17R

IXTH NLIU JUSTICE R.K. TANKHA MEMORIAL INTERNATIONAL ARBITRATION MOOT,

2024

Before
THE ARBITRAL TRIBUNAL AT
BHOPAL SIAC CASE NO. /2024

IN THE ARBITRATION PROCEEDINGS BETWEEN

PENGUIN ANTARCTIC ADVENTURES PVT. LTD.................................................................... CLAIMANT

-versus-
ZEUS LLC..............................................................................................................RESPONDENT

[MEMORIAL ON BEHALF OF RESPONDENTS]

 IXTH NLIU JUSTICE R.K. TANKHA MEMORIAL INTERNATIONAL ARBITRATION MOOT, 2024

TABLE OF CONTENT

List of Abbreviations..................................................................................................................3
Index of Authorities....................................................................................................................5
Statement of Facts......................................................................................................................9
Statement of Issues...................................................................................................................11
Summary of Arguments...........................................................................................................12
Written Pleadings.....................................................................................................................14
1. Does the tribunal have jurisdiction to proceed without the 7.5% pre-arbitral deposit? If
yes, should it order security for costs pursuant to its powers under Rule 27(j) of the SIAC
Rules, 2016?.............................................................................................................................14
2. BranStark does not qualify as an expert report................................................................19
3. Data Supply Agreement is not governed by CISG...........................................................26
4. Classification of Data as "Goods" under CISG....................................................................33
Request for Relief.....................................................................................................................37

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 IXTH NLIU JUSTICE R.K. TANKHA MEMORIAL INTERNATIONAL ARBITRATION MOOT, 2024

LIST OF ABBREVIATIONS

Abbreviation Full Form

& AND

Anr Another

AI Artificial Intelligene

BSRO Bharat Space Research Organisation

B.S. BranStark

CEO Chief Executive Officer

Dr. Doctor

DSA Data Supply Agreement

DPDPA Digital Personal Data Protection Bill

ESG Environmental Social Governance

IT Information Technology

Inc. Incorporated

Ors. Others

Paap Penguin Antarctic Adventures Private

Limited

Pg. Page

P. / Para. Paragraph/paragraphs

PO Penguin-One

Pvt. Private

Ed. Editor

Edn. Edition

e.g., For example

Ltd. Limited

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 IXTH NLIU JUSTICE R.K. TANKHA MEMORIAL INTERNATIONAL ARBITRATION MOOT, 2024

LLC Limited Liability Company

LCIA London Court of International Arbitration

Mr. Mister

Ms. Miss

SOGA Sale of Goods Act, 1930

SIAC Singapore International Arbitration Centre

§ Section

v. versus

UK United Kingdom

US United States of America

USD United States Dollar

Vol. Volume

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 IXTH NLIU JUSTICE R.K. TANKHA MEMORIAL INTERNATIONAL ARBITRATION MOOT, 2024

INDEX OF AUTHORITIES

Foreign Awards and Cases

1. Advent Systems Ltd v. Unisys Corpn., 925 F 2d 670 (3d Cir1991.............................29
2. Aluminum Hydroxide Case, 1997................................................................................35
3. Autoweld Systems Ltd v. Kito Enterprises LLC, (2010) EWCA Civ 1469................19
4. Bonebrake v. Cox, 499 F.2d 951, 960 (8th Cir. 1974).................................................32
5. BSNL v. Union of India, (2006) 3 SCC.......................................................................30
6. Burlington Resources Inc. v. Republic of Ecuador, ICSID Case No. ARB/08/5........15
7. Chicago Prime Packers, Inc. v. Northam Food Trading Co., Cause No. 01 C 4447. .35
8. CME Czech Repub. BV v. Czechia, Final Award of 14 March 2003, 15 WTAM 83,
100 (2003)....................................................................................................................22
9. Computer Servicenters, Inc. v. Beacon Mfg. Co., 328 F. Supp. 653, 658 (D.S.C.
1970) aff'd, 443 F.2d 906 (4th Cir. 1971)....................................................................31
10. Emirate Trading Agency LLC v Prime Mineral Exports [2014] EWHC.....................18
11. FirstLink Investments Corp Ltd v GT Payment Pte Ltd and Others[2014] SGHCR 12
......................................................................................................................................28
12. ICC Case No 12739, Award, cited in Michael Bühler and Thomas H Webster,
Handbook of ICC Arbitration (Sweet & Maxwell 2008) 67........................................16
13. ICC Case No 6276 (n 4). See also ICC Case No 9812, Final Award (2009) 20(2) ICC
Ct Bull..........................................................................................................................16
14. International Research Corp PLC v Lufthansa Systems Asia Pacific Pte Ltd and
another [2013] SGCA 55..............................................................................................16
15. Kline Iron Steel v. Gray Com. Cons., 715 F. Supp. 135, 139 (D.S.C. 1989)..............32
16. Mr. Justice Clarke,Mr. Justice John MacMenamin,Mr. Justice O'Donnell [2021] IESC
15..................................................................................................................................19
17. Noble Ventures Inc v Romania, ICSID Case No. ARB/01/11, Final Award, p. 31 (12
October 2005)...............................................................................................................22
18. Philip Morris Brand Sàrl (Switzerland), Philip Morris Products S.A. (Switzerland)
and Abal Hermanos S.A. (Uruguay) v. Oriental Republic of Uruguay, ICSID Case
No. ARB/10/................................................................................................................15
19. Ranger Constr. Co. v. Dixie Floor Co., Inc., 433 F. Supp. 442 (D.S.C. 1977.............32
20. St Albans City and District Council v. International Computers Ltd, [1995] FSR 68 29
21. Steel Corp. Of Philippines v Int. Steel, ICC Case No. 12706/TE/MW/AVH..............26

