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[DAY-3] 8th NLUO - Bose & Mitra & Co. International Maritime Arbitration Moot 2021


DAY-3


10th April 2021

QUARTER FINAL ROUNDS

VCR-1

Maharashtra National Law University, Nagpur

vs

Govenment Law College, Mumbai

15:01 And so the ultimate race to the finish begins! We have Maharashtra National Law University, Nagpur and Government Law College, Mumbai facing off in this CR. The participants are all set to give it best shot for a seat in the semi-finals. The Courtroom today is presided by Mr. Deven Choudhary, Mr. Rishabh Saxena and Mrs. Anna Lacovou Stylianou. Speaker 1 for the Claimants takes the floor and begins his preliminary submissions.

15:04 Speaker 1 is soon interrupted by Mr. Rishabh Saxena who wishes to know whether the capabilty of an arbitrator is any benchmark that determines whether there shall be one arbitrator or more. The debate soon moves to whether SCMA Rules will take precedence over the governing seat rules. The speaker has an answer ready to every question but the Arbitrators are not convinced.

15:10 It is commendable how well Speaker 1 held his composure and finally has the Arbitrators nodding along with him. Nevertheless, the questioning continues. The speaker is made to read through the Model Law and starts stumbling through his answers. The Arbitrators shake their heads and simply ask the speaker to proceed. Speaker 1 finally looks anxious.

15:14 The speaker is now onto his next submission. He has Mr. Deven Choudhary nodding along to his points with surprising vigour. This confuses the speaker and he pause to ask if the Arbitrator has any question for him. Mr Deven chuckles and asks the speaker to proceed with his arguments. Speaker 1 lets out a nervous chuckle and moves on.

15:18 Speaker 1 is tested on his factual knowledge by Mr. Deven Choudhary which ends eating up a lot of his time. Oh no! Speaker 1’s time is up. He requests the Arbitrators to grant him an extension of 4 minutes which is apparently absurd because both the Arbitrators and Speaker 1 let out a sudden laugh. Mr. Deven leaves the decision to Mrs. Anna who takes mercy on the speaker and acknowledges that they have been asking the speaker quite a few questions. Haha. The speaker gets his 4 minutes and the rounds continue. As soon as Speaker 1’s time is up, he again asks for an extension of 1 minute. The Arbitrators are now thoroughly amused and look to say no. The speaker now bargains with a pleading twinkle in his eye and the Arbitrators are gracious enough to grant him 40 more seconds. He finishes his arguments and Speaker 2 now takes the floor.

15:29 Speaker 2 begins his submissions but is not allowed to continue smoothly for long. Mr. Deven interrupts him asking whether there are different versions of Hague Rules in different countries. He replies in the affirmative and boy, do the counter questions begin! The rounds soon seem to be going out of hand for Speaker 2 as Mr. Rishabh Saxena at one point exclaims,

“I do not accept your argument at all!”

Looks like Speaker 1 is unable to convince the Arbitrators on why the German version of the Hague Rules will apply in this case. He has now begun to stutter and stares wide eyed at the screen. Mr. Deven Choudhary watches on with a serene smile on his face. Oh! Have the Arbitrators been successful in their attempt to deviate the speaker from his thought-out structure of arguments? Well, it’s a yes!

15:30 Speaker 2 gets a time of 2 minutes which is riddled with more interruptions. Oops! Speaker 2 misstates a fact and is immediately corrected by Mr. Deven. Not something the speaker should laugh at but oh, well. The round proceeds.

15:45 Mr. Rishabh Saxena shaking his head, states that he has only one problem with Speaker 2’s arguments. According to him, the Claimants are a subrogee. Speaker 2, in his answer, explains the concept of subrogation and relates it to the fact sheet thus, satisfying the Arbitrator. Good going.

15:51 Speaker 2 relies on a case law to substantiate his final argument and requests permission to state his prayer. However, Mr. Rishabh Saxena has one last question for him. He asks the speaker what a CIP policy entails. This stumps the speaker prompting the Arbitrator to state that the CIP Policy is incoterm. The expansion on the question does not help and the speaker stays mum. The Arbitrators allow him to proceed with the Claimants’ prayer. Speaker 2 heaves a sigh of relief.

