TC-17

DME NATIONAL MOOT COURT COMPETITION 2024

Before The Hon’ble High Court of Kaharashtra

Under Section 34 of the Arbitration and Conciliation Act, 1996

In the matter of

PetroPrime Innovations Pvt. Ltd………………………………………………. PETITIONER

V.

Apex Maritime Solutions Pvt. Ltd…..................................................................RESPONDENT

MOST RESPECTFULLY SUMBITTED TO THE HON’BLE CHIEF JUSTICE OF HIGH COURT OF

KAHARASHTRA AND OTHER COMPANION JUDGES OF HIGH COURT OF
KAHARASHTRA

MEMORIAL ON BEHALF OF THE RESPONDENT

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TABLE OF CONTENTS

LIST OF ABBREVIATIONS....................................................................................................3

INDEX OF AUTHORITIES......................................................................................................4

STATEMENT OF JURISDICTION..........................................................................................6

STATEMENT OF FACTS.........................................................................................................7

ISSUES RAISED.......................................................................................................................9

SUMMARY OF ARGUMENTS.............................................................................................10

ARGUMENTS ADVANCED..................................................................................................13

ISSUE 1: WHETHER THE SETTING ASIDE APPLICATION IS MAINTAINABLE

BEFORE THE COURT?..........................................................................................................13
I. The time limitation for challenging the award has expired..........................................13
II. Proper procedure was not followed by PPIPL.............................................................14
III. Grounds under Section 34(2) not satisfied...................................................................14

ISSUE 2: WHETHER THE COURT HAS JURISDICTION TO ENTERTAIN LEGAL

PROCEEDINGS AGAINST TSLPL?.....................................................................................16
I. AMSPL is exempt from liability..................................................................................16
II. TSLPL is not a party to the contract between PPIPL and AMSPL.............................16

ISSUE 3: WHETHER THE COURT HAS JURISDICTION TO ENTERTAIN LEGAL

PROCEEDINGS AGAINST THE ARBITRATOR APPOINTED BY AMSPL, NAMELY, DR.
ROBERT ZANE.......................................................................................................................18
I. Challenge to the arbitrator should be made before the Arbitral Tribunal..........................18
II. Courts are guided by the principle of Minimal Judicial Interference................................19

ISSUE 4: WHETHER THE ARBITRAL AWARD DATED 30.11.2023 AS GIVEN BY THE

HON’BLE ARBITRAL TRIBUNAL SHOULD BE SET ASIDE?........................................21
I. The arbitrator, Dr. Robert Zane was impartial and independent..................................21
II. The claims and defense of AMSPL in arbitral proceedings are reasonable................22

PRAYER..................................................................................................................................24

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LIST OF ABBREVIATIONS

@ Alias

AIR All India Reporter

Anr. Another

AMSPL Apex Maritime Solutions Pvt. Ltd

Art. Article

BMRPL Bradley Maritime Resources Pvt. Ltd

Dr. Doctor

Ed. Edition

HC High Court

Hon’ble Honourable

Mr. Mister

Ors. Others

PPIPL PetroPrime Innovations Pvt. Ltd

§ Section

Sd/- Signed

SC Supreme Court

TSLPL TransSwift Logistics Pvt. Ltd

CISG United Nations Convention on Contracts for

the International Sale of Goods

v. Versus

Vol. Volume

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INDEX OF AUTHORITIES

Cases:

1) Union of India v. Popular Construction Co., (2001) 8 SCC 470..........................................13

2) Balwant Singh v. Jagdish Singh, (2010) 8 SCC 685..........................................................13
3) International Airports Authority v. K.D. Bali, (1988) 2 SCC 360...............................15
4) HRD Corpn. v. GAIL (India) Ltd., (2018) 12 SCC 471..............................................15
5) Hollier v. Rambler Motors (AMC) Ltd., [1971] EWCA Civ 12..................................16
6) Tweddle v. Atkinson, [1861] EWHC J57 (QB)...........................................................17
7) Progressive Career Academy (P) Ltd. v. FIIT JEE Ltd., 2009 SCC OnLine Del 317018
8) Allied-Dynamic Joint Venture v. Ircon International Ltd., O.M.P. (Comm) 451/
2016..............................................................................................................................19
9) Food Corporation of India v. Indian Council of Arbitration, (2003) 6 SCC 564.........20
10) Aniket SA Investments LLC v. Janapriya Engineers Syndicate, (2021)
SCC OnLine Bom 919.................................................................................................20
11) McDermott International Inc. v. Burn Standard Co. Ltd., MANU/SC/8177/2006......20
12) Angel Broking Pvt. Ltd. vs. Urmil Modi, [MANU/DE/1568/2022]............................20
13) Microsoft Corpn. v. Zoai Founder, 2023 SCC OnLine Del 3800................................21
14) Anglo American Metallurgical Coal Pty. Ltd. v. MMTC Ltd., (2021) 3 SCC 308.....23

