Rmlnlu Kochhar CO Arbitration Moot Court Competition

2ND RMLNLU - KOCHHAR & CO.
ARBITRATION MOOT COURT COMPETITION, 2024
Team Code – T-28
2nd RMLNLU - KOCHHAR & CO. ARBITRATION MOOT COURT COMPETITION,

2024
IN THE MATTER OF AN ARBITRATION CONDUCTED BEFORE THE AD-HOC ARBITRAL

TRIBUNAL LUCKNOW, INDIA.
BETWEEN:
VANDELAY VENTURES PRIVATE LIMITED…………………...…………CLAIMANT
AND
KRAMERICA UK SPORTING LIMITED…………...…………… RESPONDENT NO. 1
K2 CAPITAL PRIVATE LIMITED………………...……………… RESPONDENT NO. 2
MEMORIAL ON BEHALF OF THE CLAIMANT
1
Memorial On Behalf of Claimant
2ND RMLNLU - KOCHHAR & CO. ARBITRATION MOOT COURT COMPETITION, 2024
TABLE OF CONTENTS
List Of Abbreviations ............................................................................................................ 3
Index Of Authorities .............................................................................................................. 4
Statement Of Jurisdiction ...................................................................................................... 6
Statement Of Facts ................................................................................................................ 7
Statement Of Issues ............................................................................................................... 9
Summary Of Arguments ...................................................................................................... 10
Arguments Advanced .......................................................................................................... 12
Prayer ................................................................................................................................. 31
2
LIST OF ABBREVIATIONS
ABBREVIATED FORM FULL FORM
% Percent
& And
FC Football Club
INR Indian National Rupee
Retd. Retired
SHA Shareholders’ Agreement
UK United Kingdom
Vs. Versus
v. Versus
UNCITRAL United Nations Commission on International Trade Law
Ltd. Limited
Pvt. Private
i.e. That is
3
INDEX OF AUTHORITIES
Cases
Adhunik Steels Ltd v. Orissa Manganese and Minerals (P) Ltd. (1997) 5 SCC 134.............. 30
BG Group v. Republic of Argentina 134 S.Ct, 1198 ............................................................. 18
C v. D [2021] HKCFI 1474 ................................................................................................. 17
Enka Insaat ve Sanayi A.S. v OOO Insurance Company Chubb [2020] UKSC 38 ............... 13
Firm Ashok Traders v. Gurmukh Das Saluja (2004) 3 SCC 155 ........................................... 29
Kinli Civil Engineering v. Geotech Engineering [2021] HKCFI 2503 .................................. 17
Lowenstein v. Federal Rubber Co., 85 F.2d 129 (8th Cir. 1936 ............................................ 23
Manindra Chandra Nandy and Ors. v. Ashwini Kumar Acharya AIR 1921 CALCUTTA 18 . 22
Morgan Stanley Mutual Fund vs Kartick Das, 1994 Supp (4) SCC 225 ............................... 27
NTPC v. Singer Co., (1992) 3 SCC 551 ; Shin-Etsu Chemical Co. Ltd. v. Aksh Optifiber Ltd.,
(2005) 7 SCC 234; Videocon Industries Ltd. v. Union of India, (2011) 6 SCC 161; Yograj
Infrastructure Ltd. v. Ssang Yong Engg. & Construction Co Ltd., (2011) 9 SCC 735........ 16
Sulamérica Cia Nacional de Seguros SA v. Enesa Engelharia SA (2013) 1 WLR 102 .... 13, 14
Statutes
Indian Contract Act 1870, s 3 .............................................................................................. 10

Indian Contract Act 1870, s 73 ............................................................................................ 11
The Arbitration and Conciliation Act 1996, s 9 .............................................................. 28, 29
The Code of Civil Procedure 1908, order 39........................................................................ 28
The Companies Act 2013, s 247(1)...................................................................................... 24
Other Authorities
Convention on the Recognition and Enforcement of Foreign Arbitral Awards ...................... 13

Dicey, Morris & Collins, op. cit. Para 32-006 ...................................................................... 15
The Conflict of Laws, 14th Edn., Para 16R-001 .................................................................. 15
UNCITRAL Model Law on International Commercial Arbitration ...................................... 13
Online Sources
Kumar, K.J.C. (2021) The governing law of arbitration agreement: Settling the unsettled, SCC
Blog. Available at: https://www.scconline.com/blog/post/2021/05/13/the-governing-law-of-
arbitration-agreement-settling-the-unsettled/ (Accessed: 30 January 2024) ...................... 15
4
Mundi, J. (2024) Wiki note: Competence-competence, Jus Mundi. Available at:

https://jusmundi.com/en/document/publication/en-competence-competence (Accessed: 30
January 2024) .................................................................................................................. 14
Moot Proposition
Moot Prop, ¶30 ................................................................................................................... 19

Moot Prop, ¶31 ................................................................................................................... 19
Moot Prop, ¶32 ................................................................................................................... 19
Moot Prop, ¶34 ................................................................................................................... 19
Moot Prop, ¶35 ................................................................................................................... 19
Moot Prop, ¶36 ................................................................................................................... 19
Shareholders’ Agreement, cl 15.4 ........................................................................................ 12
5
STATEMENT OF JURISDICTION
In accordance with Section 16 of the Arbitration and Conciliation Act, 1996, this Arbitral
Tribunal has the jurisdiction to resolve the current dispute. Under this section, Claimant
approaches the Tribunal to determine on its own jurisdiction, including any objections to the
validity of the arbitration agreement as well as the issues arising.
6
STATEMENT OF FACTS
The case of Vandelay Ventures Private Limited ("Vandelay") vs. Kramerica UK Sporting
Limited ("Kramerica") revolves around a Shareholders' Agreement (SHA) executed on June
1, 2018. The core parties in this case are Vandelay Ventures Private Limited, holding shares in
K2 Capital Private Limited, and Kramerica UK Sporting Limited, which have a vested interest
in acquiring Vandelay's shares in K2 Capital. K2 Capital Private Limited is a proforma entity
throughout the proceedings.
The SHA, a central document in this case, was formalised on June 1, 2018, between Vandelay
and Kramerica. It contained significant provisions governing the sale of Vandelay's shares in
K2 Capital, with a specific focus on scenarios involving the "Change of Coaching Team" at
United India FC.
The initial triggers for this dispute were rumours about Sir Alex Guardiola's impending
departure from United India FC by the end of February 2024 and the appointment of a new
Coaching Team led by Spanish coach Xavi. Additionally, Sir Alex Guardiola's allegations of
unfair treatment by United India FC management added to the tensions.
Vandelay contacted Kramerica to seek updates on the "Change of Coaching Team" and the
corresponding sale of shares outlined in the SHA. Vandelay's emails emphasised the urgency
of the situation and referenced Sir Alex's controversial interview.
Kramerica, in response to Vandelay's inquiries, initially expressed uncertainty regarding the

