TC - 04

Before

THE HON’BLE ARBITRAL TRIBUNAL

HOLLY FLAX

(Claimant

V.

DR. JO BENNETT
(AUTHORIZED REPRESENTATIVE OF SABER HOSPITAL)

(Respondent)

MEMORANDUM FOR RESPONDENT

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TABLE OF CONTENTS

..............................................................................................................................................................3

TABLE 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..........................................................................................................11

1.THAT SABER HOSPITAL AND MR. AJ (RESPONDENT) CANNOT BE HELD LIABLE

FOR MEDICAL NEGLIGENCE...................................................................................................11

1.1.Due Care Was Taken - Informed Consent Of The Patient Was Obtained Before Performing The
Surgery................................................................................................................................................11

1.2.Standard Of Care Was Followed..................................................................................................12

2.THAT THE CLAIMANT IS NOT ENTITLED TO DAMAGES.............................................13

2.1.Consent Form Provides Protection To Doctor And Hospital.......................................................13

2.2.Claimant Not Entitled To Compensation.....................................................................................14

3.THAT THE APPOINTED ARBITRATOR IS NOT A BIASED ARBITRATOR AND

THEREFORE NOT DISQUALIFIED FROM BEING AN ARBITRATOR.............................15

3.1.That The Arbitrator Neither Has Bias Nor Predisposition Towards Any Of The Parties, Hence
He Is Impartial....................................................................................................................................15

3.2.That The Relationship Between Arbitrator And Respondent Is Not Such That Could Affect The
Integrity Of The Proceedings..............................................................................................................17

3.3.That The Tribunal Should Adhere To Strict ‘Real Danger’ Test For Considering The Alleged
Conflict Of Interest As The Same Is Not Connected With The Merits Of The Case.........................17

PRAYER............................................................................................................................................19

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TABLE OF ABBREVIATIONS

ABBREVIATIONS FULL TEXT

ADR Alternative Dispute Resolution

Art. Article

Claimant Holly Flax

Ed. Edition

Hon’ble Honorable

i.e id est (that is)

ICSID International Centre for Settlement

No. Number

p./pp. Page no.

Para. Paragraph

Parties CLAIMANT and RESPONDENT in the present

dispute
Respondent Saber Hospital

Tribunal Arbitral Tribunal in present dispute

UNICTRAL Model Law UNCITRAL Model Law on International

Commercial Arbitration 1985 (with amendments
as adopted in 2006)

Vol Volume

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INDEX OF AUTHORITIES

Cases

State of Haryana and Ors. vs. Raj Rani, (2005) CPJ28 (SC)...................................................................14
Achutrao Haribhau Khodwa v. State of Maharashtra, 1996 SCC (2) 634...............................................12
AWG Group Ltd. v. Argentine Republic.................................................................................................15
Blyth v. Birmingham Waterworks Co, 11 Exch. 781..............................................................................11
Bolam v. Friern Hospital Management Committee, [1957] 1 WLR 582.................................................13
Bourhill v Young, [1943] AC 92..............................................................................................................11
Burlington Resources Inc. v. Republic of Ecuador, (ICSID Case No.ARB/08/5)...................................15
Donoghue v Stevenson, [1932] A.C. 562.................................................................................................11
HRD Corporation (Marcus Oil and Chemical Division) v. Gail (India) Ltd, 2017 SCC OnLine SC 1024.
..............................................................................................................................................................16
Dr. Kunal Saha vs. Dr. Sukumar Mukherjee and Ors, III (2006) CPJ 142..............................................14
Joseph vs Dr. George Moonjely, 1995 ACJ 253, AIR 1994 Ker 289......................................................11
Koehler v. Cook, (1976) 65 DLR (3d) 766 (BC).....................................................................................11
Kusum Sharma v. Batra Hospital, 2010 (3) SCC 480..............................................................................12
National Thermal Power Corporation Limited vs. Wig Brothers Builders & Engineers Limited, ILR
Vinod Khanna vs. R.G Stone Urology and Laparoscopy Hospital & Ors (2009) IV Delhi 663.............18
Quintal v Laurel Valley Hospital, 62 Cal 2d............................................................................................12
R v Gough, (1992) 4 All ER 481..............................................................................................................18
Sudesh Prabhakar and Ors. v. EMAAR Constructions Pvt. Ltd, 2018 (2) Arb. LR 538 (Delhi),............16
Tidewater v. Venezuela, ICSID Case No. ARB/10/5..............................................................................16
Vinod Jain vs Santokba Durlabhji Memorial, Civil Appeal No.2024 Of 2019.......................................12

