9th NLUO - Bose & Mitra & Co. International Maritime Arbitration Moot 2022- Live Updates (Day 3)
DAY 3 | 26TH MARCH 2022
VCR 1: 926 vs 905
15:05: The quarterfinal round has begun here in VCR-1 and the first speaker of Team 926 has already taken the courtroom by a storm with utmost confidence and clarity showcased by them!
15:08: After briefly explaining the facts, the Counsel now proceeds to her submissions. But the judges already have a question for her. This round is already going at a rate of knots.
15:09: Requesting the judges to refer to Rule 2 of the SCMA Rules, the Counsel puts forth her argument.
15:11: "Are the SCMA Rules attached to your compendium, Counsel?" asks Mr. Choudhary. When the question was met with a negative response, Mr. Choudhary smiled and said, "Then where are the judges supposed to refer to, Counsel, if it is not even attached to your Compendium?"
15:14: However, once that was sorted out, with the Counsel reading out the Rule to the members of the Bench. Looks like Ms. Thiruchelvam has another question already ready for her!
15:17: Continuing with her arguments with flair and confidence, the Counsel does not face even a moment of hesitation and anxiety, despite the clarifications and questions being directed at her!
15:20: A few minutes have passed and the Counsel is still going strong. There does, however, seem to be a drop in the number of questions in the Courtroom. Maybe the Counsel's confidence is infectious!
15:22: Now there seems to be an internet issue the Counsel is facing.
15:23: Oh, she is back! But wait, Ms. Thiruchelvam already has a question for her, the moment she is taking up where she left off!
15:24: The Counsel, without batting an eyelid, explained to the Judge that the answer to her question comes up in her next argument, and hence continues with her submission.
15:25: The Speaker has been able to answer the question to the satisfaction of the Judge. But Mr. Choudhary now wants her to provide argumentation of the members of the Panel with case law to substantiate her arguments.
15:26: The case law question looked like a stumbling block for the Counsel. But it looks like she has taken control of the situation once again, even before we could be properly certain that she was anxious!
15:28: The Counsel has finally completed her submissions and is now answering one final question posed by Ms. Thiruchelvam, only to be directed another question at by Mr. Choudhary. That too, the Counsel answered with the perfect poise she has been mantaining throughout her submissions!
15:30: Go Teamwork! We now have the second speaker from Team code 926 who has taken the floor, taking up from where her Co-Counsel left off, seamlessly blending her submissions with the former Speaker! Now that is teamwork!
15:33: The Counsel is also citing case laws to substantiate her arguments! Looks like the Counsel will absolutely make up for the lacunae in her Co-Counsel's submissions!
15:34: Counsel is now providing the Courtroom with an analogy to build on her stand, which indeed seems to be a great point to bring up!
15:35: The Judges have not posed even a single question to the Counsel yet. In fact, the Counsel herself asked the members of the Bench if there were any questions or clarifications to be sought, but incredibly, there wasn't even a single question from any of the three judges!
15:41: Has the Counsel rendered the Judges completely speechless with her arguments? Unbelievable, but true, the Judges still don't have a question for her! Wow, she seems to be doing a splendid job!
15:41: Finally, the Judges have a question! But wait- no! It's not a question really, it is a mistake in a number that the Counsel mentioned, and Mr. Choudhary rectified that mistake that elicited a smile from the three Judges and the Speaker herself as well!
15:46: Looks like Mr. Choudhary's clarification lifted the stopper in the line of questions from the Bench! Mr. Choudhary, after his clarification, directed an actual question at her, which once the Speaker answered with her self-assured smile, was quickly followed up with a question from Ms. Thiruchelvam.
15:50: The Counsel seems to have finished with her submissions, and is reserving the rest of her time for rebuttals and has directly moved onto her prayer. This was one very enthralling team!
15:51: Speaker 1 from the respondents' side (Team 905) now has the floor to herself now. Let's see if they can match the claimants!
15:54: The Counsel, after quite a few minutes of speaking, now has the first question to respond to! Mr. Choudhary is asking questions that somehow seem to befuddle the Speakers (all of the speakers till now) for a few seconds before they can get a hold of the situation!
15:57: Soon after the round of questioning by Mr. Choudhary, Ms. Thiruchelvam hurls a clarification based question towards the Counsel, which she is able to answer seemingly to the satisfaction of the Judge!
