SVKM’S NMIMS KIRIT P.

MEHTA SCHOOL OF LAW ARBITRATION MOOT

COOPER AND HOFSTADER ARCHITECTURE AND

ENGINEERING SERVICES LTD. (CLAIMANT)

Vs.

KOOTHRAPPALI AND WOLOWITZ FOODS

LTD. (RESPONDENT)

MEMORANDUM FOR CLAIMANT

Counsel for CLAIMANT

ANANYA MOHAPATRA

SAAVI DHADDHA

TABLE OF CONTENTS

Memorandum for CLAIMANT

Page 1
 I. INDEX OF ABBREVIATIONS .............................................................................................. (3)

II. INDEX OF AUTHORITIES .................................................................................................... (4)

III. STATEMENT OF FACTS ....................................................................................................... (7)

IV. SUMMARY OF ARGUMENT .............................................................................................. (10)

V. ARGUMENT .......................................................................................................................... (11)

a) THE ARBITRATOR HAS THE JURISDICTION TO HEAR THE

DISPUTE… ...........................................................................................................................(11)
b) THE RESPONDENT IS IN BREACH OF ITS OBLIGATIONS UNDER THE
AGREEMENT ..................................................................................................................... (15) c)
UNDER THE AGREEMENT ARE THERE ANY SUMS/DAMAGES DUE… ................. (21)
d) IF THE AWARD IS DELIVERED IN FAVOUR OF THE CLAIMANT WOULD THERE
BE A RISK OF ENFORCEMENT ...................................................................................... (24)

VI. REQUEST FOR RELIEF .................................................................................................... (29)

INDEX OF ABBREVIATIONS

& And

¶ Paragraph

Art. Articles

Ltd. Limited

Model Law UNCITRAL Model Law

NICA Narnia International Centre for Arbitration

NoA Notice of Arbitration

vs. Versus

Memorandum for CLAIMANT

Page 2
 UNCITRAL United Nations Commission on International Trade
Law
INDEX OF AUTHORITIES

Bharat Petroleum Bharat Petroleum Corp. Ltd. vs. Great Eastern

Shipping Co. Ltd.
AIR 2008 SC 357
Cited in ¶:43
Corporacion Corporacion Transnacional de Inversiones,
S.A. de C.V. vs. STET International,
S.p.A. (2000),
49 O.R. (3d) 414
Cited in ¶:64, 68
Demerara Demerara Distilleries Private Limited vs.
Demerara Distillers Limited
(2015) 13 SCC 610
Cited in ¶:32
East Mediterranean East Mediterranean Gas S.A.E. vs. Egyptian
General Petroleum Corporation and Egyptian
Natural Gas Holding Company and Israel
Electric Corporation Ltd.
ICC, 18215/GZ/MHM
Cited in ¶:69
Holloway Holloway vs. Chancery Mead
2007
EWHC 2495 (TCC)
Cited in ¶:28
Industrial Industrial Developments Limited vs. The
Ministry of Petroleum Resources of the
Federal Republic of Nigeria
January 2017

Memorandum for CLAIMANT

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 Cited in ¶:70

Lord Lord Hailsham, L.C. in Cassel & Co. Ltd. v.

Broome,
1972
1 All ER 801 (HL) at 823e
Cited in ¶:57
MC Dermott MC Dermott international Inc., vs Burn
Standard Co. Ltd.
2006
11 SCC P.181
Cited in ¶:20
Re Corporacion Re Corporacion Transnacional de Inversiones,
S.A. de C.V. et al. and STET International,
S.p.A. et al.
(1999), 45 O.R. (3d) 183
Cited in ¶:64
Ronald Ronald Elwyn Lister Ltd. vs. Dunlop Canada
Ltd.,
1982 1 S.C.R. 726
Cited in ¶:67
Strategic Outsourcing Strategic Outsourcing, Inc. vs. Continental
Casualty Company
414 F. Supp. 2d 545
Cited in ¶:46
Sulamerica CIA Sulamerica CIA Nacional De Seguros S.A. and
others vs. Enesa Engenharia S.A. and others
2012
1 Lloyd’s Rep 671
Cited in ¶:29

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 Swiss Swiss Timing Limited vs. Commonwealth
Games 2010 Organizing Committee.
(2014) 6 SCC 677

Cited in ¶:31
The Bank of India The Bank of India Ltd. vs. Rustom Fakirji
Cowasjee
AIR 1955 Bombay 419
Cited in ¶:43
Travaux Travaux préparatoires, United Nations
Conference on International Commercial
Arbitration, Recognition and Enforcement of
Foreign Arbitral Awards, Comments by
Governments on the draft Convention on the
Recognition and Enforcement of Foreign
Arbitral Awards
E/CONF.26/3/Add.1
Cited in ¶:59

UNCITRAL Rules UNCITRAL Arbitration Rules (2013)

Cited throughout

UNIDROIT Principles UNIDROIT Principles of International

Commercial Contracts Rome, 2010
Cited in ¶:62
Visa Visa International Limited vs. Continental
Resources (USA) Limited
2009
2 SCC 55
Cited in ¶:31

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 Yusuf Yusuf Ahmed Alghanim & Sons WLL vs.
Toys "R" Us Inc
RU (HK) Ltd. 126 F.3d 15
Cited in ¶:74
SUMMARY OF FACTS

1. Cooper and Hofstader Architecture and Engineering Services ltd (The CLAIMANT) is a
highly profitable partnership firm comprising of two partners which is based in the
Republic of Narnia. It provides architecture service and consultancy for home and office
décor.
2. The RESPONDENT, Koothrappali and Wolowitz foods ltd. (The RESPONDENT) is one
of the biggest and internationally recognized food chains is based in Zindia and the state
of Zindia is a majority shareholder in it. RESPONDENT is building a new restaurant for
which it approached CLAIMANT and two other firms for providing services for the
same.
3. RESPONDENT requested for proposal regarding the services from all the three firms.
CLAIMANT was already going through a tender process to provide services to Datsun
Inc, their regular customer, in connection with a new automobile plant that it was
building in Zindia. The project would have yielded a profit of Rs. 100 million and
revenue of Rs. 500 million to CLAIMANT, but upon the request for proposal from
RESPONDENT, it withdrew its offer from Datsun.
4. RESPONDENT and CLAIMANT entered into an agreement on 15th September 2018,
where the stages of agreement were specified and price of Rs 150 million was fixed to be
paid over two years. RESPONDENT had to also pay CLAIMANT a guarantee amount of
Rs 5 lakhs within two weeks of entering into agreement. The stage 1 of the agreement
which involved delivery of an area plan and the budget for such a plan which required
cooperation between both the firms for on-site and off-site visits was priced at Rs.
10,00,000. CLAIMANT realized that there were a number of requirements of
RESPONDENT which were not specified by them at the time of agreement.

