CLAIMANT

GIMAC2205
3RD GUJARAT MARITIME UNIVERSITY-CIARB
INTERNATIONAL MARITIME ARBITRATION COMPETITION, 2022
IN THE MATTER OF ARBITRATION TO BE
ADJUDICATED BY GUJARAT INTERNATIONAL ARBITRATION AND

MEDIATION CENTRE,
GIFT CITY, GUJARAT
KALINGA INTERNATIONAL COMMODITIES PVT. LTD. …Claimant
Versus
MALACA INTERNATIONAL SHIPPING PTE LTD. …Respondent
MALACA RESOURCES SDN BHD …Respondent
-WRITTEN SUBMISSION ON BEHALF OF THE CLAIMANT-
KALINGA INTERNATIONAL COMMODITIES PVT. LTD.

GMU-CIARB INTERNATIONAL MARITIME ARBITRATION COMPETITION, 2022
TABLE OF CONTENTS
Table of Contents ....................................................................................................................... I
Index of Authorities ................................................................................................................. III
LIST of Abbreviations .......................................................................................................... VIII
Statement of Jurisdiction......................................................................................................... XI
Statement of Facts .................................................................................................................. XII
Issues Raised .......................................................................................................................... XV
Summary of Arguments ........................................................................................................XVI
Arguments Advanced................................................................................................................. 1
I. Dr Axelrod can be challenged as arbitrator, and if the challenge is successful, the

proceedings cannot continue without repetition .................................................................... 1
A. The tribunal has the power to decide upon the challenge of Dr Elon Axelrod ............. 1
B. The challenge to Dr Axelrod should be successful ....................................................... 2
C. If the challenge is successful, the arbitration proceedings cannot continue with Ms.
Gayatri Martinez replacing Dr Axelrod, without repetition of proceedings ...................... 4
II. MRSB should be joined as Second Respondent to the GIMAC Arbitration Proceedings
5
A. The tribunal has jurisdiction over MRSB via the Group of Companies doctrine ......... 5
B. The tribunal has jurisdiction over MRSB via the Doctrine of Alter Ego ...................... 6
III. That KICPL has not Breached its Contractual Obligation by not paying the price for
the First Shipment and KICPL’s non-accpetance of the Second Shipment is Valid ............. 8
PAGE | I
MEMORIAL for [PETITIONER / RESPONDENT] TABLE OF CONTENTS
A. That KICPL has not breached its payment obligation towards the first shipment ...... 8
B. The non-acceptance of the second shipment by the Claimant is valid...................... 10
IV. That Respondent 1 has breached its Contractual Obligation due to non-delivery of
iron pellets as per the terms of the Contract and the Respondents are liable for supllying
the Defective Quality of the goods in the Second Shipment ............................................... 13
A. That there’s a breach of contractual condition by the Respondent 1 for not delivering
the iron pellets as per the terms of the Contract............................................................... 14
B. That the Respondents are liable for supplying defective quality of iron-ore
transported in second shipment ........................................................................................ 17
Prayer for Relief ....................................................................................................................... 19
PAGE | II
MEMORIAL for [PETITIONER / RESPONDENT] TABLE OF CONTENTS
INDEX OF AUTHORITIES
Cases
(1905) 1 KB 697, 706. ............................................................................................................. 12
(1988) 4 SCC 59 ........................................................................................................................ 8
Afovos Shipping Co. SA v. R Pagnan & Fratelli (The Afovos), (1983) 1 Lloyd’s Rep. 335 . 10
Alaxender v. Gardner, (1895) 1 Bing NC 671 ........................................................................... 9
Alfred C Toepfer Schiffahrtsgesellschaft GmbH v. Tossa Marine Co Ltd (The Derby), (1985)
2 Lloyd’s Rep 325 (CA). ..................................................................................................... 12
Arcos Ltd v. E A Ronaasen & Son, (1972) AC 441 .......................................................... 13, 14
Borrowman v. Drayton, (1876) 2 Ex D 15, CA ....................................................................... 15
Buckland v. Farmar & Moody, (1979) 1 WLR 221 ................................................................ 15
Bull v. Robison, (1854) 10 Exch 342 ...................................................................................... 17
Cehave v. Bremer Handelsgesellschaft (The Hansa Nord), (1976) QB 44 ............................ 16
Central Magistrate Court of Israel, 31228-06-13, 5 November 2014 ........................................ 7
Clarke v. Dickson, (1858) EB & E 148 ................................................................................... 13
Dick Bentley Productions Ltd v. Harold Smith (Motors) Ltd, (1965) 2 All ER 65 ................ 16
Great Northern Rly Co v. Harrison, (1852) 12 CB 576 ............................................................. 9
Gurr v. Cuthbert, (1843) 12 LJ Ex 309 .................................................................................... 15
Hadley v. Baxendale, (1854) 9 Exch 341, 354 (Eng.); ............................................................ 16
Hartley v. Hymans, (1920) 3 KB 475. ..................................................................................... 14
Hazlewood Grocery Ltd v. Lion Foods Ltd, (2007) EWHC 1887 (QB). ................................ 13
PAGE | III
MEMORIAL for [PETITIONER / RESPONDENT] INDEX OF AUTHORITIES
Hick v. Raymond, (1893) AC 22. ............................................................................................ 11
Hongkong Fir Shipping Co Ltd v. Kawasaki Kisen Kaisha, (1962) 2 QB 26 (CA), 71 .......... 11
Ireland v. Livingston, (1872) LR 5 HL 395, HL ..................................................................... 14
Jacobs v. Latour, (1828) 5 Bing 130 ........................................................................................ 15
Jiang Haiying v. Tan Lim Hui and Anr., (2009) SGHC 42 ....................................................... 5
Jones v. Tarleton, (1842) 9 M & W 675 .................................................................................. 15
Kopitoff v. Wilson, (1876) 1 QBD 377. .................................................................................. 11
Kuwait Rocks Co v. AMN Bulkcarriers Inc. (The Astra), (2013) 2 Lloyd’s Rep. 69 ............. 10
Levi and Browse Island Guano Co Ltd v. Berk and Co, (1886) 2 TLR 898, CA.................... 14
Malik v. Bank of Credit, (1998) UKHL 23, 51 (Eng.); Addis v. Gramophone Co., (1909)
UKHL 1(Eng.). .................................................................................................................... 16
Mash and Murrel Ltd v. Joseph I Emanuel Ltd., (1961) 1 All ER 485 ................................... 18
McDougall v. Aeromarine of Emsworth Ltd, (1958) 1 WLR 1126. ....................................... 14
Payzu ltd v. Saunders, (1919) 2 KB 581 .................................................................................... 9
Podar Trading Co Ltd., Bombay v. Francois Tagher, Barcelona, (1949) 2 KB 227 ............... 18
Poussard v. Spiers and Pond, (1876) 1 QBD 410. ................................................................... 13
Prest v. Petrodel, (2013) UKSC 34, para 22. ............................................................................. 7
SK Shipping PTE Ltd. v. Petroexport Ltd., (2010) 2 Lloyd's Rep. 158. ................................. 10
Stanton v. Richardson, (1874) LR CP 390. ............................................................................. 12
Steel v. The State Line Steamship Company, (1877–8) LR 3 App Cas 72, 76 ....................... 11
Stock v. Inglis, (1884) 12 QBD 564, CA. .................................................................................. 9
Stocznia Gdanska SA v. Latvian Shipping Co, (1998) 1 WLR 574, HL ................................ 13