Statues:

1. The Arbitration and Conciliation Act, 1996.

2. The Stamps Act, 1899.

International Convention(s):

1. United Nations Convention on Contracts for the International Sale of Goods.

Books:

1. EBC Law of Arbitration and Conciliation and Alternative Dispute Resolution Systems
Avtar Singh Ed. 12.
2. Justice SB Malik Commentary on the Arbitration and Conciliation Act Ed. 8.
3. P.C. Markanda, LAW RELATING TO ARBITRATION AND CONCILIATION, (8th
Edn. 2013) LexisNexis.
4. Vikramajit Sen and Satyajit Gupta, The Concept of Seat in International Arbitration

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Developments in India, in Shashank Garg (ed.) Alternative Dispute Resolution, The
Indian Perspective (OUP 2018).
5. Sheila Ahuja, International Arbitration with an Indian Connection, in Shashank Garg
(ed.) Alternative Dispute Resolution, The Indian Perspective (OUP 2018).

Reports:
1. 222nd Report of the Law Commission of India on NEED FOR JUSTICE-
DISPENSATION THROUGH ADR, etc. (2009).
2. 246th Report of the Law Commission of India on AMENDMENTS TO THE
ARBITRATION AND CONCILIATION ACT 1996 (2014).

Commentaries:

1. Commentary on Arbitration & Conciliation Act in 2 Vols. by Justice R.P. Sethi – 4th
Edition 2023.
2. Commentary on The Arbitration and Conciliation Act by Justice S.M. Jhunjhunwala
(10th Edition 2023).
3. Arbitration and Conciliation, A Commentary (EBC Webstore).

Legal Databases:

1. www.epw.in
2. www.jstor.org
3. www.manupatra.com
4. www.scconline.com
5. www.westlawindia.com

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STATEMENT OF JURISDICTION

The petitioner has submitted to the jurisdiction of the Hon’ble High Court of Kaharashtra
under Section 34 of the Arbitration and Conciliation Act, 1996 of Indica.

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STATEMENT OF FACTS

I. Kalaysia is a Southeast Asian country with significant oil and gas reserves. Kabah and
Karawak, located on the island of Korneo, are pivotal areas for the oil and gas
industry in Kalaysia.

II. Apex Maritime Solutions Pvt. Ltd. (“AMSPL”), a leading private corporation
specializing in oil manufacturing and export, is based in Kabah, Kalaysia.

III. Clause 6 of AMSPL's "Dealing Policy" mandates utilizing its subsidiary, Bradley
Maritime Resources Pvt. Ltd. (‘BMRPL”), for transportation services. Further,
Clause
6.1 of the "Dealing Policy" stipulates additional surcharge for not availing its
transportation facility.

IV. PetroPrime Innovations Pvt. Ltd (“PPIPL”), a commercial entity based in Indica,
engaged in exporting and importing oil has a unit in Kalaysia. PPIPL and AMSPL
entered a Long-Term Contract for Sale on 1 st Januray 2022, stipulating monthly oil
shipments from January 2022 to December 2024, with BMRPL handling
transportation. Each shipment had a 50-day performance window. Initial deliveries
were executed per the contract terms, with PPIPL paying accordingly.

V. For the fourth transaction, AMSPL enlisted an alternative transporter to BMRPL i.e.
TransSwift Logistics Pvt. Ltd. (“TSLPL”), and this resulted in oil barrels deviating
from agreed standards upon delivery. Similarly, the fifth transaction was also carried
out by TSLPL which faced delayed delivery due to weather conditions.

VI. PPIPL issued a “Dispute Notice” on 05.08.2022 seeking their responses, clarifications
compensation for the issues in the fourth and fifth transactions from AMSPL, which
failed to respond. Consequently, on 17.08.2022 PPIPL issued a “contract termination
notice” and “Arbitration Notice”.

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VII. PPIPL designated Mr. Vipin Asari & AMSPL appointed Dr. Robert Zane as its
arbitrator. Due to disagreement, apex court appointed Ms. Donna Paulson as the
presiding arbitrator.

VIII. PPIPL sought performance or compensation from AMSPL during arbitration, while
AMSPL contested contract termination and sought payments for the transactions.

IX. The Arbitral Tribunal ruled in favour of AMSPL, awarding payments for the fourth
and fifth shipments, along with interest and costs, rejecting PPIPL's claims.

X. Post-award, PPIPL alleged potential conflicts of interest regarding Dr. Robert Zane,
the arbitrator appointed by AMSPL. PPIPL subsequently challenged the award in
court, alleging Dr. Robert Zane's potential conflict of interest based on his law firm's
past representation of AMSPL and his professional relationship with Mr. Daniel
Hardman.

