The 3Rd Nliu – Justice R.K. Tankha Memorial
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THE 3RD NLIU – JUSTICE R.K. TANKHA MEMORIAL INTERNATIONAL MOOT COURT COMPETITION, 2018 ORGANISED BY THE OFFICE OF SENIOR ADVOCATE, MR. VIVEK TANKHA 23rd to 25th February, 2018 CASE RECORD NATIONAL LAW INSTITUTE UNIVERSITY, BHOPAL 1 About Late Justice R.K. Tankha Born on 29th May 1926, Shri Tankha did his schooling at Allahabad and graduated in law from the Allahabad University. Further, he practiced as a junior counsel, to Shri. Gopal Saroop Pathak, Sr. Advocate, who later became the Vice – President of India. Late Shri R.K. Tankha, in the year 1950-51, shifted to Rewa, M.P., commencing his legal practice, and at a young age, he received professional acclaim. Subsequently, on 1st November 1956, a new state of Madhya Pradesh, was formed with Jabalpur as the principle seat of Hon’ble High Court. Accordingly, Shri R.K. Tankha, in January 1957, shifted to Jabalpur and within a short period of time, became a prominent lawyer in Hon’ble High Court. Further, he also became the President of the High Court Bar at Jabalpur. In 1972, he was elevated as a Judge in the Hon’ble High Court. At the bench, he delivered prestigious judgments, but one of the most legally acclaimed judgment delivered by him was with Justice A.P. Sen during the time of emergency. In Shivkant Shukla v. ADM Jabalpur, the High Court held that "Right to life is inalienable and cannot be denied without due process even during emergency". However, the aforesaid judgment was set-aside by Constitutional Bench of the Hon’ble Supreme Court headed by Justice Y.V. Chandrachud, the then Chief Justice of India. Many eminent jurists have construed the aforesaid judgment of the Supreme Court as one of the regrettable decisions it has delivered. Justice R.K. Tankha passed away at a young age of 52 on 13th December 1978. This competition was found by his son Shri Vivek Tankha, Member of Rajya Sabha and Senior Advocate, in memory of his father Justice R.K. Tankha, to motivate and encourage young students of law from different Universities to accomplish their endeavour in law. Shri Vivek Tankha came into practice in 1979 and presently, is one of the eminent Senior Advocates in practice before the Supreme Court of India. He was the Advocate General of State of Madhya Pradesh from 1999 to 2003. Further, he was also the Additional Solicitor General of India before the Supreme Court from 2009 to 2012. He is known for his humanitarian work by supporting hundreds of specially-abled children across the State of Madhya Pradesh and Chhattisgarh. He has also facilitated the opening of various Rotary Cross Blood Banks in tribal areas and has also set up five schools for specially-abled children in five towns in the State of Madhya Pradesh and Chhattisgarh. 2 At the outset, we would like to extend our sincere gratitude to Mr. Vivek Tankha for his constant support towards successful organisation of this Moot. By the continued association of NLIU and the Office of Mr. Vivek Tankha, we believe that this Moot will be able to reach great heights, the beginning of which has already taken place. In addition to Mr. Vivek Tankha, we are also obliged to the members of the Office of Mr. Tankha – Mr. Varun Chopra, Mr. Prashant Sivarajan and also to Mr. Rishabh Sancheti for their valuable insights towards drafting this Record and guidance at every step of difficulty. Moot Court Association National Law Institute University, Bhopal 3 rd The 3 NLIU – Justice R.K. Tankha Memorial International Moot Court Competition, 2018 Institutional Partner Knowledge Partner In association with the Office of Senior Advocate, Mr. Vivek Tankha 4 ACKNOWLEDGMENT TO THE CONTRIBUTORS OF THE CASE RECORD This Record for the Competition was authored by Mr. Rijoy Bhaumik (Former Senior Associate, Luthra and Luthra Law Offices; NLIU Batch of 2012). It was subsequently edited by Mr. Akshay Sapre (Advocate; NLIU Batch of 2009), Mr. Abhinav Bhushan (Director, South Asia, ICC Arbitration and ADR, ICC) and Mr. Prashant Mishra (Partner, Luthra and Luthra Law Offices; NLIU Batch of 2005). The NLIU Moot Court Association would like to express their deepest appreciation for their selfless efforts in drafting this truly extraordinary Record for the competition. We do hope teams make full use of the exciting areas of law addressed. We reserve special thanks to Mr. Bhaumik, not only for being creator and author of the Record, but for his continuous and unwavering support to the MCA. Note: Teams are forbidden from making any attempt to contact either the authors, or the editors for the purpose of this Competition. They have been requested to notify the Administrators of any such attempt, and the Administrators shall take penalising action, extending up to disqualification, of teams found guilty of such. 5 Mojo Pojo, Esq. Advocate at the Court 75 Arb