Memorandum for CLAIMANT

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 5. On 20th October 2018, CLAIMANT sent an email regarding the report on the progress of
the area plan and the budget, mentioning about the need to reassess the budget due the
increased requirements of the RESPONDENT and that there would be interruption in the
site visit due to the same to RESPONDENT. The CLAIMANT again emailed the
RESPONDENT requesting them for a meeting to discuss about the revised budget and
the new dates for the work to be done, but there was no reply to it by the RESPONDENT.
6. On 30th October 2018, through an election the state of Zindia was voted to move out of
MERCOSUR, a union of neighboring states on agreement of trade and investment for
goods and services, which led the ruling government to step down. This move affected
the management board of the RESPONDENT and a new management was appointed to
look into its projects. The new representative appointed emailed all the firms they were
dealing with, about the change in the management and assured to revert back to them in
some time.
7. The RESPONDENT started facing a lot of loses due to change in the management,
meanwhile due to lack of communication by the RESPONDENT, the CLAIMANT
continued working on the project and incurred additional expenses for the same. On 18th
November 2018, the CLAIMANT informed the RESPONDENT about the delay in
submitting the budget due to change in circumstance to which the RESPONDENT
agreed.
8. On 20th December 2018, the CLAIMANT sent the Area plan and the tentative budget
with the additional expenses they had incurred along with an invoice of Rs 50,00,000 for
the work done. On 25th January 2019, the RESPONDENT acknowledged the email. The
CLAIMANT continued working and sent several mails in pursuant to the work in
February and March which remained unanswered by the RESPONDENT. Finally, being
aggrieved by the RESPONDENT’s conduct and non-payment of the dues, the
CLAIMANT on 15th April,2019 sent a notice declaring the contract terminated and an
invoice of Rs 50,00,000 along with additional charges of Rs. 2,00,000 to the
RESPONDENT. The CLAIMANT also demanded damages of Rs. 30 Million for breach
of contract in the first stage. The RESPONDENT did not reply anything with regard to
the notice.

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 9. On 10th June 2019, the CLAIMANT sent a Notice of Arbitration (hereinafter referred as
NoA) to the RESPONDENT which was received by them on 15 th June 2019. In its NoA,
the CLAIMANT requested the Director of Narnia International Centre for Arbitration
(NICA) to act as Appointing Authority and appoint a sole arbitrator along with
determining the place of arbitration, also mentioning about its demand from the
RESPONDENT.
10. On 20th June 2019, the NICA acknowledged receipt of the Notice of Arbitration and
asked from the RESPONDENT as to the designation of the Appointing Authority. On 5th
July, 2019, having not heard from the RESPONDENT the NICA appointed Ms. Amy
Farrah Fowler, a well-respected arbitrator as the Sole Arbitrator. Ms. Fowler upon her
appointment mailed both the parties on 15th July 2019 , asking them (1) whether the
CLAIMANT wished for its Notice of Arbitration to serve as its Statement of Claim; (2)
whether the DEFENDANT intended to participate in the proceedings; and (3) whether the
Parties had comments on the place of arbitration.
11. The CLAIMANT on 30th July 2019, replied that the NoA would serve as its Statement of
Claim that the place of arbitration should be Narnia on the basis of the Arbitration
Agreement and the ex-parte hearing of the case due to lack of participation from the
RESPONDENT. On 5th August 2019, due to lack of communication from the
RESPONDENT, the sole arbitrator ordered a) The Notice of Arbitration served as
Statement of Claim; b) The place of arbitration was Narnia; and c) The dispute would be
decided on the basis of the pleadings and without a hearing. She also declared the
pleadings closed and that she would proceed to render an Award.
12. On 15th August 2019, a law firm on behalf of the RESPONDENT came on record
stating a) The Arbitral Tribunal had no jurisdiction to decide the dispute in the
absence of prior good faith negotiations; b) CLAIMANT had breached the
Agreement by failing to deliver the Area Plan and the Budget and RESPONDENT’s
silence was a clear sign that it considered the Agreement had come to an end in light
of changed circumstances; c) In any event, the RESPONDENT was a State entity
immune from liability in matters to do with projects of national significance such as
the current project; d) No further sums were due pursuant to the Agreement or at
all; e) No profits were lost given that there had been no progress .

Memorandum for CLAIMANT

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 13. On 19th of August the CLAIMANT wrote to the sole arbitrator to uphold her Procedural
order as the contentions raised by the RESPONDENT was out of time and calculated to
subvert the arbitration proceedings in bad faith.

Memorandum for CLAIMANT

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 SUMMARY OF ARGUMENT

14. THE ARBITRATOR HAS THE JURISDICTION TO HEAR THE SUIT

The arbitrator has the jurisdiction to hear the suit under Article 7(2) UNCITRAL Arbitration
Rule and Article 16 of the UNCITRAL Model Law and the prior negotiation between the parties as
per the Article 15, the governing law and dispute resolution clause of the agreement between the
parties.

15. RESPONDENT IS IN BREACH OF ITS OBLIGATIONS UNDER THE

AGREEMENT

It is humbly submitted that there was lack of communication and non-participation of the
respondent with regard to performance of the contract. even after several mails from the
Claimant, the respondent did not put ibn their best effort to amicably resolve the issue. The
claimants were not paid their lawful dues mentioned under the agreement due to which the
claimants had to incur additional expenses on their behalf. Therefore, the respondent should be
made liable for breach of contract.

16. DAMAGES ARE DUE UNDER THE AGREEMENT FROM THE RESPONDENT

The respondent had a laid-back attitude from the very start. several emails and other
communication remained unanswered till the passing of the procedural order. The claimant had to
bear the brunt of the respondent’s delayed responses. Thereby claimant has the right to be provided
with the accrued amount.

17. THERE IS NO RISK OF ENFORCEMENT IF THE AWARD IS DELIVERED IN

FAVOUR OF THE CLAIMANT

There was no breach of the standard for enforcement of arbitral award in pursuance to
international law as the grounds for refusal of enforcement and recognition of award given under
Article V of the New York Convention cannot be challenged by the respondent on any valid
reasons, therefore there is no risk of enforcement of award if delivered in favour of claimant.