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ISSUES RAISED

- ISSUE 1-

WHETHER THE SETTING ASIDE APPLICATION IS MAINTAINABLE

BEFORE THE COURT?

-ISSUE 2-

WHETHER THE COURT HAS JURISDICTION TO ENTERTAIN LEGAL

PROCEEDINGS AGAINST THE TSLPL?

-ISSUE 3-

WHETHER THE COURT HAS JURISDICTION TO ENTERTAIN LEGAL

PROCEEDINGS AGAINST THE ARBITRATOR APPOINTED BY AMSPL,
NAMELY, DR. ROBERT ZANE?

-ISSUE 4-

WHETHER THE ARBITRAL AWARD DATED 30.11.2023 AS GIVEN BY THE

HON’BLE ARBITRAL TRIBUNAL SHOULD BE SET ASIDE?

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SUMMARY OF ARGUMENTS

ISSUE 1: WHETHER THE SETTING ASIDE APPLICATION IS MAINTAINABLE

BEFORE THE COURT?

PPIPL filed the setting aside application beyond the prescribed time limit of three months, as
stipulated in Section 34(3) of the Arbitration and Conciliation Act, 1996. Despite a possible 30-
day extension, PPIPL failed to demonstrate sufficient cause for the delay, as the reasons
provided were ambiguous and did not justify the delay adequately. PPIPL failed to follow the
proper procedure by not issuing a prior notice to Apex Maritime Solutions Pvt. Ltd. (AMSPL)
before filing the application, as required by Section 34(5) of the Act. This procedural flaw
renders the application premature and procedurally flawed, as established in various case laws.
The respondent contends that there is no apparent breach of natural justice in the arbitration
proceedings. The prior engagement of Dr. Robert Zane's law firm with AMSPL, which was
challenged by PPIPL, occurred beyond the three-year limit specified in the law. Moreover, the
relationship between Dr. Zane and AMSPL did not constitute a business relationship, and there
is no evidence of partiality or bias. Tthe respondent asserts that the setting aside application
filed by PPIPL lacks merit due to procedural non-compliance, expiration of the time limitation,
and absence of any apparent breach of natural justice.

ISSUE 2: WHETHER THE COURT HAS JURISDICTION TO ENTERTAIN LEGAL

PROCEEDINGS AGAINST THE TSLPL?

AMSPL cannot be held accountable for the failure of a third party if that failure was beyond
its control. The disruptions during the fourth and fifth transactions were due to circumstances
beyond AMSPL's control, such as weather discrepancies. Article 79 of the United Nations
Convention on Contracts for the International Sale of Goods provides for exemption from
liability in such cases, provided the party made reasonable efforts to anticipate or overcome
the impediment. TSLPL was not a signatory to the contract between PetroPrime Innovations
Pvt. Ltd. (PPIPL) and Apex Maritime Solutions Pvt. Ltd. (AMSPL). Therefore, there is no
direct contractual relationship between TSLPL and PPIPL, undermining the basis for PPIPL
to initiate legal proceedings against TSLPL. The principle of privity of contract dictates that

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only parties to a contract can enforce its terms or be held liable for its breach. As TSLPL did
not directly enter into the contract with PPIPL, it cannot be brought under the jurisdiction of
high court of Kaharashtra. The jurisdictional scope of the arbitration agreement, as stipulated
in the contract, pertains specifically to disputes between AMSPL and PPIPL, excluding any
involving TSLPL. Additionally, the group of companies’ doctrine does not apply to TSLPL
as it was not a party to the initial agreement negotiations and there is no evidence of a
common intention for TSLPL to be bound by the arbitration clause. Overall, the respondent
contends that due to the lack of contractual privity, exemption from liability, and
jurisdictional limitations, the court lacks jurisdiction to entertain legal proceedings against
TSLPL in this matter.

ISSUE 3: WHETHER THE COURT HAS JURISDICTION TO ENTERTAIN LEGAL

PROCEEDINGS AGAINST THE ARBITRATOR APPOINTED BY AMSPL,
NAMELY, DR. ROBERT ZANE?

The process for challenging an arbitrator is delineated in Section 13 of the Act. Notably, it
mandates that challenges be initially brought before the arbitral tribunal. However, in the case
between PPIPL and AMSPL, no challenge to Dr. Zane's impartiality was raised during the
arbitral proceedings. This oversight is significant as Section 13(5) stipulates that challenges
must first be adjudicated by the arbitral tribunal before any application to set aside an arbitral
award under Section 34 can be made. Additionally, judicial intervention in arbitration is
circumscribed by the principle of minimal interference, enshrined in Section 5 of the Act.
This principle underscores the intent to limit court involvement except where expressly
provided for Courts, as per Section 34(2), possess the authority to set aside arbitral awards,
but solely under specified circumstances. This prerogative, however, does not extend to
modifying awards or correcting arbitrators' errors, as reiterated in legal precedents such as
McDermott International Inc. v. Burn Standards Co. Ltd. and Angel Broking Pvt. Ltd. vs.
Urmil Modi. Given the delineated boundaries of judicial interference and the primary
authority vested in arbitral tribunals, the court doesn’t have jurisdiction to entertain legal
proceedings against the arbitrator appointed by AMSPL, viz. Dr. Robert Zane.

