Myriad R

TEAM CODE: TEAM MYRIAD
XV NATIONAL LAW SCHOOL TRILEGAL

INTERNATIONAL ARBITRATION MOOT,
2022
BEFORE THE ARBITRAL TRIBUNAL
IN THE MATTER OF
CLEAN HARSTARD LIMITED CLAIMANT
v.
CLEAN-UP FISRT PRIVATE LIMITED RESPONDENT
MEMORANDUM FOR RESPONDENT

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TABLE OF CONTENTS
TABLE OF CONTENTS........................................................................................................II
TABLE OF ABBREVIATIONS...........................................................................................IV
INDEX OF AUTHORITIES...............................................................................................VII
STATEMENT OF JURISDICTION..................................................................................XII
STATEMENT OF FACTS................................................................................................XIII
ISSUES RAISED...............................................................................................................XVII
SUMMARY OF ARGUMENTS....................................................................................XVIII
ARGUMENTS ADVANCED..................................................................................................1
I. THE TRIBUNAL SHOULD NOT EXERCISE JURISDICTION SINCE THE PRE-

ARBITRAL DISPUTE ESCALATION PROCESS IS NOT SATISFIED.........................1
A. THE PRE-ARBITRAL DISPUTE ESCALATION PROCESS IS MANDATORY................................... 1
i. Pre-arbitral dispute resolution process is mandatory under Asgardian law.......................1
ii. Mandatory under the Singapore Law..................................................................................2
B. THE COMMUNICATION BETWEEN THE CONTRACTOR AND THE EMPLOYER BETWEEN 23
MARCH, 2020 TO 24 APRIL, 2020 DID NOT SERVE TO SATISFY THE PRE -ARBITRAL DISPUTE
ESCALATION PROCESS........................................................................................................................................... 3
i. The correspondences do not fulfil the requirement for friendly discussions........................3

ii. In arguendo, even if Clause 25.1 is satisfied, the parties did not refer to mediation in
accordance with Clause 25.2......................................................................................................5
C. THE ARBITRAL TRIBUNAL DOES NOT HAVE THE REQUISITE JURISDICTION............................. 6
II. THE DISPUTE BETWEEN THE PARTIES MUST BE RESOLVED IN A

HEARING CONVENED REMOTELY................................................................................7
MEMORANDUM FOR
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A. THE ARBITRATION AGREEMENT BETWEEN THE PARTIES DOES NOT PROVIDE FOR A
REMOTE HEARING................................................................................................................................................... 7
B. REMOTE HEARINGS IMPEDE THE EFFICIENT CROSS-EXAMINATION OF EXPERTS AND
WITNESSES................................................................................................................................................................. 7
C. REMOTE HEARINGS MAY RENDER THE ARBITRAL AWARD
UNENFORCEABLE................................................................................................................9
i. Parties have a right to a physical hearing..........................................................................10
ii. Parties have a right to heard.............................................................................................10
III. SPECIFIC PERFORMANCE OF THE OUTSTANDING REFURBISHMENT
PHASE SHOULD NOT BE GRANTED..............................................................................12
A. NO BREACH OF CONTRACT BECAUSE TIME IS NOT OF THE ESSENCE.................................... 12
i. Time is not of essence unless specified...............................................................................12
ii. The Employer agreed for the extension of time to fulfill the contractual obligations.......13
B. FORCE MAJEURE CLAUSE WILL BE INVOKED IN THE PRESENT SITUATION.........................14
i. The government itself considered COVID 19 as a Force Majeure event...........................14
ii. The COVID 19 Pandemic is an unusual and unexpected event.........................................16
iii. Pandemic is a force majeure event...................................................................................16
C. SPECIFIC PERFORMANCE OF THE CONTRACT SHOULD NOT BE GRANTED............................17
i. Non-performance should be excused since the events occurred were unanticipated.........17
ii. Imposition of specific performance would be dangerous for the lives of the workers......18
IV. THE CLAIMANT IS NOT ENTITLED TO LIQUIDATED DAMAGES UNDER
SECTION 74 OF ICA FOR DELAY IN DESIGN AND PROCUREMENT PHASE.....19
A. THERE WAS NO BREACH OF CONTRACT............................................................................................. 19
i. Time is not of the essence...................................................................................................19
ii. The first delay is attributable to the CLAIMANT................................................................................... 19
iii. Protests are an excusable delay........................................................................................20
B. THE DAMAGES WILL BE WAIVED OFF BECAUSE THE DELAY WAS ATTRIBUTABLE TO THE
EMPLOYER............................................................................................................................................................... 22
C. THERE IS NO EVIDENCE OF LOSS OR DAMAGES.............................................................................. 22
D. DUTY TO MITIGATE LOSSES IS INDISPENSABLE.............................................................................. 23
PRAYER.................................................................................................................................25
MEMORANDUM FOR
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TABLE OF ABBREVIATIONS
ABBREVIATION EXPANSION
% Percentage
& And
¶ Paragraph
AIR All India Reports
AIR All India Law Report
All ER (Comm) All English Law Reports (Commercial)
Arb Arbitration
Art. Article
CLAIMANT Clean Harstrad Limited
CLC Civil Law Cases
CLUNET Journal du droit international (Journal of

International Law)
E.C.R. European Court Reports
ECR European Court Law Report
Edn. Edition
EDNY United States District Court for the Eastern

District of New York Law report
Et al. et alia (and others)
EWHC The High Court of Justice in London
EWHC High Court of England and Wales
F. 2d Federal Reporter, Second Series
F. 3d Federal Reporter, Third Series
MEMORANDUM FOR
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F. Supp, F Supp. 2d West‟s Federal Supplement
HKC Hong Kong Law report
Hon‟ble Honourable
i.e. That is
IBA International Bar Association Rules on the

Taking of Evidence in International
Commercial Arbitration
ICC International Chamber of Commerce
ICCA The International Council for

ICSID International Centre for Settlement of

Investment Disputes
Inc Incorporation
Int‟l International
LIX Belgrade Law Review
Lloyd's Rep Lloyd's Law Report
Ltd. Limited
NY Convention Convention on the Recognition and

Enforcement of Foreign Arbitral Awards,
1958
Ors. Others
PCA Permanent Court of Arbitration Reports
PICC The Principles of International

Commercial Contracts 2016
Pvt. Private
QMUL Queen Mary University of London
RESPONDENT Clean-up First Private Limited
MEMORANDUM FOR
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Rev. Arb Revue de l‟Arbitrage (Arbitration Review)
SCC Supreme Court Cases
SCC OnLine Supreme Court Cases Online
SGHC Singapore High Court
SGHCR Singapore High Court Registrar
SIAC Singapore International Arbitration Centre
SIAC Rules Singapore International Arbitration Centre

Rules, 2016
SLR Singapore Law Report
Tribunal The Arbitral Tribunal
U. S. Dist. Lexis LexisNexis database for U.S. District

Court cases
UKHL United Kingdom House of Lords (UK

parliament)
US United States
v. versus
Vol Volume
WL West Law Report
WLR Weekly Law Reports
YICCA Yearbook of the International Council for

MEMORANDUM FOR
-INDEX OF PAGE VII
INDEX OF AUTHORITIES
LEGISLATIONS
NewYork Convention 1985.......................................................................................................9

Indian Contract Act 1872.........................................................................................................22
Singapore International Arbitration Act 1994............................................................................9
RULES
Jakob Sørensen, FIDIC Red Book: A Companion to the 2017 Construction Contract (ICE
Publishing 2019) cl. 8.5.......................................................................................................14
Singapore International Arbitration Center 2016.....................................................................11
Singapore International Arbitration Centre Rules, 2016..........................................................10
Singapore International Arbitration Rules, (6th edn., 2016).......................................................6
INDIAN CASES
B.B. Patel and Others (S) v Dlf Universal Ltd. (S), 2022 SCC ONLINE SC 84.....................12
Bangalore Development Authority v Syndicate Bank, AIR 2007 SC 2198.............................12
Burn and Co. Ltd v H.h. Thakur Sahib Shree Lakhdirjee, AIR 1924 CAL 427......................24
Devashree Ispat Private Limited v The State of Telangana and Ors., 2021 (5) ALD659.......14
Divisional Controller, Karnataka State Road Transport Corporation v Mahadeva Shetty,
AIR 2003 SC 4172...............................................................................................................16
Egon Zhender Internaional Pvt. Ltd. v Namgayal Institute for Research on Ladakhi Art and
Culture; 2013 (4) Arb.L.R. 273 (Delhi)...............................................................................23
Energy Watchdog v Central Electricity Regulatory Commission and Ors. Etc, (2017) 14 SCC
80..........................................................................................................................................16
Fateh Chand v Balkishan Das, AIR 1963 SC 1405.................................................................22
Gomathinayagam Pillai and Ors v Pallaniswami Nadar, AIR 1967 SC 868.........................12
Hind Construction Contractors v State of Maharashtra, AIR 1979 SC 720...........................13
Indian Oil Corporation v Lloyds Steel Industries Ltd., 2007 SCC ONLINE DEL 1169........21
Indian Oil Corporation v M/s. Lloyds Steel Industries Ltd., (4) ArbLR 84 (DEL).................22
Iron and Hardware (India) Company, v Firm Shamlal & Bros, AIR 1954 BOM 423...........21
M. Lachia Setty and Sons Ltd. v Coffee Board, Bangalore, AIR 1981 SC 162.......................24
MEMORANDUM FOR
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M.K. Shah Engineers and Contractors v State of Madhya Pradesh, 1999 AIR SC 950...........2
M/S. Kailash Nath Associates v Delhi Development Authority, AIR 2015 SCW 759.............22
M/s. National Highways Authority of India v M/s. Hindustan Construction Co. Ltd., 2015
(153) DRJ 534................................................................................................................20, 21
Mep Infrastructure Developers Ltd v South Delhi Municipal Corporation,
LQ/DelHC/2020/2893..........................................................................................................15
Murlidhar Chiranjilal v Harishchandra Dwarkadasand Another, 1962 AIR SC 366............24
Oriental Insurance Company Limited v M/s Narbheram Power and steel Pvt. Ltd., AIR 2018
SC 2295..................................................................................................................................1
Quickheal Technologies Limited v M/s Ncs Computech Private Limited, 2020 SCC Online
687..........................................................................................................................................1
Raheja Universal Pvt. Ltd., Mumbai v B.E. Billimoria And Co. Ltd., Mumbai, 2016 SCC
OnLine Bom 1399................................................................................................................23
Ramnath International Construction (P) Ltd. v Union of India, (2007) 2 SCC 453................20
Ramnath International Construction Limited v Union of India, (2007) 2 SCC 453................22
Saradamani Kandappan v S. Rajalakshmi, AIR 2011 SC 3234..............................................19
Satyabrata Ghose v Mugneeram Bangur & Co., and Anr, AIR 1954 SC 44..........................18
Simplex Concrete Piles (India) Ltd v Union of India, (2010) ILR 2 (DEL) 699.....................22
State Of Karnataka v Shree Rameshwara Rice Mills, Thirthahalli, AIR 1987 SC 1359........19
The Board of Trustees of Port of Mumbai v Gateway Terminals India Pvt Ltd, (2014) 2 Bom
CR 7......................................................................................................................................23
Tuticorin Stevedores Association v The Government of India, WMP (MD) No.6818 of 2020
and WMP(MD) No.6217 of 2020........................................................................................15
Union of India v M/s Gujrat Co-Operative Grain Growers Federation Ltd., 2009 SCC
OnLine Del 3979..................................................................................................................14
Union Of India v M/S. B Prahlad and Co., AIR 1976 Del 236...............................................24
Welpsun Sociality Solutions v. ONGC Ltd. (2022) 2 SCC 382..............................................19
Welspun Specialty Solutions Limited v Oil and Natural Gas Corporation Ltd., (2022) 2 SCC
382........................................................................................................................................12
SINGAPORE CASES
Anil Singh Gurm v JS Yeh & Co and anr [2020] SGCA 5......................................................10
Bachmeer Capital Limited v Ong Chih Ching and others [2018] SGHC(I) 01, 18................9
MEMORANDUM FOR
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Bachmeer Capital Limited v Ong Chih Ching and others [2019] SGHC(I) 07.........................8
HSBC Institutional Trust Services (Singapore) Ltd (trustee of Starhill Global Real Estate
Investment Trust) v Toshin Development Singapore Pte Ltd, [2012] SGCA 48...................3
Insigma Technology Co. Ltd. v Alstom Technology Ltd., [2009] 1 SLR(R) 23.........................6
International Research Corp Plc v Lufthansa systems Asia Pacific Pte Ltd, [2013] 1 SLR
973..................................................................................................................................2, 3, 6
Sahara Energy International Pte Ltd. v. Chu Said Thong and another [2020] SGHC 272... .10
U.S. CASES
HIM Portland LLC v DeVito Builders Inc., 317 F 3d 41, 42 (Ist Cir. 2003).............................6
Hyperion VOF v Amino Development Corp 2008 WL 163624 (WD Wash, 2008)...................5
Kemiron Atlantic Inc v Aguakem International Inc, 290 F 3d 1287, 1291 (11th Cir 2002)......6
LLC v Brooke Corp 2008 WL 294517 (D Kan, 2008)...............................................................5
Ponce Roofing Inc v. Roumel Corp., 190 F. Supp. 2d 264, 267 (D.P.R. 2002).........................6
Red Hook Meat Corp v. Bogopa-Columbia Inc, 31 Misc. 3d 814, 819 (NY Sup Ct. 2011)......6
Sunstate Airlines (Qld) Pty Ltd v First Chicago Australia Securities Ltd, Unreported, Giles
CJ, NSWSC, 11 March 1997.................................................................................................9
T. C. Bateson Construction Co. v United States 149 Ct. Cl. 514 (1960).................................21
ENGLISH CASES
British Westinghouse Electric Co Ltd v Underground Electric Railways Co of London Ltd.

