MOOT COURT

&
TRIAL ADVOCACY

MEMORANDUM FOR CLAIMANT

On Behalf of: Against:

Counsel for CLAIMANT

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 TABLE OF CONTENTS

SUMMARY OF FACTS……….……………………………………………………2-3

QUESTIONS PRESENTED…………………………………………………………...4

ARGUMENTS ADVANCED……………………………………………………….5-9
Issue 1…………………………………………………………………5-6
Issue 2…………………………………………………………………7-9

REQUEST FOR RELIEF……………………………………………………………10

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 SUMMARY OF FACTS

1. Lispenard & Co., The CLAIMANT, based out of Paris, France, and Benhaligon and
Partners., the RESPONDENT, based out of Bruge, Belgium, have been in the
international clothing market for over 20 years and have expanded significantly in the
South Asian market. They function out of India through their wholly owned entities.
2. The CLAIMANT wanted to expand its business in the South Asian market and
therefore, was interested in renting out a space in the newly constructed luxury mall in
Delhi.
3. Due to budget issues the CLAIMANT decided to request, Benhaligon and Partners.,
the RESPONDENT, to collaborate with the former and jointly apply for the
expansion project.  
4. Following numerous discussions, both parties agreed to enter into a joint venture
agreement (JVA). As per the agreement, the RESPONDENT would fund 85% of the
bid amount, and the CLAIMANT would take the lead on creating the vision for the
space as well as designing the presentation for the outlet. Furthermore, only 25% of
space would be available to the CLAIMANT.
5. The joint venture agreement (JVA) which was signed on January 15, 2023, contained
a Dispute Resolution and Arbitration clause 19.1 which stated that the arbitration was
to be administered by the Singapore International Arbitration Centre (SIAC) in
accordance with the arbitration rules of the SIAC. The place of the arbitration is
supposed to be Singapore and the venue is supposed to be Mumbai, India. The
applicable law governing the contract shall be Indian law.  The Tribunal shall consist
of 2 arbitrators, both of whom shall be nominated by the parties from within their ex-
employees each. If needed in the event of a deadlock, a third arbitrator may be
nominated by the parties to rehear the dispute and decide on the matter.
6. The JVA was cancelled 2 days before the auction on February 12, 2023, through a
handwritten letter. Given the last-minute cancellation, the RESPONDENT offered to
compensate through a nominal sum of Rs. 2,00,000/-. However, through this breach,
the CLAIMANT not only lost the outlet but a huge monetary amount as well.
7. Following this, the CLAIMANT on 1 March 2023, sent in the notice of arbitration
under the SIAC Rules.

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8. The SIAC constituted a tribunal of two arbitrators and provisionally appointed a third
arbitrator in the event a deadlock needed to be broken. This was done at the outset so
that there are no delays in the delivery of the award, in the event there is a deadlock.
The SIAC decided that the seat of arbitration shall be Singapore, as per the wording of
the agreement. approached the tribunal to settle the dispute through arbitration.

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 QUESTIONS PRESENTED

1. Whether the seat of arbitration be seated in Singapore or in Mumbai?

2. Whether in the event of opposition to procedural changes made by the SIAC to the
appointment procedure by the Respondent, the courts to which the matter be referred
to by the tribunal be Indian or Singaporean?

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 ARGUMENTS ADVANCED

1. Whether the seat of arbitration be seated in Singapore or in Mumbai?

The seat of arbitration is the legal jurisdiction that governs the arbitration proceedings and
determines the legal framework that applies to the arbitration. The said seat of arbitration is
determined by the parties in the arbitration agreement either directly or by the language of the
agreement and the same determines which laws govern the arbitration agreement, the conduct
of the arbitration, and any court proceedings related to the arbitration.

The Joint Venture Agreement under clause 19.1 stated that the arbitration was to be
administered by the Singapore International Arbitration Centre (SIAC) in accordance with
the arbitration rules of the SIAC. The place of the arbitration is supposed to be Singapore and
the venue is Mumbai. Therefore from the bare language of the agreement, it can be stated that
the seat of arbitration is intended to be Singapore. Furthermore, the same can be substantiated
with case law precedents.

