate or whereabouts of those

persons, with the intention of removing them from the protection of the law for a

prolonged period of time’11

Many leaders and civil individuals were arrested in order to diffuse the protests , when

reports made headlines about the alleged death of these protesters , certain petitions were

filed , Rashtrian government neither acknowledge the allegations nor it responded to any

writ petition , thus refused to disclose any information or whereabouts of these persons ,

A Habeus corpus was also dismissed on technical grounds , making it crystal clear that

Rashtrian government with force has removed the protestors from protection of the law .

11
Article 7(2)(i), Rome Statute, International Criminal Court, 1998.
iv
 1.5. Other inhumane acts of a similar character, causing intentional harm and

suffering

The perpetrator inflicted great suffering, or serious injury to body or to mental or

physical health, by means of an inhumane act. Such act was of a character similar to any

other act referred to in Article 7 12, many such acts were perpetrated, with the awareness,

knowledge and intent.

The killing of people in protest sites, detaining individuals on basis of their view of

citizenship act are some of the inhumane acts.

2. Such a case would not be barred by Art. 17 of the Rome Statute.

Under this provision, the admissibility test is composed of two main parts: the first requires

the consideration of the complementarity criteria 13in order to determine whether the case at

hand has been or is being genuinely investigated or prosecuted by a state’s national judicial

system. The second part of the admissibility test relates to the analysis of the “gravity

threshold”14, in order to determine whether the case is of sufficient gravity to justify further

action by the Court.

A preliminary issue to be considered is whether there exists any investigation or prosecution

at the domestic level. The Appeals Chamber has defined this situation, that is, where a State

having jurisdiction is not investigating or prosecuting, or has not done so, as a case of

“inaction”15, the Rashtrian government refused to respond to the public interest litigations

12
Article 7, Rome Statute, International Criminal Court, 1998.
13
Article 7(1), Rome Statute, International Criminal Court, 1998.
14
Article 17(1)(d), Rome Statute, International Criminal Court, 1998.
15
Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui (Case No. ICC-01/04-01/07-1497 OA 8.
v
 filed about the allegedly dead protestors , thus making it clear that there is inaction on part of

the state .

Consequently, for an admissibility challenge to succeed before the Court, the challenging

party must establish the existence of past or ongoing investigations or prosecutions against

the person concerned, The Appeals Chamber defined the phrase “the case is being

investigated” as “the taking of steps directed at ascertaining whether this individual is

responsible for that conduct16”, in the present matter no such measures are taken , though the

Government was willing to carry out an internal administrative investigation but on the

condition that no member of the government would be investigated, thus this it is concluded

that no action taken in order to ascertain whether Mr. Patol Babu and Mr. Shrichaa were

responsible for the crimes committed.

The Subsequent issue is whether the matter is of serious nature and have the threshold limit

of gravity, here the conduct and consequences are of grave nature, the death of over 1.5 lakh

peaceful protestors , and the following inhumane acts of rape , torture , mutilation are such

that they have shaken the conscience of humanity and thus should be taken by International

Court of law to maximize the deterrent effect 17 and to ensure no such arbitrary and gruesome

attacks will be perpetrated in future .

The unwillingness of part of state is also determined, as national decision was made for the

purpose of shielding the person concerned from criminal responsibility18, it was explicitly

16
Prosecutor v. Francis Kirimi Muthaura, Uhuru Muigai Kenyatta and Mohammed Hussein Ali (Case No. ICC-
01/09- 02/11-274).
17
Prosecutor v. Thomas Lubanga (Case No. ICC-01/04-01/06).
18
Article 17(2)(a), Rome Statute, International Criminal Court, 1998.
vi
 mentioned no member of the government would be investigated, thus shielding the most

powerful offices of Mr. ShriChaa and Mr. Patol Babu.

3. The Seat of arbitration is Braavos.

Article 20(3) of Arbitration Act states that “[n]otwithstanding sub-section (1) or sub-section (2),

the arbitral tribunal may, unless otherwise agreed by the parties, meet at any place it considers

appropriate for consultation among its members, for hearing witnesses, experts or the parties, or

for inspection of documents, goods or other property.”

The Supreme Court in the case of Bharat Aluminum Company v. Kaiser Aluminium Technical

Services Inc., has held that, “the word ‘place’ used in section 20(3) would connote ‘venue’ of

arbitration.”19 The Law Commission of India in its 246th Report has also suggested to replace the

word “place” in Section 20(1) with words “seat” and “venue”, replacing the word “place” with

“seat” in Section 20(2) and with “venue” in Section 20(3).20

In the present case, the word ‘location’ has been used in the arbitration clause of the lease

agreement between the parties. The arbitration clause states that “[t]he location shall be Casterly

Rock” (emphasis added).21 The word ‘location’ as described by Oxford Dictionary means that “a

place where something is located”.22 The word ‘venue’ has been defined as “a geographical

location of the arbitration proceedings chosen on the basis of convenience.” 23 Since, ‘location’

and ‘venue’ both, mean the same, it proves that Casterly Rock is the “venue” of arbitration where

the proceedings will take place.