[1912] AC 673......................................................................................................................23
Cable & Wireless v IBM United Kingdom, [2002] EWHC 2059 (Comm)................................5
Campaign Master (UK) Ltd v Forty-Two International Pty Ltd (No 3) [2009] FCA 1306.8, 11
Emirates Trading Agency LLC v Prime Mineral Exports Private Ltd, [2014] EWHC 2104.. .3,
4
F A Tamplin Steamship Co., Ltd, and Anglo-Mexican Petroleum Products Co., Ltd (Re
Arbitration) [1916] UKHL 433............................................................................................17
Percy Bilton Ltd v Greater London Council (1982) 20 BLR 1................................................20
Taylor v Caldwell [1863] EWHC QB J1.................................................................................17
OTHER CASES
Andrews Construction Company, Inc., GSBCA No. 4364, 11,598 (1976)..............................21

Bundesgericht (Weightlifting), Case no. DFT 4A_80/2017.....................................................11
MEMORANDUM FOR
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Capic v Ford Motor Company of Australia [2021] FCA 715..............................................9, 11

Dorajay Pty Ltd v Aristocrat Leisure Ltd [2009] FCA 19.........................................................8
Haiye Developments Pty Ltd v The Commercial Business Centre Pty Ltd [2020] NSWSC 732.
............................................................................................................................................... 8
Holmes v Guppy [1838] 150 ER 1195.....................................................................................20
ICC case No. 6276, Partial Award of January 29, 1990, D. Jiménez Figueres, "Multi-Tiered
Dispute Resolution Clauses in ICC Arbitration", 14 ICC International Court of Arbitration
Bulletin 1 (2003), at p. 77..................................................................................................6, 7
Idoport Pty Ltd v National Australia Bank [2001] NSWSC 427...............................................5
BOOKS
Bryan A. Garner (ed), Black's Law Dictionary (11th edn, Thomson Reuters West 2019)......16
Gary B. Born, International Commercial Arbitration (3rd edn., Kluwer Law International
2021) ch.18.01........................................................................................................................7
Halsbury’s Laws of India (2nd edn, Lexis Nexis 2015) vol 9: Contract.................................12
Maxi Scherer, Niuscha Bassiri, Mohamed S. Abdel Wahab (eds.), International Arbitration
and the COVID-19 Revolution (Wolters Kluwer, 2020)........................................................8
Wendy Miles, 'Chapter 6: Remote Advocacy, Witness Preparation & Cross-Examination:
Practical Tips & Challenges', in Maxi Scherer, Niuscha Bassiri, et al. (eds), International
Arbitration and the COVID-19 Revolution, (Kluwer Law International; Kluwer Law
International 2020).................................................................................................................8
ARTICLES AND ESSAYS
Baker McKenzie, „The Future of Disputes: Are Virtual Hearings Here to Stay?‟ (Baker
McKenzie, 29 June 2021).......................................................................................................9
Didem Kayali, “Enforceability of Multi-Tiered Dispute Resolution Clauses” (2010) 27(6) J
Int‟l Arb 551 at 569; Sarah R Cole et al, Mediation: Law, Policy & Practice (US: Thomson
Reuters, 2017) at p 193..........................................................................................................5
Hamish Lal, „Virtual hearings: inflammatory markers in favour of in-person hearings‟ (Akin
Gump Strauss Hauer & Feld LLP, December 2020).............................................................9
Janice M. Ryan, „Understanding Force Majeure Clauses‟ (Venable LLP, February 2011) 20
Kaustuv Chunder, „Force Majeure: Evolution of Jurisprudence in India Post COVID-19‟
(Fox Mandal, 3 August 2021)..............................................................................................14
MEMORANDUM FOR
-INDEX OF PAGE XI
Prithviraj Nathan, „India: Legal Principles in Invoking Force Majeure Clauses – Case Law
Analysis‟ (Mondaq, 01 May 2020)......................................................................................21
Shaun Lee, Low Zhe Ning, „SIAC Congress Recap: This House believes that Virtual
Hearings are just as effective as In-Person Hearings‟...........................................................8
REPORTS
International Labor Organization, “Non-Standard Employment around the world,”..............22

WHO website contributors, „WHO Director-General's opening remarks at the media briefing
on COVID-19‟ (World Health Organization, 11 March 2020)...........................................14
JOURNALS
Ellen van Beukering-Rosmuller & Patrick Van Leynseele, “Enforceability of Mediation

Clauses in Belgium and the Netherlands,” (2017) 21(3) Nederlands- Vlaams tijdschrift
voor mediation en conflictmanagement 37 at 52...................................................................5
Magdalena McIntosh, “A Step Forward – Mandatory Mediations” (2003) 14 Australasian
Dispute Resolution Journal 280.............................................................................................5
Ram Singh and Utkarsh Leo, „COVID-19 and Supreme Court Contractual Disputes in India:
A Law and Economics Perspective‟ (2021) Economic and Political Weekly, Vol 56 (16)
pp. 37-43..............................................................................................................................18
MEMORANDUM FOR
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STATEMENT OF JURISDICTIO
N
Clean-up first Pvt. Ltd., the RESPONDENT in the instant case, has the honour of submitting the
present memorandum before the respected Arbitral Tribunal constituted under Rule 9 of the
SIAC Rules, in pursuance of Clause 25.3 of the Agreement between Clean Harstrad Ltd. and
Clean-Up First Pvt. Ltd which states that:
“Clause 25: Dispute Resolution
25.1 Any dispute, based in contract or in law, between the Employer and the Contractor
arising
out of or in connection with the EPC Contract must be referred to their designated
representatives (such as the Chief Executive Officers or Vice Presidents) for friendly
discussions. If the dispute is not settled in these friendly discussions, Clause 25.2 shall
apply.
25.2 Subject to Clause 25.1, the Parties undertake to attempt to resolve any unresolved
dispute,
based in contract or in law, between them through mediation.
25.3 If any dispute, based in contract or in law, is not resolved pursuant to either Clauses
25.1
or 25.2, the dispute may be resolved through arbitration proceedings to be administered
by the Singapore International Arbitration Centre, according to its rules then in force; the
number of arbitrators shall be one or three (as the Employer and the Contractor might
agree) and the language of the arbitration proceedings shall be English.”
The RESPONDENT does not submit to the jurisdiction of the Tribunal.
MEMORANDUM FOR
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STATEMENT OF FACTS
THE PARTIES
The CLAIMANT, Clean Harstrad Limited is a wholly owned subsidiary owned by the
Government of Asgard and has its head office at New Harstrad City, Asgard. The
RESPONDENT, Clean-up first Private Limited is a company incorporated in the People‟s
Republic of Locat.
THE INTRODUCTION
Asgard is a sovereign state part of the Indian sub-continent. Its geography is very unique
because only one river called Harstrad flows through the entire country. Harstrad is one of the
most important assets of Asgard as its economy and livelihood of approximately 70% of its
population is reliant directly on Harstrad, therefore its health and well-being is of paramount
importance to Asgard. In order to clean Harstrad and tackle water pollution, the Asgardian
Government authorizes the responsibility to Clean Harstrad Limited; hereinafter referred to
as Employer. The water pollution levels in the river were critical and if no preventive
measures were taken soon, it would cause a loss to a lot of aquatic life to the extent that
certain species endemic to the river might even become extinct. Moreover, if the issue is left
unaddressed, it could have a severe impact on the large chunk of the population that
depended on the river.
THE CONTRACT
On 1st May 2018, the tender for the execution of the project was awarded to Clean-up first
private limited; hereinafter referred to as contractor. Thereafter on 3 rd May 2018, the EPC
contract was executed. The project has to be completed in three phases, the design phase, the
procurement phase, and the refurbishment phase. Respective deadlines for completion of all
the phases are provided in the contract itself.
UPGRADATION WORK AND THE ISSUES
For commencing the design phase, the contractor contacted the employer for providing the
requisite information about the existing sewage treatment plants and sending a team for
facilitating the inspection of plants. Herein, it is to be noted that after the completion of the
inspection, the completion of the design phase would take four months and the same was
informed to the employer beforehand. The inspection took place from 15th September to 15th
MEMORANDUM FOR
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October 2018 and the design phase was then completed by 15 th February 2019 which was
four months late than the agreed schedule. Upon completion of the design phase, the
employer paid the contractor pre-decided 20% of the contract price.
After the design phase, the contractor sent an email to the employer informing that the next
phase i.e. procurement phase would be completed by 1 st September 2019 i.e. 4 months late
than the pre-decided schedule; this is due to the delay that occurred in the design phase, and
the refurbishment phase would be completed by 1st December 2023, i.e. a year late than the
pre-decided schedule, as sever issues have been uncovered in some of the sewage treatment
plants which would require a longer time to resolve. Lamenting the delay, the employer
asked the contractor to expedite the process and complete the project at the earliest possible
time.
Thereafter, during the procurement phase, the first few lots were supplied, but the contractor
anticipated that the supply of the remaining lots would be delayed by 8 months due to raging
protests in Locat against the ruling party and informed the same to the employer during the
weekly meeting. However, after much deliberation on the same, it was decided that instead of
8 months, an extension of 5 months would be given.
The procurement phase was completed by February 2020 but the contractor was not able to
initiate the refurbishment phase immediately after the same because they haven‟t got the
relevant permits from the Asgardian Ministry of Jal Shakti due to certain deficiencies in the
application. The permits were finally received on 15 th March 2020 and the refurbishment
work was started, however during this time the employer specifically stated that the
refurbishment phase should be completed in time.
THE COMMENCEMENT OF THE COVID 19 PANDEMIC
On 11th March 2020, the WHO declared the outbreak of COVID 19 virus as a global
pandemic, in response to the same, the Asgardian government imposed a nationwide
lockdown on 23rd March 2020 at 11:59 PM, and just before that on the same date the
contractor sent an e-mail to the employer invoking force majeure clause and requested
suspension of performance until the effects of COVID 19 pandemic are subsided.
The employer replied to the same mail on 20th April 2020 and demanded that the
refurbishment phase should be completed on the date that was envisaged in the EPC contract
MEMORANDUM FOR
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and rejected the contractor‟s claim to force majeure on the ground that firstly, the same has
not been invoked properly, i.e. via a formal notice and secondly, the COVID 19 pandemic do
not qualify to be as a force majeure event since the force majeure clause in the EPC contract
did not include the pandemic in its listed exemplifications.
Replying to the same the contractor said that the expedited completion of the project is not
possible under such circumstances because the lockdown has disrupted the contractor‟s
supply chain and the migrant labourers have also returned to their home states and calling
them back in such circumstances is not possible. The contractor further stated that the force
majeure clause is not being invoked only on the ground of the pandemic but also on the
ground of Asgardian government‟s response to it.
THE DISPUTE
On 27 May 2020, the Employer served upon the Contractor a Notice of Arbitration and the
Expedited Arbitration Application and requested specific performance of the refurbishment
phase of the project and also requested damages for delays in completion of the design and
procurement phase of the project.
In response to the NOA the contractor contended that the tribunal constituted should not
exercise jurisdiction over the Employer‟s claim since the parties constituted had not satisfied
the enforceable pre arbitral dispute escalation process contained in the dispute resolution
clause of the EPC contract and also contended that there is no breach of the contract since the
original EPC contract has been revised pursuant to the subsequent discussion between the
parties, and further requested that the dispute between the parties to be resolved in the hearing
should convene physically and not remotely. The contractor also requested for a
reconsideration meeting wherein certain issues were to be taken care of.
In the reconsideration meeting, certain decisions pertaining to the case were taken and along
with it the tribunal also determined the timetable that is to be followed for the arbitration. The
timetable is as follows-:
 Statement of claim to be submitted by the employer on 30 November 2020;