Memorandum for CLAIMANT

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 ARGUMENTS

I. THE ARBITRATOR HAS THE JURISDICTION TO HEAR THE SUIT:

18. Article 7(2) of states that “if no other parties have responded to a party’s proposal to
appoint a sole arbitrator within the time limit provided in paragraph 1 and the party or
parties concerned have failed to appoint a second arbitrator in accordance with article 9
or 10, the appointing authority may, at the request of a party, appoint a sole arbitrator
pursuant to the procedure provided for in article 8, paragraph 2, if it determines that, in
view of the circumstances of the case, this is more appropriate”. Paragraph 1 mentions a
time limit of 30 days after the receipt of the notice of arbitration by the RESPONDENT.
Also, under article 6(3)(b) of the UNCITRAL Model Law on International Commercial
Arbitration, in an arbitration with a sole arbitrator, if the parties are unable to agree on the
arbitrator he shall be appointed, upon request of a party, by the court or other authority.
19. Article 16 of states that “the arbitral tribunal may rule on its own jurisdiction, including
any objections with respect to the existence or validity of the arbitration agreement.”
20. The party objecting to the jurisdiction of the arbitrator has to raise the objection, as soon
as the arbitration proceeding is initiated and the arbitrators have to answer the issue as a
preliminary issue [MC Dermott international Inc., vs burn standard co. ltd (2006) 11 SCC
P.181]
21. In this case, on 10th June, 2019 a notice of arbitration was served on the RESPONDENT
which was signed and received by them on 15th June, 2019. The notice was
simultaneously delivered to NICA, that acknowledged its receipt on 20th June, 2019.
Finally, not having heard from the Respondent, the NICA appointed sole Arbitrator, MS.
Amy Farah Fowler on 5th July, 2019. RESPONDENT contended the appointment of the
sole arbitrator post the time specified as per Article 7(2), which is 30 days, therefore this
gives the CLAIMANT the right to request the appointing authority to appoint the sole
arbitrator, thus the jurisdiction of the arbitrator in this case is valid.
22. Article 16 of the UNCITRAL Model Law states the competence of arbitral tribunal to
rule on its jurisdiction. A clear interpretation states that the plea that the arbitral tribunal
does not have jurisdiction shall be raised not later than the submission of the statement of

Memorandum for CLAIMANT

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 defence. The plea that the arbitral tribunal is exceeding the scope of its authority shall be
raised as soon as the matter alleged to be beyond the scope of authority is raised during
the arbitral proceedings, which was not done by the RESPONDENT.
23. The RESPONDENT’s contention as to the jurisdiction of the arbitrator is that as per the
Article 15 [¶16], the governing laws and dispute resolution clause of the agreement
between the CLAIMANT and the RESPONDENT, which is, the condition that in case of
any dispute the parties will use their best efforts to negotiate an amicable result prior to
proceeding for arbitration and since, there was no prior good faith negotiation between
the parties, therefore, the Arbitral Tribunal had no jurisdiction to decide the dispute. This
position is completely incorrect as:

(A) THE CONDUCT OF THE PARTIES IS SUCH THAT ANY RESOLUTION

PROCESS APART FROM ARBITRATION WOULD BE RENDERED FUTILE
24. The first communication regarding Stage 1 budget was made by the CLAIMANT on 18th
November 2018. The CLAIMANT communicated to the RESPONDENT that owing to a
change in the circumstances, there shall be delay in submitting the budget. Pursuant to
this, in a telephonic interview the RESPONDENT agreed to defer the date for Stage 1. On
20th December 2018 the claimants had sent the area plan and tentative Budget to
RESPONDENT wherein additional expenses borne by the CLAIMANT were also
incorporated on account of change in requirements. Along with this an invoice of Rs.
50,000,00 for work completed was sent.
25. On 25th January, 2019 an email was received by the CLAIMANT from Mr. Holmes
stating, “Thank you for your message. We are reviewing it and will get back to you.”
Pursuant to that message, several follow up emails were sent by the CLAIMANT
throughout the months of February and March, all of which remained unanswered. On
account of such behavior by the RESPONDENT and non-payment, aggrieved the
CLAIMANT sent a notice on 15 th April, 2019 declaring termination of the agreement and
claiming payment of the invoice of Rs. 50,00,000 along with payment of additional costs
of Rs. 2,00,000 incurred by the CLAIMANT between October 2018 to April 2019. The
CLAIMANT also sought damages of Rs. 30 million for failure to perform contractual
obligations.

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 26. Yet, not heard from the RESPONDENT, on 10 th June, 2019 a notice of arbitration was
served on the RESPONDENT which was signed and received by them on 15th June,
2019. The notice was simultaneously delivered to NICA, that acknowledged its receipt on
20th June, 2019. Finally, on not having heard from the Respondent, the NICA appointed
sole Arbitrator on 5th July, 2019 Ms. Amy Farah Fowler. She wrote to both parties
especially asking the RESPONDENT if they intended to participate in the arbitration
proceedings. On, 30th July, 2019 the CLAIMANT wrote to the Arbitrator that Notice of
Arbitration would serve as the statement of claim. Finally, on 5 th August, 2019 not having
heard from the RESPONDENT the Arbitrator passed a procedural order which was
contested by the RESPONDENT on 15th August, 2019.
27. From the conduct of the RESPONDENT, it is clearly noticeable that they did not pay
attention to any of the emails or any communications made by the RESPONDENT until a
procedural order was passed. Thus, it is very evident that any other process apart from
arbitration would have been futile.

(B) THE UN-CERTAINTY AND NON-DETERMINATIVE NATURE OF THE

NEGOTIATION
28. The non-determinative nature of negotiation makes the procedure completely contingent
upon the voluntary participation of the parties to the process. Without the participation of
one of the parties, there will be no negotiation procedure. Therefore, these dispute
resolution procedures are not enforceable under judicial supervision. Furthermore, it is
fruitless to constrain a reluctant party to negotiate because it would be an unsuccessful
attempt without the cooperation and consent of both parties. To be enforceable, the
dispute resolution process should at least meet the following requirements:
1. The process must be sufficiently certain, i.e. there should not be the need for an
agreement at any stage before the matters can be proceeded.
2. The administrative processes for selecting a party to resolve the dispute and to pay that
person should be defined.
3. The process or at least a model of the process should be set out so that the detail of the
process is sufficiently certain [Holloway v Chancery Mead (2007) EWHC 2495(TCC)]