timing of the "Change of Coaching Team." While they promised to respond, they did not
provide specific closing mechanics for the share sale, leaving Vandelay concerned about
potential delays.
As Vandelay perceived Kramerica's lack of response as a deliberate delay in fulfilling its

obligations under the SHA, they decided to take legal action. On February 3, 2024, Vandelay
invoked arbitration under the SHA by sending a formal notice of arbitration to Kramerica. In
this notice, Vandelay sought specific performance of the share transfer, interest on the pending
consideration, and a delay in the Change of Coaching Team until Kramerica complied with its
obligations.
Kramerica responded to Vandelay's notice of arbitration on February 12, 2024. They opposed
arbitration on several grounds, primarily emphasising Vandelay's failure to comply with the
7
condition precedent for jurisdiction outlined in the SHA. Kramerica argued that they had not
breached the SHA and contested the valuation report presented by Costanza and Partners
Auditing ("Costanza"), further complicating the dispute.
The Arbitral Tribunal, consisting of three arbitrators—Justice (Retd.) Priya Reddy, Ms. Susan
Ross KC, and Mr. Rohan Desai (Senior Advocate)—were then constituted to adjudicate this
complex matter—the Arbitral Tribunal scheduled hearings for February 24 & 25, 2024, to
deliberate on the case. K2 Capital remained a proforma party throughout the proceedings, with
no active role in presenting arguments.
The issues to be resolved by the Arbitral Tribunal during the scheduled hearings encompassed
determining the applicable law for the arbitration agreement, substantiating or refuting
Vandelay's allegation of Kramerica's breach of the SHA, addressing the challenge to the
Costanza valuation report, and considering Vandelay's plea for interim relief to prevent the
Change of Coaching Team until Kramerica fulfilled its obligations under Clause 7.2 of the
SHA.
8
STATEMENT OF ISSUES
The issues to be resolved in the arbitration include:

1. Whether the agreement to mediate and arbitrate will be governed by the United
Kingdom law (as the law of the seat) or the Indian law.
2. Whether the Arbitral Tribunal has jurisdiction to determine the issues in this arbitration.
3. Whether Kramerica is in breach/anticipatory breach of its obligations under the

Shareholders' Agreement (SHA).
4. What is the standard to challenge a valuation report under Indian law, and whether the
Costanza Report comply with the SHA and/or Indian law?
5. Whether Vandelay has made a case for the grant of interim relief during the pendency
of the arbitration.
9
SUMMARY OF ARGUMENTS
1. AGREEMENT TO MEDIATE AND ARBITRATE WILL BE GOVERNED BY THE INDIAN LAW.

It is humbly submitted before the Hon’ble Tribunal that the Indian law will be the
governing law of the agreement to mediate and arbitrate. It is contented that as per the
principle of Kompetenz-Kompetenz, the hon’ble tribunal holds the power to decide on
the jurisdiction of itself. The Claimant further contends that the law governing the entire
contract is primary to the clause mentioning the seat of arbitration mentioned in the
agreement's arbitration clause. The governing law clause should be understood to
extend to the mechanisms for resolving disputes, including the arbitration clauses
within the Shareholders’ Agreement. Further, there have been established precedents
that support and uphold the contention that the seat of arbitration does not inherently
dictate the law governing the arbitration agreement.
2. ARBITRAL TRIBUNAL HAS THE JURISDICTION TO DETERMINE THE ISSUES IN THIS
ARBITRATION
It is humbly submitted before the Hon’ble Tribunal that the Arbitral Tribunal has
jurisdiction over a dispute arising from a Shareholder Agreement (SHA) due to the
respondent's non-performance. It contends that the condition precedent to arbitration is
a matter of admissibility, not jurisdiction. The Claimant, Vandelay, has made diligent
efforts to resolve the dispute through consultations with the unresponsive respondent,
Kramerica. Despite delayed and non-committal responses, Vandelay argues that it
fulfilled pre-arbitration conditions and, therefore, the Arbitral Tribunal has jurisdiction
to decide the issues.
3. KRAMERICA IS IN BREACH/ANTICIPATORY BREACH OF ITS OBLIGATIONS UNDER THE
SHAREHOLDERS' AGREEMENT
The Claimant contends that the respondent breached the Shareholders’ Agreement
(SHA) by violating obligations, leading to a breakdown in negotiations. Despite
attempts to mediate and exercise the 'put' option, the respondent remained
unresponsive, prompting the Claimant to invoke arbitration. The Claimant argues an
anticipatory breach of contract under Section 39 1 of the Indian Contract Act, citing the
respondent's refusal to communicate, challenge the valuation report, and announce the
1
Indian Contract Act 1870, s 39
10
team's exit without informing the Claimant. Seeking specific performance, interest
payments, and damages under Section 73 2, the Claimant asserts the respondent's intent
to deceive.
4. THE COSTANZA REPORT COMPLY WITH THE SHA AND/OR INDIAN LAW
The Claimant's counsel argues that the valuation report by Costanza aligns with the
Shareholders' Agreement (SHA) and complies with Indian law. Both parties agreed to
the report's terms in the draft engagement letter, suggesting satisfaction with K2
Capital's information. The Respondent's delayed attempt to challenge the report raises
doubts about their commitment. The counsel asserts Costanza's adherence to statutory
provisions, emphasizing fairness in the valuation process. The Claimant maintains that
the report complies with the SHA and questions the Respondent's credibility and
commitment to contractual terms.
5. VANDELAY HAS A LEGITIMATE CASE FOR THE GRANT OF INTERIM RELIEF DURING THE
PENDENCY OF THE ARBITRATION
The claimant asserts before the tribunal that they meet the prerequisites for granting
interim relief. They argue having a prima facie case by exercising their 'put' option as
per the Shareholders' Agreement (SHA). The balance of convenience favors them, as a
refusal of interim relief would result in significant financial loss due to delayed payment
from the respondent. Urgency and irreparable harm are highlighted, with recent credit
rating downgrades and financial difficulties faced by the respondent. The claimant
contends that without interim relief, they would suffer ongoing irreparable financial
harm and emphasizes the importance of protecting their rights in the arbitration process.
2
Indian Contract Act 1870, s 73
11
ARGUMENTS ADVANCED
1. WHETHER THE AGREEMENT TO MEDIATE AND ARBITRATE WILL BE