15:57 Speaker 1 for the Respondents takes the floor. She begins her first submission by stating that the SCMA Rules will apply in the present case as the parties have agreed to follow it. She is quite confident and successfully answers all the Arbitrators’ queries.

16:05 Speaker 1 faces a slew of questions from Mr. Deven Choudhary. She relies on certain case laws to substantiate her answer but is immediately shot down. The Arbitrators refuse to accept her arguments stating that they cannot rely on century old case laws because of the absence of current Rules at that time. Mr. Deven scoffs and says,

“I would’ve taken your arguments if we were in 1921, but we’re not.”

Speaker 1 sure does not have a retort for that statement. Yikes! He ends that particular line of discussion by letting the speaker know the argument is beyond them. Speaker 1 looks pained but moves on to her next submission.

16:18 Mr. Deven Choudhary now draws an interesting analogy to question Speaker 1’s reasoning. He says that he will go to a bank tomorrow morning and says that he needs a loan. His intention is to pay the bank through EMIs and therefore, he will not be submitting any collaterals. Intention to pay is enough, isn’t it? Speaker 1 is puzzled until she realizes that the Arbitrator means to say that her arguments regarding the ‘intention’ in the pledge between the bank and the buyer make no sense. The speaker stumbles her way through a justification but she’s asked to proceed. Tough luck!

16:27 Speaker 1 is soon done with her arguments and Speaker 2 takes the floor. He is interrupted twice in quick successions, both times being asked to substantiate his arguments with a case law. He points the Arbitrators to them and all is well for some time.

16:34 The Arbitrators are quick to point out major differences in the facts of the case laws and the current fact sheet. They make the speaker circle back to the application of the Hague Rules in the present case. The speaker is not ready to bend and neither are the Arbitrators. Swords are drawn, case laws are referred and a verbal war ensues! However, Speaker 2’s armour is stronger and he shines through soon winning over the Arbitrators. Mr. Deven Choudhary nods along and finally states that he is now satisfied and Speaker 2 may proceed. A head nod well deserved!

16:44 The questions now move on to the addendum and Mr. Deven Choudhary strictly disagrees with the speaker in respect to the date of the addendum being 14th January. Speaker 2 attempts to convince the Arbitrator but in vain. He accepts defeat and moves on to his subrogation argument.

16:52 Speaker 2 is granted an extension of a minute and he quickly sums up that submission. Mr. Deven Choudhary finally wishes to know the Respondents’ stand on compound interest and thus, the speaker is granted another extension in which he makes their stance clear. He is not asked any questions. The rounds proceed to the rebuttals.

16:56 Rebuttals begin with the Claimants just bringing the Arbitrators’ attention to one point, i.e., clause 8 of the MMT document. To counter that, Speaker 2 for the Respondents refers to the commercial invoice on page 13 of the case study. She is, however, quickly interrupted by Mr. Deven who states that her point is not an answer to what the Claimants just spoke. She lets out an audible sigh and says that she would again have to come back to that century old case law that the Arbitrator refused to accept earlier. Both Mr. Deven and the speaker chuckle and he allows her to complete her sur-rebuttals.

16:59 With the sur-rebuttals over, the judges retire to their room for deliberation while the participants wait with bated breath to hear the outcome of this exciting round. May the best team win!


VCR-2

ILS Law College, Pune

vs

Army Institute of Law, Mohali

15:05 After successfully sailing through the preliminary rounds, it now time for the Quarter-Finalists to give their best to reserve their spots in the semi-finals. The Virtual Courtroom is presided by Andrew Jeffries with Damayanti Sen and Ajar Rab as members of the bench. We have ILS Law College, Pune and Army Institute of Law, Mohali facing off in this CR.

15:06 Respondents do not wish to challenge the jurisdiction first, therefore, they request the claimants to begin with the pleadings.

15:08 Presiding arbitrator requests the CS1 to briefly introduce him to the facts of the case before he actually starts making his submissions. Obliging to the request, the speaker within a well-rounded thirty seconds time frame, is able to lay down the factual matrix of the case along with the timeline of events.


15:21 Presiding Arbitrator brings the counsel for claimant to an important interpretation of the law of the Singapore Act –

“The provision does not say that the number of arbitrators is to be one. It is not a mandatory provision, it is just a default if the Parties have not said anything or made any indication to the country or the Rules agreed upon.“

Arbitrator Damyanti adds on to that

“counsel why should we not look at SCMA Rules which provide for three arbitrators and go by the default provision instead?“

A direct and crisp answer on point of law satisfies the bench and he proceeds ahead.