 Statement of defense to be submitted by the contractor on 31 March 2021;
 A physical hearing to be convened in Asgard between 18-29 May 2021
MEMORANDUM FOR
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The nationwide lockdown started to be lifted in a phased manner in July 2020; however, the
contractor started with the construction work in January 2021. In the meantime, the employer
submitted its statement of claim on 30 November 2020. The construction was again stopped
on 21 March 2021 when a new variant of COVID 19 pandemic entered Asgard which
resulted in a second nationwide lockdown.
On 31 March 2021, the contractor submitted its statement of defense wherein along with the
other claims it specifically emphasized on the second nationwide lockdown and termed it to
be as a force majeure event. Further, the employer requested the tribunal to conduct the
hearing scheduled in May remotely in light of the new COVID-19 Pandemic; however, the
tribunal decided to postpone the meeting in October now to be held in Singapore. The
situation however worsened in Singapore in October resulting in another postpone to May
2022. In the meantime, the construction work recommenced but with a retarded pace due to
the post effects of the second wave.
In January 2022 Ms. Tokyo was infected by COVID 19 and requested the tribunal to convene
the meeting remotely. Upon her insistence the tribunal decided to adjudicate the matter
remotely on the same dates in May 2022. The contractor agreed to the same but at the
condition that it would be allowed to argue the matter of remote hearing in front of the
tribunal to which the tribunal agreed. The hearing has finally convened on 18th May 2022.
MEMORANDUM FOR
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ISSUES RAISED
1. WHETHER THE TRIBUNAL SHOULD EXERCISE JURISDICTION SINCE

THE PRE-ARBITRAL DISPUTE ESCALATION PROCESS IS NOT
SATISFIED?
2. WHETHER THE DISPUTE BETWEEN THE PARTIES SHOULD BE

RESOLVED IN A HEARING CONVENED REMOTELY?
3. WHETHER SPECIFIC PERFORMANCE OF THE OUTSTANDNG

REFURBISHMENT PHASE SHOULD BE GRANTED?
4. WHETHER THE CLAIMANT IS ENTITLED TO LIQUIDATED DAMAGES

UNDER SECTION 74 OF ICA FOR DELAY IN DESIGN AND
PROCUREMENT PHASE?
MEMORANDUM FOR
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SUMMARY OF ARGUMENTS
I. THE TRIBUNAL SHOULD NOT EXERCISE JURISDICTION SINCE THE

PRE-ARBITRAL DISPUTE ESCALATION PROCESS IS NOT SATISFIED.
Under Asgardian Law, pre-arbitral dispute escalation clauses have to strictly construed and
the language employed in the dispute resolution clause indicates that it is a mandatory
provision. As the pre-arbitral clauses are hedged with conditionality, the Arbitral Tribunal
can exercise jurisdiction over the CLAIMANT‟s claims. Further, Singapore Law provides
that pre-arbitral dispute resolution clauses are mandatory when they are defined with
specificity and promote good faith amongst parties. Thus, contrary to Claimant's assertion,,
the correspondences exchanged between the Claimant and Respondent did not fulfil the
requirement of pre-arbitral dispute escalation process as friendly discussions was not referred
to Designated Representatives and the Parties have not referred the dispute to mediation.
Thus, the Tribunal cannot exercise jurisdiction over the Claimant‟s claims as the Parties did
not satisfy the mandatory enforceable pre-arbitral dispute resolution clause, as mandated by
the Arbitration Agreement.
II. THE DISPUTE BETWEEN THE PARTIES SHOULD BE RESOLVED IN A

HEARING CONVENED REMOTELY.
The Arbitral Tribunal is bound to comply with the terms of the Arbitration Agreement which
does not provide for remote hearings. Further, fact-intensive examination of witness
testimonies and documentary evidence cannot be conducted remotely. In remote hearings, the
credibility of witnesses cannot be ascertained and technical issues reduce the efficiency in
conducting cross-examination of the Parties. By convening a hearing remotely, the Parties
right to a physical hearing and right to be heard is being violated. Thus, the award passed in a
remote hearing can be challenged on grounds of procedural impediments.
III. SPECIFIC PERFORMANCE OF THE OUTSTANDNG REFURBISHMENT

PHASE SHOULD NOT BE GRANTED.
The RESPONDENT contends that there is no breach of contract as time is not the essence of the
Contract, as it is not specified in the Contract. The Employer had agreed to extend the time
for the Contractor to fulfil its contractual obligations, indicating that time is not of the essence
of the Contract. Further, in light of Covid-19 being an unprecedent circumstance, the
MEMORANDUM FOR
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RESPONDENT invoked the Force Majeure clause. Thus, the RESPONDENT contends that even if
time is of the essence of the contract, there would be no breach of contract due to the
invocation of the force majeure clause. Hence, non-performance of the contract should be
excused and specific performance should not be granted.

SECTION 74 OF ICA FOR DELAY IN DESIGN AND PROCUREMENT
PHASE.
The RESPONDENT submits that there is no breach of contract because time is not the essence
of the Contract. Even if time is of essence of the Contract, the delays in the Design and
Refurbishment phase of the Contract are excusable. The delay in the Design Phase can be
attributed to the CLAIMANT and the delay in the Procurement Phase took place due to the
raging protests in Asgard. The fault cannot be attributed to the RESPONDENT and therefore,
the RESPONDENT did not breach the Contract. Thus, the C LAIMANT should not be entitled to
liquidated damages for delay in the Design and Procurement Phase.
MEMORANDUM FOR
-ARGUMENTS PAGE
ARGUMENTS ADVANCED
I. THE TRIBUNAL SHOULD NOT EXERCISE JURISDICTION SINCE THE

PRE-ARBITRAL DISPUTE ESCALATION PROCESS IS NOT SATISFIED.
1. The Dispute Resolution Clause contained in the EPC Contract provides for friendly
discussions and mediation, which form the pre-arbitral dispute escalation process in
the dispute, was not fulfilled. Hence, the pre-arbitral dispute escalation process is
mandatory under Asgardian and Singapore Law [A]; The communication between the
Contractor and the Employer between 23 March, 2020 to 24 April, 2020 did not serve
to satisfy the pre-arbitral dispute escalation process [B]; and therefore, the Arbitral
Tribunal does not have the requisite jurisdiction as pre-conditions to arbitration have
not been fulfilled [C].
A. THE PRE-ARBITRAL DISPUTE ESCALATION PROCESS IS MANDATORY UNDER
ASGARDIAN AND SINGAPORE LAW
2. The RESPONDENTs contend that pre-arbitral dispute escalation process is mandatory

under Asgardian Law [i]; and Singapore Law [ii].
i. Pre-arbitral dispute resolution process is mandatory under Asgardian law