Articles
D.A Lawson, Impartiality and Independence in International Arbitration – Commentary on the 2004
IBA Guidelines on Conflicts of Interest in International Arbitration, ASA Bulletin, Kluwer
International 2005.....................................................................................................................................18
Gregg J. Gittler and Ellie J. C. Goldstein, “The Elements of Medical Malpractice: An Overview”,
Clinical Infectious Diseases , 1996..........................................................................................................13
Independence and Impartiality, PARIS ARBITRATION........................................................................19

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J.D.M. Lew & S.M. Kroll, Comparative International Commercial Arbitration (2003).........................16
Karel Daele, Challenge And Disqualification Of Arbitrators In International ARBITRATION,
International Arbitration Law Library (Kluwer Law International, 2011)..............................................17
Kenneth McK. Norrie, “Medical Malpractice: The Scope of Informed Consent in Negligence”,The
International And Comparative Law Quarterly, 1983..............................................................................12
M. Scott Donahey, The Independence and Neutrality of Arbitrators, Journal of International Arbitration
(1992).......................................................................................................................................................16
Nicholas Longley and Joyce Ngai, IBA Guidelines on Conflict of interests in International Commercial
Arbitration (2016......................................................................................................................................17

Statutes
1. Consumer Protection Act, 2019.
2. Arbitration and Conciliation Act, 1996.
3. UNCITRAL Model Law, 1985.
4. IBA Guidelines on Conflict of interests in International Commercial Arbitration, General Standard 2, (2014).

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STATEMENT OF JURISDICTION

The Claimant has approached this Hon’ble Arbitral tribunal under Article 1 of the Mediation-
Arbitration Agreement as per the TNNLU Med-Arb Rules of 2022.

Article 1: Agreement to Mediate-Arbitrate - It is understood that the dispute that has arisen out
of or in connection with the medical services rendered by Dr. AJ and Saber Hospital, that is
whether such medical services rendered were improper, negligent, or incompetent will be
determined by submission to resolution through Mediation followed by Arbitration in
accordance with current TNNLU Med-Arb Rules of 2022 and as per the Arbitration &
Conciliation Act, 1996. Both parties to this agreement, by entering into it, are giving up their
rights to have any such dispute decided by a court of law, and instead are accepting the use of
mediation-arbitration as the method of dispute resolution.

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STATEMENT OF FACTS

1. Ms. Holy 25 year old professor who was on her to visit her parents in her hometown, Ooty,
while out for a walk was hit by ,a fast-going bike rider, on 02.11.2020 and was immediately
rushed to ‘Vance Hospital” and later airlifted to Saber Hospital’ in Coimbatore, the nearest city
to Ooty.
2. At Saber Hospital, on her arrival Dr. AJ was summoned to the emergency department, however
there is a contention regarding time of Dr. AJ arrival as he claims that he did respond promptly
and that he did perform a comprehensive examination and evaluation of Holly’s condition,
however evidence provided in form of exhibit 1 that is SUMMON AND ATTENDANCE
LOG, shows contrary.
3. Dr. AJ examined her and advised her to take MRI of the dorsal spine and the lumbar spine
which showed that Holly had a burst fracture of the first vertebra in her lumbar spine (L1) and
compression fractures in the thoracic spine. Dr. AJ did not operate until 04.11.2020. On
04.11.2020, the surgery was scheduled at 2:30 p.m. At 1:00 p.m. the attending nurse, Nurse
Ryan handed over a form, which talked of consent regarding the said surgery. After hours of
operating doctor exclaimed surgery to be a complete success. While the tests were being run, to
everyone’s shock the surgery had resulted in an incomplete L1 injury progressing irreversibly,
leaving Holly a paraplegic with bladder, bowel and sexual dysfunction.
4. However, after continuing therapy till 2021, Holly decided to discontinue with it as it did not
prove helpful to her. She accused the hospital and Dr. AJ of medical negligence, however when
Dr. AJ was called upon to join the conversation, he contended that there was no evidence that
any negligence on his part caused Holly’s paraplegia. He said that he had consulted senior
neuro-surgeons and experts, taken their opinion and advice on her case during the review after
performing the surgery.
5. After moving back to Ooty she started taking treatment in ‘Bernard Ortho Care’. Holly and her
parents decided to take more opinions and thus decided to consult Dr. Pam Beesley,who
established that the thoracic spine was not transected and had not sustained any injury which
would have rendered Holly a paraplegic in the absence of the L1 injury.
6. They further consulted Dr. MoseSchrute, a neuroradiologist. He explained that an infarct
results when insufficient blood and oxygen reach tissues, which was exacerbated as Holly
suffered complications. Her hemoglobin was very low, she had a fever and she also had