PAGE | IV
Stoljar, The Contractual Concept of Condition, 69 LQR, 485 (1953 ...................................... 16
The Eems Solar, (2013) 2 Lloyd’s Rep 487 ............................................................................ 12
The Muncaster Castle, (1961) AC 807. ................................................................................... 12
Trade and Transport Inc v. Lino Kaiun Kaisha Ltd. (The Angelia), (1973) 2 All ER 144 ..... 18
Transfield Shipping Inc. v. Mercator Shipping Inc., (2008) UKHL 48 (Eng.). ...................... 16
Volcafe Ltd. v. Compania Sud Americana de Vapores SA, (2018) UKSC 61 (Eng.). ........... 17
Weeks v. Goode, (1859) 6 CBNS 367 ..................................................................................... 15
(2013) 1 SCC 641 ...................................................................................................................... 5
(2017) Indlaw DEL 4195. .......................................................................................................... 7
(2018) SCC Online SC 431........................................................................................................ 6
Statutes
Factors Act, 1889, ss. 9, 10. ..................................................................................................... 15
IAA, 1994, § 3 (1). ..................................................................................................................... 1
Sale of Goods Act, 1979, § 10 ................................................................................................... 9
Sale of Goods Act, 1979, § 13(1). ........................................................................................... 17
Sale of Goods Act, 1979, § 28 ................................................................................................... 9
Sale of Goods Act, 1979, § 29(5). ............................................................................................. 9
Sale of Goods Act, 1979, § 31(2). ........................................................................................... 13
Sale of Goods Act, 1979, § 51(1). ........................................................................................... 15
Sale of Goods Act, 1979, § 61 (1). ............................................................................................ 9
PAGE | V
Sale of Goods Act, 1979, ss. 2, 49(1) ........................................................................................ 9
UNCITRAL Model Law on International Commercial Arbitration (1985), art.12 ................... 2
UNCITRAL Model Law on International Commercial Arbitration (1985), art.13 (2............... 2
UNCITRAL Model Law on International Commercial Arbitration (1985), art.15. .................. 4
Other Authorities
BORN, supra note 5, at 1978 ...................................................................................................... 3
BORN, supra note 5, at 2095 ...................................................................................................... 4
GARY B. BORN, INTERNATIONAL COMMERCIAL ARBITRATION, (3rd ed. 2021), 1145 ............... 1
INTERNATIONAL COMMERCIAL ARBITRATION, GARY B. BORN, 1559 (3rd ed. 2021). ................ 5
JOHN F WILSON, CARRIAGE OF GOODS BY SEA, (7th ed. 2010), 15.......................................... 11
NIGEL BLACKABY CONSTANTINE PARTASIDES QC, REDFERN AND HUNTER ON INTERNATIONAL

ARBITRATION, (6th Ed. 2015), 167 ........................................................................................ 1
NIGEL BLACKABY CONSTANTINE PARTASIDES QC, REDFERN AND HUNTER ON INTERNATIONAL

ARBITRATION, 85 ( 6th ed. 2015). ........................................................................................... 5
PAUL TODD, PRINCIPLES OF THE CARRIAGE OF GOODS BY SEA-ROUTLEDGE, (FIRST ED. 2016),
99.......................................................................................................................................... 11
REDFERN, supra note 2, 340....................................................................................................... 1
Rules
GIMAC Arb. Rules , r. 12.2....................................................................................................... 2
GIMAC Arb. Rules, r. 14.3........................................................................................................ 4
H-V Rule 1968, art. III r. 2 ...................................................................................................... 17
H-V Rule 1968, art. III r. 8 ...................................................................................................... 12
H-V Rules 1968, art. III, r. 1 .................................................................................................... 10

PAGE | VI
IBA Guidelines on Conflicts of Interest in International Arbitration (2014), Part II- Practical
Application, Guideline 3.1.4. ................................................................................................. 4
IBA Guidelines on Conflicts of Interest in International Arbitration, 2014, General Standard

6(b). ........................................................................................................................................ 3
IBA Guidelines on Conflicts of Interest in International Arbitration, 2014, General Standard

7(a). ........................................................................................................................................ 3
PAGE | VII
LIST OF ABBREVIATIONS
ABBREVIATION EXPANSION
& And
Arb Arbitration
B/L Bill of Lading
¶ Paragraph
Cl Clause
r Rule
§ Section
Co Company
COGSA Carriage of goods by sea Act
HVR Hague-Visby Rules
HR Hague Rules
Anr Another
Ors Others
PAGE | VIII
MEMORIAL for [PETITIONER / RESPONDENT] LIST OF ABBREVIATIONS
Art Article
edn Edition
IAA International Arbitration Act
SCMA Singapore Chambre of Maritime Arbitration
UKHL United Kingdom House of Lords
SGCA Singapore Court of Appeal
Sing Singapore
v Versus
Ltd Limited
Lloyds’s Rep Lloyd Law Reports
QB Queen’s Bench
KB King’s Bench
USD United States Dollar
SLR Singapore Law Reports
UKPC United Kingdom Privy Council
PAGE | IX
SGHC Singapore International Commercial Court
PAGE | X
STATEMENT OF JURISDICTION
The Claimant has approached the tribunal under the arbitration cl. (present in the Contract,
read with the r. 1 of Gujarat International Arbitration and Mediation Centre (GIMAC) Arb.
Rules and § 2A of the International Arbitration Act of Singapore [IAA]. The party agree to
accept the decision of the arbitral tribunal as final and binding.
PAGE | XI
MEMORIAL for [PETITIONER / RESPONDENT] STATEMENT OF JURISDICTION
STATEMENT OF FACTS
The Parties to this arbitration are KALINGA INTERNATIONAL COMMODITIES PVT

LTD (herein after referred to as KICPL) (CLAIMANT), MALACA INTERNATIONAL
SHIPPING PTE LTD (herein after referred to as MISPL) (RESPONDENT 1), and
MALACA RESOURCES SDN BHD (herein after referred to as MRSB) (RESPONDENT
NO. 2), or (collectively “Parties”). Malaca International Shipping Pte Ltd is a 100%
subsidiary of Malaca Resources Sdn Bhd and is otherwise an independent legal entity and
functions in an autonomous manner.
The Claimant is a non-govt company and is registerred at RoC-Zindian. Their state of

registration is Utkalisha. The Claimant is a leading commercial exporter/importer of different
commodities (i.e. export of coal and other minerals and import of machinery/equipment,
petroleum and chemical products).
The Respondent 1, Malaca International Shipping Pte Ltd (hereinafter known as MISPL is a
private company based in Zingapore.
The Respondent 2, Malaca Resources Sdn Bhd (hereinafter known as MRSB) is a private
company registered in Zalaysia that deals with the production of iron pellets.
DATE EVENT
30th January 2020 The Respondents delivered the first shipment
of 94,900 WMT
May 2020 Respondents were given an extension on the

contract's contractual performance.
Respondent No. 1 failed to deliver the
remaining shipments, breaching its
PAGE | XII
MEMORIAL for [PETITIONER / RESPONDENT] STATEMENT OF FACTS
contractual obligations as a seller. The

Respondents continued to be in breach of the
Contract despite the Claimant's repeated
requests for Respondent 1 to fulfil it.
6th May 2020 The Respondents shipped the second
shipment on May 6, 2020, and it was due to
arrive in Baradip on May 13, 2020.
3rd June 2020 The cargo, however, was 21 days late,
arriving on June 3, 2020
June 2020 Furthermore, rains caused damage to the
respondent's cargo. The Respondents also
failed to properly cover the goods with a
heavy-duty PVC tarpaulin, according to the
Claimant. The moisture content of the pellets
was estimated to be around 9%, according to
an independent surveyor hired by the
Claimant
3rd June 2020 The Claimant noticed that the quality of the
iron pellets had been significantly lowered as
a result of the Respondent's failure in cargo
management, and that the standard of the iron
pellets had been diminished in terms of its
effectiveness due to over-exposure to sea.
5th October 2020 The Claimant served the Respondents with a
Notice of Demand, informing them that they
were in breach of the Contract and requiring
them to confirm whether they still intended
to perform the Contract
14th October 2020 Respondent 1 replied to the Notice of
Demand and said that they were under no
obligation to make any further shipments.
PAGE | XIII
The Respondent additionally issued an

invoice for payment for the first shipment on
January 30, 2020, which has remained unpaid
till date
15th October 2020 The Claimant took note of the Respondent’s
repudiatory breach and terminated the
contract. A Notice of Termination was sent to
the Respondents
October 2020 The Respondent received a series of emails
from the claimant, asking the respondents to
solve the dispute under the negotiation and
mediation
1st November 2021 The Claimant submitted the Notice of
Arbitration, in accordance with the
arbitration agreement[Clause 13] contained
in the ‘’Long-Term Contract’’.
2nd November 2021 The Claimant commenced Arbitration after
failed mediation and negotiations.
29th November 2021 Respondents submitted the Answer to the
Notice of Arbitration.
10th December 2021 Appointment of Presiding Arbitrator
15th December 2021 Appointment of Arbitral Tribunal
30th December 2021 Procedural Order no 1 was issued
11th January 2022 The Claimant filed a notice of challenge
against the appointment of Second Arbitrator,
Dr Elon Axelrod.
18th January 2022 The Respondents submitted the Response to
notice of challenge against the appointment
of Second Arbitrator, Dr Elon Axelrod.
11th February 2022 Procedural Order no. 2 was issued
PAGE | XIV
ISSUES RAISED
ISSUE-I
CAN THE SECOND ARBITRATOR, DR. ELON AXELROD, BE CHALLENGED AS AN

