TEAM CODE: 08

10TH NATIONAL MOOT COURT COMPETITION

IN THE HON’BLE HIGH COURT OF DELPHI

IN THE MATTER OF: -

READON PVT. LTD. (RPL) ….

APPELLANTS

v.

LITHIUM EXTRACTOR PVT. LTD. (LEPL) ….

RESPONDENTS

UNDER SECTION 42 OF THE ARBITRATION AND CONCILIATION ACT, 1966

MEMORIAL ON BEHALF OF THE APPELLANT

 TABLE OF CONTENTS

S.NO. PARTICULARS PG NO.

1. ABBREVIATION 3

2. INDEX OF AUTHORITIES 4

CASES 4-6

BOOKS 7

STATUTES REFFERED 7

ARTICLES REFFERED 7-8

3. STATEMENT OF JURISDICTION 9

4. STATEMENT OF FACTS 10-11

5. ISSUES INVOLVED 12

6. SUMMARY OF ARGUMENTS 13

7. ARGUMENTS ADVANCED 14-29

8. PRAYER 30

2
Memorial on behalf of the Appellant
 ABBREVIATIONS

C.P.C : Code of Civil Procedure

EV : Electric Vehicles

Hon'ble : Honorable

LEPL : Lithium Extractor Pvt. Ltd.

MEP : Ministry of Energy and Power

MoME : Ministry of Mining and Extraction

RPL : Readon Pvt. Ltd.

SC : Supreme Court

S.C.C : Supreme Court Cases

Sec : Section

The Act : The Arbitration and Conciliation Act, 1966

UNCITRAL : United Nations Commission on International Trade Law

3
Memorial on behalf of the Appellant
 INDEX OF AUTHORITIES

CASES

1. Shiv Kumar Chadha V. MCD 1993 3 SCC 161

2. Seema Arshad Zaheer V. Municipal Corporation of Greater Mumbai 2006 SCC

OnLine SC 546

3. Saptarishi Hotels Pvt. Ltd. & Anr V. National Institute of Tourism and Hospitality
Management 2019 SCC OnLine TS 1765

4. Veda Research Laboratories V. Survi Prospects 2009 SCC OnLine Del 2298

5. Chunilala Kapoorchanji Shah V. Yuvraj Indt Ltd. Special Civil Application No.
14119 Of 2010

6. Firm Ashok Traders V. Gurumukh Das 2004 3 SCC 155

7. Nathi Devi V. Radha Devi Gupta 2004 SCC OnLine SC 1625

8. Rajendra Singh V. State of UP (Allahabad High Court, Service Bench No.1110 Of

2014)

9. Gail (India) Ltd. V. Latin Rasayani Pvt. Ltd. 2014 SCC OnLine Guj 14836

10. Madhavpura Mercantile Cooperative Bank Ltd V. Shah Bimani Chemicals Pvt. Ltd.
2014 SCC OnLine Guj 7964

11. Sudershan Rao & Others V. Evershine Builders Pvt. Ltd. 2012 SCC OnLine AP 682

4
Memorial on behalf of the Appellant
12. Wind World (India) Ltd. V. Enercon GMBH & Others 2019 SCC OnLine Bom 4799

13. Dirk India Pvt Ltd. V. Maharashtra Electricity Generator Company Ltd. 2013 SCC
OnLine Bom 481

14. Smt. Padma Mahadev V. M/S Sierra Constructions, Complaint No. Of Comap No. 2
Of 2021

15. Reliance Infrastructure Ltd. V. Roadway solutions 2021 SCC OnLine Bom 12 030

16. Mumbai corporation for the city of Kalyan and Dombivli V. Rudrann infrastructure
Ltd. 2017 SCC OnLine Bom 5504

17. Hindustan Construction Company Ltd. V. NHPC Ltd. 2020 4 SCC 310

18. Swiss Timing Limited V. Organising Committee, Commonwealth Games 2014 6

SCC 677

19. State of Maharashtra V. Atlanta Ltd. 2014 11 SCC 619

20. BALCO judgement Bharat Aluminium Co. V. Kaiser Aluminium Technical Service,
Inc 2012 9 SCC 648

21. BGS SGS Soma JV V. NHPC 2020 4 SCC 234

22. Indus Mobile distribution Pvt. Ltd V. Datawind Innovation Pvt. Ltd. & others 2017
7 SCC 678

23. Fouchard, Gaillard, Goldman on International Commercial Arbitration 575 Jena

Materile April 5, 1972. JC. 132, 1, 1pting Four De Cassation (Cass).

5
Memorial on behalf of the Appellant
24. International Airports Authority of India V. K.D. Bali and Anr 1988 2 SCC 360

25. M/S Voestalpine Schienen GMBH V. DMRC 2017 SCC OnLine SC 172

26. United Kingdom SC JIVRAJ 2011 UK SC 41

27. Hasmukh Lal H. Doshi V. M. L. Pendse 2000 SCC OnLine Bom 242

28. Jiwan Kumar Lohia and Anr V. Durga Dutt Lohia and Anr 1992 1 SCC 56

29. M/S. Lanco-Rani (JV) V. National Highways Authority of India 2016 SCC OnLine
Del 6267

30. Director General of Fair-Trading V. The Proprietary Association of Great Britain

Court of Appeal (Civil Division), United Kingdom Case No. C/2000/3582

31. A.K. Kraipak V. Union of India 1970 1 SCC 457

32. Union of India V. U.P. State Bridge Corporation Ltd. 2014 (3) Arb. Lr 538 (SC)

33. IJM-Gayatri Joint Venture V. National Highways Authority of India ILR (2012) III
Delhi 721

6
Memorial on behalf of the Appellant
 BOOKS

1. Law of Arbitration & Conciliation BY AVTAR SINGH (Eleventh Edition)

2. Law Relating to Arbitration and Conciliation in India BY PARANJAPE N.V.

3. Law of Arbitration and Conciliation in India 2nd Edition BY MISHRA S.S. (2010)

4. Law of Arbitration and Conciliation Eastern Law House, Calcutta BY MULLICK

(2001)

