Memorial for Respondent

Team MA303

_________________________________

BIMACC
Bangalore International Mediation, Arbitration and Conciliation Centre
Arbitration Case No. 303
For 3rd National ADR Competition, CONCORDAT 3.O, December 2023

________________________________
DSteel India Ltd
(Claimant)
v.
1. BlasCore International LLC
&
2. STEELPOWER LLC
(Respondents)

_________________________________
MEMORIAL FOR RESPONDENTS

_________________________________

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 Memorial for Respondent

TABLE OF CONTENTS

TABLE OF CONTENTS ...............................................................................................................2

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

LIST OF AUTHORITIES..............................................................................................................4

STATEMENT OF JURISDICTION……………………………………………………….….5-7

STATEMENT OF FACTS.........................................................................................................8-
10

ARGUMENTS ADVANCED..................................................................................................10-16
i. ISSUE 1:- Whether each party can prove breach of any relevant
contract…………………………………………………………………………….10-11

ii. ISSUE 2:- Whether STEELPOWER LLC has a right to invoke the provision
Section 7 of the IBC ( The Insolvency and Bankruptcy Code 2016)?...................12

iii. ISSUE 3:- Whether each of the parties are entitled to claim damages from
eachother?................................................................................................................13-15

iv. ISSUE 4:- Whether the onus of sharing technology transfer falls under the
purview of BlasCore International LLC and/or STEELPOWER LLC.
Additionally, whether the tribunal has the jurisdiction to deal with the dispute
concerning the transfer of Technical Know-How with
DSteel?......................................................................................................................16-17

PRAYER........................................................................................................................
........……18

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 Memorial for Respondent

LIST OF ABBREVATIONS

ABBREVATION MEANING

SCC Supreme Court Cases

AIR All India Reporter

The Insolvency & Bankruptcy Code

IBC
2016

LLC Limited Liability Company

Bangalore International Mediation

BIMACC
Arbitration and Conciliation Centre

SPV Special Purpose Vehicle

LoI Letter of Intent

Ors. Others

Ltd. Limited

MPTA Million Tonnes Per Annum

MW Mega Watt

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 Memorial for Respondent

LIST OF AUTHORITIES

1 CASES SITED
 Asha John Divianathan v. Vikram Malhotra and ors ( civil appeal
No. 9546 of 2016 )
 Ayyasamy v. paranasivam and ors (2016 ,10 scc 386 )
 Booz- Allen and Hamilton Inc v. sbi home finance ltd and ors (AIR
2011 SC 2507)
 Emaar MGF land ltd v. Atab singh (AIR 2018 1614)
 Vikas sales corporation v. commissioner of commercial taxes (AIR
1986 (27917)
 JSW Energy ltd v. Maharashtra State Electricity Board (Appeal no.
21 of 2019)
2 STATUTES
 BIMAAC RULES (http://www.bimacc.org/download/BIMACC-
Arbitration-Rules.pdf )
 The Companies Act 2013, INDIA
(https://www.mca.gov.in/Ministry/pdf/CompaniesAct2013.pdf )
 THE COMPANIES LAW OF CYRUS REPUBLIC
(https://www.olc.gov.cy/olc/olc.nsf/6BCABD5B106FBC2EC22589
0F002A529E/$file/companies%20law.pdf )
 The Indian Contract Act 1872
(https://www.indiacode.nic.in/bitstream/123456789/2187/2/A18720
9.pdf )
 Insolvency and Bankruptcy Code 2016
(https://www.mca.gov.in/Ministry/pdf/TheInsolvencyandBankruptc
yofIndia.pdf )
3 BOOKS REFERED

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 Memorial for Respondent

 Singh Avtar., Company Law., Eastern Book Company.,17th

Edition.,2023
 Bangia R.k., CONTRACT 1., Allahabad law agency., 8th Edition.,
2021
4 WEBISTES
 INDIAN KANOON (https://indiankanoon.org/ )
 INDIAN EXPRESS (https://indianexpress.com/ )
 THE HINDU (https://www.thehindu.com/ )