3. Arbitration Agreements containing clauses related to preconditions to arbitration have
to be strictly construed,1 wherein the Parties are bound by the terms and conditions
that are agreed under the pre-arbitral dispute resolution clause.2
4. In Quickheal Technologies,3 the Supreme Court of India held that the word „may‟ is
used after proper application of mind and the same cannot be read otherwise. The
Court also held that the term “any disputes” clearly indicates that any dispute between
the parties has to mandatorily follow the mechanism suggested in the contract, where
the parties have agreed to refer their disputes to arbitration after failure of the
amicable settlement process. The clauses cannot operate independently and cannot be
used to initiate an arbitration process if both the parties did not agree to refer their
disputes to arbitration.4
1
Oriental Insurance Company Limited v M/s Narbheram Power and steel Pvt. Ltd., AIR 2018 SC 2295.
2
ibid.
3
Quickheal Technologies Limited v M/s Ncs Computech Private Limited, 2020 SCC Online 687.
4
ibid.
MEMORANDUM FOR
-ARGUMENTS PAGE
5. In the present case, Clause 25.15 of the EPC contract uses the word “must” to refer the
Parties to friendly discussions, indicating that it is a mandatory provision that the
Parties must comply with. Further, Clause 25.3 6 uses the word “may” to refer the
Parties to arbitration, which indicates that it is a discretionary provision and requires
prior consent from both the Parties. Herein, the Parties did not follow the mandatory
mechanism or agree to refer their disputes to arbitration. Thus, the Parties cannot
initiate arbitration.
6. Also, when the agreement is „hedged with conditionality‟, the non-fulfilment of the
pre-conditions would render the dispute „non-arbitrable‟.7 Further, where there is a
non-compliance with certain „mandatory requirements‟, the Tribunal cannot assume
jurisdiction until the pre-arbitral conditions are satisfied.8
7. In the present case, Clause 25.1 9 of the EPC Contract is hedged with conditionality as
it provides for friendly discussions between designated representatives, and since their
decision will be the subject-matter of challenge before the arbitrator, the pre-arbitral
dispute escalation process is mandatory.10 The CLAIMANT did not comply with
mandatory requirements of the clause. Thus, the Tribunal cannot exercise jurisdiction.
ii. Mandatory under the Singapore Law
8. In the Lufthansa case, the Singapore High Court held that in cases where the parties
have stipulated a specific set of dispute resolution procedures as preconditions for
arbitration, such compliances need to be satisfied. 11 The Court also held that where
pre-conditions are defined with sufficient clarity and specificity, they are mandatory
in nature.12
9. In the instant case, Clause 25 of the EPC Contract 13 refers the Parties to friendly
discussions and mediation specifically with the Employer‟s designated
representatives, and therefore it was mandatory for the Parties to undertake pre-
arbitral dispute escalation process. The CLAIMANT herein has violated the contract, by
5
Bench Memorandum, Annex A, Clause 25: Dispute Resolution.
6
ibid.
7
United India Insurance Company Limited and Another v Hyundai Engineering and Construction Limited and
Others, 2018 AIR SC 3932.
8
S.K. Jain v State of Haryana and Another, 2008 AIR P&H 30.
9
10
M.K. Shah Engineers and Contractors v State of Madhya Pradesh, 1999 AIR SC 950.
11
International Research Corp Plc v Lufthansa systems Asia Pacific Pte Ltd, [2013] 1 SLR 973.
12
ibid.
13
Bench Memorandum, Annex A, Clause 25: Dispute
MEMORANDUM FOR
-ARGUMENTS PAGE
commencing the arbitration before undertaking the pre-arbitral dispute escalation

process.
10. In the Emirates case,14 the Singapore Court of Appeals upheld the clause in a contract
wherein the parties were required to resolve the dispute with friendly discussions
before going to the arbitral tribunal and enforced it because such pre-arbitral practices
promote fair, honest and genuine discussions. Also, when Parties „in good faith
endeavor to agree‟ to pre-arbitral clauses, they are mandatory in nature because they
are in public interest as it would cause no harm to the Parties and the dispute would
still be resolved through other means.15
11. In the instant case, the Parties have mutually agreed to the pre-conditions and are thus,
bound by the Arbitration Agreement.16 Clause 25 of the EPC Contract ensures and
promotes fair, honest and genuine discussions; therefore, the same is mandatory and
enforceable.
B. THE COMMUNICATION BETWEEN THE CONTRACTOR AND THE EMPLOYER

BETWEEN 23 MARCH, 2020 TO 24 APRIL, 2020 DID NOT SERVE TO SATISFY THE
PRE-ARBITRAL DISPUTE ESCALATION PROCESS.
12. RESPONDENT contends that the correspondences exchanged between the Employer
and the Contractor between 23 March 2020 and 24 April 2020 did not serve to satisfy
the pre-arbitral dispute escalation process as; [i] it does not fulfil the requirement of
friendly discussions; [ii] the Parties have not referred to mediation.
i. The correspondences do not fulfil the requirement for friendly discussions

13. To fulfil the requirements of friendly discussions, „precise persons‟ as mandated by
the dispute resolution clause, must be involved.17 Further, discussions between the
parties can be construed to be friendly discussions only when the parties seek to
resolve a „dispute or a claim.‟18
14. In the present case, Clause 25.1 of the EPC Contract mandates friendly discussions
specifically with the Chief Executive Officers or Vice Presidents.19 The email
correspondences from the CLAIMANT‟s side between 23 March and 24 April 2020
was
14
Emirates Trading Agency LLC v Prime Mineral Exports Private Ltd, [2014] EWHC 2104.
15
HSBC Institutional Trust Services (Singapore) Ltd (trustee of Starhill Global Real Estate Investment Trust) v
Toshin Development Singapore Pte Ltd, [2012] SGCA 48.
16
19
MEMORANDUM FOR
-ARGUMENTS
17 PAGE
Lufthansa (n 11).
18
HSBC (n 15).
19
MEMORANDUM FOR
-ARGUMENTS PAGE 5
only with the Head Engineer.20 Further, in the email correspondences, the
RESPONDENT requested for suspension of obligations on grounds of force majeure
arising out of disruptions caused by the Covid-19 virus,21 while the CLAIMANT in its
response merely stated the force majeure clause cannot be invoked and that all
contractual obligations would continue to apply.22
15. The CLAIMANT did not take into account that the Asgardian Government had imposed
a complete nationwide lockdown,23 which rendered fulfilling of the contractual
obligations impossible. Thus, a mere communication wherein the CLAIMANT had
rejected the RESPONDENT‟s claim cannot be understood to resolve the dispute
between the Parties and cannot be said to fulfil friendly discussions.24
16. Correspondences between Parties can only be considered as „friendly discussions‟ if
they promote „fair, honest and genuine discussions.‟25 In the instant case, the
CLAIMANT had replied after a month, rejecting the RESPONDENT‟s claim stating that
the force majeure clause can only be invoked by serving a formal notice to their
registered address, as opposed to simply by email. 26 The CLAIMANT did not consider
the extenuating circumstances of the nationwide lockdown and travel restrictions
imposed in Asgard or that the RESPONDENT‟s office premises were closed that
rendered serving a formal notice by post impossible. 27 Further, when the RESPONDENT
went on to explain the impossibility to fulfil the contractual obligations in the
subsequent email, there was no reply from the CLAIMANT‟s side. Instead, the
RESPONDENT‟s directly served the notice of arbitration.28 Thus, the email
correspondences between the Parties cannot be considered as friendly discussion as it
did not attempt to resolve or promote fair, honest and genuine discussions.
20
Bench Memorandum, Annex-C, E-mail Correspondences between 23 March and 24 April 2020.
21
Bench Memorandum, Statement of Facts, ¶25.
22
23
Bench Memorandum, Statement of Facts, ¶21, ¶22.
24
25
Emirates (n 14).
26
27
28
Bench Memorandum, Statement of Facts, ¶ 27.
MEMORANDUM FOR
-ARGUMENTS PAGE 6
ii. In arguendo, even if Clause 25.1 is satisfied, the parties did not refer to
mediation in accordance with Clause 25.2
17. In Cable & Wireless vs. IBM United Kingdom,29 the England and Wales High Court
ruled that the pre-arbitral consultation clauses are mandatorily enforceable when they
are „sufficiently defined‟ and set out tangible obligations capable of enforcement by
courts, such as requiring parties to undertake mediation. In the present case, Clause
25.2 of the EPC Contract provides the Parties to undertake mediation for unresolved
disputes after friendly discussions.30 Thus, the CLAIMANTS cannot proceed with
arbitration, in breach of the dispute resolution clause.
18. Incorporation of a mediation clause in the Agreement reflects the intentions of the
parties and the same should be enforced regardless of the consensual feature of
mediation.31 Mediation often achieves results even in the cases where the parties have
been unwilling to settle,32 as it assists parties in narrowing down their disputes and
provides an opportunity to assess the strengths and weaknesses of their claim.33
Further, even if there is a lack of „identifiable procedure‟ in the clause, it would be
enforceable as long as there is an unqualified reference to ADR, 34 and a „sufficiently
certain and definable minimum duty of participation should not be hard to find.‟35
19. In the present case, the mediation clause is incorporated in the contract36 which
indicates the intention of the parties to undertake mediation. Thus, since no neutral
third party or a mediator was involved and the email correspondences took place
merely between the Parties, it does not fulfil the requirement of mediation.
29
Cable & Wireless v IBM United Kingdom, [2002] EWHC 2059 (Comm).
30
31
Didem Kayali, “Enforceability of Multi-Tiered Dispute Resolution Clauses” (2010) 27(6) J Int‟l Arb 551 at
569; Sarah R Cole et al, Mediation: Law, Policy & Practice (US: Thomson Reuters, 2017) at p 193
32
LLC v Brooke Corp 2008 WL 294517 (D Kan, 2008); Hyperion VOF v Amino Development Corp 2008 WL
163624 (WD Wash, 2008).
33
Ellen van Beukering-Rosmuller & Patrick Van Leynseele, “Enforceability of Mediation Clauses in Belgium
and the Netherlands,” (2017) 21(3) Nederlands- Vlaams tijdschrift voor mediation en conflictmanagement 37 at
52; Magdalena McIntosh, “A Step Forward – Mandatory Mediations” (2003) 14 Australasian Dispute
Resolution Journal 280.
34
Idoport Pty Ltd v National Australia Bank [2001] NSWSC 427.
35
Cable & Wireless (n 29).
36
MEMORANDUM FOR
-ARGUMENTS PAGE 7
C. THE ARBITRAL TRIBUNAL DOES NOT HAVE THE REQUISITE JURISDICTION AS PRE-
CONDITIONS TO ARBITRATION HAVE NOT BEEN FULFILLED
20. Under Rule 28.2 of the SIAC Rules37, the Tribunal has the power to rule on its own
jurisdiction, including any objections with respect to the existence, validity or scope
of the arbitration agreement.
21. In the present case, the Arbitral Tribunal cannot exercise jurisdiction, as has already
been proved above, that the preconditions for arbitration set out in a „multi-tiered
dispute resolution clause‟ have not been met 38 and the same are conditions precedent
for starting the arbitral process.39
22. Furthermore, the Singapore High Court in the Insigma Technology ruled that the
wording of the dispute resolution clause in the contract is sacrosanct and it would
constitute a condition precedent to the commencement of arbitration proceedings. The
breach of such clause would render the arbitration proceedings void.40
23. In the present case, the use of the term must and shall in Clause 25.141 indicates the
operative nature of the Clause. Further, the requirement of engaging in friendly
discussion and mediation would imply the consent of the parties to engage in such
pre-arbitration dispute escalation procedure.42 Thus, the pre-conditions set under
Clause 25 of the EPC Contract are both valid and binding on the parties.
24. Pre-arbitral steps43 that are held to be jurisdictional „conditions precedent‟ to
arbitration, barring the commencement until the steps had been fulfilled. 44 Thus, there
exists a duty to fulfil the pre-arbitral stage.45 The RESPONDENT therefore contends that
the Tribunal should not exercise jurisdiction46 over the Employer‟s claims as the
Parties had not satisfied the enforceable mandatory47 pre-arbitral dispute escalation
37
Rule 28.2, Singapore International Arbitration Rules, (6th edn., 2016).
38
Legal pleading, ¶16 ¶20.
39
Lufthansa (n 11).
40
Insigma Technology Co. Ltd. v Alstom Technology Ltd., [2009] 1 SLR(R) 23.
41
42
43
Ponce Roofing Inc v. Roumel Corp., 190 F. Supp. 2d 264, 267 (D.P.R. 2002).
44
HIM Portland LLC v DeVito Builders Inc., 317 F 3d 41, 42 (Ist Cir. 2003).
45
ICC case No. 6276, Partial Award of January 29, 1990, D. Jiménez Figueres, "Multi-Tiered Dispute
Resolution Clauses in ICC Arbitration", 14 ICC International Court of Arbitration Bulletin 1 (2003), at p. 77.
46
Red Hook Meat Corp v. Bogopa-Columbia Inc, 31 Misc. 3d 814, 819 (NY Sup Ct. 2011).
47
Kemiron Atlantic Inc v Aguakem International Inc, 290 F 3d 1287, 1291 (11th Cir 2002).
MEMORANDUM FOR
-ARGUMENTS PAGE 8
process contained in the dispute resolution clause of the EPC Contract. Thus, there
exists a duty to fulfil the pre-arbitral stage.48
25. CONCLUSION OF THE FIRST ISSUE: The Arbitral Tribunal is bound by the contract
between the Parties that provides for mandatory enforceable dispute escalation
process. The email correspondences between the Parties did not fulfil the requirement
of the dispute escalation process, thus the Tribunal cannot exercise jurisdiction over
the CLAIMANT‟s claims.
II. THE DISPUTE BETWEEN THE PARTIES MUST BE RESOLVED IN A

