TC - 04

Before

THE HON’BLE ARBITRAL TRIBUNAL

HOLLY FLAX

(Claimant

V.

DR. JO BENNETT
(AUTHORIZED REPRESENTATIVE OF SABER HOSPITAL)

(Respondent)

MEMORANDUM FOR CLAIMANT

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TABLE OF CONTENTS

TABLE OF ABBREVIATIONS........................................................................................................3

INDEX OF AUTHORITIES..............................................................................................................5

STATEMENT OF JURISDICTION.................................................................................................7

STATEMENT OF FACTS.................................................................................................................8

STATEMENT OF ISSUES..............................................................................................................10

SUMMARY OF ARGUMENTS.....................................................................................................11

ARGUMENTS ADVANCED..........................................................................................................12

1.THAT SABER HOSPITAL AND MR. AJ (RESPONDENT) CAN BE HELD LIABLE FOR
MEDICAL NEGLIGENCE.............................................................................................................12

1.1.Mr. AJ’s Diagnosis And Line Of Treatment Was Not Correct....................................................13

1.2.Mr. AJ Failed To Exercise Due Care............................................................................................13

1.3.Defence Of Informed Consent Will Cannot Be Availed..............................................................14

2.THAT THE CLAIMANT IS ENTITLED TO DAMAGES.......................................................14

2.1.Consent Forms Cannot Prevent Claims Arising From Negligent Care........................................15

2.2.Claimant Shall Be Entitled With Adequate Compensation..........................................................15

3.THAT THE APPOINTED ARBITRATOR IS NOT AN INDEPENDENT AND

IMPARTIAL AND THEREFORE DISQUALIFIED FROM BEING AN ARBITRATOR?...16

3.1.That There Is Lack Of Independence On The Part Of Appointed Arbitrator And His Conduct Is
Not In Conformity To The Standards Of Conduct Of An Arbitrator.................................................17

3.2.That There Is A Lack Of Disclosure On The Behalf Of Appointed Arbitrator With Reference To
His Association With The Respondent...............................................................................................18

3.3.That Such Affiliation Of Arbitrator With Respondent Proved The ‘Real Danger’ Of Bias In The
Arbitration...........................................................................................................................................20

PRAYER............................................................................................................................................21

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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 & Ors vs Smt. Santra (2000) CPJ 53 (SC)..................................................................15

Smt. Savita Garg -VsThe Director, National Heart Institute (2004) 8 SCC 56.......................................15
Laxman Balkrishna Joshi vs Trimbak Bapu Godbole And Anr 1969 AIR 128.......................................11
M/S. Spring Meadows Hospital & Anr vs Harjol Ahluwalia 1998 4 SCC 39.........................................15
Bharat Broadband Network Limited v. United Telecoms Limited, (2019) 2 SCC 2434.........................18
Blyth v. Birmingham Waterworks Co, 11 Exch. 781..............................................................................11
Bourhill v Young, [1943] AC 92..............................................................................................................11
Kusum Sharma & Others Vs Batra Hospital & Medical Research Centre & Others CIVIL APPEAL
NO.1385 OF 2001....................................................................................................................................13
Donoghue v Stevenson, [1932] A.C. 562, [1932] UKHL 100.................................................................11
HRD Corporation (Marcus Oil and Chemical Division) vs. Gail (India) Limited, (2018) 12 SCC 471. 17
Kusum Sharma & Ors. Vs. Batra Hospital & Medical Research Center and Ors....................................13
Laxman v. Trimbak, 1969 AIR 128, 1969 SCR (1) 206..........................................................................11
Sri V Anil Reddy vs Sri K Venkataramana Reddy MFA NO.1693/2016................................................15
NO. 428 OF 2018.....................................................................................................................................14
Porter v Magill, (2002) 2 AC 357 (HL)...................................................................................................19
R v Gough, (1992) 4 All ER 481..............................................................................................................19
State of Haryana & Ors vs Smt. Santra, AIR 2000 SC 1888...................................................................13
Vinod Bhaiyalal Jain v. Wadhwani Parmeshwari Cold Storage Pvt. Ltd., AIR 2019 SC 3538..............19

