Before: Team Code: 27R

TEAM CODE: 27R
5th NLIU JUSTICE R.K. TANKHA MEMORIAL INTERNATIONAL ARBITRATION MOOT, 2020
Before
THE ARBITRAL TRIBUNAL
BARATHEON CITY, STARK PROVINCE
IN THE MATTER OF AN ARBITRATION BETWEEN
Arcebor Power Private Limited CLAIMANT
v.
Renvidora National Power Company Limited RESPONDENT
UNDER
ARBITRATION RULES OF THE SINGAPORE INTERNATIONAL ARBITRATION CENTRE
( 6th EDITION, 1 AUGUST 2016 )
CASE CONCERNING
THE PART SUPPLY CONTRACT BETWEEN ARCEBOR POWER PRIVATE LIMITED AND
RENVIDORA NATIONAL POWER COMPANY LIMITED
MEMORIAL ON BEHALF OF THE RESPONDENT

5TH NLIU JUSTICE R.K. TANKHA MEMORIAL INTERNATIONAL ARBITRATION MOOT, 2020
[Table of Contents]
TABLE OF CONTENTS
TABLE OF CONTENTS ........................................................................................................ I

TABLE OF ABBREVIATIONS .......................................................................................... III
INDEX OF AUTHORITIES .................................................................................................. V
STATEMENT OF FACTS ................................................................................................... IX
ISSUES RAISED.................................................................................................................. XII
SUMMARY OF ARGUMENTS ....................................................................................... XIII
ARGUMENTS ADVANCED .................................................................................................. 1
I. THERE IS A NO VALID AGREEMENT IN EXISTENCE BETWEEN THE PARTIES WHICH
REFERS THE DISPUTES TO ARBITRATION UNDER THE AEGIS OF SIAC. .................................. 1
A. There Is No Manifestation Of Unequivocal Consent Between The Parties. .............. 1
B. The Arbitration Clause Is Pathological And Is Not Enforceable. ............................. 2
II. THE INSOLVENCY PROCEEDINGS UNDERWAY AGAINST THE RESPONDENT IN YEVADU
BARS THE JURISDICTION OF THIS TRIBUNAL. ......................................................................... 3
A. The Jurisdiction Of Tribunal Is Barred Under Yevadu Laws (Lex Fori Concursus). .
.................................................................................................................................... 3
B. Benefit of creditors lies in suspension of arbitral proceedings. ................................ 5
C. The Jurisdiction Of The Tribunal is Barred As It Cannot Render An Unenforceable
Award Pursuant to Article V(1)(a) Of New York Convention. ........................................... 5
III. THE CLAIMANT IS UNDER AN OBLIGATION TO DISCLOSE ITS SOURCE OF FUNDING
FOR PURSUING THESE ARBITRATION PROCEEDINGS AND THE TRIBUNAL SHOULD ORDER
SECURITY FOR LEGAL COSTS. ................................................................................................ 6
A. The Tribunal Must Order The Claimant To Disclose Its Source Of Funding Pursuant
To Rule 27(c). ..................................................................................................................... 7
B. The Tribunal Has The Power To Order Security Of Legal Costs Pursuant To Rule
27(j). ................................................................................................................................... 9
IV. THE MINISTRY OF POWER, GOVERNMENT OF YEVADU SHALL NOT BE JOINED AS A
PARTY TO THE PRESENT ARBITRAL PROCEEDINGS. .............................................................. 10
A. There Is No Express Or Implied Consent Between Claimant And Ministry Of Power
Of Government Of Yevadu. .............................................................................................. 11
B. The Joinder is not possible as there is no Privity of Contract between Claimant and
Ministry of Power. ............................................................................................................ 12
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[Table of Contents]
C. Ownership Of The Respondent’s Company By The State Does Not Imply For Joinder
Between Ministry Of Power, Yevadu And The Respondent.............................................. 13
V. THE CLAIMANT’S CONDUCT BREACHED THE AGREEMENT AND THE RESPONDENT WAS
JUSTIFIED IN TERMINATING THE AGREEMENT. ..................................................................... 13
A. The Respondent Has Not Violated The Terms Of The Agreement. .......................... 14
B. The Claimant Is In Fundamental Breach Of The Agreement And Cannot Invoke
Article 79 To Exempt The Breach. ................................................................................... 14
C. The Respondent Has Validly Exercised Its Right To Terminate The Agreement Under
Clause 9.0. ........................................................................................................................ 17
PRAYER ............................................................................................................................... XV
Memorial on Behalf of The RESPONDENT Page | II

[Table of Abbreviations]
TABLE OF ABBREVIATIONS
ABBREVIATIONS FULL FORM

$ United States Dollar
% Percent
& And
¶ Paragraph
Part Supply Agreement between Arcebor
Power Private Ltd. and Renvidora National
Agreement
Power Company Ltd. signed on January 14,
2015
AIR All India Reporter
All ER All England Reporter
Anr. Another
China International Economic and Trade
CIETAC
Arbitration Commission
Cir./Circ. Circuit
United Nations Convention on Contracts
CISG
for the International Sale of Goods,1908
Cl. Ex. CLAIMANT’s Exhibit
CLAIMANT Arcebor Power Private Ltd.
CLOUT Cases on UNCITRAL texts
Code The Insolvency and Bankruptcy Code,2016
DRJ Delhi Reported Journal
ed. Edition
et al. et alia (and others)
CLAIMANT’s Law firm Freshgrounds
Freshgrounds
Lockhardt Bordinger LLP
IBA International Bar Association
ICC International Commercial Court
International Council for Commercial
ICCA
Arbitration
Memorial on Behalf of The RESPONDENT Page | III

[Table of Abbreviations]
International Centre for Settlement of
ICSID
Investment Disputes
Id/Ibid Idem(the Same)
Ltd. Limited
N.Y. New York
NCLAT National Company Law Appellate Tribunal
no. Number
PCA Permanent Court of Arbitration
QB Queen’s Bench
Resp. Ex. Respondent’s Exhibit
RESPONDENT Renvidora National Power Company Ltd.
SC Supreme Court of India
SCC Supreme Court Cases
SCGA Singapore Court of Appeal
SGHCR Singapore High Court Reporter
SIAC Singapore International Arbitration Centre
Arbitration Rules of the Singapore
SIAC Rules International Arbitration Centre Rules, 6th
ed., 2016
SLR Singapore Law Report
Supra above
The panel consisting of Sole Arbitrator, Ms.
Tribunal
Ruth Greene
UKPC United Kingdom Privy Council
UN United Nations
United Nations Commission on
UNCITRAL
International Trade Law
International Institute for the Unification of
UNDROIT
Private Law
v. Versus
Vol Volume
WLR Weekly Law Report
Memorial on Behalf of The RESPONDENT Page | IV

[Index of Authorities]
INDEX OF AUTHORITIES
ARBITRAL INSTITUTION RULES

 Arbitration Rules of the Singapore International Arbitration Centre, 6th ed., 2016.
CONVENTIONS
 United Nations Convention on the Recognition and Enforcement of Foreign Arbitral
Awards, 1958, 21 U.S.T. 2518, 330 U.N.T.S. 3.
 UNCITRAL Model Law on International Commercial Arbitration, 1985 without
Amendment, UN Doc A/40/17, Annex I.
 United Nations Convention on Contracts for the International Sale of Goods, 1980, 1489
U.N.T.S. 3.
 UNIDROIT Principles of International Commercial Contracts, 2016.
CASES
 Alchemist Asset Reconstruction Company Ltd v. Hotel Gaudavan Pvt. Ltd. & Ors. (2017
SCC OnLine SC 1362) .................................................................................................... 4,6
 Baron v. Sunderland Corporation, [1966] 2 QB 57. .......................................................... 1
 Bezirksgericht St. Gallen, Präsidium Jul. 3, 1997, CISG-ONLINE NO. 336 (Switz.)
http://www.cisg-online.ch/content/api/cisg/urteile/336.pdf ............................................. 18
 Bhartia Cutler Hammer Ltd. v. Avn Tubes Ltd.,1995 (33) DRJ 672. ................................ 1
 Bulgarian Chamber of Commerce and Industry, Bulgaria, 12 February 1998, Unilex ... 15
 CISG Advisory Council Opinion No. 7, http://www.cisgac.com/cisgac-opinion-no7-
p2/#fn................................................................................................................................ 16
 CLOUT case No. 102 [Arbitration Court of the International Chamber of Commerce, 1989
(Arbitral award No. 6281)] ............................................................................................... 15
 CLOUT case No. 140 [Tribunal of International Commercial Arbitration at the Russian
Federation Chamber of Commerce and Industry, Russian Federation 16 March 1995
(Arbitral award No. 155/1994)]........................................................................................ 15
 CLOUT case No. 140 [Tribunal of International Commercial Arbitration at the Russian
Federation Chamber of Commerce and Industry, Russian Federation, 16 March 1995
(Arbitral award No. 155/1994)]........................................................................................ 16
 CLOUT case No. 166 [Schiedsgericht der Handelskammer Hamburg, Germany, 21
March, 21 June 1996] ................................................................................................. 15, 16
 CLOUT case No. 271 [Bundesgerichtshof, Germany, 24 March 1999] .......................... 16
 CLOUT case No. 272 [Oberlandesgericht Zweibrücken, Germany, 31 March 1998] .... 16
Memorial on Behalf of The RESPONDENT Page | V