Memorandum for CLAIMANT

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 29. In Sulamerica CIA Nacional De Seguros S.A. and others v Enesa Engenharia S.A. and
others [2012] 1 Lloyd’s Rep 671 (“Sulamerica”), the English Court of Appeal held that an
enforceable agreement to mediate must define the parties’ rights and obligations with
sufficient certainty. It found the mediation clause unenforceable as it did not set out any
defined mediation process or refer to the procedure of a specific mediation provider. The
dispute resolution clause [¶16] specifies for the parties to negotiate an amicable result but
the clause does not specify for a model of the process for negotiation nor does it refer to a
specific process for negotiation to make it binding and enforceable.
30. It is evident from the facts of the instant case that the CLAIMANT made efforts to
communicate every detail to the RESPONDENT right from the stage 1 of the contract to
the Notice of Arbitration. But even after several attempts of the CLAIMANT the
RESPONDENT did not reply to any of the communications made to them, it was only
after the procedural order was passed, the RESPONDENT contested it. This non-
participatory conduct of the RESPONDENT shows that any kind of negotiation with
would not have been of any help for the CLAIMANT or fruitful for both the parties and
would have led to further delay in payment of dues by the RESPONDENT , therefore in
order to prevent further delay and uncertainty in the payment of dues by the
RESPONDENT , the CLAIMANT proceeded for arbitration. Thus, the CLAIMANT had
made sufficient efforts to comply with the negotiation obligation and therefore it had
jurisdiction to proceed for arbitration.
31. In a case where the clause provided amicable settlement before reference to arbitration,
the Supreme Court referred to letters exchanged between parties and inferred that
attempts were made for amicable settlement with no result, leaving no option but to
invoke arbitration. [Visa International Limited v Continental Resources (USA) Limited
(2009) 2 SCC 55]. A similar view was taken by the Supreme Court in Swiss Timing
Limited v Commonwealth Games 2010 Organizing Committee. [(2014) 6 SCC 677].
32. In another case the Supreme Court had, while dealing with an application seeking
appointment of an arbitrator, rejected the plea that invocation of arbitration was
premature. Under the agreed mechanism, the parties had decided that the differences
would be resolved first by mutual discussions, followed by mediation, and only if
mediation failed would they arbitrate. The court inferred from the correspondence

Memorandum for CLAIMANT

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 between the parties that any attempt at that stage to resolve disputes by mutual
discussions and mediation would be an empty formality and proceeded to appoint an
arbitrator. [Demerara Distilleries Private Limited v Demerara Distillers Limited (2015) 13
SCC 610].

II. THE RESPONDENT IS IN BREACH OF ITS OBLIGATIONS MENTIONED IN THE

AGREEMENT
33. The RESPONDENTS entered into an agreement with the CLAIMANT, i.e., CLAIMANT
pursuant to which CLAIMANT undertook to provide consultancy services to
RESPONDENT in accordance with certain stages specified in the Agreement, wherein
the price that was fixed was a sum of Rs. 150 million to be paid over a period of two
years. In addition, RESPONDENT was to pay CLAIMANT a guarantee amount of Rs. 5
lakhs within two weeks of entering into the agreement. CLAIMANT expected to generate
profits of around Rs. 50-60 million on the agreement, with most of the profit expected to
be generated in the second year of the project. (¶4)

A. THERE WAS VIOLATION ON PART OF THE RESPONDENTS IN NOT

MAKING THE REQUISITE PAYMENTS
34. The RESPONDENT and the CLAIMANT entered into the agreement on 15th September,
2018, and according to the terms of the agreement, the RESPONDENT was supposed to
pay a guarantee amount of Rs. 5 lakhs within two weeks of entering into the agreement
(¶4) which means till 29th September, 2018, RESPONDENT should have paid the said
amount to the CLAIMANT, which was not made. After 15 September 2018, the
CLAIMANT communicated directly with the RESPONDENT on 20th October, 2018
when it sent an email to RESPONDENT along with a report on the progress of the area
plan and the Budget, which means there was no other communication between these
dates.
35. As was decide in the agreement that Stage-1 of the agreement would involve the delivery
of an area plan and budget, which required intense cooperation between representatives
of both the firms on-site as well as off-site which was priced at Rs. 10, 00,000. It is
evident from the facts of the case that at many instances the RESPONDENT has not
replied to various mails sent by the CLAIMANT.

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 36. When on 26th October, 2018, sent an email to RESPONDENT to indicate that the revised
parameters demanded a significant increase in the Budget, for which they requested for a
meeting in early November, there was no reply from the side of RESPONDENT (¶7)
From 15th April, 2019 to 10th June, 2019, when after being aggrieved by this behaviour
and non-payment on RESPONDENT’s side, CLAIMANT sent a notice to
RESPONDENT declaring the termination agreement, again by not having heard from
RESPONDENT, CLAIMANT had no other option than to courier a Notice of Arbitration
(¶17) to RESPONDENT. From 20th June, 2019 to 5th July, 2019, when after the
acknowledgement by the NICA, it invited comments from RESPONDENT as to the
designation of the Appointing Authority, no mails regarding the same nor any indication
that emails had bounced back were received by the NICA (¶ From 15th July, 2019 to 5th
August, 2019, when Ms. Fowler wrote to the parties to ask on certain issues, counsel for
the CLAIMANTS replied, no reply from RESPONDENT or indication that emails had
bounced back was received by her (¶19) (¶21)
37. Furthermore, when Mr. Holmes decided that a uniform e-mail be sent to all the firms
which were dealing with RESPONDENT stating, “Thank you for your message. Please
bear with us as the new team gets acquainted with RESPONDENT's new and ongoing
projects. We will revert shortly” (¶11) even after clearly stating in the mails that
RESPONDENT would revert back, the RESPONDENT never reverted back to the
CLAIMANT. On 18th November 2018, RESPONDENT agreed to defer the date of Stage
I on a telephonic conversation with representatives of CLAIMANT, as a result of which
CLAIMANT sent the Area plan report and a tentative Budget to RESPONDENT. Mr.
Holmes sent an email to CLAIMANT stating “Thank you for your message. We are
reviewing it and will get back to you", but thereafter, CLAIMANT sent several emails in
February and March 2019, all of which remained unanswered from the side of
RESPONDENT (¶14)
38. All of the above facts clearly imply that the RESPONDENT was negligent and
irresponsible while carrying out the terms of the contract and there was lack of
participation from their side with regards to the completion of formalities before the
hearing and there was no intense cooperation from the side of RESPONDENT at several
instances which is a clear breach of the terms of the Stage I of the agreement.

