TC 6R

Team Code: TC-6R
THE 5th NLIU-JUSTICE R.K.TANKHA MEMORIAL INTERNATIONAL MOOT

COURT COMPETITION, 2020
Before
THE ARBITRAL TRIBUNAL

BARATHEON CITY, STARK PROVINCE
ARCEBOR POWER PRIVATE LIMITED

(CLAIMANT)
v.
RENVIDORA NATIONL POWER COMPANY LIMITED

(RESPONDENT)
Arbitration Concerning
THE SUPPLY AGREEMENT/CONTRACT AND ADDENDUM BETWEEN SOLAR

SYSTEM PRIVATE LIMITED AND RACONIAN RENEWABLE ENERGY LIMITED
—MEMORIAL FOR RESPONDENT—
MEMORIAL FOR RESPONDENT 1

TABLE OF CONTENTS
TABLE OF ABBREVIATIONS.............................................................................................3
INDEX OF AUTHORITIES......................................................................................................6
ISSUES RAISED.....................................................................................................................10
STATEMENT OF JURISDICTION........................................................................................11
LIST OF DATES AND EVENTS…………………………………………………………12
STATEMENT OF FACTS.......................................................................................................16
SUMMARY OF ARGUMENTS..............................................................................................19
PLEADINGS AND AUTHORITIES.......................................................................................22
PRAYER……………………………………………………………………………………42

TABLE OF ABBREVIATIONS
& And
§ Section
¶/¶¶ Paragraph/Paragraphs
r/w Read with
AAA American Arbitration Association
AIR All India Reporter
Arb. Arbitration
Art. Article
ASA Swiss Arbitration Association
Cas. Case
CISG United Nations Convention on the Contracts for

International Sales of Goods
CISG-AC Opinion CISG Advisory Council Opinion
CMNRE Central Ministry of New and Renewable Energy of the

Government of Raconia
Comm. Commerce
Comp. Comparative
Edn./Ed. Edition
Eg. Exemplum gratia (for example)
Ex. Exhibit
EWCA England and Wales Court of Appeal
EWHC England and Wales High Court
Govt. Government
HC High Court
HCA High Court of Australia

HKIAC Hong Kong International Arbitration Centre
Hon’ble Honourable
ICABML International Conference on Advances in Business,

Management and Law
ICC International Chamber of Commerce
ICLG International Comparative Legal Guides
ICSID International Centre for Settlement of Investment

Disputes
i.e. Id est (that is)
Iss. Issue
Int’l International
L.J. Law Journal
LCIA London Court of International Arbitration
Ltd. Limited
MSPP Micro Solar Power Plants
No./Nos. Number/Numbers
PECL Principles of European Contract Law
Pg. Page
Pvt. Private
Q.B. Queen’s Bench
R. Rule
RREL Raconian Renewable Energy Limited
Rep. Reporter
SACLJ Singapore Academy of Law Journal
SC Supreme Court
SCC Supreme Court Cases
SCR Supreme Court Reporter
SCT Service Case Today

SGHC Singapore High Court
SIAC Singapore International Arbitration Centre
SIAC Rules Arbitration Rules of the Singapore International

Arbitration Centre (2016)
SSPL Solar System Private Limited
TRIPS Agreement On Trade-Related Aspects Of Intellectual

Property Rights
UCC Uniform Commercial Code
U.K. United Kingdom
UKHL United Kingdom House of Lords
ULIS Convention relating to a Uniform Law on International

Sales
UN United Nations
UNCITRAL United Nations Commission on International Trade Law
UNIDROIT International Institute of Unification of Private Law
U.S./USA United States of America
USD United States Dollar
v. Versus
Vol. Volume
WLR Weekly Law Reports (UK)
YCA Yearbook of Commercial Arbitration

INDEX OF AUTHORITIES
CONVENTIONS:
1. Agreement On Trade-Related Aspects Of Intellectual Property Rights (1995).
2. Convention on the Recognition and Enforcement of Foreign Arbitral Awards (1985).
3. UN Convention on Contracts for the International Sale of Goods (1980).
4. UNIDROIT Principles of International Commercial Contracts (2016).
UN DOCUMENTS:
1. UN Working Group Documents, SETTLEMENT OF COMMERCIAL DISPUTES:
Possible uniform rules on certain issues concerning settlement of commercial disputes,
UN Doc A/CN.9/WG.II/WP.108, 18 (2008).
2. UNCITRAL Digest on Case Law on the United Nation’s Convention on Contracts for
the International Sale of Goods (2016).
3. UNCITRAL Model Law on International Commercial Arbitration (1985).
SIAC DOCUMENTS:
1. Arbitration Rules of Singapore International Arbitration Centre (2016).
2. Highlights of the SIAC Rules 2016.
3. Singapore Arbitration Guide by Gordon Smith (2016).
4. SIAC Practice Note on Arbitrator Conduct in Cases Involving External Funding (PN
– 01/17 (31 March 2017))
5.
ARBITRATION RULES & DOCUMENTS:

1. Secretariat Commentary on Draft Art. 43 [draft counterpart of CISG Art. 47].
2. UNCITRAL Arbitration Rules (2010).
STATUTES:
1. Arbitration Act, 1996 (of England) § 39, Ch. 23 [17 June 1996].
2. The Arbitration and Conciliation Act, 1996

3. International Arbitration Act (IAA)
BOOKS:
1. Gary Born, International Arbitration, Cases and Materials, (1st Indian Reprint, Wolters
Kluwer) (2011).
2. Gary Born, International Arbitration: Law and Practice (1st Ed. Kluwer Law
International) (2012).
3. Gary Born, International Commercial Arbitration (2nd Ed., Kluwer Law International)
(2014).
4. Indira Carr & Peter Stone, International Trade Law, (3rd Ed., Cavendish) (2005).
5. Joseph Chitty & H.G. Beale, Chitty on Contracts, Vol. II, (29th Ed., Sweet & Maxwell)
(2004).
6. Poudret & S. Besson, Comparative Law of International Arbitration (2 Ed. Sweet &
Maxwell) (2007).
7. Sir Kim Lewison, The Interpretation of Contracts, (4th Ed., Sweet & Maxwell) (2007).
CASES AND AWARDS:

1. Dyna-Jet (HC) at [176], citing Albon v Naza Motor Trading Sdn Bhd (No 3)1
2. Dyna-Jet (HC) at [152]–[154]
3. Power Grid Corporation of India Ltd. v. Jyoti Structures Ltd. 246 (2018) DLT 485
4. KS Oils Ltd. v The State Trade Corporation of India Ltd. & Ors. [2018] 146 SCL 588.
5. Atlas Shipping A/S, 404 B.R. 726, 747 (Bankr. S.D.N.Y. 2009), CSL Australia Pty.
Ltd. v. Britannia Bulkers Plc, 2009 WL 2876250 (S.D.N.Y. 2009)
6. Syska v Vivendi Universal SA [2009] EWCA Civ 677,
7. Oilex A. G. v. Mitsui & Co., 669 F. Supp 85 (S.D.N.Y. 1987).
8. in XY International, Inc. v. Societe Z, 1997(2) ASA BULL
9. Dow Chemical v. Isover-Saint-Gobain, ICC case No. 4131, Y.C.A. Vol. IX (1984),
131)
10. S.P.P. (Middle East) Ltd. v. Arab Republic of Egypt, ICSID Case No. ARB/84/3.
11. See CLOUT case No. 136 [Oberlandesgericht Celle, Germany, 24 May 1995].
12. CLOUT Case No. 445, [Bundesgerichtshof (SC), Germany] (31 Oct 2001);
13. CLOUT case No. 230 (Oberlandesgericht Karlsruhe, Germany] (25 June 1997).