ARBITRATOR? IF YES, CAN THE ARBITRATION PROCEEDINGS CONTINUE AND
DOES THE ARBITRAL TRIBUNAL HAVE THE JURISDICTION TO PROCEED WITH
THE ARBITRATION?
ISSUE-II
SHOULD MRSB BE JOINED AS A SECOND RESPONDENT TO THE GIMAC

ARBITRATION PROCEEDINGS?
ISSUE-III
HAS THE CLAIMANT BREACHED ITS PAYMENT OBLIGATIONS TOWARDS THE

1ST SHIPMENT MADE BY RESPONDENT NO. 1? IS THE CLAIMANT’S NON-
ACCEPTANCE OF 2ND SHIPMENT VALID?
ISSUE-IV
HAS RESPONDENT NO. 1 BREACHED ITS CONTRACTUAL OBLIGATIONS DUE TO

THE NON-DELIVERY OF IRON PELLETS SHIPMENTS ACCORDING TO THE
CONTRACT AND ARE THE RESPONDENTS LIABLE FOR THE DEFECTIVE
QUALITY OF THE 2ND SHIPMENT?
PAGE | XV
MEMORIAL for [PETITIONER / RESPONDENT] ISSUES RAISED
SUMMARY OF ARGUMENTS
I. THAT DR. ELON AXELROD CAN BE CHALLENGED AS ARBITRATOR, AND IF

THE CHALLENGE IS SUCCESSFUL, THE PROCEEDINGS CANNOT CONTINUE
WITHOUT REPETITION
The Claimant submits that the Arbitral Tribunal must decide on the challenge of Dr. Elon
Axelrod as the challenge against Dr. Elon Axelrod is within time.
The Claimant challenges the appointment of Dr. Elon Axelrod as an arbitrator in the current
proceedings. The Claimant further submits that the disclosure obligations creates an
appearance of bias which shall undermine the right of the claimant to be heard and ruled
upon with an open mind. Dr. Axelrod must be replaced as an arbitrator in the present
proceedings. His past adjudication creates an Issue Conflict and give rise to ‘justifiable
doubts’ as to his impartiality
II. MRSB SHOULD BE JOINED AS SECOND RESPONDENT TO THE GIMAC

ARBITRATION PROCEEDINGS
The Claimant submits that MALACA RESOURCES SDN BHD(MRSB) Should be joined as
a Second Respondent to the GIMAC Arbitration Proceedings. The Claimant, further submits
that the tribunal has jurisdiction over Respondent No. 2 MRSB. While MRSB did not sign
the arbitration agreement, the present circumstances make it necessary for Respondent 2 to be
subjected to arbitration for the complete administration of justice.
III. THAT KICPL HAS NOT BREACHED ITS CONTRACTUAL OBLIGATION BY

NOT PAYING THE PRICE FOR THE FIRST SHIPMENT AND KICPL’S NON-
ACCPETANCE OF THE SECOND SHIPMENT IS VALID
The Claimant submits that KICPL has not breached its payment obligation towards the first
shipment. It is submitted that timely payment to the seller for every shipment was not the
essence of the contract and repudiatory breach on the part of seller by not supplying the
PAGE | XVI
MEMORIAL for [PETITIONER / RESPONDENT] SUMMARY OF ARGUMENTS
contracted quantity of goods in the first shipment entitled the Claimant to not discharge his
contractual obligation. Moreover, the Respondents failed to fulfil their contractual obligation
under Clause 2 of the Contract of delivering the specified quantity of iron ore pellets as it
provided only 94,900 WMT of pellets. The Claimant, further, submits that non-acceptance of
the second shipment by the Claimant is valid as MISPL delivered degraded quality of pellets
in the 2nd shipment, so the claimant was within its rights to reject the goods tendered.
IV. THAT RESPONDENT 1 HAS BREACHED ITS CONTRACTUAL OBLIGATION

DUE TO NON-DELIVERY OF IRON PELLETS AS PER THE TERMS OF THE
CONTRACT AND THE RESPONDENTS ARE LIABLE FOR SUPLLYING THE
DEFECTIVE QUALITY OF THE GOODS IN THE SECOND SHIPMENT
The Claimant submits that the Respondent 1 has breached its contractual obligation due to
non-delivery of iron pellets as per the terms of the contract. Respondent 1 has breached its
duty to timely deliver the required quantity of goods. Moreover, Respondent 1 is not entitled
to the right of lien and the right of withholding delivery and KIPCL is entitled to get US
$120, 000, 000.00 as provisional damages. The Claimant, further, submits that the
Respondents are liable for supplying the defective quality of the goods in the 2nd shipment as
the Respondents failed to cover the cargo properly with a heavy-duty PVC tarpaulin.
Moreover, it came to the notice of the Claimant that due to the Respondents fault in
management of the cargo, the quality of the iron pellets have been significantly reduced and
due to over-exposure to sea, the standard of the iron pellets was reduced in terms of its
effectivity.
PAGE | XVII
MEMORIAL for [PETITIONER / RESPONDENT] SUMMARY OF ARGUMENTS
ARGUMENTS ADVANCED
I. DR AXELROD CAN BE CHALLENGED AS ARBITRATOR, AND IF THE CHALLENGE IS
SUCCESSFUL, THE PROCEEDINGS CANNOT CONTINUE WITHOUT REPETITION
[¶1] Important procedural issues arise in the present dispute. The claimant presents a
three-pronged argument (A) The tribunal has the power to decide upon the challenge of Dr
Elon Axelrod (B) The challenge to Dr Axelrod should be successful (C) If the challenge is
successful, the arbitration proceedings cannot continue with Ms. Gayatri Martinez replacing
Dr Axelrod, without repetition of proceedings
A. The tribunal has the power to decide upon the challenge of Dr Elon Axelrod
[¶1] The parties have chosen Singapore as their seat of arbitration by mutual
consent1. The law of the seat of arbitration, or lex arbitri is a set of rules external to the
arbitration agreement, for the conduct of the arbitration. Basically, lex arbitri is the law
applicable to the procedural aspects of the arbitration2. The applicable statute to govern
international arbitration in Singapore is the International Arbitration Act, 1994 (IAA).
[¶2] Section 3(1) of IAA confers the UNCITRAL model law with the force of law in
Singapore3. Article 16(1) of the model law provides that the arbitral tribunal has the
competence to rule on its own jurisdiction.
[¶3] Article 16 of the model law encompasses the principle of Kompetenz-Kompetenz.

A widely accepted rule in international arbitration practice, under the principle of
Kompetenz-Kompetenz, the arbitral tribunal has the authority to rule on its own jurisdiction4.
Moreover, the New York Convention, impliedly affirms the principle in its articles II(3) and
V(1)5. Singapore, being a signatory to convention, gave effect to it in its IAA.
[¶4] Relying on the said authorities, the Claimant contends that the Arbitral tribunal has
1
moot prop, p. 25, cl. 14.
2
NIGEL BLACKABY CONSTANTINE PARTASIDES QC, REDFERN AND HUNTER ON INTERNATIONAL ARBITRATION,
(6TH ED. 2015), 167.
3
IAA, 1994, § 3 (1).
4
REDFERN, supra note 2, 340.
5
GARY B. BORN, INTERNATIONAL COMMERCIAL ARBITRATION, (3RD ED. 2021), 1145.
PAGE | 1
MEMORIAL for CLAIMANT ARGUMENTS ADVANCED
jurisdiction to rule on the challenge to Dr Axelrod under the Kompetenz-Kompetenze rule.
[¶5] While Article 13(1) permits the parties to decide on a procedure for challenging
an arbitrator, no provision in the model law or IAA expressly bars the parties from
approaching the Arbitral tribunal. Moreover, article 13(2) clearly provides the parties with an
alternative to challenge the arbitrator as per which “the arbitral tribunal shall decide on the
challenge”6. Thus, it may be concluded that the tribunal must rely on (a) Kompetenz-
Kompetenz principle (b) Articles 13(2) and 16 to decide that it is has the jurisdiction to
decide on the challenge to Dr Axelrod.
B. The challenge to Dr Axelrod should be successful
[¶6] A prospective arbitrator should mandatorily disclose to the parties any

circumstances, that may raise some reasonable doubts about his/her independence or non-
partisanship, before his/her appointment or confirmation7. A statement of acceptance and
declaration on availability, independence and impartiality shall be duly signed by the
prospective arbitrator in the manner stipulated by the GIMAC8.
[¶7] Grounds on which a prospective arbitrator’s appointment can be challenged:
a. Any circumstances likely to give rise to justified questions about a person's