Articles

Ashish Aggarwal, The Arbitration and Conciliation Act, 1996: In Search of A Complete Code, 2 Law
Rev GLC 167 (2002-03).......................................................................................................................15
Bruno Manzanares Bastida, THE INDEPENDENCE AND IMPARTIALITY OF ARBITRATORS IN
INTERNATIONAL COMMERCIAL ARBITRATION......................................................................16
General duties of the arbitrator, part 7, IBA Guidelines on Conflict of Interest in International
Arbitration, 2014 (revised 2016)..........................................................................................................17
Kenneth McK. Norrie , “Medical Malpractice: The Scope of Informed Consent in Negligence Author”

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THE INTERNATIONAL AND COMPARATIVE LAW QUARTERLY , 1983...............................13
Klaus Peter Berger, Law and Practice of Escalation Clauses, 1Arb. Int’l 22 (2006).............................18
Margaret Moses, The Role of IBA Guidelines in Conflict of Interest in Arbitrator Challenges.............17
Prasenjit Kundu, Challenges and Prospects of International Commercial Arbitration in India, 9
RMLNLUJ (2017) 87...........................................................................................................................15
Zafar Eqbal “Medical Negligence and Consumer Justice: Regulatory Mechanism Other
than Consumer Protection Act, 1986”, 19 ALJ (2008-09)...................................................................11

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
hypotension, or low blood pressure, however the spinal cord was normal size below T5, and the

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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 .

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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 before this Hon’ble tribunal that Respondents can be held liable
for medical negligence for two reasons, firstly, Dr. AJ breached his duty of care towards the
claimant by reporting 1.5 hours late thereby breaching hospital instructions, secondly, his
diagnosis and line of treatment was not correct and informed consent about the risk of
incomplete L1 injury was neither taken nor explained to the claimed, thirdly, this breach of
duty resulted in mental as well as physical agony to the claimant thereby meeting all criteria
of medical negligence.

2. WHETHER CLAIMANT IS ENTITLED TO A DAMAGES ?

It is most humbly submitted that claimant is entitled to damages for two reasons, firstly, she is
entitled to such damages/compensation under consumer protection act 2019 Medical services will
fall inside the scope of services as defined in section 2(42) of the Consumer Protection Act of
2019, any matter involving medical negligence on the part of the service provider would be
considered a deficit. Secondly, defense of informed consent cannot be availed as it has been held
that if a doctor makes errors that amount to negligence, as in this case, it cannot hide behind a
legal document from a medical malpractice claim.

3. WHETHER THE APPOINTED ARBITRATOR IS INDEPENDENT AND

IMPARTIAL OR NOT AND THEREFORE DISQUALIFIED FROM BEING AN
ARBITRATOR?
It is most humbly submitted that the appointed arbitrator lacks impartiality and independence
as the appointment is violative of section 12(1) of arbitration and conciliation act 1996 which
is makes it mandatory to disclose if the present arbitrator has been an arbitrator for other cases
for any of the parties(schedule 5 ).