14. China Cotton Exporters v. Beharilal Ramcharan Cotton Mills, 1961 SCR (3) 845.
15. Hind Construction contractors v. State of Maharashtra. 1979 AIR 720.
16. Swaram Ramchandram v. Aravacode Chakungal Jayapalan, (2004) 8 SCC 689.
17. CLOUT case No. 277 [Oberlandesgericht Hamburg, Germany, 28 February 1997]
18. Corte di Appello di Milano, Italy, 20 March 1998, Unilex
19. See Matsoukis v. Priestman & Co, 1 K.B. 681 (Eng 1915).
20. CLOUT case No. 214 [Handelsgericht des Kantons Zürich, Switzerland, 5 February
1997].
21. CLOUT Case No. 293 [Hamburg Court of Amical Arbitration, Germany, 29 Dec.
1998],
22. CLOUT case No. 293 [Schiedsgericht der Hamburger freundschaftlichen Arbitrage,
Germany, 29 December 1998]
TREATISES:
1. Alan REDFERN & Martin HUNTER, Redfern and Hunter on International
Arbitration, ¶ 9.39. (5 Ed. OUP Oxford) (2009).
2. Ali YESILIRMAK, Provisional Measures in International Commercial Arbitration
(International Arbitration Law Library Series Set) Pg. 159-236 (Kluwer Law
International) (2005).
3. El-Awa & MARIAM M., Confidentiality in Arbitration: The Case of Egypt (1 Ed.,
Springer) (2016).
4. Fritz ENDERLEIN & Dietrich MASKOW, International Sales Law, United Nations
Convention on Contracts for the International Sale of Goods, 115 (Oceana Publication
2004).
5. Fritz ENDERLIN & Dietrich MASKOW, United Nations Convention on Contracts for
the International Sale of Goods, 320 (Oceana Publication) (1992).
6. J. LEW, Applicable Law in International Commercial Arbitration, 535 (Oceana)
(1978).
7. John O. HONNOLD, Uniform Law for International Sales under the 1980 United
Nations Convention, 345 (3 Ed., Kluwer Law International) (1999).
8. Petar SARCEVIC & Paul VOLKEN, International Sale of Goods: Dubrovnik Lectures,
193 (Oceana Publiaction) (1996).

9. R. BALČIKONIS, Performance of contracts Legal Issues: Fundamental Breach of
Contract, 103 (Vilnius 2004).
8. TALLON, in Bianca-Bonell, Commentary on the International Sales Law, 583
(Giuffrè: Milan) (1987).
9. William W. PARK, Non-Signatories and International Contracts: An Arbitrator’s
Dilemma, Multiple Party Actions in International Arbitration 1-31, 8 (Oxford
University Press, 2009).
LEXICONS:
1. Aiyar P.R., Concise Law Dictionary (5th ed., 2014).
2. Cambridge Dictionary, https://dictionary.cambridge.org/.
3. Garner B.A., Black’s Law Dictionary (9th ed., 2009).
4. The Merriam-Webster Dictionary (2016).

ISSUES RAISED
1. Whether there is a valid agreement in existence between the Parties which refers the
disputes to arbitration under the aegis of SIAC?
2. Whether the insolvency proceedings underway against the Respondent in Yevadu bars
the jurisdiction of this Tribunal?
3. Whether the Claimant is under an obligation to disclose its source of funding for
pursuing these arbitration proceedings and should the Tribunal order security for legal
costs?
4. Whether the Ministry of Power, Government of Yevadu may be joined as a party to

the present arbitral proceedings?
5. Whether the Claimant’s conduct breached the Agreement and whether the Respondent
was justified in terminating the agreement.

STATEMENT OF JURISDICTION
The Tribunal, in the present case, has derived its jurisdiction from Clause 1.0 (Dispute
Resolution Clause) of the Addendum to the agreement entered into by the parties on Janusary
14th 2015 read with SIAC Rules of Arbitration, 2016 (6th Edition) [Rule 10.1 and Rule 9.3].

Exhibit C3: e-Mail from Ryan Wei, APPL to 8th January 2015
Charles Brown, APPL regarding the dispute
resolution clause
Exhibit C4: e-Mail from Charles Brown, 11th January 2015

RNPCL to Ryan Wei, APPL about concerns
regarding the dispute resolution.
Exhibit C2: Addendum to the agreement dated 14th January 2015

14th January 2015, containing the new dispute
resolution clause.
Exhibit C5: e-Mail from Ryan Wei, APPL to 14th January 2015
Charles Brown, RNPCL regarding Addendum
governing the dispute resolution
Exhibit C1: Parts supply agreement between 14th January 2015

Claimant and Respondent.
Exhibit C6: e-Mail from Ryan Wei, APPL to 29th December 2017
Charles Brown, RNPCL regarding Changes to
customer service and remote inspection.

RNPCL to Ryan Wei, APPL regarding Reply
to change in customer service.
Exhibit C8: e-Mail from Ryan Wei, APPL to 5th April 2018
Charles Brown , RNPCL regarding request for
purchase order for quarterly instalment.

Exhibit C9: e-Mail from Charles Brown , 14th June 2018
RNPCL to Ryan Wei, APPL regarding second
quarterly instalment.
Exhibit C10: e-Mail From Ryan Wei, APPL to 5th July 2018
Charles Brown, RNPCL regarding request for
purchase orders for quarterly instalment.
Exhibit C11: e-Mail from Ryan Wei, APPL to 20th August 2018
Charles Brown, RNPCL regarding request for
renegotiation and amendment of the agreement.
Exhibit C12: e-Mail from Charles Brown, 13th September 2018

RNPCL to Ryan Wei, APPL regarding reply to
request for renegotiation and amendment of the
agreement.
Exhibit C13: e-Mail from Charles Brown, 14th September 2018
RNPCL to Ryan Wei, APP: regarding third
Exhibit C14: e-Mail from Ryan Wei, APPL to 27th September 2018
Charles Brown, RNPCL regarding reply to
request for renegotiation, request for a meeting
with senior management.
Exhibit C15: e-Mail from Ryan Wei, APPL to 17th October 2018
Charles Brown, RNPCL regarding re request to
negotiations, meeting with senior management.
Exhibit C16: e-Mail from Ryan Wei, APPL to 11th November 2018
Charles Brown, RNPCL regarding reply to
request for renegotiation, request for proposal
for revision.

Exhibit C17: e-Mail from Charles Brown, 14th December 2018
RNPCL to Ryan Wei, APPL regarding reply to
request for renegotiation, initiating action in
case of non-delivery of 4th instalment.
Exhibit R1: e-Mail from Charles Brown, 17th January 2019
RNPCL to Ryan Wei, APPL regarding
Requisition list 2018, including parts for each
RNPCL to Ryan Wei, APPL regarding notice
of Termination.
Exhibit R3: News Report by Global Arbitration 11th February 2019

news regarding Viability finance limited and
Freshgrounds Lockhardt Bodinger LLP.
Notice of Arbitration to SIAC registrar from 15th February 2019

the claimants.
Notice of Arbitration and Statement of Claim 15th February 2019

by the Claimants.
Exhibit R2: Insolvency and moratorium order 21st February 2019

against the Respondent by the NCLT Special
Bench, Nedista.
Response to Notice of Arbitration from the 27th February 2019

Respondent to the Registrar of SIAC.

Response to Notice of arbitration and 27th February 2019
Statement of Defence from the Respondents.

STATEMENT OF FACTS
PARTIES TO ARBITRATION
• Claimant: Arcebor Power Private Limited [hereinafter referred as the “Claimant”], is
incorporated in Xanier, under the laws of Xanier. It has a distinct legal personality and can
bring actions in its own name. It has its principal office at 17th floor, ICI Tower, Joevilli,
Xanier. The Claimant is a energy leader in Xanier and provides approximately 75% of
power utilities in Xanier. The Claimant has major manufacturing units in Xanier and
sources most of its raw material for Zorastra, a country rich in natural resources.
• Respondent: Renvidora National Power Company Limited [hereinafter referred as the
“Respondents”] is a company that owns and operates thermal power plants in remote areas
of Yevadu and provides electricity in the remote and hilly terrains of Tullyland, Lanniport
and Asshai in Yevadu. It works under the authority and directions of the Ministry of Power
of the Government of Yevadu. It has its principal office at 1403, Sein Avenue, Tridentland,
Yevadu.
FACTUAL BACKGROUND
• In the year 2015, the Claimants entered into a Parts Supply Agreement for the supply of
parts and components of the Frame 15X turbines of Tullyland Power Plant for a period of
15years operated by the Respondents. Obligations of the parties included the supply of
parts by the Claimants in each quarter so as to achieve 85% Plant availability. The parts
made were according to the Requisition List which was prepared by the Respondents along
with the assistance of a designated official from the Claimants who conducted an Annual
Inspection of the Tullyland Power Plant. The Agreement fixed a [Contract Prize] of a sum
of $10 million annually.
• While entering into the Agreement the Claimant raised an objection about the dispute
resolution clause from the Parts Supply Agreement, following to which communications
took place with regards to the dispute resolution clause. Eventually, an addendum was
affixed to the main agreement in regards to the Dispute Resolution after high level
managerial discussions with the Respondents. The agreement and the Addendum were
signed by the Parties of January 14th, 2015.