5. International Commercial Arbitration & Conciliation in UNCITRAL Model law

jurisdictions (2005) Sweet & Maxwell BY PETER BINDER

STATUTES REFERRED

1. The Arbitration and Conciliation Act, 19661

2. Code of Civil Procedure, 1908 (C.P.C.)

1
Amended as per Arbitration and Conciliation (Amendment) Act, 2021. (w.e.f. 11-3-2021)

7
Memorial on behalf of the Appellant
 ARTICLES REFERRED

1. The Importance of Being Independent: Laws of Arbitration, Rules, Guidelines - and

a Disastrous Award by Alan Redfern

2. Evolution of Prima Facie Special Equities in Light of Interim Injunctions under

Section9 of the Arbitration and Conciliation Act, 1996 by Priyanshi Sarin

3. The Unusual Case of Dirk India by Abhishek Shivpur

8
Memorial on behalf of the Appellant
 STATEMENT OF JURISDICTION

The Counsel on behalf of the Petitioner, in the instant matter, hereby, most humbly and
respectfully submits to the jurisdiction of Hon’ble High Court of Delphi invoked under Sec.
42 of The Arbitration and Conciliation Act, 1966.

9
Memorial on behalf of the Appellant
 STATEMENT OF FACTS

BACKDROP

Indiana, a sovereign republic in the southeastern part of Masia, is transitioning to electric

vehicles, with companies like Besla leading in EV manufacturing. The State of Indiana's Prime
Minister has announced an EV Policy-2030 to replace fuel-powered vehicles with electric ones.
Readon Pvt. Ltd. (RPL), a Mumbai-based company, dominates Indiana's Lithium battery
market, covering 56% of it. To meet demand, RPL imports Lithium from Australia. In 2005,
Indiana's Ministry of Mining and Extraction (MoME) discovered a vast Lithium reserve,
prompting companies, including RPL, to reconsider their contracts with foreign suppliers. In
August 2006, the Ministry of Energy and Power (MEP) declared that the newly found Lithium
would be reserved for Indiana's use. An entity called Lithium Extractor Pvt Ltd (LEPL),
controlled jointly by MEP and MoME, was established to mine Lithium.

COLLABORATION AGREEMENT

RPL, as a market leader, collaborated with LEPL, wherein RPL provided technological support
for Lithium extraction, and LEPL supplied Lithium to RPL at reduced rates through a 25-year
Collaboration Agreement dated 19.01.2007. (Exhibit A). Thanks to this agreement, RPL's
market share grew significantly, serving about 85% of Indiana's electric vehicle battery
demand. Encouraged by its success, RPL ventured into the automobile industry in partnership
with England-based SINO Automobiles Ltd, forming E-Wheel Pvt. Ltd (EPL) in January 2015.

COMMENCEMENT OF LEGAL ISSUES

During a press conference, RPL's chairman confirmed they wouldn't export Lithium but would
export batteries manufactured in Indiana, benefiting trade between Indiana and the UK. This
announcement surprised LEPL, which promptly terminated the Collaboration Agreement on
22.01.2016 (Exhibit B) and ceased Lithium supply to RPL.

10
Memorial on behalf of the Appellant
 LEGAL BACKDROP

In response, RPL sought court intervention to prevent termination, leading to an Interim Order.
The Court only granted relief to the RPL vide its order dated 22.01.2020 (“Interim Order”)
Subsequently, RPL issued the arbitration notice to the LEPL and nominated Mr. Harry Gujral
as a sole arbitrator. In response to the arbitration notice LEPL did not provide its consent to the
nomination of Mr. Harry Gujral. RPL filed a court application for the arbitrator's appointment,
and Dr. Bruce Wayne, a retired Chairman of the World Energy Forum, became the sole
arbitrator. Dr. Bruce extended the Interim Order until arbitration concluded. The arbitration
proceedings concluded on 21.03.2023, with the arbitrator rejecting all of RPL's claims in award
issued on 21.05.2023. After the passing of the Award RPL came to know about certain facts
about the Hon’ble Sole Arbitrator. RPL immediately moved to the Court for challenging the
Award stating that the Hon’ble Sole Arbitrator lacked independence and impartiality on the
following grounds:

a) Mr. Nylo Wayne, the brother of Mr. Bruce Wayne was head of MoME and MEP in the year
2001 and 2002. Further, Mr. Nylo Wayne was also heading the team which discovered the
Lithium reserve. However, he retired from his office in the year 2013.

b) The current Managing Director of MoE, who got appointed in the year January 2023,
completed his Ph.D. under the supervision of Mr. Bruce Wayne in the year 2010

RPL learned from its sources that LEPL in the year 2021-2022 i.e., during the pendency of
arbitration proceedings, placed an order of INR 500 Crores with M/s Magnetic Rovers Pvt Ltd
for purchasing excavators and cranes for mining of Lithium (“Transaction”). M/s Magnetic
Rovers Pvt Ltd is owned by Mr. Nylo Wayne and the stepson of Mr. Bruce Wayne. RPL to
fortify its claim of lack of independence of arbitrator, filed an application before the Court for
recovery of money against the Hon’ble Sole Arbitrator with respect to cost incurred in the
arbitration proceedings. RPL alleged that the said transaction was overpriced and indirectly a
fair share of INR 500 crore has been given to the Mr. Bruce Wayne, as he passed an award in
favour of LEPL.

11
Memorial on behalf of the Appellant
 ISSUES INVOLVED

ISSUE 1:

WHETHER THE COURT CAN GRANT INTERIM RELIEF IN FAVOUR OF RPL?

ISSUE 2:

WHETHER THE COURT HAS JURISDICTION TO ENTERTAIN LEGAL

PROCEEDINGS AGAINST THE SOLE ARBITRATOR?