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ARGUMENTS ADVANCED

1. THAT SABER HOSPITAL AND MR. AJ (RESPONDENT) CAN BE HELD LIABLE FOR
MEDICAL NEGLIGENCE.
1. It is humbly submitted that Mr AJ and Saber hospital can be held liable for medical negligence.
Medical negligence is understood as professional negligence by act or omission by a health care
provider in which the treatment provided falls below the accepted standard of practice in the medical
community resulting in causing injury to the patient. 1 when a patient comes to a doctor for care and
the doctor accepts the same, at that moment an implied duty of care arises. 2 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 claimant3, breach of duty4, damage caused because of the breach and the doctors
conduct was or direct and proximate cause of damage.5
2. A standard of care specifies the appropriate treatment and medication procedure as per the
requirements that should be taken into account by a doctor while providing the treatment to his
patients. Here, the degree means the level of care an ordinary health care professional, with the same
training and experience, would render in similar circumstances in the same community. When
consulted by a patient owes him certain duties viz., a duty of care in deciding whether to undertake
the case, a duty of care in deciding what treatment to give or a duty of care in the administration of
that treatment. A breach of any of those duties gives a right of action for negligence to the patient.
The practitioner must bring to his task a reasonable degree of skill and knowledge and must exercise
a reasonable degree of care.6 a doctor is required to exercise a reasonable degree of care that is set for
this profession.7
3. According to the given factual matrix, Ms. Holly was admitted to Saber hospital in a very serious
state as she was attended there on a high priority basis and Mr. AJ was summoned on emergency
department on her arrival.8 The hospital as well as Mr AJ owed duty of care towards Ms. Holly.
According to the hospital rules which is applicable to Mr AJ, he was required to respond within 20

1
Ratanlal and Dhirajlal, THE LAW OF TORTS, 26th ed, pp 151-153.
2
Zafar Eqbal “Medical Negligence and Consumer Justice: Regulatory Mechanism Other than Consumer Protection Act,
1986”, 19 ALJ (2008-09) 105.
3
Bourhill v Young [1943] AC 92; Donoghue v Stevenson [1932] A.C. 562, [1932] UKHL 100.
4
Blyth v. Birmingham Waterworks Co, 11 Exch. 781.
5
Kenneth McK. Norrie, Medical Malpractice: The Scope of Informed Consent in Negligence, (1976) 65 DLR (3d) 766
(BC).
6
Laxman v. Trimbak 1969 AIR 128, 1969 SCR (1) 206.
7
1969 AIR 128.
8
Paragraph 3, factsheet.

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minutes of being summoned to the emergency department. 9 however, he arrived after 1 hour and 45
minutes. In such a case, any reasonable man would attend to a patient in a critical stage, Mr, AJ’s
conduct was grossly negligent for delaying the treatment by almost 2 hours and such conduct can be
said to be unreasonable thereby breaching his duty of care.
1.1. MR. AJ’S DIAGNOSIS AND LINE OF TREATMENT WAS NOT
CORRECT
4. According to the facts, Mr. AJ concluded that prompt surgery was not necessary and hence it was
conducted later on 4/11/22. Mr. AJ claimed the surgery to be successful but it was later found that
the surgery had resulted in an incomplete L1 injury progressing irreversibly, leaving Holly a
paraplegic with bladder, bowel and sexual dysfunction.10
5. Dr. AJ interpreted the MRI as showing 70 per cent trans-section of the thoracic spine and concluded
that prompt surgery to decompress and stabilize the spine at L1 was not necessary because the
thoracic injury was such that it would have rendered Holly a paraplegic in any event. However, Dr.
Pam weasely established that there was 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. These two opinions are contradictory and the treatment administered by Mr. AJ rendered the
Claimant paraplegic. Moreover, prompt surgery would have resulted in
at least partial return of sensation and motor function in her legs, as well as the return of bowel,
bladder and sexual function.Referring to exhibit 3, it can be concluded that Dr. Pam Beesely’s
conclusion that “The L1 injury was not complete-that is, it had not caused a complete loss of
sensation and movement from L1 down-when Holly arrived at the hospital” as the exhibit clearly
shows below L1 value 1 at L4 , L5 and L2 which means there was still sensations.11
1.1. MR. AJ FAILED TO EXERCISE DUE CARE
7. It is no surprise that even the slightest mistake made by a doctor can have life-altering effects on the
patients. So, it is the duty of a doctor to take proper care to avoid such happenings. Duty to take care
is the duty to avoid doing or omitting to do anything, the doing or omitting to do which may have as
its reasonable and probable consequence injury to others, and the duty is owed to those to whom
injury may reasonably and probably be anticipated if the duty is not observed.12
8. In Kusum Sharma & Ors. Vs. Batra Hospital & Medical Research Center and Ors “Deficiency in
medical service” is duty owed to patient. A person who holds himself out as ready to give medical
(a) advice or treatment impliedly undertakes that he is possessed of skill and knowledge for the
purpose. Such a person, whether he is a registered medical practitioner or not, who is consulted by a

