TEAM CODE: T33A

LEX OMNIA MOOT COURT COMPETITION, 2023

Before

THE ARBITRAL TRIBUNAL

BITS, GOA CAMPUS

IN THE MATTER OF

MADE IN HEAVEN:
CLAIMANT

Versus

SPEED INC. & ORS:

RESPONDENT

MEMORIAL for CLAIMANT

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TABLE OF CONTENTS

INDEX OF AUTHORITIES ......................................................................................................3

STATEMENT OF JURISDICTION ...........................................................................................5

STATEMENT OF FACTS .........................................................................................................6

STATEMENT OF ISSUES ........................................................................................................7

SUMMARY OF ARGUMENTS ................................................................................................8

ARGUMENTS ADVANCED .................................................................................................. 10

1. THAT THE DISPUTE RAISED BY THE CLAIMANT IN THE PRESENT

ARBITRATION IS ARBITRABLE IN NATURE.................................................................... 10
A. THE SUBORDINATE RIGHTS IN PERSONAM EMINATING FROM RIGHTS IN REM ARE
ARBITRABLE.................................................................................................................................................... 10
B. BARD DEVELOPER’S AGREEMENT SHOWS THE INTENT OF PARTIES TO SUBMIT TO
ARBITRATION ................................................................................................................................................. 11
C. THE COMPETION LAW DISPUTES ARE ARBITRATIBLE IN CASES OF INVOLVEMENT OF
TRANS NATIONAL PARTIES...................................................................................................................... 12

2. RESPONDENT NOS. 1 AND 2 ARE PROPER AND NECESSARY PARTIES TO THE

PRESENT ARBITRATION ..................................................................................................... 12
A. THE ADDITIONAL PARTIES SHOULD BE IMPLEADED ON THE BASIS OF GROUP
COMPANIES DOCTRINE .................................................................................................................................. 13

B. THE GROUP OF COMPANIES DOCTRINE CAN BE INVOKED ON THE BASIS OF THE

CLAIMING “THROUGH OR UNDER” PRINCIPLE .................................................................................. 14

C. NON- IMPLEADMENT WILL LEAD TO THE VIOLATION OF PRINCIPLE OF NATURAL

JUSTICE.................................................................................................................................................................. 15

3. THE CLAIMANT WAS NOT OBLIGED TO ATTEMPT TO RESOVLE THE

DISPUTE THROUGH GOOD FAITH NEGOTIATIONS ....................................................... 15
A. PRE-ARBITRAL DISPUTE PROCESS IS NOT MANDATORY ...................................................... 15

B. PRE-ARBITRAL CLAUSES ARE NOT MANDATORY OR ENFORCEABLE UNDER OTHER

JURISDICTIONS ................................................................................................................................................... 16

C. PRE-ARBITRATION DISPUTE RESOLUTION PROCESS IS NOT A PRE-REQUISITE ........ 16

D. THE RESPONDENT’S BEHAVIOUR NULLIFIED THE REQUIREMENT TO FULFILL PRE-

ARBITRAL DISPUTE RESOLUTION CLAUSE ............................................................................................ 17

4. THE CLAIMANT IS ENTITLED TO INTERIM RELIEF AGAINST

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DELISTING/REMOVAL FROM THE BARD APP STORE UNDER SECTION 17 OF THE

ARBITRATION ACT.............................................................................................................. 17
A. THE BALANCE OF CONVENIENCE IS IN THE FAVOUR OF THE CLAIMANT .................... 18

B. DELISTING IT FROM BARD’S APP STORE WILL LEAD TO IRREPARABLE HARM TO

THE CLAIMANT .................................................................................................................................................. 19

5. THE MANDATORY CONDITION TO USE THE BARD BILLING SYSTEM FOR

PAID APPS IN THE BARD APP STORE IS ILLEGAL, INVALID, AND
UNENFORCEABLE IN LAW ................................................................................................ 20
A. IT IS UNCONSCIONABLE AS PER THE CONTRACT ACT........................................................... 21
B. IT IS IN VIOLATION OF THE COMPETITION ACT....................................................................... 23

6. THE IMPOSITION OF 5% SERVICE FEE IS ILLEGAL, INVALID AND

UNENFORCEABLE IN LAW ................................................................................................ 24
A. IT IS IN VIOLATION OF THE CONTRACT ACT ............................................................................. 24
B. IT IS IN VIOLATION OF THE COMPETITION ACT....................................................................... 25
C. IT IS GOING TO HAMPER COMPETITION IN THE MARKET ................................................... 27

PRAYER ................................................................................................................................. 28

PRAYER ................................................................................................................................. 28

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INDEX OF AUTHORITIES

Cases
Ajay Mohan and Ors. v. H.N. Rai and Ors. (2008) 2 SCC 517. ................................................... 22
Booz Allen & Hamilton Inc v SBI Home Finance Ltd (2011) 5 SCC 532, ¶ 38 .................... 14
Central Inland Water Transport Corporation v. Brojo Nath Ganguly [1986] AIR 1571. ............... 26
Chloro Controls India Private Limited v. Severn Trent Water Purification Inc., (2013) 1 SCC
641. ................................................................................................................................... 17, 18
Demerara Distillers Pvt Ltd. v. Demerara Distilleries Ltd [2015] 13 SCC 610 ........................... 21
Demerara Distillers Pvt Ltd. v. Demerara Distilleries Ltd, [2015] 13 SCC 610 .......................... 20
DLF v. Competition commission of India, MANU/TA/0012/2014. ............................................. 27
Dow Chemical v. Isover-Saint-Gobain, ICC Award No. 4131, YCA 1984 .................................. 17
Emirates Trading Agency LLC v Prime Mineral Exports Private Ltd [2014] EWCH 2104, 38 .... 20
Flywheel Logistics Solutions Pvt. Ltd. v. Hinduja Leyland Finance Ltd., .................................... 24
Flywheel Logistics Solutions Pvt. Ltd. v. Hinduja Leyland Finance Ltd., 2020 SCC OnLine Mad
20614 ¶ 28. ............................................................................................................................. 22
Go Airlines Limited v. International Aero Engines, LLC, SIAC Case No. 077 of 2023. ............... 22
Gujarat Bottling Co. Ltd. v. Coca Cola Co., (1995) 5 SCC 545, ¶ 43. ......................................... 23
Haldiram Vs. M/s DLF Commercial Complexes Limited, 193 (2012) DLT 410........................... 20
Himangni Enterprises v. Kamaljeet Singh Ahluwalia, (2017) 10 SCC 706. ................................. 15
King Kong Henry v Tanglin Club, [2018] SGHC 153. ................................................................ 20
M. Gurudas v. Rasaranjan, ......................................................................................................... 24
M/S Imz Corporate Pvt Ltd vs Msd Telematics Pvt Ltd ,[2021] SCC OnLine Del 3061 ............... 21
Mitsubishi Motors Corp v Soler Chrysler-Plymouth, Inc 473 US 614, 1985. ............................... 16
Saraswati Construction Co. Vs. Co- operative Group Housing Society Ltd. 1995 (57) DLT 343.20
Scherk v Alberto-Culver Co 417 US 506, 1974. .......................................................................... 16
Standard Chartered Bank v. State of Maharashtra [2001] 8 SCC 197. ......................................... 25
Union Of India v. M/S. Baga Brothers & Anr. S., 2017 SCC OnLine Del 8989. .......................... 20
Vidya Drolia and Others v. Durga Trading Corporation 2019 SCC Online SC 358, ¶ 6 ............. 15
Vidya Drolia and Others v. Durga Trading Corporation 2019 SCC Online SC 358, ¶ 60. .......... 15
VISA International Ltd v Continental Resources (USA) Ltd, AIR 2009 SC 1366. ........................ 21

Statutes
The Arbitration and Conciliation Act, 1996, ..................................................................................
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The Competition Act, 2002,...........................................................................................................