impartiality or independence must be disclosed when a person is contacted about
being appointed as an arbitrator. Unless the parties have already been apprised of such
circumstances, an arbitrator must immediately disclose any such facts to them from
the moment of his appointment and throughout the arbitral proceedings.
b. An arbitrator may be called into question only if circumstances exist that raise
reasonable doubts about his impartiality or independence, or if he does not meet the
parties' agreed-upon qualifications9.
[¶8] Non-disclosure of the said information by Dr. Axelrod in his declaration during
appointment stage has raised reasonable and justifiable doubts in the mind of the claimant, as
6
UNCITRAL Model Law on International Commercial Arbitration (1985), art.13 (2).
7
GIMAC Arb. Rules , r. 12.2.
8
Id.
9
UNCITRAL Model Law on International Commercial Arbitration (1985), art.12.
PAGE | 2
he has been deprived of rights to make any enquiries as to the arbitrator’s impartiality and
independence. This is gross violation on the part of above mentioned rules and model
conduct, on the part of Dr. Axelrod. Thus, the challenge of claimant is vaild and shall be held
to be successful.
THIRD-PARTY FUNDING
[¶9] Third-party funding is addressed in the 2014 version of the IBA Guidelines. Any
person with "a direct economic interest in, or an obligation to indemnify a party for, the
award to be rendered in the arbitration" is now included in the definition of "party"10.
[ ¶ 10 ] Relationships with persons who have a direct economic interest in the award, such
as an entity providing funds for the arbitration or a duty to indemnify a party for the award11,
are also covered by a party's obligation to disclose any contact with an arbitrator12.
[ ¶ 11 ] In the matter at hand, Disputes Capital Funding, based in Zingapore is acting as a

third party funder for the Respondents in this arbitration. The said company is a subsidiary of
Disputes Capital Holdings, based in the Republic of Britannia. Dr. Axelrod was sole
arbitrator for the parent company Dispute Capital Holdings. The Respondents failed to make
disclosure of any such information and therby violating General Standard 7(a)13 .
DR. AXELROD’S FIRM AND PARTNER REPRESENTATION OF MRSB IN AN EARLIER CASE GIVES
RISE TO REASONABLE DOUBTS WITH REGARD TO HIS IMPARTIALITY
[ ¶ 12 ] The arbitrator has previously advised or been consulted by one of the parties, or an
affiliate of one of the parties, making the appointment in an unrelated issue, but the arbitrator
and the party, or the affiliate of the party, have no ongoing relationship. (Guideline 3.1.1,
IBA Guidelines on Conflicts of Interest in International Arbitration (2014), Part II- Practical
Application) Without the involvement of the arbitrator, the arbiter's law firm has acted for or
against one of the parties, or an affiliate of one of the parties, in an unrelated action during
the last three years14.
10
IBA Guidelines on Conflicts of Interest in International Arbitration, 2014, General Standard 6(b).
11
BORN, supra note 5, at 1978.
12
IBA Guidelines on Conflicts of Interest in International Arbitration, 2014, General Standard 7(a).
13
Id.
14
IBA Guidelines on Conflicts of Interest in International Arbitration (2014), Part II- Practical Application,
PAGE | 3
[ ¶ 13 ] The firm's retired partner (Mr. Furla) was involved as a legal representative in
2019 as a lead counsel. Also, Dr. Axelrod’s firm has acted for Respondent 2 MRSB in a
proceeding before the Zindian International Commercial Court on 10th November, 2018, in a
separate contact. Thus, the Claimant is legally justified in challenging the appointment of Dr.
Axelrod and there are certain substance to it.
C. If the challenge is successful, the arbitration proceedings cannot continue with Ms.
Gayatri Martinez replacing Dr Axelrod, without repetition of proceedings
[ ¶ 14 ] Article 15 of the model law deals with appointment of the substitute arbitrator. It
provides that where the mandate of an arbitrator is terminated, “a substitute arbitrator shall
be appointed according to the rules that were applicable to the appointment of the arbitrator
being replaced.”15
[ ¶ 15 ] In the present case, if the challenge to Dr Axelrod is successful, the question arises
regarding the continuation of proceedings with Ms. Gayatri Martinez replacing Dr Axelrod,
and the issue whether the tribunal must then repeat previous proceedings.
[ ¶ 16 ] The UNCITRAL model law is silent on the issue of continuation of proceedings

without repetition of previous proceedings, presumptively leaving the issue to the arbitral
tribunal’s discretion16. Here, it necomes necessary to rely on other authorities relevant to
these arbitral proceedings. The GIMAC council rules, when dealing with the issue of
replacement of an arbitrator say that on reconstitution, the tribunal shall determine if and to
what extent proceedings must be repeated before the tribunal17.
[ ¶ 17 ] The tribunal must note that even though Ms. Gayatri Martinez has been present in
these oral proceedings, she has not been present there as a formal part of the arbitral tribunal.
Given the gravity of the dispute and the extremely complex factual matrix of the case at hand,
it is necessary for Ms. Martinez to have attended the pleadings of the dispute as an active
member of the tribunal, and not as a mere spectator, as she has been till now.
[ ¶ 18 ] The claimant contends that the tribunal must not continue proceedings
Guideline 3.1.4.
15
UNCITRAL Model Law on International Commercial Arbitration (1985), art.15.
16
BORN, supra note 5, at 2095.
17
GIMAC Arb. Rules, r. 14.3.
PAGE | 4
straightaway after replacement of Dr Axelrod, but must ensure integrity of the proceedings
and repeat hearings with the reconstituted tribunal. As far as cost related questions are
concerned, it must be noted that the proceedings are at an early stage, with only a small
portion of the time and money spent. Thus, in the larger interest of justice, the tribunal must
order proceedings to be conducted again.
II.MRSB SHOULD BE JOINED AS SECOND RESPONDENT TO THE GIMAC ARBITRATION

PROCEEDINGS
[ ¶ 19 ] Notwithstanding MISPL’s (Respondent 1) contentions, the tribunal has jurisdiction

over Respondent 2 MRSB. While MRSB did not sign the arbitration agreement, the present
circumstances make it necessary for Respondent 2 to be subjected to arbitration for the
complete administration of justice.
[ ¶ 20 ] The Singapore High Court has held that the privity rule isn’t absolute, and several
situations may arise where non-signatories may be regarded as a party to the arbitration
agreement18. The Tribunal may base its jurisdiction under both, [A] the Group of Companies
Doctrine, and [B] the Doctrine of Alter Ego.
A. The tribunal has jurisdiction over MRSB via the Group of Companies doctrine
[ ¶ 21 ] The Group of Companies doctrine was developed specifically in the context of

arbitration to adapt to the complexities of business transactions19. An arbitration agreement
may be binding on a non-signatory group affiliate of the company by virtue of it being a
single economic entity20. The facts and circumstances of the present matter call for
application of the doctrine.
[ ¶ 22 ] The Indian Supreme Court has relied on the Group of Companies doctrine on
multiple instances. The landmark case of Chloro Controls India Private Limited vs. Severn
Trent Water Purification Inc.& Ors.21, was cited by the Supreme Court in Cheran Properties
18
Jiang Haiying v. Tan Lim Hui and Anr., (2009) SGHC 42.
19
INTERNATIONAL COMMERCIAL ARBITRATION, GARY B. BORN, 1559 (3rd ed. 2021).
20
NIGEL BLACKABY CONSTANTINE PARTASIDES QC, REDFERN AND HUNTER ON INTERNATIONAL ARBITRATION,
85 ( 6TH ED. 2015).
21
(2013) 1 SCC 641.
PAGE | 5
Limited vs. Kasturi & Sons Limited and Ors.22. The reasoning in these decisions, essentially
revolved around the exception to the principle of consent in arbitration. The court opined,
that the relationship of the third party to the arbitration agreement had to be examined, along
with nature of the transaction taking place.
[ ¶ 23 ] The court described the nature of a transaction to be ‘composite’, if the execution

of the mother agreement was not feasible without the aid and execeution of the
supplementary agreements with the third, non-signatory party, for achieving a common
object, having a bearing on the dispute subject to arbitration. Above all, the court would
examine whether a composite reference of the parties would serve the ends of justice23.
[ ¶ 24 ] In the present matter, it is important ot examine the nature and quality of the
relationship between the 2 respondents, along with the nature of transaction taking place, to
determine if Respondent 2 can be made party to the arbitration. Respondent 2 (MRSB) owns
a 100% stake in Respondent 1 (MISPL)24.
[ ¶ 25 ] The claimant contends that the transaction taking place between the Claimant and
the Respondents is one that is ‘composite’, as described by the Indian Supreme Court in
Chloro Controls India25. Apart from being the parent company of Respondent 1, Respondent
2 is also the manufacturer of the iron pellets, which is the very commodity being traded in the
transaction.
[ ¶ 26 ] Without the aid and active participation of the manufacturer Respondent 2, it