15:28 With a lot of follow up questions and considerable grilling on the questions of law, the speaker concludes what seems like a great pleading session and hands over the floor to the respondents.

15:32 Something very interesting happened right now! Just before the respondents’ clock was started, the Presiding Arbitrator asked

“Counsel do you accept that the bill we are talking about is a Bill of Lading?”

The counsel responds in affirmative, his clock starts.

15:39 The bench has a lot of questions for the speaker and he is ‘much too obliged’ (in his own words) in answering the same. For one of the questions posed by Arbitrator Damyanti, the counsel uses an Indian case law which according to him is a ‘binding authority on this Tribunal’ . Arbitrator Damyanti raises an eyebrow and says she is not convinced with his answer. The counsel, however, says

“much obliged Madam Arbitrator”

and moves ahead.

15:51 Arbitrator Rab seems to have held on to the statement made by the counsel on the authorities that bind the Tribunal. He gets the counsel to accept that ‘there is no such thing as a binding authority in arbitration.’ With that out of the way, the counsel proceeds with his pleadings with two minutes left on the clock.

15:59 The counsels’ extended time is also up. He seems to have a lot of content left to deliver. Presiding arbitrator requests the counsel to wrap up in ten seconds, however, the counsel goes on to speak for another minute which does not sit well with the Bench. Even after repeated requests made by the Bench, the counsel was not ready to step down and became a bit too informal with the Bench.

“Counsel Quiet!”

-said the Presiding Arbitrator.

That got the job done and finally, Claimants’ merits speaker takes the floor.

16:06 The Claimant speaker seemed to be having a smooth ride until now, but, but now she is flooded with questions. Perhaps this is why she forgot her stance maybe and made a submission that forced Arbitrator Rab and Damyanti to ask her to pause and re-think her position. After recollecting her thoughts, the counsel was able to clarify her position with an elaborate and slightly over-compensating answer.

16:21 Arbitrator Damyanti has a question for the counsel, however, Arbitrator Rab intervenes and says

“Please do not answer with a case law. You all seem to be highly obsessed with case laws without talking about facts or logic.”

Carefully taking into account Mr. Rab’s observation, the counsel uses the facts from the moot proposition and draws a logical parallel to answer and conclude her submissions.

16:25 All eyes on the final speaker of the day. After exchanging greetings with the bench the claimants’ second speaker makes a rather special request. He wishes to clarify the position maintained by his co-counsel with respect to the bill of laden. He suggests that there might have been some miscommunication between the Bench and his co-counsel. The Bench does not have a response to that and he begins with his pleadings.

16:33 Uh-oh! Arbitrator Rab had a question for the speaker to which the speaker replies that his co-counsel has answered the same. Arbitrator Rab laughs it out and says “Counsel when we asked your co-counsel the same question he said you will answer it and now you say that he answered it.”

16:48 The counsel is at the end of his submissions, he has managed to answer the Bench’s concerns really well so far. The counsel’s oral advocacy style comes across as very natural and spontaneous. Great skill to have for an arbitration setting. Notably, he keeps asserting that he is keen to answer any concerns that the Bench has with respect to his co-counsels’ submissions as well. Well, no points for guessing that someone is trying to compensate.

16:51 It is now rebuttal time! We are always excited for this one, aren’t we? The Claimants go first. They jump in all feet with elaborate pointer based rebuttals. And following the trend one minute reserved for rebuttals falls short fall for the claimants. In order to respond to the rebuttals, the respondents’ made the Bench refer to the facts sheet which didn’t seem like a great idea, however, they sure did make quite an impact via logic.

16:52 And we are done for the day! The judges are in caucus now. We’ll have to sit tight and wait for the results.


VCR-3

Rajiv Gandhi National University of Law, Punjab

vs

Faculty of Law, Jamia Milia Islamia University

15:06 After the nail-biting preliminary rounds, it now time for the quarter finalists to give their best to reserve their spots in the Semi-Finals.The Courtroom is presided by Anuj Dhowan, Hakirat Singh and Khaled Chowdhury. The claimants and the respondents look extremely fresh, confident and ready to argue their stance. May the best team take the Semi Finals spot! We have Rajiv Gandhi National University of Law and Faculty of Law, Jamia Milia Islamia University facing off in this CR.