The Indian Contract Act, 1872. ......................................................................................................

Other Authorities
Bostoen, F. (2019), “Online Platforms and Pricing: Adapting Abuse of Dominance Assessments
to the Economic Reality of Free Products”, Computer Law & Security Review, Vol. 35/3....... 30
Gary Born, International Commercial Arbitration (2021) 2424 – 2563. ....................................... 22
Kenton P. Knop, Boilerplate Bulletin: The Dangers of Unilateral Change-in-Terms Clauses,
Masuda Funai.......................................................................................................................... 26
Law Commission of India, 199th Report. .................................................................................... 29
OECD (2020), Abuse of dominance in digital markets, Pg. 33. ................................................... 31
Singapore International Arbitration Centre Rules 2016, Rule 9 ................................................... 18
UNCITRAL Model Law on International Commercial Arbitration, Article 18. ........................... 19
UNCONSCIONABLE CONTRACTS: A CRITICAL ANALYSIS OF INDIAN LEGAL
SYSTEM, PG. 231. ................................................................................................................. 26

Rules
Applying the Model Law’s Standard for Interim Measures in International Arbitration, Jose F.
Sanchez , P.221 ....................................................................................................................... 24
Singapore International Arbitration Centre Rules 2016, Rule 9. .................................................. 18

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STATEMENT OF JURISDICTION

" The Claimant in the present case has invoked arbitration in terms of Clause 25 of the BDA and
issued a notice for arbitration under Section 21 of the Arbitration and Conciliation Act, 1996
(“Arbitration Act”) read with Rule 30 of the SIAC Rules, 2016. Section 21 of the Arbitration Act
reads as:
21. “Commencement of arbitral proceedings. - Unless otherwise agreed by the parties, the arbitral
proceedings in respect of a particular dispute commence on the date on which a request for that
dispute to be referred to arbitration is received by the respondent.”
Rule 30 of the SIAC Rules reads as:
“Interim and Emergency Interim Relief
30.1 The Tribunal may, at the request of a party, issue an order or an Award granting an injunction
or any other interim relief it deems appropriate. The Tribunal may order the party requesting interim
relief to provide appropriate security in connection with the relief sought.
30.2 A party that wishes to seek emergency interim relief prior to the constitution of the Tribunal
may apply for such relief pursuant to the procedures set forth in Schedule 1.
30.3 A request for interim relief made by a party to a judicial authority prior to the constitution of
the Tribunal, or in exceptional circumstances thereafter, is not incompatible with these Rules.”
It sets forth the facts, contentions, and arguments in the present case. "

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STATEMENT OF FACTS

1. The Claimant, "Made in Heaven," is an online dating service with its registered office in New
Delhi, India, and was established under the Companies Act of 2013.

2. American multinational technology giant "Speed Inc.," the first respondent, is based in
California. It is one of the biggest technology corporations in the world and dominates a number
of tech industries. A subsidiary of Respondent No. 1 is Respondent No. 2, "Bard LLC," a limited
liability business with headquarters in the State of Washington, United States. It is renowned for
dominating the fields in mobile software, artificial intelligence, online advertising, search engine
technology, cloud computing, software, quantum computing, e-commerce, and consumer
electronics. The third respondent, "Bard India Private Limited," was established in India with its
registered office in Mumbai in accordance with the Companies Act of 2013. In addition to
managing contracts with Indian organisations and payment transactions, it supports Respondent
No. 2's operations in India.

3. "Pixel OS," which is owned by Bard, and "Orange OS," which is owned by another sizable
business called Orange, dominate the market for mobile operating systems worldwide. In India,
86% of smartphones use Pixel OS, which is used by the majority of mobile manufacturers. The
"Bard App Store," a platform for delivering apps, is preinstalled on all Pixel OS-powered
smartphones. 137 nations host more than 20 million apps on the Bard App Store.

4. The relationship between Bard and app developers is regulated by the "Bard Developer
Agreement" (BDA). It contains clauses addressing payments, service charges, and use of Bard's
resources. By requiring app developers to use the "Bard Billing System" and pay service fees
ranging from 10% to 15% dependent on annual turnover, Bard revised its payment policies in
October 2022.

5. The Claimant, a Bard App Store user, disputed Bard's revisions, alleging unfair practices and
market abuse. Claimant invoked arbitration under BDA Clause 25. Respondent Nos. 1 and 2
disputed arbitration inclusion, asserting non-signatory status. Respondent No. 3 opposed
jurisdiction, saying competition law disputes are non-arbitrable.

6. To avoid app removal from the Bard App Store due to non-compliance with Bard's new payment
policy, the Claimant has filed an interim injunction. The arbitral tribunal's ruling on jurisdictional
and emergency relief concerns is pending.
.

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STATEMENT OF ISSUES

ISSUE 1

WHETHER THE DISPUTE RAISED BY THE CLAIMANT IN THE PRESENT

ARBITRATION IS ARBITRABLE IN NATURE?

ISSUE 2

WHETHER THE RESPONDENT NOS.1 AND 2 ARE PROPER AND NECESSARY

PARTIES TO THE PRESENT ARBITRATION?

ISSUE 3

WHETHER THE CLAIMANT WAS OBLIGATED TO ATTEMPT TO RESOLVE THE

DISPUTE THROUGH GOOD FAITH CONSULTATION/NEGOTIATION? IF YES,

WHETHER THE CLAIMANT HAS FAILED TO FULFIL SUCH OBLIGATION? IF YES,

WHAT ARE THE IMPLICATIONS OF SUCH FAILURE?

ISSUE 4

WHETHER THE CLAIMANT IS ENTITLED TO INTERIM RELIEF AGAINST

DELISTING /REMOVAL FROM THE BARD APP STORE UNDER SECTION 17 OF THE

ARBITRATION ACT READ WITH RULE 30 OF THE SIAC RULES,2016TILL THE

CONCLUSION OF THE ARBITRATION?

ISSUE 5

WHETHER THE MANDATORY CONDITION TO USE BARD BILLING SYSTEM FOR

PAID APPS IN THE BARD APP STORE IS LEGAL, VALID AND ENFORCEABLE IN

LAW?

ISSUE6

WHETHER THE IMPOSITION OF 15%SERVICE FEE IS LEGAL, VALID AND

ENFORCEABLE IN LAW?

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SUMMARY OF ARGUMENTS

ISSUE 1: THE DISPUTE RAISED BY THE CLAIMANT IN THE PRESENT ARBITRATION IS

ARBITRABLE IN NATURE: The Claimant, Made in Heaven, maintains that the matter is arbitrable,
citing international precedents supporting arbitration for competition law disputes in transnational
instances. The Claimant adds that the action mainly focuses around a contractual disagreement
stemming from the Bard Developer Agreement (BDA). The Respondents' competition law
concerns, it says, are secondary to the core contractual issues. Additionally, the Claimant claims
that good faith talks were not obligatory and, even if conducted, would have been useless. The
Claimant further wants an interim order to prohibit the delisting of its apps from the Bard App
Store pending the result of the arbitration.

ISSUE 2: RESPONDENT NOS. 1 AND 2 ARE PROPER AND NECESSARY PARTIES TO THE

PRESENT ARBITRATION: Respondent Nos. 1 and 2 are vital to the agreement as members of the
same group of firms, and Respondent No. 3 is acting as their representative in India. The Claimant
contends that the issue involves competition law allegations against Respondent No. 3 and is
arbitrable under Indian law. It believes that the arbitration is international, and competition law
claims in transnational disputes are arbitrable. The Claimant underlines that the complaint stems
from the Bard Developer Agreement (BDA), establishing a contractual dispute, where it seeks a
determination that contractual provisions are unconscionable. The Claimant contends that the
need for good faith discussions was not mandatory, and any attempt at negotiation was fruitless.