16:02: "Counsel, is Clause 2 a typed clause or an addendum clause?" asks Mr. Choudhary, which the Counsel attempts to answer but then she is directed to another series of questions by the Judge.
16:05: The Counsel again has the Courtroom under her control, having answered the questions of Mr. Choudhary (whether to his satisfaction or not is a separate issue). She then proceeds to the rest of her submissions, without squandering away any of those precious seconds ticking!
16:08: "Counsel I don't think that's the English Law position per se..." points out a skeptical Mr. Choudhary, much to the distress of the Counsel!
16:10: The Speaker is not waiting around being distressed, however! She is vehemently trying to defend her stand in front of the panel of Judges, which Mr. Choudhary acknowledged with a lighthearted laugh! Looks like her efforts were not all in vain!
16:13: "How old is the case law you are referring to?", asks a bemused Mr. Choudhary to the Counsel. On receiving a '1935' in response, Mr Choudhary asks, "Do you think that is the current position of the English Law, Counsel?"
16:14: Mr. Choudhary seems to be giving the Counsel quite a hard time with his plethora of mind bogglers! "Claimants, I would give you 30 seconds to counter that. Do you agree with the Respondents or not?" he asked the other team! The Speaker is looking genuinely harassed at this point!
16:20: Speaker 2 from the respondents' side (Team code 905) has now taken over, and has immediately got to the crux of her arguments!
16:21: Reiterating her Co-Counsel's argument, this speaker is determined not to get intimidated by either questions or her own explanations it seems! Admirable!
16:25: The Speaker vehemently and vigorously continues with her submissions, barely exposing even the slightest chink in her armour!
16:26: "I sense a question?" she asks the members of the Bench, and when responded to with a shake of their heads, proceeded to making the rest of her submissions with an air of confidence!
16:29: Requesting the Judges to refer to a certain page of the opponent team's memorial in order to prove her own point, this Counsel has completely owned the Courtroom!
16:31: Looks like this Courtroom has quite a few Speakers today who are rendering the Judges completely speechless! So far, not even a single question has come her way, allowing her to defend her stand without any interruption at all!
16:35: The Speaker continues to emphatically argue in front of the Judges! A little more than 5 more minutes to go for her time limit to end, and she still doesn't have to deal with a question!
16:36: The Speaker has concluded her arguments before her time was up! Gosh, that was one entire speech without a single question from any of the three Judges!
16:38: We are back with the rebuttals now! The claimants present their three-part rebuttal with ultimate precision and grace!
16:40: The rebuttals are so very well structured that the Speaker is including back-to-back case laws in her rebuttal!
16:42: The Speaker points out that any overriding decision of the Judges today to the 4-Judge Bench decision, would be gross injustice to the claimants today!
16:43: Team 905, in response, requests a quick sur-rebuttal now.
16:45: "When we are talking about the applicability of the Hague Rules, a Singapore High Court decision holds no value! The appropriate law is the English Law!" the Speaker thundered!
16:47: The round has ended, with Team 905 concluding their sur-rebuttals heatedly.
VCR 2: 922 vs 902
12:45: Welcome all to the first knockout round of the 9th Bose & Mitra & Co. International Maritime Arbitration Moot! After announcing the breaks yesterday, we look forward to the teams battling it out in the courtroom with the arguments and penchant for mooting. We can't wait for the participants to raise their contentions and the challenges that the knockout rounds are going to present! It's an early start for one of the Quarter Final rounds. The round will start at 1 pm and just like the prelims, we will bring you to live updates through the round.
13:10: Aaaaannnnddd we are underway! The Quarter Final rounds have started with cheerful and enthusiastic faces. The judges, Ms. Ann Stylianou and Mr. Rishab Saxena introduced themselves and warmly presented a forum for the parties to proceed with their arguments. A gentle reminder about the structure of the round - The claimants' side have been allotted a full 45 minutes with the first Counsel being given 22 minutes.
13:12: The first Counsel with an air of calmness and confidence has kickstarted the round and is carefully walking through the framework of her arguments and issues. She is arguing on the precedence of SCMA over International Arbitration Act. None of the judges have stopped her yet for this limb of the argument. She has now proceeded with the citation of a couple of authorities in an attempt to establish a strong case.
13:15: The Counsel has however been stopped midway while presenting her argument. "What is the law governing the contract?", asked Mr. Saxena. In response, the Counsel affirmatively replied "The English Law governs the contract." Following up on his question Mr. Saxena asked "So you agree that the procedural law is that of Singapore?" The Counsel replied affirmatively to this question after which the Counsel was allowed to proceed with her next argument.