ISSUE 4: WHETHER THE ARBITRAL AWARD DATED 30.11.2023 AS GIVEN BY

THE HON’BLE ARBITRAL TRIBUNAL SHOULD BE SET ASIDE?

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The arbitrator, Dr. Robert Zane was impartial and unbiased. PPIPL's allegations regarding
potential bias lack substantive evidence and are based on whimsical suspicion rather than
concrete facts. Dr. Zane's law firm representation of AMSPL in a separate matter more than
three years ago doesn't constitute bias and do not give rise to justifiable doubts about his
independence and impartiality. In absence of any such grounds, Dr. Zane did not need to
make any disclosure under Section 12(2). The relationship between Dr. Zane and Dr.
Hardman, was strictly professional, which does not fall under the criteria of Schedule 7 , to
make the arbitrator ineligible. There falls no ground under Section 34 to set aside the arbitral
award. Under the Contract of Sale, between PPIPL and AMSPL, clearly stated the buyers
absolute and unqualified obligation to make the payment. AMSPL was not at fault for the
delay and delivery or the deviance from the standard quality of oil, as it was within the
purview of TSLPL, and as per Section 79 of CISG, AMSPL cannot be held liable for the
failure of a third party. The claims and defense of AMSPL were reasonable. However, The
court may not delve into the merits of the dispute, in light of arbitral autonomy.

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ARGUMENTS ADVANCED

ISSUE 1: WHETHER THE SETTING ASIDE APPLICATION IS MAINTAINABLE

BEFORE THE COURT?

I. The time limitation for challenging the award has expired:

1. Section 34(3)1 of the Arbitration and Conciliation Act, 1996, requires applicants to submit
their application for setting aside within three months, with a possible 30-day extension
granted at the discretion of the court under certain circumstances. PPIPL filed the setting
aside application promptly following Dr. Robert Zane's response on 30.03.2024 2,
concluding its three-month timeframe as stipulated in Article 34(3).
2. The consequence of time expiring under Section 34 3 is that the award becomes
immediately enforceable without any further action by the court as mentioned in Section
36(1)4, this was further reinstated by the Supreme Court in the judgement of Union of
India v. Popular Construction Co.5 An extension of 30 days may be granted at the
discretion of the court if sufficient cause is demonstrated. 6 The application filed by PPIPL
was after the response of Dr. Zane dated 30.03.2024, which implies that the thirty-day
extension also stands expired.
3. PPIPL applied for clarification from Mr. Zane due to information obtained from
purportedly "reliable sources."7 However, the ambiguity surrounding the term "reliable
sources" mentioned by PPIPL does not fulfill the requirement for a sufficient cause to
justify the delay. PPIPL could have exercised due diligence by seeking information from
AMSPL beforehand. Hence, terminating its 30-day extension.8
4. Ergo, in the present case, PPIPL has submitted a setting aside application beyond the
prescribed time limit, rendering it not maintainable before the court.

1
Arbitration and Conciliation Act, 1996, § 34(3).
2
Exhibit C, Moot Proposition.
3
Arbitration and Conciliation Act, 1996, § 34.
4
Arbitration and Conciliation Act, 1996, § 36(1).
5
Union of India v. Popular Construction Co., (2001) 8 SCC 470.
6
. Arbitration and Conciliation Act, 1996, § 34(3).
7
Para XIV, Moot Proposition.
8
Balwant Singh v. Jagdish Singh, (2010) 8 SCC 685.

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II. Proper procedure was not followed by PPIPL:

5. Upon receiving the letter from Dr. Robert Zane, PPIPL promptly moved to court to
challenge the arbitral award. PPIPL cited the potential conflict of interest arising from Dr.
Zane's previous association with AMSPL, emphasizing the importance of impartiality in
arbitration proceedings.9
6. Under Section 34(5)10 of the Act, the applicant is required to issue a prior notice to the
other party before making an application under this section. This notice serves as an
opportunity for both parties to address any concerns or objections before escalating the
matter to court. Additionally, the application must be accompanied by an affidavit by the
applicant endorsing compliance with this requirement.
7. PPIPL's failure to provide a prior notice to AMSPL results in non-compliance with this
requirement under Section 34(5)11. As a consequence to this, it is submitted that the court
may deem the application for setting aside the arbitral award as premature or procedurally
flawed.
8. Overall, adherence to procedural requirements is crucial in ensuring the fairness and
integrity of arbitration proceedings.