HEARING CONVENED REMOTELY.
26. CLAIMANTS asserts that the hearing must be convened remotely to efficiently conduct
a fact-intensive hearing. The Tribunal must convene the hearing remotely as the
Arbitration Agreement between the Parties does not provide for a remote hearing (A);
Remote hearings impede the efficient cross-examination of experts and witnesses (B);
and Remote hearing violates due process (C).
A. THE ARBITRATION AGREEMENT BETWEEN THE PARTIES DOES NOT PROVIDE

FOR A REMOTE HEARING
27. The principle of party autonomy forms the cornerstone of arbitration,49 and the
Arbitral Tribunal is bound to comply with the terms of the Parties‟ arbitration
agreement.50
The Arbitration Agreement, in the instant case, does not allow for the possibility of
remote hearings.51
28. Thus, where the CLAIMANT requests remote hearings and the R ESPONDENT objects to
it; not upholding this objection would constitute unfair unequal treatment and the
tribunal cannot exercise its powers to convene the hearing remotely.
B. REMOTE HEARINGS IMPEDE THE EFFICIENCY IN CROSS-EXAMINATION OF
EXPERTS AND WITNESSES
29. RESPONDENTS contend that a fact-intensive examination of witnesses cannot be

conducted in a remote hearing.52 Remote hearings pose challenges relating to
48
ICC case No. 6276, Partial Award of January 29, 1990, D. Jiménez Figueres, "Multi-Tiered Dispute
Resolution Clauses in ICC Arbitration", 14 ICC International Court of Arbitration Bulletin 1 (2003), at p. 77.
49
Gary B. Born, International Commercial Arbitration (3rd edn., Kluwer Law International 2021) ch.18.01.
50
ibid, ch.15.02.
51
MEMORANDUM FOR
-ARGUMENTS PAGE 9
preparing witnesses and conducting witness examinations, which is not efficiently

possible in a remote hearing.53 It leads to a loss of concentration on both sides,
resulting in difficulties for the Parties to present their case.54
30. Remote hearings also make it difficult to assess the credibility of witnesses due to
lack of non-verbal cues.55 Technical difficulties during remote witness examinations
interfere with giving of evidence and have a serious impact in fluency. 56 This impacts
the oral interchanges amongst arbitrators and the witnesses. 57 This is exacerbated by
video-conference fatigue occurring due to difference in time zones, rendering lengthy
and intense cross-examinations.58
31. The CLAIMANT requests for a remote hearing as time is of the essence. 59 In the
present case, the CLAIMANT has to present five fact witnesses and the R ESPONDENT
has to present three fact witnesses,60 wherein technical interruptions and difficulties in
fluently conducting witness examinations during the remote hearing will significantly
prolong the hearing for all participants, thus frustrating the point of convening a
hearing remotely.61
32. Remote hearings entail issues as to accessibility for the Parties. 62 The present dispute
involves participation of individuals located in different countries,63 wherein
availability of adequate high-speed internet connectivity cannot be ensured for every
participant.64 Even if test-sessions are conducted to ensure connectivity65 during the
52
53
Maxi Scherer, Niuscha Bassiri, Mohamed S. Abdel Wahab (eds.), International Arbitration and the COVID-
19 Revolution (Wolters Kluwer, 2020).
54
Campaign Master (UK) Ltd v Forty-Two International Pty Ltd (No 3) [2009] FCA 1306.
55
Maxi Scherer (n 53), p. 84; Dorajay Pty Ltd v Aristocrat Leisure Ltd [2009] FCA 19.
56
Campaign Master (n 54).
57
Maxi Scherer (n 53), p. 427.
58
Shaun Lee, Low Zhe Ning, „SIAC Congress Recap: This House believes that Virtual Hearings are just as
effective as In-Person Hearings‟ (Kluwer Arbitration Blog, 4 September 2020)
<http://arbitrationblog.kluwerarbitration.com/2020/09/04/siac-congress-recap-this-house-believes-that-virtual-
hearings-are-just-as-effective-as-in-person-hearings/> accessed 25 April 2022.
59
60
Bench Memorandum, Statement of Facts, ¶ 36 and ¶ 41.
61
Wendy Miles, 'Chapter 6: Remote Advocacy, Witness Preparation & Cross-Examination: Practical Tips &
Challenges', in Maxi Scherer (n 53) p. 121 – 136; Haiye Developments Pty Ltd v The Commercial Business
Centre Pty Ltd [2020] NSWSC 732.
62
Bachmeer Capital Limited v Ong Chih Ching and others [2019] SGHC(I) 07.
63
64
Dorajay Pty Ltd v Aristocrat Leisure Ltd [2009] FCA 19.
65
Maxi Scherer (n 53) p. 432.
MEMORANDUM FOR
-ARGUMENTS PAGE
hearings, they require an exhaustive preparation,66 which would contradict the

CLAIMANT‟s requirement for an expedited hearing.
33. Further, in the present case of complex construction disputes wherein major
substantial issues or documentary material of large volume is to be deployed; 67 it is
recommended to have the witnesses in Court for examination. 68 Physical hearings
make it easier for arbitrators to understand complex facts and technical issues. 69 In the
present case, the CLAIMANT and RESPONDENT have to present 250 and 300 documents
respectively, involving issues relating to enforcement of rights of the Parties.70 Thus,
it is a case of large magnitude and complexity involving fact-intensive examination 71
that cannot be conducted efficiently in a remote hearing.
34. Further, cross-examination on a virtual mode is not sustainable as it is susceptible to
unethical conduct such as witnesses reading off notes or being coached off-screen. 72
With remote hearings, Tribunal runs the risk of the witness using prompts or
discussing evidence with each other.73 In the present case, the CLAIMANT has to
present five-fact witnesses and the R ESPONDENT has to present three fact-witnesses.74
Thus, in the present case, where witness credibility and testimony is critical, remote
hearing cannot be conducted.
35. Lastly, virtual hearings were available even before the pandemic but parties preferred
in-person hearings, which indicates that physical hearings are more effective.75
Hence, in the present case, the Tribunal should convene the hearing remotely.
C. REMOTE HEARINGS MAY RENDER THE ARBITRAL AWARD

UNENFORCEABLE
36. Under the NY Convention and Singapore Law, award passed in a remote hearing can
be challenged on grounds of procedural impediments.76 The Tribunal, by permitting a
66
ibid, p. 431.
67
Bench Memorandum, Statement of Facts, ¶ 35, 36.
68
Sunstate Airlines (Qld) Pty Ltd v First Chicago Australia Securities Ltd, Unreported, Giles CJ, NSWSC, 11
March 1997; Bachmeer Capital Limited v Ong Chih Ching and others [2018] SGHC(I) 01, ¶ 18.
69
Hamish Lal, „Virtual hearings: inflammatory markers in favour of in-person hearings‟ (Akin Gump Strauss
Hauer & Feld LLP, December 2020) <https://www.akingump.com/en/news-insights/virtual-hearings-
inflammatory-markers-in-favour-of-in-person-hearings.html> accessed 25 April 2022.
70
71
72
Capic v Ford Motor Company of Australia [2021] FCA 715.
73
Wendy Miles (n 61), p. 121.
74
Bench Memorandum, Statement of Facts, ¶35, 36.
75
Baker McKenzie, „The Future of Disputes: Are Virtual Hearings Here to Stay?‟ (Baker McKenzie, 29 June
2021) <https://www.bakermckenzie.com/-/media/files/insight/publications/2021/02/are-virtual-hearings-here-to-
stay--baker-mckenzie-and-kpmg-report_010221.pdf> accessed 25 April 2022.
MEMORANDUM FOR
-ARGUMENTS PAGE
remote hearing, may violate the mandatory requirements of arbitral procedure as:
Parties have a right to a physical hearing; [1] Remote hearings violate the Parties right
be heard [2] thereby rendering the award unenforceable [3].
i. Parties have a right to a physical hearing
37. The RESPONDENT objects to a physical hearing on grounds that that this case
involving several witnesses and experts, cannot be heard remotely.77 However,
Singapore law does not grant litigants an automatic right to use remote hearing
technology to aid their cases.78 A litigant‟s right to bring all relevant evidence before
the court is a “right to physically adduce that evidence in court”.79
38. Further, the default position is that a witness must be physically present before the
court in order to testify and give evidence.80 and a substantial case needs to be made
out to warrant a virtual hearing.81 This position is further affirmed in the decision of
Sahara Energy International Pte Ltd v Chu Said Thong and another, 82 wherein the
Court dismissed an application for witnesses to give evidence through video-link in
the midst of the COVID-19 pandemic.
39. Thus, following the method of an overall balancing exercise,83 the Tribunal must
consider that violation of the Parties‟ rights due to procedural irregularities supersedes
the RESPONDENT‟S demands for a virtual hearing. Hence, the RESPONDENT‟S
objection, in the present case, to conduct the hearing remotely in light of the Covid-19
pandemic cannot be sustained.
ii. Parties have a right to heard
40. Contrary to the CLAIMANT‟S assertion, remote hearings infringe the Parties‟ right to be
heard.84 The right to be heard under, Rule 19 of the SIAC Rules requires that „Parties
shall be treated with equality and be given a full opportunity to present their case‟.85
41. In remote hearings, parties are prevented from meaningfully presenting their case. 86
Technical issues occurring during the hearing such as connectivity issues, delayed
76
Art. 5, NewYork Convention 1985; Art. 31(2)(d), Singapore International Arbitration Act 1994.
77
78
Anil Singh Gurm v JS Yeh & Co and anr [2020] SGCA 5.
79
ibid.
80
ibid.
81
Sunstate Airlines (n 68).
82
Sahara Energy International Pte Ltd. v. Chu Said Thong and another [2020] SGHC 272.
83
Maxi Scherer (n 53) p. 446.
84
85
Rule 19, Singapore International Arbitration Centre Rules, 2016.
86
Wendy Miles (n 61), p.124.
MEMORANDUM FOR
-ARGUMENTS PAGE
sound transmissions and time lags hinder the examination of witnesses. 87 Particularly in
lengthy and complex hearings, such as in the present case, 88 these hitches serve to be
disproportionally disruptive to procedural efficiency.89
42. The present dispute involves participation of panel of arbitrators, parties and their
counsels, several fact witnesses, experts.90 With such a large and diverse number of
participants, convening the hearing remotely raises practical issues such as finding a
convenient hearing time for all participants, language barriers and need for
interpreters.91 These due process issues violate the Parties‟ right to fair hearing.
43. The Tribunal is mandated to conduct proceedings in an expeditious and economical
manner under Rule 19 of the SIAC Rules.92 Remote hearings do not fulfil these
conditions. To ensure an efficient remote hearing, parties would need to arrange
multiple cameras, video-conferencing technology, document management software,
relevant hardware, amongst others, which would ultimately increase the costs of the
hearing and thus, violate the right to equality of Parties.93
44. Remote hearings violate the right to equal treatment of parties. While CLAIMANT
requests remote hearing to be conducted for efficiency purposes, 94 the need to ensure
fundamental right of equal treatment usually outweighs the concerns of efficiency.95
The Tribunal‟s right to exercise discretion is limited by mandatory protections of
procedural fairness and regularity.96 Thus, if one the Parties is not able to present its
side of the case in a satisfactory manner, it will result in the award being unenforceable.
45. In any case, there is no basis to think any undue delay would be caused in a physical
hearing and that the potential unfairness to the parties would be greater than the
inconvenience caused by any „undue‟ delay or expense. 97 Thus, the arbitral tribunal
must convene the hearing physically, pursuant to the parties right to a fair, expeditious
and economical hearing.98
87
ibid.
88
89
Hamish Lal (n 69).
90
Bench Memorandum, Statement of Facts, ¶ 28, 35, 36.
91
Wendy Miles (n 61), p.124.
92
Rule 19, SIAC Rules.
93
Maxi Scherer (n 53) p. 336; Capic v Ford Motor Company of Australia [2021] FCA 715.
94
95
Bundesgericht (Weightlifting), Case no. DFT 4A_80/2017.
96
97
98
MEMORANDUM FOR
-ARGUMENTS PAGE
46. CONCLUSION OF THE SECOND ISSUE: In conclusion, the Arbitral tribunal is bound by
the Parties‟ Agreement which does not provide for remote hearings. The fact-intensive
dispute of the Parties involving several witnesses and documentary evidence cannot be
conducted efficiently in a remote hearing. Thus, the Tribunal runs the risk of an award
passed in remote hearing to be challenged on grounds of due process being violated.
III. SPECIFIC PERFORMANCE OF THE OUTSTANDING REFURBISHMENT