13:18: Mr. Saxena seems to be fascinated by an argument of the Counsel on lex arbitri and lex specialis seeking more clarification on the rule of mandatory and non-mandatory application. The Counsel looks confident and sounds quite prepared with the framework of her arguments.
13:21: The Counsel has been allowed to proceed to the next contention and she has confidently mentioned the Hague Visby Rules. When she is countered by Mr. Saxena who asked, "Where did you get HVR and how do you use that?" The Counsel has been able to satisfy the curiosity of the judge by pointing out the ambiguity in the factsheet where only Hague Rules were mentioned and no specifics were given. "Interesting", commented Mr. Saxena and the Counsel was allowed to move on further.
13:24: The Counsel is now vehemently arguing over the liability of the defendants on the contract of carriage. Mr. Saxena looks quite involved in the session and is seeking for some reference to the contract entered into by the parties. The Counsel has successfully been able to point out the contract in the factsheet.
13:27: The Counsel referred the judges to their memorial which apparently cleared their confusion regarding Tawe's status as a carrier. Following this, the Counsel has moved on to the next limb of the argument.
13:28: "Can you link the provisions you just read with the facts of this case because I am unable to follow?", requested Mr. Saxena. The Counsel is enthusiastically reading up the clause in the agreement on the applicability of HVR in some cases. The Counsel is arguing that this is a general clause to which Mr. Saxena retorted, "But that is where you are wrong because this is a typed clause so how can you say that it is a general cause?" The Counsel, replying to this query, cited a landmark judgment in support of their argument.
13:32: Time's up! And the second Counsel takes over now. Ms. Ann has promptly reminded the Counsel that he hardly has a minute left so she must wrap up her arguments quickly. The judges have been highly encouraging and involved during the entire round of submissions presented by the first Counsel. The first Counsel has now been dismissed with the second counsel taking center stage on the remaining issues.
13:35: The second Counsel looks well-prepared and is ready to set the floor on fire with her first set of arguments. She is arguing on the liability and damages claimed. In order to establish her case, she also requests the judges to refer to the cliamants' compendium.
13:37: The Counsel is fiercely arguing that the defendants cannot claim to be a third party in the case as a result of the contract of bailment entered into by the parties. Additionally, the Counsel is seen elucidating on certain relevant case laws which can help the claimants present a strong case.
13:40: The Counsel has not been countered by any of the judges during the course of the presentation of her first issue. She has therefore been allowed to move on to the next issue which is largely based on the quantum of damages.
13:42: The Counsel is now quoting the HVR and striking at the defence argument of the respondents on the liability of their damages claiming that the first defendants are liable for the full amount of converters and they cannot claim any benefit under limitation of liability.
13:44: It cannot be denied that the Counsel is very clear in terms of the argument she is presenting because of which even the arbitrators are unable to pose questions on her contentions. She is seen emphasising on the duty of care of the carrier. She is of the opinion that the recklessness of the defendants caused humongous losses to the claimants.
13:46: Mr. Saxena bounces back with a question for the second Counsel for the first time during the course of her speaking time seeking clarification on clause 5. Now Ms. Ann has struck back with a question on how could the hurricane be prevented since it is a natural calamity. The Counsel is aggressively seen pointing out at the fault of the part of the defendants for not repairing their weather radar which could have predicted the hurricane and prevented the entire fiasco.
13:49: The Counsel has moved on to the next part of her argument which is focussed on the second Bill of Lading. She is immediately interrupted by Mr. Saxena who wishes to know which Hague Rules are applied in this particular scenario. He then adds, "Are these rules ratified by India or Brazil?" The Counsel answers in negative to this question and sharply replies that the Rules have been made applicable through the clause paramount. This answer seems to have appeased Mr. Saxena who allows her to move on to her other limb of argument.
13:53: Mr. Saxena seems quite intrigued by the arguments of the claimants and is curious to know if the counsel has any other arguments framed on the issue of bailment which are based on English law or Common law principles. "What are Rotterdam Rules?", asked Mr. Saxena. This question seems to have shaken the Counsel a little and she has finally pleaded for ignorance. Ms. Ann has pointed out the paucity of time and the claimant has been granted an extension of one minute to present her prayer. The second Counsel of the claimants rests their case and the floor has been taken over by the respondents.