 CLOUT case No. 277 [Oberlandesgericht Hamburg, Germany, 28 February 1997] ...... 15
 Cour de Justice de Genève May. 12, 2006, CISG-ONLINE NO. 1726 (Switz.)
http://www.cisg-online.ch/content/api/cisg/urteile/1726.pdf ........................................... 18
 Dallah v Pakistan [2009] 1 All ER (Comm) 505. ............................................................ 13
 EuroGas Inc. and Belmont Resources Inc. v. Slovak Republic, ICSID Case No.
ARB/14/14; RSM v. Saint Lucia, ICSID Case No. ARB/12/10. ....................................... 8
 FG Hemisphere Assocs LLC v La Générale des Carrières et des Mines SARL, [2012]
UKPC 27. ......................................................................................................................... 13
 First National City Bank v Banco para el Comercio Exterior de Cuba 462 U.S. 611. .... 13
 Innoventive Industries Ltd v. ICICI Bank Ltd, 2010 (1) SCC 407. ................................... 5
 Jagdish Chander v. Ramesh Chander and Ors (2007) 5 SCC 719. .................................... 3
 K. S. Oils v. The State Trade Corporation of India (2018 SCC OnLine NCLAT 352) ..... 6
 K. S. Oils v. The State Trade Corporation of India, 2018 SCC OnLine NCLAT 352. ...... 4
 Landgericht Oldenburg, 27 March 1996, 12 O 2541/95. See University of Freiburg
Database, http://www.cisg-online.ch/cisg/urteile/188.htm .............................................. 15
 Muhammet Cap & Sehil Insaat Endustri ve Ticaret Ltd. Sti. v. Turkmenistan, ICSID Case
No. ARB/12/6, Procedural Order No. 3 of June 12, 2015. ................................................ 8
 Oberlandesgericht Frankfurt am Main Aug. 30, 2000, CISG-ONLINE NO. 594 (Ger.)
http://www.cisg.law.pace.edu/cisg/text/000830g1german.html ...................................... 18
 Oberlandesgericht Hamburg, Germany, 4 July 1997, Unilex .......................................... 16
 PT First Media TBK v. Astro Nusantara International BV,[2013] SCGA 57. ................ 11
 Rechtbank van Koophandel Hasselt, Belgium, 2 May 1995. ........................................... 15
 RSM v. St Lucia, ICSID Case No. ARB/12/10................................................................ 10
 S&T Oil Equipment & Machinery Ltd v. Romania, ICSID Case No. ARB/07/13. .......... 10
 S. Ltd (Republic of Korea) v. P. GmbH (Germany), Case No. 10113-0023, Award (Korean
Comm’l Arb. Bd. 2011). .................................................................................................... 2
 South American Silver v. Bolivia, PCA Case No. 2013-15, Award of November 22, 2018
............................................................................................................................................ 8
 The Bundesgerichtsh of (CLOUT case No. 271) ............................................................. 16
 Tote Bookmakers Ltd v. Development and Property Holding Co. Ltd., [1985] 2 WLR
603. ..................................................................................................................................... 1
 U.S. Court of Appeals (11th Circ.) Jun. 29, 1998, CISG-ONLINE NO. 342 (U.S.)
http://www.cisg-online.ch/content/api/cisg/urteile/342. .................................................. 18
Memorial on Behalf of The RESPONDENT Page | VI

 U.S. District Court for the Southern District of New York Jan. 18, 2011, CISG-ONLINE
NO. 2178 (U.S.), http://cisgw3.law.pace.edu/cases/110118u1.html. ............................... 18
 United Steelworkers of America v. Warrior & Gulf Navigation Co., 363 U.S. 574 (1960).
.......................................................................................................................................... 12
OTHER AUTHORITIES
 CISG Digest 2016 ............................................................................................................ 15
 Progress Report of the Working Group on the International Sale of Goods on the Work of
its Fifth Session (A/CN.9/87, Annexure III, reprinted in UNCITRAL YEARBOOK
V:1974 (1975) .................................................................................................................. 15
 The IBA Guidelines on Conflict of Interest in International Arbitration, 2014 ................. 7
 The Insolvency and Bankruptcy Code, 2016 ..................................................................... 4
 The Report of the ICCA-Queen Mary Task Force On Third-Party Funding In International
Arbitration .......................................................................................................................... 7
 UNCITRAL Legislative Guide On Insolvency Law. ......................................................... 4
BOOKS
 JULIAN D. M. LEW et al., COMPARATIVE INTERNATIONAL COMMERCIAL ARBITRATION 273
(1st ed. 2003). ...................................................................................................................... 6
 NIGEL BLACKBAY, et al., REDFERN & HUNTER: LAW AND PRACTICE OF INTERNATIONAL
COMMERCIAL ARBITRATION 18 (6th ed. 2015).................................................................... 6
JOURNAL ARTICLES
 Bob Wessels, The Changing Landscape Of Cross-Border Insolvency In Europe, JURIDICA
INTERNATIONAL................................................................................................................. 3
 Emanuel Gaillard & George Bermann, New York Convention Guide, NEW YORK
CONVENTION GUIDE .......................................................................................................... 6
 Michael Crystal, The Golden Thread’: Universalism And Assistance In International
Insolvency, JERSEY LEGAL INFORMATION BOARD ............................................................ 3
 Prabhakar Yadav, Conundrum Surrounding Applicability Of Moratorium Under IBC To
Attachment Proceedings Under PMLA, INDIA LAW JOURNAL ......................................... 5
 Robert Koch, ‘The Concept of Fundamental Breach of Contract under the United Nations
Convention on Contracts for the International Sale of Goods (CISG)’, in: Review of the
Convention on Contracts for the International Sale of Goods (CISG) 1998 (1999) 177,
236................................................................................................................................... 14
 Vanessa Finch, The Measures of Insolvency Law, 17(2) OXF. J. LEG. STUD. (1977). ...... 5
 Vladimir Čolović, Lex Fori Concursus As The Basic Rule In The International
Bankruptcy, 4 STRANI PRAVNI ZIVOT, 86. ........................................................................ 3
Memorial on Behalf of The RESPONDENT Page | VII

 Youssef Nassar, Are Unilateral Option Clauses Valid, WOLTERS KLUWER .................... 1
SIAC DOCUMENTS
 SIAC Practice Note on Administered Cases On Arbitrator Conduct In Cases Involving
External Funding, PN-01/17 (31 March 2017) ............................................................. 8, 9
Memorial on Behalf of The RESPONDENT Page | VIII

[Statement of Facts]
STATEMENT OF FACTS
PARTIES
1. Acrebor Power Private Limited, hereinafter referred as the CLAIMANT is a multinational
company and a leader in market energy in Xanier. It has a major manufacturing unit in
Xanier, which produces, sells and distributes industrial products. It sources most of its raw
material from Zorastra. It has been incorporated under the laws of Xanier and has its
principal office in Joeville, Xanier.
2. Renvindora National Power Company Limited hereinafter referred, as the RESPONDENT
is wholly owned by the Government of Yevadu. It has been incorporated under the laws of
Yevadu. It owns and operates thermal power plants in remote Yevadu. One of such thermal
power plants is located in Tullyland, Yevadu [“Tullyland Power Plant], for which this
agreement was entered into. It works under the authority and direction of the Minstry of
Power of the Government of Yevadu.
THE SUPPLY AND INSTALLATION AGREEMENT
3. The CLAIMANT and the RESPONDENT entered into an agreement in 2015 for the supply of
parts and components of the repair and maintenance Frame 15X turbines for a period of 15
years.
4. The Agreement was devised with a purpose of ensuring that the obsolete parts of the Frame
15X Turbines are to be inspected and identified by the CLAIMANT and replaced with new
parts. For the same reason Clause 3 in the Agreement stated at the commencement of each
year there would be an annual inspection by the CLAIMANT. The CLAIMANT for three years
honoured the agreement and sent a designated official to inspect, test and monitor the
turbines and the whole Tullyland Power Plant.
5. Through this Annual Inspection a Requisition List was prepared by the CLAIMANT’s
officials which contains a list of parts that are required to be supplied by the CLAIMANT.
These parts, according to Clause 3 would be supplied in installments by the CLAIMANT to
the RESPONDENT after the end of each quarter, i.e., on 31 March, June, September and
December. The RESPONDENT was to issue a formal purchase order in the name of the
CLAIMANT for the specified parts requisitioned for the particular quarter, fifteen days prior
to such delivery.The Clause also specified that the CLAIMANT is to maintain at least 85%
of Plant maintainability.
Memorial on Behalf of The RESPONDENT Page | IX

