MEMORANDUM FOR RESPONDENT [Type here] [TABLE OF CONTENTS]

TEAM CODE- 7

NLIU ANNUAL UNIVERSITY POOL SELECTIONS, 2022

IN THE MATTER OF AN ARBITRATION

CONDUCTED BEFORE THE ARBITRAL TRIBUNAL

MITCH INFRASTRUCTURE CO (CLAIMANT)

v.

NATIONAL WAREHOUSING CORPORATION (NWC) ...(RESPONDENT)

Memorial On Behalf Of The Respondent

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MEMORANDUM FOR CLAIMANT [SUMMARY OF PLEADINGS]

QUESTIONS PRESENTED

[ISSUE III]

WHETHER THE FMCA, IN VIEW OF THE DUAL NOMENCLATURE USED, IS A

MEDIATED SETTLEMENT AGREEMENT OR IS IT AN “AWARD ON AGREED
TERMS” AS DEFINED UNDER SECTION 74 READ WITH SECTION 30 OF THE
ARBITRATION AND CONCILIATION ACT, 1996?

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MEMORANDUM FOR RESPONDENT [Type here] [PRAYER FOR RELIEF]

PLEADINGS

[I] WHETHER THE FMCA, IN VIEW OF THE DUAL NOMENCLATURE USED, IS A

MEDIATED SETTLEMENT AGREEMENT OR IS IT AN “AWARD ON AGREED
TERMS” AS DEFINED UNDER SECTION 74 READ WITH SECTION 30 OF THE
ARBITRATION AND CONCILIATION ACT, 1996?

[1].It is humbly submitted that the FMCA is an “award on agreed terms”. It is because
firstly, the proceedings occurred under the FAA fulfils the requisites to come under the
settlement agreement as defined under § 30 of the Arbitration & Conciliation Act 1, and
secondly, the settlement agreement is enforceable as an award on agreed terms.

1. THE PROCEEDINGS THAT TOOK PLACE UNDER THE MEDIATION CLAUSE OF

“FAA” CAN BE TREATED UNDER PART III OF THE ARBITRATION AND
CONCILIATION ACT

[2].It is humbly submitted that the mediation took place under the mediation clause of the
“FAA” for which all the parties agreed can be treated as “an award on agreed terms”.

2. PARTY INTENTION FOR “FMCA” TO BE TREATED AS A CONCILIATION

PROCEEDING

[3].It is humbly submitted that fundamental principle governing international arbitration

agreement is that of party autonomy, it is the backbone or a cornerstone of arbitration
proceeding2.
[4].It is humbly submitted hat “party autonomy” is “the freedom of the parties to construct
their contractual relationship in the way they see fit” 3. it all depends upon the parties
themselves to arrange their arbitration agreement freely without any control. The
principle of party autonomy is recognized under UNCITRAL Model Law 4, which has
been adopted by several countries, including Nigeria, either holistically or with
modification.
1
The Arbitration & Conciliation Act, 1996, § 30 (Act No. 26 of 1996).
2
Jamshed Ansari, “Party Autonomy in Arbitration: “A Critical Analysis” (2014) 6(6)Researcher 47, 53 (ISSN:
1553-9865). <http://www.sciencepub.net/ researcher> accessed 12 March, 2023.
3
Abdulhay, S., Corruption in International Trade and Commercial Arbitration, (London: United Kingdom:
Kluwer Law International,2004) 159.
4

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MEMORANDUM FOR RESPONDENT [Type here] [PRAYER FOR RELIEF]

[5].It is humbly submitted that the principle of party autonomy is when the parties
consensually execute the arbitration agreement. The parties are said to be truly
“autonomous” when they have the freedom to choose the substantive laws that will
govern such an agreement, the composition the Arbitral Tribunal, the place/seat of
arbitration, etc5
[6].It is humbly submitted that the Supreme Court in “Afcons Infrastructure Ltd. v. Cherian
Varkey Construction Co. (P) Ltd6”, giving primacy to party autonomy, has held that if
the courts decide that the dispute can be resolved through arbitration under Section 89 of
the Civil Procedure Code, 19087, it is mandatory for the parties to consent to such
arbitration and cannot be forced to do so. Thus, the parties are also autonomous/free to
choose whether they want to go through the arbitration at all. Thus, it can be concluded
that party autonomy is at the core of international commercial arbitration and cannot be
overlooked so that the “pro-arbitration” climate can be maintained in India. Nonetheless,
the provisions on party autonomy must neither disregard the public policy of the
country, nor the principles of justice and morality.
[7]. It is humbly submitted that all the parties decided to treat the agreement “FMCA” under
an award8 on agreed terms under part III of the Arbitration and Conciliation Act 9, and no
objection by any party to the agreement was raised 10. It is pleaded that according to the
concept of party autonomy the treatment of the agreement can be of that as of an award
on agreed terms under part III of the act11.
[8].Furthermore, it is humbly submitted that it was the intention of the parties to treat the
proceedings under part III of the act as an award on agreed terms and for the same the
proceedings were clothed under that part by Mr. Ram Manohar.

3. CONCILIATION SETTLEMENT IS AKIN TO AN ARBITRAL AWARD

[9].It is humbly submitted that in order to evoke the settlement as an award on agreed terms,
the requisites to evoke the conciliation proceedings were fulfilled.

5
Fagbemi, Sunday A., “The Doctrine of Party Autonomy in International Commercial Arbitration: Myth or
Reality?”, (2015) 6 Journal of Sustainable Development Law and Policy (Issue 1).
6
Afcons Infrastructure Ltd. v. Cherian Varkey Construction Co. (P) Ltd 2010(8) 4
7
The Civil Procedure Code, 1908, § 89 (Act No. 05 of 1908).
8
Factsheet 12.
9
The Arbitration & Conciliation Act, 1996, (Act No. 26 of 1996).
10
Clarification No.8
11
The Arbitration & Conciliation Act, 1996, (Act No. 26 of 1996).

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MEMORANDUM FOR RESPONDENT [Type here] [PRAYER FOR RELIEF]

[10]. It is humbly submitted that the parties were invited to resolve a dispute under the
“FAA” which is a proceeding of pre-arbitral nature, as the nature of “FMCA” is that of a
pre-arbitral proceeding it should be treated as an award on agreed terms.
[11]. It is humbly submitted that to invoke part III of the act, the conciliation proceedings
are initiated in accordance § 62 of the act. Furthermore, it is humbly submitted that in
accordance to § 67(3), the conciliator has the right to conduct the proceedings as he may
consider appropriate.
[12]. It is humbly submitted that in the present case, the parties had decided to treat the
proceedings as a conciliation proceedings, the same can be substantiated the facts12.

4. THE EFFECT OF THE “SETTLEMENT AGREEMENT”

[13]. It is humbly submitted that the Settlement Agreement will have the same effect as an
award on agreed terms. In order to have the same effect as an award on agreed terms,
the Settlement Agreement will go through the journey of § 73,74 and §30 of the act13.
[14]. It is humbly submitted that in accordance to the Part III of the act 14, a settlement
agreement is drawn in accordance to § 73 of the act it shall have the same effect as an
award on agreed terms in accordance to §30 of the act.
[15]. It is humbly submitted that in the present case the status of the agreement is to be as
an award on agreed terms as the relevant sections are read and complied with.

12
Clarification No.8
13
The Arbitration & Conciliation Act, 1996, (Act No. 26 of 1996).
14
The Arbitration & Conciliation Act, 1996, (Act No. 26 of 1996).

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