Street, Capitol City, Antaria T: (0) 146-9845 | F: (0) 146-9850 | E: [email protected] 02 August 2017 The Secretariat of the International Court of Arbitration International Chamber of Commerce 33-43 avenue du Président Wilson 75116 Paris France Subject: Request for Arbitration Dear Sir/Ma’am: I represent Antaria International Inc., which, pursuant to Article 4 of the ICC Arbitration Rules (hereafter ‘Rules’), hereby submits its arbitral claim against Raconian Defence Technologies Ltd. in five copies. I enclose a copy of my power of attorney to represent Antaria International Inc. in this arbitration. A copy of the arbitral claim has been sent to the respondent. A copy of the receipt from the courier service is attached. The total amount claimed is US$ 2,680,000. The advance payments of US$ 5,000 for administrative expenses (Article 4(4)(b) ICC Arbitration Rules and Article 1(1) of Appendix III), have been made. The relevant bank confirmations are attached. As per the arbitration clause, the parties have nominated Mr. Duke Nukem as arbitrator in this dispute. His curriculum vitae is attached. The place of arbitration is Lake City, Central Province which I understand to be acceptable under Article 18 of the Rules. Sincerely yours, (Signed) Mojo Pojo, Esq. Counsel for Antaria International Inc. Encl: • Power of Attorney • Arbitral Claim • Duke Nukem curriculum vitae • Receipt from courier service • Bank confirmation on advance payments 6 Mojo Pojo, Esq. Advocate at the Court 75 Arb Street, Capitol City, Antaria T: (0) 146-9845 | F: (0) 146-9850 | E: [email protected] 02 August 2017 The Secretariat of the International Court of Arbitration International Chamber of Commerce 33-43 avenue du Président Wilson 75116 Paris France Antaria International Inc. Claimant v. Raconian Defence Technologies Ltd. Respondent REQUEST FOR ARBITRATION AND STATEMENT OF CLAIM (Pursuant to Rule 4 of the ICC Arbitration Rules) I. Parties 1. Antaria International Inc. is incorporated under the laws of the country of Antaria. Antaria International Inc. (hereafter “AI”) has legal personality and can bring legal actions in its own name. It has its principal office at 322 Boulevard Road, Capital City, Antaria. The telephone number is (0) 425-1930 and the fax number is (0) 425-1937. The general e-mail address is [email protected]. It is represented in this arbitration by Mojo Pojo, Esq., 75 Arb Street, Capitol City, Antaria, Tel. (0) 146-9845, Telefax (0) 146-9850, Email: [email protected]. 2. AI is an Antarian multinational conglomerate company that produces a variety of commercial and consumer products, engineering services and aerospace systems for a wide variety of customers, from private consumers to major corporations and governments. AI’s primary product in the aerospace and defence markets is the AI Optra™ which is a ballistic composite material used for soft and hard armor, manufactured using AI proprietary technology. 3. Raconian Defence Technologies Ltd. is a company where the Government of Raconia is the majority shareholder and is incorporated under the laws of Raconia. It has its principal office at 245 Under Water Park, Oceanside, Raconia. The telephone number is (0) 555-7356. The telefax is (0) 555-7359 and the general e-mail address is [email protected]. 4. Raconian Defence Technologies Ltd. (hereafter “RDT”) is primary supplier of defence equipment to the Government of Raconia. Raconia being a developing nation, undertakes 90% of all procurements through RDT, either through import of finished products or raw materials. RDT undertakes manufacture of various items such as ballistic vests and other ballistic gear using materials imported from abroad. There is no production of essential raw materials in 7 Raconia, therefore RDT imports most of the raw materials from various suppliers and the Government of Raconia subsidises the procurement of the same. II. Facts 5. AI has been supplying AI Optra™ to RDT since 2007 on an ad-hoc basis. In June, 2016 owing to increase in demand in Raconia due to recent civil unrest, Mr. Fitzgerald Udeshwar, the Chief Executive Officer of RDT required a large order supply of AI Optra™ within a small timeframe which was promptly accepted by RDT. (Claimant’s Exhibit No. 1-2) Accordingly, after finalizing the typical discounts available to RDT, Mr. Udeshwar sent an order for 8000 rolls of 45.8 kg roll weight, of 63 inches minimum width AI Optra™ at a price of US$ 335.00 per roll of material. The rolls were to be shipped from Capital City CFR to Oceanside Port in two (2) equal shipments on or prior to the 10th of the months of February, 2017 and March, 2017. The total contract price was US$ 2,680,000. Payment for each installment was due 30 days after shipment. (Claimant’s Exhibit No. 3) 6. Subsequently, on February 8, 2017 the first shipment was dispatched from Capital City and arrived at Oceanside Port on February 10, 2017.