GOVERNED BY THE UNITED KINGDOM LAW (AS THE LAW OF THE SEAT)
OR THE INDIAN LAW.
It is humbly before the Hon’ble arbitral tribunal that the agreement to mediate and arbitrate
will be governed by the Indian Law instead of United Kingdom Law even though the latter
is the judicial seat of arbitration as per Clause 11.3 of Dispute Resolution in the
Shareholders’ Agreement. The Claimant will be addressing this contention with these sub-
argument – 1. The primacy of the Governing Law Clause in the Shareholders’ Agreement.
2. Distinction between the seat of arbitration and governing law of arbitration agreement.
i. THE PRIMACY OF THE GOVERNING LAW CLAUSE IN THE SHAREHOLDERS’ AGREEMENT.
The primacy of the Governing Law Clause in the Shareholders' Agreement (SHA) is a
fundamental aspect of the contract's legal framework. The SHA explicitly states that the
agreement be governed "in all respects by the Applicable Laws of India"3 which establishes
Indian law as the governing law of the entire agreement. This governing law clause should
be understood to extend not only to the substantive rights and obligations of the parties but
also to the mechanisms for resolving disputes, including the arbitration clauses within the
SHA. This aligns with a well-recognized principle in international contract law, where the
contract's governing law inherently extends to govern the arbitration agreement within it.
In essence, by selecting Indian law as the governing law of the SHA, the parties have
clearly demonstrated their intent for Indian law to comprehensively govern their
contractual relationship.
In the case of Kabab-Ji SAL (Lebanon) v Kout Food Group (Kuwait) , despite the seat of
arbitration being in Paris, the UK Supreme Court judiciously held that where the governing
law of an arbitration agreement is not specified, it is more appropriate to consider the
governing law of the contract itself as the governing law of the arbitration agreement,
rather than defaulting to the law of the seat of the arbitration. The case highlights the
importance of specifying the governing law clause in both the contract as a whole and the
3
Shareholders’ Agreement, cl 15.4
12
arbitration agreement, where the seat of the arbitration and the governing law of the
contract are different, which was not specified in the present case.
It is pertinent to mention that earlier prevailing view favored the law of the seat of the
Arbitral Tribunal as governing the arbitration agreement. The UNCITRAL Model Law4
partly influenced this perspective on International Commercial Arbitration and the New
York Convention5, which emphasized a connection between the seat of arbitration and the
arbitration agreement. This was due, in part, to the principle of separability of the
arbitration agreement from the main contract.
However, recent jurisprudence, Sulamérica Cia Nacional de Seguros SA v. Enesa

Engelharia SA6, has shifted the perspective, giving primacy to the law of the contract as
governing the arbitration agreement. This approach is based on the “implied choice” of
law, where the choice of law for the contract is seen as extending to the arbitration
agreement, viewing the contract as a whole. The International Bar Association has also
raised concerns about automatically assuming that the law of the seat should govern the
arbitration agreement, particularly in light of the principles of party autonomy and
separability in international arbitration.
In a different case of Enka Insaat ve Sanayi SA v. OOO “Insurance Company Chubb”7, it

was earlier said by the UK's Court of Appeal that in the absence of an express choice, the
law of the seat should govern the arbitration agreement, even if it differed from the law
governing the main contract. This understanding was then changed by the Supreme Court
of the UK which further emphasized that the law governing an arbitration agreement is
either the law chosen by the parties or, in the absence of such a choice, the law most closely
connected to the arbitration agreement, which in the present case is Indian Law. This
underscores the evolving landscape and the trend, particularly in jurisdictions like the UK,
towards presuming that the law of the seat governs the arbitration agreement, unless there
are strong indications otherwise. The Supreme Court in this case unanimously held that, if
the parties have chosen a governing law for a contract containing an arbitration clause, this
4
UNCITRAL Model Law on International Commercial Arbitration
5
Convention on the Recognition and Enforcement of Foreign Arbitral Awards
6
Sulamérica Cia Nacional de Seguros SA v. Enesa Engelharia, SA (2013) 1 WLR 102
7
Enka Insaat ve Sanayi A.S. v. OOO Insurance Company Chubb [2020] UKSC 38
13
would usually amount to an express or implied choice of governing law for the arbitration
clause too.8
In conclusion, the determination of the governing law of arbitration agreements is a

nuanced and evolving area of international arbitration law, particularly when parties have
not expressly chosen the governing law. While historical perspectives favored the law of
the seat, recent jurisprudence and scholarly discussions highlight the increasing
recognition of the law of the contract as the governing law of the arbitration agreement.
This reflects the complexities of international arbitration and the importance of considering
the specific circumstances and intentions of the parties involved.
Thus, it is contented that this Arbitral Tribunal has every right and reason to choose the
Indian Law as the governing law of the agreement to mediate and arbitrate. The tribunal
as per the principle of Kompetenz-Kompetenz9 can choose to decide the jurisdiction to be
under its scope.
i. DISTINCTION BETWEEN THE SEAT OF ARBITRATION AND GOVERNING LAW OF
ARBITRATION AGREEMENT
It is humbly submitted that choice of seat in arbitration does not inherently dictate the
governing law of the arbitration agreement, and should not automatically be conflated with
an implicit choice of the law of the seat as the law governing the arbitration agreement.
It is important to understand the distinction between the "seat" (or "place") of arbitration
and the governing law of the arbitration agreement. The seat of arbitration, legally
attaching the arbitration to a particular jurisdiction, is significant for procedural reasons
and influences which procedural laws will apply to various aspects of the arbitration.
However, this does not automatically dictate the substantive law governing the arbitration
agreement itself.
Sulamérica case10 while moving away from the seat-centric approach, formulated a three-
step test to determine the law of arbitration agreement in case the same as not been
determined and the law of seat is different from law of the underlying contract while
8
ibid
9
Mundi, J. (2024) Wiki note: Competence-competence, Jus Mundi. Available at:
https://jusmundi.com/en/document/publication/en-competence-competence (Accessed: 30 January 2024)
10
Sulamérica Cia Nacional de Seguros SA v. Enesa Engelharia, SA (2013) 1 WLR 102
14
referring to Dicey’s Conflict of Laws11. The case laid down that while looking into any of
such cases, one must follow the common law rules for the determination of the proper law
of arbitration agreement12. The common law rules says that one must look into either
express or implied choice of the parties while determining the proper law of the arbitration
agreement.
The Court came up with a three-tiered stepwise inquiry to be followed for the
determination of the proper law of arbitration agreement setting hierarchy between the
three tests:
a) The express law chosen by the parties; or,