ISSUE 3:

WHETHER THE ARBITRATION AWARD CAN BE SET-ASIDE ON GROUND OF

LACK OF INDEPENDENCE AND IMPARTIALITY?

12
Memorial on behalf of the Appellant
 SUMMARY OF ARGUMENTS

ISSUE ONE: WHETHER THE COURT CAN GRANT INTERIM RELIEF IN FAVOUR OF RPL?

The Appellant submits an interim injunction against the termination of a Collaboration

Agreement due to concerns about the Arbitrator's impartiality. It is argued that Sec 9 of the Act
allows both successful and unsuccessful parties to seek interim relief, emphasizing the need to
protect the rights of unsuccessful parties. The Appellant appeals to the Court to reconsider the
denial of interim relief and align with the objectives of Sec 9 for justice, equity and good
conscience

ISSUE TWO: WHETHER THE COURT HAS JURISDICTION TO ENTERTAIN LEGAL

PROCEEDINGS AGAINST THE SOLE ARBITRATOR?

The Appellant humbly contends the lack of impartiality and independence of the Sole
Arbitrator, Mr. Bruce Wayne, therefore, the Applicant has instituted in the present case to move
for the recovery of cost incurred. It is argued that, High Court of Delphi has exclusive
jurisdiction based on Sec 42 of The Act. We also emphasize the importance of good faith and
cite legal precedents to support their jurisdictional claim.

ISSUE THREE: WHETHER THE ARBITRATION AWARD CAN BE SET-ASIDE ON GROUND OF

LACK OF INDEPENDENCE AND IMPARTIALITY?

The Appellant seeks to set aside an arbitral award (“award”) from 21.05.2023 to reference with
Sec 34 of the Act, alleging a lack of independence and impartiality in the arbitrator, Mr. Bruce
Wayne. The challenge is based on Sec 12, highlighting undisclosed relationships and financial
interests. The Applicant contends that this contravenes natural justice principles and requests
the Court to nullify the award.

13
Memorial on behalf of the Appellant
 ARGUMENTS ADVANCED

ISSUE ONE

WHETHER THE COURT CAN GRANT INTERIM RELIEF IN FAVOUR OF RPL?

1. Readon Private Limited (RPL), hereinafter referred to as the 'Applicant', contends that
Lithium Extractor Pvt. Ltd. (LEPL), hereinafter referred to as the 'Respondent', was favoured
in the arbitral proceedings presided over by Mr. Bruce Wayne, the Sole Arbitrator hereinafter
referred to as the ‘Arbitrator’. The arbitration proceedings concluded on 21.03.2023, with the
Arbitrator dismissing all claims of the Applicant via an award dated 21.05.2023 ('Award'). The
award was based on findings that the Applicant, through LEPL, had diverted lithium, purchased
at subsidised prices, outside of Indiana. This diversion, in the form of supplying batteries, was
contrary to the Collaboration Agreement (Exhibit A). Subsequent to the award, the Applicant
uncovered certain facts regarding the Arbitrator which prompted a challenge to his
independence and impartiality. Thus, the Applicant most respectfully submits to the Hon’ble
Court a plea for an interim injunction against the termination notice related to the Collaboration
Agreement until a decision on the Arbitrator's impartiality and independence is made.

2. As per Sec. 9 of The Act- Interim measures, etc. by Court. —

A party may, before or during arbitral proceedings or at any time after the making of
the arbitral award but before it is enforced in accordance with Sec. 36, apply to a
court—

(ii) for an interim measure of protection in respect of any of the following matters,
namely: —

(d) interim injunction or the appointment of a receiver

(e) Such other interim measure of protection as may appear to the Court to be just and
convenient, and the Court shall have the same power for making orders as it has for
the purpose of, and in relation to, any proceedings before it.

14
Memorial on behalf of the Appellant
3. To grant interim relief under Sec. 9, three general principles are taken into consideration
under the C.P.C. i.e., (i) prima facie case, (ii) balance of convenience and inconvenience and
(iii) irreparable injury23. We respectfully submit that the Applicant has suffered a grave
injustice during the arbitration proceedings due to the lack of independence and impartiality on
the part of the Hon’ble Sole Arbitrator Mr. Bruce Wayne. The Applicant has a right to pursue
an application under Sec. 34 to set aside the arbitral award and ensure a fair decision is being
made. To make this possible, an interim injunction on the termination notice is a necessary and
justified action.

4. The parties in arbitral proceedings are entitled to procure an interim remedy from the Court
as per the above-stated statute. Sec. 9 does not preclude any party successful (winning party)
or unsuccessful (losing party) from moving to the Court for interim relief. According to the
rule of literal interpretation, Sec. 9 of the Act stipulates that any ‘party’ to arbitral proceedings
can seek interim measures from Court at any time after making of the arbitral award but before
it is enforced in accordance with Sec. 36 of the Act. A mere perusal of the said provision makes
it abundantly clear that the provision is party neutral, i.e., it does not distinguish between a
successful party and unsuccessful party. Hence, in the absence of any ambiguity in the language
of Sec. 9 of the Act, it will be contrary to scheme of the Act to deny the post award interim
measures to the unsuccessful party.