PHASE SHOULD NOT BE GRANTED
47. The RESPONDENT contends that specific performance for the outstanding
refurbishment phase should not be granted for the following reasons: first; there is no
breach of contract because time is not of the essence (A), second; the force majeure
clause will be invoked (B), and third; specific performance of the contract should not
be granted (C).
A. NO BREACH OF CONTRACT BECAUSE TIME IS NOT OF THE ESSENCE
48. There is no breach of contract on the ground that time is not of the essence in the
present case; it is so because time cannot be of essence unless specified (B).
Moreover, the employer agreed for the extension of time on its own volition making
the essence of time inconsequential by itself (C).
i. Time is not of essence unless specified

49. In construction disputes, time is not considered to be the essence of the contract 99
unless specified in the contract. 100 Thus, time will be of the essence only if it is
explicitly stated that time is of the essence of the contract.101
50. In the present case, no explicit clause in the contract is provided that stipulates about
the essence of time,102 the only clause that is related to the essence of time in the
contract is the clause wherein deadlines for the completion of the construction phase
are provided.103 However, this clause is not enough to prove that time is of the
essence herein, because mere fixation of a period within which the contract is to be
performed does not make time the essence of the contract.104
99
B.B. Patel and Others (S) v Dlf Universal Ltd. (S), 2022 SCC ONLINE SC 84.
100
Bangalore Development Authority v Syndicate Bank, AIR 2007 SC 2198.
101
Halsbury’s Laws of India (2nd edn, Lexis Nexis 2015) vol 9: Contract.
102
Bench Memorandum, Annexure A.
103
ibid.
104
Gomathinayagam Pillai And Ors v Pallaniswami Nadar, AIR 1967 SC 868.
MEMORANDUM FOR
-ARGUMENTS PAGE
105
51. Further, in the Welspun Specialty case , the hon‟ble Supreme Court has held that
merely having an explicit clause in a contract may not be sufficient to make time the
essence of the contract. Whether time is of the essence of the contract has to be culled
out from the reading of the entire contract as well as the surrounding circumstances106.
52. Also, in the case of Hind Construction Contractors case, the Apex court held that time
is of the essence has to be read along with other provisions of the contract as such
other provisions may exclude the inference that time is of the essence.107
53. Firstly, there is no explicit stipulation that time is of the essence in the contract, 108
secondly even if it were explicitly stipulated, the reading of the entire contract makes
it obvious that time would not be of the essence in the present scenario.109
54. Therefore, since no clause specifying the essence of time has been stipulated in the
contract and neither do the contractual interpretation states otherwise; it is contended
that time cannot be considered to be of the essence in the contract in the present
circumstance.
ii. The Employer agreed for the extension of time to fulfill the contractual
obligations
55. While examining whether time is of the essence of the contract, the Supreme Court
has held that “when the reasonable extension to time has been provided, it cannot be
said that time is of the essence.110”
56. Also, the Apex Court in the ONGC case 111 has held that the existence of the extension
clauses dilute time being the essence of contract, along with it, in Hind Construction
Contractors case112, it was observed that the presence of clauses in the contract
providing for extension of time in certain contingencies or for payment of damages
for delay may be the cause to repel an argument that time was of the essence or
fundamental to the contract.
57. In the present case, the contract explicitly stipulates the clauses of extension of time
and liquidated damages.113 Moreover, during the procurement and design phases, the
105
Welspun Specialty Solutions Limited v Oil and Natural Gas Corporation Ltd., (2022) 2 SCC 382 .
106
ibid, 30
107
Hind Construction Contractors v State of Maharashtra, AIR 1979 SC 720.
108
Legal Pleading, 53.
109
ibid.
110
ibid, 19
111
Welspun Specialty (n 105).
112
Hind Construction (n 107).
113
Bench Memorandum, Annexure A, Clause 9: Extension of time.
MEMORANDUM FOR
-ARGUMENTS PAGE
employer has accepted the performance after the expiry of original time period 114 and
even payed the contractor the agreed amount after the completion of the design phase
which was extended by four months.115
58. Therefore, time is not of essence in the present contract because the performance is
accepted after the expiry of original time period and the employer agreed for the same
on its own volition.116 Along with it, the inclusion of clauses like extension of time
and liquidated damages makes the essence of time inconsequential.
59. Further, clause 8.5 of the FIDIC Red Book 117 also provides for an extension of time in
the event of unforeseeable shortages in the availability of personal goods caused by
Epidemic or governmental actions.
60. In the present case, since there has been unforeseeable shortage in the availability of
personal goods due to the fear of COVID 19 pandemic and the imposition of
lockdown, this is yet another reason wherein govt. will have to agree for the extension
of time and making the extension of time inconsequential.
B. FORCE MAJEURE CLAUSE WILL BE INVOKED IN THE PRESENT SITUATION
61. The Force Majeure clause will be invoked herein because the government itself
considered COVID-19 to be a Force Majeure event (i). Moreover, in the pleadings
herein below it has also been proved that COVID-19 pandemic is an unexpected event
and any occurrence of any unexpected and unnatural event lead to the invocation of
Force Majeure (ii), further it is also proved that pandemic is a Force majeure event
(iii).
i. The government itself considered COVID 19 as a Force Majeure event

62. The WHO officially declared COVID 19 outbreak as a pandemic 118 and it qualifies as
a „force majeure‟119. In furtherance of the notification released by WHO, Union of
114
Bench Memorandum, Statement of Facts, 12,14
115
Bench Memorandum, Statement of facts, 12
116
Union of India v M/s Gujrat Co-Operative Grain Growers Federation Ltd., 2009 SCC OnLine Del 3979.
117
Jakob Sørensen, FIDIC Red Book: A Companion to the 2017 Construction Contract (ICE Publishing 2019)
cl. 8.5.
118
WHO website contributors, „WHO Director-General's opening remarks at the media briefing on COVID-19‟
(World Health Organization, 11 March 2020) <https://www.who.int/director-general/speeches/detail/who-
director-general-s-opening-remarks-at-the-media-briefing-on-covid-19---11-march-2020> accessed 25 April
2022.
119
Devashree Ispat Private Limited v The State of Telangana and Ors., 2021 (5) ALD659.
MEMORANDUM FOR
-ARGUMENTS PAGE
India, vide its order dated 19.02.2020 has declared COVID 19 pandemic as a „force
majeure‟.120
63. The Delhi High Court in the MEP Infrastructure case,121 relied on the Ministry of
Roads Transport and Highways (MORTH) circular and observed that:122
“The Circular dated 19.02.2020 which was released by ministry of road transport
and highways notified that the COVID-19 pandemic was a force majeure occurrence.
In effect, the force majeure clause under the agreement immediately becomes
applicable and the notice for the same would not be necessary”
64. Further in the Tuticorn Stevedores case 123 on the question as to whether on account of
the pandemic outbreak of Covid-19, the parties can invoke the principle of force
majeure, it held that this question need not detain us and said that the calamitous
impact and disruption caused by Covid-19 on the economic front has been recognized
by the Government itself.124
65. In his mail dated 20th April 2020, Mr. Suresh the VP of the Employer mentioned that
“the employer did not consider COVID 19 pandemic to qualify as a force majeure
event”.125
66. The Government of India through various notifications has declared COVID 19 to be
a force majeure.126 The statement by Mr. Suresh that Force Majeure cannot be
invoked127 is contradicting with the notifications of the employer/government itself.
Therefore, his statement lies ineffective.
67. Further, Mr. Suresh also mentioned that a formal notice to the employer was not
served which was one of the requirements to invoke Force Majeure.128 Similar
situation persisted in the case of MEP infrastructure developers’ case,129 wherein
Delhi High Court held that “to invoke COVID-19 as a force majeure event there is no
need to serve a formal notice.”
120
Kaustuv Chunder, „Force Majeure: Evolution of Jurisprudence in India Post COVID-19‟ (Fox Mandal, 3
August 2021). < https://www.foxmandal.in/force-majeure-evolution-post-covid-19-2/> accesses 25 April 2022.
121
Mep Infrastructure Developers Ltd v South Delhi Municipal Corporation, LQ/DelHC/2020/2893.
122
Kaustuv Chunder, (n 120).
123
Tuticorin Stevedores Association v The Government of India, WMP (MD) No.6818 of 2020 and WMP(MD)
No.6217 of 2020.
124
ibid.
125
Bench Memorandum, Statement of facts, 24.
126
Kaustuv Chunder, (n 120).
127
128
ibid.
129
Mep Infrastructure (n 121).
MEMORANDUM FOR
-ARGUMENTS PAGE
ii. The COVID 19 Pandemic is an unusual and unexpected event