b) The implied law that indicates their choice and intention; or,
c) The law to which there is a real and close connection to arbitration. 13
In the present case at hand, firstly the governing law of the arbitration agreement was not
explicitly and expressly mentioned in the SHA. The seat of arbitration was given, but being
a different concept altogether, that cannot be understood to be the governing law of the
arbitration agreement. Secondly, the implied law that indicates their choice and intention
is Indian Law, which can be seen from the fact the parties stated in the SHA “this
Agreement shall be governed in all respects by the Applicable Laws of India”. It implies
that the parties had the intention of resolving the dispute through arbitration governed by
Indian Law as the governing law.
Thirdly and lastly, the law to which there is real and close connection to arbitration is India,
as the shares of the company about which the dispute is an Indian company, the
Shareholders’ Agreement is formulated in India and as per the India Laws, the dispute is
set up in the Indian circumstances. Hence, it is stated that India is having the closest and
realest connection to this arbitration.
11
Dicey, Morris & Collins, op. cit. Para 32-006
12
The Conflict of Laws, 14th Edn., Para 16R-001
13
Kumar, K.J.C. (2021) The governing law of arbitration agreement: Settling the unsettled, SCC Blog. Available
at: https://www.scconline.com/blog/post/2021/05/13/the-governing-law-of-arbitration-agreement-settling-the-
unsettled/ (Accessed: 30 January 2024)
15
In India, the principle of extending the law of the underlying contract to the law of the
arbitration agreement has been recognized 14, further supporting the argument that the law
governing the main contract should generally apply to the arbitration agreement within it.
This approach sees the contract as a whole and not in separate parts.
In summary, while the seat of arbitration plays a significant role in determining procedural
aspects of arbitration, it does not inherently dictate the governing law of the arbitration
agreement. The governing law of the arbitration agreement is often considered to be the
same as the law governing the substantive contract unless there are specific indications to
the contrary. This perspective aligns with the principles of severability and the evolving
judicial approaches in various jurisdictions.
2. WHETHER THE ARBITRAL TRIBUNAL HAS JURISDICTION TO DETERMINE

THE ISSUES IN THIS ARBITRATION.
It is humbly submitted before the Hon’ble Arbitral Tribunal that the tribunal indeed has the
jurisdiction to determine the issues in this arbitration. It is pertinent to mention that the
arbitration was initiated by the Claimant because of the non-performance of obligation
specified under the SHA. The anticipatory breach of the obligation constituted the dispute.
As per the terms of SHA, it was agreed between the parties that if the dispute remains
unsolved, any Party may, in its sole discretion, elect to submit the matter to arbitration with
notice to any other Party or Parties. The condition precedent to initiating the arbitration is
not mandatory in respect to be followed until the end of the thirty days.
i. THE CONDITION PRECEDENT IS NOT MANDATORY IN NATURE
It is humbly submitted before the Hon’ble Tribunal that the condition precedent to the
arbitration is not mandatory. It is pertinent to mention that the condition precedent is a
matter of admissibility rather than matter of jurisdiction.
Under the theory of Matter of Jurisdiction, the arbitration agreement only takes effect after
certain pre-condition procedures are satisfied. It also contends that the formation of a
14
NTPC v. Singer Co. (1992) 3 SCC 551; Shin-Etsu Chemical Co. Ltd. v. Aksh Optifiber Ltd. (2005) 7 SCC
234; Videocon Industries Ltd. v. Union of India (2011) 6 SCC 161; Yograj Infrastructure Ltd. v. Ssang Yong
Engg. & Construction Co Ltd. (2011) 9 SCC 735
16
Tribunal is invalid and that the Tribunal lacks the authority to address issues related to it
because it goes to the core of its jurisdiction.
On the other hand, Matter of Admissibility asserts that the arbitration agreement is in place,
granting arbitrators the jurisdiction to examine questions related to non-compliance with
pre-conditions; however, it does not permit them to adjudicate significant claims until the
issue of non-compliance with pre-conditions has been resolved.
In a similar case concerning the pre-arbitration conditions, C v. D15 which stems from a
contract that obliged parties to try to settle problems through settlement sessions for 60
days before proceeding to arbitration. A disagreement ensued between the parties, and the
defendant requested arbitration. The plaintiff disputed the arbitral tribunal's jurisdiction on
the grounds that the contract's dispute escalation clauses had not been followed. The
arbitral tribunal rejected this objection, and the plaintiff then sought to dismiss the arbitral
tribunal's ruling on the grounds that it dealt with an issue that did not fit within the scope
of the arbitration filing.
After reviewing significant International Judgements, the Hong Kong court concluded that
the "commonly held position of international tribunals and national courts" is that failing
to comply with a pre-condition to arbitration is an admissibility rather than jurisdiction
issue. The Hong Kong court acknowledged that the commonly held position may be
overturned if the parties expressly stipulate that failure to comply with pre-arbitration
conditions precludes the arbitral tribunal's jurisdiction, but the court then concluded that
no such express provision existed in the circumstances in question.
One of the takeaways from above judgement is that when a party fails to comply with a
pre-condition to arbitration, that should not stop the case from moving ahead, since it will
be up to the arbitrators to evaluate if the provision was followed and, if not, what the
repercussions should be. This case C v. D16 was affirmed in Kinli Civil Engineering vs.
Geotech Engineering,17 stating that the Court has no involvement in evaluating whether
the preconditions for the right to arbitrate have been met.
15
C v. D [2021] HKCFI 1474
16
ibid
17
Kinli Civil Engineering v. Geotech Engineering [2021] HKCFI 2503
17
The US Supreme Court's 2014 decision of BG Group vs. Republic of Argentina 18 is

perhaps the oldest known case which seeks to delineate the problems of admissibility and
jurisdiction. It denied a challenge to an arbitral award on the grounds that a statutory pre-
condition to arbitration was not met. The Argentina-UK BIT obliged Claimants to fight
their claims in Argentina for 18 months before filing a claim in arbitration.
After arbitrators rendered an award against Argentina, it moved to vacate the award in US
courts, claiming that the arbitrators lacked jurisdiction since BG Group did not follow the
local litigation requirement. The US Supreme Court ruled that, courts presume that the
parties intend arbitrators, not courts, to resolve disputes about the meaning and application
of specific procedural preconditions for using arbitration, such as the satisfaction of
"prerequisites such as time limits, notice, laches, estoppel, and other conditions precedent
to an obligation to arbitrate."
The arbitral tribunal ruled that BG Group's claim was valid despite the fact that it had not
sought remedy in Argentine courts first. BG Group won the arbitration, which was held in
Washington, DC.
In a similar case, Sierra Leone v. SL Mining Ltd., the same position was re-established in
this 2021 judgment wherein the court again reiterated that primary comments and
authorities all pointed "one direction" in that pre-conditions to arbitration are concerns of
admissibility to be determined by arbitrators rather than jurisdiction.
Hence, it is stated that the Claimant in the best of its efforts tried to resolve the disputes
through consultation with the Respondent, which was not reciprocated which is upto the
tribunal to decide as it is a question of Admissibility rather than jurisdiction. This condition
precedent alone does not deprive the Arbitral Tribunal of its jurisdiction to determine the
issues in the arbitration.
ii. COMPLIANCE OF THE CONDITIONS PRECEDENT BY CLAIMANT
It is pertinent to mention that the Claimant, Vandelay, acting in good faith, has made
multiple attempts to engage in discussions and consultations with Kramerica regarding the
18
BG Group v. Republic of Argentina 134 S.Ct, 1198
18
execution of the 'put' option under the SHA following the announced departure of Sir Alex
Guardiola.
It is to be noted that the Claimant, through letters and emails dated 10.01.202419,
12.01.202420, 15.01.202421, 23.01.202422 and 01.02.202423 tried to communicate with the
respondent and in response to which the respondent only replied on 16.01.202424 and
02.02.202425 and that too in a negligent way. It is important to mention that the response
Kramerica in both letters was an excuse. Such actions of the respondent showed that the
Respondent did not have the intention to perform the obligations vested upon them as per
the ‘put’ option of Clause.
Despite Vandelay's repeated and documented efforts to initiate dialogue and reach a
resolution, Kramerica’s responses were significantly delayed, non-committal, and devoid
of substantive engagement. In such a scenario, where one party is unresponsive or
uncooperative, the requirement for pre-arbitration consultation can be considered fulfilled,
as further efforts would amount to an exercise in futility.
It is stated that under Clause 7.2 of the SHA, it is mentioned that “Vandelay shall, post
receipt of the Kramerica Notice, have the right (but not the obligation) to sell all (but not
less than all) of the securities of K2 Capital held by Vandelay to Kramerica”, which
Claimant opted to do. In furtherance of repeated efforts by the Claimant has every right to
submit the dispute to arbitration, under Clause 11.2 of the SHA.
Thus, the Arbitral Tribunal has the jurisdiction to determine the issues as Claimant, to the
best of its capabilities has complied with the conditions precedent considering the urgency
of the dispute and non-responsiveness of the Respondent.
3. WHETHER KRAMERICA IS IN BREACH/ANTICIPATORY BREACH OF ITS

