064R

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 RESPONDENTS

 TABLE OF CONTENTS

INDEX OF

AUTHORITIES………………………………………………………………….iv

STATEMENT OF JURISDICTION........................................................................................v

STATEMENT OF FACTS......................................................................................................vi

ISSUES FOR CONSIDERATION.......................................................................................viii

SUMMARY OF ARGUMENTS..............................................................................................ix

ARGUMENTS ADVANCED....................................................................................................x

1. The ingredients of Crime against humanity, as understood by Article 7 of Rome

Statute, are not being met....................................................................................................1

2. The case will be barred by Article 17 of the Rome Statute......................................2

3. The seat of arbitration shall be Casterly Rock..........................................................4

4. Bifurcating 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 is not legally permissible............................................................................................6

5. Disputes arising under or related to issues arising under lease agreements are not

arbitrable..............................................................................................................................7

PRAYER....................................................................................................................................9

iii
 INDEX OF AUTHORITIES

Articles

Darryl Robinson, The elements of crimes against humanity, in the International Criminal

Court, Elements of crimes and rules of procedure and evidence 57, 70 (Roy Lee ed (2001)

……………………………………………………………………………………….4

Decision on the Confirmation of Charges against Laurent Gbagbo, ICC-02/11-01/11-656-

Red, Gbagbo, ICC PT. Ch. I, 12 June 2014, ¶ 21....................................................................

Decision Pursuant to Article 15 of the Rome Statute on the Authorisation of an Investigation

into the Situation in the Republic of......................................................................................2

Decision Pursuant to Article 15 of the Rome Statute on the Authorisation of an Investigation

into the Situation in the Republic of Kenya, ICC01/09, International Criminal Court, 31

March 2010, ¶ 79...................................................................................................................1

Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the

Prosecutor Against Jean-Pierre Bemba Gombo, Prosecutor v. Bemba, ICC-01/05-01/08-

424..........................................................................................................................................1

John T. Holmes, “The Principle of Complementarity”, in Roy S. Lee (ed.), The International

Criminal Court, The Making of the Rome Statute, Kluwer Law International, The Hague,

1999, pp. 41–43, 50, 60–65....................................................................................................3

Cases

A. Ayyaswamy v. A. Paramasivam, (2016) 10 SCC 386..........................................................7

BGS SGS Soma JV v. NHPC Ltd., 2019 SCC OnLine SC 1585..............................................5

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

................................................................................................................................................4

Booz Allen and Hamilton Inc. v. SBI Home Finance Ltd., (2011) 5 SCC 532.........................7

Brahmani River Pellets Ltd. v. Kamachi Industries Ltd., (2019) SCC OnLine SC 929............5

Cairn Energy PLC and Cairn UK Holdings Limited v. The Republic of India PCA Case No.

2016-07..................................................................................................................................6

Decision Concerning Pre-Trial Chamber I’s Decision, Prosecutor v. Thomas Lubanga (Case

No. ICC-01/04-01/06), 10 February 2006 and the Incorporation of Documents into the

Record of the Case against Mr. Thomas Lubanga Dyilo, 24 February 2006, Annex 1, ¶ 44

................................................................................................................................................3

Enercon (India) Ltd. v. Enercon GmbH, (2014) 5 SCC 1.........................................................4

Itera International Energy LLC and Itera Group NV v. Georgia, (ICSID ARB/08/7)..............6

Nabha Power Limited (NPL) v. Punjab State Power Corporation Limited (PSPCL) & another,

Civil Appeal No. 179 of 2017................................................................................................5

Naviera Amazonica Peruana SA v Cia Internacional de Seguros del Peru, [1988] 1 Lloyd’s

Rep 116..................................................................................................................................5

Penumalli Sulochana v. Harish Rawtani, 2013 (5) ALD 573....................................................8

Prosecutor v. Katanga, ICC T. Ch. II, ICC-01/04-01/07-3436, Jugement rendu en application

de l’Article 74 du Statut.........................................................................................................1

Reliance Industries Ltd. and Anr. v. Union of India, (2014) 7 SCC 603...................................5