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 B. SILENCE AS A GROUND FOR TERMINATION AND NO COMMUNICATION
OF REVOCATION OF CONTRACT
39. As per the facts, the CLAIMANT informed the RESPONDENT that keeping in mind the
change in circumstances (i.e., the general vote ballot), there shall be a delay in submitting
the Budget to the CLAIMANT, to which RESPONDENT agreed to defer the date of
Stage I.( ¶12) This is a clear indication that the RESPONDENT agreed to the changes
that were to be made in Stage I of the agreement and that the RESPONDENT wanted to
continue with the dealings agreed on in the agreement.
40. Being aggrieved by the behaviour of RESPONDENT, the communication of the
revocation of the contract was initiated by the CLAIMANT when it sent a notice to
RESPONDENT on 15th April, 2019 declaring the agreement terminated and claiming
payment of the invoice, additional costs incurred by the CLAIMANT and damages for
the failure of RESPONDENT to perform its contractual obligations in relation to Stage I
and loss of profits, to which there was no reply from the side of RESPONDENT.
41. Also, mere silence and ignorance of mails from the side of RESPONDENT cannot be
termed as a clear sign for considering the agreement to come to an end in light of the
changed circumstances, as is contended by the RESPONDENT.
42. The Agreement had Article 15 as a provision, which stated that in the event of any
dispute arising under or in relation to this Agreement the Parties will use their best
efforts to negotiate an amicable result. As is proved earlier, the RESPONDENT rarely
replied to the mails sent by CLAIMANT and the few that were replied, the
RESPONDENT never cared to follow what was written in the mails. The
RESPONDENT did not even try to adhere to the terms of the agreement and continued
with its negligent behaviour. They did not reply to the CLAIMANT, the NICA and to
Ms. Amy Farrah Fowler at various instances, as are explained above. Negotiation with
regard to the agreement also proved to be a huge waste of time for CLAIMANT as it had
already spent a lot by providing services to RESPONDENT for which it did not even
receive the promised guarantee amount. Thus, the RESPONDENT would not be said to
adhere to the 'best efforts' phrase mentioned in Art. 15.

Memorandum for CLAIMANT

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 43. CLAIMANT did not breach the agreement because it delivered the Area Plan and the
Budget as on 20th December 2018 to the RESPONDENT wherein, they also incorporated
the additional expenses borne by them due their revised requirements and also tendered
an invoice for the work completed. Though the CLAIMANT sent the area plan report and
a tentative budget at a later date than as was decide, they diligently informed
RESPONDENT that keeping in mind the change in circumstances, there shall be a delay
in submitting the Budget and, as a result, RESPONDENT also agreed to defer the date of
Stage I.
44. Section 5 of the Indian Contract Act, 1872 states that:
“A proposal may be revoked at any time before the communication of its acceptance is
complete as against the proposer, but not afterwards. An acceptance may be revoked at
any time before the communication of the acceptance is complete as against the acceptor,
but not afterwards.”
This section clearly states that once the period for revocation of the contract has lapsed
the parties cannot revoke the contract and that the contract is binding on the parties.
Another important element of Section 5 is the communication of revocation of the
contract. Without the communication, a contract cannot be revoked or terminated.
Pertaining to the facts of the case and the chain of emails presented by CLAIMANT it
can be clearly seen that RESPONDENT have not been responding to any of the mails and
there was no communication of revocation of the contract neither was there any implied
action or conduct of the RESPONDENT through which the CLAIMANTS could construe
the contract to be terminated from the opposite party’s side. CLAIMANT on the other
hand have been performing their part of the contract quite diligently and also had to incur
additional expenses on behalf of RESPONDENT as there was no response from their
side. Also, mere silence on part of RESPONDENT is by no means an indication to
CLAIMANT that the RESPONDENT intended to revoke the contract, there has to be an
express communication of revocation which was to be made by RESPONDENT which
they failed to make.
45. Stage I of the agreement scheduled on 30th November 2018, involved the delivery of an
area plan and budget for which required intense cooperation between representatives of
both the firms on-site as well as off-site which was priced at Rs.10,00,000. The

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 preparation of area plan involved various site visits by representatives of both the firms
and it became apparent to CLAIMANT that RESPONDENT had a number of
requirements that which were not anticipated at the time of entering into the Agreement.
The additional requirements of RESPONDENT were not a part of the initial agreement
which created an inevitable need for frequent meetings and on-site visits by
representatives of both parties. Even though there was no response made by
RESPONDENT and an increase in the requirements by RESPONDENT, the
CLAIMANT continued to perform their part of the contract by paying for the additional
expenses incurred due to the additional requirements. Even after the repeated reminders
for meetings and updates sent to the RESPONDENTS by the CLAIMANTS via email
dated 20th October, 2018 and 26th October, 2018, there was no reply from the

RESPONDENT’s side. Also, the invoices sent by the CLAIMANTS via email dated 20 th
December, 2018 wherein the CLAIMANTS submitted the Area plan and the budget were
also left unanswered by the RESPONDENTS.
Even after the repeated reminders, the RESPONDENTS seemed extremely uninterested
as well as the RESPONDENTS defaulted in the payment of the work which was duly
completed by the CLAIMANTS. Thus, there was a breach of contract committed by the
RESPONDENTS as they defaulted in timely payments and meetings which was to be
carried out as per the terms of the contract.
43. In the case of Bharat Petroleum Corpn. Ltd. vs. Great Eastern Shipping Co. Ltd. [AIR
2008 S.C. 357] and The Bank of India Ltd. vs. Rustom Fakirji Cowasjee [AIR 1955
Bombay 419] it was stated that mere silence does not amount to assent in a contract. But
in certain situations, silence coupled with the conduct of the person, takes the form of a
positive act, which may constitute an acceptance. This is the principle of an agreement
‘sub silentio’ which was substantiated in these cases.

a) There were a number of mails sent by the CLAIMANT to the RESPONDENT for a
very long period of time.
The mere silence of the RESPONDENTS was construed as an action of ‘sub silentio’,
since in the email dated 25th January, 2019 sent by the RESPONDENTS to the
CLAIMANTS in reply to the mail dated 20 th December, 2019, the RESPONDENTS

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 had said that, “Thank you for your message. We are reviewing it and will get back to
you”.
This mail of the RESPONDENTS dated 25 th January, 2019 is an instance of the
conduct of the RESPONDENTS that acts as a positive act which constitutes an
acceptance to the contract and the on-going work which was being performed by the
CLAIMANTS. The mail dated 25th January, 2019 sent by the RESPONDENTS to the
CLAIMANTS is a clear indication that the RESPONDENTS had no intention of
terminating the contract and that there was unnecessary delay and ignorance on part
of the RESPONDENTS.