OBLIGATIONS UNDER THE SHAREHOLDERS' AGREEMENT (SHA).
The counsel on the behalf of claimant contends that Respondent has breached its
obligations several times under the Share Holder agreement primary concerning the
19
Moot Prop, ¶30
20
ibid
21
Moot Prop, ¶31
22
Moot Prop, ¶34
23
Moot Prop, ¶35
24
Moot Prop, ¶32
25
Moot Prop, ¶36
19
arbitration clause. Claimant asserts that Respondent’s actions have not been in accordance
with the agreed-upon procedures and have led to a breakdown in negotiations.
The reports regarding a serious rift between Respondent and Sir Alex over player and staff
salaries and as a result Sir Alex and his team could leave the club at the end of the season.
Respondent was unable to maintain operational relationships with the team (as agreed at
the time of investment by Claimant wherein Respondent would be responsible to look into
day-to-day football operations of United India FC) that generated maximum revenues for
the company. Claimant being an investor performed its duty and tried to mediate to resolve
the issues between Respondent and Sir Alex. Respondent being a majority shareholder tried
not to resolve issues with the team leading to the team’s exit. It remained unconcerned
about the opinion of the minority shareholder Claimant who might be against the decision
of Respondent to let the team exit the club.
On 12th November 2023, the Respondent informed the Claimant about the impending
departure of the coaching team, opening the door for discussions on the exercise of the 'put'
option under Clause 7.2 of the SHA. The Claimant promptly responded on 13th November,
expressing its decision to exercise the 'put' option and appointing Costanza as the auditor.
Upon receiving Costanza's valuation report on 9th January 2024, indicating a Fair Market
Value of INR 1014.04 per share, the Claimant exercised the 'put' option on 10th January
2024, requesting payment of INR 507,02,00,000 for its 50,00,000 equity shares.
However, the Respondent remained unresponsive to the Claimant's communications,

prompting follow-up letters on 12th January and an email on 15th January. The
Respondent's vague reply on 16th January, citing busyness with sponsors and public
holidays, raised concerns about its commitment to the agreement. The Claimant, faced with
news reports and an interview hinting at Sir Alex's exit, sought clarification but received
no clear response. Despite sending a draft share purchase agreement on 23rd January and
requesting a prompt update, the Respondent continued its unresponsiveness, breaching the
agreed-upon code of conduct.
The final attempt to resolve the dispute came on 1st February 2024, with the Claimant
threatening legal action if the Respondent failed to respond within 24 hours. The
Respondent's reply on 2nd February, citing the CEO's absence and uncertainty about the
team's exit, fell short of addressing the binding duty under Clause 7.2. This pattern of
20
unresponsiveness, lack of interest, and attempts to evade discussions indicates a breach of

trust and a failure to adhere to the agreed-upon procedures, exposing the Respondent to
potential legal consequences.
The claimant tried to connect 3 times on (10th, 12th and 15th January) that is it waited for
5 days to get a response from the respondent regarding the ‘put’ option exercised by the
claimant. After receiving a reply form the respondent on 16th January, the claimant waited
for 6 days and gave appropriate time to the respondent to resolve the issue regarding the
exact date of change of coaching team, but since the reports regarding exit were emerging
and no indication was received from the respondent, the claimant decided to remind the
respondents of their obligation to adhere with the SHA and also sent a draft share purchase
agreement. Again, the claimant waited for around a week to get a reply from the respondent
but the respondent seems uninterested and escaping the conversation.
The claimant finally decided to invoke arbitration under the SHA and sent its notice of
arbitration to the respondent on 3rd February, 2024 wherein it sought the following main
reliefs:
a. Specific performance by the respondent to perform its obligation under SHA by

completing transfer of 25% shares of K2 held by claimant for a total purchase
consideration of INR 5,07,02,00,000.
b. The claimant also alleged that the respondent shall be entitled to a payment of
interest @ 12% per annum on total consideration for each day that the sale of equity
shares held by claimant in K2 capital to respondent beyond the timeline prescribed
by consultation period. That means that after 9th February, 2024, the respondent is
entitled to make a payment of interest for each day of ownership of equity shares
by claimant, since Costanza released the report on 9th January and claimant sent a
notice to the respondent on 10th January exercising their ‘put’ option. The
consultation period as per clause 11.1 is of 30 days that is till 9th February, 2024,
hence the respondent becomes liable to pay interest for each day starting from 10th
February, 2024.
c. Pending the arbitration and enforcement of the award, to direct the Respondents to
undertake and ensure that the Change of Coaching Staff shall not be completed until
Respondent has complied with its obligation under Clause 7.2 of the SHA to
21
purchase 50,00,000 equity shares held by Claimant in K2 Capital for a total