5. In the case of Saptarishi Hotels Pvt. Ltd. & Anr v. National Institute of Tourism and
Hospitality Management4, the Telangana High Court noted that as per Sec. 2 (1)(h) of the Act
the term ‘party’ under Sec. 9 means any party in arbitration agreement. The fabricated
distinction between parties goes against the rule of literal interpretation. As already stated,
above Sec. 9 of the Act itself entitles ‘any party’ to obtain interim relief from the Court at three
stages, i.e. (i) Before the commencement of arbitration proceedings; (ii) During the course of
the arbitration proceedings;(iii) After the arbitral award is made but prior to its enforcement.56
The term ‘party’ has been defined under Sec. 2(1)(h) of the Act as a ‘party to an arbitration
agreement’. Hence, applying the literal rule of interpretation of statutes, all parties, i.e., the
successful and the unsuccessful parties, are equally entitled to approach the Court to avail the

2
Shiv Kumar Chadha v. MCD 1993 3 SCC 161
3
Seema Arshad Zaheer v. Municipal Corporation of Greater Mumbai 2006 SCC OnLine SC 546
4
Saptarishi Hotels Pvt. Ltd. & Anr v. National Institute of Tourism and Hospitality Management 2019 SCC
OnLine TS 1765
5
Veda Research Laboratories v. Survi Prospects 2009 SCC OnLine Del 2298
6
Chunilala Kapoorchanji Shah v. Yuvraj Indt Ltd. Special Civil Application No. 14119 Of 2010

15
Memorial on behalf of the Appellant
remedy provided under Sec. 9 at any stage. The text of Sec. 9, thus, draws no distinction
between the rights of the successful and the unsuccessful party in the arbitration proceedings
to seek interim relief from the Courts. Therefore, so long as the Court finds merit in the Sec. 9
application filed by an unsuccessful party in the arbitration proceedings, the Courts may grant
appropriate relief to the unsuccessful party even after the arbitral award is made.7

6. The Supreme Court in the case of Nathi Devi v Radha Devi Gupta8 elucidated the doctrine
of Literal interpretation which states that if the words in a statute are plain and unambiguous,
they should be expounded in their natural and ordinary sense. Further, giving a selective
interpretation to the term “a party” only in respect of interim measures sought after the arbitral
award is made but before it is enforced would lead to an absurd and anomalous result. Also, it
denies a party to the arbitration agreement a right conferred on it by the Arbitration Act. A right
conferred by a statute can only be taken away by a legislative enactment. The Courts do not
have the power to amend a statute.9

7. Though, the Hon’ble Supreme Court presently has not conclusively adjudicated the debate
as to parties eligible under Sec. 9 (successful or unsuccessful). Various petitions are still
pending regarding this. The Hon’ble High Courts of Gujarat in the case of Gail (India) Ltd. v.
Latin Rasayani Pvt. Ltd.10 held that Sec.9 does not make a distinction between a winning party
and a losing party. Both the parties are entitled to approach the Court for grant of interim
measure. In the Latin Rasayani case11," the Respondent was before the Gujarat High Court in
appeal under sec. 37 of the Act against the order of Additional District Judge, Vadodara, in a
petition under sec. 9 for interim relief. The Gujarat High Court affirmed the interim order
passed by the Additional District Judge, Vadodara. The High Court relied on its judgement in
Madhavpura Mercantile Cooperative Bank Ltd v Shah Bimani Chemicals Pvt Ltd12,"

8. The Hon’ble High Court of Andhra Pradesh in the case of Sudershan Rao & Others v.
Evershine Builders Pvt. Ltd13., Bandra, West Mumbai and Another has given positive views
on this matter saying that the losing party can get interim relief from the Court. They have held

7
Firm Ashok Traders v. Gurumukh Das 2004 3 SCC 155
8
Nathi Devi v Radha Devi Gupta 2004 SCC OnLine SC 1625
9
Rajendra Singh v State of UP (Allahabad High Court, Service Bench No.1110 of 2014)
10
Gail (India) Ltd. v. Latin Rasayani Pvt. Ltd. 2014 SCC OnLine Guj 14836
11
ibid
12
Madhavpura Mercantile Cooperative Bank Ltd v Shah Bimani Chemicals Pvt. Ltd. 2014 SCC OnLine Guj 7964
13
Sudershan Rao & Others v. Evershine Builders Pvt. Ltd. 2012 SCC OnLine AP 682

16
Memorial on behalf of the Appellant
that an unsuccessful party could avail post award interim measures too inter alia on the grounds
that:

(i) A Court under Sec. 34 of the Act can modify or vary the findings of the arbitral tribunal,
and not merely set aside the arbitral award;

(ii) An unsuccessful party cannot be left remediless during the pendency of a petition under
Sec. 34 of the Act;

(iii) The plain language of Sec. 9 of the Act does not make any distinction between a successful
party and an unsuccessful party. Sec. 9 of the Act itself does not bar any party from approaching
the Court to seek interim measures under any given situation.

9. We humbly request The Hon’ble Court to not incapacitate themselves from granting interim
relief in favour of the unsuccessful party in cases where the relief sought creates no negative
impact on the rights of the successful party over the subject matter of the dispute. In the present
matter, granting an interim injunction in favour of the Appellant would not hamper any rights
of the Respondent but not granting the injunction to the Appellant would surely grave injustice.
For instance, in Wind World14 (supra), the interim relief sought by the unsuccessful party under
Sec. 9 was the continuation of confidentiality of certain documents during the pendency of the
Sec. 34 application filed before the Court for setting aside the arbitral award. However, the
Bombay High Court placed reliance on Dirk India15 (supra) and dismissed the application. It
is pertinent to mention that in Wind World16 (supra), the Court failed to notice that the aforesaid
relief sought by the unsuccessful party did not create any hindrance on the rights of the
successful party over the subject matter of the dispute. Such reliefs are preventive measures
that ensure the protection of the unsuccessful party’s rights, in case the arbitral award is set
aside by the Court. Therefore, in such situations, there can be no justified reason to completely
prevent the Courts from granting interim relief in favour of the unsuccessful party.

10. If the interpretation given by the Bombay High Court in Dirk India17 is accepted, it will
result in an unsuccessful party to an arbitral award being left without remedy and without any
ad-interim protection during the pendency of its petitions under Sec. 34 and 37 of the Act. The

14
Wind World (India) Ltd. v. Enercon GmbH & Others 2019 SCC OnLine Bom 4799
15
Dirk India Pvt Ltd. Vs. Maharashtra Electricity Generator Company Ltd. 2013 SCC OnLine Bom 481
16
ibid
17
ibid

17
Memorial on behalf of the Appellant
unsuccessful party can neither institute fresh arbitral proceedings nor lodge a suit in relation to
the disputes that are the subject matter of the arbitral award under challenge under Sec. 34/37
of the Act owing to the ‘Doctrine of Res Judicata’. Therefore, there is every likelihood that the
successful party may render the setting aside proceedings under Sec. 34 and 37 of the Act
illusionary and otiose by disposing off or creating third party interests on the subject matter of
the arbitral dispute. Hence, the view that an unsuccessful party cannot seek post award interim
measures results in a serious risk of the rights conferred on the unsuccessful party under Sec.
34 and 37 of the Act being rendered otiose.