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hypotension, or low blood pressure, however the spinal cord was normal size below T5, and the
main area of swelling was in the upper thoracic area of T2 to T5.
7. An MRI done on 12.02.2022, a little more than one year after Holly’s accident, showed severe
cord atrophy at C7, T1.He opined that because the infarct and resulting cord atrophy at T1
resulted in a lack of sensory and motor function below that level, Holly would have been left
paraplegic even if the L1 injury had not occurred
8. However, left unconvinced ,she approached the counsel who suggested her to settle her
concerns via Mediation-Arbitration. An arbitrator was appointed by the parties on 28.03.2022.
However, on 15.04.2022 Holly came to know that the arbitrator chosen for the present
Arbitration had already been appointed as an arbitrator on two other occasions by the Hospital
for different arbitrations on 22.08.2020 and 15.09.2021. Holly considered this as a concern that
gave rise to justifiable doubts as to the independence and impartiality of the Arbitrator and
hence challenged the appointment of the arbitrator.

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STATEMENT OF ISSUES

ISSUE 1

WHETHER SABER HOSPITAL AND MR. AJ (RESPONDENT) CAN BE

HELD LIABLE FOR MEDICAL NEGLIGENCE ?

ISSUE 2

WHETHER CLAIMANT IS ENTITLED TO A DAMAGES?

ISSUE 3

WHETHER THE APPOINTED ARBITRATOR IS A BIASED ARBITRATOR

AND THEREFORE DISQUALIFIED FROM BEING AN ARBITRATOR?

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SUMMARY OF ARGUMENTS

1. WHETHER SABER HOSPITAL AND MR. AJ (RESPONDENT) CAN BE HELD

LIABLE FOR MEDICAL NEGLIGENCE ?
It is most humbly submitted that respondents are not liable for medical negligence because Mr.
AJ followed due care and diligence during the course of claimant’s treatment. The unfortunate
result of the surgery was IE paralysis, sexual dysfunction etc. was explained and informed
consent was obtained before performing the surgery, due care was taken during the surgery and
no act of negligence was done, further, it has been held that different opinions of different
practitioners does not constitute negligence

2. WHETHER CLAIMANT IS ENTITLED TO A DAMAGES ?

It is humbly submitted that claimant is not entitled to damages because harm caused is not
because of negligent act of respondents However in the present case Respondent being a
neurosurgeon possessed requisite skills which was exhibited by him throughout the treatment
beginning from diagnosis to surgery and even after that, and hence no claim lies for
compensation. Thus, while dealing cases of medical negligence, any harm done to patient due to
negligence of doctor should be compensated however at the same time due protection should be
given to doctors against frivolous cases as patients in such case claims compensation with
various malafide objectives.

3. WHETHER THE APPOINTED ARBITRATOR IS A BIASED ARBITRATOR AND

THEREFORE DISQUALIFIED FROM BEING AN ARBITRATOR ?
It is humbly submitted the appointed arbitrator is independent and is valid because the test of
independence is subjective, and it is focused on the actual presence of bias rather than just the
perception of prejudice. According to IBA standards, the Orange List enumerates instances that
may give rise to justified suspicions about the arbitrator's impartiality and independence. the
arbitrator is not automatically disqualified as a result of such disclosure. The mere fact that the
designated arbitrator has been appointed by the respondent on past occasions for matters
unrelated to the current condition of facts is insufficient to establish the Arbitrator’s dependence
in this case.