46. In the case of Strategic Outsourcing, Inc. vs. Continental Casualty Company [414 F.
Supp. 2d 545] the Court of Appeal stated that when a party loses a substantial amount of
money under the contract and the negotiation is impossible, then a motive to terminate the
contract is neither wrongful nor unconscionable. It further specifically held that "a party's
desire to avoid financial losses constitutes reasonable grounds for declining to perform
otherwise applicable contractual obligations."
47. The CLAIMANT sent a number of mails to the RESPONDENT which remained
unanswered. The invoice sent by the CLAIMANT to the RESPONDENT also remained
unpaid as well as there was no reply to the Area Plan and Budget which was sent along
with invoice. Being aggrieved by this behaviour and non-payment from
RESPONDENT’s side, CLAIMANT sent a notice to RESPONDENT on 15th April,
2019 declaring the termination Agreement terminated and claiming payment of the
invoice of Rs. 50, 00, 000 along with the payment of additional costs of Rs. 2,00,000
incurred by CLAIMANT between October 2018 to April 2019. Furthermore, they also
demanded damages Rs. 30 Million for the failure of RESPONDENT to perform its
contractual obligations in relation to Stage I and loss of profits. Though according to
Article 15 of agreement, there should have been best efforts made by the parties to
negotiate an amicable solution in occurrence of any dispute, it was impossible to get into
any kind of negotiations with the RESPONDENTS as there was no response from the
RESPONDENT’s side to any of the mails as well as the notice sent to the
RESPONDENTS. Hence it can be said that the CLAIMANTS approaching the Arbitral

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 Tribunal is after all efforts made to initiate negotiation but which could eventually not be
held due to the lack of involvement from the RESPONDENT. There were major losses
caused to the CLAIMANTS due to which they were left with no option but to terminate
the contract and initiate an Arbitration proceeding to recover the compensation for the
damages caused to CLAIMANT. So, it is clear from the facts that the CLAIMANTS have
not filed the Arbitration suit with any mala fide intentions and that the Arbitral Tribunal
should pass an award in favour of the CLAIMANTS.
48. Article 4 of the UNCITRAL Model Law on International Commercial Arbitration states
the waiver of right to object. It says that “a party who knows that any provision of this
Law from which the parties may derogate or any requirement under the arbitration
agreement has not been complied with and yet proceeds with the arbitration without
stating his objection to such non-compliance without undue delay or, if a time-limit is
provided therefor, within such period of time, shall be deemed to have waived his right to
object. The fact that the RESPONDENT was informed of all the delay and change in
budget requirements and still preferred to defer the Stage I clearly explains as to how the
RESPONDENT cannot challenge the jurisdiction of the Arbitral tribunal and in fact, even
after Ms. Fowler asked for any concerns with respect to arbitration, the RESPONDENT
did not reply making the RESPONDENT liable.

III. THERE ARE SUMS/ DAMAGES DUE FROM THE RESPONDENT UNDER THE
AGREEMENT
49. The CLAIMANT is a highly profitable partnership firm and specialises in providing
architectural services. It provides assistance on a fixed-price contract basis. In the
agreement, the price fixed for providing the consultancy services was a fixed sum of Rs.
150 million, plus a guarantee amount of Rs. 5 lakhs were required to be paid within two
weeks of entering into the agreement.
50. The stage I which involved the delivery of budget and area plan was priced at a
consideration of Rs. 10 lakhs. However, during this stage, CLAIMANT realised that
RESPONDENT had a few other requirements which were not anticipated at the time
of entering into the agreement. Nonetheless, CLAIMANT decided to pursue their

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 services and emailed the report on progress on budget and are plan to RESPONDENT
saying that the parameters of the budget need to be changed owing to the new
requirements.
51. After the change in management of RESPONDENT, which was not informed to
CLAIMANT, they continued working on their project with RESPONDENT and had to
bear additional expenses with regard to the same.
52. CLAIMANT had to bear the brunt of change in the management of RESPONDENT and
had to bear the additional expenses. When CLAIMANT stated that there would be delay
in submitting the budget, RESPONDENT agreed to defer the Stage I of the agreement.
If RESPONDENT had provided the requirements that it wanted prior itself, the execution
of the stage would not have taken place and both the parties would not have had to go
through the difficult situation. It was especially financially draining for the CLAIMANT,
considering it only had this project and had given up on all other lucrative projects for
this project with RESPONDENT.
53. Even after constant reminders sent by the CLAIMANT with regard to the increase in
requirements and that there was an urgent need to increase the budget, RESPONDENT
neglected the series of emails sent by CLAIMANT between July 2018 to April 2019.
Since CLAIMANT had performed their part of the contract with utmost diligence,
they duly deserved their payment for the work performed. Even after the constant
reminders about the meetings and requirements about increased budgets, since there was
no reply from RESPONDENT, CLAIMANT asked for their due payments which was
wilfully neglected by RESPONDENT. Thus, there was a breach of the contract which
was committed by RESPONDENT as they failed in paying CLAIMANT for the amounts
which it duly deserved.
54. Datsun Inc was a regular and lucrative customer of CLAIMANT and the CLAIMANT,
out of the lucrative DATSUN offer and the RESPONDENT’s offer, chose the
RESPONDENT. The CLAIMANT expected a revenue of Rs.500 million out of that
project and an estimated profit of Rs.100 million approximately. Even though
CLAIMANT was receiving such a huge profit it decided to move ahead with the project
offered by RESPONDENT, since it received the request for proposal from the
RESPONDENT in connection with the Zindia project. Due to the breach of contract

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Page 22
 committed by RESPONDENT, CLAIMANT could not earn a profit in this project which
it took up with RESPONDENT as well as it lost its opportunity of earning a hefty profit
of Rs.100 million from Datsun Inc. The CLAIMANT therefore, now expects
RESPONDENT to compensate for the dual loss which was incurred by CLAIMANT as it
did not get a profit from RESPONDENT as well as Datsun Inc. Hence, CLAIMANT
expects and demands a sum of Rs.30 million as a compensation for the breach of contract
committed by RESPONDENT and the overall loss caused to CLAIMANT.
55. Article 30(2) and Article 30(3) of the UNCITRAL Model Law, 2013 states that:

30(2): If a party, duly notified under these Rules, fails to appear at a hearing, without
showing sufficient cause for such failure, the arbitral tribunal may proceed with the
arbitration.
30(3): If a party, duly invited by the arbitral tribunal to produce documents, exhibits or
other evidence, fails to do so within the established period of time, without showing
sufficient cause for such failure, the arbitral tribunal may make the award on the
evidence before it.
56. Since the RESPONDENT did not reply to CLAIMANT’s mails, the CLAIMANT had
sent an Arbitration Notice to the RESPONDENTS on 10 th June, 2019 being aggrieved by
the unprofessional behaviour of the RESPONDENTS. Subsequently, on 5 th July, 2019
having not heard from RESPONDENT nor having received indications that the emails
sent by the CLAIMANTS had bounced back, the Director of Narnia International Centre
for Arbitration (NICA) appointed Ms. Amy Farah Fowler as the Sole Arbitrator. Even
after repeated reminders from the Arbitral Tribunal the RESPONDENTS never showed
up for pleadings. Eventually after the time had lapsed, the RESPONDENTS appeared
before the Arbitral Tribunal through Baker Mckenzie, a law firm. The period for
appearance before the Tribunal has already been lapsed and the RESPONDENTS do not
have a sufficient cause for their delayed appearance. These actions of the
RESPONDENTS have already caused major losses to the CLAIMANTS and hence, the
RESPONDENTS should be directed to pay for the damages caused to the CLAIMANT.
Also, since the period for appearance has already lapsed, the Tribunal shall stand by its
Procedural Order passed on 5th August, 2019 wherein it was stated that the award shall be

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Page 23
 decided without a hearing as the RESPONDENTS did not appear before the Tribunal in
time.
57. The term ‘Damages’ has been defined by McGregor ‘as the pecuniary compensation,
obtainable by success in an action, for a wrong which is either a tort or a breach of
contract, the compensation being in the form of a lumpsum which is awarded
unconditionally.’ This definition was adopted by Lord Hailsham, L.C. in Cassel & Co.
Ltd. v. Broome, [(1972) 1 All ER 801 (HL) at 823e]. The CLAIMANTS have incurred
huge amount of damages due to the breach of contract which has been committed by the
RESPONDENTS. The damage caused to the CLAIMANTS include the following
amounts:
a) The additional costs incurred by the CLAIMANTS between October 2018 to April
2019 which were due to the additional requirements of the RESPONDENTS, amount
to Rs. 2,00,000.
b) Payment of the Invoice for the work already completed by the CLAIMANTS which
amounts to Rs.50,00,000.
c) The breach of contract committed by the RESPONDENTS and loss caused as the
CLAIMANTS missed out on the project offered by Datsun Inc which has led to huge
damages caused to the CLAIMANTS. These damages caused by the
RESPONDENTS to the CLAIMANTS amount to a loss of Rs.30 million. These
damages caused by to the CLAIMANTS should be duly compensated by the
RESPONDENTS with immediate effect.

IV. THERE IS NO A RISK OF ENFORCEMENT IF THE AWARD IS DELIVERED IN

FAVOUR OF THE CLAIMANT

58. There was no breach of the standard for enforcement of arbitral award in pursuance to
International law.

59. Article V of the New York Convention sets forth the grounds on which recognition and
enforcement of an arbitral award may be refused by a competent authority in the
Contracting State where recognition and enforcement is sought. The final text of Article
V reflects the recommendation of the Dutch delegation to eliminate the requirement of

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 double exequatur, to restrict the grounds for refusal of recognition and enforcement as
much as possible and to place the burden of proving such grounds on the party opposing
recognition and enforcement. [Travaux préparatoires, United Nations Conference on
International Commercial Arbitration, Recognition and Enforcement of Foreign Arbitral
Awards, Comments by Governments on the draft Convention on the Recognition and
Enforcement of Foreign Arbitral Awards, E/CONF.26/3/Add.1, para. 7.]

60. The New York Convention contains an exhaustive list of the grounds upon which courts
in the Contracting States may refuse recognition and enforcement. The grounds for
refusal under Article V do not include an erroneous decision in law or in fact by the
Arbitral tribunal. A court seized with an application for recognition and enforcement
under the Convention may not review the merits of the arbitral tribunal’s decision. This
principle is unanimously confirmed in the case [Trading company (Israel) v. Buyer
(Germany)]. Courts of the Contracting States have also consistently found that the
Convention does not allow refusal to recognize and enforce based on procedural grounds
other than those listed in article V.

61. As discussed earlier the claimants are not found to be in breach of any of the conditions
as mentioned in the Article V of the New York convention and hence there shall be no
risk of enforcement if the award is delivered in favour of the claimant.

THE FEASIBLE NATURE OF THE PLEADINGS BY THE CLAIMANT.

62. In pursuance to the breach of Contractual obligations, the CLAIMANT has requested to
declare the contract as terminated which they have an absolute right to as derived by the
Lex Mercatoria referring to the OHADAC principles on International commercial
contracts article 7.1.2 and UNIDROIT Principles of International Commercial Contracts
2016 section 7.3.1.

63. In pursuance to the breach of contractual obligations by the RESPONDENT, the

CLAIMANt has merely asked the tribunal to direct RESPONDENT to pay a sum of Rs.
50,00,000 pursuant to its invoice of 20th December 2018. Further the CLAIMANT asked
for restitution of ₹2,00,000 of incremental costs incurred by CLAIMANT due to
RESPONDENT's failure to perform its obligations under the Agreement.

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 64. The general principles of the Model Law have been set forth by Lax J. in the case of Re
Corporacion Transnacional de Inversiones, S.A. de C.V. et al. and STET International,
S.p.A. et al. (1999), 45 O.R. (3d) 183: Governing Principles of the Model Law. The
Model Law is a collaborative effort among nations to facilitate the resolution of
International commercial disputes through the arbitral process Article V of the Model
Law expressly limits the scope for judicial intervention except by application to set aside
the award or to resist enforcement of an award under one or more of the limited grounds
specified in Articles 34 or 36. Under Article 34 of the Model Law, the applicants bear the
onus of proving that the awards should be set aside. If the applicants fail to satisfy this
onus, Articles 35 and 36 of the Model Law expressly require this court to recognize and
enforce the awards.

65. In this instant case, it is not established that there has been any breach under the listed
grounds in article 34 and 36 of the UNCITRAL Model law. The party against whom the
award is invoked was given proper notice of the appointment of an arbitrator or of the
arbitral proceedings and it cannot be established from the facts that the RESPONDENT
was unable to present his case due to valid reasons; the arbitral procedure was in
accordance with the agreement of the parties as indicated by Article 15(¶16 of the moot
problem) in the contract between the two parties.