13:57: We begin with the round of arguments for the respondents now! The first Counsel from the respondents' side is seen steadily moving through his arguments but owing to some technical glitch, the Counsel has been interrupted. Despite some interruptions, the spirit of the Counsel is on 'Cloud 9' and he is moving ahead with his set of contentions.
14:01: The Counsel is arguing on the applicability of section 9 of the IAA owing to its mandatory nature. He is now seen quoting section 15(e) of the IAA to establish the application of IAA which allows the appointment of sole-arbitrator in the matter.
14:04: The Counsel is justifying the appointment of a single arbitrator in the matter contending that a single arbitrator can help in expeditious resolution to the matter as compared to an Arbitral Tribunal consisting of 3 members.
14:05: The Counsel is directing the judge towards one of their citations in an attempt to answer the question of the judge on express as well as implied agreement. The Counsel is advocating in favour of Singapore being the seat of arbitration and adds on that lex arbitri shall prevail.
14:09: Mr. Saxena seems to have referred to a wrong rule of the SCMA and posed a question on the same but that has been quickly corrected by the Counsel.
14:11: "The parties have not agreed on the number of arbitrators so does this part does not become completely irrelevant given your submission on sole arbitrator?" The Counsel has however been able to satisfy Mr. Saxena with his answer.
14:13: The Counsel is now striking a comparison between the two Bills of Ladings. Following this, Mr. Saxena shows initiative and asks the Counsel about the facts of a particular case law cited by the Counsel.The Counsel does not seem to have much information on the facts of the case but he is trying in every possible way to at least put forth the ratio.
14:17: Mr. Saxena then points out that it cannot be denied that there has been negligence on the part of the respondent to which the Counsel replies that they are not denying the liability but they merely intend to limit the liability.
14:19: With a well-framed set of arguments, the first Counsel has concluded his side and the baton has been passed to the second Counsel. The second Counsel is harping on the contractual relationship between the parties.
14:21: The Counsel has used a very unique term "tackle-to-tackle" and she has immediately been interrupted by Mr. Saxena for more explanation on this concept. The Counsel seems well-equipped with the answer for this question and she has successfully catered to the question.
14:23: The Counsel has raised her concern on the point that the respondents' side were under the impression that the Hague Rules of 1924 would be applicable while the claimants have prepared arguments on a different set of Hague Rules. She has further proceeded to justify the application of Hague Rules 1924 with the aide of various authorities.
14:26: Mr. Saxena has posed a question to the Counsel, "Is there any provision in the Combicon Bill which limits the liability?" The Counsel while replying to this question has cited section 9 of the Combicon Bill which is said to contain such limitation clause.
14:29: The Counsel is defending the respondents' side refuting the applicability of Hague Rules saying that the tailor-made clauses in the Bill of Lading have to be read in harmony with the Hague Rules if made applicable at all.
14:31: The Counsel's memorial has a very fascinating case cited which has caught the judge's attention and they are seeking more details on the same. With these final arguments, the Counsel is closing down on her arguments with her prayer. The respondents' side has been able to wrap up their arguments well within and they owe it all to their well-structured as well as concise submissions.
14:34: For rebuttal rounds, the claimants are posing questions on the lack of emphasis over party autonomy by the respondents' side. More questions pour in on the liability and its limitation as claimed by the respondents. The Counsel from the respondents' side is coming up with well-defined answers for all the questions fired at them. This round has truly been a treat to the eyes and ears of all. Each side was seen striving to win over the judges with their set of arguments. The judges have been sent to their respective breakout rooms for deliberation. It cannot be denied that declaring a winner here would be a tough call for the judges.
VCR 3: 909 vs 910
15:06: With quite a lot at stake for teams 909 and 910, the quarter-final rounds in VCR-3 have commenced! We wish the teams all the best and we hope that we have a stellar round of mooting ahead of us!
15:07: The first Counsel, poised and graceful begins with an explanation of the facts of the case for the clarity of the judges. The entire courtroom listens intently, the respondents are also eager to know how the claimants represent the facts in their favour.
15:09: Laying the structure of her arguments is the second item on the Counsel's agenda. A very confident start and the counsel has not faced any tough questioning by the judges. Lucky her!
15:11: In what can be classified as a monologue till now, the counsel proceeds with her submissions, her confidence increasing with every passing minute due to a lack of questioning from the judges.