RESTRUCTURING POLICY
6. In the month of December, the RESPONDENT received notification from the CLAIMANT
wherein the RESPONDENT was informed about the CLAIMANT’s new support structure as a
part of the new restructuring policy. Due to this change the CLAIMANT would be unable to
send an official for the annual inspection of the Tullyland Power Plant in January. However,
the CLAIMANT ensured assistance to the RESPONDENT’s team in finalizing the Requisition
List. The RESPONDENT agreed to conduct the Annual Inspection themselves since the
CLAIMANT was unable to send an official for the job which was agreed upon previously.
The RESPONDENT brought to the notice of the CLAIMANT about given the location of the
Tullyland Power Plant and the lack of network in the region, they are unsure of how
effective the remote services would be. Finally, the RESPONDENT hoped that the CLAIMANT
would adhere to the high standards of service provided by the CLAIMANT in the previous
course of business.
UNFAVOURABLE CIRCUMSTANCES
7. In August 2018, the RESPONDENT received a notice from the CLAIMANT that their
manufacturing costs have increased due to high tariffs on import of raw material imposed
by CLAIMANT’s country Xanier over Zorastra. Due to this, the CLAIMANT asserted that a
meeting be held with RESPONDENT and its senior management to consider a substantial
increment by RESPONDENT which meant alterations of the Agreement about the pricing.
8. Soon, in 13th September 2018, the RESPONDENT in its reply stated that the Part Supply
Agreement cannot be negotiated on the price and arrived at a concord where the price was
sustainable for both the parties. The RESPONDENT added that in a very short period of
business with the CLAIMANT, the increase in price is unwarranted and therefore the pricing
in the Agreement is firm and does not merit any further increment. After the request of the
RESPONDENT to make the delivery of Third Quarterly Installment, the CLAIMANT failed to
adhere to the stipulated time to make the delivery.
TERMINATION
9. In accordance with the provisions of the Agreement the CLAIMANT was bound to make the
delivery for the Fourth Quarterly Installment. Termination of the Agreement by the
RESPONDENT was subject to failure of delivery by the CLAIMANT. The RESPONDENT
highlighting the breaches committed by the CLAIMANT throughout the year 2018 after the
failure of delivery of the Fourth Quarterly Installment sent a termination notice to the
CLAIMANT in January 2019, under the instructions of Ministry of Power. The termination
was on the ground of the CLAIMANT’s failure to send a designated official for the Annual
Memorial on Behalf of The RESPONDENT Page | X

Inspection, 2018, for failure to deliver the Third Quarterly Installment within stipulated
time and failure to deliver the Fourth Quarterly Installment.
Memorial on Behalf of The RESPONDENT Page | XI

[Issues Raised]
ISSUES RAISED
~I~
WHETHER THERE IS A VALID AGREEMENT IN EXISTENCE BETWEEN THE PARTIES WHICH

REFERS THE DISPUTES TO ARBITRATION UNDER THE AEGIS OF SIAC?
~ II ~
WHETHER THE INSOLVENCY PROCEEDINGS UNDERWAY AGAINST THE RESPONDENT IN

YEVADU BARS THE JURISDICTION OF THIS TRIBUNAL?
~ III ~
WHETHER THE CLAIMANT IS UNDER AN OBLIGATION TO DISCLOSE ITS SOURCE OF

FUNDING FOR PURSUING THESE ARBITRATION PROCEEDINGS AND SHOULD THE TRIBUNAL
ORDER SECURITY FOR LEGAL COSTS?
~ IV~
WHETHER THE MINISTRY OF POWER, GOVERNMENT OF YEVADU MAY BE JOINED AS A

PARTY TO THE PRESENT ARBITRAL PROCEEDINGS?
~V~
WHETHER THE CLAIMANT’S CONDUCT BREACHED THE AGREEMENT AND WHETHER THE
RESPONDENT WAS JUSTIFIED IN TERMINATING THE AGREEMENT?
Memorial on Behalf of The RESPONDENT Page | XII

[Summary of Arguments]
SUMMARY OF ARGUMENTS
I. THERE IS NO VALID AGREEMENT IN EXISTENCE BETWEEN THE PARTIES WHICH

REFERS THE DISPUTES TO ARBITRATION UNDER THE AEGIS OF SIAC.
It is humbly submitted before this tribunal that no valid agreement exist between the
parties which refers the disputes to arbitration under the aegis of SIAC. The
RESPONDENT contends that Firstly No unequivocal consent has been manifested by the
parties. Secondly The pathological Addendum makes the arbitration clause
unenforceable.
II. THE INSOLVENCY PROCEEDINGS UNDERWAY AGAINST THE RESPONDENT IN

YEVADU BARS THE JURISDICTION OF THIS TRIBUNAL.
It is humbly submitted before this tribunal that the jurisdiction of this tribunal is barred
by the insolvency proceedings going on against the RESPONDENT in Yevadu. The
RESPONDENT asserts that Firstly the jurisdiction of tribunal is barred under Yevadu
Laws under the doctrine of lex fori concursus. Secondly the benefit of creditors lies in
the suspension of arbitral proceedings. Thirdly, it is contended that the jurisdiction of
the Tribunal is barred as it cannot render an enforceable award pursuant to Art.V(1)(a)
of the New York Convention.

FOR PURSUING THESE ARBITRATION PROCEEDINGS AND THE TRIBUNAL SHOULD
ORDER SECURITY FOR LEGAL COSTS.
It is humbly submitted before this tribunal that it is the CLAIMANT must disclose his
source of funding as it is his obligation and the tribunal should order security for legal
costs. It is contended that Firstly the tribunal must order the CLAIMANT to disclose its
source of funding under Rule 27(c). Secondly the tribunal has the power to order
security of legal costs under Rule 27(j).
IV. THE MINISTRY OF POWER, GOVERNMENT OF YEVADU CANNOT BE JOINED AS A

PARTY TO THE PRESENT ARBITRAL PROCEEDINGS.
It is humbly submitted before this tribunal that the Ministry Of Power, Government of
Yevadu cannot be joined as a party to the present arbitral proceedings. The
RESPONDENT contends that Firstly there is no express or implied consent between
Memorial on Behalf of The RESPONDENT Page | XIII

[Summary of Arguments]
CLAIMANT and Ministry of Power, Government of Yevadu. Secondly, in the absence of
privity of contract between CLAIMANT and Ministry of Power, Government of Yevadu
the joinder is not possible. Thirdly, Just the ownership of RESPONDENT’S Company by
the state does not imply for a joinder to take place.
V. THE CLAIMANT’S CONDUCT BREACHED THE AGREEMENT AND WHETHER THE

RESPONDENT WAS JUSTIFIED IN TERMINATING THE AGREEMENT.
It is humbly submitted before this tribunal that the conduct of CLAIMANT breached the
agreement and the RESPONDENT was justified in terminating the agreement. The
RESPONDENT asserts that Firstly, he RESPONDENT has not violated the terms of the
agreement. Secondly, The CLAIMANT has conducted a fundamental breach of agreement
and cannot invoke Art. 79 to exempt the breach. Thirdly, The RESPONDENT has validly
exercised its right to terminate the agreement under clause 9.0.
Memorial on Behalf of The RESPONDENT Page | XIV

[Arguments Advanced]
ARGUMENTS ADVANCED
I. THERE IS A NO VALID AGREEMENT IN EXISTENCE BETWEEN THE PARTIES WHICH

REFERS THE DISPUTES TO ARBITRATION UNDER THE AEGIS OF SIAC.
1. The RESPONDENT submits before this honourable tribunal that there is no valid
arbitration agreement between the parties as firstly, [A] There is no manifestation of
unequivocal consent between the parties to arbitrate; and secondly, [B] The arbitration
clause is pathological and is not enforceable.
A. THERE IS NO MANIFESTATION OF UNEQUIVOCAL CONSENT BETWEEN THE
PARTIES.
2. The RESPONDENT contends before the honourable tribunal that both the parties had
originally decided to bind themselves in a unilateral arbitration clause, which gave the
party initiating the claim, the discretion to decide which court will have jurisdiction
over the issue. However, it was a lopsided clause and lacked mutual consent of both the
parties to go for arbitration as it was at either party’s behest to either go for arbitration
or not. It was also not certain if a party would go for arbitration or to its state’s court.
3. This clause stands contrary to the common law doctrine of ‘mutuality of obligation’
which states that either both the parties should have the right or neither of the parties
should have the right and argues for symmetric rights being granted to parties.1 The
English courts in the case of Baron v. Sunderland Corporation, 2 held that it is essential
for either party to agree to submit to arbitration and further stated that any arbitration
clause should confer bilateral rights rather than unilateral rights.
4. A similar view was adopted by the English courts in the case of Tote Bookmakers Ltd
v. Development and Property Holding Co. Ltd.3 The Delhi High Court in the case of
Bhartia Cutler Hammer Ltd. v. Avn Tubes Ltd.4 elucidated that there should be an
unqualified or unconditional argument in respect of both the parties to refer to
arbitration in order to be valid and binding i.e. the clause should be bilateral rather than
unilateral.
5. The RESPONDENT thus submits before the Honourable tribunal that the arbitration
clause held in the dispute resolution clause of the parts supply agreement is lopsided
1
Youssef Nassar, Are Unilateral Option Clauses Valid, WOLTERS KLUWER (Feb. 1, 2020, 7:57 PM),
http://arbitrationblog.kluwerarbitration.com/2018/10/13/are-unilateral-option-clauses-valid/.
2
Baron v. Sunderland Corporation, [1966] 2 QB 57.
3
Tote Bookmakers Ltd v. Development and Property Holding Co. Ltd., [1985] 2 WLR 603.
4
Bhartia Cutler Hammer Ltd. v. Avn Tubes Ltd., 1995 (33) DRJ 672.
Memorial on Behalf of The RESPONDENT Page | 1