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 Memorial for Respondent

STATEMENT OF JURISDICTION

The jurisdiction governing the resolution of disputes arising from the contractual
relationships between DSteel India Ltd (DSteel) and the entities BlasCore International LLC
(BlasCore) and its subsidiary STEELPOWER LLC (collectively referred to as the
"Respondents") is meticulously defined in the respective agreements. The clauses delineating
the process of dispute resolution are uniform across key agreements, establishing a clear
framework for jurisdictional matters. The following elements elucidate the jurisdictional
context:

1. Array of parties:
Claimant i.e. DSteel, Respondent 1 i.e. BlasCore and Respondent 2 i.e. STEELPOWER
LLC are relevant parties to this Arbitration Proceedings since the matter of dispute i.e.
Breach of contract is material to the following agreements:
a. Annexure 1 – Letter of Intent – Between Two parties– Dsteel and Blascore
b. Annexure 2 – Shareholders Agreement – Tripartite agreement between –
DSteel BlasCore and STEELPOWER LLC
c. Annexure 3 – Construction Contract – Between two parties - DSteel and
Blascore
d. Annexure 4 – Debenture Bond Agreement – Between Two parties – Dsteel and
STTEELPOWER LLC

2. Arbitration Clause (SECTION 21 of the Arbitration and Conciliation Act):

The invocation of the arbitration clause under SECTION 21 of the Arbitration and
Conciliation Act by DSteel signifies a commitment to resolve disputes through
arbitration.

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 Memorial for Respondent

3. Dispute Resolution Mechanism as prescribed by the mutual agreements between both

Respondents and the Claimant:
a. Annexure 1 – Letter of Intent – Point 1
b. Annexure 2 – Shareholders Agreement – Clause 10
c. Annexure 3 – Construction Contract – Clause 11
d. Annexure 4 – Debenture Bond Agreement - Clause 8

Uniformly prescribed a three-step dispute resolution procedure wherein the subsequent

procedure shall be followed upon failure of the previous recourse:

a. Mutual Discussion within 30 days of Disputed Notice.

b. Mediation under in accordance with BIMACC Rules.

c. Arbitration under BIMACC Rules.

Where the seat of Arbitration shall be Bangalore with applicable law of India; as
uniformly expressed in the above mutually agreed provisions.

4. Consistency in Seat of Arbitration:

The seat of arbitration is consistently identified as Bangalore in all agreements,

providing a singular and agreed-upon jurisdiction for the resolution of disputes.

5. Applicable Law:

The applicable law for arbitration proceedings is uniformly stipulated as that of India in
all agreements, ensuring a common legal framework.

6. Pre-Arbitration Mediation Proceedings:

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 Memorial for Respondent

The initiation of Pre-Arbitration Mediation proceedings under the BIMACC Rules

underscores a commitment to alternative dispute resolution methods before resorting to
formal arbitration.

7. Mutual Agreement to Arbitration:

The notices served by DSteel, summoning for arbitration, were met with agreement
from both Respondents, further affirming the mutual commitment to engage in the
arbitration process.

In light of these consistent and explicit provisions, the jurisdiction for the resolution of
disputes is unambiguously established. The agreements collectively affirm Bangalore as
the seat of arbitration, with Indian law governing the arbitration proceedings, thus
providing a comprehensive and harmonized framework for addressing jurisdictional
matters in the ongoing dispute resolution process.

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 Memorial for Respondent

STATEMENT OF FACTS

1. Blascore International LLC (Blascore) a company registered in Fier Drum, Romania with
core modern and technological expertise in construction of steel plants; entered into a
construction contract with DSteel India Ltd (DSteel), a company registered in Bengaluru,
India that manufactures steel; to build a 15 MPTA steel plant in Karnataka, India.

2. Hereinafter, Blascore LLC will be referred to as Respondent 1 and Dsteel will be referred
to as Claimant.

3. Respondent 1 expressed their wish to sever liabilities that arise by direct relations with
Dsteel and hence negotiated into agreement to carry out this construction project through
creation of a Special Purpose Vehicle, after mutual agreement both parties constituted a
letter of intent on 1st January 2021.1

4. Both parties according to the Letter of Intent; agreed to form a Special Purpose Vehicle
(SPV), namely STEELPOWER LLC, incorporated in Cyprus on 31 st January 2021, with
equal shareholding control; of 50% each.

