ARGUMENTS ON BEHALF OF FG AND MR.

MISMARCK (FOR ISSUE 2)

Issue 1: The Arbitral Award is enforceable under Indian Law.

For enforcement of the Arbitral Award in International Commercial Arbitration, the

application will be filed under Section 48 of the Arbitration and Conciliation Act, 1996
(“A&C Act”) as the enforcement is being sought in India. The award will be enforced in
India because the award is rendered against ECI, which has its place of business in India.

Section 48 prescribes the conditions for enforcement of a foreign award. Section 48(1)(d)
provides that the award may be refused enforcement in case the composition of the arbitral
tribunal or authority was not in accordance with the law of the country where the arbitration
took place.

In the present case, the arbitration took place in London, so the English Arbitration Act will
be applicable. The relevant provision of the Act is Section 17. Section 17(2) prescribes that
in case one of the parties fails to make an appointment or fails to notify the other party that
he has made the appointment, the other party may appoint his arbitrator as the sole
arbitrator. In such a case, the sole arbitrator’s award shall be binding on both the parties as
if he had been appointed by agreement of the parties.

Furthermore, we will see Section 48(2)(b) of the A&C Act. It provides that the award may
be refused enforcement in case it is against the public policy of India. And an award may be
against the public policy if it is against the Fundamental Policy of India.

The Indian Supreme Court in the case of TRF and Perkins Eastman Architects DPC &
Anr. V HSCC (India) Ltd (“Perkins case”) has held that Arbitration Clause which confer
one party the power to appoint an arbitrator are invalid. However, in the present case, the
ratio of both these judgements would not apply, as the case is not that of Unilateral
Arbitration Clause. The Arbitration Clause merely provides that a sole arbitrator will be
appointed. The Arbitrator was appointed Unilaterally by Fegefeuer GmBH (“FG”) because
the Election Commission of India (“ECI”) did not participate in the proceedings or
appointment of arbitrator. However, the Arbitration Agreement did not confer unilateral
power to one party to appoint its arbitrator, and hence, it was not invalid. Thus, the
Agreement or the Procedure for appointment does not violate and principles of Indian Law.

In any case, the principle of equal treatment of parties under Section 18 of the A&C Act
only applies to Arbitral Proceedings, which commences after the notice has been received
by the opposite party (Section 21). It does not confer equality at the stage of appointment of
Arbitrators.

Issue 2: The suit against Mr. Mismarck is not maintainable.

The courts in New Delhi will not have the jurisdiction, as the parties have chosen London
as the Seat of Arbitration. Once the parties chose a seat, it implies that the courts of that
place have the exclusive jurisdiction over the dispute. Thus, the courts in London would
have the exclusive jurisdiction, and not New Delhi.
In any case, Mr. Mismarck is a citizen of Austria, Vienna. Since, he is the defendant, the
place where he resides, ought to have jurisdiction to decide the dispute.

Mr. Mismarck was appointed as an arbitrator on 01.01.2020, while his son started working
for FG from March 2020 to September 2020. At the time of appointment, the arbitrator
could not have known of such a situation and thus, no disclosure could have been made by
him. Moreover, the IBA Guidelines on Conflict of Interest provide no such ground for the
arbitrator to make a disclosure. Thus, the arbitrator was not bound to make this disclosure
to the parties.

Section 29 of the English Arbitration Act prescribes that an arbitrator will be immune,
unless he does an act in bad faith. The tweet made by Mr. Mismarck was not done in bad
faith and the threshold of bad faith cannot be satisfied by the ECI in the present case.
The confidentiality agreement was concluded between ECI and FG. It does not bind the
arbitrator. Thus, even if the disclosure was made by him, it does not give rise to liability of
FG due to breach of confidentiality.
 ARGUMENTS ON BEHALF OF THE ELECTION COMMISSION OF INDIA.

Issue 1: The Arbitral Award is not enforceable under Indian Law.

Section 48(1)(d) reads as: “the composition of the arbitral authority or the arbitral
procedure was not in accordance with the agreement of the parties, or, failing such
agreement, was not in accordance with the law of the country where the arbitration took
place”

Under section 18 of English Arbitration Act, it is clearly mentioned that in case the parties
fail to agree upon a procedure for appointment of arbitrators, the parties shall approach the
court for the appointment of an arbitrator. It does not authorize a party to unilaterally
appoint an arbitrator. In the present case, although the Arbitration Agreement specifies that
a sole arbitrator shall be appointed, the procedure for the appointment of such an arbitrator
was not prescribed, so FG ought to have approached the court. However, failing to do so, it
has violated Section 18 of the English Arbitration Act.

The Indian Court have also held that Unilateral Appointment of Arbitrators is invalid, and
against the principle of Equality of Parties. In the case of Perkins, where the arbitration
clause provided for unilateral appointment of sole arbitrator by the respondent, the power of
the Respondent to appoint an arbitrator unilaterally was challenged before the Supreme
Court. The apex court relying upon TRF Ltd. case, held that this unilateral appointment
power of appointing the sole arbitrator is invalid as there exist possibility of bias whereby
the appointed arbitrator may act in a way to safeguard the interest of the appointing party
and therefore violates the neutrality of the proceedings.

Thus, relying on the cases laid down in the Indian jurisprudence, the appointment of
arbitrators, when done unilaterally is unlawful and against the public policy of India, thus,
the award rendered by the Arbitral Tribunal is not enforceable.

Issue 2: The suit against Mr. Mismarck is maintainable.

The suit against Mr. Mismarck is maintainable in the Delhi High Court, as the cause of
action arose in New Delhi. The General Elections are administered from Delhi and the ECI
has its place of business in New Delhi. Thus, it becomes the place where the cause of action
arose, giving the court of Delhi the jurisdiction over the dispute, under Section 20 of the
CPC.

Mr. Mismarck has breached his duty to disclose any facts that give rise to justifiable doubts.
Section 24 of the English Arbitration Act imposes this duty on arbitrators. In the present
case, since Mr. Mismarck failed to disclose the fact that his son was interning at FG since
Mach 2020 and also receiving a stipend of 2000 Euros, he has breached his duty to disclose
material facts and be able to act in an independent and impartial manner.
The duty of an arbitrator to disclose facts giving rise to justifiable doubts not only applies at
the time of his appointment, but also extends to any subsequent situation which he becomes
aware of in the future.

Furthermore, the Arbitrator was bound to keep the information about the agreement
between FG and the ECI confidential due to two reasons. First, it was bound by Section 75
of the A&C Act, as provided under Section 48 of the Act. Section 74 provides that a
settlement agreement under Conciliation shall have the same effect as an arbitral award.
Thus, the arbitral award will also be governed by confidentiality provisions of Section 75 of
the A&C Act.
Second, FG had entered into a confidentiality agreement with ECI. An arbitrator derives its
jurisdiction from the agreement between the parties, as per the Contract Theory. Thus, it is
bound by the parties’ arbitration agreement. Moreover, FG had entered into confidentiality
agreement with ECI. As Mr. Mismarck was the arbitrator appointed by FG, it was bound to
respect and follow the confidentiality agreement entered into by FG, and thus, bound by it.
Thus, the tweet made by Mr. Mismarck, is in breach of the confidentiality agreement,
making him liable.