would be impossible for Respondent 1 to fullfil his contractual obligations. Moreover, the
outcome quality of the Iron pellets, which is one of the reasons giving rise to the dispute,
cannot be satisfactorily discussed, without involving Respondent 2. The conduct of
Respondent 2 here, has a direct bearing on the subject matter of the dispute, satisfying
conditions laid down by the Indian Supreme Court. Above all, the claimant contends that a
composite reference to the parties, would serve the ends of Justice.
B. The tribunal has jurisdiction over MRSB via the Doctrine of Alter Ego
22
(2018) SCC Online SC 431.
23
Id.
24
Clarification (of the moot prop).
25
supra note 4.
PAGE | 6
[ ¶ 27 ] Another doctrine relied upon bind a third party to the arbitration agreement is the
doctrine of ‘Alter Ego’, also recognized as ‘piercing the corporate veil.’ Here, a non-
signatory may be bound, if the party to the agreement is being used as ‘a device or façade’ to
avoid liability26. The doctrine has found traction in multiple common law jurisdictions, and
the circumstances of the present dispute demand application of the same here.
[ ¶ 28 ] In GMR Energy Limited v. Doosan Power Systems India Private Limited27, the
Delhi High Court held that a non-party to the Arbitration Agreement could be made part of
the arbitral proceedings on the grounds that it acted as an alter ego to the contracting party.
In the aforementioned case, their was 100% ownership by the parent company
[ ¶ 29 ] Israeli courts have also applied this doctrine in the context of third-parties to an
arbitration agreement. In Simin Ltd. v. International Trade Exchange Ltd.28, the Court noted
that someone who was not an official party to the arbitration agreement could be bound by it
if it had ‘considerable proximity to the matter, or its interests were represented in the
proceedings’.
[ ¶ 30 ] The court went on to add that, on examination of the ‘nature and quality of the
relationship’ between the signatory to the arbitration agreement and the third-party company,
the agreement may be found to apply to a subsidiary or parent company that was not a party
to it after examining. The doctrine of piercing the corporate veil may be a legitimate tool for
‘preventing a party that should settle its dispute in arbitration from evading it by using
formalistic arguments’.
[ ¶ 31 ] In the instant matter, it is important ot examine the nature and quality of the
relationship between the 2 respondents, to determine if Respondent 2 can be made party to
the arbitration. Respondent 2 (MRSB) owns a 100% stake in Respondent 1 (MISPL)29.
Moreover, one can notice the use of the same brand name ‘Malaca’ by both the respondents.
The above 2 factors signal the substantial degree of proximity Respondent 2 would have with
Respondent 1, and its affairs.
[ ¶ 32 ] However, the aforementioned proximity is not the sole ground to pierce the
26
Prest v. Petrodel, (2013) UKSC 34, para 22.
27
(2017) Indlaw DEL 4195.
28
Central Magistrate Court of Israel, 31228-06-13, 5 November 2014.
29
supra note 7.
PAGE | 7
corporate veil. In the present contract, the commodity at hand that is being traded, Iron
pellets, are being manufactured by Respondent 2, with no role whatsoever of Respondent 1,
in manufacturing the pellets. It is pertinent to note that some of the major issues raised by the
Claimant, regarding fulfillment of contractual obligations are concerned with quality of the
pellets delivered to it.
[ ¶ 33 ] The claimant contends that, in order to escape liability and any issues that would
arise from the contractual obligations, Respondent 2 has used its subsidiary Respondent 1 as
a mere façade. The very reason for MISPL to be used by MRSB to sign the contract and the
arbitration agreement, has been to deliberately set up as a front,with the sole purpose of
avoiding liability and contractual obligations.
[ ¶ 34 ] It is a misconception that the alter ego concept may apply only based on allegation
fraud or similar misconduct by the non-signatory party. It is contended that fraud isn’t the
only ground on which the corporate veil can be pierced, as opined by the Indian Supreme
Court in State of U.P. and Ors. vs. Renusagar Power Co. and Ors.30.
[ ¶ 35 ] Thus, the claimant contends that the combined factors of ownership and the fact
that Respondent 2 has used Respondent 1 as a façade while selling its manufactured
commodity to the claimant, is sufficient ground for this tribunal to pierce the corporate veil.
Given the circumstances, in the interest of administration of justice, it is only fair that
Respondent 2 is made party to the arbitration proceedings.
III. THAT KICPL HAS NOT BREACHED ITS CONTRACTUAL OBLIGATION BY NOT PAYING THE
PRICE FOR THE FIRST SHIPMENT AND KICPL’S NON-ACCPETANCE OF THE SECOND
SHIPMENT IS VALID
[ ¶ 36 ] It is submitted that KICPL has not breached its payment obligation towards the
first shipment [A]; and the non-acceptance of the second shipment by the Claimant is valid
[B].
A. That KICPL has not breached its payment obligation towards the first shipment
[ ¶ 37 ] It is submitted that timely payment to the seller for every shipment was not the
30
(1988) 4 SCC 59.
PAGE | 8
essence of the contract [i]; and repudiatory breach on the part of seller by not supplying the
contracted quantity of goods in the first shipment entitled the Claimant to not discharge his
contractual obligation [ii].
TIMELY PAYMENT TO THE SELLER FOR EVERY SHIPMENT WAS NOT THE ESSENCE OF THE
CONTRACT
[ ¶ 38 ] Until the property31 has been passed to the buyer32 has passed to the buyer, the
price of the cargo is not payable unless it is otherwise agreed33; and where to deliver the
goods is part of a consideration, or a condition precedent to, payment, they must have been
delivered unless delivery has been excused34. The Respondents failed to fulfil their
contractual obligation under Clause 2 of the Contract of delivering the specified quantity of
iron ore pellets as it provided only 94,900 WMT of pellets.
[ ¶ 39 ] The buyer is incumbent to be ready and to willingly pay the price in exchange of
the possession of the goods where the property in and possession of goods are to pass to the
buyer in simultaneous exchange for the payment35. The willingness and readiness of one
party to supply or accept the property in goods depends upon the condition precedent to be
performed by another party36. MISPL failed to supply the contracted quantity of goods which
was a condition precedent to the payment clause.
[ ¶ 40 ] In international sale contracts, expressed contractual terms, in relation to delivery,

are of essence37. Stipulations related to the time of payment are not the essence of the
contract of sale, unless an altogether different intention appears from the terms of the
contract38. Duty to pay the agreed price at any stipulated time is not a condition under S. 10
of the Act39. Thus, by not timely paying the seller, the Claimant has not committed any legal
wrong.
REPUDIATORY BREACH ON THE PART OF SELLER BY NOT SUPPLYING THE CONTRACTED
31
Sale of Goods Act, 1979, § 61 (1).
32
Sale of Goods Act, 1979, ss. 2, 49(1).
33
Stock v. Inglis, (1884) 12 QBD 564, CA.
34
Alaxender v. Gardner, (1895) 1 Bing NC 671.
35
Sale of Goods Act, 1979, § 28.
36
Great Northern Rly Co v. Harrison, (1852) 12 CB 576.
37
Sale of Goods Act, 1979, § 29(5).
38
Sale of Goods Act, 1979, § 10.
39
Payzu ltd v. Saunders, (1919) 2 KB 581.
PAGE | 9
QUANTITY OF GOODS IN THE FIRST SHIPMENT ENTITLED THE CLAIMANT TO NOT DISCHARGE HIS
CONTRACTUAL OBLIGATION
[ ¶ 41 ] If a party has committed a breach of a condition or otherwise show a definite

intention not to perform his contractual obligation, the innocent party has the right to accept
the breach, terminate the contract, and sue for damages40.
[ ¶ 42 ] Repudiation is obvious41 if defaulting party’s actions demonstrate a purpose to no

longer be bound by the contract or an inability to perform such that the non-performance will
deprive the injured party of the benefits of the contract42.
[ ¶ 43 ] In the present case, MISPL was contracted with to supply 100,000 WMT (+/- 5%
at the seller’s option) of iron ore pellets in every shipment43. However, it only supplied
94,900 WMT and on requesting it for multiple times to supply the remaining quantity, the
seller continued to not fulfil his obligation. So, the Claimant was justified in not paying the
price for first shipment.
B. The non-acceptance of the second shipment by the Claimant is valid
[ ¶ 44 ] MISPL was bound for the whole duration of the voyage of shipping the second
shipment to exercise due diligence:
a. make the ship seaworthy