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ARGUMENTS ADVANCED

1. THAT SABER HOSPITAL AND MR. AJ (RESPONDENT) CANNOT BE HELD LIABLE FOR
MEDICAL NEGLIGENCE.
1. It is most humbly submitted that Saber hospital and Mr AJ cannot be held liable for Medical
negligence.
1.1. DUE CARE WAS TAKEN - INFORMED CONSENT OF THE PATIENT
WAS OBTAINED BEFORE PERFORMING THE SURGERY.
1. It is an established principle of law that, for any negligence claim to succeed three essentials needs to
be met Duty of care towards the claimant 1, breach of duty2 and damage caused because of the breach
3
. Negligence of the sort where consent is relevant the actionable wrong lies in the failure of the
doctor to provide the patient with sufficient information to allow that patient to make a meaningful
decision as to whether to go on with the treatment. The negligence here is not in the treatment itself,
but simply in the failure to give sufficient information. The wrong is the unintentional infringement
of the patient’s right to be given such information and, if this wrong occurs, then there is actionable
negligence whether or not the medical procedure produces physical damage and whether or not the
medical procedure was carried out correctly. 4 For example, in Koehler v. Cook a finding was upheld
because the plaintiff could show that she would not have accepted the risk involved in the operation
had she been told about it, this being the causative link in cases of negligence.5
2. The wrong here is the professional action taken by the doctor in the execution of his art, the facts
nowhere suggests that Mr AJ did something during the surgery which would have resulted in
incomplete L1 injury, in fact he along with his team was shocked after the surgery and had to run
multiple tests to find out what went wrong. 6 this implies that Mr. AJ and his team followed due
procedure during the surgery. cases of medical negligence arise in situations where the doctor does
something unreasonable such as changes the wrong leg, using the wrong equipment etc.
3. Carefully considering the facts, Claimant has arisen the claim because her surgery was not successful
and resulted in incomplete L1 injury progressing irreversibly, leaving her a paraplegic with bladder,
bowel and sexual dysfunction. It is important to note that his was a mere unfavourable consequence
of the surgery about which holly was informed and has given her informed consent in the form
1
Bourhill v Young [1943] AC 92; Donoghue v Stevenson [1932] A.C. 562, [1932] UKHL 100.
2
Blyth v. Birmingham Waterworks Co, 11 Exch. 781.
3
Joseph vs Dr. George Moonjely 1995 ACJ 253, AIR 1994 Ker 289.
4
Kenneth McK. Norrie, “Medical Malpractice: The Scope of Informed Consent in Negligence”,The International And
Comparative Law Quarterly, 1983, Vol. 32, No. 1 pp. 229-236.
5
Koehler v. Cook (1976) 65 DLR (3d) 766 (BC).
6
Factsheet Paragraph 5, page 2.

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(Exhibit 4). it is clearly stated there that she “has completely understood the possible complications
of spine surgery”7 which includes the loss of bladder (urinary) and bowel control, sexual
dysfunction and neurological injury resulting in complete or partial paralysis.8
4. Moreover, Mr AJ had consulted senior neuro-surgeons and experts, taken their opinion and advice on
her case during the review after performing the surgery and all of them agreed that Ms. Holly would
have been rendered paraplegic by an independent thoracic/cervical spinal injury regardless of the L1
injury9 therefore, her paraplegic stage post-surgery was an unfavourable consequence and she was
given information about the same.
5. The Supreme Court held that that a doctor often adopts a procedure which involves a higher element
of risk, but in doing so he honestly believes that it will provide greater chances of success for the
patient. If a doctor has taken a higher risk to redeem the patient out of his/her suffering and it did not
yield the desired result, this may not amount to medical negligence.10 further, In the realm of
diagnosis and treatment there is scope for genuine difference of opinion and one professional doctor
is clearly not negligent merely because his conclusion differs from that of other professional doctor.11
6. The Hon’ble Supreme Court in matter Vinod Jain v. Santokba Durlabhji Memorial Hospital and
Ors12 has recently exonerated the respondents i.e the hospital and treating doctor from any medical
negligence where the claim was raised on the ground that he opted for a different method of
treatment.
1.1. STANDARD OF CARE WAS FOLLOWED
7. Proof of standard of care IE proof of what a reasonable doctor would or would not have done under
given circumstances, in most instances must be established by the “expert testimony” of another
physician.
8. The plaintiff/patient must establish that the care he/she was given was inadequate in comparison with
that provided by the majority or a respectable minority of physicians practicing under similar
circumstances.13 This means that generalists and specialists are held to different standards14
9. Further, Bolam v. Friern Hospital Management Committee, John Hector Bolam, claimant consented
for the treatment, the hospital did not warm him of the risks, particularly that he would be given the
treatment without relaxant drugs. He sustained fractures and claimed damages for negligence.
7
Clause c, exhibit 4.
8
Clause d, exhibit 4.
9
Factsheet Paragraph 6, page 3.
10
Kusum Sharma v. Batra Hospital 2010 (3) SCC 480.
11
Achutrao Haribhau Khodwa v. State of Maharashtra 1996 SCC (2) 634 ;Vinod Jain vs Santokba Durlabhji Memorial
Civil Appeal No.2024 Of 2019.
12
Ibid.
13
Gregg J. Gittler and Ellie J. C. Goldstein, “The Elements of Medical Malpractice: An Overview”,Clinical Infectious
Diseases , 1996, Vol. 23, No. 5 Pp. 1152-1155.
14
Quintal v Laurel Valley Hospital, 62 Cal 2d.