III. Grounds under Section 34(2) not satisfied:

9. The past involvement of the arbitrator's law firm with one of the parties or its affiliate in
an unrelated matter within the last three years, without the arbitrator's direct participation,
may raise concerns about the independence or impartiality of the arbitrator. However, the
prior engagement of Mr. Zane's law firm, dated 22.04.2019 12, which was challenged on
30.03.202413, and the arbitral proceedings occurring on 17.08.2022 14, have exceeded the
three-year limit. Therefore, the basis for doubting Mr. Zane's independence or
impartiality is unfounded.
10. Revoking an arbitrator's authority due to apprehension of bias requires that the
apprehension be reasonable. In the case of International Airports Authority v. K.D.
Bali15, the court held that mere apprehension of bias is insufficient to challenge the

9
Para XV, Moot Proposition.
10
Arbitration and Conciliation Act, 1996, § 34(5).
11
Id.
12
Para XV (1), Moot Proposition.
13
Para XV, Moot Proposition.
14
Para XI, Moot Proposition.
15
International Airports Authority v. K.D. Bali, (1988) 2 SCC 360.

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arbitrator’s appointment. Dr. Zane did not represent AMSPL in the mentioned matter; the
involvement on 22.04.2019 pertained to a separate, unrelated project.16
11. The professional relationship between Mr. Zane and Mr. Daniel Hardman does not
compromise Mr. Zane's impartiality as an arbitrator in the present case. Their interactions
primarily center around professional engagements related to the field of arbitration, rather
than business dealings or collaborations. 17 This distinction between professional and
business relationship was clarified in the case of HRD Corpn. v. GAIL (India) Ltd.18
This distinction is crucial in assessing the impact of their relationship on Mr. Zane's
impartiality as an arbitrator. The absence of any business affiliations between Mr. Zane
and Mr. Daniel Hardman further underscores the professional nature of their relationship.
They do not share any direct business interests or engage in transactions that could
potentially create conflicts of interest. The criteria outlined in Item 1 of the Seventh
Schedule of the Act,19 specifically address business relationships that may impact an
arbitrator's impartiality. Since Mr. Zane's relationship with Mr. Daniel Hardman falls
outside the scope of business affiliations and is primarily professional in nature, it does
not render Mr. Zane ineligible to serve as an arbitrator in the present case.
12. In conclusion, the setting aside application filed by PPIPL is not maintainable due to the
expiration of the time limitation for challenging the award, non-compliance of proper
procedure by PPIPL and lack of satisfaction of grounds to challenge arbitral award under
Section 34(2)20.

16
Exhibit-C, Moot Proposition.
17
Para XV (2), Moot Proposition.
18
HRD Corpn. v. GAIL (India) Ltd., (2018) 12 SCC 471.
19
Arbitration and Conciliation Act, 1996, sch. 7, item 1.
20
Arbitration and Conciliation Act, 1996

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ISSUE 2: WHETHER THE COURT HAS JURISDICTION TO ENTERTAIN LEGAL

PROCEEDINGS AGAINST TSLPL?

I. AMSPL is exempt from liability:

1. A party cannot be held accountable for the failure of a third party if that failure was not a
result of any action or inaction on the part of the first party. 21 AMSPL consistently
fulfilled its obligation to transport the specified goods punctually and by the agreed-upon
quality standards. However, disruptions arose during the fourth and fifth transactions,
impeding the fulfillment of these standards.
2. Article 79 of the United Nations Convention on Contracts for the International Sale of
Goods (1980),22 of the legal framework discusses exemption from liability based on two
primary grounds: According to Impediment Beyond Control, a party is relieved of
liability for failing to fulfill its obligations if it can substantiate that the failure occurred
due to an impediment beyond its control. In the context of the present case, since the oil
was entrusted to TSLPL, it effectively ceased to be under the control of AMSPL.
Moreover, the occurrence of weather discrepancies during the fifth transaction further
underscores circumstances beyond the seller's control. 23
3. The party seeking exemption must illustrate that it made reasonable efforts to anticipate
or overcome the impediment. This entails showing that despite diligent efforts, the
impediment remained insurmountable.

II. TSLPL is not a party to the contract between PPIPL and AMSPL:
1. TSLPL is the company which was enlisted as an alternative transporter to BMRPL for the
purpose of the Fourth and the Fifth Transactions, for the delivery of oil barrels to PPIPL.24

2. TSLPL was not a signatory to the Contract for Sale between PPIPL and AMSPL. As a
non-signatory to the contract, TSLPL did not directly enter into any contractual
relationship with PPIPL. Therefore, there is no direct contractual privity between PPIPL
and TSLPL, which undermines the basis for PPIPL to initiate legal proceedings against
TSLPL.