Sukanya Holdings (P) Ltd. v. Jayesh H. Pandya, 2003 (5) SCC 531........................................6

Victor Pey Casado, Coral Pey Grebe v. The Republic of Chile, PCA Case No. 2017-30.........6

Vidya Drolia and Ors. v. Durga Trading Corporation, 2019 SCC OnLine SC 358..................8

Ministerial Orders

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

Commission of India, 2014........................................................................................................4

Other Authorities

Location, Oxford English Dictionary, Pg - 326, 7th Ed., 2011.................................................4

The Summer Intra-University Moot Court Competition, 2020, Intra Proposition, Arbitration

clause, pg. 9............................................................................................................................4

Rules

Article 23(3) of UNCITRAL Arbitration Rules, 2010..............................................................6

Statutes

Article 1, Rome Statute, International Criminal Court, 1998....................................................2

Article 17(1), Rome Statute, International Criminal Court, 1998.............................................4

Article 17(1)(d), Rome Statute, International Criminal Court, 1998.........................................3

Article 7, Rome Statute, International Criminal Court, 1998....................................................1

vi
 STATEMENT OF JURISDICTION

State of Rashtra, Respondent 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.

Raku and Co., Respondent 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 Respondents

vii
 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.

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.

viii
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.

ix
 ISSUES FOR CONSIDERATION

1. The ingredients of Crime against humanity, as understood by Article 7 of Rome

Statute, are not being met.

2. The case will be barred by Article 17 of the Rome Statute.

3. The seat of arbitration shall be Casterly Rock.

4. Bifurcating 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 is

not legally permissible.

5. Disputes arising under or related to issues arising under lease agreements are not

arbitrable.

x
 SUMMARY OF ARGUMENTS

The ingredients of Crime against humanity, as understood by Article 7 of Rome Statute,

are not being met.

The ingredients of Crime against humanity, as understood by Article 7 of Rome Statute, are

not being met since, the conduct of the Rashtrian government was proportionate and was not

against civilian population. Also, the actions of the government was not widespread and

systematic.

The case will be barred by Article 17 of the Rome Statute.

The case will be barred by Article 17 of the Rome Statute since the International Criminal

Court does not have the jurisdiction to hear the matter according to the principle of

complementarity. Also, the threshold of gravity has not been met.

The seat of arbitration shall be Casterly Rock.

It has been expressly stated in the arbitration clause that the location shall be Casterly Rock.

This means that the arbitration proceedings will be held at that place. Furthermore, intention

of parties is also very important and has to be taken into account. Considering all the factors,

the seat of arbitration shall be Casterly Rock.

Bifurcating 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 is not

legally permissible.

The bifurcation request raised by the plaintiff is not separation of jurisdictional issues from

merits but rather merits from merits. This separation is invalid and is not legally permissible.

xi
The UNCITRAL Arbitration rule only talks about bifurcation of jurisdictional issues from

merits shows that separating merits from merits is not permissible. Hence, bifurcating 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 is not legally permissible.

Disputes arising under or related to issues arising under lease agreements are not

arbitrable.

Disputes arising between landlord and tenant are right in rem. Right in rem disputes are not

arbitrable unlike right in personam disputes. Right in rem disputes are only adjudicated by

public fora and not private fora. Therefore, disputes arising under lease agreements are not

arbitrable

xii
 ARGUMENTS ADVANCED

1. The ingredients of Crime against humanity, as understood by Article 7 of Rome

Statute, are not being met.

According to Article 71 of the Rome Statute, Pre-trial Chamber has identified five general

elements for an act to be considered as a crime against humanity.

“(i) an attack directed against any civilian population,

(ii) a State or organizational policy,

(iii) the widespread or systematic nature of the attack,

(iv) a nexus between the individual act and the attack,

(v) knowledge of the attack”2

i. The conduct was not an attack directed against any civilian population.