5. The SPV STEELPOWER LLC will be referred to as Respondent 2 hereinafter.

6. The construction process initiated by Respondent 1 in February 2021.

7. The terms of the agreement were laid out in a Letter of Intent (LoI) and a Tripartite
Shareholders Agreement. Key provisions included the transfer of technology, investment
obligations, and the formation of STEELPOWER LLC.2

8. Pursuant to the agreements, BlasCore invested $400 million in STEELPOWER LLC and
committed to the balance amount of $100 million upon fulfilment of the conditions
provided in the agreements. DSteel was obligated to transfer power distribution licenses
and provide technical know-how for the construction of the steel plant.

___________________________
1- Annexure-1 Letter of Intent
2- Annexure-2 Shareholder Agreement

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 Memorial for Respondent

9. BlasCore commenced construction in February 2021, and the project was expected to be
operational by August 2022. By June 2022, construction was duly completed by
Respondent 1, but at the time of commencement of the test run claimant failed to provide
300 MT of coal that was required for testing, reasons of which wasn’t communicated to
Respondent 1.

10. As a result of which BlasCore’s team of 40 engineers had to wait at the project site for
three months i.e. from July 2022 to September 2022 after which the engineers handed
over the technical documents to the concerned DSteel Engineers and returned to
Romania.

11. At around the time of July 2023 DSteel approaches BlasCore demanding resumption of
test run citing the reason for the delay in providing the 300MT coal to be a Supreme
Court decision to impose a stay order on coal mining activities in June 20223.

12. The Supreme Court's ban in June 2022 on coal mining affected not only DSteel but also
other steel manufacturers, leading to delays in project timelines. DSteel faced financial
challenges and had to sell land parcels to meet financial obligations.

13. DSteel succeeded in vacating the interim stay on mining in June 2023, allowing the
resumption of mining activities and power generation in July 2023.

14. Upon DSteel's request to resume the test run in Jully 2023, BlasCore demanded the
payment of $100 million, as per the payment schedule, with an additional $1 million for
plant refurbishment. DSteel, in response, refused additional payments, invoking force
majeure, and counterclaimed specific performance of payment of $100 million $1,000
million in damages.

15. The Board of Directors of STEELPOWER LLC, around July 2023 was chaired by a
BlasCore nominee to be nominated on a rotation basis for every 2 years.4

______________________________________
3- PIL no.123 SCC 789

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 Memorial for Respondent

4- As provided under Clause 3 of Shareholders Agreement (Annexure 2)

16. The board of directors at STEELPOWER by due special resolution passed, rejected
DSteel's demand for the balance $100 million investment and threatened to recall the
debenture debt, considering Section 7 of the Insolvency and Bankruptcy Code (IBC).5

17. In response to the threat, DSteel converted the $300 million debentures into fully paid
equity shares, constituting 15% of its paid-up capital.

18. DSteel initiated arbitration proceedings against BlasCore and STEELPOWER LLC,
invoking the arbitration clause under Section 21 of the Arbitration and Conciliation Act. 6

19. Respondent 1 and Respondent 2 expressed willingness to participate in the Arbitral

Proceedings and reserved their right to file counter claim.6

__________________________

5- u/Clause 4 of Shareholders Agreement (Annexure-2), in accordance with The

Companies Law (Cap.113), Cyprus
6- Exhibit-C & Exhibit-D

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 Memorial for Respondent

ARGUMENTS ADVANCED

Issue 1: Whether each parties can prove breach of any relevant contract?

20. The claimant company Dsteel entered in the contract with BlasCore (Respondent 1) for
the construction of thermal power plant on 1/02/2021., the total price of the project is
$500 Million and the claimant has invested $400 million for the construction of the
thermal power plant.7

21. The claimant company has $100 Million balance to be paid to the respondent 1 i.e.
BlasCore However, such a payment is subjected to final completion of the project. The
contractor, the respondent party, has failed to conduct the test run due non availability of
300 MT of coal that was supposed to be provided by the claimant. 8 Later the respondent 1
learned about the fact that Supreme Court imposed a stay order on coal mining which was
a reason stated by the claimant for non-performance of contractual duty causing an undue
delay which was no mutually agreed upon.9

22. The respondent party upon the calls of the claimant company for the completion of the
project has demanded $100 Million at the interest rate of 3% p.a.. The claimant has
denied to meet the demands put forth by the respondent.