9
Ibid.
10
Paragraph 6, factsheet.
11
Exhibit 3.
12
Bourhill v.Young, (1943) A.C 92.

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patient, owes him certain duties, namely, a duty of care in deciding whether to undertake the case: a
duty of care in deciding what treatment to give; and a duty of care in his administration of that
treatment (b) A breach of any of these duties will support an action for negligence by the patient. 13
9. Thus, a liability would come, if he did not exercise, with reasonable competence in a given case, the
skill which he did possess liability would only come, if (a) either the person (doctor) did not possess
the requisite skills, which he professed to have possessed; or (b) he did not exercise, with reasonable
competence in a given case, the skill which he did possess.14
10. It can be inferred from the facts that Mr. AJ being a doctor did not have idea about what went wrong
in the surgery and had to run multiple tests to find out. he later contented that he had consulted
various experts of senior neuro-surgeons and experts, taken their opinion and advice on her case
during the review after performing the surgery.It is imperitive to note that doing this consultation
was done post the surgery.15 Something as crucial as leaving a patient paralysed was not considered
before performing the surgery.
1.1. DEFENCE OF INFORMED CONSENT WILL CANNOT BE AVAILED
11. In the medical situation the consent treatment of the patient by the doctor is a consent to the invasion
of his bodily integrity which would otherwise be an assault. The patient does not consent to assume
the risk of carrying out his treatment negligently. The logical conclusion to “consent”, which
presupposes a prior awareness on both side cannot be given to a negligent action i.e. an unintentional
harmful results of which need not be know.16 the subjects accept the risks involve do not accept the
risk of the experiments being carried out and would therefore appear difficult to apply the maxim
volenti non in any of its forms to negligent. liability in civil law rests on the amount of damages
incurred.17A medical practitioner would be liable where his conduct fell below that of the standard so
far reasonably competent practitioner in his field. Therefore, the defence of informed consent cannot
be availed because claimant did not give consent to be treated negligently.
12. Claimant not only faced physical loss but also severe mental trauma stress because of negligent
attitude of Mr. AJ and is hence liable for medical negligence. Both mental and physical loss was a
result of delay in starting the treatment.
1. THAT THE CLAIMANT IS ENTITLED TO DAMAGES.
1. It is most humbly submitted that claimant is entitled to damages because she has suffered both
mental and physical losses because of Respondent’s negligent conduct. The remedy lies under

13
CIVIL APPEAL NO.1385 OF 2001.
14
Kusum Sharma & Ors. Vs. Batra Hospital & Medical Research Center and Ors.
15
Paragraph 6, factsheet.
16
Kenneth McK. Norrie , “Medical Malpractice: The Scope of Informed Consent in Negligence Author” THE
INTERNATIONAL AND COMPARATIVE LAW QUARTERLY , 1983, Vol. 32,pp. 229-236.
17
State of Haryana & Ors vs Smt. Santra, AIR 2000 SC 1888.