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 IXTH NLIU JUSTICE R.K. TANKHA MEMORIAL INTERNATIONAL ARBITRATION MOOT, 2024

22. Sulamerica Cia Nacional De Seguros S.A. V. Enesa Engenharia S.A. [2012] Ewca
Civ 638.........................................................................................................................26
23. Walford v. Miles (1992) 2 AC 128..............................................................................17
24. Wells v. 10-X Mfg. Co., 609 F.2d 248, 255 (6th Cir. 1979.........................................31
25. White v. Kampner, 229 Conn. 465, 641 A. 2d 1381 (1994)........................................16
Indian Cases
26. Afcons Infrastructure Ltd. v. Cherian Varkey Construction Co. (P) Ltd, 2010 (8) SCC
2....................................................................................................................................17
27. Christian Louboutin Sas & Anr. v. M/S The Shoe Boutique – Shutiq, CS(COMM)
583/2023 and I.A. 15884/2023-15889/2023................................................................24
28. Demerara Distilleries Private Ltd & Anr. v. Demerara Distilleries Ltd., (2014) SCC
OnLine SC 953.............................................................................................................15
29. ICOMM Tele Limited v. Punjab State Water Supply and Sewerage Board and
Another, (2019) 4 SCC 401....................................................................................15, 17
30. Lombardi Engineering Limited vs. Uttarakhand Jal Vidyut Nigam Limited,
MANU/SC/1210/2023..................................................................................................16
31. M/s Tirupati Steels v. M/s Shubh Industrial Component & Anr Civil Appeal No. 2941
of 2022..........................................................................................................................17
32. S.K Jain v. State of Haryana and Anr., (2009) 4 SCC 357..........................................15
33. Vijay Karia. v. Prysmian Cavi E Sistemi SRL 2020 SCC OnLine SC 177.................25
Books
34. B. Piltz, Internationales Kaufrecht 2nd ed. (Munich: Beck, 2008)..............................33
35. CM Bianca, ‘Article 38’ in CM Bianca and MJ Bonell (eds), Commentary on the
International Sales Law (Giuffrè, 1987)......................................................................35
36. Fouchard Gaillard Goldman on International Commercial Arbitration (1999)...........26
37. G.P. Singh, ‘Principles of Statutory Interpretation, 409, (11th edition, 2008).............15
38. Gary B. Born, International Commercial Arbitration (3rd Edn. 2022)........................26
39. Gary B. Born, International Commercial Arbitration (3rd Edn. 2022)........................21
40. Ingeborg Schwenzer, ‘Article 35’ in Ingeborg Schwenzer (ed), Schlechtriem &
Schwenzer: Commentary on the UN Convention on the International Sale of Goods
(CISG) (Oxford University Press, 4th ed, 2016)..........................................................33
41. Nathan O’ Malley, Rules of Evidence In International Evidence, An Annotated Guide
(2nd Edn. 2019)............................................................................................................21
42. Nigel Blackaby, Constantine Partasides, et al., Redfern and Hunter on International
Arbitration....................................................................................................................21