The Pre-Trial Chamber stated that ‘directed against’ means that “the civilian population must

be the primary object of the attack and not just an incidental victim of the attack” and also

stated that underlying offences must not be isolated.3

The definition of civilian population states that, ‘[c]ivilian population comprises all persons

who are civilians as opposed to members of armed forces and other legitimate combatants.’ 4

1
Article 7, Rome Statute, International Criminal Court, 1998.
2
Decision Pursuant to Article 15 of the Rome Statute on the Authorisation of an Investigation into the Situation
in the Republic of Kenya, ICC01/09, International Criminal Court, 31 March 2010, ¶ 79; Decision Pursuant to
Article 15 of the Rome Statute on the Authorisation of an Investigation into the Situation in the Republic of
Côte d’Ivoire, ICC-02/11, International Criminal Court, 3 October 2011, ¶ 29.
3
Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor Against
Jean-Pierre Bemba Gombo, Prosecutor v. Bemba, ICC-01/05-01/08-424, 15 June 2009, ¶ 76, citing ICTY case
law, in particular Prosecutor v. Kunarac et al., IT-96-23 and 23/2, ICTY A. Ch., 12 June 2002, ¶ 91–92.
4
See note 3, ¶ 78; also cited by Prosecutor v. Katanga, ICC T. Ch. II, ICC-01/04-01/07-3436, Jugement rendu
en application de l’Article 74 du Statut, 7 March 2014, ¶ 1102.

1
There were reports that some protestors had gotten their hands on a massive stock of arms

and ammunition, belonging to the Special Forces. The protestors planned on using them. The

Chemical gas was unleashed after giving warnings, in order to save the civilian population.

The act was only directed against the protestors or combatants. Thus, it is established that

these attacks were not directed against any civilian population but were the part of

appropriate action taken by Government to ensure safety and peace of Rashtra.

ii. The actions were neither a part of state or organizational policy nor were

widespread or systematic.

The criterion of the term ‘policy’ will be satisfied when an attack is planned, directed or

organized – as opposed to spontaneous or isolated acts of violence. 5 The case, Prosecutor v.

Gbagbo added – “the concept of ‘policy’ and that of the ‘systematic’ nature of the attack […]

both refer to a certain level of planning of the attack.6

Widespread attack connotes the large-scale nature of the attack, which should be massive,

frequent, carried out collectively with considerable seriousness and directed against a

multiplicity of victims.7

The actions taken in the present case are not a part of any policy, these are merely strict

measures taken by the Government and were proportionate considering that these protestors

were allegedly armed. The arrest of protestors was done lawfully on grounds of sedition.

Though the victims of the chemical bombing attack were large in number the attack was not

widespread as it was an isolated event and not a frequent attack. Thus, the actions were

neither a part of state or organizational policy nor were widespread or systematic.

5
See note 3, ¶ 81; Prosecutor v. Katanga and Ngudjolo, ICC PT. Ch. I, ICC-01/04-01/07- 717, Decision on the
Confirmation of Charges, 30 September 2008, ¶ 396; Gbagbo, ICC PT. Ch. I, Decision on the Confirmation of
Charges against Laurent Gbagbo, ICC-02/11-01/11-656- Red, 12 June 2014, ¶ 215.
6
Decision on the Confirmation of Charges against Laurent Gbagbo, ICC-02/11-01/11-656-Red, Gbagbo, ICC
PT. Ch. I, 12 June 2014, ¶ 21.
7
See note 3, ¶ 83.

2
Therefore, since all the ingredients of crimes against humanity are not fulfilled, Mr. Patol

Babu and Mr. ShriChaa cannot be convicted under the said statute.

The case will be barred by Article 17 of the Rome Statute.

Article 17 of the Rome Statute lays down the substantive conditions for the admissibility of a

case before the ICC. Under this provision, the admissibility test is composed of two main

parts: the first requires the consideration of the complementarity criteria (as affirmed by

Article 1 of the Rome Statute8) in 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” 9, in order to

determine whether the case is of sufficient gravity to justify further action by the Court.

i. Following the complementarity principle for rendering the case inadmissible.

The negotiating history of the Statute demonstrates that the adoption of the complementarity

principle was critical to secure the support of the negotiating states for the establishment of a

permanent international criminal court.10

The principle of complementarity is the basis of the relationship between the International

Criminal Court and national courts in relation to the application of international criminal law.