15:12: The respondents' team is engrossed in listening, jotting down every single one of the counsel's contentions that they can provide a counter for. Looks like we are going to have some fun in the rebuttal rounds.
15:14: Looks the questioning has begun! The speaker's initial confidence has visibly reduced. The initial bout of questioning is regarding the arbitration clause governing the sub-bailment claim.
15:15: "Just a dispute regarding the bills of lading madam! Not any dispute." The counsel is frantically trying to come up with any legal backing at her disposal to satisfy the judge. But it seems like she is unable to find any.
15:17: "I will not accept this counsel! How are you saying this! This is so simple!" The judges sound extremely displeased by both the answers and the manner in which the Counsel is answering the questions.
15:19: Uh-oh! The counsel falters. Scared and trying to gather her thoughts, she tries to come up with a suitable answer.
15:20: "You want me to just take your word for it? You don't have any authority?" The counsel has been unable to skillfully handle the tedious questions by the judges. Not happy with her answers, the judges ask her to move on.
15:22: Difference between Singapore and India: "Counsel, this is about a Singapore conflict! I don't care about Indian case laws!" With trouble brewing for the claimant's side, she is quizzed about whether she knows the difference between Singapore and India.
15:23: The judges are prompt with their questioning, quick to test the knowledge of the Counsel. The Counsel's answers do not seem to be living up to their expectations.
15:26: The first Counsel yields the floor to her second Counsel. The second Counsel takes the floor, her confidence shaken after witnessing the fate of the first counsel. Will she be able to redeem them? One can't wait to find out!
15:28: Luck has been favouring our second Counsel so far. She has not encountered any questions and she proceeds with her submissions smoothly.
15:29: The momentum that the speaker had established has been broken. The moment that the counsel was dreading is here - Mr. Anuj quizzes her about the combined transport bills of lading. Luckily for her, the counsel seems to already have prepared the answer.
15:31: Mr. Anuj listens to her answer and satisfied, asks her to move on. The Counsel murmurs a 'Phew!' under her breath and continues.
15:32: The respondent team's disagreement with the claimants' line of reasoning is clearly visible on their faces. The speaker continues with unwavering ease, further strengthened by the judges' lack of questioning. Looks like it's her lucky day and the grilling was reserved only for her co-counsel in the beginning!
15:34: With each passing second, the counsel uses every single legal authority in her arsenal in order to make an attempt to gain advantage over the other team. The courtroom witnesses the mention of various case laws and statutes by the claimants to strengthen their case.
15:36: The second Counsel displays extreme legal prowess. Suddenly however, she is faced with another question! The question is very stringent, but so is the reply. The counsel has managed to match the precision of the question and is asked to continue. Good job, counsel!
15:40: The entire courtroom is engrossed in listening to the second Counsel's submissions. Her spirits have been bolstered by the fact that she has been able to satisfactorily answer every single question that has been thrown at her so far.
15:43: The judges pose a question regarding the Bills of Lading. "Where do you get such propositions of law?" The counsel falters, takes a moment to regain her composure and gather her thoughts and begins answering the question. Before she could finish, the judges steer her towards providing them with authorities.
15:44: The counsel has been excused for just a moment to come up with the specific case law that she bases her argument on. But oops, looks like this case is not binding and just authoritative. All that wasted time and for what? A case law that isn't even binding, well to be fair we have all made that mistake but not in the Quarter Finals of the NLUO International Maritime Arbitration Moot!
15:46: Her initial confidence decimated by the rigorous line of questioning. The Counsel is visibly struggling to produce answers that will satisfy the judges. Her teammates are holding their breath - will she be able to answer it? Stay tuned in to find out!
15:49: There is a thrilling exchange of questions and answers! The counsel puts forth some very convincing arguments to bolster her case. The judges seem happy with her answers. In what can be truly classified as a spectacular display of her skills, the counsel HAS indeed managed to redeem their team and convince the judges that their legal backing is sound. Well done, counsel!
15:52: Another round of questions has to be dealt by the counsel. Studying her expressions, it can be inferred that these questions prove to be extremely nerve-wracking for her.
15:53: Looks like we said 'well-done' too soon. The counsel is visibly shaken, the judges are so taken aback by the absurdity of her answers that they're laughing and her team's initial excitement has died down.
15:54: This round is like none other than before! Ms. Damayanti is clearly dissatisfied with the speaker's submissions - "What is this counsel?", she asks. The Counsel gulps and proceeds to stammer her way through what can definitely not be regarded as a coherent sentence. 15:56: The speaker now steps down from the floor after it looks like the questions have evidently taken a toll on her. Good thing that she is finished with her arguments.