purchase consideration of INR 507,02,00,000/-.
The respondent replied to the notice of arbitration on February 12 (after 8 days), opposing
the reference to arbitration by stating that no breach had occurred, and the sale and purchase
mechanism in the SHA required a correct valuation before completion.
The counsel asserts that the respondent has committed anticipatory breach of contract
specified under Section 39 of the Indian Contract Act, 1872 which states: “When a party to
a contract has refused to perform or disable himself from performing, his promise in its
entirety, the promisee may put an end to the contract, unless he has signifi¬ed, but words
or conduct, his acquiescence in its continuance.”
In the case of Manindra Chandra Nandy and Ors. v. Ashwini Kumar Acharya 26, it was held
by the court that anticipatory breach of contract takes effect as a premature destruction of
the contract rather than failure to perform it in its terms. The court also observed that in
such a case, the damages are calculated by considering what the injured party would have
suffered by the continuing breach of the other party down to the actual date of performance.
The court also reduced the cost of damages that are mitigated due to repudiation before the
actual date of performance. In our case as well anticipatory breach has occurred because
the conduct of the respondent justifies their refusal to perform and the claimant is entitled
to claim interim relief.
The following essentials of Section 39 have been fulfilled by the conduct of respondent:
There should be a contract with a future date for performance. Clause 7.2 obliges the
respondent to purchase shares of K2 once the claimant has exercised its ‘put’ option.
Either of the parties should either refuse to perform the promise made on their part or should
have wilfully induced such circumstances that the performance of the promise becomes
inevitable. The conduct of the respondent throughout after the release of the valuation
report is clear evidence that the respondent has avoided communications and has tried to
create circumstances by challenging valuation report even after agreeing to the letter sent
by Costanza regarding terms and conditions to make the performance inevitable.
26
Manindra Chandra Nandy and Ors. v. Ashwini Kumar Acharya AIR 1921 CALCUTTA 185
22
Such refusal or self-induced impossibility should occur before the actual performance date.
The respondent’s conduct indicated refusal to performance before the actual date itself
which made such circumstances for the claimant to proceed with the SHA through legal
recourse by invoking arbitration before completion of 60 days.
Refusal can be expressed or implied: The conduct of respondent by avoiding

communications and unnecessarily challenging valuation process and report implied their
intention to breach the contract and refusal in performance.
The counsel on the behalf of claimant contends that the respondent had been uninterested
in complying with its duty under clause 7.2 and was trying to ignore and escape claimant’s
requests regarding exercise of ‘put’ option. On 15th February, 2024 the respondent
announced the final date of exit of Sir Alex and team in the press which will be on 29th
February. It was the duty of the respondent to inform the exact date of exit to the claimant.
The respondent was not even concerned to inform the date of exit to the claimant which
indicates their lack of interest and casual attitude in a business code of conduct. The
respondent was duty bound to directly inform the claimant the exact date of exit but the
claimant got to know the date from media sources.
Furthermore, in the case of anticipatory breach of contract, it is pertinent to note that there
is disagreement between the parties regarding the interpretation of the terms of the contract.
In such a case, if the party offers to perform the contract as per his interpretation, it will not
amount to an anticipatory breach of contract; the same was held in the case of Lowenstein
v. Federal Rubber Co.27.
It is submitted that the claimant based upon his own interpretation that the respondent may
breach the contract because of nature of communications among both the parties. But the
respondent in its replies has never denied to perform their contractual obligations under
clause 7.2, rather the respondent wanted to ensure transparency in the valuation process
and the share purchase agreement.
This also indicates Respondent’s intention to deceive the claimant because the Respondent
somehow knew that due to the exit of Sir Alex and his team, the price of shares and
profitability of K2 capital would be affected negatively in the market and if Respondent
27
Lowenstein v. Federal Rubber Co., 85 F.2d 129 (8th Cir. 1936)
23
would have brought the shares of Claimant, then they might have to bear the loss of 100%
shares which would lead to huge losses. To escape such liability the respondent from the
very beginning that is after the release of valuation report on 9th January started avoiding
conversations with the claimant. The claimant seeks compensation under Section 73 of the
Indian Contract Act, 1870 wherein the breaching party is obliged to compensate the non-
breaching party for any loss or damage caused to the claimant in the ordinary course of
business.
The intent to deceive has been clearly proved by the code of conduct of respondent and the
timeline of communications itself between the claimant and the respondent. The respondent
has breached its duty by not complying with the clauses of the agreement and by not
informing the exact date of change in coaching team to the claimant.
4. WHAT IS THE STANDARD TO CHALLENGE A VALUATION REPORT UNDER

INDIAN LAW, AND WHETHER THE COSTANZA REPORT COMPLY WITH THE
SHA AND/OR INDIAN LAW?
The counsel on the behalf of the Claimant contends that the valuation report released by the
appointed auditor Costanza is in accordance with the Shareholder Agreement of the parties
and the Indian law. The respondent and the Claimant have given their joint agreement to the
draft engagement letter and preliminary information checklist provided by Costanza and
Costanza was directed to proceed with the valuation process according to this agreement on
engagement letter only.
According to Section 247(1)28 of Companies Act 2013 which states that: -
Where a valuation is required to be made in respect of any property, stocks,

shares, debentures, securities or goodwill or any other assets (herein referred to
as the assets) or net worth of a company or its liabilities under the provision of
this Act, it shall be valued by a person having such qualifications and experience
and registered as a valuer in such manner, on such terms and conditions as may
be prescribed and appointed by the audit committee or in its absence by the
Board of Directors of that company.
28
The Companies Act 2013, s 247(1)
24
The valuation process is in accordance with the above stated provision. Costanza and
Partners Auditing is a registered accounting firm in India, which will proceed with the
valuation process as per the data and terms provided by K2 Capital. Both the parties jointly
agreed to appoint Costanza as the valuer for the valuation process of K2 Capital.
The counsel also contends that Costanza report has complied with the SHA. The respondent
duly agreed to the draft engagement letter and preliminary information checklist provide by
Costanza which provided the scope of Costanza’s services and clearly stated that their report
would be based on the information provided by the client which is K2 Capital They also
informed that they won’t be responsible to evaluate the report and the client shall be
responsible for all the data, information and explanations.
An agreement to this letter by the respondent implies that they could not further challenge
the report and they are satisfied with the information provided by K2 Capital for valuation
and they trust their credibility.
Following the release of the valuation report by Costanza, the Claimant promptly exercised
their 'put' option on 10th January. In response, the Respondent replied on 16th January, citing
a busy schedule due to a short week and sponsor meetings. Subsequently, in a letter dated
2nd February, the Respondent stated that they were discussing the matter internally and would
provide information about the exact date of Sir Alex and the team's exit. Importantly, both
responses failed to raise any concerns about the valuation report, implying their consent.
However, in the arbitration notice on 12th February, the Respondent contradicted their earlier
stance. They claimed that Costanza had not requested crucial documents before the valuation
and failed to evaluate and challenge K2's business plan. This contradiction is notable as the
draft engagement letter sent by Costanza, agreed upon by the Respondent, explicitly stated
that Costanza wouldn't be responsible for evaluating the credibility and accuracy of the
client-provided data. The inconsistency in the Respondent's position suggests an
unwillingness to adhere to the agreement's clauses, raising questions about their commitment
to fulfilling contractual obligations.
The Respondent's attempt to challenge the valuation report by Costanza appears to be a