The courts have taken into account the governing law of the arbitration agreement to
determine where the seat of arbitration will be in the scenario when the same is not clear
enough from the agreement itself.

The Shashou principle which had been laid out in Roger Shashoua and Ors. v. Mukesh
Sharma1 states that a ‘venue’ can be determined to be the juridical ‘seat’, however, this is
only the case when ‘venue’ is expressly stated without providing any alternative “seat”. There
shall be no “contrary indicia” or any contradictory combining of indications with the
arbitration being governed by a body of rules. However, it is pertinent to note that a “place”
is said to be Singapore which is in agreement with the clause that states the arbitration is to be
administered by the Singapore International Arbitration Centre (SIAC) in accordance with
the arbitration rules of the SIAC and thus, the venue will not be the seat of arbitration.

Further, the “Bright Line Test” that was prescribed by the Supreme Court in the case of BGS
SGS Soma JV v. NHPC Ltd.2 stated that in the context of international arbitration, the choice
1
[2009] EWHC 957 (Comm)
2
2019 SCC OnLine SC 1585

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of the body to rule the arbitration proceedings indicates the actual seat of arbitration. As has
been abovementioned, under clause 19.1, the arbitration is to be administered by the
Singapore International Arbitration Centre (SIAC) as per the SIAC Rules and thus due to the
fact that in the context of international arbitration, the choice of the body to rule the
arbitration proceedings is stated to be the SIAC and the same then enforces Singapore to be
the actual seat of arbitration; Thereby satisfying the ingredient of the Bright Line Test.

In the case of  Mankastu Impex Pvt. Ltd. v. Airvisual Ltd. 3 it was stated that in the situation
where solely “place of arbitration” could not imply the intent of the parties to designate the
said place as the seat, the intention for the same had to be determined from other clauses in
the agreement. The Supreme Court held that in this case the “place of arbitration” did not
automatically imply Hong Kong to be the seat of arbitration, however, since the agreement
entailed a clause which stated that the arbitration was to be administered by Hong Kong, the
same would be the seat of arbitration.

Therefore, since the arbitration agreement designates Singapore as the "place" of arbitration
and provides that the arbitration is to be administered by the Singapore International
Arbitration Centre (SIAC) in accordance with the SIAC Rules, the agreement between the
parties actively implied the exclusion of other bodies from governing the law for the
arbitration and hence, the seat of arbitration should be Singapore. Furthermore, the
aforementioned Indian case laws have also established that the governing law of the
agreement and the intentions of the parties are also relevant factors in determining the seat of
arbitration. Therefore, in the absence of any contrary indication in the arbitration agreement,
it can be inferred that the parties intended for Singapore to be the seat of arbitration.

2. Whether in the event of opposition to procedural changes made by the SIAC to the
appointment procedure by the Respondent, the courts to which the matter be referred
to by the tribunal be Indian or Singaporean?

3
2020 SCC OnLine SC 301

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The principle of Lex Arbitri refers to the law that is chosen by the parties that govern the
arbitration process in an international arbitration case. It is also known as the "law of the seat"
or the "curial law." The “seat” of arbitration is the determining factor of lex arbitri. This
principle includes the procedural rules governing the conduct of the arbitration, such as the
law that governs the arbitration agreement, the appointment and qualifications of arbitrators,
the conduct of the arbitration hearings, the language of the arbitration, the grounds for
challenging the arbitral award, and the enforcement of the award.

The Shashou principle which had been laid out in Roger Shashoua and Ors. v. Mukesh
Sharma4 states that a seat of arbitration can be determined to be the juridical ‘seat’. The
Juridical seat governs the arbitration agreement, the appointment and qualifications of
arbitrators, the conduct of the arbitration hearings, the language of the arbitration, the grounds
for challenging the arbitral award, and the enforcement of the award and therefore, since it
has been established that the seat of arbitration is Singapore, the juridical seat also lies with
Singapore.