It means that the ICC has secondary jurisdiction after national courts, and can only act in a

given situation if the relevant states are unwilling or unable to prosecute the crimes within

their jurisdiction.11

8
Article 1, Rome Statute, International Criminal Court, 1998.
9
Article 17(1)(d), Rome Statute, International Criminal Court, 1998.
10
John T. Holmes, “The Principle of Complementarity”, in Roy S. Lee (ed.), The International Criminal Court,
The Making of the Rome Statute, Kluwer Law International, The Hague, 1999, pp. 41–43, 50, 60–65.
11
Complementarity Principle, European Centre for Constitutional and Human Rights. Available at
https://www.ecchr.eu/en/glossary/complementarity-principle/.

3
In the present case, the matters are listed before the Apex court. Thus, the ICC cannot take

over as the state is willing and able to prosecute, if found guilty under national legislature.

Thus, the Rashtrian Government sovereignty must be upheld and the matter should first be

investigated and dealt under National Jurisdiction.

ii. The Gravity threshold for the matter to be presided over by ICC is not met.

In order to determine whether a case is sufficiently grave to warrant the Court’s intervention,

two features must be considered: i) “the conduct which is the subject of a case must be either

systematic (pattern of incidents) or large-scale,” ii) the assessment of gravity must give due

consideration “to the social alarm such conduct may have caused in the international

community.12

In the present scenario, the conduct of the democratic Rashtrian Government against the

protesters is not widespread attack but is proportionate action taken in order to maintain the

peace and security of the nation. There is no social alarm in the present community. Thus, it

is vital to look at the present conditions as a result of the enemies of Rashtra, both inside and

outside, collaborating to bring disrepute to our great nation.

The ICC was not created 'as a panacea for all ills', 13 and Article 17(1)14 ‘leaves the Chamber

no discretion as to the declaration of the inadmissibility of a case once it is satisfied that the

case is not of sufficient gravity to justify further action by the Court’15

Thus, it is inferred that the case shall be rendered inadmissible.

12
Decision Concerning Pre-Trial Chamber I’s Decision, Prosecutor v. Thomas Lubanga (Case No. ICC-01/04-
01/06), 10 February 2006 and the Incorporation of Documents into the Record of the Case against Mr. Thomas
Lubanga Dyilo, 24 February 2006, Annex 1, ¶ 44.
13
Darryl Robinson, The elements of crimes against humanity, in the International Criminal Court, Elements of
crimes and rules of procedure and evidence 57, 70 (Roy Lee ed (2001).
14
Article 17(1), Rome Statute, International Criminal Court, 1998.
15
See note 12, ¶ 43.

4
1. The seat of arbitration shall be Casterly Rock.

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.”16 The Law Commission of India in its 246 th 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).17

In the present case, the word ‘location’ has been used in the arbitration clause 18 of the lease

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

Casterly Rock”19 (emphasis added). The word ‘location’ as described by Oxford Dictionary

means that “a place where something is located.”20 The word ‘venue’ has been defined as “a

geographical location of the arbitration proceedings chosen on the basis of convenience.” 21

Since, ‘location’ and ‘venue’ both, mean the same, it proves that Casterly Rock is the

“venue” of arbitration where the proceedings will take place.

Furthermore, the Supreme Court, in the case of Nabha Power Limited (NPL) v. Punjab State

Power Corporation Limited (PSPCL) & another, has stated that a contract should be read as

16
Bharat Aluminum Company v. Kaiser Aluminium Technical Services Inc., (2012) 9 SCC 552.
17
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.
18
The Summer Intra-University Moot Court Competition, 2020, Intra Proposition, Arbitration clause, pg. 9.
19
The Summer Intra-University Moot Court Competition, 2020, Intra Proposition, pg. 9.
20
Location, Oxford English Dictionary, Pg - 326, 7th Ed., 2011.
21
Enercon (India) Ltd. v. Enercon GmbH, (2014) 5 SCC 1.