ISSUE 3: THE CLAIMANT WAS NOT OBLIGATED TO ATTEMPT TO RESOLVE THE DISPUTE

THROUGH GOOD FAITH CONSULTATION/NEGOTIATION: The modified payments policy and

required use of the Bard Billing System are unjust and discriminatory. They say that Bard's
dominance in the industry permits them to impose non-negotiable terms on app developers,
breaking competition rules. The Claimant contends that the matter is arbitrable, citing
international precedents in competition law conflicts. Additionally, they maintain that
Respondent Nos. 1 and 2, being members of the same group, are important to the agreement,
necessitating their inclusion in the arbitration. The Claimant alleges that good faith negotiations
were unsuccessful, supporting the arbitration initiation. The next hearing attempts to address
jurisdictional objections and the interim relief motion.

ISSUE 4: THE CLAIMANT IS ENTITLED TO INTERIM RELIEF AGAINST DELISTING /REMOVAL

FROM THE BARD APP STORE UNDER SECTION 17 OF THE ARBITRATION ACT READ WITH

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RULE 30 OF THE SIAC RULES, 2016 TILL THE CONCLUSION OF THE ARBITRATION: The case
falls within the scope of arbitration. The Claimant contends that the appeal primarily involves
contractual issues resulting from the BDA, seeking a determination that certain clauses are
unconscionable under contract law. Additionally, the Claimant contends that Respondent Nos.
1 and 2 are vital to the BDA, rendering them non-signatory parties to the arbitration. The
Claimant challenges the jurisdictional concerns, arguing that good-faith negotiations were not
obligatory and were fruitless. An interim relief application has been lodged to restrain the
delisting of apps until the arbitration proceeds. The hearing is slated for 27-29 October 2023,
with the tribunal examining jurisdictional concerns, temporary relief, and the merits of the case
in succession.

ISSUE 5: THE MANDATORY CONDITION TO USE BARD BILLING SYSTEM FOR PAID APPS IN

THE BARD APP STORE IS ILLEGAL, INVALID, AND UNENFORCEABLE IN LAW: The amended
payments policy of Bard, mandating the use of the Bard Billing System for purchased apps on
the Bard App Store, is invalid, void, and unenforceable. The Claimant alleges that Bard, being
a dominating player, is imposing non-negotiable and discriminatory terms on app developers.
They contend that the exclusivity restriction for the Bard Billing System is unreasonable and
an abuse of dominant position. The Claimant also contests the jurisdictional arguments
submitted by Respondent No. 3, saying that competition law conflicts are arbitrable, and
Respondent Nos. 1 and 2 are legitimately impleaded as part of the same group.

ISSUE 6: THE IMPOSITION OF 15% SERVICE FEE IS ILLEGAL, INVALID, AND

UNENFORCEABLE IN LAW : The imposition of a 15% service fee by Bard on app developers
accessing the Bard App Store is illegal, void, and unenforceable. The new payments policy,
necessitating the use of Bard Billing System, is an abuse of dominant position by Respondents.
The Claimant alleges that Bard's requirements are non-negotiable, imposing unfair and
discriminatory terms. They allege that the mandated adoption of Bard Billing System limits
market access, violating competition rules. Additionally, the Claimant highlighted the high
service price compared to other payment processors, describing it as unreasonable. The case
contains both contractual and competition law aspects, with the Claimant seeking a declaration
of illegality and a permanent injunction against app removal.

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ARGUMENTS ADVANCED

1. THAT THE DISPUTE RAISED BY THE CLAIMANT IN THE PRESENT

ARBITRATION IS ARBITRABLE IN NATURE

Contrary to the respondent's assertion, it is contended that the dispute raised by the claimant is
inherently arbitrable because A. The subordinate rights in persona emanating from rights in
rem have generally been subject to arbitration B. The Bard Developer Agreement shows the
intent of parties to submit to arbitration. C.

A. THE SUBORDINATE RIGHTS IN PERSONAM EMINATING FROM RIGHTS IN REM ARE

ARBITRABLE

[¶1.] The claimant contends that while all disputes regarding rights in rem must be resolved by
courts and public tribunals, all issues affecting rights in personam traditionally fall under the
purview of arbitration. However, the Court did note that this is not a rigid rule and that inferior
rights in personam deriving from superior rights in rem have always been subject to
arbitration.1Section 3 of the Competition Act regulates elements of the Competition Act that have
an effect on the public interest, such as cartel activities or other anti-competitive agreements.2On
the other side, a distributorship agreement abuse by a dominant corporation may involve rights in
personam. So long as a disagreement relates to determining the parties inter se rights, an arbitral
tribunal may be empowered to make a decision. The circumstances under which a dispute cannot
be arbitrated in India, is outlined by the supreme court of India in Vidya Drolia , the SC Has given
“four-fold principle”: (i.) “where the cause of action and subject matter of the dispute are
proceedings in rem that do not concern subordinate rights in personam arising from rights in rem;
(ii) where the cause of action and subject matter of the dispute involve the rights of third parties;
have erga omnes effect; and necessitate centralised adjudication; (iii) when the cause of action and
subject matter of the dispute concern the State's fundamental sovereign and public interest
functions; and (iv) where the dispute's subject matter is expressly or by necessary implication non-

1
Booz Allen & Hamilton Inc v SBI Home Finance Ltd (2011) 5 SCC 532, ¶ 38.
2
The Competition Act, 2002, §3, No. 12, Acts of Parliament, 2002 (India).

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arbitrable under required statute(s).”3

[¶2.] It is further contended that by explicitly stating that subordinate rights in personam arising
from acts in rem are arbitrable, the SCI laid the foundation for private adjudication of statutory
claims in India. This test was used by the SCI to overturn Himangni Enterprises v. Kamaljeet Singh
Ahluwalia and decide that disputes between landlords and tenants under the Transfer of Property
Act are arbitrable in India.”4
[¶3.] It is put-forward The Claimant is not attempting to explicitly question competition law
principles, but rather the implementation of these principles under the specific contractual
arrangement formed by the BDA. The Claimant contends that it is seeking a declaration that certain
BDA conditions are unconscionable under contract.
[¶4.] It is further contended on behalf of the claimant that the issue is about rights in personam
(against a specific person) rather than rights in rem (against the entire world). It also asserts that,
whereas claims under competition law are typically rights in rem, the claimant in this case is
requesting a determination that specific contractual conditions are unfair, which relates to individual
rights.

B. BARD DEVELOPER’S AGREEMENT SHOWS THE INTENT OF PARTIES TO SUBMIT TO

ARBITRATION

[¶5.] It is contended that In the case of Anand Agarwal and Another v. Dr. Narendra Malhotra
and others 2023 the court discussed Sub-section 4 of Section 7 of Arbitration and Conciliation
Act 2015 for the present purposes in order to ascertain the true intent of the parties and it is
extracted hereinafter:- “(4) An arbitration agreement is in writing if it is contained in one of
the following documents: (a) a document signed by the parties; (b) an exchange of letters,
telex, telegrams, or other means of telecommunication that provide a record of the agreement;
or (c) an exchange of statements of claim and defence in which the existence of the agreement
is alleged by one party and not denied by the other.”5 All the necessary conditions are fulfilled
in the present case.
[¶6.] It is argued that the drafting of the arbitration clause is crucial. If the language is broadly
phrased, as enshrined in Mitsubishi's case, so that “any and all disputes arising out of, in

3
Vidya Drolia and Others v Durga Trading Corporation 2019 SCC Online SC 358, ¶ 60.
4
Himangni Enterprises v Kamaljeet Singh Ahluwalia, (2017) 10 SCC 706.
5
The arbitration and conciliation Act, 1996, §7(4), No. 26, Acts of Parliament (India).