21
Hollier v. Rambler Motors (AMC) Ltd., [1971] EWCA Civ 12.
22
United Nations Convention on Contracts for the International Sale of Goods art. 79, Apr. 11, 1980, 1489
U.N.T.S. 3.
23
Para IX, Moot Proposition.
24
Para VIII, Moot Proposition.

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3. Since TSLPL was not a party to the contract between PPIPL and AMSPL, there is no
legal basis for PPIPL to sue TSLPL directly. Without a contractual relationship or legal
obligation owed by TSLPL towards PPIPL, therefore it is respectfully submitted that the
court lacks any jurisdiction to execute legal proceedings against TSLPL.
4. The doctrine of privity of contract dictates that only parties to a contract can enforce its
terms or be held liable for its breach. 25 Since TSLPL was not a party to the contract
between PPIPL and AMSPL, it cannot be held liable for any alleged breaches of contract
or other claims arising from the contract. This principle limits the ability of PPIPL to
pursue legal action against TSLPL in this context.
5. It is a fundamental principle of contract law that only parties to an agreement are bound
by its terms, including dispute resolution mechanisms outlined therein. 26 As TSLPL did
not directly enter into the contract with PPIPL, it cannot be compelled to participate in
arbitration proceedings under the agreement. TSLPL being a non-signatory to the
arbitration agreement, cannot be made a party to the arbitration agreement. The
agreement was between AMSPL and PPIPL, and hence only these two parties are under
the jurisdiction of the High Court of Kaharasthra.
6. Therefore, it is humbly submitted that the seat of arbitration at Kumbai, Kaharashtra gives
the High Court of Kaharasthra the jurisdiction for resolving disputes between AMSPL
and PPIPL and not any disputes relating to TSLPL.

25
Tweddle v. Atkinson, [1861] EWHC J57 (QB).
26
Id.

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ISSUE 3: WHETHER THE COURT HAS JURISDICTION TO ENTERTAIN LEGAL

PROCEEDINGS AGAINST THE ARBITRATOR APPOINTED BY AMSPL,
NAMELY, DR. ROBERT ZANE?

I. Challenge to the arbitrator should be made before the Arbitral Tribunal:

1. Section 1327 of the Act entails the procedure to challenge the arbitrator.
2. Section 13(1)28 states that the parties are free to agree on a procedure to challenge the
arbitrator. No such procedure has been agreed upon by the parties as per the Contract of
Sale between PPIPL and AMSPL.
3. Section 13(2)29 requires that, failing such an agreement in sub-section (1), a party who
intends to challenge the arbitrator, shall within fifteen days of becoming aware of any
circumstances referred in sub-section (3) of Section 12, which states grounds for
challenging an arbitrator, send a written statement of the reasons for the challenge to the
arbitral tribunal.
4. Section 13(3)30 confers the power to decide on the challenge on the arbitral tribunal.
5. As per, Section 13(5)31, Only after such a challenge has been held unsuccessful by the
arbitral tribunal, the party challenging the arbitral award may make an application for
setting aside such an arbitral award in accordance with Section 34.32
6. “The Act enjoins the immediate articulation of a challenge to the authority of an arbitrator
on the ground of bias before the Tribunal itself, and thereafter ordains that the
adjudication of this challenge must be raised as an objection under Section 34 of the
Act.”33
7. No challenge to the alleged biasness of the arbitrator, Dr. Robert Zane, was made by
PPIPL before the arbitral tribunal throughout the course of the arbitral proceedings.
8. The grounds stated under Section 12(3) 34 are grounds for challenging an arbitrator. Such
challenge shall be made before the arbitral tribunal itself, as per Section 13(2).35

27
Arbitration and Conciliation Act, 1996, §13.
28
Arbitration and Conciliation Act, 1996, §13(1).
29
Arbitration and Conciliation Act, 1996, §13(2).
30
Arbitration and Conciliation Act, 1996, §13(3).
31
Arbitration and Conciliation Act, 1996, §13(5).
32
Arbitration and Conciliation Act, 1996, §34.
33
Progressive Career Academy (P) Ltd. v. FIIT JEE Ltd., 2009 SCC OnLine Del 3170
34
Arbitration and Conciliation Act, 1996, §12(3).
35
Arbitration and Conciliation Act, 1996, §13(2).

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9. Moreover, the Courts under Section 34, only have power to set aside an arbitral award on
the grounds stated under Section 34(2).36
10. The Delhi High Court, in the case Allied-Dynamic JV v. Ircon International Ltd 37
observed and has held that “an arbitral award cannot be challenged which being on the
ground of bias of arbitrator if no challenge to bias was made during the pendency of
arbitral proceedings.”
11. It is humbly submitted before the court; it is the arbitral tribunal that has the power to
entertain challenges against arbitrator. Since PPIPL did not challenge the arbitrator,
during the pendency of the arbitral proceedings, no such challenge may also be made
under Section 34 of the Act38.