b. properly man, equip and supply the ship.
c. make the holes, refrigerating and cooling chambers, and all other parts of the ship
where goods are stored and carried, suitable and safe for their reception, transit and
preservation44.
[ ¶ 45 ] MISPL completely failed to comply with the above mentioned conditions. It is

therefore, submitted that the respondents failed to reasonably despatch the second shipment
to which caused the delay [i]; the respondents have not maintained seaworthiness while
delivering the second shipment [ii]; and the buyer has the right to reject the second shipment
40
SK Shipping PTE Ltd. v. Petroexport Ltd., (2010) 2 Lloyd's Rep. 158.
41
Afovos Shipping Co. SA v. R Pagnan & Fratelli (The Afovos), (1983) 1 Lloyd’s Rep. 335.
42
Kuwait Rocks Co v. AMN Bulkcarriers Inc. (The Astra), (2013) 2 Lloyd’s Rep. 69.
43
the Contract, Cl. 2.
44
H-V Rules 1968, art. III, r. 1.
PAGE | 10
[iii].
THAT THE RESPONDENTS FAILED TO REASONABLY DESPATCH THE SECOND SHIPMENT TO WHICH
CAUSED THE DELAY
[ ¶ 46 ] It is an implied obligation that the shipper will proceed with reasonable despatch,
both on the approach voyage to the loading port, and on the voyage from there to the
discharging port45. To judge this obligation on a strictly objective basis would be a
horrendous task. It can only be judged based on what can reasonably be expected from the
shipper under the real circumstances prevailing at the time of performance46.
[ ¶ 47 ] The condition of reasonable despatch has invariably been interpreted to mean that
the party who is duty bound to fulfil his obligation under a contract of affreightment
notwithstanding any protracted delay, so long as the delay is attributable to causes beyond his
control and neither has he acted ignorantly nor unreasonably47. It has been argued in detail
under ISSUE 4 (A) how the restrictions that were imposed because of the COVID-19
pandemic and the unprecedented rainfall which occurred in Zindian territory were
unforeseeable incidences beyond the control of the Respondent 1. Therefore, MISPL is not
liable for the delay caused.
THAT THE RESPONDENTS HAVE NOT MAINTAINED SEAWORTHINESS WHILE DELIVERING THE
SECOND SHIPMENT
[ ¶ 48 ] Whether or not it is explicit, providing a seaworthy vessel is an implied term of all

carriage contracts48. At the time of commencement of the voyage the ship should be fit so as
to accomplish the service undertaken by the carrier49.
[ ¶ 49 ] Seaworthiness embraces obligations with respect to every part of the stores and
equipment, hull and machinery and the crew itself. By any trivial defect seaworthiness can be
compromised50.
[ ¶ 50 ] To determine seaworthiness there’s an objective test which was devised in the case
45
PAUL TODD, PRINCIPLES OF THE CARRIAGE OF GOODS BY SEA-ROUTLEDGE, (FIRST ED. 2016), 99.
46
JOHN F WILSON, CARRIAGE OF GOODS BY SEA, (7TH ED. 2010), 15.
47
Hick v. Raymond, (1893) AC 22.
48
Kopitoff v. Wilson, (1876) 1 QBD 377.
49
Steel v. The State Line Steamship Company, (1877–8) LR 3 App Cas 72, 76.
50
Hongkong Fir Shipping Co Ltd v. Kawasaki Kisen Kaisha, (1962) 2 QB 26 (CA), 71.
PAGE | 11
of McFadden v Blue Star Line51. The test envisages that a vessel at the commencement of her
voyage should have that degree of fitness which an ordinary prudent and reasonable owner
would require his vessel to have, taking into consideration all plausible circumstances of it.
The shipowner undertakes the responsibility to the extent where the vessel is absolutely fit
and ignorance is not an excuse52.
[ ¶ 51 ] An another important aspect of seaworthiness under the common law undertaking

relates to the cargo-worthiness of the ship. The seller has to ensure that his vessel is in a
suitable condition from the commencement of the voyage to transport the contractual cargo.
The liability of properly stowing the cargo also lies with the seller53.
[ ¶ 52 ] Providing a seaworthy vessel in which cargo should be covered with a standard

PVC tarpaulin was a paramount contractual obligation of MISPL54. The Claimant in its NoA
has mentioned that when the second shipment arrived at Baradip on 3rd June 2020, the quality
of iron ore pellets was significantly deteriorated due to rainwater55. The cargo was also found
to be not properly covered with standard PVC tarpaulin which proves negligence and bad
stowage56 on the part of MISPL. On the assessment of the cargo by an independent surveyor,
appointed by KICPL under Clause 7.257, the moisture content was found to be 9%. This
clearly shows the breach of Clause 858 by the Respondents.
[ ¶ 53 ] As a result, while the carrier will no longer be held strictly liable in the absence of
fault, he will be held liable not only for his own negligence but also for the negligence of any
third party, including an independent contractor, to whom he has delegated responsibility for
making the vessel seaworthy59. However, this reduction in liability is accompanied by a
condition that nullifies any additional attempts by the carrier to diminish or remove his
responsibility under the regulations to supply a seaworthy ship60. Thus, the respondents are
solely liable for the damage that has been caused to the property in goods of the second
51
(1905) 1 KB 697, 706.
52
Alfred C Toepfer Schiffahrtsgesellschaft GmbH v. Tossa Marine Co Ltd (The Derby), (1985) 2 Lloyd’s Rep
325 (CA).
53
The Eems Solar, (2013) 2 Lloyd’s Rep 487.
54
55
the NoA, para 9.
56
Stanton v. Richardson, (1874) LR CP 390.
57
the Contract, Cl. 7.2.
58
59
The Muncaster Castle, (1961) AC 807.
60
H-V Rule 1968, art. III r. 8.
PAGE | 12
shipment.
THE BUYER HAS THE RIGHT TO REJECT THE SECOND SHIPMENT
[ ¶ 54 ] When a seller makes defective deliveries in respect of one or more instalments, or

the buyer neglects or refuses to take delivery of or pay for one or more instalments, it is a
question in each case, depending on the terms of the contract and the circumstances of the
case, whether the breach of contract is a repudiation of the entire contract or whether the
breach of contract is a repudiation of one or more instalments61. MISPL delivered degraded
quality of pellets in the 2nd shipment, so KICPL was within its rights to reject the goods
tendered.
[ ¶ 55 ] Notwithstanding that the payment of instalments of the goods are to be separately

made62, or that some of the installments have been supplied to the buyer, the contract may63
be repudiated ab initio by the buyer, on the seller’s default in the supply of any instalment
and on returning any instalment previously received64.
[ ¶ 56 ] Whether there was a substantial compliance with the conditions of a contract is

matter of significant concern. If the written contract specifies specifications about quality of
the goods, the condition must be complied with otherwise the seller will be held liable65. If
the condition has not been fulfilled, the buyer may reject the goods66. MISPL did not fulfil
the condition provided under Clause 3 of the Contarct and therefore, must be held liable for
the deteroriation of goods.
[ ¶ 57 ] Thus, KICPL was legally justified in non-accepting the second shipment
IV. THAT RESPONDENT 1 HAS BREACHED ITS CONTRACTUAL OBLIGATION DUE TO NON-
DELIVERY OF IRON PELLETS AS PER THE TERMS OF THE CONTRACT AND THE RESPONDENTS
ARE LIABLE FOR SUPLLYING THE DEFECTIVE QUALITY OF THE GOODS IN THE SECOND
SHIPMENT
61
62
Poussard v. Spiers and Pond, (1876) 1 QBD 410.
63
Stocznia Gdanska SA v. Latvian Shipping Co, (1998) 1 WLR 574, HL.
64
Clarke v. Dickson, (1858) EB & E 148.
65
Arcos Ltd v. E A Ronaasen & Son, (1972) AC 441.
66
Hazlewood Grocery Ltd v. Lion Foods Ltd, (2007) EWHC 1887 (QB).
PAGE | 13
[ ¶ 58 ] It is submitted that there’s a breach of contractual condition by the Respondent 1

for not delivering the iron pellets as per the terms of the Contract [A]; and the Respondents
are laible for supplying defective quality of iron-ore transported in second shipment [B].
A. That there’s a breach of contractual condition by the Respondent 1 for not