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various statutes including Consumer Protection Act, 2019(CPA).An aggrieved person can approach
the consumer courts to file a case against the accused person and the hospital.Under the Consumer
Protection Act, 2019, the medical services shall fall under the ambit of services.18 Any matter in
medical negligence on the part of the service provider will be considered as deficiency.19 any
aggrieved person can claim damages for medical negligence against a doctor or a hospital within 2
years from the date of injury.20
1.1. CONSENT FORMS CANNOT PREVENT CLAIMS ARISING FROM
NEGLIGENT CARE
2. It is to be noted that no form can bar a patient from bringing a legal claim if negligent treatment did,
indeed, lead to harm. Thus, if a doctor, as in present case made errors that amounted to negligence, it
can't hide from a medical malpractice claim behind a legal form. A doctor can be liable for
negligence if he fails in his duty to disclose the material risks inherent in the proposed therapeutic
treatment or surgery and damage results from the failure to disclose. Thus,the claimant has the right
to recover damages for failure to provide adequate informed consent concerning an incomplete L1
injury. If the complication is not on the form, and the patient suffers that complication, then the
patient may have a medical malpractice claim against the doctor for performing the procedure
without obtaining the patient's informed consent. thus in the present case complication of being
paraplegic regardless of L1 injury was not mentioned or explained and hence the harm was caused
because of the delay in starting the surgery.
3. In Vinod Khanna vs. R.G Stone Urology and Laparoscopy Hospital & Ors (Order)21, NCDRC
pronounced that obtaining consent in a pre-printed consent forms are an unfair trade practice and
NCDRC held that the pre-printed consent form is an unfair trade practice section 2(1) (r) under
Consumer Protection Act 2019. Hence an uninformed consent can be no bar for claiming remedy.
1.1. CLAIMANT SHALL BE ENTITLED WITH ADEQUATE COMPENSATION
2. Compensation is intended to compensate them for any medical and personal costs occurred due to
the injury caused during the process of treatment. Compensation as a legal remedy provides victims
of medical negligence with the resources they require to cover medical costs, future medical
expenses, loss of income, cost of litigation, etc. lies on the legal principle of “restitutio in integrum,”
which when translated means, that the person who is seeking damages due to a wrongful committed
him/her is in the position that he/she would have been had the wrong not been committed . This
mechanism attempts to ensure victims are financially provided for allowing them to bear the
consequences of medical negligence, hence claimant shall be compensated adequately.

18
section 2(42), Consumer protection Act 2019.
19
section 42(11), Consumer Protection Act 2019.
20
Section 69(1), Consumer Protection Act 2019.
21
NO. 428 OF 2018.

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3. In this context, it may be noted that in the case of State of Haryana and Ors v. Smt. Santra,22 the
Supreme Court held Claim for damages was based on the principle that if a person has committed
civil wrong, he must pay compensation by way of damages to the person wronged and hence in lieu
of medical negligence by respondent, claimant shall be redressed appropriately. A similar view was
held in Smt. Savita Garg Vs. Director, National Heart Institute 23, wherein a principle was laid down
that the onus shifts on the hospital to explain the exact line of treatment rendered and as to why a
particular condition had occurred and hence burden of proof is on doctor and hospital.
4. The compensation shall include all pain and sufferings of the claimant . Compensation for pain and
suffering includes awards for physical pain and the emotional distress that could accompany your
injuries, such as anxiety, depression, and the inability to do the things claimant once loved to do. In
the case of Spring Meadows Hospital and Anr. v Harjol Ahluwalia 24,a compensation of Rs. 5 lacs
were awarded because of mental anguish caused to the parents. In K. Raji Reddy Vs. Dr (Mrs) Aruna
Reddy & Another25 where a newly born baby suffered paralysis due to the negligence on the part of
the doctor while conducting the delivery, viewed that the “child not only suffers physically
throughout her life, but will also affect her career and matrimonial life, there being a permanent
disability.
1. THAT THE APPOINTED ARBITRATOR IS NOT AN INDEPENDENT AND IMPARTIAL
AND THEREFORE DISQUALIFIED FROM BEING AN ARBITRATOR?
1. It is most humbly submitted that the appointed arbitrator lacks impartiality and independence
required as per the standards of the arbitration procedure in this case. The appointed arbitrator has
been an acquaintance to the RESPONDENT and is very well known by the Hospital Authority.
2. Neutrality is an essential element for conducting a successful and amicable dispute resolution
process.26Arbitration as a method of dispute resolution is a practical and peaceful approach of
resolving the disputes between the parties. The special skills and understanding of a qualified
arbitrator make it a smooth process and completely different from the regular court litigation. The
objective of the arbitration is better disposition of the dispute in a speed and less expensive manner
so that the litigation does not creates a burden on the courts. 27 Hence a successful arbitral proceeding
is one where there is impartiality and independence from prejudice along with involvement of parties
in the dispute resolution.