and grants an asymmetric and unilateral right on the initiating party to decide the seat
of and the rules applicable to arbitration.
6. Further, there was no unconditional and unqualified consent of both the parties to
submit to arbitration as the initiating party could irrespective of the consent of the other
party decide the seat and rules of the arbitration.
7. Hence, the respondent contends that the arbitration agreement lacked ‘mutuality of
obligation’, and an ‘unqualified’ and ‘unconditional’ agreement and the tribunal should
thus consider this arbitration clause as invalid and non-binding.
B. THE ARBITRATION CLAUSE IS PATHOLOGICAL AND IS NOT ENFORCEABLE.
8. The RESPONDENT humbly submits before the tribunal that the arbitration clause in the
Addendum to the Agreement, which was signed by both the parties on January 14,
2015,5 is pathological in nature and is not enforceable on either of the parties. The
clause states that all disputes will be fully and finally resolved in accordance with the
most recent rules of Singapore Arbitration Centre. It mentions of a non-existent tribunal
and therefore renders the clause unenforceable and non-binding. It is also submitted
that the omission of the word ‘shall’ from the arbitration agreement renders it invalid
and unenforceable.
9. It is submitted that, in the case of S. Ltd (Republic of Korea) v. P. GmbH (Germany),6
the Korean Commercial Arbitration Board refused to recognise an arbitration clause,
which referred to a non-existent arbitral tribunal in Seoul, as there was ‘no evidence to
recognize the existence of such authority’. In the present case, there is also no evidence
of the existence of a ‘Singapore Arbitration Centre’. The arbitration clause is ‘null and
void’ and thus the jurisdiction of the Tribunal is barred.
10. The respondent also contends that the language of an arbitral agreement decides the
extent of jurisdiction of the arbitral tribunal as the jurisdiction of a tribunal is what the
parties have granted it.7 The language of the arbitration agreement in the present case
refers to an arbitration being conducted in accordance with the ‘most recent rules of
Singapore Arbitration Centre’ and thereby gives a mention to non-existent rules of a
non-existent arbitral institute. This creates ambiguity and renders the arbitration clause
ineffective. Thus the 2016 arbitration rules of SIAC were nowhere specifically
5
Cl. Ex. C2.
6
S. Ltd (Republic of Korea) v. P. GmbH (Germany), Case No. 10113-0023, Award (Korean Comm’l Arb. Bd.
2011).
7
SIMON GREENBERG, et al., INTERNATIONAL COMMERCIAL ARBITRATION 21 (2011)

mentioned in the arbitration clause and hence jurisdiction of arbitration is nowhere
conferred on this tribunal.
11. In addition, it is submitted that the clause mentions that ‘any disputes arising out of the
agreement ‘will’ be fully and finally resolved’ and not ‘shall’ be fully and finally
resolved’. The word ‘will’ in its most liberal interpretation only indicates a future
possibility and not a binding character. A mere pious wish or desire for arbitration does
not make a contract for arbitration. An arbitration agreement has to be couched not in
precatory but obligatory words.8 In the case of Jagdish Chander v. Ramesh Chander
and Ors, 9 the Court held that where the clause provides that in the event of disputes
arising between the parties, the disputes ‘shall’ be referred to arbitration, it is an
arbitration agreement, otherwise it loses its binding character.
12. In the present case, the Respondent contends that dispute resolution Clause 1.0 of the
Addendum to the Agreement is pathological in nature. There was no intention of the
parties to submit to an institution, which is not in existence. The Clause 1.0 of the
Addendum is unenforceable and not binding. Hence, pursuant to this clause, the
Tribunal does not have jurisdiction to hear the present case.
II. THE INSOLVENCY PROCEEDINGS UNDERWAY AGAINST THE RESPONDENT IN

YEVADU BARS THE JURISDICTION OF THIS TRIBUNAL.
13. The RESPONDENT humbly submits before the tribunal that in accordance with the
moratorium imposed by the National Company Law Tribunal, Yevadu, the initiation of
any legal proceedings, including arbitration against the RESPONDENT is prohibited. The
RESPONDENT contends that firstly, [A] the jurisdiction of the tribunal is barred under
Yevadu laws (Lex Fori Concursus); secondly, [B] the benefit of the creditors lies in
suspension of Arbitral proceedings; and thirdly, [C] the jurisdiction of the tribunal is
barred as it cannot render an enforceable award pursuant to Art. V (1)(a) Of New York
Convention..
A. THE JURISDICTION OF TRIBUNAL IS BARRED UNDER YEVADU LAWS (LEX FORI
CONCURSUS).
14. Lex fori concursus is seen as the basis of international bankruptcy.10 It is defined as
being the law (lex) of the country where a court (forum) has opened insolvency
8
Jyoti Brothers v. Shree Durga Mining Co. AIR 1956 Cal 280
9
Jagdish Chander v. Ramesh Chander and Ors (2007) 5 SCC 719.
10
Vladimir Čolović, Lex Fori Concursus As The Basic Rule In The International Bankruptcy, 4 STRANI PRAVNI
ZIVOT, 86.

proceeding (dealing with concurrent claims of creditors: concursus) and which court is
(or has been) charged with hearing, conduct, and closure of the proceedings.11 It springs
from the doctrine of domicile, which accepts the integrity of the bankruptcy
proceedings as the basis of the insolvency proceedings. 12 It is often coupled with the
doctrine of ‘universalism’ which says to provide a single forum applying a single legal
regime to all aspects of a debtor’s affairs on a worldwide basis,13 i.e. the insolvency
proceedings should not only be limited to the nation where it started rather it should’ve
a trans-national binding.
15. In the present case, the lex fori concursus is the Insolvency and Bankruptcy Code, 2016.
Section 14,14 when read with the Section 238,15 of the Code gives an overriding effect
to insolvency proceedings and bars any other pending proceedings, including
arbitration against the debtor.
16. The Supreme court of India, in the case of K. S. Oils v. The State Trade Corporation of
India,16 ruled that any pending arbitration proceedings are frustrated while a
moratorium is in order. A judgment to the similar effect was delivered in the case of
Alchemist Asset Reconstruction Company Ltd v. Hotel Gaudavan Pvt. Ltd. & Ors.17
wherein the Apex Court expressed its concern for Arbitration proceedings being
conducted despite a moratorium in place and therefore dismissed the arbitral
proceedings.
17. The related principles of ‘lex fori concursus’ and ‘universalism’ dictate that the
insolvency proceedings underway in one state should determine its effects in other
states. The Arbitral proceeding, in concurrence with both the principles, are required to
be barred not only in the state of the RESPONDENT but also in foreign state.
18. In the present case, as per Order dated February 21, 2019, the National Company Law
Tribunal of Yevadu declared the RESPONDENT, a Corporate Debtor and imposed a
Moratorium period due to the initiation of Insolvency Proceedings against the
11
Bob Wessels, The Changing Landscape Of Cross-Border Insolvency In Europe, JURIDICA INTERNATIONAL (Jan.
27, 2020, 11:17 PM), https://www.juridicainternational.eu/the-changing-landscape-of-cross-border-insolvency-
law-in-europe.
12
Vladimir Čolović, Lex Fori Concursus As The Basic Rule In The International Bankruptcy, 4 STRANI PRAVNI
ZIVOT, 86.
13
Michael Crystal, The Golden Thread’: Universalism And Assistance In International Insolvency, JERSEY LEGAL
INFORMATION BOARD (Jan. 29, 2020, 3:03 PM),
https://www.jerseylaw.je/publications/jglr/Pages/JLR1102_Crystal.aspx.
14
The Insolvency and Bankruptcy Code, 2016, Section 14.
15
The Insolvency and Bankruptcy Code, 2016, Section 238.
16
K. S. Oils v. The State Trade Corporation of India, 2018 SCC OnLine NCLAT 352.
17
Alchemist Asset Reconstruction Company Ltd v. Hotel Gaudavan Pvt. Ltd. & Ors., 2017 SCC OnLine SC 1362.

RESPONDENT which, prohibits the institution of suits or continuation of pending suits or
proceedings against the RESPONDENT including in any Tribunal or arbitral panel.
19. Hence, the Tribunal does not have jurisdiction to hear the present case in lieu of the
Moratorium period imposed.
B. BENEFIT OF CREDITORS LIES IN SUSPENSION OF ARBITRAL PROCEEDINGS.
20. It is humbly submitted to the Tribunal that, the initiation of arbitration proceeding
against the RESPONDENT will hamper the interest of the RESPONDENT’S creditors. Many
US commentators argues that the sole objective of insolvency proceedings is to
maximise the collective return to creditors. Therefore, all insolvency policies of a state
are formulated to ensure wealth maximisation of creditors.18 Similarly, the objective of
applying a moratorium is to create a calm period for negotiations.19 The Supreme Court
20
of India in the case of Innoventive Industries Ltd v. ICICI Bank Ltd stated that the
objective to apply moratorium is to provide a breathing spell to the debtor where he is
to seek to reorganize his business. In addition, the declaration of moratorium during the
continuation of insolvency preserves the assets of the company from downfall.21
21. In the present case, the Insolvency proceeding going on against the RESPONDENT bars
the arbitral proceeding before this Tribunal. The RESPONDENT thus contends before the
tribunal that a continuation of arbitral proceedings and imposition of arbitral fees on
the RESPONDENT would lead to further detriment in its financial condition, and affect
the value of its assets thereby hampering the collective return of creditors.
22. Hence, the RESPONDENT humbly pleads before the honourable tribunal for a suspension
of arbitral proceedings until the insolvency resolution process concludes.
C. THE JURISDICTION OF THE TRIBUNAL IS BARRED AS IT CANNOT RENDER AN
ENFORCEABLE AWARD PURSUANT TO ARTICLE V (1) (A) OF NEW YORK
CONVENTION.
23. It is humbly submitted before the tribunal that the essential factor of arbitration is to
render an enforceable award.22 It is also the duty and power of an arbitral tribunal to
render an enforceable award that distinguishes arbitration from any other kind of
18
Vanessa Finch, The Measures of Insolvency Law, 17(2) OXF. J. LEG. STUD. (1977).
19
Prabhakar Yadav, Conundrum Surrounding Applicability Of Moratorium Under IBC To Attachment
Proceedings Under PMLA, INDIA LAW JOURNAL (Jan. 27, 2020, 10:26 PM),
https://www.indialawjournal.org/applicability-of-moratorium.php.
20
Innoventive Industries Ltd v. ICICI Bank Ltd, 2010 (1) SCC 407.
21
Prabhakar Yadav, Conundrum Surrounding Applicability Of Moratorium Under IBC To Attachment
Proceedings Under PMLA, INDIA LAW JOURNAL (Jan. 27, 2020, 10:26 PM),
https://www.indialawjournal.org/applicability-of-moratorium.php.
22
JULIAN D. M. LEW et al., COMPARATIVE INTERNATIONAL COMMERCIAL ARBITRATION 273 (1st ed. 2003).