15:59: With the speaker proceeding with his arguments, there is an anticipation of the fate that awaits the teams. The entire courtroom sits still, listening with baited breaths.
16:02: This researcher is an excellent teammate! She assists the speaker in every possible manner and it seems like together, they are determined to win these rounds and perhaps have what it takes to go all the way?
16:03: Here come the questions! It is indeed extremely thrilling to see the counsel justify their side. The researcher again aids him in the same and they demonstrate in front of the judges, through combined efforts, how the presence of a single arbitrator shall prevail.
16:06: The questions just keep pouring in and the counsel tries to clarify his stance. But he isn't paying enough attention to the questions properly! "Listen to the questions that my brother judge is asking", Ms. Damayanti strictly warns the speaker.
16:08: Role-reversal?! When we said the researcher 'aided' the speaker, we meant that the support that she provided initially complemented the speaker's arguments. However, at this point, her 'help' in the chatbox has become so extensive that she has effectively assumed the role of the speaker, just that she's not actually speaking it but typing it via the chatbox. Tch-tch!
16:10: In spite of the researcher's fanatical efforts, the counsel is unable to provide adequate answers. Dissatisfied by that, the judges instruct him to move on.
16:12: The claimants look relieved! While it's not in the best spirits of the essence of mooting, they look happy that they weren't the only ones who were unable to escape the grilling.
16:14: An abrupt halt! The judges wait for an answer and the counsel fumbles his way through what we can only imagine as a plethora of tabs and documents open in his laptop to fathom an appropriate answer.
16:16: The silence has finally been broken after what seems like ages. The counsel provides an answer, his teammates nod in unison and the judges ask him to continue. Wonder where his researcher went, at the most crucial moment when he actually needed her.
16:17: Mooting is definitely not for the faint-hearted. The first counsel for the respondent steps down, scared and flustered, wondering about the fate of these rounds that await him.
16:19: If we were to describe the second speaker's demeanour in 3 words, it would be poised, eloquent and confident. Unfazed by the grilling that her teammate underwent just a few minutes ago, the counsel seems sure about their legal arguments and proceeds with them smoothly.
16:21: So far, so good! The rounds are going very smoothly for now.
16:25: We can feel the tension build up when the speaker is asked to answer a question. She goes completely still for a moment. However, she swiftly recovers and goes on with an answer that the judges seem to be content with.
16:28: The speaker displays immensely flawless argumentation and the judges also seem satisfied with her. The claimants do not look very happy about this though, understandably so.
16:30: The counsel and the judges are engaged in an extremely exhilarating round of deliberations over the liability of the carriers. Everyone in the courtroom is in awe of the counsel's spirited arguments and her determination to win!
16:33: With the competition progressing, the tension in the air is palpable. Ms. Damayanti's questions forces the counsel to admit that they are at fault for not providing a seaworthy vessel. The counsel's dejected face bears testimony to the fact that this wasn't a situation she wanted to experience.
16:37: Like a drowning man clutching at a straw, the counsel makes every desperate attempt to convince the judges of the strength of her arguments. The judges think otherwise.
16:38: The judges don't seem to be buying it and with every passing second, the counsel is growing more and more nervous.
16:41: With her time exhausted and no satisfactory answers at her disposal, the counsel steps down. Welcome to NLUO IMAM, It's a cut-throat competition!
16:42: The rebuttals begin! Precise and well-articulated, the claimant's counsel systematically decimates every single argument of the respondents. To this, we can only wait and watch (or read) how the respondents reply!
16:46: With his eyes on the prize, the sur-rebutals by the respondent's counsel are equally crisp and clear.
16:49: Pointed questions, efficient answers and teams waiting with bated breaths were the defining features of this round! A truly neck-and-neck competition, may only the best team win!
VCR 4: 906 vs 925
15:15: The quarter-finals in VCR4 start on a note of trepidation with Speaker 1 of claimants' side listing out clearly the issues faced. The first speaker clarifies calmly to the judges about the parties they represent in the dispute and how the arbitration process would proceed.
15:19: Mr. Pabitra proceeds to ask the first speaker about where their arbitration clause is present in their Bill of Lading and the governing law of their contract. She answers calmly in the face of multiple questions posed by the judges. The teams today are facing quite a thorough bench, it must be said.