15:08 The Speaker 1 from RGNUL takes the floor. She begins her submissions and lays down the structure and five pertinent facts relevant to her issue. There is a great level of calmness and confidence that is depicted in her speech. Let’s see if she can keep this up once the grilling starts.

15:20 Arbitrator Anuj Dhowan interrupts the otherwise smooth flow of the Speaker’s submissions. He asks a series of fundamental questions relating to the SCMA Rules along with the substantive and procedural law applicable in the present case. The Speaker answers the question promptly almost in a single breath. Looks like she is perfect with her fundamentals!

15:29

“When you have no title, how can you sue?“

The question that has often derailed a claimant is finally asked. Looks like the experience of four preliminary rounds have paid off, as the Speaker is so firm in her stance that since they have the bill of lading – they have the right to sue. The Judge tries to confuse her yet again, but the effort goes in vain.

15:33 This marks the end of the time for the 1st Speaker. She yields the floor for her Co-Counsel, who is equally good in her speech. She makes it a point to refer the bench to every document for the ultimate substantiation of her submissions. Good move!

15:45 13 minutes into her speech, there has been no interruption yet. The Speaker is now visibly worried about the same and she enquires with the bench several times if they have any reservations regarding her speech. Despite literally inviting questions, the judges don’t seem to have any concerns whatsoever.

Very strange. Is it a good sign or a bad one? Voting lines open till 7pm!

15:47 With almost 4 minutes left in her timer, the speaker is done with her submissions. One of the rarest of the rare cases in a moot! It’s now the time for the Respondents to defend the claims put forth by the Claimants. The Speaker 1 from Jamia Islamia takes the floor and begins with her submissions.

15:50 She seems to have a totally different pace and speech from that of the Claimants. Let’s hope this works well with the judges.

15:55 Arbitrator Hakirat Singh interrupts the Speaker questioning whether the Hague Rules would apply or the hague Visby rules would apply in the present case The speaker responds that the Hague rules are applicable. The judge doesn’t look satisfied or rather has a poker face to this.

What is the answer???

15:57 The Speaker is interrupted by Arbitrator Anuj Dhowan when he claims that the evidence clearly shows that the Respondent’s non-maintenance of the temperature logs led to the damage. To this, the speaker replies with sentences starting with “maybe”, which indicates that they are basing their stance on assumptions. Maybe, the Judges are not satisfied with all the ‘maybes’’.

16:05 The Speaker 1, after a lot of questioning, finally concludes her submissions and leaves the floor for her co-counsel to proceed with further issues of the Respondents.

16:16 Being the last speaker of the round, She seems to have taken notes as to how to handle the questions and have a smooth sailing round at the same time. She gets a lot of questions, but she handles them well. Arbitrators try to break fundamental assumptions in the Respondent’s case.

16:20 After getting derailed a few times, the Speaker arrives to her final contention! Her confidence and calm demeanor is back and she goes on to calmly explain her arguments

16:30 Claimants are back on the stage! They hit right on the fallacies of the Respondent’s arguments! The judges seem to be in agreement with them, but what do we know! One can never ascertain what goes on in their minds. The Respondents, as expected, deny all the allegations and substantiate the same! This marks the end of a smooth Quarter Final round!



VCR-4

National Law University, Jodhpur

vs

School of Law, Christ University

14:51 National Law University, Jodhpur and School of Law, Christ University have joined the Court Room 4, looking all confident and prepared for their next big step – to ace the quarterfinals! Mr. Patrick Dahm and Mr. Pabitra Dutta have joined the Court Room already. While we wait for the third judge to join us for this session, Mr. Dahm is perturbed by the fact that the judges are hydrating themselves before the rounds but not the Counsels.

15:17 Considering the inability of the third Judge to be present owing to unforeseen circumstances, Mr Patrick and Pabitra Dutta have decided to proceed with the rounds. The teams weren’t able to come to a consensus with regards to the procedure to be followed. The Judges have finally decided that the participants shall be following RCCR for this session.