alternate dispute of resolution.23 The respondent contends that pursuant to the Article
V (1) (a) of the New York convention, the award, if invoked against the respondent,
will not be enforceable in Yevadu and this would defy the purpose of an arbitral
tribunal.
24. Article V(1) (a) of the New York convention elucidates that the enforcement of an
award can be refused when the party against whom it is invoked is able to proof that it
is under some legal incapacity or restriction prohibiting it from entering into any legal
and biding relationship, including arbitration, under the law governing its personal
capacity.24
25. The moratorium imposed under Yevadu insolvency law, governing the personal
capacity of the RESPONDENT, expressly prohibits the continuance of arbitral
proceedings.25
26. The respondent thus submits that owing to a legal incapacity imposed by the
moratorium, the arbitral award, if invoked against the respondent, will not be
enforceable in Yevadu. The unenforceability of arbitral award would defy the purpose
and duty of the arbitral tribunal and thus the respondent pleads before the arbitral
tribunal to suspend arbitral proceedings.
27. It is further requested to the tribunal to pass an order of injunction barring the arbitral
proceedings under Article 17 of UNCITRAL Model Law to provide some respite to
enable the respondent to comply with insolvency proceedings.

FOR PURSUING THESE ARBITRATION PROCEEDINGS AND THE TRIBUNAL SHOULD
ORDER SECURITY FOR LEGAL COSTS.
28. It is humbly submitted before the Tribunal, that, it has been identified, by the
RESPONDENT that the CLAIMANT is involved in Third Party Funding for this arbitration
proceeding. According a report by Global Arbitration News,26 it is found out that the
CLAIMANT is being funded by a London based arbitration funder Viability Finance
which has entered into a long term agreement with Freshgrounds Lockhardt Bordinger
23
NIGEL BLACKBAY, et al., REDFERN & HUNTER: LAW AND PRACTICE OF INTERNATIONAL COMMERCIAL
ARBITRATION 18 (6th ed. 2015).
24
Emanuel Gaillard & George Bermann, New York Convention Guide, NEW YORK CONVENTION GUIDE (Jan. 31,
2020, 8:47 PM)
http://newyorkconvention1958.org/index.php?lvl=cmspage&pageid=10&menu=729&opac_view=-1.
25
K. S. Oils v. The State Trade Corporation of India (2018 SCC OnLine NCLAT 352); Alchemist Asset
Reconstruction Company Ltd v. Hotel Gaudavan Pvt. Ltd. & Ors. (2017 SCC OnLine SC 1362).
26
Resp. Ex. R3.

LLP. It is further contended by the RESPONDENT that, this Funder is going to fund the
current clients of Freshgrounds in international arbitration around the world.
29. The RESPONDENT contends that first, [A] The Tribunal must order the CLAIMANT to
disclose its source of funding pursuant to Rule 27(c); and second, [B] The Tribunal has
the power to order security of legal costs pursuant to Rule 27(j).
A. THE TRIBUNAL MUST ORDER THE CLAIMANT TO DISCLOSE ITS SOURCE OF
FUNDING PURSUANT TO RULE 27(C).
30. It is humbly submitted before this Honourable Tribunal, that the disclosure of any third
party funding in international arbitration is considered to be necessary by many
scholars. An outside influence on the case, affects the decision-making process and
impacts issues such as transparency, impartiality, independence, confidentiality and
conflicts of interest. The CLAIMANT, in the present case, is being funded by a third party
Viability Finance Ltd. which has assumed the legal costs of pursuing the Claims before
this Tribunal. The third party funding should be disclosed to identify and prevent the
conflict of interest, confidentiality, independence and impartiality that might affect the
current Arbitral proceedings.
31. The presence of a third party funder may hamper the confidentiality of the arbitration,
which an arbitrator is duty bound to follow.27 The issue of confidentiality in respect of
the third party funding is covered in the recently amended IBA Guidelines on Conflicts
of Interest in International Arbitration, which view third party funder as bearing the
identity of the claimant and, consequently, require disclosure of the funder’s identity to
the arbitral Tribunal and other parties to the proceedings.28 Disclosure of Third-party
funding is necessary in avoiding conflicts of interest is in the best interest of all parties
and arbitrators, and is important for the legitimacy of international arbitration and the
assured enforceability of arbitral awards.29
32. The Rule 13.4 of SIAC, states that, “A nominated arbitrator shall disclose to the parties
and to the Registrar any circumstances that may give rise to the justifiable doubt as to
his impartiality or independence as soon as reasonably practicable and in any event
27
Arbitration Rules of the Singapore International Arbitration Centre SIAC Rules, 2016, Rule 39.1.
28
The IBA Guidelines on Conflict of Interest in International Arbitration, 2014 (Jan. 17, 2010, 5:30 PM),
https://www.ibanet.org/Publications/publications_IBA_guides_and_free_materials.aspx#Practice%20Rules%20
and%20Guidelines.
29
The Report of the ICCA-Queen Mary Task Force On Third-Party Funding In International Arbitration, 83, (31
Oct. 2017), https://www.arbitration-
icca.org/media/10/40280243154551/icca_reports_4_tpf_final_for_print_5_april.pdf.

before his appointment.” 30 The arbitrator also has to disclose this information to the
other arbitrators and to the Registrar immediately.31
33. A good number of arbitration Tribunals have recognised the importance of disclosure
of third party funding. The Tribunal in Muhammet Cap & Sehil Insaat Endustri ve
Ticaret Ltd. Sti. v. Turkmenistan,32 ordered the Claimant to disclose the source of its
funding and the identity of its funder. The Tribunal’s order followed an application by
the RESPONDENTs for disclosure of the funding status on the basis that an application
for security for costs could be made in the proceedings in the future.
34. In EuroGas Inc. and Belmont Resources Inc. v. Slovak Republic,33 the Tribunal ordered
the Claimant to disclose the identity of its funder. In the case of South American Silver
v. Bolivia, the Tribunal awarded ordering the Claimant to provide to the Tribunal the
names of the third parties that have provided financing to the Claimant in these
arbitration proceedings.34
35. The CLAIMANT does not have the means to pursue a meritorious claim and that is why
it opted for a third party funding, even if the CLAIMANT has opted for third party funding
to lay off some risk associated with the costly arbitral proceeding. The act of opting for
third party funding by the Claimant is against the interest of the RESPONDENT, also this
act is a challenge against the conduct of Arbitrator when he is presiding this proceedings
in terms of conflict of interest between the arbitrator and the third party, independence
& impartiality. Due to this, the third party funder may take undue control and influence
the Arbitration.
36. It is further submitted that, the Tribunal, has power to order for disclosure of third party
funding. SIAC practice note in cases involving external funding specifically mentions
the disclosure of external funder i.e. third party to the dispute.35 It says,
“Unless otherwise agreed by the Disputant Parties, the Tribunal shall have
the power to conduct such enquiries as may appear to the Tribunal to be
30
31
32
Muhammet Cap & Sehil Insaat Endustri ve Ticaret Ltd. Sti. v. Turkmenistan, ICSID Case No. ARB/12/6,
Procedural Order No. 3 of June 12, 2015.
33
EuroGas Inc. and Belmont Resources Inc. v. Slovak Republic, ICSID Case No. ARB/14/14; RSM v. Saint Lucia,
ICSID Case No. ARB/12/10.
34
South American Silver v. Bolivia, PCA Case No. 2013-15, Award of November 22, 2018, 8 at ¶ 43; Procedural
Order No. 10 of January 11, 2016.
35
SIAC Practice Note on Administered Cases On Arbitrator Conduct In Cases Involving External Funding, PN-
01/17 (31 March 2017), Practice Note No. 3(c) read with 3(a),
http://www.siac.org.sg/images/stories/articles/rules/Third%20Party%20Funding%20Practice%20Note%2031%2
0March%202017.pdf.