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Experts opined that there were two practices accepted by them: treatment with relaxant drugs and
treatment without relaxant drugs. Regarding the warning also, to give the warning to the patients and
also to give the warning only when the patients ask about the risks. The court concluded that the
doctors and the hospital were not negligent.15
10. The skill of medical practitioners differs from doctor to doctor. The very nature of the profession is
such that there may be more than one course of treatment which may be advisable for treating a
patient. Courts would indeed be slow in attributing negligence on the part of a doctor if he has
performed his duties to the best of his ability and with due care and caution. Medical opinion may
differ with regard to the course of action to be taken by a doctor treating a patient, but as long as a
doctor acts in a manner which is acceptable to the medical profession and the Court finds that he has
attended on the patient with due care skill and diligence and if the patient still does not survive or
suffers a permanent ailment, it would be difficult to hold the doctor to be guilty of negligence. 16
11. Therefore, informed consent of the patient was taken and possible unfavourable result of the surgery
was understood by her. Moreover, the injury leading to her paraplegia was not a result of any
negligent act done by Mr. AJ during the surgery infact he along with his team was under an
impression that the surgery was successful. Post-surgery, expert opinion of senior specialists was
taken for the case which supports respondent’s claim. Hence, Mr. AJ and Saber hospital will not
incur liability for medical negligence.
1. THAT THE CLAIMANT IS NOT ENTITLED TO DAMAGES.
1. It is submitted that the standard to be applied for judging, whether the person charged has been
negligent or not, would be that of an ordinary competent person exercising ordinary skill in that
profession. However, in the present case Respondent being a neurosurgeon possessed requisite skills
which was exhibited by him throughout the treatment beginning from diagnosis to surgery and even
after that, and hence no claim lies for compensation.
1.1. CONSENT FORM PROVIDES PROTECTION TO DOCTOR AND
HOSPITAL
1. Informed consent is an important communications process that takes place between patients and their
healthcare providers. It is a key part of the healthcare decision-making process. All the material
information regarding diagnosis and their proposed treatments which includes information on the
effectiveness of the treatments, the benefits, and the risks were disclosed to the claimant and was
mentioned on consent form ,and it is pertinent to notice that clause C of the form explicitly mentions
of risk of being paraplegic with bladder, bowel and sexual dysfunction and hence no claim for

15
Bolam v. Friern Hospital Management Committee [1957] 1 WLR 582.
16
Supra 11.

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remedy exists for claimant.
2. The claimant understood the entire information as can be clearly established from paragraph no. 2 of
the form, moreover she had the sufficient time of 1.5 hours to go through and understand the form
and hence non claim exists. Further, no one pressurized or forced claimant to provide informed
consent and consent was not given under any duress and can be established from last paragraph of
the form and hence no claim exists.
3. The Allahabad High Court in Dr. Mohd. Azam Hasin v. State Of U.P17quashed criminal proceedings
for medical negligence against two doctors and opined that “risk is always involved and when the
patient/family members give consent for being operated, they give consent for such kind of operation
to be conducted and to bear the consequences” and hence in present case in lieu of consent form
signed claimant consented to obvious risks and bonafide errors and hence no claim exists.
1.1. CLAIMANT NOT ENTITLED TO COMPENSATION
1. The apex court in the State of Haryana and Ors. vs. Raj Rani 18 held that doctors can be held liable
only in cases where failure of operation is attributable to his negligence and not otherwise. The court
has held that a medical negligence complaint should not be entertained without prima facie evidence
submitted to the court, along with an expert opinion to support a claim of negligence. In present case
claimant is unable to provide any substantial evidences moreover expert opinions are also in the
favor of respondent hence in absence of any evidences showing negligence ,liability does not exist.
2. In the case of Dr. Kunal Saha vs. Dr. Sukumar Mukherjee and Ors 19 court observed, error of
judgment in diagnosis or failure to cure a disease does not necessarily mean medical negligence and
a doctor is not liable in all cases where a patient has suffered an injury as it doesn’t amount to a
breach of duty, thus merely because a doctor’s decision turned out to be wrong, we cannot make him
liable for medical negligence ,therefore allegations regarding an incomplete L1 injury creates no
liability of medical negligence and hence no compensation.
3. In Vinod Jain vs. Santokba Durlabhji Memorial Hospital and Ors. 20 the Hon’ble Supreme Court
observed that the test for negligence shall be from the view point that a doctor who has been
accredited with a special skill or competence but does not possess highest expert skill, it would in
such case be sufficient that he exercises skill of an ordinary competent man under similar scenario.
This is primarily done for greater good of the community at large, to prevent the doctors from
thinking about their own safety instead of the safety of the patients.Therefore, claim for damages
cannot be maintained by Ms.Holly.
17
APPLICATION U/S 482 No. - 8541 of 2013
18
(2005) CPJ28 (SC)
19
III (2006) CPJ 142.
20
Civil Appeal No.2024 of 2019.