II. Courts are guided by the Principle of Minimal Judicial Interference:

1. The principle of judicial non-interference in arbitral proceedings is fundamental to both
domestic as well as international commercial arbitration. The principle entails that the
arbitral proceedings are carried out pursuant to the agreement of the parties or under the
direction of the tribunal without unnecessary interference by the national courts.39
2. One of the main objectives of the Arbitration Act is to minimize the supervisory role of
courts in the arbitral process. Party autonomy and settlement of disputes by an arbitral
tribunal are the hallmarks of arbitration law.40
3. The extent of judicial intervention, is given under Section 5, 41 which states that
“Notwithstanding anything contained in any other law for the time being in force, in
matters governed by this Part, no judicial authority shall intervene except where so
provided in this Part.”
4. Section 5 gives effect to the true intention of the parties to have their disputes resolved
through arbitration in a quick, efficient, and effective manner by minimizing judicial
interference in the arbitral proceedings.42

36
Arbitration and Conciliation Act, 1996, §34(2).
37
Allied-Dynamic Joint Venture v. Ircon International Ltd., O.M.P. (Comm) 451/2016.
38
Arbitration and Conciliation Act, 1996, §34.
39
Gary Born, The Principle of Judicial Non-Interference in International Arbitration Proceedings’, 30
UNIVERSITY OF PENNSYLVANIA JOURNAL OF INTERNATIONAL LAW (2009).
40
Interplay between Arbitration Agreements under the Arbitration & Conciliation Act, 1996 & the Indian Stamp
Act, 1899, In re, 2023 SCC OnLine SC 1666.
41
Arbitration and Conciliation Act, 1996, §5.
42
Food Corporation of India v. Indian Council of Arbitration, (2003) 6 SCC 564.

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5. In McDermott International Inc. v. Burn Standards Co. Ltd .43 Hon'ble Supreme Court
held that the court cannot correct the errors made in the award. Courts can set aside the
arbitral award. Thus, powers of courts are more of supervisory in nature that can be
exercised in specific circumstances mentioned in section 34 of the Act, 1996.
6. In Angel Broking Pvt. Ltd. vs. Urmil Modi 44, the Supreme Court held that, “the court
cannot correct errors of the arbitrators. The court at best can set aside the award under
Section 34 of the Act, 1996, but it does not empower the court to modify an award.”
7. It is humbly submitted before the court that, the scope of interference of the courts in
respect of Section 34, is limited to setting aside or not setting aside the arbitral award as
per Section 34(2).
8. It is most respectfully submitted that, in light of the limited scope of judicial intervention,
the powers of arbitral tribunal to entertain challenges against arbitrator, the court cannot
initiate legal proceedings against the arbitrator, Dr. Robert Zane.

43
McDermott International Inc. v. Burn Standard Co. Ltd., MANU/SC/8177/2006.
44
Angel Broking Pvt. Ltd. vs. Urmil Modi, MANU/DE/1568/2022.

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ISSUE 4: WHETHER THE ARBITRAL AWARD DATED 30.11.2023 AS GIVEN BY

HON’BLE ARBITRAL TRIBUNAL SHOULD BE SET ASIDE?

I- The arbitrator, Dr. Robert Zane was impartial and independent-

1. Dr. Robert Zane’s law firm’s representation of AMSPL, in proceedings before the Indica
Commercial Court, more than three years ago, on 22.04.2019, in a separate matter, do not
fall under a ground to give rise to justifiable doubts as to the independence or impartiality
of the arbitrator, under Schedule 5, in order to satisfy Article 12(1). Such representation
was not “within the last three years” as required under Schedule 5. Arbitral Proceedings
commenced on 17.08.2022, and the representation dates back to 22.04.2019. This period
exceeds the three-year limit, so as to create a doubt about Dr. Zane’s impartiality.
2. Since, there were no reasonable grounds or any circumstances to give rise to justifiable
doubts about his independence or impartiality, disclosure under Section 12(2) was not
required.
3. Dr. Zane’s alleged association with Dr. Daniel Hardman, on the basis of a professional
relationship established on both serving as speakers at various arbitration institutional
conferences do not establish any bias or apprehension of bias. A professional relationship
is fairly distinguished from a business relationship. The mere existence of a professional
relationship does not fall under the criteria of Schedule 7, to make an arbitrator ineligible.
4. In adjudicating a claim of bias against an arbitrator, the Court must tread carefully. The
independence and impartiality of the arbitrator is undoubtedly central to the very integrity
of the arbitral process, but claims of bias must be carefully scrutinized to avoid misuse at
the hands of an unsuccessful litigant. 45
5. Any doubt regarding the arbitrator’s fairness or neutrality must be justifiable, not
whimsical or fanciful, and must give rise to a real danger of bias or partiality.46
6. It is humbly submitted before the court, that the Dr. Zane’s Firm’s representation of
AMSPL in a separate, unrelated matter, more than three years ago, the professional
relationship between Dr. Zane and Dr. Hardman, do not establish any justifiable grounds
for establishing bias of the arbitrator, Dr. Zane. There is no evidence to suggest that Dr.
Zane's decision-making process was influenced by any prior relationships.