22
(2000) CPJ 53 (SC),
23
(2004) 8 SCC 56.
24
1998 4 SCC 39.
25
MFA NO.1693/2016.
26
Prasenjit Kundu, Challenges and Prospects of International Commercial Arbitration in India, 9 RMLNLUJ (2017) 87.
27
Ashish Aggarwal, The Arbitration and Conciliation Act, 1996: In Search of A Complete Code, 2 Law Rev GLC 167 (2002-03).

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3. In the given factual matrix, the essential element of impartiality and independence of the arbitrator is
absent. The appointed arbitrator shares a cordial relation with the RESPONDENT party, as he has
been appointed as an arbitrator by the Hospital for different arbitration on two other occasions dated
22.08.2020 and 15.09.2021. 28The appointment of arbitrator by the Hospital previously highlight the
fact that they share a professional nexus and are significantly familiar to each other.
4. It is submitted that as there was non-disclosure of this fact of association with the hospital before the
appointment as arbitrator may raise reservation regarding the delivery of a biased arbitral award i.e in
favour of RESPONDENT.

1.1. THAT THERE IS LACK OF INDEPENDENCE ON THE PART OF APPOINTED

ARBITRATOR AND HIS CONDUCT IS NOT IN CONFORMITY TO THE STANDARDS
OF CONDUCT OF AN ARBITRATOR.
2. It is most humbly submitted in order to conduct a fair and effective settlement of the dispute; an
arbitrator must be independent and impartial. Article 18 of the UNCITRAL Model Law provides
that, “parties in arbitration should be treated equally and be given full opportunity of presenting their
case”. It must be ensured that the arbitration process is from prejudice and if any of the participating
party apprehends that there has been biasness, the same can be challenged. 29 According to Section 12
of the Arbitration and Conciliation Act, 1996, “an arbitrator may be challenged only if circumstances
exist, that give rise to justifiable doubts as to his impartiality or independence, or if he does not
possess qualifications agreed to by the parties. A party may challenge an arbitrator appointed by him,
or in whose appointment he has participated, only for reasons of which he becomes aware after the
appointment has been made.”30 It is thereby obligatory for the arbitrator to disclose any such
circumstance which may give rise to “justifiable doubts as to his independence or impartiality”. 31
3. The International Bar Association (hereinafter referred as IBA) has laid down guidelines on
“Conflict of Interest in Arbitration”. The first principle provides that, “Every arbitrator shall be
impartial and independent of the parties at the time of accepting an appointment to serve and shall
remain so until the final award has been rendered or the proceedings have otherwise finally
terminated”.32 It is implied from this principle that if there is a conflict of interest, then the arbitrator
should refuse the appointment in the first place. The principle is applicable to situation that have
arisen due to appointment which from the perspective of a reasonable third person having knowledge

28
Factsheet, para. 13 at pg. 4.
29
UNCITRAL Model Law on International Commercial Arbitration 1985/ with amendments as adopted in 2006, 21 Jun 1985, Art. 18.
30
Arbitration and Conciliation Act, 1996, Section 12.
31
Bruno Manzanares Bastida, THE INDEPENDENCE AND IMPARTIALITY OF ARBITRATORS IN INTERNATIONAL
COMMERCIAL ARBITRATION, REVIST@ e – MercatoriaVolumen 6, Número 1, (2007), available at:
https://dialnet.unirioja.es/descarga/articulo/5197420.pdf, last visited on Nov 4, 2018.
32
General standard 1, IBA Guidelines on conflict of interest, p. 4.