5
it reads, as per its express terms. The concept of implied terms must come into play only

when there is a strict necessity for it.22

In the present case, it has been expressly stated that the location shall be Casterly Rock which

means that the arbitration proceedings shall be held at Casterly Rock. Applying the Bright

test given in the case of BGS SGS Soma JV v. NHPC Ltd., “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.” 23 So, in the present

case, the arbitration proceedings are being held at Casterly Rock which is the venue of

arbitration, hence, it shall also be the seat of arbitration.

“Careful attention is to be paid towards party intention and whether the legal system where

the proceedings are to be conducted have a close and intimate connection to the arbitral

process. The test is applicable when the arbitration clause is silent or unclear and fails to

ascertain the applicable law. The intention of the parties becomes the most decisive factor in

clearing up the confusion. Further, the location where the arbitration is to be conducted is a

relevant point of consideration.”24 The arbitration clause is silent and fails to ascertain the seat

of arbitration in the present case.

Therefore, the usage of the word ‘location’ clearly implies that Casterly Rock is the seat as

well as the venue of arbitration.

22
Nabha Power Limited (NPL) v. Punjab State Power Corporation Limited (PSPCL) & another, Civil Appeal
No. 179 of 2017.
23
BGS SGS Soma JV v. NHPC Ltd., 2019 SCC OnLine SC 1585; Reliance Industries Ltd. and Anr. v. Union of
India, (2014) 7 SCC 603; Brahmani River Pellets Ltd. v. Kamachi Industries Ltd., (2019) SCC OnLine SC 929.
24
Naviera Amazonica Peruana SA v Cia Internacional de Seguros del Peru, [1988] 1 Lloyd’s Rep 116.

6
2. Bifurcating 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 is

not legally permissible.

The term “bifurcation” often refers to separation of jurisdictional issues from merits 25, i.e.,

issues relating whether the tribunal can arbitrate upon the subject-matter of the dispute in the

first phase. While the UNCITRAL Arbitration Rules 1976 (the "UNCITRAL Rules" or the

"Rules") contains a presumption in favour of bifurcation in the event that the Respondent

raises any preliminary objections,26 this bifurcation refers to separation of jurisdictional issues

from the merits of the dispute.

Furthermore, the Supreme Court in the case of Sukanya Holdings (P) Ltd. v. Jayesh H.

Pandya, has explicitly stated that bifurcation of the suit “would be laying down a totally new

procedure not contemplated under the Arbitration act. If bifurcation of the subject matter of a

suit was contemplated, the legislature would have used appropriate language to permit such a

course. Since there is no such indication in the language, it follows that bifurcation of the

subject matter of an action brought before a judicial authority is not allowed.”27

Applying the aforementioned ratio to the facts of the present case, it can be clearly said that

the bifurcation of jurisdiction of courts is not legally permissible. The bifurcation request

raised by the plaintiff is not separation of jurisdictional issues from merits but rather merits

from merits. This separation is invalid and is not legally permissible. Arbitration Act is based

upon UNCITRAL Model Law and therefore, the fact that even UNCITRAL Arbitration rule

25
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 (a separate jurisdictional phase to consider the jurisdictional and
admissibility objections raised by the Respondent).
26
Article 23(3) of UNCITRAL Arbitration Rules, 2010, Cairn Energy PLC and Cairn UK Holdings Limited v.
The Republic of India PCA Case No. 2016-07 (UNCITRAL) Procedural Order No. 4 - Decision on the
Respondent’s Application for Bifurcation. Cf. President Allende Foundation, Victor Pey Casado, Coral Pey
Grebe v. The Republic of Chile, PCA Case No. 2017-30, Procedural Order No. 2, 29 November 2017, para. 64
(it was held that there did not exist any presumption of bifurcation but rather a significant degree of discretion
while determining bifurcation of jurisdiction).
27
Sukanya Holdings (P) Ltd. v. Jayesh H. Pandya, 2003 (5) SCC 531.