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2. THAT THE APPOINTED ARBITRATOR IS NOT A BIASED ARBITRATOR AND THEREFORE
NOT DISQUALIFIED FROM BEING AN ARBITRATOR.
1. The RESPONDENT most humbly submits that the appointed arbitrator is impartial and independent
and therefore cannot be disqualified from being a part of the arbitration process.
2. The CLAIMANT has challenged the appointment of the arbitrator in the present case 21 in pursuance
with Section 12 of the Arbitration and Conciliation Act, 1940. 22 This Section provides that an
arbitrator may be challenged if circumstances exist that give rise to justifiable doubts as to his
impartiality or independence. The element of “independence” requires that there should not exist any
previous or present personal, social or business relationship between the arbitrator and the parties.
The element of impartial requires that arbitrator must not engage “impermissible bias toward a party
or toward the subject-matter of the dispute”.23
3. The independence and impartial element “protect parties against arbitrators being influenced by
factors other than those related to the merits of the case”. 24 Impartiality ensures that justice is done
and independence ensures that justice is seen to be done. 25 It is most humbly submitted that the
appointed arbitrator has neither bias nor any predisposition towards any of the parties and is
impartial. The relationship that the appointed arbitrator and the RESPONDENT shares is not such
that could affect the integrity of the arbitration process and thereby the role of arbitrator is
independent.
1.1. THAT THE ARBITRATOR NEITHER HAS BIAS NOR PREDISPOSITION
TOWARDS ANY OF THE PARTIES, HENCE HE IS IMPARTIAL.
1. It is humbly submitted that the appointed arbitrator is an impartial arbitrator. Impartiality is defined
as the absence of a bias or predisposition toward one of the parties. Webster’s Unabridged Dictionary
defines ‘impartiality’ as “freedom from favoritism, not biased in favour of one party more than
another. 26 The test, in this case, is a subjective one and it is not directed at the mere appearance of
bias but at its actual presence. The test for this actual bias is inferred from the facts and
circumstances surrounding the arbitrator’s exercise of the arbitral function.27
2. The commercial or pecuniary relationships raise reservations regarding arbitrator’s bias and
partiality. The professional or personal relations are less dubious and raise less concerns. 28 The
International Bar Association has issued The IBA Guidelines on Conflicts of Interest in International
21
Factsheet, para.13 at p.4.
22
Arbitration and Conciliation Act, 1996, Section 12.
23
M.S.Kurkela & S.Turunen, Due Process in International Commercial Arbitration 113, (2nd ed. Oxford University Press, 2010).
24
Burlington Resources Inc. v. Republic of Ecuador (ICSID Case No.ARB/08/5).
25
J.D.M. Lew & S.M. Kroll, Comparative International Commercial Arbitration 258, 261 (2003).
26
AWG Group Ltd. v. Argentine Republic, UNCITRAL, (22 October 2007), Decision on the Proposal for the Disqualification of a
Member of an Arbitral Tribunal.
27
M. Scott Donahey, The Independence and Neutrality of Arbitrators, Vol.9/ No. 4, Journal of International Arbitration 31(1992).
28
Ibid.