23. The demand by the respondent party falls within the ambit of construction contract, which
is acknowledged by both Claimant & Respondent. According to the said contract, Clause
2.2:
2.2. The parties agree that under no circumstance can the Contractor claim additional
compensation on account cost or time overrun, provided the delay is caused on account of
the Owner.
____________________
6 - According to Annexure 3 - Construction Contract - Clause 2
7 - According to Annexure 3 – Construction Contract – Clause 1
8 According to Annexure 3 – Construction Contract – Clause 3.2
9 Annexure 3 - Construction Contract – Clause 2.2
10 Annexure 3 – Construction Contract – clause 7.1, 7.2, 8.1

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 Memorial for Respondent

24. The delay has not been caused by the respondent in making of the project. The delay
occurred due to the interim order by the Hon’ble SC of India, because of which there was
shortage of coal to conduct test run. The claimant has tried to exempt his liability by
taking the defence of Force Majeure. However, the said doctrine is not applicable in this
instant case. The Doctrine of Force Majeure is any event or circumstance which is
beyond the controllable limits of man. Any delay or non-performance caused due to such
an event or circumstance can be exempted.

25. However, if such delay or non performance could have been avoided by the person, by
taking the reasonable care or complying with prudent utility practises.
(Case) Coastal AP power Ltd. vs AP Central Power Distribution Company & Ors.
Essentials of Force Majeure include:
Force Majeure, contemplates occurrence of an event or circumstance
It results in the affected party being wholly or partly prevented or unavoidably delayed in the
performance of its obligation.
It should not be within the reasonable control directly or indirectly of the affected party
It shouldn’t be of such a nature that the affected party could have avoided it with reasonable
care or upon compliance with prudent utility practises.11

26. (Case: JSW Energy Ltd. vs Maharashtra State Electricity Board)

The respondent in the case agrees that the interim order of the Hon’ble SC of India was not in
the control of Claimant. However, the consequences arising out of such order could have
been easily avoided by the claimant. The claimant being the owner of an iron and coal mines
should have taken the notice of any pending litigation pertaining to the object of his business.
Claimant was well aware that there will be a requirement for the test run and he should have
complied with prudent utility practices and maintained backup of required coal amount which
the claimant failed to do so.12
____________________
11 – Appeal No. 272 of 2012
12 – Appeal No. 21 of 2019

27. Upon getting the notice of such ban, claimant failed to bring to the notice of the
respondent.
According to the construction contract Clause 3.2:

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 Memorial for Respondent

3.2. The parties may mutually agree to extend the period of execution of this Contract if there
is any delay on account of an act of God, war, government or legal intervention.
The claimant should have initiated a request to the respondent party for the completion of the
project, but the claimant paid no heed to the request of BlasCore employees who asked Coal
for the test run.
Thus, the contention of the claimant that there existed a force major condition, wholly
erroneous and it is nothing but an ingenuous attempt to wiggle out its obligation.

28. Respondent 2, STEELPOWER maintains that is has diligently adhered to the terms laid
out in the agreements act of recall of debentures debt and consider IBC invocation was a
legitimate response to the breaches by claimant..

29. Respondent 2 condemns the unilateral action taken by DSteel to convert the $400 million
debentures into fully paid equity shares, constituting 15% of DSteel's paid-up capital.
This action was taken without consultation or agreement from STEELPOWER, although
in clause 4.1 of Debenture Bond Agreement (annexure-4) provides for a conversion done
by the ‘Company’ ‘on its own’ this does justify the complete ignorance of the due
procedure of arbitrary act of conversion of Convertible Debentures in possession of the
holder without the consent of the Debenture holder itself. Clause 4.1 does not grant
arbitrary authority:

30. While Clause 4.1 of the Debenture Bond Agreement may grant the 'Company' the
authority to convert debentures on its own, it does not imply arbitrary authority. The
interpretation of clause 4.1 should be in line with the broader principles of fairness, good
faith, and adherence to Company’s Act of India since the ‘Company’ is established and
registered in India, the collaboration nature of the agreements.

31. Even if the clause permits the 'Company' to undertake the conversion, it does not absolve
the 'Company' from the adherence to Company’s Act to follow due procedure of
conversion of debentures into equity shares.