• Towards the end of 2017, due to a new restructuring policy to improve customer service
and technical support the Claimants notified the Respondents that they would be unable to
send an official for the Annal Inspection, however the Claimant also notified that they
would remotely assist the Respondents in finalising a Requisition List.
• Around the beginning of the new financial year 2018, Xanier, the parent country of the
Claimant alleged that Zorastra that they were indulging in unfair trade practices. Thus, an
intensifying trade war between the 2 countries led to the rise in high tariffs levied on raw
materials imported from Zorastra. Nexus to this gave rise in the working capital of the
Claimants. Eventually, the Claimant requested meeting with the senior management of the
Respondents for the renegotiation of the obligations of the Claimants with regards to the
Agreement. The Respondents refused to renegotiate the terms & conditions of the
Agreement claiming to fulfil the obligations of the Agreement.
• Despite receiving no assistance from the Respondents and incurring huge losses, the
Claimant delivered the parts and components to the Respondents in the 2nd week of
January, 2019 with an additional claim of USD 100,000. The Respondents refused to
acknowledge & accept the delivery on the grounds that the Claimants had failed to perform
their obligation within the stipulated timeline.
• Following to the course of events, the Respondents issued a termination notice of the
Agreement on 20th January, 2019. Aggrieved by the unjustified termination of the
Agreement, the Claimants filed a Notice of Arbitration and Statement of Claim under Rule
3 of the SIAC Rules, 2016.
DISPUTE
• The Respondent has faced substantial detriment due to the conduct of the claimants,
mainly due to late delivery, failure to send an designated official for the annual inspection
of the Tullyland Power Plant for the assistance in creating the requisition list. Despite the
facts that the Respondents has fulfilled ever obligation under the Agreement in time and
good faith and have tried to negotiate with the Claimants; the Claimants conduct led to a
delay and breached the contractual obligation which led the Respondent to serve the notice
of termination and eventually terminate the agreement

• The Respondent object the Jurisdiction of the said Tribunal; the Claimants have invoked
the jurisdiction of the SIAC on the basis of the addendum to the agreement claiming there
exists a valid arbitration agreement between the parties.

SUMMARY OF ARGUMENTS
ISSUE A: Whether there is a valid agreement in existence between the Parties which
refers the disputes to arbitration under the aegis of SIAC?
The arbitration agreement is null and void due to vitiating factors. The agreement
contains a pathological clause and therefore the arbitration cannot move forward.
The clause in the addendum is not clear and certain and therefore not capable of
giving effect.Clause 11.0 of the supply agreement provides adjudication through the
medium of courts. The agreement also provided high level managerial discussions
for adjudication of disputes before referring the dispute to arbitration which was not
dully followed.The general principles of contracts is applicable to international
commercial agreements. Hence there exists no valid arbitration agreement.
ISSUE B: Whether the insolvency proceeding underway against the respondent in

Yevadu bars the jurisdiction of this tribunal?
The Moratorium declared by the NCLT prohibits the initiation of suits or continuation of
proceedings against the corporate debtor including in any court of law, tribunal, arbitration
panel or other authority. The NCLT becomes the sole forum to entertain disputes either
initiated by the corporate debtor or against the corporate debtor. The authority of
Adjudicating authority under insolvency law should be given priority over arbitration.
While the moratorium is in place, the award passed by the arbitral tribunal cannot be
enforced in Yevadu since by the virtue of Section 238 of the code the provisions of the
code will have overriding effect on any other law for the time being in force.

ISSUE C: Whether the Claimant is under an obligation to disclose its source of funding
for pursuing these arbitration proceedings and should the Tribunal order security for
legal costs?
It is submitted to this tribunal that the respondents must be ordered to reveal their
source of funding and be ordered to furnish security for costs. The Respondents have
exhibited a report showing clear indications that a third party may be funding the
Claimants in this present arbitrations. For the sake of equity and justice, and for
making sure that no amount of bias exists in the proceedings, according to the SIAC
practice note on arbitrator conduct involving external funding. Furthermire, according
to established legal principles, the Claimant should provide security for costs.
ISSUE D: Whether the Ministry of Power, Government of Yevadu may be joined as a

party to the present arbitral proceedings?
Ministry not bound by the arbitration agreement. Doctrine of Privity of Contracts prevents
the ministry from being made a party to the present proceeding. Prejudice would be caused
as a result of such joinder. Respondent is not an agent of the ministry as Ministry is not
involved into execution and termination of the supply agreement.The company has a
distinct legal entity separate from its members. Arbitration agreement does not extend to
the ministry as the consent of all the parties are necessary for making any entity a party to
the arbitration proceedings.
ISSUE E: Whether the Claimant’s conduct breached the Agreement and whether the
Respondent was justified in terminating the agreement.
The respondents submit, that conduct of the Claimants caused fundamental, material
breach of the agreement. The Conduct of the Claimants in not providing timely
delivery of the supply parts, not sending an official for annual inspection, and late
delivery in terms of the last delivery led to a fundamental breach on the part of the
Claimants. Under the CISG, the operative clause for fundamental breach provides for
two ingredients, substantial detriment and foreseeability. The Claimants conduct
caused substantial detriment to the Respondents, leading the respondents without
adequate and timely parts for the Tullyland power plant. The Claimants conduct could
have been easily foreseen by any prudent person or organization. The Supply of parts
on the stipulated date in each quarterly made time of the essence in the agreement,
especially considering the nature of the goods the claimants were to supply. The

Respondents were still justified to terminate the contract, according to the procedure
in the agreement, and the CISG, even though a force majeure may have occurred. The
Respondents submit that thus, they were justified in terminating the contract

ARGUMENTS ADVANCED
ISSUE A. Whether There Is A Valid Agreement In Existence Between The Parties Which
Refers The Dispute To Arbitration Under The Aegis Of Siac?
A. Arbitration agreement Null and Void

1. The core of what makes an arbitration agreement “null and void” is clear: where the
arbitration agreement is devoid of legal effect from the beginning through vitiating
factors under the proper law of the arbitration agreement.1
2. Further, a practical impediment does not invalidate the legality of the arbitration
agreement but causes the parties, the court, and the tribunal to be unable to proceed.
For instance, if there is a “pathological” clause which specifies an arbitration
institution that does not exist, and it is clear that the parties designated that specific
institution and did not mean for it to be replaced (such that the principle of effective
interpretation cannot save the clause), then the arbitration cannot move forward2.
3. The parties to the present arbitration executed a party supply agreement and an
addendum to the party supply agreement dated 14/01/2015. Clause 1.0 of the
addendum provided for resolution of disputes which would arise during the course
of business by invoking the jurisdiction of Singapore Arbitration Centre (SAC).
However in the present case, the Claimants have approached the Singapore
International Arbitration Centre. The arbitration agreement does not mention the
name of the institution as Singapore International Arbitration Centre.
4. Claimants have assumed Singapore arbitration centre to be Singapore International

arbitration centre and have wrongfully brought the present action before this
Hon’ble Tribunal on the basis of a pathological clause which suggests referring of
the dispute to an institution named Singapore Arbitration Centre (SAC). Due to the
vitiating factors involved in the present case, the arbitration is not capable of giving
effect.
1
(Dyna-Jet (HC) at [176], citing Albon v Naza Motor Trading Sdn Bhd (No 3)1
2
Dyna-Jet (HC) at [152]–[154]

5. Due to the presence of arbitration agreement containing a pathological clause, there
exists no opportunity to ascertain the real intent of the parties to the contract.
Further, the said addendum does not provide for any other reference which would
result into drawing of a reasonable inference towards referring the said dispute for
arbitration. Thus, an agreement not capable of giving legal effect is bad in law and
therefore the present tribunal is devoid of jurisdiction to try this dispute.
B. Applicability of General Principles of Contracts