15:22: The first speaker proceeds with arguing that only a single arbitrator may be appointed according to the International Arbitration Act which she contends would override the SCMA rules.
15:25: The Counsel argues on the non-mandatory nature of section 9 of the IAA to which Ms. Tripti responds by asking if there is any case law that supports the same. She attempts to justify her stance using interpretation from Indian Jurisprudence. However, the judges insist that they want a precedent set by the Singaporean jurisdiction. Mr. Aziz catches the speaker on her ignorance of the nature of Singaporean Jurisprudence surrounding the non-mandatory nature of section 9.
15:30: Mr. Aziz having practiced in Singapore for years uses his experience to ascertain whether the Counsel is aware of the context behind the amendment of the IAA through the inclusion of section 15. Mr. Aziz attempts to cull out the speaker's confidence and awareness of the intent behind the legislation and its subsequent developments. Her responses, however, are unsatisfactory and she quickly shifts to her next submission.
15:32: The first speaker argues that the parties only intended to subject themselves to the Hague Rules of 1924 only and this interpretation has been arrived at keeping in with the business sense applied by the parties.The parties have incorporated the Hague Rules through their agreement to subject their relations to UK Common law.
15:34: Time constraints are starting to be more apparent now. She continues to argue that Hague Visby Rules won't apply since Santos hasn't rectified its position on the Visby Rules. Mr. Pabitra asks a pertinent question on the applicability of Hague and Hague Visby Rules. Counsel acknowledges that the same would be addressed however, Mr. Pabitra reminds her, "You only have three minutes remaining so use them wisely".
15:37: Ms, Tripti comments, "Why do you have Clause 2 in your agreement if you only intended to be bound by the Hague Rules?" Counsel calmly answers that Clause 2 must be struck down since it is in complete derogation of Clause 4.
15:39: The first speaker concludes that the Paramount Clause seen in Clause 4 is meant to have an overriding effect on all other clauses of the agreement and thus the carrier can't limit their liability.
15:40: After a hectic round of submissions by the first counsel, the second speaker follows her brimming with confidence to cover the remaining issues.
15:42: Mr. Pabitra first asks the Counsel about the extent of liability they ascribe to Cruz and Tawe and who would pay the damages. He replies by saying that both are jointly and severally liable and must share the quantum of damages. Mr. Aziz asks whether they are asking for apportioned damages and if they seek damages from both parties or either one. Counsel concedes that they merely need 600,000 dollars however, they are not particular as to who pays them the same.
15:45: The second speaker goes on to clarify the judges' doubts on how they arrived at the market value especially since it may differ across countries. He relies on a previous case, to show that the value they claim is based on the price at which they bought the cargo, which is what they consider to be the market value for quantifying damages.
15:48: Ms. Tripti seeks a clarification on whether Caspian tried to adopt mitigating measures like taking on an insurance to protect them from loss. However, he tries to avoid the question but Mr. Aziz catches on the speaker's attempts to circumvent the question. The Counsel proceeds to restate the facts to show that there were no avenues for them to mitigate their losses.
15:50: The counsel proceeds to argue on the importance of providing a seaworthy vessel which forms the carrier's liability under the Hague Rules. Failure to do due diligence makes the carrier liable in this case.
15:52: While the Counsel argues on quantification of damages, Mr. Pabitra asks whether Clause 3 of the addendum would apply accordingly which limits damages to $500 per unit. The Counsel argues that this is in derogation of the Hague Rules which are paramount according to the terms of the contract.
15:55: Mr. Pabitra asks, "The Himalayan clause precludes liability on all third parties so how would Cruz be held liable?" Speaker 2 responds that Himalaya clause provides a blanket immunity which is unconscionable in light of the circumstances and the precedent set in this regard. Judges seemingly satisfied allow the speaker to proceed further with their submissions.
15:58: The second speaker presents a novel argument by arguing that their clients can rely on the Hidalgo Bill of Lading even though they are not parties to the same since it indirectly impacts them. Mr. Aziz asks, "Are there any concepts in contract law regarding the carriage of goods by sea which exist outside of the Bill of Lading?" After three clarifications provided by Mr. Aziz, the Counsel is able to understand the question and satisfactorily answer the same. Seems like the constant badgering by the judges has rattled the Counsel!
16:01: Before the Counsel is able to proceed to the prayers, Ms. Tripti asks for a case law to support their method of quantifying damages at the price they bought the cargo.