15:25 The Speaker 1 from team 821 takes the floor and has decided to argue on jurisdictional challenge before the Tribunal. He emphasizes on the importance of party autonomy in Arbitration and how it should be interpreted in the given dispute. During the course of his speech, Speaker 1 takes an unexpected decision to boldly announce to the bench –

“Please feel free to stop me and question me on any point”

He then proceeds by categorically interpreting the elements of the arbitration clause to address the dispute concerning the goods in the Containers.

15:30 Arbitrator Pabitra Dutta questions Speaker 1 from team 821 on number of arbitrators who can preside over the present dispute. To this Speaker 1 from team 821 tries to persuade the judges by explaining the need to have a three-panel arbitrator to judiciously decide the container dispute. Although his arguments seem persuasive, it’s confusing how confidently he could claim so from a Tribunal that is constituted of only 2 Arbitrators. It’s high time for the Claimants to maybe take a note of this fallacy from circumstantial evidence.

15:32 With the Speaker 1 from Respondents having yielded the floor to speaker 1 from Claimant team 817, the respondents speaker somehow decides judiciously to not use his remaining 23 seconds rashly. Bold but smart move by the Respondents team 821.

15:33 Speaker 1 from team 817 was addressing the jurisdictional issue on the composition of the Tribunal when Arbitrator Pabitra Dutta abruptly interjects the speaker to clarify her point since the question before the Tribunal is with regard to whether the composition of the Bench should be one, two or three.

15:58 Upon Speaker 2 from team 817 claiming that Hague rules were voluntarily included by Respondents,the Speaker 2 from Respondents team 821 seems to strongly deny this as he vigorously shakes his head at this statement. Looks like the Respondents won’t concede to Claimant’s contentions.

16:17 Mr Pabitra questions what has the respondent got to do with an issue between Claimant and Insurer as it is not privy to their agreement. Respondent Speaker 1 has been reminded twice by Mr Pabitra Dutta for interrupting while questioning. Counsel trying to prove no misdelivery by Respondents and assertive to prove Claimants have no case

16:29 The floor has now been taken by the Speaker 2 from Respondents Team 821. It appears like he’s all invigorated to defeat the case of Claimants.

16:30 The Speaker 2 for team 821 declared that he shall be relying on Claimant’s report to prove to the bench that there indeed is no report for the case of the Claimant to be backed by. It is quite evident now as to why Respondents were insistent upon Claimants’ speakers taking the floor first before Respondent Speaker for merit argues before the Tribunal.

16:40 Upon trying to defend the Respondent’s case on interest involved, Speaker 2 of team 821 has been abruptly interjected by Mr. Pabitra to not delve into unnecessary facts of the case. He explicitly makes it clear for the Counsel to speak in terms of Interest that concerns the Respondents.

16:56 Both the teams have now taken the floor for rebuttals with Claimant Speaker 2 followed by Respondent Speaker 2. While the Claimant’s Rebuttal time was reserved for 5 minutes, the Respondents have limited themselves to just 2 minutes. Even at this stage of the rounds, it looks like the Respondents are pretty confident about their case, and this is quite apparent from Speaker 2 from Respondents who has started addressing the claims raised by Claimants categorically, issue by issue. However, the Respondent researcher’s expressions have been misleading throughout the sessions. Wonder if she’s being the wise old man from the Greek Mythology who does not want to reveal her intentions before a court full of participants.

17:05 The rounds have finally come to an end. The participants are now eagerly waiting for the feedback. It would be a tough decision for sure, given the level of performance by both teams.

17:17 Mr. Patrick and Mr. Pabitra Dutta are back with their individual feedback. Indian students have yet again managed to give the impression to international arbitrators that the culture of summarizing cases runs through our blood, no matter what subject area we are arguing about!

QUARTER-FINALS CONCLUDED!

With this, we come to an end to the Quarter-Final Rounds. The results for the Semi-Final Rounds will be streamed Live on our Facebook and YouTube Page at 19:00 today!

Stay tuned!


RESULTS OF QUARTER-FINALS

The following teams have qualified for the Semi-Finals (in no particular order):

  • Government Law College, Mumbai

  • ILS Law College, Pune

  • Rajiv Gandhi National University of Law, Punjab

  • School of Law, Christ University

We heartily congratulate all the teams and wish them luck for the Semi finals. The stakes will be a notch higher now, so stay tuned!

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