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Arbitration29 (hereafter “IBA Guidelines”) which identifies circumstances which relate to arbitrator
bias challenges and categorize them into three lists. The genesis of the fifth and seventh schedule of
Indian Arbitration and Conciliation Act, 1996 is from these IBA Guidelines. The Red List deals with
situations where a conflict of interest clearly exists; the Orange List describes situations where a
conflict could justifiably exist in the eyes of the parties; and the Green List involves situations of
30
conflict of interest where disclosure is unnecessary.
3. The Orange List enumerates the situations which may give rise to justifiable doubts as to the
impartiality and independence of the arbitrator. It provides the situation that imposes a duty on the
arbitrator to disclose such situations that would give rise to doubts. However, such disclosure does
not automatically result in disqualification of the arbitrator. The purpose of disclosure is that the
parties are informed about the existence of such situation31.
4. Orange List 3.1.3 involves, “The arbitrator has within the past three years been appointed as
arbitrator on two or more occasions by one of the parties or an affiliate of one of the parties.” In
Tidewater v. Venezuela32, it was held that, “multiple appointments as arbitrator by the same party in
unrelated cases are neutral, since in each case the arbitrator exercises the same independent arbitral
function.” Thus, no objective fact to question the independence or impartiality is formed by the
multiple appointments. In HRD Corporation (Marcus Oil and Chemical Division) v. Gail (India)
Ltd33, it was held that disqualification contained in item 22 and 24 is not absolute.
5. In Sudesh Prabhakar and Ors. v. EMAAR Constructions Pvt. Ltd34, the High Court of Delhi, while
relying on HRD Corporation case has held that even an arbitrator who has been appointed on two or
more occasions by a party or its affiliates in the past three years, may yet not be disqualified if it is
demonstrated that he/she was independent and impartial on the earlier two occasions.
6. The relationship between the arbitrator and the RESPONDENT is analogous to Green List (4.3) in
that it is not a “close personal friendship,” yet it is social and professional in nature. The arbitrator
has been only acted in professional capacity in previous sessions and the association is not such that
could create a conflict of interests. Hence, in the present case, there is no disclosure requirement
under the Arbitration and Conciliation Act, 1996 and IBA Guidelines, and certainly not a
disqualification. Therefore, it is most humbly submitted that the appointed arbitrator is impartial.
1.1. THAT THE RELATIONSHIP BETWEEN ARBITRATOR AND

29
Nicholas Longley and Joyce Ngai, IBA Guidelines on Conflict of interests in International Commercial Arbitration (2016),(14,
2022, 11:34 AM) https://www.ibanet.org/ENews_Archive/IBA_July_2008_ENews_ArbitrationMultipleLang.aspx.
30
IBA Guidelines on Conflict of interests in International Commercial Arbitration, General Standard 2, (2014).
31
Karel Daele, Challenge and Disqualification Of Arbitrators In International ARBITRATION, International Arbitration Law Library
323 (Kluwer Law International, 2011).
32
Tidewater v. Venezuela, ICSID Case No. ARB/10/5
33
HRD Corporation (Marcus Oil and Chemical Division) v. Gail (India) Ltd, 2017 SCC OnLine SC 1024.
34
Sudesh Prabhakar and Ors. v. EMAAR Constructions Pvt. Ltd, 2018 (2) Arb. LR 538 (Delhi),

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RESPONDENT IS NOT SUCH THAT COULD AFFECT THE INTEGRITY
OF THE PROCEEDINGS.
1. It is humbly submitted that the arbitrator is an independent arbitrator. Independence relates to the
lack of relations with a party that might influence an arbitrator’s decision. Independence requires that
there should be no such actual or past dependent relationship between the parties and the arbitrators
which may or at least appear to affect the arbitrator’s freedom of judgment. The closer the
relationship between these spheres the less independent the arbitrator is considered to be. 35
2. Under General Standard (2) of the IBA Guidelines 36, it is established that “there should not be any
objectively justified doubts concerning the impartiality of an arbitrator in the light of “externally
visible circumstances.” The justifiable doubts are defined as a conclusion reached by a reasonable
and informed third person that “there was likelihood that an arbitrator may be influenced by factors
other than the merits of the case.” Section 12 of the Arbitration and Conciliation Act, 1996 makes the
declaration by the arbitrator about his independence and impartiality more realistic as compared to a
bare formality under the previous regime. The IBA Guidelines lead has evolved in uplifting the
standards of independence and impartiality in India.
3. It is submitted that mere appearance of partiality was not a sufficient ground for disqualification of
the arbitrator. The challenging party must prove not only facts indicating the lack of independence,
but also that the lack is ‘manifest’ or ‘highly probable’, not just ‘possible’ or ‘quasi-certain’. In this
dispute, the mere fact that the appointed arbitrator has been appointed by the RESPONDENT on
previous occasions for such matters which are unrelated to the present state of facts is not sufficient
to prove the dependence of the Arbitrator. It must be proved with high probability and not on any
mere possibility. Therefore, it is most humbly submitted that the appointed arbitrator is
independent.37
1.2. THAT THE TRIBUNAL SHOULD ADHERE TO STRICT ‘REAL
DANGER’ TEST FOR CONSIDERING THE ALLEGED CONFLICT OF
INTEREST AS THE SAME IS NOT CONNECTED WITH THE MERITS OF
THE CASE.
2. The concept of bias was first discussed in the case of R v. Gough 38 by the House of Lords where it
was held that, “there can be a real danger of bias if there is a case of apparent bias on the part of a
juror, arbitrator, magistrate or member of another inferior tribunal, and whether there was a real
danger of injustice having occurred as a result of the alleged bias”. French jurisprudence also talks