68. An event is considered to be as a force majeure event if it is external, unexpected
and unavoidable.130 Further, The Black‟s law dictionary131 defines Force Majeure as
an event that can neither be anticipated nor controlled.
69. RF Nariman J. in the case of Energy Watchdog v. Central Electricity Regulatory
Commission and Ors. Etc132 held that “Force Majeure clause includes events beyond
the control of parties to contract like an act of God, earthquake, fire, food, terror,
epidemics etc. and the circumstances which are necessary to be fulfilled for the
applications of this particular clause.”
70. In a response to prevent the spread of COVID 19, Asgardian govt. suddenly imposed
lockdown on 23rd March, 2020.133 The imposition of lockdown by the government led
to the disruption of the supply chain of the contractor; moreover, due to lockdown the
contractor proactively arranged for the commutation and sent all the migrant laborers
to their respective home states which caused shortage in labour. 134 All these uncertain
and unexpected events due to COVID made completion of project within the
timeframe impossible.
iii. Pandemic is a force majeure event
71. Although Indian Courts have not directly ruled on whether an pandemic like Covid-19
is an „Act of God‟, an argument to that effect can derive support from the decision of
the Supreme Court in Divisional Controller, Karnataka State Road Transport
Corporation v. Mahadeva Shetty135, which holds that the expression „Act of God‟
signifies the operation of natural forces free from human intervention with the caveat
that every unexpected natural event does not operate as an excuse from liability if
there is a reasonable possibility of anticipating their happening.
72. COVID 19 is an operation of natural forces free from human intervention. Moreover,
there was no reasonable possibility of anticipating that the COVID-19 pandemic will
130
Fareya Azfar, „The Force Majeure Excuse‟ Arab Law Quarterly, vol. 26, no. 2, 2012, pp. 249–53; A. Samer
Ezeldin and Amr Abu Helw, „Proposed Force Majeure Clause for Construction Contracts under Civil and
Common Laws‟ Journal of Legal Affairs and Dispute Resolution in Engineering and Construction, vol. 10, No.
3, 2018.
131
Bryan A. Garner (ed), Black's Law Dictionary (11th edn, Thomson Reuters West 2019).
132
Energy Watchdog v Central Electricity Regulatory Commission and Ors. Etc, (2017) 14 SCC 80.
133
134
135
Divisional Controller, Karnataka State Road Transport Corporation v Mahadeva Shetty, AIR 2003 SC 4172.
MEMORANDUM FOR
-ARGUMENTS PAGE
make such a significant impact on the world. Therefore, by the contentions provided
hereinabove136 it can be concluded that COVID-19 pandemic is an Act of God.
73. Further, in the present case, „Act of god‟ is part of the list of events in the contract
through which Force Majeure can be invoked137 and it has been proved hereinabove
that pandemic is an Act of God.138 Therefore, by connecting two different dots it can
be concluded that force majeure can be invoked due to pandemic.
C. SPECIFIC PERFORMANCE OF THE CONTRACT SHOULD NOT BE GRANTED

74. The specific performance claimed by the applicant should not be granted because
non-performance of the contract can be excused as the events occurred were
unanticipated (i); furthermore, the imposition of specific performance during this
period would be dangerous for the lives of the workers(ii).
i. Non-performance should be excused since the events occurred were
unanticipated
75. Non-performance of the contract stands excused when any force majeure event occurs
by reason of impediment beyond its control which could neither be foreseen at the
time of entering into the contract nor can the effect of the supervening event could be
avoided or overcome.139
76. If some unforeseen event occurs during the performance of a contract which makes it
impossible to perform the obligations of performance, in the sense that the
fundamental basis of the contract goes, it need not be further performed, as insisting
upon such performance would be unjust.140
77. As it has already been proved above that the event occurred was unanticipated, 141
hence, the non-performance of the contract can be excused 142 and insisting upon
specific performance in such circumstance would be unjust.143
78. Moreover, the constructors are justified in seeking extension 144 because imposition of
lockdown directly halted the construction activity as the supply chain of the
construction material has been broken in addition to the shortage of labor.145
136
Legal Pleading, 74.
137
Bench Memorandum, Annexure A, Clause 9: Force Majeure.
138
Legal Pleading, 74.
139
F A Tamplin Steamship Co., Ltd, and Anglo-Mexican Petroleum Products Co., Ltd (Re Arbitration) [1916]
UKHL 433.
140
Taylor v Caldwell [1863] EWHC QB J1.
141
Legal pleadings, 72,73.
142
F A Tamplin (n 139).
143
Taylor (n 140).
MEMORANDUM FOR
-ARGUMENTS PAGE
79. Also, when an unprecedented event occurs and the promisor is asking only for the
extension of time, similar to the present case 146, in such circumstances, the promisor
should not be absolved from their obligations and they can be provided with some
extra time for performing their contractual obligations.147
ii. Imposition of specific performance would be dangerous for the lives of the
workers
80. If an untoward event or change of circumstances totally upsets the very foundation
upon which the parties rested their bargain, in such a case the promisor will invoke
non-performance as the performance would be impracticable and useless from the
point of view of the object and purpose of the parties.148
81. In the present case, employer executed the tender for cleaning the river for the welfare
of the people.149 And on the other hand, it is seeking specific performance during the
time of COVID150 which could be harmful for many construction workers as they
would stay together in large numbers during the refurbishment phase which would
increase their chance of contacting COVID.
82. The very foundation upon which contract was bargained was for the welfare of the
people,151 and threatening their life for in order to complete the project on time upsets
the very foundation upon which bargain was rested. Therefore, specific performance
should not be granted.
83. CONCLUSION OF THE THIRD ISSUE: In the conclusion, it is submitted that there is no
breach of contract because time is not of the essence herein as nothing related to
essence of time has been stipulated in the contract, also, the force majeure clause will
be invoked because the occurrence of COVID 19 was unanticipated. Therefore, it is
submitted that no specific performance should be granted; and extension of time
should be given to the respondent for completion of the project.
144
Ram Singh and Utkarsh Leo, „COVID-19 and Supreme Court Contractual Disputes in India: A Law and
Economics Perspective‟ (2021) Economic and Political Weekly, Vol 56 (16) pp. 37-43
<https://ssrn.com/abstract=3831425> accessed 24 April 2022.
145
146
147
Ram Singh, „Efficiency of „simple‟ liability rules when courts make erroneous estimation of the damage‟
European Journal of Law and Economics, [2003] Vol. 16, pp. 39-58; Ram Singh, „Inefficiency and Abuse of
Compulsory Land Acquisition: An Enquiry into the Way Forward‟ Economic and Political Weekly, vol. 47, no.
19, 2012, pp. 46–53.
148
Satyabrata Ghose v Mugneeram Bangur & Co., and Anr, AIR 1954 SC 44.
149
150
151
MEMORANDUM FOR
-ARGUMENTS PAGE

SECTION 74 OF ICA FOR DELAY IN DESIGN AND PROCUREMENT
PHASE
84. The RESPONDENT submits that the CLAIMANT is not entitled to liquidated damages
because: firstly, there was no breach of contract (A); Secondly, damages were waived
off by the CLAIMANT (B); Thirdly, to claim damages, the Party making such claim has
to establish the loss (C).
A. THERE WAS NO BREACH OF CONTRACT
85. Irrespective of the nature of damages, breach of contract is the pre-condition to claim
the same;152 But in the present case the pre-condition itself is not satisfied because
there has been no breach of contract as: firstly, time is not of the essence (i); Secondly,
the first delay is attributable to the C LAIMANT (ii); thirdly, protests are an excusable
delay (iii).
i. Time is not of the essence
86. If time is not of the essence of the contract, then there could be
no breach of the contract on account of the delay on part of R ESPONDENT.153 Hence, as
there is no breach there could be no question of allowing liquidated damages.154
87. In the Welpsun seciality case, it was that held in the light of the pertinent
clauses of the contract, which contained provisions for extension of time,155
payment of penalty for delay,156 levy of liquidated damages, etc, such clauses diluted
time being of the essence and rendered the time-conditioned stipulation as
nugatory.157 Thus, liquidated damages could not be granted, since time is not the
essence of the contract.
ii. The first delay is attributable to the CLAIMANT
88. The right to levy liquidated damages arises only upon breach by the R ESPONDENT i.e.,
when the delay is attributable to the RESPONDENT.158 The RESPONDENT shall not be
152
Saradamani Kandappan v S. Rajalakshmi, AIR 2011 SC 3234.
153
Satyabrata Ghose (n 148).
154
Saradamani Kandappan (n 152).
155
Bench Memorandum, Clause 10: Extension of time.
156
Bench Memorandum, Clause 2: Contractor‟s obligations and milestones.
157
Welpsun Sociality Solutions v. ONGC Ltd. (2022) 2 SCC 382.
158
State Of Karnataka v Shree Rameshwara Rice Mills, Thirthahalli, AIR 1987 SC 1359.
MEMORANDUM FOR
-ARGUMENTS PAGE
liable to pay for any damages to the C LAIMANT, if the delay is due to the reason
attributable to the CLAIMANT or due to any reason beyond the control of the
contractor. In such a case, the contractor has a right for extension of time.159
89. Further, the rule as laid down in Percy Bilton Ltd. v. Greater London Council, 160
states that the promisor is bound to complete the obligation by the date of completion
stated in the contract. In addition, it was laid down that the promisee is not
entitled to liquidated damages, if by his act or omission he has prevented the promisor
from completing the work by the completion date.161
90. In the present case, the RESPONDENT made multiple requests162 to the CLAIMANT to
provide the information and documents which are pre-requisites163 for the
RESPONDENT to begin the work. The C LAIMANT provided such information after a
month,164 which is purely attributable to the C LAIMANT. Further, the CLAIMANT‟s
delayed to facilitate inspection of the sewage treatment plants as they gave a 4-month
later date,165 which caused further delays.
91. Therefore, the construction was delayed due to events which were not attributable to
the RESPONDENT and due to non-fulfilment of contractual obligations by the
CLAIMANT,166 and hence the CLAIMANT should be entitled to any liquidated damages
whatsoever.
iii. Protests are an excusable delay
92. The RESPONDENT is entitled to extension of time167 as there is an occurrence of force