1. Further, the rules of substantive validity applicable to International arbitration agreements
are all generally no different from the rules of substantive validity generally applicable to
other types of contracts.3
2. As with issues of contract formation National courts, typically apply generally applicable
rules of fraud mistake duress lack of consideration unconscionability impossibility and
frustration to the substantive validity of international arbitration agreement4.According to
the basic principles of Contract, the terms of a contract should be clear and capable of
giving effect. However, in the present case, the clause is not clear and certain.
Therefore the terms of a contract which are not clear and certain shall not be
enforceable and therefore the agreement entered into between the parties is not legal
and valid.
3. Further, clause 11.0 of the agreement dated 14/01/2015 executed between the
parties to the present arbitration provides for clause governing the resolution of
disputes arising between the parties. The Clause provides jurisdiction to the courts
to try any dispute arising out of the contractual relationship existing between the
parties to the present arbitration proceeding.
4. Since the addendum dated 14/01/2015 is not capable of giving legal effect on the
grounds mentioned hereinabove, the dispute resolution clause provided in the
supply agreement has to be considered thereby referring the dispute to the courts of
Xanier or Yevadu as the case may be.
5. Further, without prejudice to the contentions made hereinabove, the addendum

states that before referring the dispute to arbitration, an attempt to resolve the same
3
1. Gary B. Born, International Commercial Arbitration (Kluwer Law International, 2009) 2008.
4
2. Gary B. Born, International Commercial Arbitration (Kluwer Law International, 2009) 2008.

through the medium of high level managerial discussions should take place.
However, in the present case, high level managerial discussions did not take place.
Therefore non followance of the due process of resolution of dispute as agreed
under the addendum shows that the Claimants have not approached the present
forum with clean hands.
C. Non acceptance of Pathological Clause

1. The Hon’ble Supreme Court of Switzerland rejected a pathological arbitration
clause as not evincing the parties’ intention to arbitrate.
2. Therefore in the present case, the Pathological clause ought to be rejected in the
interest of justice.
3. Therefore a clause which is pathological in nature cannot be given legal effect.

ISSUE B. Whether The Insolvency Proceeding Underway Against The Respondent In
Yevadu Bars The Jurisdiction Of This Tribunal?
1. The issue is answered in affirmative. An insolvency application was filed against the
respondent under section 7 of the Insolvency and Bankruptcy Code, 2016 by a financial
creditor. The honorable National Company Law Tribunal Special Bench, Nedista in its
order dated 21.2.2019 was pleased to declare a moratorium prohibiting the initiation of
suits or continuation of proceedings against the corporate debtor including in any court
of law, tribunal, arbitration panel or other authority.
2. Under section 13(1)(a) of the Code, the adjudicating authority is required to impose a
moratorium for matters referred to in section 14 once the NCLT is convinced of the
existence of debt. In the case at hand the Adjudicating authority is convinced of the debt
and default in repayment of YNR 3,50,00,00,00 to the Financial Creditor. Adhering to
that view, the bench has appointed Mr. Daniel Rotem as the Resolution Professional.
3. Moratorium is initiated with the aim of keeping the corporate debtor’s assets together
during the insolvency resolution process and facilitating orderly completion of the
processes envisaged during the insolvency resolution process. It is also to ensure that the
company may continue as a going concern while the creditors take a view on resolution
of default. It is to ensure a stand-still period 5during which creditors cannot resort to
individual enforcement action which may frustrate the object of the Corporate
Insolvency Resolution Plan.
A. Adjudication Authority under IBC takes precedence over arbitral tribunal

1. Once the moratorium has been initiated, the NCLT becomes the sole forum to entertain
disputes either initiated by the corporate debtor or against the corporate debtor. After
initiation of the corporate insolvency resolution process, all creditors including parties
to the pending arbitration could file their claims before the Resolution Professional
pursuant to the declaration of moratorium and public announcement under s. 13 or 14 of
5
Power Grid Corporation of India Ltd. v. Jyoti Structures Ltd. 246 (2018) DLT 485

the IBC. 6 The authority of Adjudicating authority under insolvency law should be given
priority over arbitration.7
2. Insolvency law is public law that is not subject to the agreement of the parties to such a
dispute unlike the arbitration law which is private law chosen by the parties and when
there is a conflict among both, the public law must stand. The Swiss Supreme Court
while deciding a case relied upon just this sort of analysis. in holding that Elektrim8 had
lost its capacity to arbitrate under Polish law once its insolvency proceeding had been
opened. The Swiss Supreme Court agreed while the Polish insolvency rules did not
operate directly in Switzerland, under Swiss conflicts principles, the law of the
insolvency jurisdiction should control and, thus, the arbitration should be halted as
against the insolvent debtor.
B. Award passed by the arbitration tribunal not enforceable in Yevadu
1. Further, while the moratorium is in place, the award passed by the arbitral tribunal
cannot be enforced in Yevadu. By the virtue of Section 238 , the provisions of the code
will have overriding effect on any other law for the time being in force. So, the Act
that recognizes New York Convention on the recognition and Enforcement of Foreign
Arbitral Awards will be overridden by the moratorium imposed by the code.
2. Furthermore, Article V(1)(a) of the New York convention provides for non
enforcement of foreign award if the parties to the agreement, under the law applicable
to them were under some incapacity.9 The Respondents are under incapacity due to the
insolvency procedure. The entire existence of the company is in question and it is
burdensome to defend the suit as the board of directors is suspended and the
management and affairs of the respondent is vested with the resolution professional.
The resolution Professional cannot act in contravention to the moratorium imposed.
Hence, it is humbly submitted that this honorable arbitral tribunal may dismiss the
arbitration for want of jurisdiction.
6
KS Oils Ltd. v The State Trade Corporation of India Ltd. & Ors. [2018] 146 SCL 588.
7
Atlas Shipping A/S, 404 B.R. 726, 747 (Bankr. S.D.N.Y. 2009), CSL Australia Pty. Ltd. v. Britannia Bulkers
Plc, 2009 WL 2876250 (S.D.N.Y. 2009)
8 Syska v Vivendi Universal SA [2009] EWCA Civ 677,
9
Article V(1)(a), New York Convention on the recognition and Enforcement of Foreign Arbitral Awards

ISSUE C. Whether The Claimant Is Under Obligation For Disclosing Its Funding For Pursuing
These Arbitration Proceedings And Should The Tribunal Order Security For Costs?
1. The “security for costs” order, which conditions the right of a claimant or counter-
claimant to proceed on its claim upon the putting up of a bank guarantee or other
forms of surety to guarantee, in the case of lack of success, aims to cover any
eventual award of legal fees assessed against the claimant or counter-claimant by the
arbitral tribunal.10The theoretical basis of granting such party representation costs in
international arbitration is to view costs as part of damages. 11 Suppose the
Respondent wins, its party representation costs are compensated because they were
incurred to defend against an unjustified attack in the arbitration proceedings. 12
2. At the outset, it is important to take note of a few facts:
• The Respondents is currently undergoing insolvency in its parent country.

• The Respondent’s financial status is a major factor in determining the dispute.
• The Respondent has duly performed all of its obligations in accordance to the
agreement.
• The Respondents has acted in good faith regarding the unacceptable behavior of the
Claimants in relation to their contractual obligations.
3. The Respondents claim that being an insolvent, they cannot afford malicious
proceedings, nor can they accept any amount of bias caused due to a third party to
this dispute.
10
Craig, Park, Paulsson: International Chamber of Commerce Arbitration (3rd edtion), Oceana Publications. Inc.,
1999 / Chapter 26.05, p.467; see also Gred Reid: Security for Costs in international arbitrations — forget it?,
NLJ Arbitration and ADR supplement, September 27 2002, at 1426
11
Briner, Fortier, Berger, Bredow (ed.): Law of International Business and Dispute Settlement in the 21st
Century, Carl Heymanns Verlag KG, 2001, at 339-340
12
Gu, Weixia, Security for Costs in International Commercial Arbitration (2005). Journal of International
Arbitration 22(3): 167–206, 2005.. Available at
SSRN: https://ssrn.com/abstract=3200080 or http://dx.doi.org/10.2139/ssrn.3200080, pg no 1.