19
Bharat Aluminum Company v. Kaiser Aluminum Technical Services Inc., (2012) 9 SCC 552.
20
Report No. 246, Amendments to the Arbitration and Conciliation Act, 1996, Law Commission of India, 2014.
Available at http://lawcommissionofindia.nic.in/reports/Report246.pdf.
21
Proposition, Summer Intra-University Moot Court Competition, 2020.
22
Location, Oxford English Dictionary, Pg. - 326, 7th Ed., 2011.
23
Enercon (India) Ltd. v. Enercon Gmbh, (2014) 5 SCC 1.
vii
Braavos is the “seat” of arbitration can be proved through two arguments:

3.1. Party Autonomy

Party Autonomy permits parties to select the law governing that very contract and/or the

jurisdiction that the dispute should be referred to. 24 The principle of party autonomy has been

enshrined in Section 20 of Arbitration Act. It is of high importance in arbitration. 25 “The

Supreme Court itself has acknowledged that the Indian Arbitration Act, 1996 envisages party

autonomy.”26 The Supreme Court in Reliance Industries Ltd. v. Union of India, upheld the intent

of the parties to govern the arbitral proceedings by English Law coupled with the choice of a

foreign seat and thus the preclusion of Part I of the Arbitration Act.27

In the present case, both the parties had decided that the Braavos Court shall have the exclusive

jurisdiction to entertain the relief claimed by the parties. Hence, the principle of party autonomy

shall be upheld by the Courts and Braavos shall be declared as the seat of arbitration.

3.2. Exclusive jurisdiction

Intent of the parties can be construed from the phrase “exclusive jurisdiction”. “Where the

contract specifies the jurisdiction of the court at a particular place, only such court will have the

jurisdiction to deal with the matter and parties intended to exclude all other courts.”28Further,

determination of seat is also the same as saying that a specific country’s courts will have
24
Akhil Mahesh and Girish Deepak, Party Autonomy in Alternative Dispute Resolution: Is Derogation from Indian
Law Permissible, RMLNLU Law Review Blog, September 30, 2015. Available at:
https://rmlnlulawreview.com/2015/09/30/party-autonomy-in-alternative-dispute-resolution-is-derogation-from-
indian-law-permissible/.
25
See CHARLES CHATTERJEE, The Reality of Party Autonomy Rule in International Arbitration, 20(6) J. INT’L ARB.
539, 557 (2003).
26
SVG Molasses Co. BV v. Mysore Mercantile Co. Ltd., 2007 (9) SCALE 89.
27
Reliance Industries Ltd. v. Union of India, (2014) 7 SCC 603.
28
Indus Mobile Distribution Pvt. Ltd. v. Datawind Innovations Pvt. Ltd., (2017) 7 SCC 678; Swastik Gases Pvt. Ltd.
v. Indian Oil Corp. Ltd., (2013) 9 SCC 32.
viii
exclusive jurisdiction.29 Conferment of exclusive jurisdiction must also lead the inference of

determination of seat.

In the present case, the parties have agreed that the Court of Braavos will have the exclusive

jurisdiction to deal with the matter or disputes. The exclusive jurisdiction clause in the agreement

made the intention of the parties to exclude the jurisdiction of other courts clear.

Furthermore, “… an agreement as to the seat of an arbitration is analogous to an exclusive

jurisdiction clause. Any claim for a remedy…as to the validity of an existing interim or final

award is agreed to be made only in the courts of the place designated as the seat of arbitration.” 30

Here, the application for interim relief was filed in Braavos Court which has the exclusive

jurisdiction to entertain the application.

Since, Braavos Court has the exclusive jurisdiction, therefore, it shall be the seat of arbitration.