necessary or expedient, which shall include ordering the disclosure of the
existence of any funding relationship with an External Funder and/or the
identity of the External Funder and, where appropriate, details of the External
Funder’s interest in the outcome of the proceedings, and/or whether or not the
External Funder has committed to undertake adverse costs liability.”36
The Tribunal as per Rule 27(c)37 also has the power to- “conduct such enquiries as may
appear to the Tribunal to be necessary or expedient.”
37. In the present case, the CLAIMANT is being funded by a third party Viability Finance
Ltd. which has assumed the legal costs of pursuing the claims before this Tribunal. The
CLAIMANT is lacking financial resources and is unable to complete its contractual
obligation. The CLAIMANT in this arbitration came with a wrong claim, which will be
futile and since the claim is not meritorious, the CLAIMANT has opted for the third party
funding. The CLAIMANT’S involvement in sourcing funds from the third party Viability
Finance Ltd. in this arbitration proceedings, has to be disclosed by the order of the
Tribunal to preserve the overall integrity of the arbitration proceeding.
B. THE TRIBUNAL HAS THE POWER TO ORDER SECURITY OF LEGAL COSTS PURSUANT
TO RULE 27(J).
38. It is humbly submitted that, the Tribunal has the power to order security of legal cost
pursuant to Rule 27(j). An order for security for costs is an order by a Tribunal that
orders a party bringing a claim or a counterclaim to provide security for the costs of the
other party in case the claim or counterclaim fails and the claiming party does not pay
the costs awarded against it.
39. The existence of any third party to the arbitration agreement in the application of
security for legal cost, implies that the funded party is impecunious and have only few
assets. It is contended by the RESPONDENT that the CLAIMANT is short of assets, as
contended by the CLAIMANT38 continuously emphasised on commercial difficulties.
Due to this reason, there exists a third party funding of the CLAIMANT with Viability
Finance Ltd. in this arbitration proceeding.39
40. According to Rule 27(j)40, the “Tribunal shall have the power to- order any party to
provide security for legal or other costs in any manner the Tribunal thinks fit.” SIAC
36
Ibid. Practice Note No. 5.
37
Arbitration Rules of the Singapore International Arbitration Centre SIAC Rules, 2016, Rule 27(c).
38
See Notice to Arbitration, 9 at ¶16; Cl. Ex. 11; Cl. Ex. 15; Cl. Ex. 16.
39
Resp. Ex. R3.
40
Arbitration Rules of the Singapore International Arbitration Centre SIAC Rules, 2016, Rule 27(j).

practice note in cases involving External Funding empowers the Tribunal to take into
account the existence of any External Funder41 in apportioning the costs of the
Arbitration.42
41. In the case of S&T Oil Equipment & Machinery Ltd v. Romania,43 the Claimant relying
on the third party demonstrated Claimant’s inability to pay for order of costs, since the
order of cost cannot be enforced against the third party funder who is not a party to the
arbitration. Similar view has been adopted by the ISCID Tribunal in the Case of RSM
v. St Lucia.44
42. In the present case, the RESPONDENT’S claim has merits as the CLAIMANT has breached
the Agreement as per Art. 25 of CISG. The CLAIMANT failure to perform its obligation
was fundamental in nature. It is further to be noted that, the CLAIMANT, as claimed by
them, is incapable to complete its contractual obligation and suffering from losses,
shows that the CLAIMANT does not have money to bear the cost of the arbitration. The
CLAIMANT’S assets are unavailable as such to enforce the arbitral award and thus, show
its inability to satisfy an adverse costs award. There is sufficient evidence that the
CLAIMANT will not be able to pay costs.
43. Thus, the RESPONDENT requests the Tribunal to order for Security Cost as per Rule 27(j)
of SIAC to protect the interest of the RESPONDENT against the cost, which might be
ordered against it.
IV. THE MINISTRY OF POWER, GOVERNMENT OF YEVADU SHALL NOT BE JOINED AS A

PARTY TO THE PRESENT ARBITRAL PROCEEDINGS.
44. It is humbly submitted that, the CLAIMANT have filed a Joinder Application under Rule
7 of SIAC45 to join the RESPONDENT with the Ministry of Power, Government of
Yevadu. The Tribunal has to only establish Prima Facie that third party is bound by the
agreement but it is argued that the rule cannot force a joinder under present
circumstances. The Ministry of Power cannot be joined in the arbitration proceedings
going on between CLAIMANT and RESPONDENT as there is no express or implied consent
41
SIAC Practice Note on Administered Cases On Arbitrator Conduct In Cases Involving External Funding, PN-
01/17 (31 March 2017), Practice Note No. 3(c) read with 3(a),
http://www.siac.org.sg/images/stories/articles/rules/Third%20Party%20Funding%20Practice%20Note%2031%2
0March%202017.pdf.
42
Ibid. Practice Note No. 10 and 11.
43
S&T Oil Equipment & Machinery Ltd v. Romania, ICSID Case No. ARB/07/13.
44
RSM v. St Lucia, ICSID Case No. ARB/12/10.
45
Arbitration Rules of the Singapore International Arbitration Centre SIAC Rules, 2016, Rule 7.

of Ministry of Power to arbitrate in the current proceedings. Also, since a party can only
be bound to a contract that they are privy to, which includes arbitration agreements.
45. The RESPONDENT contends that the Ministry of Power, Government of Yevadu cannot
be joined as a party to the present arbitral proceedings as first, [A] there is no express
or implied consent between CLAIMANT and Ministry of Power, Government of Yevadu;
second, [B] the joinder is not possible as there is no Privity of Contract between
CLAIMANT and Ministry of Power; and third, [C] ownership of the RESPONDENT’s
company by the state does not imply for joinder between Ministry of Power, Yevadu
and the RESPONDENT..
A. THERE IS NO EXPRESS OR IMPLIED CONSENT BETWEEN CLAIMANT AND MINISTRY
OF POWER OF GOVERNMENT OF YEVADU.
46. The cornerstone of an arbitration agreement is that the consent should be unequivocal
and parties in arbitration should consent to the arbitration clause in the agreement.
Although the SIAC rules allow a joinder of third party into the arbitration proceeding,
it allows on the condition that all the parties are consenting to it.46 In the case of PT
First Media TBK v. Astro Nusantara International BV, the court said “On the Joinder
Application, the Tribunal firstly held that …, it did indeed have the power to join the
6th to 8th RESPONDENT as long as they consented to being joined.”47 Therefore, for the
joinder to occur both parties and the party that is to be joined should provide clear
consent.
47. Further it is submitted that the Art. II(2) of New York Convention requires the
arbitration agreement to be in writing to ensure that third parties are not bound to an
arbitration agreement that they did not consent to48, this is also told by the ICC in an
arbitration award that “it is not at all certain that if the non-signatory had signed itself
the contract..., it would have accepted the arbitration clause”.49
48. Since consent is so vital to the arbitration agreement, and there is neither an express nor
implied consent from the Ministry of Power as it is not a signatory to the arbitration
agreement (neither name nor signature of Ministry of Power is present in the
agreement).50 Also the conduct of Ministry does not imply that it was a part of
agreement and through that a part of arbitration agreement, whereas the seeking of
46
Ibid.
47
PT First Media TBK v. Astro Nusantara International BV,[2013] SCGA 57.
48
United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards, 1958, 21 U.S.T.
2518, 330 U.N.T.S. 3.
49
ICC award no. 2138 (1974).
50
Cl. Ex.C1& C2.

permission from the Ministry was a mere procedural aspect which it had follow and
had no effect on the autonomy of its decisions.
49. Further, the approval was taken not only from the Ministry but also from the high-level
management of the Company including the Board of Directors signifying that the
Ministry had no control over the decisions of the Company.51 For the Joinder to occur
both the signatory parties and the non-signatory third party should consent which is
clearly absent as the RESPONDENT has expressly projected its wish that the Joinder
should not take place.52
50. Therefore it is humbly submitted that the Joinder of Ministry with the RESPONDENT not
be allowed as there is no consent of the Ministry in the arbitration agreement nor the
RESPONDENT have consented to the Ministry being joined with the RESPONDENT in the
arbitration proceeding.
B. THE JOINDER IS NOT POSSIBLE AS THERE IS NO PRIVITY OF CONTRACT BETWEEN
CLAIMANT AND MINISTRY OF POWER.
51. For a party to be made bound to the contractual obligations it must be privy to the
contract and thus the privity of contract has to be established. The parties must either
be a signatory or show intent to be a party to the contract to establish privity. The U.S.
Supreme Court in a case said “arbitration is a matter of contract and a party cannot be
required to submit to arbitration any dispute which he has not agreed so to submit.”53
It is submitted that if the Joinder takes place it would breach privity of contract which
is a core rule of law of contracts and further by breaching privity of contract it would
ignore consent which is essential in arbitration agreement.
52. The Ministry in the present case is in no way a part of the contract as it has no
contractual obligation nor provided or received consideration for its acts. To the
contrary the Ministry has distanced itself from the contract and arbitration agreement
by the way of RESPONDENT’s Company, This is seen in the case of Dallah v. Pakistan54
where the English Courts held that the government could not be seen as signatory to
the agreement just because it had formed the entity that entered into the agreement
instead the creation of the entity was seen as the way of government distancing itself as
it was not the intention of the parties that all three entities including the government be
a part of the agreement.
51
Cl. Ex.C4.
52
See Opposition to the Request for Joinder of Parties.
53
United Steelworkers of America v. Warrior & Gulf Navigation Co., 363 U.S. 574 (1960).
54
Dallah v Pakistan [2009] 1 All ER (Comm) 505.