4. The Respondents submit to the tribunal that the Claimants be ordered to reveal their source
of funding, and that the tribunal request the Claimants to furnish security for the costs of the
proceeding, inclusive of the proceeding, venue, arbitrator, processing fee, and any other fee
related to this arbitral proceeding.
5. The Respondents request that the tribunal take note of the facts established by Exhibit R3:
• Exhibit R3 clearly states, on paragraph number two, that “We’re entering a new wave
of funding in international arbitration , where capital and legal expertise combine to
help solve legal problems on behalf of clients, including law firms like
Freshgroundswith whom we partner.” It further states in the same paragraph, “We will
ensure that claimants can get justice in some of the biggest international arbitrations
currently handled by freshgrounds.”
• It is a fact that the news except the quotation provided is based on unconfirmed reports.
However, the previously reproduced quotation, is from one of the managing directors
of Viability in a news release, and thus Is available in the public domain.
• The aforementioned news excerpt is dated February 11th, 2019, and the Notice and its
date that was sent by the Claimants to the SIAC, is February 15th, 2019, which is less
than 5 days after the initial news.
• This shows sufficient probability that Viability Finance is funding Freshgrounds
Lockhardt in the present proceedings.
6. The tribunal has the power to order the Claimant to reveal its source of funding, as well as
order security for costs. Rules providing the power for the same have been reproduced here
under:13
Rule 27: Additional Powers of the Tribunal:
• Conduct such enquiries as may appear to the Tribunal to be necessary or expedient;

• Order any party to provide security for legal or other costs in any manner the Tribunal
thinks fit;
• Order any party to provide security for all or part of any amount in dispute in the
arbitration;
7. The Respondents request the tribunal to order the Claimants to reveal their source of funding
on two primary grounds:
• Possibility of Bias if the arbitrator, due to a third party involvement.
13
SIAC Rules 2016

According to the Singapore international arbitration centre practice note pn – 01/17 (31
March 2017) :
‘5.Unless otherwise agreed by the Disputant Parties, the Tribunal shall have the power to
conduct such enquiries as may appear to the Tribunal to be necessary or expedient, which
shall include ordering the disclosure of the existence of any funding relationship with an
External Funder and/or the identity of the External Funder and, where appropriate, details
of the External Funder’s interest in the outcome of the proceedings, and/or whether or not
the External Funder has committed to undertake adverse costs liability.’
‘6.An arbitrator shall immediately disclose to the Disputant Parties, to the other arbitrators
and to the Registrar any circumstances that may give rise to justifiable doubts as to his
impartiality or independence, including any relationship whether direct or indirect, with
an External Funder, that may be discovered or arise during the arbitration proceedings.’
• Possibility of non payment of costs due to the financial condition of the Claimants.
According to well established principles of international commercial law, security

for costs may be ordered on the ground that the claimant himself is in a financially
weaker position. This principle is known also as cautio judicatum solvi14. Under
certain circumstances, according to academic observations,15the security for costs
effectively serves some important goals of arbitration. Security eliminates the
unfairness that arises when changed circumstances or dissimulation leave the
respondent completely unprepared for the claimant’s inability to pay costs awards.
Security for costs is also one of the only remedies for the relatively common
occurrence of third-party financing of claimants, where the respondent is placed in
a “lose-lose” situation, vulnerable to extortionate settlements. 16Most judges and
14
SSRN: https://ssrn.com/abstract=3200080 or http://dx.doi.org/10.2139/ssrn.3200080, Pg no. 3.
15
For a detailed discussion, see e.g. Noah Rubins: In God We Trust, All Others Pay Cash: Security for Costs in
International Commercial Arbitration, (2000) 11 American Review of International Arbitration, at 376
16
SSRN: https://ssrn.com/abstract=3200080 or http://dx.doi.org/10.2139/ssrn.3200080, Pg no. 3.

arbitrators have viewed the financial health of the plaintiff as a major factor to
consider when contemplating security request.17
8. The classical case 18where the security may be granted is the claimant’s impecuniosity or
insolvency. The claimant either has serious cash-flow problem, lack of working capital, or
the claimant is already insolvent or a mere shell.19Evasive or dilatory behavior on the part
of the claimant has sometimes found its way into the evaluation of security for costs
applications. This seems natural, since such comportment indicates that the claimant may
default on a future award.20
9. The Respondents submit that the Claimants be ordered to reveal their source of
funding and be ordered to furnish security for costs, for the entire cost of the
arbitration, inclusive of counsel fees. The Respondents submit that the security be
ordered in any reasonable format, “security” can come in a variety of forms,
including payment into an escrow account, bonds, bank guarantees, liens on property
and so forth.21
ISSUE D.Whether the Ministry of Power Government of Yevadu may be joined as a party
to the present arbitral proceedings?
17
This was the primary concern of the court in Oilex A. G. v. Mitsui & Co., 669 F. Supp 85 (S.D.N.Y. 1987). Other
courts in the U.S. and elsewhere have also seen impecuniousness as the primary justification for security
requirements. The federal court of Canada, likewise, denied security for costs in Frontier International Shipping
Corp. v. Tavros (Case T-1640-99, Federal Court of Canada 1999), holding that “if the party seeking security was
successful, it might, because of the other’s clear precarious financial position, be at risk in being able to collect
costs at the end of the day”.
18
SSRN: https://ssrn.com/abstract=3200080 or http://dx.doi.org/10.2139/ssrn.3200080, Pg no. 31, Point 2, Sub
point a.
19
DAVID ALTARAS: Security for Costs, (2003) 69 J.C.I. Arb. at 86
20
While the ICC tribunal in XY International, Inc. v. Societe Z, 1997(2) ASA BULL. 363, 366 -- rejected the
respondent’s security for costs application, it stated that had there been evidence that the claimant had, as
alleged, effected a merger with another firm for the sole purpose of evading an unfavorable arbitral award,
this would constitute circumstances exceptional enough to warrant security for costs.
21
For details, see Peter Bowsher: Security for Costs, ARBITRATION, February 1997, at 36; see also Singapore
Arbitration Act, Section 31(1)(b)

A. Ministry not bound by the Agreement
1. The Claimant has filed the joinder application under Rule 7.822 of SIAC Rules which
provides for joinder of an additional party as Claimant or Respondent after the
constitution of the Tribunal if any of the two conditions laid down in the rule is
satisfied:
• the additional party to be joined is prima facie bound by the arbitration agreement;
or
• all parties, including the additional party to be joined, have consented to the joinder
of the additional party.
2. Since the Respondent does not consent to the joinder of Ministry of Power
Government of Yevadu, the Respondent has relied on the first condition of the Rule.
However, the issue of whether a non-signatory to an arbitration agreement is bound by
the same also relates to questions of consent. 23 As per the condition, prima facie
bindingness has to be proved. Black’s defines prima facie as, “On the
first appearance; on the face of it; so far as can be judged from the first disclosure, but
subject to further evidence.”24 In the present case, the Ministry of Power Government
of Yevadu is not prima facie bound by the arbitration agreement entered into b/w the
Claimant and the Respondent. The Supply Agreement was signed by both the parties
and any reference to the Ministry of Power Government of Yevadu was not made.
Even in the various mails exchanged, it was never mentioned that the Ministry of
Power Government of Yevadu is also bound by the contract or any of its clauses.
3. The ‘Doctrine of Privity of Contract’ is a general rule of law of contract. According to
the doctrine, only the parties to a contract are bound by it. A third person cannot be
entitled to demand the performance of an obligation under a contract even though he
has a direct interest in such performance. The doctrine is very useful for only the parties
to a contract are held answerable to each other and not to a third person.25 Privity of
contract involves two ideas. First, only a party to a contract can have any burdens from
the contract enforced on them. Second, only a party to a contract can enforce the
contract. A third party cannot sue to enforce it, even if the contract was intentionally
22
R. 7.8, SIAC Rules.
23
Gordon Smith, Singapore Arbitration Guide, 41 (July 2016), at
http://www.gordonsmithlegal.com.au/resources/Singapore%20Arbitration%20Guide%20(05072016).pdf.
24
Pg. 1310, Black’s.
25
Ratnakar Lal Singh, The Doctrine of Privity of Contract under the Indian Law, Chapter VIII 265-298, 265
(1992) at http://shodhganga.inflibnet.ac.in/bitstream/10603/132477/15/15_conclusion.pdf.