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connection with, or in relation to the agreement” are sent to arbitration.6

[¶7.] The claimant contends that the main and foremost basis for the arbitral tribunal's
jurisdiction is the BDA itself. The BDA includes a clause (Clause 25.2.1) outlining the process
for resolving disputes between the parties. This provision states that any dispute, controversy,
claim, or disagreement originating from the BDA must be settled by arbitration. It is therefore
contended that when the parties signed the contract, they consented to this process, signalling
their intention to settle conflicts through arbitration.

C. THE COMPETION LAW DISPUTES ARE ARBITRATIBLE IN CASES OF INVOLVEMENT

OF TRANS NATIONAL PARTIES

[¶8.] In 1974, the United States Supreme Court ruled that securities problems that are normally
non-arbitrable in a domestic setting will be arbitrable if they arise in conjunction with an
overseas transaction.7
[¶9.] It is therefore contended that the arbitration agreement is founded on a commercial
connection involving foreign parties and issues, which qualifies it for arbitration. Respondents
No. 1 and 2 are required parties to the dispute. Respondent No. 1 is an American international
technology conglomerate holding corporation incorporated under California law, and
Respondent No. 2 is also a firm incorporated under Washington law.

2. RESPONDENT NOS. 1 AND 2 ARE PROPER AND NECESSARY PARTIES TO

THE PRESENT ARBITRATION

[¶10.] It is contended that, without prejudice to submissions on arbitrability, the Claimant

should be allowed to implead Respondent No.1 & 2 before the arbitral tribunal because: A. the
additional parties should be impleaded on the basis of the group companies' doctrine B. the
parties being impleaded are directly concerned with the affairs and impleading them would
felicitate fair adjudication C. the principle of natural justice is being violated.

6
Mitsubishi Motors Corp v Soler Chrysler-Plymouth, Inc 473 US 614, 1985.
7
Scherk v Alberto-Culver Co 417 US 506, 1974.

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A. THE ADDITIONAL PARTIES SHOULD BE IMPLEADED ON THE BASIS OF GROUP

COMPANIES DOCTRINE.

[¶11.] “It is contended that in accordance with the group companies principle, a non-signatory
may be bound by an arbitration agreement if it is a member of the same group of businesses
as a signatory and all of the parties thereto agree that the non-signatory shall be bound by the
arbitration agreement.”8
[¶12.] Additionally, it is contended that the Supreme Court clarified the doctrine in the Chloro
Controls India case,9 wherein the court laid down the factors that guide the application of this
doctrine which are- (i.)“The non-signatory's direct link to the arbitration agreement's
signatory”; “(ii)The subject matter's direct commonality and agreement between the parties”;
(iii) “The transaction should be of a composite type, where performance of the agreement may
be impossible without the assistance, execution, and performance of additional or ancillary
agreements”; and (iv.) “Whether referring disputes under all of the agreements would be in the
best interests of justice.”
[¶13.] It is further contended that In the case of Cheran Property limited v Kasturi and sons
and limited10 the court held that, the group of companies doctrine is principally intended to
facilitate the fulfilment of a shared intention between the parties when the circumstances
indicate that the intention was to bind both signatories and non-signatories. The goal is to
determine the true nature of the business arrangement and to determine whether there is an
intent to tie someone who is not a formal signatory but has assumed the obligation to be bound
by the behaviour of a signatory from a layered structure of commercial agreements.”
[¶14.] It is also argued that “In the case of Dow Chemical France v. ISOVER Saint Gobain
(France), The Tribunal reasoned that the arbitration clause would bind these affiliates "by
virtue of their role in the contract's conclusion, performance, and termination."11 As a result,
under the 'group of companies' doctrine, when a company that is part of a group of companies
enters into an arbitration agreement, it may bind its non-signatory associate companies if it can
be demonstrated that the parties intended to bind both signatory and non-signatory
companies.”

8
Charlie Caher, Dharshini Prasad and Shanelle Irani, ‘The Group of Companies Doctrine - Assessing the Indian
Approach’ 9.2 IJAL (2021) Indian Journal for Arbitration Law 3.
9
Chloro Controls India Private Limited v Severn Trent Water Purification Inc., (2013) 1 SCC 641.
10
Cheran Properties Ltd v Kasturi and Sons Ltd & Ors (2018) 16 SCC 413.
11
Dow Chemical v Isover-Saint-Gobain, ICC Award No. 4131, YCA 1984.

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[¶15.] Rule 9 of the Singapore International Arbitration Centre Rules 2016 12 It enables the
Third Party/non-signatory the ability to nominate the Arbitrator by submitting an application
to the already appointed Arbitrators, in addition to allowing the Third Party to participate.”
[¶16.] It is contended that respondent no. 1 is integral part and is the parent company
Additionally Respondent no.2 is acting on the behalf of Respondent No.1 as it is the primary
entity owing and running operations of various products being offered by respondent no. 1 and
its subsidiaries. Also, the operations of respondent no 2 in India are supported by respondent
no.3 this forms a direct relationship between the three companies.
[¶17.] The principal agreement between respondent no. 1 &2 would not be feasible unless the
subsidiary agreement between respondent no 2&3. therefore, the transaction would clearly of
“composite nature”. Hence the parties form part of group of company’s doctrine. And the
claimant’s claim that Respondent 1& 2 are necessary parties to the contract is correct.

B. THE GROUP OF COMPANIES DOCTRINE CAN BE INVOKED ON THE BASIS OF THE

CLAIMING “THROUGH OR UNDER” PRINCIPLE.

[¶18.] It is contended that “In section 45, the expression “any person” clearly refers to the
legislative intent of enlarging the scope of the words beyond “the parties” who are signatory
to the arbitration agreement. Of course, such applicant should claim through or under the
signatory party.13 The 2015 Amendment to section 8 (1) expanded the scope of “party” to
include persons claiming through or under. It is contended that the group of companies'
doctrine can be invoked in the present case on the basis of this principal.” The legislature has
through amendments in the year 2015 and 2019 has widened the Scope of section 17 of the
Arbitration and Conciliation Act. There is legislative intent available to implead them under
section 17 of the Act.
[¶19.] The additional parties claim "through or under" the respondents as Respondent No. 1
Speed Inc. and Respondent No. 2 Bard LLC are contractually required parties. As additional
parties claim "through and under," the group of companies' doctrine can be applied on this
basis.

12
Singapore International Arbitration Centre Rules 2016, Rule 9.
13
Chloro Controls India Private Limited v Severn Trent Water Purification Inc., (2013) 1 SCC 641.

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C. NON- IMPLEADMENT WILL LEAD TO THE VIOLATION OF PRINCIPLE OF NATURAL

JUSTICE.

[¶20.] It is contended that as per the rule of ALTERAM PARTEM No one should be
condemned before being heard, “The parties shall be treated with equality and each party shall
be given a full opportunity to present his case.”14
[¶21.] Furthermore, it is held that "full opportunity" refers to the freedom of expression and
that the parties to the arbitration proceeding must be given adequate notice and a full
opportunity to be heard. It is necessary for a fair hearing. Before the Court or Tribunal issues
an order or award against anyone, a fair chance to present arguments must be given.
[¶22.] It is further argued that the Claimant has a right to present his case before the tribunal
because he has a right to be heard, and that if the arbitration tribunal does not hear his case for
the implementation of the additional parties, he is being denied natural justice, which violates
the basis of arbitration. The parties in the instant case should be impleaded on the basis of the
group of companies doctrine as the criterion for the doctrine is met, and the principle of
claiming "through or under" the doctrine can be used as well. The claimant's right to natural
justice will be infringed if he or she is not heard.