India has been steadily moving towards a more pro-arbitration stance, with the courts
displaying an increased willingness to uphold arbitral awards and respect the principle of
party autonomy. One notable example of this trend is the case of Reliance Industries Limited
& Anor v Union of India5. In this case, the Indian government sought to set aside a
UNCITRAL arbitral award against it. However, the Supreme Court of India ruled that the
government's application should instead be made to the English courts, as the arbitration had
a foreign seat. The decision in Reliance Industries confirms the growing importance of the
principle of party autonomy in Indian arbitration law.

Under this principle, parties are free to choose the law and seat of their arbitration, as well as
the rules that will govern the proceedings. This means that, where parties have chosen a
foreign seat of arbitration, the courts of that seat will have exclusive jurisdiction over the
arbitration proceedings. The Supreme Court's decision in Reliance Industries builds on this
jurisprudence by clarifying that the jurisdiction of the Indian courts is limited to arbitrations
with an Indian seat. This means that where arbitration has a foreign seat, the Indian courts

4
[2009] EWHC 957 (Comm)
5
CIVIL APPEAL NO. 5765 OF 2014

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have no jurisdiction to hear any challenge to the arbitral award or to set it aside. Instead, such
challenges must be made in the courts of the country where the seat of the arbitration is
located. This development in Indian arbitration law demonstrates a clear willingness on the
part of the courts to respect the principle of party autonomy and to uphold international
arbitration agreements. Thereby also strengthening the claim that in the present case, the
juridical seat lies with Singapore.

In furtherance to the abovementioned arguments, in the case of Enercon (India) Limited and
others v. Enercon GMBH and Anr6, the Supreme Court of India made a significant ruling on
the importance of the Seat of arbitration. The Court held that the location of the Seat of
arbitration is a critical factor in determining which courts will have exclusive jurisdiction to
oversee the arbitration proceedings. The Court emphasized that the Seat of arbitration is the
juridical seat of arbitration and is a crucial factor in determining the law governing the
arbitration.

In the case of Bhartiya Aluminium Company v. Kaiser Aluminium Technical Services Inc. 7
(BALCO Case), the Supreme Court of India held that in the context of international
commercial arbitration with a seat outside India, the seat of arbitration is the centre of gravity
in the arbitration. It was held that the choice of a foreign seat of arbitration necessarily
implied the choice of foreign law to govern the arbitration proceedings. The court stated that
the law of the seat of arbitration (i.e., lex arbitri) is the law that governs the conduct of the
arbitration proceedings, including matters such as the validity and enforceability of the
arbitration agreement, the powers of the arbitrator, the procedural rules to be followed during
the arbitration, and the grounds for challenging the arbitration award. The court further held
that the lex arbitri would also determine the scope of judicial intervention in the arbitration
process, including the extent to which courts can intervene in the appointment of arbitrators,
the setting aside of awards, and the enforcement of awards. The court emphasized the
importance of the seat of arbitration in international arbitration and stated that parties should
carefully consider the implications of their choice of seat and the applicable lex arbitri when
entering into arbitration agreements.

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(2014) 5 SCC 1
7
(2012) 9 SCC 649

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Therefore, the courts with jurisdiction over the place where the seat of arbitration is located
have supervisory jurisdiction over the arbitration proceedings.

The Singapore International Arbitration Centre (SIAC) is a private institution based in

REQUEST FOR RELIEF

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 In the light of the arguments that have been mentioned and substantiated above, the
CLAIMANT respectfully requests relief by the Tribunal to find that:
1. The seat of the arbitration shall be Singapore; and
2. The Singaporean High Courts shall have the jurisdiction to settle the issues with
regard to the appointment procedure by the Respondent.

All of which is most humbly and respectfully submitted

Date – 02 April 2023

Counsel for Lispenard & Co.

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