made for their benefit. The first aspect of the rule of privity is generally accepted as
good law.26
4. Further, It is also contended that the Respondent is not an agency of the Ministry of
Power Government. It is a company properly incorporated in accordance with the laws
of Yevadu. Hence, it has a separate legal entity which is distinct from the identity of
the Ministry of Power Government of Yevadu which is just the shareholder of the
company.
5. Hence, in such scenario, lack of financial capacity to fulfil the Claimant’s claim is no
excuse to join the Ministry. Reliance is placed on a case27 where considerations such
as mutual benefits derived from affiliation were rejected as insufficient to bind a non-
signatory to an arbitration agreement signed by an affiliate, on the basis of agency
principles.
B. Arbitration agreement does not extend to the ministry:
1. It is submitted that the arbitration agreement does not extend to the Ministry of Power
Government of Yevadu as it was never intended by the parties. The intention of the
parties and the non-signatory state or states to be bound by the arbitration agreement
must be established before the non-signatory state can be required to arbitrate. 28
Arbitration, as a method of alternative dispute resolution, rests on mutual consent and
party autonomy; hence, joining Ministry of Power Government of Yevadu would
negate the principle of party autonomy thereby destroying the very spirit of arbitration.
C. Prejudice to the Claimant:

1. The decision to join a non-signatory rests on more than one factor, bringing to mind
the Continental expression un faisceau d’indices—“a bundle of criteria.” 29 With
respect to an application to the tribunal for joinder under Rule 7.8 of SIAC Rules, 2016,
one of the ‘relevant circumstances of the case’ a tribunal will take into account is the
status of the existing arbitration proceedings, and any delay or inefficiency which could
arise relating to the conduct of the existing arbitration proceedings arising from the
joinder of an additional party.30 Including a non-signatory have some disadvantages
26
Report: Privity of Contract and Third Party Rights, Law Reform Commission 1-110, 5, at
https://www.lawreform.ie/_fileupload/Reports/Report%20Privity.pdf
27
Thomson-CSF, S.A. v. American Arbitration Association, 64 F.3d 773 (2nd Cir. 1995).
28
Joining non-signatory to an arbitration, Thomson Reuters (Practical Law), Art. 6-275-4952 (2014).
29
William W. Park, Non-Signatories and International Contracts: An Arbitrator’s Dilemma, Multiple Party
Actions in International Arbitration 1-31, 8 (Oxford University Press, 2009).
30
Pg 40, Supra note 22, at 5.

too. The issues of time-consuming and expensive proceedings arise in joinder
applications. Further, some of the parties involved could be concerned about giving
away confidential information to third parties through the consolidated proceedings.31
2. The Respondent submits that joining of Ministry of Power Government of Yevadu
would cause unnecessary prejudice to it. The proceedings would become more
expensive and time consuming.
3. Therefore, in light of above submissions, the Ministry of Power Government of
Yevadu should not be joined as a party to the arbitral proceedings.
4. The Respondent relies on the decision of the tribunal in The Dow Chemical case32
wherein it was observed that a third party non-signatory to the contract containing the
arbitration clause can be obliged to submit to arbitration proceedings if the common
intentions of the signing parties demand for such interpretation and if the non-signatory
company has effectively and individually participated in the conclusion, performance
and termination of the respective contract and hence, appeared as an actual party both
to the contract and arbitration. In the case in hand, neither was there any such mutual
intention nor was there any such participation. Hence, the arbitral clause does not
extend to the non-signatory Ministry.
5. In another case,33 when a minister of State of Egypt signed the contract entered into
b/w a company and a state-owned entity as ‘approved, agreed and ratified’; the award
held that these words did not imply the Egyptian government’s intention to be bound
by the arbitration agreement. Hence, mere signing of the contract does not manifest the
intention to be bound by it. It has to be established by the conduct and behaviour of the
parties and other circumstances of the case.
31
WHEN ARE NON-SIGNATORIES BOUND BY THE ARBITRATION AGREEMENT IN
INTERNATIONAL COMMERCIAL ARBITRATION? 1-97, 19,
http://repositorio.uchile.cl/bitstream/handle/2250/112891/de-rodler_i.pdf;sequence=1.
32
Dow Chemical v. Isover-Saint-Gobain, ICC case No. 4131, Y.C.A. Vol. IX (1984), 131) [9 Int’l Comm. Arb.
131 (1982).]
33
S.P.P. (Middle East) Ltd. v. Arab Republic of Egypt, ICSID Case No. ARB/84/3.

ISSUE E. Whether The Claimant's Conduct Breached The Agreement And Whether The
Respondent Was Justified In Terminating The Agreement?
Yes, the Claimant's conduct breached the Agreement and the Respondent was justified in
terminating the same.
A. Contractual Obligations of the parties:
1. A contract is an amalgamation of rights and obligations between parties. In the present

case, the owner (RNPCL) has selected the contractor (APPL) for supplying the parts
and components required for the Tullyland Power Plant and desired to engage in
services of the contractor in accordance with the terms and conditions specified in the
contract. Though the Respondent thrived to abide by the same, the Claimant's breach
resulted into termination of the Agreement. It is manifest that both the parties had the
identical motive, and the same has to be done by making ‘reasonable compromises
whenever absolutely necessary.’
B. Fundamental breach of contract by the Claimant:
1. UN Convention on International Sale of Goods (hereinafter as "CISG") defines the

term ‘Fundamental Breach' under Article 25. A fundamental breach as defined is a
prerequisite for certain remedies under the Convention, including a party's right to
avoid the contract under Article 49 (1) (a).34A fundamental breach requires, first, that
one party has committed a breach of contract. Breach of any obligation under the
contract can suffice—provided the other requirements for a fundamental breach are
present—irrespective of whether the duty was specifically contracted for between the
parties or if, instead, it followed from the provisions of the Convention. 35Even the
breach of a collateral duty can give rise to a fundamental breach.36
2. On the other hand a final and unjustified announcement of the intention not to fulfil
one’s own contractual obligations has been found to constitute a fundamental
34
UNCITRAL Digest on Case Law on the United Nations Convention on Contracts for the
International Sale of
Goods, 114(Ed. 2016)
35
Point 2, Page No. 114, UNCITRAL Digest on CISG, 2016
36
Point 2, Page No. 114, UNCITRAL Digest on CISG, 2016

breach. 37 In such cases, the existence of a fundamental breach depends on the
circumstances of the case as well as on whether the breach resulted in the aggrieved
party losing the main benefit of, and its interest in, the contract.
3. Art. 25 states, ‘A breach of contract committed by one of the parties is fundamental if

it results in such detriment to the other party as substantially to deprive him of what
he is entitled to expect under the contract, unless the party in breach did not foresee
and a reasonable person of the same kind in the same circumstances would not have
foreseen such a result.’38
4. On perusal of Article 25, two ingredients are derived, namely: Substantial detriment,
and Foreseeability, which are dealt separately as follows:
• Substantial Detriment:
a. The scholars appear to agree that the term ‘detriment’ should be construed very
widely and does not mean that the buyer must have suffered a damage or loss
because of the breach39. The important element is whether the buyer was deprived
of what he was entitled to expect 40 . Under the CISG, the basic criterion for
fundamental breach is that ‘it results in substantial detriment to the injured party'.41
b. As per Dictionary connotations, ‘substantial’ means 'actual or real; of importance