11. The Hon’ble Bombay High Court in the Dirk India18 seems to have missed out on the
possibility that, after an award is quashed, the losing party could become the winning party and
seek the enforcement of the award. After the Court quashes an award, the parties reserve the
right to pursue the arbitral proceedings under Sec. 43(4)19 of the Act. Hence, in the second
proceedings, the former losing party might win and seek a claim over the subject-matter.
Further, if the subject-matter was not preserved by providing interim protection in the first
proceedings, the newly won party will not be able to get a realizable claim leading to failure of
the purpose of Sec. 9. Therefore, the reasonings applied in Sierra Constructions20 and Dirk
India21 contradict with those of Saptarishi Hotels22 and GAIL India23 wherein the respective
High Courts have held that modification to an arbitral award can be made under Sec. 34 and
either party can seek interim remedy under Sec. 9.

12. Particularly, in the wake of the 2019 Amendment24 to Sec. 1725 of the Act, in the post-award
period, a party can only seek interim relief from the Courts and not from the arbitral tribunal.

18
ibid
19
43. Limitations: -
(3) Where an arbitration agreement to submit future disputes to arbitration provides that any claim to which the
agreement applies shall be barred unless some step to commence arbitral proceedings is taken within a time fixed
by the agreement, and a dispute arises to which the agreement applies, the Court, if it is of opinion that in the
circumstances of the case undue hardship would otherwise be caused, and notwithstanding that the time so fixed
has expired, may on such terms, if any, as the justice of the case may require, extend the time for such period as
it thinks proper.
20
Smt. Padma Mahadev v. M/S Sierra Constructions, Complaint no. of COMAP no. 2 of 2021
21
ibid
22
ibid
23
ibid
24
The Arbitration and Conciliation (Amendment) Act 2019
25
17. Interim measures ordered by arbitral tribunal. —
(1) Unless otherwise agreed by the parties, the arbitral tribunal may, at the request of a party, order a party to take
any interim measure of protection as the arbitral tribunal may consider necessary in respect of the subject-matter
of the dispute.
(2) The arbitral tribunal may require a party to provide appropriate security in connection with a measure ordered
under sub-section (1).

18
Memorial on behalf of the Appellant
Thus, at such a stage, the only resort losing parties have been approaching the Courts which
when denied leaves them remediless.

13. The very essence of Sec. 9 of the Act is to ensure that parties to an arbitration agreement
are not prejudiced due to the non-availability of interim protections while the dispute awaits its
resolution by the arbitrator. The safeguards provided under this provision are aimed at
preserving the subject matter of arbitration, preventing harm or prejudice to any of the parties,
and ensuring the effectiveness of the arbitration award. In light of the previous decisions, while
we respect the Hon’ble High Court’s discretion in not granting the interim relief sought under
Sec. 9, we humbly submit that the very principles and objectives behind the said provision
underscore the need for the protection of our client's rights and interests. The denial of interim
relief in the current situation, in our respectful submission, may lead to irreparable harm to our
client and possibly render any subsequent arbitral award in our favour ineffectual.

14. We reiterate our faith in the judicial system and the arbitral process. We hope, however,
that as the arbitral proceedings advance, the Hon’ble Court considers the gravity of the situation
and the potential consequences for the parties involved. Given the urgency and significance of
the matter, we earnestly implore this Hon’ble Court to reconsider the unique circumstances of
our case. We submit that granting the interim relief sought would not only align with the
objectives of Sec. 9 but would also further the cause of Justice, Equity, and Good Conscience.

ISSUE TWO

WHETHER THE COURT HAS JURISDICTION TO ENTERTAIN LEGAL

PROCEEDINGS AGAINST THE SOLE ARBITRATOR?

1. It is submitted that the Hon’ble Sole Arbitrator Mr. Bruce Wayne lacks impartiality and
independence. Therefore, the appellant would like to move for the recovery of cost incurred
from the Sole Arbitrator in the arbitration proceedings leading to the award dated 21.05.2023.

2. As per Sec. 42 of the Act- Jurisdiction. —

Notwithstanding anything contained elsewhere in this Part or in any other law for the
time being in force, where with respect to an arbitration agreement any application

19
Memorial on behalf of the Appellant
 under this Part has been made in a Court, that Court alone shall have jurisdiction over
the arbitral proceedings and all subsequent applications arising out of that agreement
and the arbitral proceedings shall be made in that Court and in no other Court.

3. Essentially, it provides for the exclusivity of jurisdiction once a court, Court herein as
defined by Sec. 2(1)(e) of the Act26. is approached with any application related to a particular
Arbitration Agreement.2728 It establishes that if any application concerning an Arbitration
Agreement has been made in a particular court, then that specific court will have exclusive
jurisdiction over all matters related to that Arbitration Agreement.29 As in the present case, the
application for appointing the Hon’ble Sole Arbitrator was before the learned High court of
Delphi. This also gives grounds to the learned court to decide on claim with respect to the Sole
Arbitrator’s actions during the arbitration proceedings.

4. As per Sec. 42B. Protection of action taken in good faith. -- No suit or other legal
proceedings shall lie against the arbitrator for anything which is in good faith done or intended
to be done under this Act or the rules or regulations made thereunder30. Though, the recent
2019 amendment protects the arbitrator from any legal proceedings it also sets good faith as an
irreplaceable criterion to get such a protection. The mere existence of such immunity is enough
evidence that the Learned Court has jurisdiction to hear matters regarding the Sole Arbitrator.