32. While Clause 4.1 may provide the 'Company' with conversion authority, the due
procedure should include obtaining the consent of the debenture holder. Ignoring the

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 Memorial for Respondent

debenture holder's consent entirely contradicts the spirit of collaboration and mutual
understanding envisaged in the agreements.13

_____________________________
13 - Section 71(1) of Company’s Act 2013 conversion required a special resolution
passed at general meeting with consent of shareholder

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 Memorial for Respondent

Issue 2: Whether STEELPOWER LLC has a right to invoke the provision Section 7 of
the IBC (The Insolvency and Bankruptcy Code 2016)?

33. Section 7 of IBC reads as follows: Initiation of corporate insolvency resolution process by
financial creditor. Since STEELPOWER LLC is the debenture holder, i.e.
STEELPOWER assumes the role as a creditor and thus STEELPOWER LLC can invoke
provision under section 7 of IBC.

34. The alleged conversion isn’t recognised as it is devoid of any process, consent &
communication. Hence, as a creditor, STEELPOWER LLC reserves the right to invoke
section 7 of IBC.

35. Section 71(1) of The Companies Act 2013 reads as follows:

A company may issue debenture with an option to convert such debentures into shares, either
wholly or partly at the time of redemption. Provided that the issue of debentures with an
option to convert such debentures into shares, wholly or partly, shall be approved by a
special resolution passed at a general meeting.14

36. As seen above in Section 71(1) of the Companies Act, there is a process of conversion of
debentures into equity shares. Such process, not being complied to, rescinds the provision
in the contract, rendering it voidable.15 In the case of Asha John Divianathan v. Vikram
Malhotra & Others, it was held that a contract is void if prohibited by a statute under a
penalty, even without an express declaration that the contract is void. 16 Thus, in the instant
case, section 71(1) clearly lays down the procedure for conversion of debentures into
equity shares. The claimant, should have been well aware and followed the lines of the
statute, i.e. followed the procedure of conversion established under law.

37. Hence, the counsel humbly submits that, since STEELPOWER is the creditor, and that
STEELPOWER reserves the right to invoke the provision of Section 7 of The Insolvency
& Bankruptcy code 2016.
_________________
14 – Section 71(1) Company’s Act 2013
15 – Section 7 Insolvency Bankruptcy Code 2016
16 – Civil Appeal No. 9546 of 2010

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 Memorial for Respondent

Issue 3. Whether each of the parties are entitled to claim damages from each other?

38. BlasCore International LLC (BlasCore) and its subsidiary STEELPOWER LLC
(collectively referred to as the "Respondents") have a valid defence against DSteel India
Ltd's (DSteel) counterclaim of $1,000 million in damages and, concurrently, the
Respondents have legitimate grounds to claim damages from DSteel arising from
contractual breaches, including the failure to provide coal for testing, refusal of additional
payments, and the invocation of force majeure.

39. There is established evidence supporting DSteel's failure to fulfil contractual obligations,
specifically regarding the supply oof 300MT coal for testing that was supposed to be
fulfilled by the Claimant. Which is a delay being fulfilment of Construction contract to
which ‘Time is an essence’.16

40. Since the delay wasn’t caused by either of the respondent 1 there was successful
completion of the construction project on part respondent 1, and respondent 1 has
complied with all other contractual obligations hence respondent 1 demands of principle
amount along with 3% interest rates per Anum is completely justified.

41. As in the case of Respondent 2 i.e. STEELPOWER, denies claimants allegations that it
had failed to comply with the terms of Annexure 2 and Annexure 5 wherein
STEELPOWER was a subsidiary in transfer of technical know-how between BlasCore
and DSteel, while respondent acknowledge the legal liability of transfer of this technical
know how from BlasCore to DSteel, it contends that according to Annexure-5 such
liability may occur only after the conditional term of ‘Completion of the Project’ is
fulfilled; which in this case was delayed due to the non-performance of the test run;
which Respondents 1&2 jointly place the onus on the claimant for aforementioned
delay.17
__________________________
17 – Annexure 5 & Annexure 2

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 Memorial for Respondent

42. Further as the breach is denied; Respondent 2 i.e. STEELPOWER also denies the
subsequent damages that the claimant has claimed from the respondent 2.

43. Unliquidated damages asked are not in compliance with the ‘Breach’ as per all the
contracts in uniformity would mean if any of the parties violate the terms of this contract
including the condition specified in the exhibits herein.