delivering the iron pellets as per the terms of the Contract
[ ¶ 59 ] Whether there was a substantial compliance with the conditions of a contract is

matter of significant concern. If the written contract specifies specifications about weight of
the goods, the condition must be complied with otherwise the seller will be held liable67. It is
submitted that Respondent 1 breached its duty to timely deliver the required quantity of
goods [i]; Respondent 1 is not entitled to the right of lien and the right of withholding
delivery [ii]; and KIPCL is entitled to get US $120, 000, 000.00 as provisional damages [iii].
RESPONDENT 1 BREACHED ITS DUTY TO TIMELY DELIVER THE REQUIRED QUANTITY OF GOODS
[ ¶ 60 ] In ordinary commercial contracts of sale of goods, prima facie time of delivery is

the essence of the contract68. Every two months, one shipment has to be supplied to KICPL69.
If the seller failed to fulfil this requirement then it will be a breach of condition or a material
breach. The seller would have applied their best endeavours to deliver the property in goods
on the stipulated time, but despite their best endeavours, they could not perform their
obligation, and they failed to deliver the goods within a reasonable time70.
[ ¶ 61 ] A contract of sale of a cargo is prima facie a contract of sale of the entire cargo
loaded or to be loaded on the ship71, whatever its quantity may calculated to be. Unless a
conflicting intention clearly appears in this type of contract, the word ‘quantity’ should be
construed as a mere estimate72, however where such kind of clear intention appears the
parties may introduce a specified quantity having upper or lower limit and in this scenario the
goods to be delivered must be the entire cargo meeting the contractual requirements of
67
Arcos Ltd v. E A Ronaasen & Son, (1972) AC 441.
68
Hartley v. Hymans, (1920) 3 KB 475.
69
70
McDougall v. Aeromarine of Emsworth Ltd, (1958) 1 WLR 1126.
71
Ireland v. Livingston, (1872) LR 5 HL 395, HL.
72
Levi and Browse Island Guano Co Ltd v. Berk and Co, (1886) 2 TLR 898, CA.
PAGE | 14
quantity73.
[ ¶ 62 ] Taking into consideration Clause 7.874, the Claimant thought that there might the
some genuine reasons behind the lesser quantity of goods. So, KICPL raised several requests
to resolve the matter through negotiation and mediation75 in accordance with the dispute
resolution clause76 of the Contract. However, Respondent 1 completely neglected the matter
and did not respond to any of the mails. When the shipper wrongfully neglects or refuses to
supply the contracted quantity of goods to the buyer, they buyer may bring an action against
the shipper for claiming damages for non-delivery77.
[ ¶ 63 ] KICPL also provided an extension to the Respondents to fulfil their obligation by

13th May 2020 (NoA, para 7). This new date was now the essence of contract which the
Respondents have to adhere to78.
RESPONDENT IS NOT ENTITLED TO THE RIGHT OF LIEN AND THE RIGHT OF WITHHOLDING
DELIVERY
[ ¶ 64 ] Seller’s right to lien can be waived either by an expressed term or by implication.

The seller loses this right where by his words or actions, he dispenses with tender or payment
of price, as where there is repudiation of contract as a consequence of his refusal79 or his
inability80 to deliver the cargo, or where he is conducting himself with regard to an etiquette
which is inconsistent with the buyer’s right to accept them on payment or tender81; or where
without considering his right to retain goods, he claims to have lien on the basis of some
other grounds82; or where his conduct shows that he is deemed by law to have waived his
right to retain goods83.
[ ¶ 65 ] In the present case, MISPL, at the first place has not supplied the contracted
73
Borrowman v. Drayton, (1876) 2 Ex D 15, CA.
74
75
Parties Correspondences (in moot prop).
76
77
78
Buckland v. Farmar & Moody, (1979) 1 WLR 221.
79
Jones v. Tarleton, (1842) 9 M & W 675.
80
Jacobs v. Latour, (1828) 5 Bing 130.
81
Gurr v. Cuthbert, (1843) 12 LJ Ex 309.
82
Weeks v. Goode, (1859) 6 CBNS 367.
83
Factors Act, 1889, ss. 9, 10.
PAGE | 15
quantity of goods84 in the first shipment thereby omitting with tender or payment of price.
Any deviation, however slight it is, from the expressed term of the contract, is a breach of
that condition of the contract85. The contract was also repudiated as a result of seller’s
refusal/incompetence to deliver the contracted amount of goods. The conduct of MISPL by
sending the degraded quality of pellets in the second shipment was inconsistent with buyer’s
right of acceptance as the goods did not meet the specified conditions. Therefore, MISPL has
lost his right of lien.
[ ¶ 66 ] The breach of a condition by the seller may consequently give to buyer the right to
treat the contract as repudiated86.
[ ¶ 67 ] Where, under a contract of sale, a seller has to fulfil a contractual obligation

subjected on a condition, it is then upon the buyer, where the breach of the condition would
give him the right to completely reject the goods(Sale of Goods Act 1979, s 13) and to refuse
to pay the price87 to waive the condition or to treat it as breach of a warranty.
[ ¶ 68 ] The intention of a party can be ascertained from their actions and conduct88. The
seller, in case of occurrence of any force majeure event, is required to make reasonable
commercial efforts to ship the outstanding tonnage of cargo in the same Contract year 89. The
respondents had made no efforts in this regard, hence are not entitled to retain goods.
THAT KIPCL IS ENTITLED TO GET US $120, 000, 000.00 AS DAMAGES
[ ¶ 69 ] A causal nexus must exist between the defendants' breach of contract and the
Claimants' loss90, and the loss must be too remote, i.e., the parties must be able to rationally
anticipate that such a breach would result in such a loss91. Furthermore, the loss must be a
natural and likely consequence of the breach92.
[ ¶ 70 ] The provisional loss caused to the Claimant is a direct and natural consequence of
84
85
Cehave v. Bremer Handelsgesellschaft (The Hansa Nord), (1976) QB 44.
86
Sale of Goods Act 1979, § 11(3).
87
Stoljar, The Contractual Concept of Condition, 69 LQR, 485 (1953).
88
Dick Bentley Productions Ltd v. Harold Smith (Motors) Ltd, (1965) 2 All ER 65.
89
90
Malik v. Bank of Credit, (1998) UKHL 23, 51 (Eng.); Addis v. Gramophone Co., (1909) UKHL 1(Eng.).
91
Hadley v. Baxendale, (1854) 9 Exch 341, 354 (Eng.); Victoria Laundry (Windsor) Ltd. v. Newman Industries
Ltd., (1949) 2 KB 528, 539; C. Czarnikow Ltd. v. Koufos, (1967) 2 Lloyd’s Rep. 555.
92
Transfield Shipping Inc. v. Mercator Shipping Inc., (2008) UKHL 48 (Eng.).
PAGE | 16
the breach of Clause 2 (the Contract, Cl 2) by the Respondent 1. Thus, KICPL is entitled to
get US $120, 000, 000.00 as damages.
B. That the Respondents are liable for supplying defective quality of iron-ore
transported in second shipment
[ ¶ 71 ] The carrier is required to keep, care for, and transport the cargo in a proper and
careful manner93. The carrier is not obligated to rely on any exemption if he can establish that
the cargo loss or damage occurred without any breach of his duty of care under the
aforementioned rule94. It is submitted before the tribunal that the seller has breached his duty
to supply goods of right quality [i]; the respondents are liable for deteroriation of the goods
even if they were deteriorated as a consequence of force majeure events [ii];
THAT THE SELLER HAS BREACHED HIS DUTY TO SUPPLY GOODS OF RIGHT QUALITY
[ ¶ 72 ] There is an implied term in a contract for the sale of goods by description that the
goods will match the description95. The buyer must nevertheless take any risk of damage to
the goods necessarily incident to the course of transit96, where the shipper has agreed to
deliver them at his own risk. During the voyage, the shipper must take risk of any
extraordinary or unusual deterioration97.
[ ¶ 73 ] Where the shipper is contracted to supply the property in goods, he normally