5. Good faith is widely interpreted as a bonafide intention of the parties involved. It can be
reasonably contented by facts presented before the hon’ble court that such a bonafide intention
was not portrayed by him. Thus, he would not be entitled to protection as per Sec. 42B.

6. In the case of Swiss Timing Limited v. Organising Committee, Commonwealth Games31, the
Hon’ble Supreme Court discussed Sec. 42 and held that if a request under Sec. 11 of the Act
(appointment of arbitrators) is made to a High Court, all subsequent applications arising out of

26
2. Definitions. — (e) “Court” means the principal Civil Court of original jurisdiction in a district, and includes
the High Court in exercise of its ordinary original civil jurisdiction, having jurisdiction to decide the questions
forming the subject-matter of the arbitration if the same had been the subject-matter of a suit, but does not include
any civil court of a grade inferior to such principal Civil Court, or any Court of Small Causes
27
Reliance Infrastructure Ltd. v. Roadway solutions 2021 SCC OnLine Bom 12 030
28
Mumbai corporation for the city of Kalyan and Dombivli v. Rudrann infrastructure Ltd. 2017 SCC OnLine Bom
5504
29
Hindustan Construction Company Ltd. v. NHPC Ltd. 2020 4 SCC 310
30
Inserted by the Arbitration and Conciliation (Amendment) Act, 2019. (w.e.f. 30-8-2019)
31
Swiss Timing Limited v. Organising Committee, Commonwealth Games 2014 6 SCC 677

20
Memorial on behalf of the Appellant
the arbitration agreement should be made to that High Court, even if another court has
jurisdiction under Sec. 16 to 20 of the C.P.C.32

7. In the BALCO judgement Bharat Aluminium Co. v. Kaiser Aluminium Technical Service,
Inc.33 the judgement read as a whole declares that once the seat of arbitration is designated,
such clause then becomes an exclusive jurisdiction clause as a result of which only the courts
where the seat is located would then have jurisdiction to the exclusion of all other courts.

8. In the case of BGS SGS Soma JV v. NHPC34, it was stated “Sec. 42 is meant to avoid conflicts
in jurisdiction of courts by placing the supervisory jurisdiction over all arbitral proceedings in
connection with the arbitration in one court exclusively. This is why the section begins with a
non-obstante clause, and then goes on to state '…..where with respect to an arbitration
agreement any application under this Part has been made in a court...' It is obvious that the
application made under this part to a court must be a court which has jurisdiction to decide
such application. The subsequent holdings of this Court, that where a seat is designated in an
agreement, the courts of the seat alone have jurisdiction, would require that all applications
under Part I be made only in the Court where the seat is located and that Court alone then has
jurisdiction over the arbitral proceedings and all subsequent applications arising out of the
arbitral agreement.”

9. It is evident from the aforementioned arguments and principles laid down in established
precedents that the jurisdictional aspect of the arbitration process is a significant feature. The
contention regarding the Hon’ble Sole Arbitrator and his lack of impartiality and independence
raises serious concerns. The guiding principles of good faith and Swiss timing Ltd. Vs
Organising Committee35 and Indus Mobile distribution Pvt. Ltd36. fortifies the importance of
the exclusivity of Jurisdiction of the Hon'ble High Court of Delphi. These precedents are
testament to the fact that the framer’s intention was to minimise confusion and offer a
streamlined process.

10. The Applicant respectfully submits that the arbitrator has justifiable doubts as to his
independence and impartiality and it is due to these doubts that have arisen during the course

32
State of Maharashtra v. Atlanta Ltd. 2014 11 SCC 619
33
BALCO judgement Bharat Aluminium Co. v. Kaiser Aluminium Technical Service, Inc 2012 9 SCC 648
34
BGS SGS Soma JV v. NHPC 2020 4 SCC 234
35
ibid
36
Indus Mobile distribution Pvt. Ltd v. Datawind Innovation Pvt. Ltd. & others 2017 7 SCC 678

21
Memorial on behalf of the Appellant
of arbitration proceedings the applicant has faced the need to set aside the arbitral award and
possibly incur the costs of the new arbitration. Thus, as per Sec. 42 of the Act the High Court
of Delphi would have exclusive jurisdiction in the matter.

11. It is humbly submitted that the learned High Court of Delphi to duly consider these legal
provisions, precedents and arguments in arbitration proceedings. Also, the merits of the claim
made by the appellant specially concerning the conduct of the arbitrator and render a decision
that upholds not just the letter but the very spirit of the Act.

ISSUE THREE

WHETHER THE ARBITRATION AWARD CAN BE SET-ASIDE ON GROUND OF

LACK OF INDEPENDENCE AND IMPARTIALITY?

1. The Applicant respectfully submits before the Hon'ble Court that the arbitral award dated
21.05.2023 to be set aside on the grounds of lack of impartiality and independence of the
hon'ble Sole Arbitrator Mr. Bruce Wayne. The circumstances contributing to the lack of
independence and impartiality were discovered by the Applicant after the award had been
passed i.e., after 21.05.2023.

2.The Applicant contends that the arbitral award delivered on 21.05.2023 by Mr. Bruce Wayne
lacks the essential attributes of impartiality and independence. Crucial information challenging
the arbitrator's neutrality surfaced post the delivery of the award.

3.As per Sec. 12 of the Act.

Grounds for challenge—

(1) When a person is approached in connection with his possible appointment as an

arbitrator, he shall disclose in writing any circumstances likely to give rise to justifiable
doubts as to his independence or impartiality.

(a) such as the existence either direct or indirect, of any past or present relationship
with or interest in any of the parties or in relation to the subject-matter in dispute,

22
Memorial on behalf of the Appellant
 whether financial, business, professional or other kind, which is likely to give rise to
justifiable doubts as to his independence or impartiality; and

Explanation 1. —The grounds stated in the Fifth Schedule shall guide in determining
whether circumstances exist which give rise to justifiable doubts as to the independence
or impartiality of an arbitrator.