strategic maneuverer aimed at evading their contractual obligation to purchase the shares
from the Claimant, as stipulated in Clause 7.2. Their conduct following the exercise of the
'put' option suggests a reluctance to comply with the clause, demonstrating an inclination to
25
sidestep their contractual responsibilities. The timing of their challenge to the valuation
report raises questions about the Respondent's intentions.
The counsel contends that if the Respondent were dissatisfied with the Costanza report, they
had the opportunity to voice their challenges on 9 th January 2024, when the report was
initially released. Instead, the Respondent chose to remain silent and avoided communication
when the Claimant exercised the 'put' option. It was only later that the Respondent raised
this issue, seemingly as a tactic to circumvent their obligations. This pattern of behaviour
calls into question the Respondent's good faith and commitment to upholding the agreed-
upon terms of the Shareholders' Agreement.
It is submitted that Costanza’s report is in compliance with the SHA as the report has been
prepared by the auditor agreed by both the parties. Costanza has proposed an engagement
letter wherein they said that they will perform a fair market valuation of the equity shares of
K2 Capital and they will solely rely on the client information made available to them and
are only responsible for the accuracy of the date.
Further during the evaluation process they were not provided with SHA and they did not
even requested for the same and even in the agreement between Vandelay and Kramerica
there was no mention of providing the shareholder agreement during the process of valuation
as the fair market value clause holds that the valuation shall be determined based on
generally accepted international standards for valuation and the valuer may consider such
factors as historic performance, book value of equity , goodwill and the future potential of
the company.
Costanza during the evaluation did not consider the SHA along with any historical business
plans, forecasts or budgets produced by K2 Capital as there was no mention in the agreement
itself that during the valuation the auditor needs to consider the Shareholders’ Agreement
between Vandelay and Kramerica. Therefore, Costanza has complied with the valuation
standards in every way possible and released the report on time before both the parties.
In conclusion, the counsel for the Claimant strongly asserts that the valuation report prepared
by Costanza is fully aligned with the Shareholders' Agreement (SHA) and in compliance
with the applicable Indian law. Both parties explicitly agreed to the terms laid out in the draft
engagement letter and preliminary information checklist provided by Costanza, outlining the
scope of their services and explicitly stating that the report would rely on information
26
provided by K2 Capital. The Respondent's agreement to this letter implies a lack of grounds
to challenge the report and signals their satisfaction with the credibility of the information
furnished by K2 Capital.
Furthermore, the counsel argues that Costanza's evaluation process was conducted in
accordance with the statutory provisions outlined in Section 247(1) of the Companies Act
2013. As a registered accounting firm in India, Costanza was well-positioned to carry out
the valuation, and the Respondent's failure to raise concerns during the initial report release,
coupled with their subsequent attempt to challenge the report's validity, raises questions
about their intentions. The consistent adherence of Costanza to the agreed-upon procedures
and timelines underscores the credibility and fairness of the valuation process, emphasizing
the importance of honoring contractual obligations as stipulated in the SHA.
5. WHETHER VANDELAY HAS MADE A CASE FOR THE GRANT OF INTERIM

RELIEF DURING THE PENDENCY OF THE ARBITRATION.
It is humbly submitted before the Hon’ble Arbitral Tribunal that the Claimant has a
legitimate case for the grant of interim relief during the pendency of the arbitration. The
counsel on behalf of the Claimant contends that the grounds for the grant of interim relief
are satisfied in the present case. It is pertinent to mention that there will be irreparable harm
to the Claimant, Vandelay if the interim relief is not granted.
i. THE GROUNDS FOR INTERIM RELIEF ARE SATISFIED
It is submitted before the tribunal that the grounds for the grant of interim relief are
satisfied in this case. The interim relief can only be granted when certain pre-requisites are
satisfied.
The case of Morgan Stanley Mutual Fund v. Kartick Das29 articulates the grounds for the
grant of interim relief. In this case, a dispute regarding the management of a mutual fund
was involved. The petitioner, Morgan Stanley Mutual Fund, sought an injunction against
the respondent to prevent them from acting in a manner that was allegedly detrimental to
the interests of the mutual fund and its investors.
29
Morgan Stanley Mutual Fund vs Kartick Das 1994 Supp (4) SCC 225
27
The case laid down the key points regarding grounds governing the grant of interim relief
which are as follows-
a. Prima Facie Case: The Supreme Court emphasized that the petitioner must
establish a prima facie case in their favour. This does not mean that the party has
to conclusively prove their case at this interim stage, but they must show sufficient
probability that they have a rightful claim.
b. Balance of Convenience: The Court must consider where the "balance of
convenience" lies. In other words, the court assesses which party would suffer more
harm from the granting or refusal of the interim relief. The harm in question should
ideally be irreparable or not easily quantifiable in terms of money.
c. Irreparable Injury: The petitioner must demonstrate that the refusal of interim
relief would lead to irreparable injury. The injury or harm must be such that it
cannot be adequately compensated by damages.
The principles upon which interim reliefs were granted enunciated under Section 930 vis-
à-vis principles have judicially evolved to grant reliefs under Order 3931 of the CPC i.e.
establishing the existence of a prima facie case, whether the balance of convenience lies
in favour of the plaintiff/applicant seeking the relief, and the possibility of irreparable loss
or prejudice if the interim relief was not granted.
As per the abovementioned grounds the Claimant has satisfied grounds, the Claimant has
a prima facie case as the Claimant has exercised its ‘put’ option which initiated the
proceedings regarding the sale/purchase of the shares of Vandelay in K2 Capital. The
Respondent eventually has to purchase the shares back from Vandelay because the
Respondent is bound by Clause 7.2 of the SHA once Vandelay exercises its ‘put’ option.
The balance of convenience is in favour of the Claimant as they would suffer more if the
interim relief is refused than the Respondent if the interim relief is granted to the Claimant.
Again, it is stated that the Respondent eventually have to pay the amount in dispute as they
are bound by the contractual terms. If refused to the Claimant, the grant of interim relief
will immensely affect them; their investment in K2 Capital is not producing any gain after
the set valuation date i.e. 31st March 2023. The longer the Claimant is deprived of their
30
The Arbitration and Conciliation Act 1996, s 9
31
The Code of Civil Procedure 1908, order 39
28
money, the greater the loss they will suffer on that huge amount. Thus, there will be
irreparable harm to the Claimant if they are refused interim relief.
ii. URGENCY AND IRREPARABLE HARM
It is the humble submission of the Claimant that the grant of interim relief is a matter of
urgency and that if not provided with that the Claimant will suffer and is suffering
irreparable loss. It is pertinent to mention that the media reports have cited sources that
suggest that Kramerica’s credit rating has been downgraded recently. A downgrade is a
negative change in the rating of a company's expected performance. It indicates that the
company's future prospects have weakened, often due to unexpected financial problems
within the company. The downgraded credit ratings suggest potential financial difficulties
or changes in the company's perceived ability to meet its financial obligations. It indicates
the likelihood of the entity defaulting on its debt obligations.
It is to be noted that amidst such circumstances where the Respondent is likely to lose
money and thus become unable to honour the arbitral award constitutes irreparable harm
to the Claimant. It is in the best interest of the parties that interim relief be granted to the
Claimant, as this will exempt the chances of frustration with the contract.
The significance of urgency of receiving the amount in dispute is crucial as the Claimant,
Vandelay, is suffering irreparable harm every day. Since, the investment of Vandelay is not
generating any return after the set valuation date i.e., 31.03.2023. The amount in question
is vast and hence, Vandelay is losing significant interest on this amount that they could
earn if they are granted interim relief. This significant loss is irreparable harm which will
not be compensated by way of damages.
In the case of Firm Ashok Traders v. Gurmukh Das Saluja 32 the Supreme Court of India
underscores the importance of interim relief in arbitration for protecting the interests of
parties from being frustrated, which can include financial risks. The Court relied on several
cases wherein it was held that under Section 933, the Court is only formulating interim
measures to protect the right under adjudication before the Arbitral Tribunal from being
frustrated.
32
Firm Ashok Traders v. Gurmukh Das Saluja (2004) 3 SCC 155
33
The Arbitration and Conciliation Act 1996, s 9
29
In another case, Adhunik Steels Ltd. v. Orissa Manganese and Minerals (P) Ltd. 34, the
Supreme Court emphasized the necessity of interim relief for preserving the rights of the
parties pending arbitration. It is pertinent to mention that the Claimant has every right to
protected from the consequences of frustration of contract.
Thus, the Claimant must be granted interim relief as the grounds for the grant of interim
relief are satisfied and met as well as if the Claimant is denied of the same, there will be
irreparable harm to the Claimant.
34
Adhunik Steels Ltd v. Orissa Manganese and Minerals (P) Ltd. (1997) 5 SCC 134
30
PRAYER
On behalf of the Claimant, Vandelay Ventures Private Limited, the following prayer is humbly
made to the arbitral tribunal:
a) Issue an order instructing Kramerica to fulfil its commitment under the Shareholders'
Agreement (SHA) by finalizing the transfer of 50,00,000 equity shares owned by
Vandelay in K2 Capital to Kramerica, with a total purchase amount of INR
507,02,00,000/-
b) Impose interest at a rate of 12% per annum on the purchase amount of INR
507,02,00,000/- for each day beyond the stipulated timeline in Clause 7.2, in
conjunction with paragraph 4 of Annexure I of the SHA, that the transfer of equity
shares from Vandelay to Kramerica remains pending.
c) Direct the Respondents to ensure that the Change of Coaching Staff is not finalized
until Kramerica fulfils its obligation outlined in Clause 7.2 of the SHA to acquire
50,000,000 equity shares from Vandelay in K2 Capital, with a total purchase
consideration of INR 507,02,00,000/- during the arbitration process and until the award
is enforced.
d) Declare that Kramerica is in violation or anticipatory breach of its responsibilities as
outlined in the Shareholders' Agreement (SHA).
AND/OR
Pass any other as order it deems fit in the interest of equity, justice, and good conscience.
Sd/-
Counsel on behalf of the Claimant
31

