GNLU INTRA ROUND MOOT COURT COMPETITION, 2017

MOOT PROPOSITION

1. INF Ltd. is a public limited company registered under the Companies Act, 1956 in
India. Its main business is to develop urban housing projects in India. It has
established a major industry presence all over India, and is known for delivering
good quality at a lesser price than its competitors. It is well known among the
industry players that it manages to do so because of an exclusive supply
agreement with a company in Dubai which further exclusively sourced raw
material such as cement, gravel, etc. at cheap rates from Syria. INF Ltd. has inter
alia two wholly owned subsidiaries - one in Mauritius named INF (Mauritius)
Ltd., and the other in Cyprus named INF (Cyprus) Ltd., which INF Ltd. uses as a
shell companies to route transactions to take certain tax advantages.

2. CRZ Ltd. is a public limited company incorporated in Mauritius. Its main business
is to invest money in infrastructure development projects all over the world. It saw
a lucrative business/investment opportunity in INF Ltd. owing to its exclusive
arrangement with a supplier in Dubai enabling profitable cost-effective urban
housing projects. However, CRZ Ltd. was also aware about the problems arising
out of private infrastructure developers not adhering to their promised timelines in
terms of completing their work; such as multiple litigations filed by homebuyers,
often leading to liquidation of such companies or forcing investors to take a
haircut i.e. reduced return to keep the company alive and complete the project.
Various urban private housing projects are widely suffering from these problems
throughout India.

3. Hence, CRZ Ltd. approached INF Ltd. with a business investment proposal and a
request to address their concern about the above mentioned problems. Pursuant to
discussions, both these companies reached an understanding that CRZ Ltd. would
invest in INF Ltd. by purchasing shares for the purpose of development of a
particular housing project in Mumbai. The total cost to be incurred by INF Ltd. in
completing this project was capped at a specific maximum amount to ensure that
they get advantage of INF's exclusive supply chain. It was further agreed that if
 INF Ltd. fails to complete the project by 31 October 2016, then CRZ Ltd. would
be entitled to exit the company at such a price of shares that it amounts to CRZ's
investment value along with 15% per annum simple interest. CRZ Ltd. and INF
Ltd. recorded the above understanding an Memorandum of Understanding (MOU)
on 1 April 2015. Legally, assume that it has the same status as that of a validly
concluded contract.

4. In order to give effect to the above understanding, on 10 April 2015, INF (Cyprus)
Ltd. and CRZ Ltd. set up a company in Mauritius called Kermit (Mauritius) Ltd.,
wherein CRZ Ltd. invested an amount of $2 million and was allotted 50% of its
shares. Clause 7.5.9 of the Shareholders Agreement agreement between CRZ Ltd.
and INF (Cyprus) Ltd. provided that in case of any fundamental breach of the
MOU between CRZ Ltd. and INF Ltd., especially completion of project by
31.10.2016 and within the capped cost, CRZ Ltd. will be entitled to exercise a put
option whereby INF (Mauritius) will purchase CRZ's shares at a price that gives
CRZ Ltd. a profit of 15% (after tax deduction) on its initial investment. This
clause further provided that INF Ltd. will provide funds to INF (Mauritius) Ltd. to
enable it to purchase CRZ's shares at such agreed price, in compliance with
Clause 7.5.9 of the Shareholders Agreement. Further, clause 15.1 provided that
the Shareholders Agreement will be governed by the laws of India. Clause 15.4 of
the Shareholders Agreement provided that any disputes arising in relation to this
agreement shall be referred to arbitration to be governed by LCIA Rules; the seat
of arbitration was agreed to be at Mumbai, India.

5. INF Ltd. started the project on 15 April 2015 and made remarkably fast progress.
However, around May-June 2016, civil war broke out in Syria that ceased supply
of raw material to INF's Dubai based supplier. Consequently, INF Ltd. stopped
getting a supply of raw material at its usual cheap rate from its usual supply chain.
As a result, INF Ltd. found it commercially unviable to continue the project at the
agreed timeline and the agreed maximum costing cap. It wrote a letter to CRZ
Ltd. raising its concerns at the factual developments and sought relaxation of
either the maximum cost cap or the deadline of 30.10.2016 in order to wait for the
situation in Syria to improve. CRZ Ltd. refused to relax any of the terms of the
MOU, and stated that the basis of their investment was to have the project ready
 by the assured deadline and within the capped cost. CRZ Ltd. also suggested that
the war in Syria did not make it impossible for INF Ltd. to complete the project
within the deadline. CRZ Ltd. further suggested that INF Ltd. had agreed to the
maximum cost cap being fully aware of the possibility of having to source raw
material from other suppliers in case their usual supply chain broke down for any
reason, since there was no express agreement between CRZ Ltd. and INF Ltd. that
INF Ltd. will source its raw material only from its usual supply chain in Dubai
and Syria.