value’ 42while ‘detriment' means 'any loss or harm suffered in person or property.’43
37
See CLOUT case No. 136 [Oberlandesgericht Celle, Germany, 24 May 1995].
38
UN Convention on Contracts for the International Sale of Goods (2010). Art. 25 at
https://www.uncitral.org/pdfenglish/texts/sales/cise/V1056997-CISG-e-book. pdf. ("CISG")
39
Mette Bygum, Extension and Limitation of the Buyer's Right to avoid the Contract under
the CISG (2010), at
3|2.2.1., at http://law.au.dk/fileadmin site files/filer_jura
dokumenter/forskning/rettid/2010/afh21-2010.pdf
40
Ibid.
41
Commentary on the Draft Convention on Contracts for the International Sale of Goods,
prepared by the
UNCITRAL Secretariat (Doc. A/CONF. 97/5), Official Records, 26.
42
Aiyar P.R., Concise Law Dictionary. 1220 (5th Ed. 2014)
43
Pg. 515, Black
However, the term ‘detriment' should be autonomously interpreted in the light of
the Convention's legislative history, and its intended purpose44 Article 25 refers to
the importance of the interests which the contract creates for the promisee 45.
c. To determine the degree of a given detriment, it is tied to the terms of the contract.46
Where the parties have expressly or implicitly agreed that in the case of a breach by
one party the other party may terminate the contract, strict compliance with the
contract is essential and any deviation from the obligation is to be regarded as a
fundamental breach47. In this case, Clause 9.0 (Termination) of the Parts-Supply
Agreement expressly provided that a party reserves the right to terminate the
agreement in the case of material breach of the agreement by the other party, subject
to serving a termination notice 15 Days prior to such termination.
d. In the present case, the Respondent was entitled to expect delivery of the supply
parts. Since Xainer imposed high tariffs on raw material sourced from Zorastra,
there was an increase in the working capital. However, the delivery was not made
even after such extensions, thereby constituting substantial detriment as per Art. 25.
The breach must therefore essentially depreciate the aggrieved party's justified
contractual expectations 48 . The Respondent's justified expectations under the
Agreement i.e. it had to be delivered in December which were not met by the
Claimant.
e. Further, whether damages caused by a delay in delivery amount to a breach, depends

upon the terms in the contract concerning the time of delivery. The late delivery of
goods with a quoted market price is normally considered a fundamental breach."
This criterion is satisfied in the present case and hence, there is fundamental
breach.49
44
M. WILL, Bianca-Bonell, Commentary on the International Sales Law, 211 (Giuffre:
Milan 1987).
45
Peter SCHLECHTRIEM, Commentary on the UN Convention on the International Sale of
Goods (CISG), 177 (Clarendon Press, Oxford 1998).
46
Pg. 215, Supra note 93.
47
Robert KOCH, Review of the Convention on Contracts for the International Sale of Goods
(CISG) 1998,215 (Kluwer Law International) (1999). ["Robert KOCH"]
48
Supra note 86, at 18.
49
Peter SCHLECHTRIEM, Uniform Sales Law - The UN-Convention on Contracts for the
International Sale of Goods, 59 (Manz:Vienna) (1986).
• Foreseeability:
a. Article 25 requires that the violating party must have foreseen the result of the breach.
Acc. to scholars, the foreseeability test serves only to exempt the party in breach, and
cannot contribute to qualifying breach as fundamental 50 ; substantial detriment and
contractual expectation remain the key elements for proving fundamental breach51.
b. Graffi observes that when goods must be delivered within a fixed term, indicated by
the buyer as essential; then there is a little room for proving the result of breach as
unforeseeable.52
c. Presumption as to foreseeability: Most authors conclude that there is a presumption that

the party in breach foresaw the far-reaching consequences of the breach for the other
party.53Where the parties stipulated that performance should be effected at an exact
time, the seller cannot argue in defence that he was unaware of the fact that his failure
to deliver on time would result in substantial detriment to the buyer.54
d. Time for foreseeability: Art. 25 does not mention at which time the consequences of
the breach must have been foreseeable. While some authors55 argue that the importance
of an obligation must be determined only in light of the circumstances known at the
conclusion of the contract, other authors 56 deem equally important any subsequent
information that may indicate the parties’ interest in receiving performance. The latter
view is preferable under the general principle of good faith which according to a case57
50
See Babiak, Defining "Fundamental Breach" Under the United Nations Convention on
Contracts for the International Sale of Goods, 118, Temp. Int'l. & Comp. LJ., (1992).
51
Leonardo GRAFFI, Case Law on the Concept of "Fundamental Breach" in the Vienna
Sales Convention, 3 Int'l Business L. J., 339 (2003).
52
Ibid.
53
Pg. 227, Robert KOCH; Enderlein & Maskow, International Sales Law. United Nations
Convention on Contracts for the International Sale of Goods, Art. 21 at 4.1 (Oceana) (1992),
M. WILL, Bianca-Bonell, "Commentary on the International Sales Law. Art. 25 at 2.2.2
(Giuffre: Milan 1987).
54
Pg. 229, Robin KOCH.
55
SCHLECHTRIEM. Commentary on the UN Convention on the International Sale of
Goods (CISG), 178 (Schlechtriem Ed., Munich), (1998); Neumayer MING, Convention de
Vienne sur le contrats de vente internationale de marchandises, 218 (Paris) (1993).
56
HONNOLD, Uniform Law for International Sales, 183 (3rd Ed., The Hague) (1999);
Flechtner, Remedies Under the New International Sales Convention: The Perspective from
Article 2 of the U.C.C., J L & Comm, 53 (1988)
57
Machinery Case, CLOUT Case No. 445, [Bundesgerichtshof (SC), Germany] (31 Oct
2001); CLOUT case No. 230 (Oberlandesgericht Karlsruhe, Germany] (25 June 1997).
underlies the Convention, at cast to the extent that the party in breach was aware of that
subsequent information. Any foreseeability of a substantial detriment before the time
of breach but after the time of conclusion is to be taken into consideration58.
e. The present case, the tariff hike maybe not be foreseeable at the time of conclusion of
contract but there must be a time when it was reasonably foreseeable by the Claimant
that detriment would be caused to the Respondent. For example, it would’ve been in
public domain i.e. Xanier has alleged Zorastra of indulging in unfair trade practices and
imposing high tariffs; that would be reasonably foreseeable by the parties59. Hence, if
the Claimant had been diligent, he could have foreseen the rainfall since his
performance was dependent on solar radiation. Secondly, the detriment was foreseeable
by the Claimant on the date of last extension given by the Respondent.
f. Foreseeability by reasonable person: Article 25 further requires that such substantial

detriment should also be foreseeable by a reasonable person. In this case, a reasonable
person, placed in the same market conditions, would have foreseen the detriment.
C. Time is essence of the Agreement:
1. Time is ordinarily of essence in commercial contracts60. The SC of India has observed

that the question whether or not time was of essence would essentially be a question
of the intention of the parties to be gathered from the terms of the contract61. In another
case, it was held that parties may make time as essence either expressly in terms which
unmistakably provide that they intended to do so. Alternatively, making of time as the
essence of a contract may be inferred from the nature of the contract, the property or
the surrounding circumstances. 62 . 63 The time for performance is of essential
importance when it is so contracted. 64 Furthermore, when the circumstances are so
58
Ignacio Corbera Dale, Fundamental Breach of Contract under the CISG, 13 (UIA 29 June
2013).
59
Comments and Notes on PECL Art. 8:108, C(ii), at http://www.cise law.pace.edu/cise
test/peclcomp79.html.
60
China Cotton Exporters v. Beharilal Ramcharan Cotton Mills, 1961 SCR (3) 845.
61
Hind Construction contractors v. State of Maharashtra. 1979 AIR 720.
62
Swaram Ramchandram v. Aravacode Chakungal Jayapalan, (2004) 8 SCC 689.
63
64
CLOUT case No. 277 [Oberlandesgericht Hamburg, Germany, 28 February 1997]