16:05: The Counsel is finally able to reach his prayers despite the barrage of questions posed by the judges. The claimants' case is concluded however, the judges are thorough and are soliciting answers even on the prayers to seek if there is any interest amount claimed. Mr. Pabitra jokingly comments, "So the interest would be $1 a person?"
16:08: The first speaker from the respondents' side takes the podium. However, the inquisitive bench is undeterred from asking a question before submissions even start! Mr. Aziz asks if they can satisfy the Tribunal that there exists no conflict in them representing both Tawe and Cruz at the same time. Ms. Tripti cinches on the Achilles' heel of Cruz's position in the dispute in their inability to provide a seaworthy vessel for carriage and asks if Cruz's admission regarding the same would affect their position in any manner.
16:10: The Counsel, despite the jittery start, proceeds to confidently list out the issues and the respondents' position on the same.
16:12: The Counsel submits that: In respect of party autonomy in an arbitration, parties' lack of agreement to delineate number of arbitrators to be appointed and the arbitration seat being Singapore, the parent act of Singapore regarding arbitration must be followed.
16:17: Mr. Aziz contends that since the preamble to the SCMA rules clearly postulates that parties submitting themselves to SCMA must govern themselves accordingly. Why should section 9 be then considered mandatory by the tribunal? The Counsel replies that the nature of section 9 is that it is intended to override the SCMA rules and thus the Tribunal should follow the same.
16:21: Mr.Aziz in a teaching moment clarifies that during the amendment of the SCMA, the Parliament intended to respect the parties' choices of their own arbitration rules. Thus in respect of those intentions, the respondents must apply the SCMA rules wholly. Speaker clarifies calmly that the conflict between a mandatory and non-mandatory provision, mandatory provision would prevail. Thus, section 9 providing for the sole-arbitrator to arbitrate the dispute in the interest of preserving costs must be followed.
16:27: The Counsel holds his cool amidst the constant questions posed to him by Mr. Aziz and defends his position satisfactorily. However, in the last 2 minutes of the rounds, they rush through their second issue to submit that the Hague Rules don't have a force of law, they're merely incorporated and thus the clauses on exemption of liability must prevail.
16:30: The Counsel representing the respondents, starts her submissions by clearly laying out the interests of Tawe and the issues posed. She argues that the terms agreed upon by the parties must prevail over the Hague Rules by citing a case. The judges copiously pore over the participants' briefs asking for page references at each instance in order to comprehensively understand their case.
16:35: Mr. Aziz upon immediately returning from a technical glitch, proceeds to ask whether the failure to ensure seaworthiness would affect their liability or not. However, the speaker argues that their exemptions are valid and in fact override the Hague Rules.
16:42: The Counsel makes a hypothetical argument to show that even when Hague Rules are applied, the exemptions are valid considering the provisions regarding trans-shipment
16:44: The judges catch out the speaker on the faux pas they made on facts on who is the shipowner and the carrier. The judges direct her to the factsheet to rectify her error. The constant badgering by the bench seems to have unnerved the speaker!
16:48: However, the Counsel jumps back into her submissions and proceeds to argue on how Caspian has waived their right to sue a third party. Further, Cruz as a sub-bailee is entitled to protection under both the original and their own contract. The Himalaya Clause is thus a valid exemption from liability that Cruz can enjoy.
16:53: Mr. Aziz in his characteristic fashion of asking long questions poses another difficult question to the speaker whether there is any precedent that they can provide to support their contentions on an exemption from liability. However, undeterred, the speaker proceeds to provide a case law to support that despite the negligence of the carrier, the exemption from liability clause would protect the carriers even then.
16:57: The Counsel concludes her submissions by stating her prayers. However, the judges proceed to ask questions on prayers as well to leave no stone unturned on what reliefs the parties are actually seeking.
17:02: The claimants present a compelling rebuttal by undermining the case laws presented by the respondents. They proceed to establish the supremacy of the Hague Rules and the responsibility incurred by Cruz under the same is non-derogable.
17:06: Respondents proceed with a convincing sur-rebuttal to establish the fallacies present in the claimants' case. She systematically lists out the gaps in their arguments and tries to pick at the claimants' case presented.
17:09: The participants in their advanced round have had to face a tough and thorough bench that asks compelling questions but they prevailed in their knowledge and confidence to satisfactorily argue before the judges. May the best advance to the semi-finals!