4. Bifurcation of Courts is legally permissible.

Reading section 9 along with section 2(1)(e) and section of 42 of Rashtrian Arbitration and

Conciliation Act, 1996 [hereinafter “Arbitration Act”] makes it clear that a petition under

section 9 of Arbitration Act seeking an interim relief can be filed in an appropriate Civil Court

having jurisdiction over the subject-matter of the dispute. 31 In this matter, in accordance with the

29
Braes of Doune, (2008) EWHC (TCC) 426 [4]–[8] (Eng.); See, e.g., Bharat Aluminum Company v. Kaiser
Aluminium Technical Services Inc., [2012] 9 SCC 552, 106, 110 (India) (affirming Braes of Doune and Shashoua
UK); A v. B, [2007] 1 Lloyd’s Rep. 237 [111] (Eng.).
30
A v. B, (2007) 1 All ER (Comm) 591.
31
Alka Chandewar v. Shamshul Ishrar Khan, 2017 SCC OnLine SC 758.
ix
arbitration clause entered into by the parties, Braavos Court is vested with the exclusive

jurisdiction in respect of the arbitration proceedings32 since it is the seat of arbitration and

therefore, Braavos court should have jurisdiction to try and decide the application seeking

interim relief.

While the term “bifurcation” often refers to separation of jurisdictional issues from merits, 33

it can also refer to splitting the merits into liability and quantum phase. 34 Following the

rationale behind the Article 44 of the International Centre for Settlement of Investment

Dispute, bifurcation of jurisdiction on merits is ordered to spare the parties from effort and

cost of quantifying damages.35

Furthermore, the parties can agree to conduct arbitral proceedings anywhere they wish under

the terms of Section 20(1), and this does not affect the jurisdiction of one or more courts over

the subject matter of the dispute.36 In other words, concurrent jurisdiction of different courts

may be present together. In this case, the defendant resides in Sriwal in the state of Qarth.

Therefore, the Court where the defendant resides, the Court where the cause of action arose

i.e., Volantis in the state of Meereen and Braavos Court shall have the authority to hear and

adjudicate upon the matter. Though the arbitration proceedings are to be conducted in

Casterly Rock, but, as established in the aforementioned argument, the seat of arbitration is

Braavos Court which grants it the jurisdiction to entertain the matters related to the relief to
32
The Summer Intra-University Moot Court Competition, 2020, Intra Proposition.
33
Itera International Energy LLC and Itera Group NV v. Georgia, (ICSID ARB/08/7), Decision on admissibility of
ancillary claims, 4 December 2009, para. 34.
34
LG&E v. Argentina (ICSID ARB/02/1), CME Czech Republic B. V. v. Czech Republic (UNCITRAL), Partial
Award, 13 September 2001, para. 46, Mr William Nagel (United Kingdom) v. Czech Republic, Ministry of
Transportation and Telecommunications, SSC No. 049/2002, Award on Jurisdiction issued on 30 April 2010,
Austrian Airlines AG v. Th e Slovak Republic, Final Award, 9 October 2009 (the tribunal held that it lacked
jurisdiction after bifurcating jurisdiction on basis of merit).
35
Article 44 of ICSID, Suez v. Argentina.
36
RS Bachawat, Law of Arbitration and Conciliation, Preliminary, Part A, Vol. 1, Ed. 2019.
x
 be sought by the parties. When the parties pick a court, it nullifies the jurisdiction of other

courts.37 Since, Braavos is the court of jurisdiction, it shall have jurisdiction to seek interim

relief.

While the term “bifurcation” often refers to separation of jurisdictional issues from merits, it

can also refer to splitting the merits into liability and quantum phase. Following the rationale

behind the Article 44 of the International Centre for Settlement of Investment Dispute,

bifurcation of jurisdiction on merits is ordered to spare the parties from effort and cost of

quantifying damages.

In the present case, if the issue will be divided on the basis of jurisdiction of merits, it will

save an ample amount of efforts put by parties as well as the cost. This is the sole purpose of

opting arbitration as a dispute mechanism.

Therefore, it is legally permissible to bifurcate the jurisdiction of courts to entertain requests

for interim relief on one hand, and to entertain other arbitration related court proceedings on

the other.

5. Disputes arising under or related to issues arising under lease agreements are

arbitrable.

Section 2(3) of Arbitration Act provides that “[t]his Part shall not affect any other law for the

time being in force by virtue of which certain disputes may not be submitted to arbitration.”

Further, Section 34(2)(b) and 48(2) of the Arbitration Act also conform to the non-arbitrability of

certain disputes by allowing the court to set aside the awards if the subject matter of the dispute

37
Bharat Aluminum Company v. Kaiser Aluminium Technical Services Inc., (2012) 9 SCC 552; Indus Mobile
Distribution Pvt. Ltd. v. Datawind Innovations Pvt. Ltd., (2017) 7 SCC 678.
xi
is not capable of settlement by arbitration. The refusal to declare a dispute arbitrable is largely

based on two grounds: i) landlord-tenant disputes are right in rem or right in personam, and ii)

jurisdiction conferred upon certain courts.