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of the relevant facts and circumstances, would give rise to justifiable doubts as to the impartiality or
independence of the arbitrator. 33
4. Doubts or apprehensions are justifiable if a reasonable third person, having knowledge of the
relevant facts and circumstances, would reach the conclusion that there is a possibility that the
arbitrator may be influenced by factors other than the factual matrix and merits of the situation as
presented by the parties and such influence reflects in the arbitral award passed by the arbitrator. 34
Failure to disclose a conflict is not excused by lack of knowledge, if the arbitrator does not perform
such reasonable enquiries.35
5. Section 12(1) read with the Fifth and Seventh Schedules provides a list of grounds on basis of which
the parties can challenge the independence and impartiality. In order to establish the independence
and impartiality of the arbitrator, the grounds provided under the fifth and seventh schedule should
be interpreted in such a manner that augments independence and impartiality. Item 22 of fifth
schedule states, “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”. It is submitted that Item 22
provided under the fifth schedule is attracted by the facts of the case and thereby raise a justifiable
doubt as to the independence or impartiality.
6. In the present state of facts, the RESPONDENT has previously engaged the arbitrator for Arbitration
process on 22.08.2020 and 15.09.2021. Keeping in view Item 22 of the Fifth Schedule and the
factual matrix, it can be interpreted that the arbitrator has within the past three years been appointed
as arbitrator on two or more occasions by one of the parties. Here such an affiliation can raise a
doubt of impartiality and independence which may affect the decision of the arbitration proceeding.
It can be construed from the eyes of a third person that the arbitrator may be well-known to the
hospital and may be biased during the process.36
7. Therefore, the independence and impartiality of the arbitrator is questionable and thus, he cannot
appropriately proceed with the arbitral proceedings, as such bias would also be against the principles
of natural justice i.e. nemo judex in causa sua, in a wider manner. It would be a flagrant violation of
the Arbitration and Conciliation Act,1996.
1.1. THAT THERE IS A LACK OF DISCLOSURE ON THE BEHALF OF
APPOINTED ARBITRATOR WITH REFERENCE TO HIS ASSOCIATION
WITH THE RESPONDENT.

33
Margaret Moses, The Role of IBA Guidelines in Conflict of Interest in Arbitrator Challenges, available at
arbitrationblog.kluwerarbitration.com/2017/11/23/role-iba-guidelines-conflicts-interest-arbitrator-challenges/, last visited on Apr
4,2022.
34
HRD Corporation (Marcus Oil and Chemical Division) vs. Gail (India) Limited, (2018) 12 SCC 471.
35
General duties of the arbitrator, part 7, IBA Guidelines on Conflict of Interest in International Arbitration, 2014 (revised 2016).
36
Factsheet, para. 13 at pg. 4.

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8. It is the duty of the arbitrator to disclose any information which is or may be relevant to the outcome
of the arbitration. The purpose behind this rule is that a sense of fairness and equality must be
established among the parties.37
9. According to Section 12 of the Act, it is clear that when a person is approached in connection with
his possible appointment as an arbitrator, he has to make a disclosure in writing, in which he must
state the existence of any direct or indirect present or past relationship or interest in any of the parties
or in relation to the subject matter in dispute, which is likely to give justifiable doubts as to his
independence or impartiality. An arbitrator, from the time of his or her appointment and throughout
the arbitral proceedings, shall without delay disclose any such circumstances to the parties and the
other arbitrators unless they have already been informed by him or her of these circumstances. 38
10. As per the IBA Guidelines, it is essential to disclose the facts or circumstances which may give rise
to doubts as to the impartiality and independence of the arbitrator. Such disclosure should be made to
the participating parties, the co-arbitrator, arbitration institution or any other authority involved in the
appointment of the arbitrator and arbitration process. The stage of arbitration is immaterial when it
comes to the disclosure of the facts by the arbitrator. Therefore, if there is any doubt regarding the
conflict of interest as to whether an arbitrator should disclose certain facts or circumstances should
be resolved in favour of disclosure39.
11. In case where the arbitrator is of such an opinion that he is not in a position to disclose the relation
and has to maintain the professional secrecy, then in such event he or she should not accept the
appointment or should resign. It clearly implies that knowledge and interests of the parties are
prioritized any day over that of the arbitrator, as the parties have to bear the consequences of the
arbitral award. Also, such disclosure would be a huge impediment in the path of ensuring justice and
equality.40
12. It is submitted that the CLAIMANT has raised the objection with regard to the lack of independence
and impartiality of the arbitration from the date of becoming aware of such circumstances. The
CLAIMANT has not exhausted the 15 days objection period as in the present case the date when the
CLAIMANT came to know about the affiliation is 15.4.2022. As such information has not flown
through the arbitrator who is actually the one under the obligation to make such disclosure,
CLAIMANT is rightful in raising its objection against the appointed arbitrator.41