44. Clause 8 of all agreements in uniformity reads as follows: -

In the event of breach, the aggrieved party complaining of breach shall give 2 months’ notice
in writing to the other party to rectify or undo the breach or seek specific performance of the
contract, in the event of breach the aggrieved party has a right to claim unliquidated
damages.
45. Respondent 2 hereby declares that it rejects the contentions of Claimant for damages as
there was no and makes no for a counter-claim for damages, thereby.

___________________
18 – Clause 7 of Construction contract Annexure-4 & Clause 7 of Shareholder’s agreement –
Annexure-2 & Clause 7 of Debenture Bond Agreement – Annexure 3

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 Memorial for Respondent

Issue 4: Whether the onus of sharing technology transfer falls under the purview of
BlasCore International LLC and/or STEELPOWER LLC. Additionally, whether the
tribunal has the jurisdiction to deal with the dispute concerning the transfer of
Technical Know-How with DSteel?

46. On the issue pertaining to the sharing of technology transfer, it is humbly submitted
before the Tribunal that the onus of sharing technology is not with BlasCore/
STEELPOWER LLC, as it is nowhere mentioned in the Construction contract. 19

47. Clause 1.2 of the construction contract states, ‘The Contractor shall source and provide
all technical expertise, labour, materials, equipment, and services necessary for the
construction of the steel plant in accordance with the plans and specifications as
provided by the Owner.’

48. It is clear in the above para that technical expertise shall also include the training of the
staff to operate the machinery, whereas sharing technology is the sharing of the technical
know-how, the technological details & much more, which is the exclusive domain of
BlasCore/ STEELPOWER LLC.

49. As the same hasn’t been expressly mentioned in the construction contract, any vile
interpretation, not in consonance with a harmonized outlook, is bound to be rejected.

50. On the matter pertaining to jurisdiction, it is humbly submitted that the tribunal has no
jurisdiction to deal with the transfer of technical know-how with Dsteel. In the case of
Ayyasamy v. Paramasivam & Ors, the Supreme Court, in its obiter dictum stated that
all disputes arising out of trademarks, copyrights and patents are in-arbitrable per se.20

____________________________
19 – Annexure 5
20 – 2016 10 (SCC 386)

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 Memorial for Respondent

51. The Supreme Court clarified the position on the subject matter of disputes that may fall
within the scope of arbitration in the case of Booz-Allen & Hamilton Inc v. SBI Home
Finance Ltd. & Ors. The Court explained the difference between a right in rem and a
right in personam and stated that, “A right in rem is a right exercisable against the world
at large, as contrasted from a right in personam which is an interest protected solely
against specific individuals.” The Court explained that all disputes relating to rights in
personam are “amenable to arbitration; and all disputes relating to rights in rem are
required to be adjudicated by courts and public tribunals”. The Court, however, also
explained that this is not a rigid or inflexible rule and disputes relating to subordinate
rights in personam arising from rights in rem are arbitrable as well.21

52. IP rights are generally described as negative rights, which means that they give the right
holders the exclusive right to exclude others from using their intellectual property such as
trademarks, copyrights, patents and industrial design. 22

53. In the case of Vikas Sales Corporation v. Commissioner of Commercial Taxes, the
Supreme Court held that copyrights, patents and trademarks are rights in rem. Further, the
Court also stated that though they are not rights in land, but they are “included within the
meaning of movable property”.23

54. In another case, Emaar MGF Land Ltd. v. Aftab Singh, the Court held that disputes
related to copyrights, patents and trademarks are not arbitrable because they fall within
the category of rights in rem.24

______________________________
21 – AIR 2011 SC 2507
22 – Annexure 5
23 – AIR 1986 (27917)
24 – AIR 2018 (1614)

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 Memorial for Respondent

PRAYER

In light of the facts stated, issues raised, arguments advanced Respondents hereby
respectfully Pray to the Arbitral Tribunal the following: -
1) That there is a breach of contract on behalf of DSteel & the claims of DSteel are
malicious in nature.

2) That STEELPOWER has the right to invoke the provision of Section 7 of The
Insolvency & Bankruptcy Code 2016.

3) The respondents are entitled to claim damages as deemed fit by the tribunal.

4) The onus of transferring the technology does not fall within the purview of the
respondents and thus this Tribunal has no jurisdiction to adjudicate the same.

21