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43. Peter Ashford, The IBA Rules on the Taking of Evidence in International Arbitration
a Guide (Cup 2020)......................................................................................................22
44. Redfern and Hunter, with Blackaby and Partasides, Law and Practice of International
Commercial Arbitration, (4th Edition, 2004)................................................................18
45. Schlechtriem & Schwenzer, 2005................................................................................35
Journals
46. Albert Jan van den Berg, The New York Arbitration Convention of 1958. Towards a
Uniform Judicial Interpretation, 1981, Kluwer............................................................25
47. Berger & Jensen, Due Process Paranoia and the Procedural Judgment Rule: A Safe
Harbour for Procedural Management Decisions by International Arbitrators, 32 Arb.
Int’l 415, 419 (2016)....................................................................................................25
48. Duesenberg L. King, Sales Bulk Transfers Under U.C.C., 1-23 (1966)......................31
49. Emmanuel Gaillard. “The Emerging System of International Arbitration: Defining
‘System.’” Proceedings of the Annual Meeting (American Society of International
Law), vol. 106, 2012.....................................................................................................21
50. Examination of Goods by Buyers Under International Sales Contracts......................35
51. Fabian von Schlabrendorff and Audley Sheppard, ‘Conflict of Legal Privileges in
International Arbitration: An Attempt to Find a Holistic Solution’ in Gerald Aksen,
Karl-Heinz Böckstiegel, et al. (eds), Global Reflections on International Law,
Commerce and Dispute Resolution, Liber Amicorum in Honour of Robert Bringer,
744 (ICC Publishing, 2005).........................................................................................24
52. Han Mino, Security for Costs, Jus Mundi (Mar. 10, 2023...........................................18
53. Luca G Radicati di Brozolo, What rules must international commercial arbitrators
apply to decide according to the law?, Arbitration International, Volume 39, Issue 2,
June 2023.....................................................................................................................21
54. Martin Magel, Chapter 17, Artificial Intelligence in Arbitration: Evidentiary Issue
And Prospects, The Guide To Evidence In International Arbitration, Global
Arbitration Review (Seventh Edition)..........................................................................23
55. Peter Schlechtriem & Ingeborg Schwenzer (eds.), Kommentar zum einheitlichen UN
Kaufrecht 4th ed. (Munich: Beck, 2004), Art. 25........................................................33
56. Professor Doctor Ingeborg Schwenzer, Service Contracts and the CISG, Journal of
Law and Commerce (Vol. 38, 2019-2020....................................................................30
57. Stefan Kro¨ll, Loukas Mistelis, Pilar Perales Viscasillas, UN Convention on Contracts
for the International Sale of Goods (CISG) (2nd Edn., 2018) Article 7......................32
58. United Nations Convention on Contracts for the International Sale of Goods, Apr. 11,
1980, Art. 25................................................................................................................33

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 IXTH NLIU JUSTICE R.K. TANKHA MEMORIAL INTERNATIONAL ARBITRATION MOOT, 2024

59. William Park, Two Faces of Progress: Fairness and Flexibility in Arbitral Procedure,
23 Arb. Int’l 499, 500-01 (2007)..................................................................................20
Statutes
60. 2018 LCIA Note on Experts in International Arbitration............................................24
61. Arbitration and Conciliation Act, 1996........................................................................25
62. Definition Clause, Party Appointed Expert, International Bar Association Rules on
Taking Evidence in International Arbitration, 2020 (IBA Rules)................................23
63. Definition, Expert Report, International Bar Association Rules on Taking Evidence in
International Arbitration, 2020 (IBA Rules)................................................................22
64. Digital Personal Data Protection Act 2023..................................................................29
65. ICC Arbitration Rules 2021.........................................................................................24
66. Information Technology Act 2000...............................................................................29
67. New York Convention, 1958........................................................................................25
68. Sale of Goods Act 1930................................................................................................28
69. Singapore International Arbitration Centre Rules, 6th Edition, 2016...........................14
70. The Chartered Institute of Arbitrators Protocol for the Use of Party-Appointed Expert
Witnesses in International Arbitration.........................................................................24
71. United Nations Convention on Contracts for the International Sale of Goods............32

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 IXTH NLIU JUSTICE R.K. TANKHA MEMORIAL INTERNATIONAL ARBITRATION MOOT, 2024

STATEMENT OF FACTS

Parties

In this case, Penguin Antarctic Adventures Pvt. Ltd. (PAAP) (Claimant), is a private limited
company based in Bhopal, India. The Respondent is Zeus LLC, a limited liability company
based in Delaware, USA. The Claimant is represented through Dr. Chandrayan its director, a
renowned explorer and director of PAAP, who `sought to establish a commercial expedition
to Antarctica. However, the Claimant faced challenges in securing investments and funding
for the project due to scepticism from Indian and foreign investors.