66. Hence there are no grounds under which the RESPONDENT may approach the court to
set aside the given order hence there shall be no risk in the enforcement of the given
order.

67. In the case of [Ronald Elwyn Lister Ltd. v. Dunlop Canada Ltd., [1982] 1 S.C.R. 726], it
was again emphasized about the enforcement of contracts and has stated that, “Where
parties experienced in business have entered into a commercial transaction and then set
out to crystallize their respective rights and obligations in written contract drawn up by
their respective solicitors, it is very difficult to find or to expect to find a legal principle
in the law of contract which will vitiate the resultant contracts. Certainly where the
parties have capacity in law to enter into the contract, where the terms of the contract are
clear and unambiguous, where there is a valid consideration passing between the parties,
and where there is no evidence of oppression or operative misrepresentation, the law

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 recognizes no principle which fails to enforce the validity of such a contract. In
pursuance to this stance by the court and the principle of ex aequo et bono which is
expressly written in the article 15 of the agreement between two parties, the CLAIMANT
reiterate the fact that granting of the relief claimed by CLAIMANT is in no manner
unenforceable in nature”.

68. The notion that the declaration of award for the CLAIMANT would be bad in public
policy and the case that there were no hearings and the matter would be decided based on
pleadings is unmerited. In the case of [Corporacion Transnacional de Inversiones, S.A.
de C.V. v. STET International, S.p.A. (2000), 49 O.R. (3d) 414] is was quoted that :
Article 15(2) of the International Chamber of Commerce Rules of Arbitration provides
that if one of the parties is absent without valid excuse the arbitrator shall proceed with
the arbitration and “such proceedings shall be deemed to have been conducted in the
presence of all parties”. It hardly offends our notions of fundamental justice if a party
that had the opportunity to present its case and meet the opposing case forfeits that
opportunity by withdrawing from the arbitration.
69. The final relief claimed by CLAIMANT is to order RESPONDENT to pay to
CLAIMANT Rs. 30 million in lost profits that CLAIMANT undoubtedly would have
earned had it pursued the contract with Datsun instead of entering into a contract with
RESPONDENT. In pursuance to this claim it is necessary to establish that the future
profit is certain in nature and not just a mere speculation. To substantiate the same the
counsel would like to refer to the strong relations of CLAIMANT with Datsun Inc (¶3 of
the moot problem). In the words of the Tribunal in [East Mediterranean Gas S.A.E. vs.
Egyptian General Petroleum Corporation and Egyptian Natural Gas Holding Company
and Israel Electric Corporation Ltd.] (ICC, 18215/GZ/MHM): The important fact is not
whether [Claimant] can prove its profitability in the past, but rather whether it is
reasonable to presume that, were it not for [Respondent]’s wrongdoing, it would have
obtained a foreseeable stream of income in the future.

70. This approach is illustrated in [Process and Industrial Developments Ltd. vs. The
Ministry of Petroleum Resources of the Federal Republic of Nigeria] (January 2017). In
that case, the parties entered into a 20-year Gas Supply and Processing Agreement

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 (GSPA) in 2010, whereby Nigeria would supply Wet Gas to P&ID (the Claimant) which
would process it in a newly-built facility and return it in the form of Lean Gas. The
CLAIMANT estimated that the project would produce a net profit of US$5 billion to
US$6 billion over a 20-year period. The RESPONDENT objected stating that the
CLAIMANT should only be entitled to nominal damages as it had not fully performed its
obligations under the GSPA at the date of the repudiation. The RESPONDENT also insisted that
damages could only be awarded for a period of three years as the CLAIMANT had a duty to
mitigate its loss and it should have pursued other investment opportunities.
71. Despite the repudiation occurring at a very early stage of the contract, the Tribunal
considered that there was no evidence that the CLAIMANT would not have performed
its obligations if it had been supplied with Wet Gas. In other words, in a but-for scenario,
the evidence indicated that CLAIMANT would have been able to operate a profitable
business, and the lack of past operating history was not a decisive factor for the Tribunal
in the circumstances. The Tribunal awarded full compensation over the full length of the
contract, so US$ 6.6 billion before interest.

72. The CLAIMANT put forth the argument to apply the international principle of lucrum
cessans. The term ‘income’ covers both positive income, which is to be construed as a
gain for the individual concerned, and negative income, which denotes a loss or lucrum
cessans for that individual. The CLAIMANT asserts that the damage suffered by it
consists of three elements, namely, the loss sustained (damnum emergens), loss of profit
(lucrum cessans) and harm to its image.

73. In breach of contract cases, not involving any expropriation, the value of the loss will
often be computed on the basis of loss of profits or consequential liability to a third
party. The alternative of capital expenditure will not be relevant. Thus, in the case of a
sale of goods, a purchaser who has not received the goods will be entitled to the loss of
profits which he could have made from the resale. Similar law would apply to services.

74. An example of this principle in practice is the decision of [Yusuf Ahmed Alghanim &
Sons WLL v Toys "R" Us Inc] (RU (HK) Ltd 126 F.3d 15). The dispute concerned a
Supply Agreement and a License and Technical Assistance agreement through which the
CLAIMANT, a privately-owned Kuwaiti business opened a Toys "R" Us store in Kuwait

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 and 13 other countries located in and around the Middle East. A dispute arose between
the parties which led to the termination of the agreement and arbitration. The
RESPONDENT was found to be at fault and the tribunal was required to determine the
appropriate level of damages to award the CLAIMANT. While in this case the
CLAIMANT did have an operating history, the business had to date operated at a loss.
However, the arbitral tribunal found that it would have expected profits in the future, and
therefore that it had suffered a loss for which it should be compensated.

75. Hence the enforcement of the relief is not in contravention of any lex marcatoria law and
the enforcement of the same is not at any foreseeable risk.

REQUEST FOR RELIEF

For the above reasons, Counsel for the CLAIMANT respectfully requests that the Tribunal:

1. declares the agreement terminated.

2. order the RESPONDENT to pay Rs. 50, 00, 000 pursuant to its invoice and Rs. 2,00,000
of incremental costs incurred by CLAIMANT due to RESPONDENT’s failure to perform
its obligations under the agreement.
3. Order the RESPONDENT to pay the CLAIMANT Rs. 30 million in lost profits that
CLAIMANT undoubtedly would have earned if it pursued the contract with Datsun
instead of entering into a contract with the RESPONDENT;

And pass any such order or direction as the Tribunal deems fit and proper, for this the
CLAIMANT duty bound prays.

Ananya Mohapatra Saavi Dhaddha

Memorandum for CLAIMANT

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