53. Therefore, since there is no privity of contract between the Ministry of Power and the
RESPONDENTS and if they are joined the privity of contract would be breached the
joinder is not possible.
C. OWNERSHIP OF THE RESPONDENT’S COMPANY BY THE STATE DOES NOT IMPLY
FOR JOINDER BETWEEN MINISTRY OF POWER, YEVADU AND THE RESPONDENT.
54. A Company by its very nature is a separate legal entity capable of suing and being sued,
thus it should be treated as such independent of whoever owns it, and any agreements
and obligations that such company is creating is only for itself and not for its owners
even if the owner is state itself. Thus an entity which was created to further the goals
of the government does not mean that the government will be responsible for it, the
entity cannot be considered as part of government or offshoot of government for some
purposes and a separate entity for others i.e. it cannot have a hybrid status.55
55. The U.S. Supreme Court in First National City Bank v Banco para el Comercio
Exterior de Cuba,56 stated that Corporates formed by the government to perform
governmental functions should remain a separate entity and the corporate veil should
not be pierced so easily, further the Court also stated that freely ignoring the separate
status of State owned companies would result in substantial uncertainty over whether a
state’s assets would be diverted to satisfy a claim against the sovereign, and might
thereby cause third parties to hesitate before extending credit to a State owned
company.
56. In the present case, although the RESPONDENT’S company is wholly owned by the State,
it maintains its separate judicial identity under its national laws and thus any claims of
joinder under the contention that RESPONDENT and the Ministry of Power are a single
entity does not exist as both the RESPONDENT and Ministry of Power are clearly two
separate entities and RESPONDENT is not under full control of the Ministry.
57. Hence the Ministry of Power, Government of Yevadu cannot be joined as a party to
this arbitral proceeding.
V. THE CLAIMANT’S CONDUCT BREACHED THE AGREEMENT AND THE RESPONDENT

WAS JUSTIFIED IN TERMINATING THE AGREEMENT.
58. It is humbly submitted before this Tribunal that this is a valid termination of agreement
as first, [A] the RESPONDENT has not violated the terms of the Agreement; second, [B]
55
FG Hemisphere Assocs LLC v La Générale des Carrières et des Mines SARL, [2012] UKPC 27.
56
First National City Bank v Banco para el Comercio Exterior de Cuba 462 U.S. 611.

the CLAIMANT is in fundamental breach of the agreement and cannot invoke Art. 79 to
exempt the breach; third, [C] The RESPONDENT has validly exercised its right to
terminate the agreement under Clause 9.0.
A. THE RESPONDENT HAS NOT VIOLATED THE TERMS OF THE AGREEMENT.
59. The CLAIMANT contends that the RESPONDENT has not fulfilled its obligation as per the
Agreement by not issuing purchase order for the last quarter. Contrary to the
CLAIMANT’S contention, The RESPONDENT denies all claims of non-performance of the
obligations by the RESPONDENT under the agreement.
60. As per Art. 61,57 in case the buyer fails to perform any of his obligations, the seller may
exercise its right for breach of contract. In the present case, the failure to issue purchase
list by the RESPONDENT does not amount to breach in accordance with Art. 61. Thus,
provisions from Art. 62 - 6558 will not apply.
61. As per the terms of the agreement, the RESPONDENT was supposed to assist the
CLAIMANT in their annual inspection of the Plant and aid them in finalizing the
Requisition List on that basis. The RESPONDENT was required to issue a purchase order
based on this annual inspection and requisition list, 15 days prior to the end of every
quarter. The non-issuance of the purchase order for the supply of parts for the last
quarter is not in violation of the terms of agreement. In fact, the RESPONDENT has
repeatedly directed the CLAIMANT to make all deliveries as per the Requisition List for
the Year 2018. Earlier also, the RESPONDENT had not issued the purchase orders.
Besides this, the CLAIMANT made the delivery of goods and the RESPONDENT
acknowledged the deliveries. Thus, the requirement of issuing a formal purchase order
was mere procedural requirement that have been modified by the practice of the parties.
Therefore the RESPONDENT has not breached the Agreement.
B. THE CLAIMANT IS IN FUNDAMENTAL BREACH OF THE AGREEMENT AND CANNOT
INVOKE ARTICLE 79 TO EXEMPT THE BREACH.
62. The RESPONDENT contends that price fluctuation, as contended by the CLAIMANT, is a
part of long term contracts like ours and could have been reasonably foreseen at the
time of conclusion of the contract. The time for reasonable foreseeability as per Art.
57
The United Nations Convention on Contracts for the International Sale of Goods, 1980, Art. 61.
58
The United Nations Convention on Contracts for the International Sale of Goods, 1980, Art. 62-65.

25,59 to constitute a fundamental breach, is considered to be at the time of conclusion
of the contract.60
63. Contrary to the CLAIMANT’S contention, the RESPONDENT contends that any change in
price due to the change in policies or market fluctuations, is foreseeable and has to be
considered while negotiating the price of contract. The party is deemed to assume the
risk of market fluctuations and other cost factors affecting the financial consequences
of the contract.61 Price fluctuations are foreseeable aspects of international trade and
the losses they produce are part of the ‘normal risk of commercial activities’.62
64. It is further humbly submitted before this Tribunal that, for invoking Art. 79(1) 63, a
prerequisite is that the party’s failure to perform its part of obligation be due to an
‘Impediment’. The definition of an ‘Impediment’ under the requirements of CISG is
any act, which is ‘beyond the control of the party’, that the party ‘could not reasonably
be expected to have taken into account at the time of conclusion of contract’.64
65. The CLAIMANT contends that the delay and failure to deliver parts and equipment was
because of impediment of price rise in cost of production of CLAIMANT, which was not
foreseeable by them at the time of concluding the contract. Some scholarly opinions
suggest that there is no place for any relief on account of economic hardship in CISG.65
The scope of Art. 79 do not include a claim of avoidance or adjustment of contract by
any party whenever they face unexpected ‘excessive damages’.66
66. In the present case, the CLAIMANT requests to renegotiate the contract on account of
increased manufacturing cost due to government change of policies. Contrary to this
59
60
Landgericht Oldenburg, 27 March 1996, 12 O 2541/95. See University of Freiburg Database, http://www.cisg-
online.ch/cisg/urteile/188.htm; Robert Koch, ‘The Concept of Fundamental Breach of Contract under the United
Nations Convention on Contracts for the International Sale of Goods (CISG)’, in: Review of the Convention on
Contracts for the International Sale of Goods (CISG) 1998 (1999) 177, 236.
61
Bulgarian Chamber of Commerce and Industry, Bulgaria, 12 February 1998, Unilex; CLOUT case No. 102
[Arbitration Court of the International Chamber of Commerce, 1989 (Arbitral award No. 6281)]; CLOUT case
No. 277 [Oberlandesgericht Hamburg, Germany, 28 February 1997]; CLOUT case No. 166 [Schiedsgericht der
Handelskammer Hamburg, Germany, 21 March, 21 June 1996].
62
Rechtbank van Koophandel Hasselt, Belgium, 2 May 1995.
63
The United Nations Convention on Contracts for the International Sale of Goods, 1980, Art. 79 (1).
64
CISG Digest 2016 para 10 p.375; CLOUT case No. 140 [Tribunal of International Commercial Arbitration at
the Russian Federation Chamber of Commerce and Industry, Russian Federation 16 March 1995 (Arbitral award
No. 155/1994)].
65
See, e.g., Barry Nicholas, who observed that exemption of liability on account of unexpected and excessive
economic hardship was “out of place” in a sales law. Progress Report of the Working Group on the International
Sale of Goods on the Work of its Fifth Session (A/CN.9/87, Annexure III, reprinted in UNCITRAL YEARBOOK
V:1974 (1975) at 66.
66
Report Of Committee Of The Whole I Relating To The Draft Convention On The International Sale Of Goods
(A/32/17, Annex I, Paras. 458-60), Reprinted In UNCITRAL Yearbook VIII: 1977 (1978), 57; CISG Advisory
Council Opinion No. 7, Available at http://www.cisgac.com/cisgac-opinion-no7-p2/#fn.

claim, the RESPONDENT contends that it is a well-established fact of international trade
that at the time of concluding a contract, all the factors like market fluctuations, future
expectations, change of government policies and competition etc. have to be taken into
consideration and then only the price of the Goods to be supplied in the contract is
settled. The agreement with the CLAIMANT was a well-intended agreement after taking
into consideration all these factors. There is no doubt in the fact that these change in
circumstances, as claimed by the CLAIMANT, was foreseeable at the time of concluding
the contract.
67. It is further to be noted that, the rise of manufacturing cost is not an impediment ‘beyond
its control’. The CLAIMANT by its act has proven so. In one of the case, the arbitral
tribunal held that, the seller’s performance was not beyond its control, when the seller
has performed some of the obligation even in the case of subsequent unforeseeable
events.67 The Court in a case did not exempt the Impediment under Art.79 of CISG
stating that ‘The rise of price of tomatoes due to monsoon is an impediment which can
be overcome by the seller.’68 Circumstances which can be reasonably avoided, cannot
be considered as Impediment as per Art 79.69
68. In the present case, the CLAIMANT took excuse of unforeseeable circumstances70 of
increase in cost of manufacturing because of the tariffs imposed on the procurement of
raw materials was an impediment which is in the control of the CLAIMANT. The
CLAIMANT, even after its unviability to perform the contractual obligation, performed
the delivery of 3rd Quarterly instalment, though after the stipulated time. The
CLAIMANT’S delivery of parts even after such circumstances cannot be considered an
Impediment beyond the control of the CLAIMANT. The commercial difficulties faced by
the CLAIMANT was of such a nature that can be worked upon in order to make the
deliveries of the Parts. Thus, the unforeseeable circumstances as claimed by the
CLAIMANT were not ‘beyond the control’ of the CLAIMANT.
69. Therefore, as the language of Art. 79 suggests a failure to perform its obligation is ‘due
to an impediment’ which is the impediment that is ‘beyond its control’ and that the
party ‘could not reasonably be expected to have taken into account at the time of the
67
CLOUT case No. 166 [Schiedsgericht der Handelskammer Hamburg, Germany, 21 March, 21 June 1996].
68
Oberlandesgericht Hamburg, Germany, 4 July 1997, Unilex.
69
CLOUT case No. 271 [Bundesgerichtshof, Germany, 24 March 1999]; CLOUT case No. 272
[Oberlandesgericht Zweibrücken, Germany, 31 March 1998]; The Bundesgerichtsh of (CLOUT case No. 271)
generalized that a supplier’s breach is normally something that, for purposes of article 79, the seller must avoid
or overcome; CLOUT case No. 140 [Tribunal of International Commercial Arbitration at the Russian Federation
Chamber of Commerce and Industry, Russian Federation, 16 March 1995 (Arbitral award No. 155/1994)].
70
Cl. Ex. 11, p.23.