Background to the Agreement

The instant case pertains to the dispute arising from a Data Supply Agreement (DSA)
between the Claimant and Respondent. The Claimant approached the Respondent, Zeus LLC,
which specializes in supplying exclusive data related to air pressure, weather forecasts, and
other climate conditions for extreme tourism purposes. The Claimant was supposed to use the
data provided by the Respondent to plan its expedition. This it believed would provide it a
competitive advantage over other competitors in the Indian commercial tourism market.

The parties engaged in negotiations, with the Claimant expressing concerns about the high
fee quote provided by the Respondent. The Claimant requested a reconsideration of the fee
and proposed instalment payments due to the capital-intensive nature of their start-up. Much
to the surprise of the Claimant the Respondent reduced their fees by 30%.

Data Supply Agreement

The parties entered into a Data Supply Agreement (DSA) on June 5, 2022. The Respondent
supplied the data to the Claimant on December 27, 2022, based on which the Claimant
announced the launch of their expedition, named Penguin-One (PO), scheduled for June 5,
2024. The Claimant also announced that Dr. Chandrayan would be one of the six people
aboard PO, further enhancing the expedition's credibility.

Dispute

However, on January 17, 2023, the Claimant's system encountered an error that indicated that
the Respondent's data was unreadable. The Claimant's IT team concluded that the data
supplied by the Respondent was corrupt therefore it was unreadable. This corrupted data
jeopardized

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 IXTH NLIU JUSTICE R.K. TANKHA MEMORIAL INTERNATIONAL ARBITRATION MOOT, 2024

the entire testing phase and the eventual launch of the expedition. Dr. Chandrayan contacted
Ms. Indra, the CEO of Zeus LLC, seeking an explanation for the corrupted data.

Ms. Indra denied any responsibility, stating that the data was delivered according to the DSA
specifications, and any corruption was the Claimant's own fault. The Respondent resend the
data again to the Claimant on 20th January 2023. In order to ensure the accuracy of the data,
the Claimant submitted it to an artificial intelligence system called “BranStark” for
verification. The report generated by BranStark revealed inaccuracies in the sea ice data and
wildlife data provided by the Respondent. In lieu of this breach of the agreement, the
Claimant initiated arbitration proceedings.

The aforementioned facts set the stage for the dispute between Penguin Antarctic Adventures
Pvt. Ltd. and Zeus LLC, leading to the initiation of arbitration proceedings under the
Arbitration Rules of The Singapore International Arbitration Centre (SIAC Arbitration Rules,
2016).

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STATEMENT OF ISSUES

I. Does the tribunal have jurisdiction to proceed without the 7.5% pre-arbitral deposit? If
yes, should it order security for costs pursuant to its powers under Rule 27(j) of the SIAC
Rules, 2016?
II. Does the BranStark report qualify as an ‘expert report’?
III. Is the Data Supply Agreement governed by the CISG?
IV. If yes, is the data supplied by the Respondent defective and non-conforming under the
CISG?

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SUMMARY OF ARGUMENTS

ISSUE-1 Does the tribunal have jurisdiction to proceed without the 7.5% pre-arbitral
deposit? If yes, should it order security for costs pursuant to its powers under Rule 27(j)
of the SIAC Rules, 2016?

It is humbly submitted before this Hon’ble tribunal that the tribunal cannot assume its
jurisdiction to proceed without the 7.5% pre-arbitral deposit by the Claimant. The said clause
is not in violation contractual obligation of parties, which is mandatory in nature and not
directory. In coherence with the principle of equity, interest of the parties, and the
significance of the agreement, the said resolution shall be resolved amicably, with might not
affect the party autonomy and the contractual intention. Considering the facts, that the
Claimant is under financial hardship, the tribunal should order security for costs pursuant to
its powers under Rule 27(j) of the SIAC Rules, 2016 adhering to the rules mentioned below.

ISSUE 2- Does the BranStark Report Qualifies As An Expert Report?

It is humbly submitted before this Hon’ble Tribunal that the report generated by BranStark
does qualify as an expert report. The Report generated does not qualify as an expert report
under the rules of procedure agreed in the Data Supply Agreement. Firstly, the Tribunal does
not have absolute discretion in determining the qualification of BranStark as an expert report
and has to follow internationally accepted principles when exercising its discretion. Secondly,
the report generated by the BranStark report does not qualify as an expert report as per set
international rules on evidence. Moreover, if the Tribunal qualifies the report generated by
BranStark as an expert report Respondent's right to procedural fairness would be violated.
Firstly, the report generated by BranStark is not reliable as it cannot be cross-examined by
the Respondent. Secondly, the report generated by BranStark is violative of internationally
set standards for experts as provided in IBA Rules for Evidence and an Award if it relies on
such a report would not be enforceable in India.

ISSUE-3 Is the Date Supply Agreement governed by the CISG?