3. THE CLAIMANT WAS NOT OBLIGED TO ATTEMPT TO RESOVLE THE

DISPUTE THROUGH GOOD FAITH NEGOTIATIONS.

It is claimed by the CLAIMANT that the pre-arbitral dispute process contained in the dispute
resolution clause of the BDA Contract is not enforceable or mandatory because A. Pre arbitral
dispute process is not mandatory or enforceable B. Pre-arbitral clauses are not mandatory or
enforceable under other jurisdiction C. Pre-arbitral dispute resolution process is not a Pre-
requisite. D. Respondent’s behaviour nullified the requirement of the pre-arbitral dispute
clause

A. PRE-ARBITRAL DISPUTE PROCESS IS NOT MANDATORY.

[¶23.] The validity and consequences of non-compliance with these pre-arbitration procedural

14
UNCITRAL Model Law on International Commercial Arbitration, Article 18.
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requirements are matters of contractual interpretation of individual agreements15. Further, pre-

arbitral clauses are merely directory and not mandatory in nature16.The option of arbitration is
not conditional on amicable settlement processes taking place between the Parties17. If the pre-
arbitral dispute resolution clause is read as a mandatory requirement to be complied with
before invoking arbitration, it results in violation of the right of Parties to an expeditious trial18.
Thus, Parties can invoke arbitration, even when prerequisite conditions to arbitration are not
satisfied.

B. PRE-ARBITRAL CLAUSES ARE NOT MANDATORY OR ENFORCEABLE UNDER OTHER

JURISDICTIONS.

[¶24.] It is contended that, A dispute resolution clause is an expression of the parties‟

agreement on the forum to have a matter resolved. 19 If the clause provides for a pre-arbitral
dispute escalation process by ultimately having a matter proceed to arbitration, the intention
to arbitrate must be upheld, as the object is to give full effect to parties to agreement.20
[¶25.] In the present case, Clause 25.2.121 was a multi-tiered clause ultimately agreeing to
arbitrate, even though friendly discussions and mediation were preconditions to arbitration.
Thereby, the CLAIMANT contends that pre-arbitral dispute resolution is not mandatory and
enforceable. However, in the Emirates case, the England and Wales High Court held that the
obligation to resolve disputes through friendly discussions is merely an agreement to negotiate
with a view to settling the disputes between the Parties, and thus it was unenforceable22. Hence
the pre-arbitral dispute resolution is not mandatory and enforceable.
C. PRE-ARBITRATION DISPUTE RESOLUTION PROCESS IS NOT A PRE-REQUISITE.

[¶26.] It is argued that several court rulings emphasise that pre-arbitration steps, though
legitimate, aren't strict necessities. They're considered as contractual responsibilities, violating
which grants the right to claim damages. Explicitly designating a step a "condition precedent"

15
Gary B. Born, International Commercial Arbitration (3rd edn, Kluwer Law International 2021) 975.
16
Gary B. Born (n 4) 982; Ravindra Kumar Verma v M/S. Bptp Ltd. & Anr., 2015 (147) DRJ 175.
17
Haldiram Vs. M/s DLF Commercial Complexes Limited, 193 (2012) DLT 410.
18
Saraswati Construction Co. v Co- operative Group Housing Society Ltd. 1995 (57) DLT 343; Union Of India v
M/S. Baga Brothers & Anr. S., 2017 SCC OnLine Del 8989.
19
King Kong Henry v Tanglin Club, [2018] SGHC 153.
20
Ibid.
21
Ibid.
22
Emirates Trading Agency LLC v Prime Mineral Exports Private Ltd [2014] EWCH 2104, 38.

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enhances the likelihood that non-compliance could restrict admission to arbitration

[¶27.] It is further claimed that the legal landscape reflects a nuanced understanding that,
despite the legality and necessity of certain pre-arbitration procedural requirements, their
breach does not categorically impede the initiation of arbitral proceedings. Instead, the
emphasis shifts towards recognizing them as contractual commitments, affording parties the
avenue of seeking redress through claims for damages rather than erecting insurmountable
barriers to arbitration. the requirement of pre-arbitral steps is not mandatory23.

D. THE RESPONDENT’S BEHAVIOUR NULLIFIED THE REQUIREMENT TO FULFILL PRE-

ARBITRAL DISPUTE RESOLUTION CLAUSE

[¶28.] It is urged that the claimant issued a letter dated on 14 November 2022 to the respondent
but there was no specific response to the letter issued by the claimant. However, On 1 st
December 2022, Respondent no. 3 issued a notification to all the app developers in India. The
Respondent was adamant about its stance. It implies that there was no intent on part
Respondent to change its policy.
[¶29.] It is thereby contended that negotiations would have been futile given the Respondents'
refusal to consider changes to the payment policy. The Claimant therefore asserts that the
obligation to engage in good faith negotiations was not mandatory but directory. If there is no
intention to negotiate before referring the disputes to arbitration, then it is not mandatory to do
so even if such negotiation is a prerequisite for initiating arbitration proceedings 24. The SC
ruled that arbitration can be commenced even when pre-arbitral conditions are not fulfilled25.
The Court has held that the pre-arbitral process is reduced to an empty formality when the
parties are unresponsive or have already adopted a rigid stand that they are unwilling to alter,
which would render any attempt at discussions a nullity.

4. THE CLAIMANT IS ENTITLED TO INTERIM RELIEF AGAINST

DELISTING/REMOVAL FROM THE BARD APP STORE UNDER SECTION 17
OF THE ARBITRATION ACT.

It is Humbly submitted that the purpose of interim relief is aimed at preserving the status quo

23
Demerara Distillers Pvt Ltd. v Demerara Distilleries Ltd [2015] 13 SCC 610.
24
M/S Imz Corporate Pvt Ltd v Msd Telematics Pvt Ltd ,[2021] SCC OnLine Del 3061.
25
VISA International Ltd v Continental Resources (USA) Ltd, AIR 2009 SC 1366.

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between the parties pending the resolution of a Dispute. It has a pure legal basis. The Section
1726 (1)(e) of the Act provides for the Arbitral Tribunal to grant interim relief to CLAIMANT
against delisting and removal from the Bard App store. The basis for this power also lies in
Rule 30 of the SIAC rules. It is further submitted that in the facts of the case at hand the
CLAIMANT is entitled to the same on account of two reasons: The Balance of Convenience
lies in favour of the Claimant A, and Delisting it from the Bard’s App store will lead to
irreparable harm to the claimant B.

A. THE BALANCE OF CONVENIENCE IS IN THE FAVOUR OF THE CLAIMANT

[¶30.] It is contended that The Balance of Convenience is a well established legal principle. It
has been regularly applied by Courts and Tribunals in India27 and abroad28, while ascertaining
if any interim relief is to be granted to the parties in Dispute.29
[¶31.] The principle of balance of convenience is a fundamental principle of arbitration that is
applied by the tribunals when granting interim reliefs.30 It requires the arbitral tribunal to weigh
the potential harm to the Claimant if interim relief is not granted against the potential harm to
the respondent if interim relief is granted.31
[¶32.] The Major Principles of Balance of convenience to be tested in the instant case are (A.)
The potential harm that the claimant may suffer if the interim relief is not granted. (B.) The
potential harm that the respondent may suffer if the interim relief is granted. The Courts have
regularly granted Interim measure to the Party who has a major chance of Suffering Harm if
such relief is not granted. (C.) If the Claimant’s claim has some sort of public Interest attached
to it then it deviates convenience in his favour.
[¶33.] It is Further claimed by the claimant that in the case at hand, The Claimant as compared
to the Respondant, is a small business that relies on the Bard App Store for distribution of its
apps. The Bard App store is a Primary application download Platform used by 86% of the
Mobile users in India.32 On the other hand The Claimant has an active user base of 12 million33

26
The arbitration and conciliation Act, 1996, §17(1)(e), No. 26, Acts of Parliament (India).
27
Ajay Mohan and Ors. v H.N. Rai and Ors. (2008) 2 SCC 517.
28
Go Airlines Limited v International Aero Engines, LLC, SIAC Case No. 077 of 2023.
29
Flywheel Logistics Solutions Pvt. Ltd. v Hinduja Leyland Finance Ltd., 2020 SCC OnLine Mad 20614 ¶ 28.
30
Gary Born, International Commercial Arbitration (2021) 2424 – 2563.
31
José Maria Abascal, The Art of Interim Measures, in Albert Jan van den Berg (ed.), International Arbitration 2006:
Back to Basics? 755 (2007). (at 765).
32
Moot preposition, ¶6.
33
Moot preposition, ¶1.