7
 only talks about bifurcation of jurisdictional issues from merits shows that separating merits

from merits is not permissible. Interim relief can only be granted in certain cases only and

that interim relief of court is merely a preliminary decree or order and is not the final order of

court. In the case of Prem Chandra Agarwal and another v. Uttar Pradesh Financial

Corporation and others, Supreme Court held that “it is a well-settled principle that once a

final order is passed, all the earlier interim orders merge into the final order, and the interim

order cease to exist.”

Therefore, bifurcating 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 is not

legally permissible.

3. Disputes arising under or related to issues arising under lease agreements are not

arbitrable.

“Arbitral tribunals are private fora chosen voluntarily by the parties to the dispute, to

adjudicate their disputes in place of courts and tribunals which are public fora constituted

under the laws of the country.”28 Every civil or commercial dispute which is capable of being

adjudicated by public fora is also capable of being adjudicated by private fora unless its

jurisdiction is excluded either expressly or by necessary implication.

The Supreme Court in Booz Allen and Hamilton Inc. v. SBI Home Finance Ltd, has

recognized one of the non-arbitrable matters as “eviction or tenancy matters governed by

special statutes where the tenant enjoys statutory protection against eviction and only the

specified courts are conferred jurisdiction to grant eviction or decide the disputes.” 29 This line

of reasoning was upheld subsequently in the case of A. Ayyaswamy v. A. Paramasivam,

28
Booz Allen and Hamilton Inc. v. SBI Home Finance Ltd., (2011) 5 SCC 532.
29
See note 28.

8
wherein it was further clarified that disputes falling under the exclusive purview of a special

adjudication from under a special statute are to be deemed inarbitrable.30

It should be noticed that eviction and tenancy matters referred to above relate to actions in

rem. “A right in rem is exercisable against the world at large, as contrasted from a right in

personam which is an interest protected solely against specific individuals...actions in rem

refer to actions determining the title to property and the rights of the parties, not merely

among themselves but also against all persons at any time claiming an interest in that

property.”31 All disputes relating to rights in rem are required to be adjudicated by courts and

public tribunals, being unsuited for private arbitration.32

Furthermore, even if there is an arbitration agreement between the parties, and even if the

dispute is covered by the arbitration agreement, the court where the civil suit is pending, will

refuse an application to refer the parties to arbitration, if the subject matter of the suit is

capable of adjudication only by a public forum or the relief claimed can only be granted by a

special court or tribunal.33

In the case of Penumalli Sulochana v. Harish Rawtani, the Andhra Pradesh High Court

extended the rule involved in Booze Allen and held that disputes under a lease deed, governed

by special statutes, cannot be the subject-matter of arbitration, and a similar case which falls

under the Transfer of Property Act cannot be a subject-matter of arbitration. 34 Also,

“[s]ections 114 and 114A, which provide for statutory reliefs against forfeiture for non-

payment of rent and for breach of an express condition, would indicate that the statute itself is

based on a public policy in favour of tenants as a class, which can be decided by the courts

only.”35
30
A. Ayyaswamy v. A. Paramasivam, (2016) 10 SCC 386.
31
See note 28.
32
See note 28.
33
See note 28.
34
Penumalli Sulochana v. Harish Rawtani, 2013 (5) ALD 573.
35
Vidya Drolia and Ors. v. Durga Trading Corporation, 2019 SCC OnLine SC 358.

9
Therefore, for the aforementioned reasons, all the matters are not capable of being referred to

arbitration. Certain matters are reserved for the Court alone and if a tribunal purports to deal

with them, the resulting award will be unenforceable. Hence, lease agreements are not

arbitrable.

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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 Hon’ble Apex Court of Rashtra may be

pleased to:

1. No to refer the present matter to the International Criminal Court since the act of the

Government of Rashtra does not amount to crime against humanity under Article 7 of

the Rome Statute.

2. Declare Casterly Rock 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 invalid in the present case since lease agreements cannot be referred to arbitration

proceedings.

And further pass any other order in favour of the Respondent, as this Hon’ble Court

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

Date: September 26, 2020

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Place: Supreme Court of Rashtra, Casterly Rock (Counsel for the Respondent)

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