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2ND RMLNLU - KOCHHAR & CO.

ARBITRATION MOOT COURT COMPETITION, 2024

Team Code – T-28

2nd RMLNLU - KOCHHAR & CO. ARBITRATION MOOT COURT COMPETITION,

IN THE MATTER OF AN ARBITRATION CONDUCTED BEFORE THE AD-HOC ARBITRAL

VANDELAY VENTURES PRIVATE LIMITED…………………...…………CLAIMANT

KRAMERICA UK SPORTING LIMITED…………...…………… RESPONDENT NO. 1

K2 CAPITAL PRIVATE LIMITED………………...……………… RESPONDENT NO. 2

MEMORIAL ON BEHALF OF THE CLAIMANT

List Of Abbreviations ............................................................................................................ 3

Index Of Authorities .............................................................................................................. 4

Statement Of Jurisdiction ...................................................................................................... 6

Statement Of Facts ................................................................................................................ 7

Statement Of Issues ............................................................................................................... 9

Summary Of Arguments ...................................................................................................... 10

Arguments Advanced .......................................................................................................... 12

ABBREVIATED FORM FULL FORM

INR Indian National Rupee

SHA Shareholders’ Agreement

UNCITRAL United Nations Commission on International Trade Law

Indian Contract Act 1870, s 3 .............................................................................................. 10

Convention on the Recognition and Enforcement of Foreign Arbitral Awards ...................... 13

Mundi, J. (2024) Wiki note: Competence-competence, Jus Mundi. Available at:

Moot Prop, ¶30 ................................................................................................................... 19

Kramerica, in response to Vandelay's inquiries, initially expressed uncertainty regarding the

As Vandelay perceived Kramerica's lack of response as a deliberate delay in fulfilling its

The issues to be resolved in the arbitration include:

3. Whether Kramerica is in breach/anticipatory breach of its obligations under the

1. AGREEMENT TO MEDIATE AND ARBITRATE WILL BE GOVERNED BY THE INDIAN LAW.

1. WHETHER THE AGREEMENT TO MEDIATE AND ARBITRATE WILL BE

i. THE PRIMACY OF THE GOVERNING LAW CLAUSE IN THE SHAREHOLDERS’ AGREEMENT.

However, recent jurisprudence, Sulamérica Cia Nacional de Seguros SA v. Enesa

In a different case of Enka Insaat ve Sanayi SA v. OOO “Insurance Company Chubb”7, it

In conclusion, the determination of the governing law of arbitration agreements is a

i. DISTINCTION BETWEEN THE SEAT OF ARBITRATION AND GOVERNING LAW OF

a) The express law chosen by the parties; or,

2. WHETHER THE ARBITRAL TRIBUNAL HAS JURISDICTION TO DETERMINE

i. THE CONDITION PRECEDENT IS NOT MANDATORY IN NATURE

The US Supreme Court's 2014 decision of BG Group vs. Republic of Argentina 18 is

ii. COMPLIANCE OF THE CONDITIONS PRECEDENT BY CLAIMANT

3. WHETHER KRAMERICA IS IN BREACH/ANTICIPATORY BREACH OF ITS

However, the Respondent remained unresponsive to the Claimant's communications,

unresponsiveness, lack of interest, and attempts to evade discussions indicates a breach of

a. Specific performance by the respondent to perform its obligation under SHA by

purchase 50,00,000 equity shares held by Claimant in K2 Capital for a total

Refusal can be expressed or implied: The conduct of respondent by avoiding

4. WHAT IS THE STANDARD TO CHALLENGE A VALUATION REPORT UNDER

According to Section 247(1)28 of Companies Act 2013 which states that: -

Where a valuation is required to be made in respect of any property, stocks,

The Respondent's attempt to challenge the valuation report by Costanza appears to be a

5. WHETHER VANDELAY HAS MADE A CASE FOR THE GRANT OF INTERIM

i. THE GROUNDS FOR INTERIM RELIEF ARE SATISFIED

ii. URGENCY AND IRREPARABLE HARM

Counsel on behalf of the Claimant

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