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people. The approximately 90% of the Claimant’s profit is generated by the users from its in-
app purchases from the Claimant’s app downloaded from the bard app store.34
[¶34.] If the Claimant is delisted from the Bard’s app store, it will lead to severe financial
harm to him. It has the potential to make Claimant bankrupt and out of finances since
approximately 90% of the Claimant’s income is coming from the users who have purchased
in-app services from the Claimant’s app. Delisting him from the Bard’s app store will deny
Claimant the Platform through which it showcases his services. It will lead to the
disappearance of the Claimant from the Market. It is further submitted that the harm that the
Claimant will suffer if the interim relief is not granted is greater than the harm that the
Respondent will suffer if the interim relief is granted. The Respondent is a large corporation
with a significant market share. It will not suffer any significant harm if the Claimant is granted
interim relief.
[¶35.] It is further argued that that the public interest is in favour of granting interim relief.
This is because the public interest is served by protecting competition and innovation in the
app market. Delisting the Claimant from the Bard App Store would stifle competition and
innovation in the market. The Claimant will lose revenue from the sale of its apps, incur
increased costs, reduce its investment in future growth, and may even be forced to lay off
employees. Thereby in light of the above submissions it is argued that the Balance of
Convenience lies in favour of the Claimant. Interim relief should be granted to him.

B. DELISTING IT FROM BARD’S APP STORE WILL LEAD TO IRREPARABLE HARM TO THE

CLAIMANT

[¶36.] It is again claimed that, The Doctrine of Irreparable harm35 is another doctrine which is
applied by the courts and tribunals while ascertaining if any interim relief is to be granted to
the Parties in Dispute.36 The doctrine of irreparable harm is one of the key principles governing
the grant of interim relief.37 Irreparable harm is harm that cannot be adequately compensated

34
Moot preposition, ¶20.
35
Gujarat Bottling Co. Ltd. v Coca Cola Co., (1995) 5 SCC 545, ¶ 43.
36
M. Gurudas v Rasaranjan, (2006) 8 SCC 367, ¶¶18–19, 21.
37
Flywheel Logistics Solutions Pvt. Ltd. v Hinduja Leyland Finance Ltd., 2020 SCC OnLine Mad 20614, ¶ 30
(India).

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for in damages.38
[¶37.] It is further argued that there are three types of irreparable harm that would be tested
against the facts of the case at hand to ascertain whether the Claimant is entitled to the interim
relief. (A.) Financial harm (B.) Reputational harm (C.) Competitive harm.
[¶38.] In light of ascertaining Financial harm, The Claimant will lose revenue from the sale of
its apps on the Bard App Store. This will have a significant impact on the Claimant's business,
as it relies on this revenue to cover its costs and invest in future growth. The Claimant may be
forced to lay off employees or even close its business if it does not have access to this revenue.
[¶39.] In light of ascertaining Reputational harm, The Claimant's reputation will be damaged
if it is delisted from the Bard App Store. This is because the Bard App Store is the largest app
store in India and is seen as a trusted source of high-quality apps. Delisting from the Bard App
Store will send a message to consumers that the Claimant's apps are not good enough to be on
the Bard App Store. This will make it difficult for the Claimant to attract new customers and
partners.
[¶40.] In light of ascertaining Competitive harm, The Claimant will be at a competitive
disadvantage if it is delisted from the Bard App Store. This is because the Bard App Store is
the primary way for consumers to discover and download apps. Without access to the Bard
App Store, the Claimant will have a much harder time reaching its target audience. This will
make it difficult for the Claimant to compete with other app developers.
[¶41.] Thereby, in light of the facts of the above case it is finally put forth before the arbitral
tribunal that the Claimant will suffer irreparable harm if the interim relief is not granted. This
is because the financial, reputational, and competitive harm that the Claimant will suffer will
be difficult or impossible to compensate for in damages. Also, the Balance of convenience lies
in favour of the Claimant i.e The Claimant will suffer more damage if the interim relief is not
granted as compared to the damage Respondant will suffer if the relief is granted.
which would render any attempt at discussions a nullity.

5. THE MANDATORY CONDITION TO USE THE BARD BILLING SYSTEM FOR

PAID APPS IN THE BARD APP STORE IS ILLEGAL, INVALID, AND
UNENFORCEABLE IN LAW

38
Applying the Model Law’s Standard for Interim Measures in International Arbitration, Jose F. Sanchez , P.221.

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It is claimed that the mandatory condition to use the Bard billing system for paid apps in the
Bard app store is not legal, valid, and enforceable in law as it is A. It is unconscionable as per
the contract act, B. It amounts of abuse of dominant position, unfair and discriminatory
condition as per the Competition Act, 2002.
A. IT IS UNCONSCIONABLE AS PER THE CONTRACT ACT

[¶42.] It is further claimed on behalf of the Claimant that the mandatory use of the Bard Billing
System, as per the updated payments policy, is void under contract law. The Indian Contract
Act, 187239, prohibits unconscionable terms in a contract. In particular, Section 16 of ICA
indicates that “a contract is deemed to be induced by undue influence where the will of the
party consenting is able to be dominated by the other one due to the presence of the relation
subsisting between them.” One party influence the other while the contract is formed to acquire
an unfair advantage over the other. It was held in the case of Ganesh Narayan Nagarkar vs
Vishnu Ramchandra Saraf that an unreasonable beneficial position is a little leeway or
improvement obtained through unfair means40. It appears when bargains favour an individual
who values influence and prove unjustified to others. Hence in the present case, the respondent
is dominating the app developers by updating the payment policy to make the use of the Bard
Billing system mandatory.
[¶43.] It is most humbly contended that Bard's updated terms, particularly the forced use of
the Bard Billing System, is one-sided and establish an unfair negotiating leverage, thereby
falling under the law of unconscionability. Unconscionable terms are drafted in a manner that
they favour one party and impose, severe, unfair, unjust conditions on the opposing side.41 An
unconscionable term is one that is so gross and absurd in the light of the business practices of
the time and place that it should not be enforced. In Standard Chartered Bank case,42 the court
held that unconscionable terms in a contract, where there is an inequality of bargaining power,
will not be enforced.
[¶44.] It is submitted that Unilateral contract modification occurs when one party alters the
terms of the contract without input from other contracting parties.43 Such Unilateral

39
The Indian Contract Act, No. 9 of 1872.
40
Ganesh Narayan Nagarkar v Vishnu Ramchandra Saraf (1907) 9 BOMLR 1164.
41
Chapter IV, Section 208, 199th Law Commission report.
42
Standard Chartered Bank v State of Maharashtra [2001] 8 SCC 197.
43
Unconscionable contracts: a critical analysis of Indian legal system, pg. 231.

