moot research

Topics: Contract, Arbitration, Contractual term Pages: 25 (8264 words) Published: April 27, 2014

Team 11C

3rd National Law School International Arbitration Moot Court Competition, 2010

Court of International Arbitration, Gregaria City, Gregaria

Mallory Advisory Services Ltd.………………………………………………………Claimant

v.

Shawcross Solutions Pvt. Ltd…………………………………………………….Respondent 1

Comet (Shawcross) Solutions Pvt. Ltd…………………………………………...Respondent 2

(Arb/Cas/0410/2009)

Memorandum for Claimant

Table of Contents

Table of Contentsi
Table of Abbreviationsiv
Index of Authoritiesvii
Casesvii
Statutesx
Treatisesx
Articlesxi
Statement of Jurisdictionxii
Questions Presented xiii
Statement of Factsxiv
Summary of Argumentsxvii
Arguments Advanced1
I. The Tribunal has jurisdiction over Respondent 1 under settled principles of arbitration law and in any event, the corporate veil between Respondent 1 and Respondent 2 must be lifted.1 A. The Tribunal has the authority to determine its own jurisdiction.1 B. Respondent 1 is bound to the arbitral proceedings. 2

1. The corporate veil between Respondent 1 and Respondent 2 must be lifted to bind Respondent 1 to the arbitral proceedings. 2 2. Respondent 1 is bound by the arbitration clause in equitable estoppel.3 II. The fraudulent acts of Mr. Romanovich cannot be attributed to Claimant; in any case, the defence of ex turpi causa non oritur actio is inapplicable in these circumstances and does not bar Claimant’s action.4 A. The fraudulent acts of Mr. Romanovich cannot be attributed to Claimant.4 B. In any case, the defence of ex turpi causa is inapplicable in these circumstances and does not bar Claimant’s action.5 1. Claimant’s vicarious liability is insufficient to raise the defence of ex turpi causa.6 2. In the alternative, Respondents’ complicity with the fraud precludes them from raising the illegality defence.7 III. Respondents are liable under Sections 15 and 16 of the Frugalian Sale of Goods Act, 1930.7 A. The Transaction is governed by provisions of the Frugalian Sale of Goods Act. 8 1. “Comet” is a good as per the definition of “goods” under the Frugalian Sale of Goods Act.8 2. The transaction between the parties amounted to a sale despite it being termed a license by the parties.9 B. Respondents are liable under Section 15 of the Sale of Goods Act.10 1. The pre-contractual communication between Mr. Romanovich and Respondents laid down the descriptions to which the good had to conform.11 2. Respondents failed to supply good conforming to the description.12 C. Respondents are liable under Section 16(1) of the Sale of Goods Act. 12 1. Particular purpose for which the software was required was made known to Respondent 1.13 2. Claimant relied on Respondents’ skill and judgment.13

3. The good delivered was unsuited for the stated purpose.14 4. The liability of Respondents under Section 16(1) is not excluded by proviso to Section 16 (1).14 a. The exclusion under the proviso does not apply as the purchase was based on the representation of fitness by seller and on the trade name.14 b. The exclusion under the proviso does not apply as “Comet” cannot be treated as a trade name in the present matter.15 IV. Alternatively, Respondents are liable for Breach of Contract under the Frugalian Contract Act, 1872.16 A. The communication between parties as to the description and purposes of the software has been incorporated by reference as a term of the EULA.16 B. There has been a breach of the contractual term regarding description and purpose to be served by the product.17 V. Respondents are liable to refund the purchase price and pay requisite damages for the erroneous advice and consequential losses suffered by Claimant.17 Conclusion and Prayer for Relief19

Table of Abbreviations
¶/¶¶ - Paragraph(s)
§/S./ss.- Section(s)
A.C. – Appeal Cases
AIR- All India Reporter
All ER – All England Law Reports
Am. Rev. Int’l. Arb. –American Review of International Arbitration Anr. – Another
Art.- Article
Cal. –...
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