6. On 30 October 2016, INF Ltd. repudiated its MOU with CRZ Ltd. under Section
56 of the Indian Contract Act, 1872 stating that it had become frustrated due to
commercial unviability as a result of the war in Syria. On 1 November 2016, CRZ
Ltd. gave its put notice to INF (Mauritius) Ltd. invoking Clause 7.5.9 of the
Shareholders Agreement. INF (Mauritius) Ltd. responded to the said notice stating
that there was no fundamental breach of the MOU between CRZ Ltd. and INF
Ltd. as the same had become frustrated. Therefore, CRZ Ltd. invoked arbitration
under Clause 15.4 of the Shareholders Agreement against INF (Mauritius) Ltd.
and INF Ltd., seeking to enforce the put option, and asked them to agree to
appointment of an arbitrator.

7. INF Ltd. and INF (Mauritius) Ltd. agreed to appointment of an arbitrator under
protest, while objecting to the jurisdiction of arbitrator on the grounds that - 1)
INF Ltd. and INF (Mauritius) Ltd. are not signatories to the Shareholders
Agreement and hence, not subject to arbitration clause therein; and 2) in any case,
obligation to purchase CRZ's shares under Clause 7.5.9 of the Shareholders
Agreement was only of INF (Mauritius) Ltd., which was not an Indian entity and
thus, two foreign entities (CRZ Ltd. and INF (Mauritius) Ltd.) could not arbitrate
with a seat in India according to the laws of India.

8. CRZ Ltd. submitted its claim statement stating that even though INF Ltd. and INF
(Mauritius) Ltd. are not signatories to the Shareholders Agreement, they are
bound by the same as the transactions are really with INF Ltd. and its subsidiaries
were mere shell companies with no independent business of their own. Thus, upon
lifting the corporate veil, it was an agreement between CRZ Ltd. and INF Ltd.,
 and INF Ltd. being an Indian entity, arbitration with seat in India was legally
permissible. Further, on merits, CRZ Ltd. stated that INF Ltd. had admittedly
breached the two fundamental terms of the MOU and therefore, CRZ Ltd. was
entitled to exit the project with an assured return amount as agreed between the
parties. It further claimed that as per Clause 7.5.9, INF Ltd. had to only provide
funds to INF (Mauritius) Ltd., which would purchase CRZ's shares in Kermit
(Mauritius) Ltd. Since the subject matter of the agreement was an urban housing
project in Mumbai, India, seat of arbitration in Mumbai would not be a legal
impediment even if it was only between CRZ Ltd. and INF (Mauritius) Ltd.

9. INF Ltd. and INF (Mauritius) Ltd. filed their reply. In addition to the objections to
arbitration stated above in paragraph no. 7, they raised two objections on merits.
Their first objection was that there was no fundamental breach of the MOU as the
same stood frustrated due to war in Syria. They averred that INF's usual supply
chain from Dubai and Syria formed part of the substratum of agreement with
CRZ, reflected by the maximum price cap stipulated in the contract. Their second
objection was that if an award was to be passed honouring the put option in
Clause 7.5.9 of the Shareholders Agreement, it would be in violation of
Regulation 3 of Foreign Exchange Management (Guarantees) Regulation, 2000
and Regulations 2(e), 5 and 6(6) of Foreign Exchange Management (Transfer or
Issue of any Foreign Security) Regulations, 2004. Hence, it would be an award in
contravention of Indian law and will be likely to be set aside by Indian Courts
under Section 34 of the Arbitration and Conciliation Act, 1996. Therefore, the
arbitral tribunal should reject the claim of CRZ Ltd.

10. On the basis of the above pleadings, the arbitral tribunal constituted in accordance
with LCIA Rules framed the following issues:
10.1. Preliminary issues
10.1.1. Whether INF Ltd. and INF (Mauritius) Ltd., are bound by
Shareholders Agreement between CRZ Ltd. and INF (Cyprus) Ltd.,
including the arbitration clause therein?
10.1.2. Whether arbitration can proceed with seat in India?
10.2. Merits issues:
10.2.1. Whether there was a fundamental breach of the MOU by INF Ltd.?
 10.2.2. Whether an award enforcing the put option under Clause 7.5.9 of the
Shareholders Agreement will be in contravention of foreign exchange
laws of India?

11. The matter is posted for final hearing on all the above issues before the arbitral
tribunal.