5.1. Landlord-tenant disputes are right in rem or right in personam

The Supreme Court, while enumerating the list of non-arbitrable disputes in the case of Booz

Allen and Hamilton Inc. v. SBI Home Finance Ltd. [hereinafter “Booz Allen”] noted that the

primary reason for non-arbitrability of tenancy disputes is that it involved right in rem. A right in

rem is a right exercisable against the world at large, as contrasted from right in personam which

is an interest protected solely against specific individuals.38 The Court has differentiated the

tenancy disputes from those involving right in personam which arise out of the interpersonal

contractual relations and are capable of being arbitrable. The Court stated that “all disputes

relating to rights in rem are required to be adjudicated by courts and public tribunals, being

unsuited for private arbitration.”39 However, an analysis of Section 108 of Transfer of Property

Act, 1882 [hereinafter “TP Act”]40 rights given to the lessor and lessee are to be exercised

strictly against each other. The rights which arise out of an interpersonal contractual relation are

not available against the world at large.

Therefore, it has been ascertained that landlord-tenant disputes are right in personam and there is

no involvement of right in rem and the lease agreements are capable to be settled by arbitration.

38
Booz Allen and Hamilton Inc. v. SBI Home Finance Ltd., (2011) 5 SCC 532.
39
Booz Allen and Hamilton Inc. v. SBI Home Finance Ltd., (2011) 5 SCC 532.
40
Section 108, Transfer of Property Act, 1882.
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 5.2. Jurisdiction conferred upon certain courts.

In order to protect certain classes of persons, various welfare legislations have been enacted over

the years such as Delhi Rent Act, 1995, Bombay Rent Act, etc. Disputes under these legislations

are to be adjudicated by special courts only, thereby making disputes under them non-

arbitrable.41

The Supreme Court in the case of Natraj Studios (P) Ltd. v. Navrang Studios, held that statutes

governing rent and tenancy are special statues and are public welfare legislations. Therefore, the

disputes forming the subject matter of these legislations cannot be arbitrable. 42 However, a

parallel can be drawn here with the judgement of the Supreme Court in the case of Emmar MGF

Land Ltd. v. Aftab Singh.43 In this case, the Supreme Court while dealing with the arbitrability of

matters falling under the Consumer Protection Act, 1986, opined that the parties may opt for

arbitration. This comparison is relevant because the Consumer Protection Act too is a welfare

legislation, much like the aforementioned Rent Control Acts.44

Furthermore, “there is nothing in the [TP Act] to show that a dispute as to determination of a

lease arising under Section 111 cannot be decided by arbitration.” 45 In the case of Emmar MGF

Land Ltd. v. Aftab Singh it was propounded that though a special forum for adjudication has

been provided, it does not mean that the dispute is barred in other jurisdictions.

The mere existence of a special forum for adjudication should not bar the jurisdiction of arbitral

tribunals. Additionally, parties should have the right to opt into arbitration despite being
41
Rohan Marathe and Tapan Radkar, Arbitrability of Tenancy Matters - Ignoring out the wrinkles, Arbitration and
Corporate Law Review, July 14, 2020. https://www.arbitrationcorporatelawreview.com/post/arbitrability-of-
tenancy-matters-ironing-out-the-wrinkles.
42
Natraj Studios (P) Ltd. v. Navrang Studios, 1981 (1) SCC 523.
43
Emmar MGF Land Ltd. v. Aftab Singh, 2018 SCC OnLine SC 2771.
44
Natraj Studios (P) Ltd. v. Navrang Studios, 1981 (1) SCC 523.
45
Vidya Drolia and Ors. v. Durga Trading Corporation, 2019 SCC OnLine SC 358.
xiii
protected by public welfare legislations because tribunals and courts have been given the same

powers46 by Section 17(1)(ii)(e) of Arbitration Act. In light of these factors, tenancy disputes

should be arbitrable in India.

46
Section 17, Arbitration and Conciliation Act, 1996.
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 PRAYER

Wherefore in the light of facts stated, issues raised, authorities cited and arguments advanced, it

is most humbly and respectfully prayed that this Honorable Apex Court of Rashtra may be

pleased to:

1. Refer the present matter to the International Criminal Court since the act of the

Government of Rashtra amounts to crime against humanity under Article 7 of the Rome

Statute.

2. Declare Braavos as the seat for arbitration with regard to disputes arising from the Lease

Agreement in the present matter.

3. Declare proceedings under Section 9 of the Arbitration and Conciliation Act, 1996 to be

valid in the present case since lease agreements can be referred to arbitration proceedings.

And further pass any other order in favour of the Petitioner, as this Honorable Court

may so deem fit in the ends of justice, equity and good conscience.

Date: September 26, 2020 Counsel No.

Place: Rashtra (Counsel for the Petitioner)

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