evident, that a delay In delivery may cause detriment to a party, delay In delivery can
constitute a fundamental breach.65
2. In this case, time was of essence since the beginning as the delivery date was specified
at the time of execution of contract and hence, non-delivery justifies the termination of
the Agreement. It has been observed that be it through a contractual clause to that effect
or determined according to the circumstances, late delivery usually constitutes a
fundamental breach where the parties decided that the delivery must be made at a
specific date. In that case, the date for delivery would be of essence.66
D. Force Majeure does not prevent termination of contract:
1. 7. Art. 79 67 CISG provides for exemptions and Art. 7.1.7 68 of the UNIDROIT
Principles provides for Force Majeure.The Preamble of the UNIDROIT states that it
may be relied upon when two parties agree to be dealt with by any international uniform
law instruments.69The UNIDROIT principles are known in law, to help and supplement
CISG and other uniform law instruments.
2. Force Majeure is a French term and stands for ‘higher force’ and includes unavoidable
events such as natural disasters of all kinds, storms, earthquakes, etc. 70 " However,
according to a judgment, the words force majeure would not cover bad weather, football
matches, or a funeral71l. Irrespective of the same, the Respondent granted consecutive
65
Corte di Appello di Milano, Italy, 20 March 1998, Unilex
66
Chengwei Liu, The Concept of Fundamental Breach: Perspectives from the CISG,
UNIDROIT Principles
and PECL and case law, (2 Ed, 2005) at
https://cisew3.law.pace.edu/cisg/biblio/lius8.html#ccii.
67
Art. 79, CISG
68
UNIDROIT Principles of International Commercial Contracts, 2016, Art. 7.1.7.
69
Preamble of the UNIDROIT principles.
70
Comparison of commonly used Hardship and Force Majeure Clauses, Newsletter No. 119
(EN) 3, Lorenz & Partners (May 2017).
71
See Matsoukis v. Priestman & Co, 1 K.B. 681 (Eng 1915).
extensions to the Claimant in good faith. However, the rain had ceased in March72 yet
the Seller could not perform the Agreement even by August 15, 2018.
3. Art. 79 (5) restrains the effects of the exemption to one remedy alone, i.e., damages
and reserves to the party who did not receive the agreed performance all of its remedies.
These remedies include right to avoid contract under Art. 49. Furthermore, Clause (4)
of Art. 7.1.7 of UNIDROIT Principles explicitly states, "Nothing in this article prevents
a party from exercising a right to terminate the contract...”73 Therefore, presence of
unforeseeable impediments does not prevent the right of termination of the agreement.
Furthermore, The right of the aggrieved party to terminate the contract is, however, not
excluded or in any way restricted if the breach of contract giving rise to the right of
avoidance is excused because an unforeseeable and unavoidable impediment hindered
the breaching party to perform the contract (Article 79(5)). Irrespective of the excuse,
the non-performance or incorrect performance remains a breach of contract which
permits avoidance if it is fundamental. 74
E. Avoidance of whole contract justified:
1. 13. Art. 51(2) CISG states, "The buyer may declare the contract avoided in its entirety
only if the failure to make delivery completely or in conformity with the contract
amounts to a fundamental breach of the contract." In this case, The Agreement was a
long term one and an additional time provided to the Claimant was clearly for delivery
of the supply parts and not for the delivery of the suppy parts with an additional cost
of $100,000 . Hence, non-delivery by the Seller according to the terms of the contract
justifies avoidance of the entire contract since they were to be used before the end of
the 4th quarter and also, taking delivery would’ve led to the payment of the excessive
$100,000 which according to the agreement the Respondent is not entitled to.The mere
failure of one instalment can also cause a fundamental breach of the agreement. 75It is,
72
Case Record, Procedural Order No. 2.
73
Supra note 115, at 22
74
In the same sense see HONNOLD, supra note 5, ¶ 308; Markus Müller-Chen, in COMMENTARY
ON THE UN CONVENTION ON THE INTERNATIONAL SALE OF GOODS (CISG) art. 49 ¶ 4 (Peter Schlechtriem
&IngeborgSchwenzereds.,2ded.2005);AntonK.Schnyder&RalfMichaelStraub,inKOMMENTAR ZUM UN-
KAUFRECHT art. 49 ¶ 15 (Heinrich Honsell ed., 1997).
75
CLOUT case No. 214 [Handelsgericht des Kantons Zürich, Switzerland, 5 February 1997].

thus a fundamental breach if the seller requests, as condition for delivery, that the buyer
first fulfills further conditions—pre-payments or the like—which had not been agreed
upon in the original contract.76Conditioning delivery on new demands beyond those
agreed upon is an anticipatory repudiation of the contract.77
2. 15-days prior notice duly served: Clause XIV of the Agreement states, "The Parties
reserve the right to terminate this Agreement, upon serving a notice at least 15 days
prior to such termination, ..."As per the clause, notice has to be of 'at least 15 days but
no maximum limit has been imposed. In this case, the notice was served on January
20, 2019 which expressly stated that the Respondent would terminate the contract if
the deadline is not met. After the completion of the additional period, the Respondent
became entitled to avoid the contract but not obligatory to it. Hence, the contractual
obligation was duly fulfilled.
3. Therefore, in the light of above contentions, it is submitted that the Claimant

committed breach of the Agreement and the Respondent was, thus, justified in
terminating it.
76
CLOUT Case No. 293 [Hamburg Court of Amical Arbitration, Germany, 29 Dec. 1998],
77
CLOUT case No. 293 [Schiedsgericht der Hamburger freundschaftlichen Arbitrage, Germany, 29 December
1998]

PRAYER
In light of the above stated submissions, Respondent respectfully requests the Tribunal to
FIND and DECLARE that –
1. There does not exist a valid agreement in existence between the parties which refer the
disputes to arbitration under the aegis of SIAC.
2. The insolvency proceedings underway against the respondent do bar the jurisdiction of
the tribunal to hear the matter.
3. The Claimant is under an obligation to disclose its source of funding and the tribunal
shall order security for costs.
4. That the Ministry of Power , Government of Yevadu may not be joined as a party to the
present arbitral proceedings.
5. The Claimant’s conduct did breach the agreement and the respondent was justified in
terminating it.
And ORDER the Claimant–

1. Furnish security for legal costs for defending the arbitration by the
respondent.
2. Dismiss the Claimant’s request for liquidated damages.
All of which is most humbly prayed and submitted by the Counsels for RESPONDENT.

TC 6R

Uploaded by

Document Information

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

TC 6R

Uploaded by

Copyright:

Available Formats

Team Code: TC-6R

THE 5th NLIU-JUSTICE R.K.TANKHA MEMORIAL INTERNATIONAL MOOT

THE ARBITRAL TRIBUNAL

ARCEBOR POWER PRIVATE LIMITED

RENVIDORA NATIONL POWER COMPANY LIMITED

THE SUPPLY AGREEMENT/CONTRACT AND ADDENDUM BETWEEN SOLAR

—MEMORIAL FOR RESPONDENT—

MEMORIAL FOR RESPONDENT 1

LIST OF DATES AND EVENTS…………………………………………………………12

PLEADINGS AND AUTHORITIES.......................................................................................22

MEMORIAL FOR RESPONDENT 2

r/w Read with

AAA American Arbitration Association

AIR All India Reporter

ASA Swiss Arbitration Association

CISG United Nations Convention on the Contracts for

CISG-AC Opinion CISG Advisory Council Opinion

CMNRE Central Ministry of New and Renewable Energy of the

Eg. Exemplum gratia (for example)

EWCA England and Wales Court of Appeal

EWHC England and Wales High Court

HCA High Court of Australia

MEMORIAL FOR RESPONDENT 3

ICABML International Conference on Advances in Business,

ICC International Chamber of Commerce

ICLG International Comparative Legal Guides

ICSID International Centre for Settlement of Investment

i.e. Id est (that is)

L.J. Law Journal

LCIA London Court of International Arbitration

MSPP Micro Solar Power Plants

PECL Principles of European Contract Law

Q.B. Queen’s Bench

RREL Raconian Renewable Energy Limited

SACLJ Singapore Academy of Law Journal

SCC Supreme Court Cases

SCR Supreme Court Reporter

SCT Service Case Today

MEMORIAL FOR RESPONDENT 4

SIAC Singapore International Arbitration Centre

SIAC Rules Arbitration Rules of the Singapore International

SSPL Solar System Private Limited

TRIPS Agreement On Trade-Related Aspects Of Intellectual

UCC Uniform Commercial Code

U.K. United Kingdom

UKHL United Kingdom House of Lords

ULIS Convention relating to a Uniform Law on International

UNCITRAL United Nations Commission on International Trade Law

UNIDROIT International Institute of Unification of Private Law

U.S./USA United States of America

USD United States Dollar

WLR Weekly Law Reports (UK)

YCA Yearbook of Commercial Arbitration

MEMORIAL FOR RESPONDENT 5

ARBITRATION RULES & DOCUMENTS:

MEMORIAL FOR RESPONDENT 6

CASES AND AWARDS:

MEMORIAL FOR RESPONDENT 7

MEMORIAL FOR RESPONDENT 8

MEMORIAL FOR RESPONDENT 9

4. Whether the Ministry of Power, Government of Yevadu may be joined as a party to

MEMORIAL FOR RESPONDENT 10

MEMORIAL FOR RESPONDENT 11