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modifications to contracts have been stuck down by courts.44 This is really fairly common,
especially in changes to service agreements or Terms and Conditions. These changes are legal
and enforceable when your new contract complies with best practices, including providing
proper notice to the user, noticeability of the changes, and affirmative assent by the user. 45
These modifications should not lead to material change in the substance of the contract.46 In
the present case new requirement imposed by the Respondent has lead to a material change in
the substance of contract. Therefore, the Claimant hereby challenges the modification clause
47
(Clause 14.8 of the BDA) by arguing that it gives Bard unilateral power to modify the
agreement, creating an imbalance in bargaining power. Subsequently new notification issued
by the Respondent making the Claimant to mandatorily use their payment system should also
be held as invalid.
[¶45.] It is argued that, In the case at hand, the Respondent is incorrect in changing the terms
of the contract, newly inducted modifications with respect to payment policy should be held
as to be creating undue influence on the Claimant. In Central Inland Water Transport
Corporation case48, The Supreme Court of India established guidelines governing
unconscionable contracts. The court ruled that if a contract or term is deemed unjust,
oppressive, or unconscionable, the court has the authority to prohibit its enforcement.
[¶46.] The Supreme Court, in Central Inland Water Transport Corporation case,49 emphasized
the principle of good faith in contracts and held that the court has the power to strike down
unfair and unreasonable terms that create a significant imbalance in the rights and obligations
of the parties. The Claimant in the present case further challenges 19.8 of the BDA50, It is
contended that the clause is one-sided and unconscionable. The clause 14.8 and Clause 19.8
of the BDA should be revoked. The Claimant is entitled from protection against the
contentious clause of the BDA as per the Doctrine of dotted line contracts.51 The BDA provides

44
Sangyong Engineering and Construction Co. Ltd. v National highway authority of India.
45
Shivani Saxena, Zomato Gold, Ola Select, Amazon Prime: Are Unilateral Amendments Getting The Better Of
Users, BQ PRIME (28 October, 2018), https://www.bqprime.com/law-and-policy/zomato-gold-ola-select-amazon-
prime-are-unilateral-amendments-getting-the-better-of-users.
46
Kenton P. Knop, Boilerplate Bulletin: The Dangers of Unilateral Change-in-Terms Clauses, MASUDA FUNAI
(July 21, 2020), https://www.masudafunai.com/articles/boilerplate-bulletin-the-dangers-of-unilateral-change-in-
terms-clauses.
47
Moot preposition, Clause 14.
48
Central Inland Water Transport Corporation v Brojo Nath Ganguly [1986] AIR 1571.
49
Ibid.
50
Moot preposition, Clause 19.8.
51
Revisiting the Case of Dotted Line Contracts in Commercial Transactions – How Equal is the Bargaining Power?’
(The Contemporary Law Forum, 11 November 2021) https://tclf.in/2021/11/12/revisiting-the-case-of-dotted-line-
contracts-in-commercial-transactions-how-equal-is-the-bargaining-power.

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for a severability clause (Clause 27). It is liable to be revoked as per this clause provided in
BDA.
B. IT IS IN VIOLATION OF THE COMPETITION ACT

[¶47.] It is contended by the Claimant that under the Competition Act, the mandatory
condition to use Bard Billing System limits market access to other payment processors and
stifles innovation in the payment processor market. It also amounts to abuse of Dominant
position under Section 4(2)(a)(i), 4(2)(b) and 4(2)(c) of the Competition Act, 2002 52. In DLF
Limited case 53, the CCI imposed a hefty penalty on DLF for abuse of its dominant position.
Similarly, In the case of CCI v. Bharti Airtel Limited and Ors54, the CCI imposed penalties on
Bharti Airtel for abusing its dominant position.55
[¶48.] It is contended that in order to prove abuse of Dominance it is necessary to delineate a
relevant Market.56 Relevant market can be further classified in two broad categories i.e
“Relevant geographic market”57 “It market comprises the area in which the firms concerned
are involved in the supply of products or services and in which the conditions of competition
are sufficiently similar”, and “Relevant product market”58 “It means a market comprising the
area in which the conditions of competition for supply of goods or provision of services or
demand of goods or services are distinctly homogenous and can be distinguished from the
conditions prevailing in the neighbouring areas.” The prevalence of Pixel OS in approximately
86% of mobile phones in India signifies its market dominance. Further, as a consequence of
this Bard App store becomes the primary app store which is used by more than 83% of mobile
phone users in India. In the facts of the case Mobile Operating system Market in India can be
considered as the relevant geographic Market and Platform provided by the Bard app Store
can be considered as relevant product market. Therefore, It is established that Bard, being a
major player in both mobile operating system market and app store market, holds a dominant
position.
[¶49.] It is further contended that Bard’s policy discriminates against app developers by

52
The Competition Act, 2002, §4 (2)(c), No. 12, Acts of Parliament, 2002 (India).
53
DLF v Competition commission of India, MANU/TA/0012/2014.
54
CCI v Bharti Airtel Limited, [2019] SCC OnLine CCI 39.
55
The Competition Act, 2002, §4 (2)(c), No. 12, Acts of Parliament, 2002 (India).
56
The Competition Act, 2002, §2(r), No. 12, Acts of Parliament, 2002 (India).
57
The Competition Act, 2002, §2(s), No. 12, Acts of Parliament, 2002 (India).
58
The Competition Act, 2002, §2(t), No. 12, Acts of Parliament, 2002 (India).

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limiting their choice of payment processors, hindering market access to alternative processors
like razor pay, PayPal, phone pe, and Paytm. Bard, being a major player in the market, is
allegedly abusing its dominance by imposing non-negotiable and discriminatory conditions,
limiting market access for other payment processors, and creating a 'take it or leave it' situation
for app developers. It shows the abuse of Bard’s dominance towards the app developers.
[¶50.] Thereby, In light of the submissions given above it is finally contended, that as a result
of Bard App Store's dominance in the relevant market, and the alleged exploitation of this
dominating position through arbitrary changes in payment policy. The Claimant seeks a
determination that the revised payment policy is invalid. It is submitted that Bard's insistence
on the exclusive use of the Bard Billing System constitutes an unfair and discriminatory
condition. This imposition, allegedly creating an unjust competitive advantage, forms the basis
of the Claimant's objection to the updated payments policy, as it allegedly infringes on fair
business practices.

6. THE IMPOSITION OF 5% SERVICE FEE IS ILLEGAL, INVALID AND

UNENFORCEABLE IN LAW

It is most humbly Submitted on behalf of the Claimant that the imposition of 15% Service fee
is not Legal, valid and Enforceable in law. It is wrong on both the aspects of Law as well as
commerce, it is liable to be struck down as, A. It is in violation of the Contract Act B. It is in
violation of the Competition law.
A. IT IS IN VIOLATION OF THE CONTRACT ACT

[¶51.] It is claimed that Under Indian contract law, a contract term is unenforceable if it is
unfair or unreasonable.59 Unfair and unreasonable terms in a contract are those that give one
party an unfair advantage over the other. 60 Such terms may be unfair because they are one-
sided, excessive, or oppressive.61 They might also be unreasonable because they are unclear,
ambiguous, or surprising.62 It is further Submitted that in order to ascertain, if a particular
contract term is unfair and unreasonable, the courts have considered the following factors such

59
Garner, B. A., 'Unconscionable contract or term', Black 's Law Dictionary (2011, Ed. 9), West Publishing
Company.
60
Ibid.
61
Sarin, M. L. (1992) ‘Contract Unconscionability in India', Loyola of Los Angeles international and Comparative
law Review, 14(I), pp. 569- 580.
62
Law Commission of India, 199th Report.