45
Microsoft Corpn. v. Zoai Founder, 2023 SCC OnLine Del 3800.
46
Id.

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7. It is humbly submitted before the court, in the absence of substantial basis for the bias of
the arbitrator, Dr. Zane, there falls no ground under Section 34 to set aside the arbitral
award.

II- The claims and defense of AMSPL in the arbitral proceedings are reasonable:
1. The long-term Contract of Sale between PPIPL and AMSPL clearly stated that the
“Buyer’s obligation to make the payment under this Contract is absolute and
unconditional, and the Buyer shall not withhold or delay payment for any reason,
including disputes or claims arising under the contract.”47
2. The Buyer, PPIPL’s act of withholding the payment of the 4 th and 5th Transactions,
constitute as a breach of contractual duties on part of PPIPL.
3. Moreover, the carrier TSLPL, issued a clean bill of lading to the shipper, AMSPL 48,
signifying that the goods delivered by AMSPL were up to the standards as required by the
Contract.
4. Any discrepancies in the quality of oil, is under the purview of TSLPL. AMSPL cannot
be held liable for actions of a third party, in this case, TSLPL.
5. Section 79 of CISG49states that a party cannot be held liable for the failure of a third
party, if that failure was due to an impediment beyond his control and could not have
been reasonably expected...”
6. The late delivery of the oil barrels for the purpose of the fifth transaction was under the
purview of TSLPL, and the changes in weather conditions throughout the voyage, were
beyond the control of AMSPL, and it is submitted, that AMSPL cannot be held liable for
the late delivery of oil barrels to PPIPL.
7. The Contract between PPIPL and AMSPL, also stated the claims of Buyer or Seller,
which shall be paid by the opposite party for all actual damages, expenses, or additional
charges incurred.50
8. Accordingly, PPIPL was required to make the payments of the fourth and fifth shipments,
along with interest, the costs of arbitration and compensation for the termination of the
contract.

47
Exhibit-A, Clause 7, 7.4, Moot Proposition.
48
Para VIII, Moot Proposition.
49
United Nations Convention on Contracts for the International Sale of Goods art. 79, Apr. 11, 1980, 1489
U.N.T.S. 3.
50
Exhibit A, Clause 7.4, Moot Proposition.

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9. However, respecting the autonomy of the arbitral tribunal, the Court may not delve into
the merits of the dispute, as the purview of the Court under Section 34 is limited to the
grounds provided under Section 34(2).51
10. In Anglo American Metallurgical Coal Pty Ltd. v. MMTC Ltd. 52, the Supreme Court has
categorically observed that ‘it is well established that the arbitral tribunal is the final
judge of the quality, as well as the quantity of evidence before it’. The arbitral tribunal is
the master of evidence and the findings of fact which are arrived at by the arbitral tribunal
on the basis of the evidence on record are not to be scrutinized as if the court was sitting
in appeal. The Supreme Court has recognized that the mandate under Section 34 is to
respect the finality of awards and the autonomy of parties to get their dispute adjudicated
by an alternative forum as provided under the law.”
11. Ergo, the respondent respectfully submits that there lie no reasonable grounds under
53
Section 34 to set aside the arbitral award dated 30.11.2023 as given by the Hon’ble
Arbitral Tribunal.

51
(2019) 15 SCC 131. (Para No. 27) Also see P.R. Shah, Shares and Stock Brokers Pvt. Ltd. v. B.H.H.
Securities Pvt. Ltd. & Ors., (2012) 1 SCC.
52
Anglo American Metallurgical Coal Pty. Ltd. v. MMTC Ltd., (2021) 3 SCC 308
53
Arbitration and Conciliation Act, 1996, §34.

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PRAYER

Wherefore, in light of the issues raised, arguments advanced and authorities cited, it is
humbly and respectfully submitted that this Hon’ble Court may be pleased to:

I. DECLARE that the setting aside application is not maintainable.

II. DECLARE that the court doesn’t have jurisdiction to entertain legal proceedings against
TSLPL.

III. DECLARE that the court doesn’t have jurisdiction to entertain legal proceedings against
the arbitrator appointed by AMSPL, viz. Dr. Robert Zane.

IV. DECLARE that the arbitral award dated 30.11.2023 as given by the Hon’ble Arbitral

Tribunal can’t be set aside.

And, pass any other order that this Hon’ble Court may deem fit in the interests of
justice, equity, and good conscience.

All of which is respectfully submitted.

SD/-

COUNSELS FOR THE RESPONDENT

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