Explanation 2. —The disclosure shall be made by such person in the form specified in
the Sixth Schedule.]

(2) An arbitrator, from the time of his appointment and throughout the arbitral
proceedings, shall, without delay, disclose to the parties in writing any circumstances
referred to in sub-section (1) unless they have already been informed of them by him.

(3) An arbitrator may be challenged only if—

(a) circumstances exist that give rise to justifiable doubts as to his independence or
impartiality.

4. Sec. 12 of the Act explicitly outlines, the obligation of prospective arbitrators to disclose any
potential bias or conflicting interests. The continuous duty of the arbitrator to reveal any
circumstances that might jeopardise their impartiality. The permissibility of challenging an
arbitrator's position based on justifiable doubts about their independence or impartiality.

5. In a judgement delivered by Cour de cassation, France, in 1972 in the case of Consorts

Ury37, underlined that "an independent mind is indispensable in the exercise of judicial power,
whatever the source of that power may be, and it is one of the essential qualities of an
arbitrator."

6. The following facts raise serious questions about Mr. Bruce Wayne’s impartiality:

i. Mr. Bruce Wayne’s familial ties with Mr. Nylo Wayne, who held influential positions at
the Ministry of Mining and Extraction (MOME) & Ministry of Energy and Power (MEP) and
was integral to the situation lithium discovery.

37
Fouchard, Gaillard, Goldman on International Commercial Arbitration 575 jena materile Apr. 5, 1972. JC. 132,
1, 1Pting four de cassation (Cass)

23
Memorial on behalf of the Appellant
 ii. The recent appointment of a Managing Director at MOE, formerly mentored by Mr.
Bruce Wayne.

iii. During the pendency of the arbitral proceedings, the Respondent placed an order of INR
500 crores with M/S Magnetic Rovers Pvt. Ltd. for purchasing excavators and cranes for
mining of lithium (transaction). M/S Magnetic Rover Pvt. Ltd. is owned by Mr. Nylo Wayne
and the stepson of Mr. Bruce Wayne.

7. In the case of International airports authority of India v. K.D. Bali and anr38, it was
established that “Once the arbitrator enters in an arbitration, the arbitrator must not be guilty
of any act which can possibly be construed as indicative of partiality or unfairness. It is not a
question of the effect which misconduct on his part had in fact upon the result of the
proceedings, but of what effect it might possibly have produced. It is not enough to show that,
even if there was misconduct on his part, the award was unaffected by it, and was in reality
just ; the arbitrator must not do anything which is not in itself fair and impartial. The party to
the proceedings should not have apprehension that the authority is biased and is likely to
decide against the party.”

8. We respectfully contend that the said ‘transaction’ was overpriced and indirectly a fair share
of INR 500 crore has been given to Mr. Bruce Wayne as he passed an award in favour of the
respondent. We also contend that the first arbitrator nominated by RPL was rejected by LEPL
as they wanted an arbitrator which they could influence. The neutrality aspect has been defined
in the case of M/S Voestalpine Schienen GMBH v DMRC39 "as they had direct or indirect nexus
with the respondent and the petitioner has reasonable apprehension of likelihood of bias on
the part of such persons appointed as arbitrator who were not likely to act in an independent
and impartial manner." They here being the Hon'ble Sole Arbitrator Mr. Bruce Wayne. It can
be clearly established there being a lack of neutrality.

9. We submit before the Hon’ble Court that the above stated circumstances and the
‘transaction’ by a reasonable man can be easily considered to be indicative of unfairness and
partiality on the part of the Sole Arbitrator Mr. Bruce Wayne making him motivated to decide

38
International airports authority of India v. K.D. Bali and anr 1988 2 SCC 360
39
M/S Voestalpine Schienen GMBH v DMRC 2017 SCC OnLine SC 172

24
Memorial on behalf of the Appellant
against the Appellant and thus the interim award should be set aside on it being contra venous
with public policy of India and basic notions of justice.

10. The Hon’ble Court in the M/S Voestalpine40 case further stated that “Independence and
impartiality of the arbitrator are the hallmarks of any arbitration proceedings. Rule against
bias is one of the fundamental principles of natural justice which applies to all judicial and
quasi-judicial proceedings. It is for this reason that notwithstanding the fact that relationship
between the parties to the arbitration and the arbitrators themselves are contractual in nature
and the source of an arbitrator's appointment is deduced from the agreement entered into
between the parties, notwithstanding the same non-independence and non-impartiality of such
arbitrator (though contractually agreed upon) would render him ineligible to conduct the
arbitration. The genesis behind this rationale is that even when an arbitrator is appointed in
terms of contract and by the parties to the contract, he is independent of parties. Functions and
duties require him to rise above the partisan interest of the parties and not to act in, or so as
to further, the particular interest of either parties. After all, the arbitrator has an adjudicatory
role to perform and, therefore, he must be independent of parties as well as impartial.”

11.The fifth schedule as mentioned in Sec. 12 of the Act states the grounds which shall guide
in determining whether circumstances exist which gives rise to justifiable doubt as to the
independence and impartiality of an arbitrator. we move that according to the facts stated above
the following grounds give rise to justifiable doubts as to the independence or impartiality of
arbitrators:

i) Arbitrator’s relationship with the parties or counsel

(10) A close family member of the arbitrator has a significant financial interest in one
of the parties or an affiliate of one of the parties.

ii) Arbitrator’s direct or indirect interest in the dispute

(18) A close family member of the arbitrator has a significant financial interest in the
outcome of the dispute.

40
ibid

25
Memorial on behalf of the Appellant
 Explanation 1. —The term “close family member” refers to a spouse, sibling, child,
parent or life partner.

