Essay Alternative Dispute Resolution – Case Study – Law Assignment Help

Assignment Task

Alternative Dispute Resolution –

Part A
Each question is for 12.5 marks. Choose any TWO of the three questions below. The word limit for each question is 750 words.
Jane agrees to buy 10 boxes of Rapid Covid19 tests from Bill Brown. Bill supplies 8 boxes of Rapid Covid19 tests and 1 box of Antigen Covid19 tests. He says Jane can wait for the remaining box when he has time to deliver it. The value of the 10 boxes is 5000 Rupees. Bill also manufactures safety suits, gloves and face masks. Jane and Bill are both in India. After 3 months despite repeated requests from Jane, Bill has failed to compensate Jane or the 10 boxes of Rapid Covid19 tests and is refusing to return phone calls. He says Jane abused him on the phone and therefore he will not be supplying the remaining 2 boxes. Jane’s lawyer says she should take Bill to court for a Judicial Evaluation. Advise Jane what you think.

Assume Jane’s company is based in India and Bill’s company is based in the USA from the facts given above. The value of the deal is USD 1 million. A standard arbitration agreement has been drafted with the seat of the arbitration being New Delhi with the applicable law being Indian law. The companies have now fallen into dispute. Bill’s company is given the opportunity to submit submissions by 1 April 2021, but fails to do so. Bill says it is because he forgot and asks the Tribunal to extend the deadline to 1 May 2021, which it does. However, Bill fails to submit his pleadings by 1 May 2021 stating that he had a headache and forgot again. He asks for another extension – the Tribunal refuses to grant it.
The arbitration award is then given in favour of Jane and the Tribunal orders Bill to compensate Jane with the supply of USD 1 million worth of Rapid Covid19 tests. In addition, it appears the arbitration agreement between the parties was not signed. Advise Bill of the grounds under which he may challenge the award.

Jane has obtained a foreign arbitral award against Bill in the United States. Bills company is based in India. The contract signed between Jane and Bill was for Bill to supply Jane with 5000 tonnes of specialized locally (Indian) manufactured engine oil “XYZ”.
XYZ Engine Oil is a highly specialized strategic commodity essential for the maintenance and running of gas turbines. Unfortunately, because of Covid19 the production of XYZ engine oil has dropped substantially for the past 1 year and although there is now sufficient stock of “XYZ Engine Oil” available to export, Bill is unable to do so as the Indian government has put a block on the export of XYZ Engine Oil.
Jane is now attempting to enforce the arbitral award in India. Discuss.

Part B
Each question is for 12.5 marks. Choose any TWO of the three questions below. The word limit for each question is 750 words.
In Lohia v Lohia, the Supreme Court held that Section 10 is a ‘derogable’ section of the Arbitration and Conciliation Act, 1996. The Supreme Court has also rendered a decision in Enercon v Enercon on the validity and workability of an arbitration clause where the mechanism for appointment for only two arbitrators was provided. Reading together the judicial interpretations in these cases and the legislative activism in other parts of the Act compared to its conspicuous absence in Section 10 (through the 2015 and 2019 amendments), please provide an opinion on the ‘mandatory’ or ‘derogable’ nature of Section 10 of the Act.

Pawnee Bottling Private Limited (“Pawnee”), a company incorporated in India, and Eagleton Beverages Limited (“Eagleton”), incorporated in and doing business in Indiana, United States, intend to enter into a contract whereby Pawnee will provide bottling services for all the beverages manufactured and sold by Eagleton. In order to ensure a swift resolution of disputes between them, Pawnee and Eagleton have verbally agreed to resolve any issues between them through arbitration in 2019. Eagleton Beverages has a particular soda called ‘E-Fizz’ which is very popular in the US and as per the agreement between Pawnee and Eagleton, Pawnee receives the rights to manufacture, bottle and distribute E-Fizz in India with the agreement that the profits would be shared 50-50 between Pawnee and Eagleton. In July 2019, Pawnee enters into the following agreements:
Pawnee and Eagleton enter into an agreement for the Trademark Licensing of E-Fizz;
Pawnee and Eagleton enter into an agreement for the Technical Know-How Agreement whereby Eagleton will share the manufacturing process for E-Fizz with Pawnee;
Pawnee and another Indian company, Nargis Plastics, enter into a contract whereby Nargis will manufacture the labels for E-Fizz in India;
Nargis Plastics and Eagleton enter into a Trademark Licensing Agreement so that Nargis can use the E-Fizz logo and catchphrase on the packaging;
Pawnee also enters into a Patent Licensing Agreement with Eagleton’s parent company, Paunch Burger Limited, a US-based company, for the license to use the manufacturing process to manufacture E-Fizz in India.
In December 2020, E-Fizz is launched as a product in India and is immediately successful in the Indian market for its unique taste. In April 2021, on a chance visit by an executive from Paunch Burger Limited to New Delhi, the executive discovers that in addition to E-Fizz, Pawnee has also been selling another product called ‘Fizz Up’ which tastes identical to E-Fizz except that it is orange in colour where E-Fizz is colourless. Upon discovering this, Paunch Burger Limited sends a Request for Arbitration to Pawnee on 15th April 2021 claiming that Pawnee has been misusing the agreements intended for the sale of E-Fizz by selling a second product with the same flavour and using the same process so that it can make double the profit while only sharing the profit made by the sale of E-Fizz in India. Pawnee responds by rejecting the claim for arbitration on the following grounds:
There is no arbitration agreement between Paunch Burger and Pawnee since the only arbitration agreement is between Eagleton and Pawnee and therefore the matter cannot be sent to arbitration;
Since the question is of violation of the patent/ trademarks belonging to Paunch Burger, the matter is one of intellectual property rights and therefore not amenable to arbitration.
In light of this response, Paunch Burger and Eagleton have approached a counsel requesting advice on how to proceed with the dispute. As the counsel approached by Paunch Burger and Eagleton, please advise them on their best possible route to resolve the dispute considering the facts and circumstances enumerated above. Please ensure that your advice contains (but need not be limited to) responses to the two defences raised by Pawnee against the Request for Arbitration.

Bharat Heavy Electricals Limited (“BHEL”) is a public sector undertaking engaged in the business of engineering and construction. It enters into a contract for the delivery of certain raw materials from Europe and the materials are to be shipped through Hades Shipping Inc. (“Hades”), a company based out of Munich in Germany. The companies have drafted the following arbitration clause to be inserted into their arbitration agreement:
1.1 All disputes arising out of this contract will be referred to arbitration. Parties may opt for ad-hoc or institutional arbitration at the time of the dispute. If parties opt for institutional arbitration, they will be bound by the rules of the Kuala Lumpur Regional Center for Arbitration (“KLRCA”).
1.2 The arbitral tribunal should have a single arbitrator to be chosen by the parties by mutual agreement. Parties may impose further restrictions as to the arbitrator’s qualifications by mutual consent.
1.3 The arbitrator chosen by the parties shall be a top-level manager or director of BHEL and it is agreed between the parties that no challenge will be raised against his or her impartiality or independence.
1.4 The venue of the arbitration is London, England and the substantive law of the contract will be the law of England.
1.5 The language of the proceedings should be English.

Hades Shipping has approached you to give your opinion on this clause. You are required to give an opinion on its validity as well as feasibility.

What is the seat chosen by the parties, if any? How do you determine the seat?

Redraft this clause using the most appropriate language to ensure its validity and feasibility.