majeure event as provided in clause 9 of the contract.168 Reliance on a force
majeure clause requires that the event be beyond the control and reasonable foresight
of the contracting parties, and the event should render performance of the contractual
obligations impossible.169 This can be proved by the fact that protest was
159
Ramnath International Construction (P) Ltd. v Union of India, (2007) 2 SCC 453.
160
Percy Bilton Ltd v Greater London Council (1982) 20 BLR 1.
161
Holmes v Guppy [1838] 150 ER 1195.
162
163
164
165
166
M/s. National Highways Authority of India v M/s. Hindustan Construction Co. Ltd., 2015 (153) DRJ 534.
167
Bench Memorandum, Clause 10: Extension of time.
168
Bench Memorandum, Clause 9: Force Majeure.
169
Janice M. Ryan, „Understanding Force Majeure Clauses‟ (Venable LLP, February 2011).
<https://www.venable.com/insights/publications/2011/02/understanding-force-majeure-clauses> accessed 24
April 2022
MEMORANDUM FOR
-ARGUMENTS PAGE
unforeseeable, beyond the control, and without the fault or negligence of the
RESPONDENT.170
93. In the present case there is an occurrence of a force majeure event as: Firstly, protests
are included as a ground to invoke force majeure in clause 9. 171 Secondly, the non-
performance was directly induced by the protests. 172 Thirdly, the protests which gave
rise to non-performance was outside the control of the party. 173 Fourthly, an alternate
or substitute process of fulfilling the performance does not exist.174
94. Further, contractors should be entitled to an extension of time if a relevant event is
likely to cause delay to completion of the works, and in the present case it is evident
that there was a disruption in supply chain and delay in the procurement process due
to protests.175
95. In the case of National Highway Authority of India v. M/s. Oriental Structural
Engineers Pvt. Ltd,176 the Tribunal noted that extraneous conditions which would
177
delay the work could not be attributable to the R ESPONDENT and the CLAIMANT in
such a case would not be entitled to claim loss of profit and cost compensation for
delay is alone to be considered.178
96. In the present case, the delay occurred due to the lassitude of the government and the
raging protests in the nation. Both the conditions are extraneous and the delay
therefore would not be attributable to the contractor.
97. Hence, liquidated damages should not be given because the delay arose from an
unforeseeable cause, beyond control and without fault or negligence of the
RESPONDENT.179
170
T. C. Bateson Construction Co. v United States 149 Ct. Cl. 514 (1960).
171
Prithviraj Nathan, „India: Legal Principles in Invoking Force Majeure Clauses – Case Law Analysis‟
(Mondaq, 01 May 2020) <https://www.mondaq.com/india/litigation-contracts-and-force-majeure/926356/legal-
principles-in-invoking-force-majeure-clauses-case-law-analysis> accessed 15 April 2022.
172
ibid.
173
ibid.
174
ibid.
175
Bench Memorandum, Statement of Facts, 16
176
M/s. National Highways Authority (n 166).
177
Iron and Hardware (India) Company, v Firm Shamlal & Bros, AIR 1954 BOM 423.
178
Indian Oil Corporation v Lloyds Steel Industries Ltd., 2007 SCC ONLINE DEL 1169.
179
Andrews Construction Company, Inc., GSBCA No. 4364, 11,598 (1976).
MEMORANDUM FOR
-ARGUMENTS PAGE
B. THE DAMAGES WILL BE WAIVED OFF BECAUSE THE DELAY WAS ATTRIBUTABLE
TO THE EMPLOYER
98. The claim for compensation by the contractor must be barred where works were
delayed and time for completion was extended on account of certain specific instances
beyond the control of the contractor.180 Further, in the Ramnath International
Construction case181, the Supreme Court held that when the extension of time is given
by the promisor on its own volition, this would bar the contractor‟s entitlement to
damages.
99. In the present case, the delay occurred due to the factors beyond the control of the
contractor182 and the extension of the time was also given by the employer on its own
volition.183 Taking into account the laws stated herein above, it is evident that the
situations persisted during both the phases bars the contractors claim to damages.
100. Further, it is to be noted that as the contract was spread over a long tenure; and the
intention of the parties to provide for extensions in time184 reinforces the fact that
timely performance is not necessary.185 It rather indicates the efforts by the CLAIMANT
to uphold the integrity of the contract instead of repudiating the same.
101. Therefore, it can be contended that the C LAIMANT provided for the extension of time
to uphold the integrity of the contract which reinforces the fact that timely performance
of the contract is not necessary and therefore contractor is not entitled to any sort of
damages.
C. THERE IS NO EVIDENCE OF LOSS OR DAMAGES
102. Substantial loss caused is a sine qua non186 for the applicability of Section 74.187
Where a Contract containing a „liquidated damages‟ clause has been breached, the
party claiming damages must establish the factum of loss, i.e., the existence of
loss or
180
Simplex Concrete Piles (India) Ltd v Union of India, (2010) ILR 2 (DEL) 699.
181
Ramnath International Construction (n 159).
182
Legal Pleading, 94
183
Bench Memorandum, Statement of Facts, 12.
184
185
International Labor Organization, “Non-Standard Employment around the world,”
<https://www.ilo.org/wcmsp5/groups/public/@dgreports/@dcomm/@publ/documents/publication/wcms_53432
6.pdf> Accessed at 20 April, 2022.
186
Indian Oil Corporation (n 178).
187
Indian Contract Act 1872, s 74.
MEMORANDUM FOR
-ARGUMENTS PAGE
damages caused to the non-defaulting party as a result of the defaulting party‟s

breach.188
103. It does not justify payment of compensation in a case where no loss or injury has in
fact occurred as a result of the breach.189 If liquidated damages are awarded to a person
claiming breach of Contract even when such person has not suffered any loss, it would
amount to unjust enrichment.190
104. In the present case, the CLAIMANTs are required to prove the degree of loss or damage
suffered as a result of delay in design and procurement phase. 191 Delay in these phases
did not cause any loss to the CLAIMANT as these were preliminary phases and delay in it
would not affect the actual performance of the contract.
105. In the case of Iron & Hardware (India) Co. v. Firm Shamlal & Bros,192 it was stated
that an automatic pecuniary liability does not arise in the event of a breach of a contract
which contains a clause for liquidated damages.193 Till the time, it is determined by the
court that the party complaining of the breach is entitled to damages, the plaintiff shall
not be granted compensation by the mere presence of a liquidated damages clause.194
106. The court had set aside the arbitral award on the ground that the award for grant of
liquidated damages had been made even though no evidence had been led to prove any
loss or damage.195 Thus, mere breach of contract does not warrant an automatic grant of
liquidated damages unless actual loss or injury is proven.196
107. Therefore, an automatic pecuniary liability does not arise in the event of a breach of a
contract which contains a clause for liquidated damages. Till the time, it is determined
by the court that the party complaining of the breach is entitled to damages, the plaintiff
shall not be granted compensation by the mere presence of a liquidated damages clause.
D. DUTY TO MITIGATE LOSSES IS INDISPENSABLE
108. Mitigation of losses by the C LAIMANT cannot be overlooked and warrant sufficient
consideration. It is notable that a party claiming damages for breach of a contract
188
M/S. Kailash Nath Associates v Delhi Development Authority, AIR 2015 SCW 759.
189
Fateh Chand v Balkishan Das, AIR 1963 SC 1405..
190
Indian Oil Corporation (n 178).
191
Fateh Chand, (n 189).
192
Iron and Hardware (n 177).
193
The Board of Trustees of Port of Mumbai v Gateway Terminals India Pvt Ltd, (2014) 2 Bom CR 7
194
Egon Zhender Internaional Pvt. Ltd. v Namgayal Institute for Research on Ladakhi Art and Culture; 2013 (4)
Arb.L.R. 273 (Delhi).
195
Raheja Universal Pvt. Ltd., Mumbai v B.E. Billimoria And Co. Ltd., Mumbai, 2016 SCC OnLine Bom 1399.
196
ibid.
MEMORANDUM FOR
-ARGUMENTS PAGE
should have performed or was willing to perform the requisite part of the contract.
Thus, prior to a claim of damages, the duty to mitigate losses is indispensable.197
109. The fundamental basis of a claim for damages is compensation for pecuniary loss
naturally flowing from the breach; but this must be qualified by an obligation on the
CLAIMANT to take all reasonable steps to mitigate the loss. 198 non-fulfilment of the
obligation, consequent on the breach, debars the party from claiming any part of the
damage which is due to his neglect to take such steps. 199 Thus, a party would not be
entitled to damages for losses which could have been reasonably avoided.200
110. In the present case, the CLAIMANT has not taken reasonable steps to avoid the delay.
Moreover, it is the CLAIMANT‟s conduct has caused delays. The R ESPONDENT was
prompt in replying to the emails; whereas; the C LAIMANT only replied after repeated
reminders. Thus, the CLAIMANT cannot claim for damages since his conduct is
responsible for delays.
111. Additionally, parties should ensure that they perform their obligations in a bona fide
manner to avoid any breach or subsequent losses, since the day contract is entered
into.201
112. CONCLUSION OF THE FOURTH ISSUE: In the conclusion, it is submitted that there is
no breach of contract because the delays are attributable to the claimant. Further, there
is no evidence of loss or damages. Therefore, the damages will be waived off due to the
above stated contentions.
197
British Westinghouse Electric Co Ltd v Underground Electric Railways Co of London Ltd. [1912] AC 673.
198
Union Of India v M/S. B Prahlad and Co., AIR 1976 Del 236.
199
Murlidhar Chiranjilal v Harishchandra Dwarkadasand Another, 1962 AIR SC 366.
200
M. Lachia Setty and Sons Ltd. v Coffee Board, Bangalore, AIR 1981 SC 162.
201
Burn And Co. Ltd v H.h. Thakur Sahib Shree Lakhdirjee, AIR 1924 CAL 427.
MEMORANDUM FOR
PAGE 25 OF
-PRAYER-
PRAYER
RESPONDENT respectfully requests the Hon‟ble Tribunal, on the basis of prior and foregoing
written submissions to FIND and DECLARE that:
1. To find and hold that the Tribunal should not exercise Jurisdiction since the parties
had not satisfied the pre-arbitral dispute escalation process.
2. To find and hold that the dispute between the parties should not be resolved in a
hearing convened remotely.
3. To find and hold that the Specific Performance of the outstanding Refurbishment
Phase should not be granted.
4. To find and hold that the CLAIMANT is not entitled to Liquidated Damages under
Section 74 of ICA for delay in Design and Procurement Phase.
Or any other order and/or declaration that the Tribunal may deem fit in light of justice,
equity and good conscience.
All of which is humbly prayed
DATED: 18-29 MAY, 2022 S/d-
COUNSELS for RESPONDENT
MEMORANDUM FOR

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TEAM CODE: TEAM MYRIAD

XV NATIONAL LAW SCHOOL TRILEGAL

BEFORE THE ARBITRAL TRIBUNAL

CLEAN HARSTARD LIMITED CLAIMANT

CLEAN-UP FISRT PRIVATE LIMITED RESPONDENT

MEMORANDUM FOR RESPONDENT

I. THE TRIBUNAL SHOULD NOT EXERCISE JURISDICTION SINCE THE PRE-

i. The correspondences do not fulfil the requirement for friendly discussions........................3

II. THE DISPUTE BETWEEN THE PARTIES MUST BE RESOLVED IN A

B. REMOTE HEARINGS IMPEDE THE EFFICIENT CROSS-EXAMINATION OF EXPERTS AND

AIR All India Reports

AIR All India Law Report

All ER (Comm) All English Law Reports (Commercial)

CLAIMANT Clean Harstrad Limited

CLC Civil Law Cases

CLUNET Journal du droit international (Journal of

E.C.R. European Court Reports

ECR European Court Law Report

EDNY United States District Court for the Eastern

Et al. et alia (and others)

EWHC The High Court of Justice in London

EWHC High Court of England and Wales

F. 2d Federal Reporter, Second Series

F. 3d Federal Reporter, Third Series

F. Supp, F Supp. 2d West‟s Federal Supplement

HKC Hong Kong Law report

IBA International Bar Association Rules on the

ICC International Chamber of Commerce

ICCA The International Council for

ICSID International Centre for Settlement of

LIX Belgrade Law Review

Lloyd's Rep Lloyd's Law Report

NY Convention Convention on the Recognition and

PCA Permanent Court of Arbitration Reports

PICC The Principles of International

QMUL Queen Mary University of London

RESPONDENT Clean-up First Private Limited

Rev. Arb Revue de l‟Arbitrage (Arbitration Review)

SCC Supreme Court Cases

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NewYork Convention 1985.......................................................................................................9

British Westinghouse Electric Co Ltd v Underground Electric Railways Co of London Ltd.

Andrews Construction Company, Inc., GSBCA No. 4364, 11,598 (1976)..............................21

Capic v Ford Motor Company of Australia [2021] FCA 715..............................................9, 11

ARTICLES AND ESSAYS

International Labor Organization, “Non-Standard Employment around the world,”..............22

Ellen van Beukering-Rosmuller & Patrick Van Leynseele, “Enforceability of Mediation