NLS arbitration moot : results

As we have been refraining from putting up detailed posts on account of being busy with the NLS arbitration moot, I thought I would post the results of what is arguably the most reputes arbitration moot in the country. NUJS won the moot for the third consecutive time in a row. In addition, we won the best memorial award and the second best speaker award. The best speaker award was won by Shruti Chandrashekharan from NALSAR. NALSAR also bagged the second best memo and second best team awards. The NUJS team consisted of, in addition to the two contributors of this blog, Mr. Sankarshana Meeyala and Ms. Pankhuri Agarwal. We congratulate the NALSAR team for the fight they put up in the finals and NLS for the wonderful event, especially in terms of the well drafted problem and the commendable judging standards.

Our performance was great news to us especially because of the circumstances that prevailed. To begin with, this was Rukmini's first moot as a speaker though she has done several before as a researcher. It was the first ever moot for Sankarshana and Pankhuri. Also, the moot problem released when our exam schedule had already been out and we were in the middle of our preparations. The exams got over on the 13th of May and the memorial submission (after an extension) was on the 18th. I was scheduled to start interning with a reputed law firm in Mumbai on the 17th. So, I left Kolkata (and my team) on the 14th and wrote most of my part of the memorial in my train to Mumbai based mostly on whatever I could recall of sale of goods and arbitration from earlier moots and classes rather than the luxury of fresh research. Rukmini had a tough time collating the drafts of the memorial all alone and barely managing to complete the submission on time. To add to all this, I went to office on Friday till lunch break (on account of my own being a bit crazy; the firm did not want me to), took the night flight to Bangalore, read the completed memorial and the ancillary documents for the first time in the plane and started speaking on Saturday. Considering all these factors, I am really excited about our performance. However, we did not get much opportunity to express the excitement, given that the results were announced at 5:30 and I had to leave for the airport at 6:00.

[In the course of a session]

There was one argument in this moot I really cherish. This idea hit me while packing our bags for the semi final round against GNLU. The other side was required to argue that the transaction in question was licensing of software and not sale and hence Sections 15 and 16 of the Sale of Goods Act does not apply. This argument was based on the premise that for a sale, title in the good must have passed and in this case there was no passing of title given the extensive restrictions and limitations placed on the use of the software by the alleged buyer under the contract. I picked up our copy of Mulla on Sale of Goods opened to the front cover and read out the copy right warning. I asked, "if the title in this copy of this book passed to me for consideration despite the restrictions and limitations imposed by the copyright warning, what is your basis to say that the title in the software did not pass to the claimant due to the restrictions and limitations imposed by the contract?" This seemed to work fine and I repeated it with success in the finals as well. I think the best part about this line of argument was that it appealed to common sense rather than to the technicalities of law.

[With the NALSAR team]

We thank all those who helped out in the process - George Varghese, Iram Huq and Vivek Menon for helping Rukmini pick up the basics of public speaking; Amrita Biswas for helping with the memorial; some associates of the firm I am interning with for being extremely supportive, Indian Railways for the place where the memo was written, publishers of Mulla on Sale of Goods for the stringent copyright warning, etc.

We will resume regular posts soon. Now that the technical issues with Blogspot have been resolved, Lex Arbitri will soon bring you fresh updates on arbitration in India and abroad.

Landmark French decisions on anti arbitration injunctions

Kluwer Arbitration Blog reports here that in the recent months the Paris Tribunal de Grande Instance (Court of First Instance) has taken the view that anti arbitration injunctions could not be granted even in cases where manifest lack of jurisdiction of the arbitral tribunal and irreparable injury were pleaded. In S.A. Elf Aquitaine and Total v. Mattei, Lai. Kamara and Reiner, an anti arbitration injunction was prayed for on the ground that appointment of arbitrator on behalf of Elf was done by an administrator whose appointment had been annulled by the appointing court and that the continuation of arbitration would cause irreparable injury. In Republic of Equatorial Guinea v Fitzpatrick Equatorial Guinea, de Ly, Owen and Leboulanger the grounds for seeking anti arbitration injunction were that local judicial remedies had not been exhausted as required by the relevant laws and the contract between the parties and that one of the parties was insolvent and hence could not be represented by persons other than the insolvency representative.

In both the cases it was held that the arbitral tribunal enjoyed absolute priority in determining its own jurisdiction. More importantly, a blanket rule appears to have been laid down that French courts were devoid of any jurisdiction to interfere with the arbitral proceedings or to give injunctions to an arbitral tribunal, even when the Tribunal is seated in France.

For a background on judicial interference in arbitration and a summary on the position on intervention in India, U.K., Singapore, Switzerland, France, Sweden, Germany, Netherlands and Austria, readers may find it beneficial to refer to an article titled Judicial Intervention In International Arbitration In India co-authored by Rukmini Das and Anisha Keyal and published in the most recent issue of NUJS Law Review (Volume 2, Issue 4). The full text of the paper is expected to be uploaded here shortly.