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as A. The bargaining power of the parties B. The impact of the contract term on the parties.
[¶52.] It is submitted that the bargaining power of the parties is a key factor in determining
whether a contract term is unfair or unreasonable. If one party has significantly more
bargaining power than the other, the other party may be forced to accept unfair or unreasonable
terms in order to get the contract.63 In the present case, 15% service fee is unfair and
unreasonable because the Claimant has very little bargaining power vis-à-vis Respondent No.
3. Respondent No. 3 has a dominant position in the market for mobile app stores in India, and
the Claimant has no real choice but to accept the terms of the BDA if it wants to distribute its
apps through the Bard App Store. It is further argued that the 15% service fee is unfair and
unreasonable because it arises from a standard term in the BDA (Clause 14). This means that
all app developers must agree to the 15% service fee if they want to distribute their apps
through the Bard App Store. This gives Respondent No. 3 a significant advantage in the
negotiations, as app developers have no choice but to accept the terms of the BDA.
[¶53.] It is further submitted that the impact of the contract term on the parties is another
important factor in determining whether a contract term is unfair or unreasonable. A contract
term is more likely to be considered unfair or unreasonable if it has a significant negative
impact on one of the parties. In facts of the case at hand the 15% service fee can have a
significant negative impact on app developers. The 15% service fee reduces the amount of
money that app developers earn from their apps. It also makes it more difficult for app
developers to compete with Respondent No. 3, which does not have to pay a 15% service fee
on its own apps. It is again Submitted that the 15% service fee will have a negative impact on
consumers. The 15% service fee will be passed on to consumers in the form of higher app
prices. This can make apps less affordable for consumers, and it can discourage people from
downloading apps.
[¶54.] Thereby, In light of the submissions given above it is submitted that the requirement of
15% service fee is not legal, valid and enforceable as it is unfair and unreasonable.
B. IT IS IN VIOLATION OF THE COMPETITION ACT

[¶55.] It is further claimed by the CLAIMANT that the 15% service fee imposed by the
Respondent is not in consonance with the principles enshrined in the Competition Act, as i. It
is excessive and unreasonable, ii. It is Unfair and discriminatory, iii. It going to hamper

63
Ibid.

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competition in the Market.

i. It is Excessive and Unreasonable
[¶56.] It is submitted that Excessive and unreasonable pricing is a type of anti-competitive
practice that is prohibited under the Competition Act, 2002.64 It occurs when a dominant
undertaking charges a price that is significantly above the competitive level or above the
economic value of the product or service. 65 Excessive and unreasonable pricing is a serious
anti-competitive practice that can harm consumers, competitors, and the economy as a whole.66
[¶57.] It is Submitted that the 15% service fee is excessive and unreasonable because it is
significantly higher than the service fees charged by other app stores and payment processors
and also it is not reasonable for the value provided by Respondent. It is to be noted that other
App stores such as Jeevan, sonix and ubun does not charge a service fee at all. The payment
processors such as Paypal, paytm and phonepe charges an amount of only 0-3 % as transaction
fee. The Respondent in the case has contended that the 15% service fee cannot be compared
with a transaction fee charged by the payment processors as service fee includes a lot of other
things other than a mere transaction fee. However, the Bard app store does not provide
anything new as compared to the services provided by other app Stores. It is the charge for
merely hosting those apps on its platform, as the Respondent is dominant in app store market
in India. It has charged a fee according to its whim and fancies. It is further submitted that, the
Respondent in the present case has Compared its service fee to the fee charged by Orange app
store. It is contended by them that orange charges a fee of upto 30% of the revenues earned.
However, the Respondent has ignored the fact that Orange App store is exclusive to only
Orange OS and Orange OS is used exclusively for the Phones manufactured by Orange, only
14% of the mobile phones are Ophones. Further, it is well established principle of law that an
abuse of price by someone does not justify an abuse of price by someone else. Thereby, in
light of the submissions given above it is contended that the 15% service fee is excessive.
ii. It is Unfair and Discriminatory
[¶58.] It is claimed that Unfair and discriminatory pricing is a type of anti-competitive practice
that is prohibited under the Competition Act, 2002.67 It occurs when an undertaking charges a
price that is unfair or discriminatory to its customers.68 Unfair and discriminatory pricing is a

64
The Competition Act, 2002, § 4, No. 12, Acts of Parliament, 2002 (India).
65
Bostoen, F. (2019), “Online Platforms and Pricing: Adapting Abuse of Dominance Assessments to the Economic
Reality of Free Products”, Computer Law & Security Review, Vol. 35/3.
66
Google, competition commission of India, Case Nos. 07 of 2020, 14 of 2021 and 35 of 2021, ¶ 319.
67
The Competition Act, 2002, §4 No. 12, Acts of Parliament, 2002 (India).
68
OECD (2020), Abuse of dominance in digital markets, Pg. 33.

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serious anti-competitive practice that harm consumers and competitors.69

[¶59.] It is submitted that in facts of the case at hand The service fee is unfair because it places
a greater burden on app developers who sell paid apps. These app developers already have to
pay for the costs of developing and maintaining their apps. It is also submitted that the service
fee is discriminatory because it favors app developers who offer free apps or in-app purchases.
These app developers do not have to pay the 15% service fee. It is further submitted that the
difference between 10% fee to app developers having revenue below 1 crore and 15% fees to
app developers having revenue above 1 crore is not justified as, A. App developers with
revenue above 1 crore are being charged a higher fee, even though they are providing the same
value to Respondent. This is unfair and discriminatory, as it places a greater burden on more
successful app developers. B. Respondent would incur the same costs, regardless of the
revenue of the app developer. There is no reason why app developers with revenue above 1
crore should be charged a higher fee to cover these costs. C. The difference in fees is not
justified because it is not necessary for Respondent to generate a profit. Respondent is already
a very profitable company. It does not need to charge app developers a higher fee in order to
generate a profit. Thereby, in light of these submissions it is contended that the service fee is
discriminatory.
C. IT IS GOING TO HAMPER COMPETITION IN THE MARKET

[¶60.] It is further contended that the service fee will be a barrier to entry for new app
developers. It will make it more difficult for new app developers to compete with established
app developers, which have the resources to pay the 15% service fee. The service fee can lead
to higher prices for consumers. It is further submitted that app developers will have to pass on
the cost of the service fee to consumers in the form of higher app prices. The service fee will
also reduce the amount of money that app developers earn from their apps. This will make
difficult for app developers to invest in new development and innovation.

69
Ibid.

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PRAYER

In the light of forgoing submission, CLAIMANT respectfully request the tribunal:

1. TO FIND AND HOLD THAT THE DISPUTE RAISED BY THE CLAIMANT IN THE PRESENT

ARBITRATION IS ARBITRABLE IN NATURE.

2. TO FIND AND HOLD THAT RESPONDENT NO. 1 AND 2 ARE NECESSARY AND PROPER
PARTIES TO THE PRESENT ARBITRATION.

3. TO FIND AND HOLD THAT THE CLAIMANT HAS NOT FAILED TO RESOLVE THE DISPUTE

THROUGH GOOD FAITH AND NEGOTIATION.

4. TO FIND AND HOLD THAT THE CLAIMANT IS ENTITLED TO INTERIM RELIEF AGAINST

DELISTING /REMOVAL FROM BARD APP STORE UNDER SECTION 17 OF THE

ARBITRATION ACT.
5. TO FIND AND HOLD THAT THE MANDATORY CONDITIONS TO USE BARD BILLING

SYSTEM FOR PAID APPS IN THE BARD APP STORE IS NOT LEGAL, VALID AND

ENFORCEABLE.

6. TO FIND AND HOLD THAT THE IMPOSITION OF 15%SERVICE FEE IS NOT LEGAL, VALID

AND ENFORCEABLE.

Or any other order and/or declaration that the Tribunal may deem fit in light of justice,
equity and good conscience

Dated: 27-29 October, 2023 S/d-

Place: BITS, GOA CAMPUS COUNSELS for CLAIMANT

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