35
Supra Note 7.
36
IBA Guidelines on Conflict of interests in International Commercial Arbitration, General Standard 2, (2014).
37
D.A Lawson, Impartiality and Independence in International Arbitration – Commentary on the 2004 IBA Guidelines on Conflicts of
Interest in International Arbitration, ASA Bulletin Vol. 23, No. 1, 2005, Kluwer International 2005 at Page 35.
38
R v Gough, (1992) 4 All ER 481.

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about alike test to the “Real Danger” test, it places a high burden of proof on the applicant to prove
that “a situation which is liable to affect the judgment of the arbitrator by creating a definite risk of
bias in favour of a party to the arbitration”.39
3. Adhering to this strict test would ensure that the principles of party autonomy and equality are
upheld and the challenge to the presiding arbitrator is successful only in certain circumstances where
the arbitration is likely to be affected. The challenges are mostly made by parties to delay and disrupt
arbitration proceedings. With the application of strict ‘Real Danger’ test would allow disposing
frivolous challenges and addressing only those posing a real danger to the process.
4. In National Thermal Power Corporation Limited vs. Wig Brothers Builders & Engineers Limited,40
and in particular paragraphs 40 and 77 in support of the submission that since there was no
relationship of the learned arbitrator with the subject matter of the arbitration or with the parties to
arbitration giving rise to justifiable doubts as to his integrity or impartiality, the learned arbitrator
was not bound to make any disclosure under section 12(1) of the Arbitration Act when he was
approached in connection with his appointment. As there is no factual basis of the allegation of
impartiality against the learned arbitrator and there is no situation which is liable to affect the
judgment of the arbitrator by creating a definite risk of bias in favour of a party to the arbitration.
Thus, there was no real danger that the arbitrator would be pre-disposed or prejudiced against the
CLAIMANT for reasons unconnected with the merits of the case.
5. Therefore, it is most humbly submitted that the challenge of CLAIMANT against the appointment of
arbitrator on the grounds of impartiality and independence is not founded on actual facts because it
failed to prove any fact indicating a manifest of lack of independence or impartiality. There is no
bias, nor even an appearance of bias. The fact that the arbitrator has been appointed by the
RESPONDENT previously for different arbitration nowhere affect the arbitration in any manner.
Moreover, the arbitrator was appointed because both the parties agreed for it in MDR-ARB Clause
and any challenge now is a tactic to delay the arbitration. Therefore, the arbitrator is an independent
and unbiased arbitrator.

PRAYER

39
Independence and Impartiality, PARIS ARBITRATION (Apr 11, 11:30 AM) http://parisarbitration.com/en/glossaire/independence-
and-impartiality/.
40
National Thermal Power Corporation Limited vs. Wig Brothers Builders & Engineers Limited, ILR (2009) IV Delhi 663.

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IN LIGHT OF THE ISSUES RAISED, ARGUMENTS ADVANCED AND AUTHORITIES
CITED IT IS HUMBLY PRAYED THAT THE HON’BLE TRIBUNAL MAY BE PLEASED
TO:

1. Declare that Saber Hospital and Mr.A (respondent) cannot be held liable for medical
negligence.
2. Declare that the claimant is not entitled to damages.
3. Declare that the appointed arbitrator is not a biased arbitrator and therefore not disqualified
from being an arbitrator

AND/OR

Pass any such orders or award as it may deem fit in the interest of justice and equity.

All of which is humbly and respectfully submitted

Counsel on behalf of Respondent

Sd/-

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