undertakes that the goods will be despatched under certain conditions such that they will:
a. be able to withstand ordinary transit;
b. be of right and satisfactory quality throughout the duration of the voyage and for a
reasonable time thereafter;
c. where required, be fit and suitable for any particular purpose made known to the
seller98
93
H-V Rule 1968, art. III r. 2.
94
Volcafe Ltd. v. Compania Sud Americana de Vapores SA, (2018) UKSC 61 (Eng.).
95
96
Sale of Goods Act, 1979, § 33; Bull v. Robison, (1854) 10 Exch 342.
97
Id; Walker v. Labgdale’s Chemical Manure Co, (1873) 11 M 906.
98
Beer v. Walker, (1877) 46 LJQB 677.
PAGE | 17
[ ¶ 74 ] In the instant case, the Respondents shipped deteriorated quality of iron pellets
having moisture content of 9%, thereby breaching Clause 399. So, the seller is responsible for
the damage for goods in the course of transit100.
THE RESPONDENTS ARE LIABLE FOR DETERORIATION OF THE GOODS EVEN IF THEY WERE
DETERIORATED AS A CONSEQUENCE OF FORCE MAJEURE EVENTS
[ ¶ 75 ] A force majeure clause, as such a stipulation is commonly known, must be

construed in each case, taking into account the type and general conditions of the contract, as
well as the precise contents of the clause101.
[ ¶ 76 ] When such a clause exempts a party from delays owing to unavoidable

circumstances, he may be outside the protection of that provision if he fails to inquire
whether such unavoidable causes exist and notify the other party before entering into the
contract102.
[ ¶ 77 ] A party, who anticipates or declares a force majeure event, has to submit a written
notice, along with the evidence and an explanation, intimating the other party that its
contractual duty has been hindered or delayed because of that very unforeseeable event103.
[ ¶ 78 ] MISPL violated Cl. 11.3 by not fulfilling the conditions enumerated therein. Thus,
the respondents are liable for the damaged quality of goods.
[ ¶ 79 ] The Court of Appeal concluded in Channel Island Ferries Ltd v Sealink UK Ltd104
that any clause including language relating to any unforeseeable event "beyond the control of
the relevant party" could only be relied on if that party had taken all reasonable steps to avoid
or mitigate their effects. In the instant case, the respondents did not take any reasonable steps
as to avoid the damage occurred. They also did not complied with ‘shipment and discharging
terms’105 of the contract. Therefore, the respondents shall be to be held libale for the damage
caused to the goods.
99
100
Mash and Murrel Ltd v. Joseph I Emanuel Ltd., (1961) 1 All ER 485.
101
Podar Trading Co Ltd., Bombay v. Francois Tagher, Barcelona, (1949) 2 KB 227.
102
Trade and Transport Inc v. Lino Kaiun Kaisha Ltd. (The Angelia), (1973) 2 All ER 144.
103
104
(1988) 1 Lloyd’s Rep 323.
105
PAGE | 18
PRAYER FOR RELIEF
In light of the above submissions, the CLAIMANT, requests the tribunal to declare:
1. That the Second Arbitrator, Dr. Elon Axelrod, is not competent to act as an Arbitrator
in the GIMAC Arbitration Proceedings.His past adjudication creates an Issue Conflict
and hence the challenge to his appointment should be successful.
2. That the arbitration proceedings cannot continue with Ms. Gayatri Martinez replacing
Dr Elon Axelrod, without repetition of proceedings.
3. That MRSB should be joined as a Second Respondent to the GIMAC Arbitration

Proceedings.
4. That the Claimant hasn’t breached any payment obligations towards the 1st Shipment
made by Respondent No. 1 and the non-acceptance of the 2nd Shipment is valid.
5. That the Respondent No. 1 has breached it’s contractual obliations due to non-
delivery of iron pellets shipments according to the terms stipulated in the Contract.
6. That Respondents have faulted in the management of the cargo and hence they
should be held liable for the defective quality of the 2nd Shipment.
And therefore, the following reliefs are prayed for:
1. USD 120,000,000 as damages.
2. All losses and damages suffered by the Claimant for the Seller’s breach of Contract,
to be assessed by the Tribunal
3. Legal costs and costs of the arbitration.
4. Further or other reliefs.
AWARD Costs in favour of the CLAIMANT.
-COUNSEL for CLAIMANTS
PAGE | 19
MEMORIAL for CLAIMANT PRAYER FOR RELIEF

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GIMAC2205

3RD GUJARAT MARITIME UNIVERSITY-CIARB

INTERNATIONAL MARITIME ARBITRATION COMPETITION, 2022

IN THE MATTER OF ARBITRATION TO BE

ADJUDICATED BY GUJARAT INTERNATIONAL ARBITRATION AND

GIFT CITY, GUJARAT

KALINGA INTERNATIONAL COMMODITIES PVT. LTD. …Claimant

MALACA INTERNATIONAL SHIPPING PTE LTD. …Respondent

MALACA RESOURCES SDN BHD …Respondent

-WRITTEN SUBMISSION ON BEHALF OF THE CLAIMANT-

KALINGA INTERNATIONAL COMMODITIES PVT. LTD.

Table of Contents ....................................................................................................................... I

Index of Authorities ................................................................................................................. III

LIST of Abbreviations .......................................................................................................... VIII

Statement of Facts .................................................................................................................. XII

Issues Raised .......................................................................................................................... XV

Summary of Arguments ........................................................................................................XVI

I. Dr Axelrod can be challenged as arbitrator, and if the challenge is successful, the

B. The challenge to Dr Axelrod should be successful ....................................................... 2

B. The non-acceptance of the second shipment by the Claimant is valid...................... 10

Prayer for Relief ....................................................................................................................... 19

(1905) 1 KB 697, 706. ............................................................................................................. 12

(1988) 4 SCC 59 ........................................................................................................................ 8

Alaxender v. Gardner, (1895) 1 Bing NC 671 ........................................................................... 9

Arcos Ltd v. E A Ronaasen & Son, (1972) AC 441 .......................................................... 13, 14

Borrowman v. Drayton, (1876) 2 Ex D 15, CA ....................................................................... 15

Buckland v. Farmar & Moody, (1979) 1 WLR 221 ................................................................ 15

Bull v. Robison, (1854) 10 Exch 342 ...................................................................................... 17

Cehave v. Bremer Handelsgesellschaft (The Hansa Nord), (1976) QB 44 ............................ 16

Central Magistrate Court of Israel, 31228-06-13, 5 November 2014 ........................................ 7

Clarke v. Dickson, (1858) EB & E 148 ................................................................................... 13

Great Northern Rly Co v. Harrison, (1852) 12 CB 576 ............................................................. 9

Gurr v. Cuthbert, (1843) 12 LJ Ex 309 .................................................................................... 15

Hadley v. Baxendale, (1854) 9 Exch 341, 354 (Eng.); ............................................................ 16

Hartley v. Hymans, (1920) 3 KB 475. ..................................................................................... 14

Hick v. Raymond, (1893) AC 22. ............................................................................................ 11

Ireland v. Livingston, (1872) LR 5 HL 395, HL ..................................................................... 14

Jacobs v. Latour, (1828) 5 Bing 130 ........................................................................................ 15

Jones v. Tarleton, (1842) 9 M & W 675 .................................................................................. 15

Kopitoff v. Wilson, (1876) 1 QBD 377. .................................................................................. 11

McDougall v. Aeromarine of Emsworth Ltd, (1958) 1 WLR 1126. ....................................... 14

Payzu ltd v. Saunders, (1919) 2 KB 581 .................................................................................... 9

Poussard v. Spiers and Pond, (1876) 1 QBD 410. ................................................................... 13

Prest v. Petrodel, (2013) UKSC 34, para 22. ............................................................................. 7

Stanton v. Richardson, (1874) LR CP 390. ............................................................................. 12

Stock v. Inglis, (1884) 12 QBD 564, CA. .................................................................................. 9

Stocznia Gdanska SA v. Latvian Shipping Co, (1998) 1 WLR 574, HL ................................ 13

Stoljar, The Contractual Concept of Condition, 69 LQR, 485 (1953 ...................................... 16

The Eems Solar, (2013) 2 Lloyd’s Rep 487 ............................................................................ 12

The Muncaster Castle, (1961) AC 807. ................................................................................... 12

Weeks v. Goode, (1859) 6 CBNS 367 ..................................................................................... 15

(2013) 1 SCC 641 ...................................................................................................................... 5

(2017) Indlaw DEL 4195. .......................................................................................................... 7

(2018) SCC Online SC 431........................................................................................................ 6

Factors Act, 1889, ss. 9, 10. ..................................................................................................... 15

IAA, 1994, § 3 (1). ..................................................................................................................... 1

Sale of Goods Act, 1979, § 10 ................................................................................................... 9

Sale of Goods Act, 1979, § 13(1). ........................................................................................... 17

Sale of Goods Act, 1979, § 28 ................................................................................................... 9

Sale of Goods Act, 1979, § 29(5). ............................................................................................. 9