12. Mr. Bruce Wayne's brother Mr. Nylo Wayne is the part-owner of M/S Magnetic Rover Pvt.
Ltd. taking part in the aforesaid 'transaction' and thus, falls directly in the subjects stated in the
fifth schedule. Further, Mr. Bruce Wayne's step-son is also a part-owner of the same company
involved in the 'transaction'. "The arbitrator is in critical respect independent of the parties.
his functions and duties require him to rise above the partisan interest of the parties and not
to act in, or as to further the particular interest of either parties'' 41 which we believe Mr. Bruce
Wayne did not do this case.

13. As per Sec. 34 of the Act states - Application for setting aside arbitral awards.

(1) Recourse to a Court against an arbitral award may be made only by an application
for setting aside such an award in accordance with sub- section (2) and sub-section (3).

(2) An arbitral award may be set aside by the Court only if–

b) the Court finds that--

(ii) the arbitral award is in conflict with the public policy of India.

1[Explanation 1. --For the avoidance of any doubt, it is clarified that an award is in

conflict with the public policy of India, only if, --

(i) the making of the award was induced or affected by fraud or corruption or was in
violation of Section 75 or Section 81; or

(ii) it is in contravention with the fundamental policy of Indian law; or

(iii) it is in conflict with the most basic notions of morality or justice.

14. Sec. 12 (2) of the Act obligates the Arbitrators to remain neutral and to disclose to the
parties any acts or omissions that would likely to raise doubts in the eyes of the parties
regarding their independence and impartiality. The principle of “nemo debet esse judex in
propria causa sua” meaning no one shall be a judge in their own cause is the basis of Sec.12

41
United Kingdom SC Jivraj 2011 UK SC 41

26
Memorial on behalf of the Appellant
(2) of the Act. The Appellant not only has enough reasons to doubt the Arbitrator but these
doubts are reiterated by lack of statutory disclosure mandatory for the Arbitrator.

15. The Court in Hasmukhlal H. Doshi v. M. L. Pendse42 held that “bias may be defined as a
preconceived opinion or a predisposition or predetermination to decide a case or an issue in
a particular manner, so much so that such predisposition does not leave the mind open to
conviction”. We most believe that the Arbitrator had a pre-determination to decide the award
against the Appellant. Thus, making the award ineligible.

16. In the case of Jiwan Kumar Lohia and anr v. Durga Dutt Lohia and anr43, it was stated that
“With regard to bias in relation to a judicial tribunal the test that is applied is not whether in
fact a bias has affected the judgment but whether a litigant could reasonably apprehend that a
bias attributable to a member of the tribunal might have operated against him in the final
decision of the tribunal. "The test of likelihood of bias is whether a reasonable person, in
possession of relevant information, would have thought that bias was likely" and whether the
person concerned "was likely to be disposed to decide the matter only in a particular way".
These tests would also apply to an arbitrator. Considering the present facts, the Applicant can
reasonably apprehend that bias was likely and the arbitrator was likely to dispose the matter in
a particular way.

17. The Applicant further submits under Sec. 34(2)(b)(ii)(i) of the Act, the award must be set
aside as Mr. Bruce Wayne's association and the resultant financial implications on him
inherently affects the impartiality of the award and contravenes with the principles of natural
justice.

18. A similar conclusion was also reached by The Delhi High Court in the case of M/s. Lanco-
Rani (JV) v. National Highways Authority of India44, where the Court observed that the
statutory requirement for an Arbitrator to disclose details not only at the beginning of the
arbitral proceedings but also at all stages is based on one of the principles of natural justice
concerning bias. Even if the present arbitration case may have nothing to do with the
Arbitrator's past relationship with the party, such circumstances certainly would give rise to

42
Hasmukhlal H. Doshi v. M. L. Pendse 2000 SCC OnLine Bom 242
43
Jiwan Kumar Lohia and anr v. Durga Dutt Lohia and anr 1992 1 SCC 56
44
M/s. Lanco-Rani (JV) v. National Highways Authority of India 2016 SCC OnLine Del 6267

27
Memorial on behalf of the Appellant
justifiable doubts as to his independence and impartiality. Therefore, the Delhi High Court set
the Arbitral Award aside.

19. The fundamental premise of arbitration is to get a fair and unbiased resolution to a dispute.
If the arbitrator is partial, the decision's credibility is compromised. Any suspicion of bias
would erode the trust of the disputing parties in the process. Which is what’s apparent in the
case before the Hon’ble Court. Given the overwhelming evidence and legal arguments against
Mr. Bruce Wayne's impartiality, and drawing from the decision in M/s. Lanco-Rani (JV) v.
National Highways Authority of India45, Director General of Fair-Trading v. The Proprietary
Association of Great Britain46, A.K. Kraipak v. Union of India47, Union of India v. U.P. State
Bridge Corporation Ltd.48, IJM-Gayatri Joint Venture v. National Highways Authority of
India49.The Applicant humbly seeks this Hon'ble Court's intervention to set aside the arbitral
award dated 21.05.2023.

45
ibid
46
Director General of Fair-Trading v. The Proprietary Association of Great Britain Court of appeal (civil division),
United Kingdom Case No. C/2000/3582
47
A.K. Kraipak v. Union of India 1970 1 SCC 457
48
Union of India v. U.P. State Bridge Corporation Ltd. 2014 (3) Arb. LR 538 (SC)
49
IJM-Gayatri Joint Venture v. National Highways Authority of India ILR (2012) III Delhi 721

28
Memorial on behalf of the Appellant
 PRAYER

THEREFORE, in light of the issues raised, arguments advanced and authorities cited it is most
humbly and respectfully requested that this Hon’ble Court to adjudge and declare that:

1. An injunction on the termination notice (Exhibit B) pertaining to the collaboration

agreement. (Exhibit A)
2. An order of recovery may be passed.
3. The arbitral award may be set aside.

The Court may also be pleased to pass any other order, which this Hon’ble Court may deem fit
in light of justice, equity and good conscience. All of which is respectfully submitted on behalf
of

The Appellant

Sd/-

..............................

(Counsel for the “Appellant’”)

29
Memorial on behalf of the Appellant