37
246th Law Commission of India Report, Amendment to Arbitration and Conciliation, 1996, para 53 to 60 (2014), available at
http://lawcommissionofindia.nic.in/reports/report246.pdf, last seen on 10/11/2017.
38
Bharat Broadband Network Limited v. United Telecoms Limited (2019) 2 SCC 2434.
39
UNCITRAL Arbitration Rules, 2013,Art. 11.
40
Klaus Peter Berger, Law and Practice of Escalation Clauses, 1Arb. Int’l 22 (2006).
41
Factsheet, para. 13 at pg. 4.

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13. Due to such lack of disclosure on the part of the presiding arbitrator, it can be easily concluded that
the independence and impartiality of the presiding arbitrator is questionable and therefore, the
appointed arbitrator should not continue with the arbitration proceeding between CLAIMANT and
RESPONDENT.

1.1. THAT SUCH AFFILIATION OF ARBITRATOR WITH RESPONDENT

PROVED THE ‘REAL DANGER’ OF BIAS IN THE ARBITRATION.
1. The concept of bias was first discussed in the case of R v Gough 42by 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”.
2. In State of West Bengal and others v. Shivananda Pathak and others, “Bias was defined as a
preconceived opinion or a predisposition or predetermination to decide a case or an issue in a
particular manner, so much so that such predisposition does not leave the mind open to conviction. It
is in fact, a condition of mind, which sways judgments and renders the judge unable to exercise
impartiality in a particular case”.
3. In another landmark judgment of Porter v Magill, the Court was of the opinion that the bias was
decided by the question that whether the circumstances of the case would lead a fair-minded and
informed observer to conclude that there was a real danger that the tribunal was biased. This position
is also adopted in United Kingdom and United States of America.
4. The Supreme Court of India in Vinod Bhaiyalal Jain v. Wadhwani Parmeshwari Cold Storage Pvt.
Ltd.43 recognized the concept of “apparent bias”. The Court observed that not even the slightest
apprehension for bias should be given room, especially in arbitration where the very basis is that the
parties get an opportunity to nominate an arbitrator of their choice in whom they have trust and faith.
5. In essence of the test in Porter v. Magill44, it is evident that the association between appointed
arbitrator and the RESPONDENT would certainly give an apprehension of bias to a reasonable and
fair-minded third person, which would be no less than being a judge in one’s own cause and
violating the fundamentals of natural justice. Therefore, the relation between ARBITRATOR and
RESPONDENT satisfies the test of real danger of bias and thus, renders the independence and
impartiality of arbitrator questionable.

42
R v Gough, (1992) 4 All ER 481.
43
Vinod Bhaiyalal Jain v. Wadhwani Parmeshwari Cold Storage Pvt. Ltd. AIR 2019 SC 3538.
44
Porter v Magill (2002) 2 AC 357 (HL).

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PRAYER

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) can be held liable for medical negligence.
2. Declare that the claimant is entitled to damages.
3. Declare that the appointed arbitrator is a biased arbitrator and therefore 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 Claimant

Sd/-

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