conclusion of the contract’ stands unjustified. Therefore, the CLAIMANT’S failure to
perform its part of obligation is a fundamental breach of agreement and cannot be
justified by invoking Art. 79.
70. Hence, the CLAIMANT should be liable to pay damages to the RESPONDENT for non-
fulfilment of its obligation.
C. THE RESPONDENT HAS VALIDLY EXERCISED ITS RIGHT TO TERMINATE THE
AGREEMENT UNDER CLAUSE 9.0.
71. It is most humbly submitted to this Tribunal, that the RESPONDENT is justified in
terminating the Agreement as per Clause 9.0 of the agreement which states two
conditions i.e. the agreement can be terminated in an event of material breach and it
should be terminated with a notice 15 days prior to such termination. 71 Both of the
conditions have been fulfilled in the present case.
72. It is contended by the RESPONDENT that, the CLAIMANT failed to fulfil its obligation
under the Agreement. Art. 33 of CISG, imposes an obligation on the seller to deliver
the goods on the date as fixed by or determinable by the contract.72 As per the
Agreement,73 the CLAIMANT has to supply the parts on/before the 31st of each Quarterly
Ending i.e., 31st Mar, 30th June, 30th September, and 31st December. The CLAIMANT
failed to supply 3rd and 4th Quarterly instalment of the year 2018 within given time.
Therefore, the CLAIMANT is in breach of Agreement.
73. It is further contended that, Clause 9.0 of the Agreement also requires the party
terminating the contract, to give notice 15 days prior to such termination. Art. 8 of CISG
makes it clear that the statements made by the party and other conduct of the party are
to be interpreted according to its intent.74 If the intent is not clear than the statements
and the conduct of the parties are to be interpreted by a reasonable person.75
74. Where the subjective intent of a party as to a particular point of fact is not manifested
in some fashion,76one must resort to Art. 8(2) to interpret the statement.77 Under this
clause, statements of a party are to be interpreted according to the understanding that a
71
Parts Supply Agreement, Clause 9.0.
72
73
Part supply Agreement, Clause 3.0.
74
The United Nations Convention on Contracts for the International Sale of Goods, 1980, Art. 8(1).
75
The United Nations Convention on Contracts for the International Sale of Goods, 1980, Art. 8(2).
76
Cour de Justice de Genève May. 12, 2006, CISG-ONLINE NO. 1726 (Switz.) http://www.cisg-
online.ch/content/api/cisg/urteile/1726.pdf; U.S. District Court for the Southern District of New York Jan. 18,
2011, CISG-ONLINE NO. 2178 (U.S.), http://cisgw3.law.pace.edu/cases/110118u1.html.
77
Oberlandesgericht Frankfurt am Main Aug. 30, 2000, CISG-ONLINE NO. 594 (Ger.)
http://www.cisg.law.pace.edu/cisg/text/000830g1german.html; U.S. Court of Appeals (11th Circ.) Jun. 29, 1998,
CISG-ONLINE NO. 342 (U.S.) http://www.cisg-online.ch/content/api/cisg/urteile/342.

reasonable person of the same kind as the other party would have had in the same
circumstances.78 Therefore, the RESPONDENT’S email79 must also be interpreted under
Art. 8 by the standard of reasonable person.
75. The RESPONDENT had already informed the CLAIMANT of its intent to initiate action
under the Agreement in case of non-delivery of the 4th Quarterly Instalment.80 The
RESPONDENT in its notice of termination81 clearly states that the RESPONDENT has
complied with the minimum notice period required by the agreement. This indicates
that the RESPONDENT intended to give effect to Clause 9.0 of the Agreement. Therefore,
CLAIMANT was duly notified of the RESPONDENT’S intent to terminate the Agreement.
Hence, the RESPONDENT has complied with the notice requirement of Clause 9.0 of the
Agreement.
78
The United Nations Convention on Contracts for the International Sale of Goods, 1980, Art. 8; Bezirksgericht
St. Gallen, Präsidium Jul. 3, 1997, CISG-ONLINE NO. 336 (Switz.) http://www.cisg-
online.ch/content/api/cisg/urteile/336.pdf;
79
Cl. Ex. C17.
80
Ibid.
81
Cl. Ex. C18.

[Prayer]
PRAYER
In the light of all the submissions made, the RESPONDENT hereby respectfully requests the
Tribunal to ADJUDGE and DECLARE that:
1. The Tribunal does not have jurisdiction over the dispute due to non-validity of the
arbitration clause.
2. The Tribunal is devoid of jurisdiction over the dispute due to the order of NCLT.
3. The Ministry of Power, Govt. of Yevadu should not be joined as a party to the
proceedings.
4. The RESPONDENT has not wrongfully avoided the Agreement.
5. The CLAIMANT’S conduct resulted in a fundamental breach of the Agreement.
And ORDER the CLAIMANT to:

1. Furnish security for legal costs for RESPONDENT to defend himself in the arbitration.
ALL OF WHICH IS RESPECTFULLY SUBMITTED
Sd/
(Counsels on behalf of the RESPONDENT)
Memorial on Behalf of The RESPONDENT Page | XV

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IN THE MATTER OF AN ARBITRATION BETWEEN

Arcebor Power Private Limited CLAIMANT

Renvidora National Power Company Limited RESPONDENT

MEMORIAL ON BEHALF OF THE RESPONDENT

TABLE OF CONTENTS ........................................................................................................ I

Memorial on Behalf of The RESPONDENT Page | I

Memorial on Behalf of The RESPONDENT Page | II

ABBREVIATIONS FULL FORM

Memorial on Behalf of The RESPONDENT Page | III

Memorial on Behalf of The RESPONDENT Page | IV

ARBITRAL INSTITUTION RULES

Memorial on Behalf of The RESPONDENT Page | V

Memorial on Behalf of The RESPONDENT Page | VI

Memorial on Behalf of The RESPONDENT Page | VII

Memorial on Behalf of The RESPONDENT Page | VIII

Memorial on Behalf of The RESPONDENT Page | IX

Memorial on Behalf of The RESPONDENT Page | X

Memorial on Behalf of The RESPONDENT Page | XI

WHETHER THERE IS A VALID AGREEMENT IN EXISTENCE BETWEEN THE PARTIES WHICH

WHETHER THE INSOLVENCY PROCEEDINGS UNDERWAY AGAINST THE RESPONDENT IN

WHETHER THE CLAIMANT IS UNDER AN OBLIGATION TO DISCLOSE ITS SOURCE OF

WHETHER THE MINISTRY OF POWER, GOVERNMENT OF YEVADU MAY BE JOINED AS A

Memorial on Behalf of The RESPONDENT Page | XII

I. THERE IS NO VALID AGREEMENT IN EXISTENCE BETWEEN THE PARTIES WHICH

II. THE INSOLVENCY PROCEEDINGS UNDERWAY AGAINST THE RESPONDENT IN

III. THE CLAIMANT IS UNDER AN OBLIGATION TO DISCLOSE ITS SOURCE OF FUNDING

IV. THE MINISTRY OF POWER, GOVERNMENT OF YEVADU CANNOT BE JOINED AS A

Memorial on Behalf of The RESPONDENT Page | XIII

V. THE CLAIMANT’S CONDUCT BREACHED THE AGREEMENT AND WHETHER THE

Memorial on Behalf of The RESPONDENT Page | XIV

I. THERE IS A NO VALID AGREEMENT IN EXISTENCE BETWEEN THE PARTIES WHICH

Memorial on Behalf of The RESPONDENT Page | 1

Memorial on Behalf of The RESPONDENT Page | 2

II. THE INSOLVENCY PROCEEDINGS UNDERWAY AGAINST THE RESPONDENT IN

Memorial on Behalf of The RESPONDENT Page | 3

Memorial on Behalf of The RESPONDENT Page | 4

Memorial on Behalf of The RESPONDENT Page | 5

III. THE CLAIMANT IS UNDER AN OBLIGATION TO DISCLOSE ITS SOURCE OF FUNDING

Memorial on Behalf of The RESPONDENT Page | 6

Memorial on Behalf of The RESPONDENT Page | 7

Memorial on Behalf of The RESPONDENT Page | 8

Memorial on Behalf of The RESPONDENT Page | 9

IV. THE MINISTRY OF POWER, GOVERNMENT OF YEVADU SHALL NOT BE JOINED AS A

Memorial on Behalf of The RESPONDENT Page | 10

Memorial on Behalf of The RESPONDENT Page | 11

Memorial on Behalf of The RESPONDENT Page | 12

V. THE CLAIMANT’S CONDUCT BREACHED THE AGREEMENT AND THE RESPONDENT

Memorial on Behalf of The RESPONDENT Page | 13

Memorial on Behalf of The RESPONDENT Page | 14

Memorial on Behalf of The RESPONDENT Page | 15

Memorial on Behalf of The RESPONDENT Page | 16

Memorial on Behalf of The RESPONDENT Page | 17

Memorial on Behalf of The RESPONDENT Page | 18

And ORDER the CLAIMANT to:

ALL OF WHICH IS RESPECTFULLY SUBMITTED

Memorial on Behalf of The RESPONDENT Page | XV

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