It is hereby submitted that the parties to the DSA did not consent to be governed by the
CISG. Moreover, parties are governed by the Indian law and ‘data’ is not treated as ‘goods’
under the

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same. Lastly, the predominant part of the DSA is in nature of a ‘service agreement’ rather
than a ‘contract for sale’ and thus it is not under the scope of CISG as defined under Article 3
(2) of CISG.

ISSUE-4 If yes, is the data supplied by the Respondent defective and non-confirming
under the CISG?

It is humbly submitted that, the data supplied by the Respondent is not defective and not non-
conforming under the CISG. Firstly, there was no fundamental breach to constitute non
conformity under CISG. Secondly, Paap has not been able to establish their claim or raise a
doubt of suspicion for the Respondents to actually prove there was non conformity under
CISG. Thirdly, the examination of goods were not done in accordance with Article 38 of
CISG, hence the Claimants cannot raise their claim of non conformity.

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WRITTEN PLEADINGS

1. Does the tribunal have jurisdiction to proceed without the 7.5% pre-arbitral
deposit? If yes, should it order security for costs pursuant to its powers under
Rule 27(j) of the SIAC Rules, 2016?
I. It is humbly submitted before the Hon’ble tribunal that the present arbitral dispute
between the parties is in pursuance with clause 45(2) 1 of the Data Supply agreement
(DSA) between the parties. The said clause is a dispute resolution clause which
includes governing law, seat of arbitration, language to be used in the arbitration
proceedings and additionally a 7.5% pre-deposit arbitral clause. In the present case
the Claimant has referred the matter directly to the arbitral tribunal without
complying to the mandatory clauses in the agreement between the parties. Thus, the
Claimant arose far-fetched issue on the scope of the clause. It is humbly humble
submitted before the hon’ble tribunal that the pre deposit clause (clause 45(2)) 2 is
invalid and thus the tribunal has the jurisdiction to proceed without the pre deposit
clause in the arbitration proceedings on grounds,

[1.1] The tribunal cannot assume its jurisdiction to without the 7.5% pre-arbitral deposit
by the Claimant
[1.2] The 7.5% pre-arbitral deposit clause is valid in nature and does not violate of public
policy of India.
[1.3] The tribunal should order security for costs pursuant to its powers under Rule 27(j)3
of the SIAC Rules, 2016.

1.1 The tribunal cannot assume its jurisdiction over the case without the 7.5% pre-
arbitral deposit by the Claimant.

1
CASE RECORD, Exhibit C5
2
Ibid
3
Rule 27(j) Singapore International Arbitration Centre Rules, 6 th Edition, 2016 “Unless otherwise agreed by the
parties, in addition to the other powers specified in these Rules, and except as prohibited by the mandatory rules
of law applicable to the arbitration, the Tribunal shall have the power to:”

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II. It is humbly submitted to the Hon’ble tribunal that the parties has come onto a
consensus, with free consent while drafting the agreement and agreeing to it. The
clause in dispute was also agreed by both the parties. Time throughout, there was no
conflict as per the clauses of the agreement. Further, the nature of the clause is
Mandatory in nature and not at all directory and the Claimant in in sheer violation of
contractual obligation between the parties. The language of the clause is sufficient
and does not grant any unlimited but a fair and limited scope. In the case of “S.K
Jain v. State of Haryana and Anr”4 held the validity of the 7% pre-deposit clause
which is also termed as a “security deposit” and further the tribunal shall only
assume the jurisdiction once the submission of security deposit has been made by
the other party.
III. It is submitted that when the intent of the parties is so clear, that the pre-arbitral
clause was supposed to be made mandatory in nature. So, that parties would not
raise any frivolous claim. GP Singh in his book “Principles of Statutory
Interpretation”5 mentioned that the term “shall” imposes obligation over the parties,
whereas the term “may” is discretionary is nature. In the present case the usage of
word “shall” has been invented by the parties in relevant clause. It is evident that the
use of term “shall” which is unmistakably mandatory from the intent of the parties as
well. These procedures has to be complied, and shall not be ignored. 6 Thus, making
this as a jurisdictional issue and not an issue of admission. In the present case the
language of the arbitration clause in the agreement supports the fact that the pre
arbitral deposit clause would be treated as a jurisdictional issue. 7 Thus, the tribunal is
requested to consider the nature of the clause and should not assume jurisdiction
over the case8, until the pre-arbitral deposit condition is met by the Claimant. Also,
the fact that the pre-deposit clause is an issue of jurisdiction and not admission has to
be considered so that the tribunal does not fail to provide justice to the parties.
IV. It is submitted that the nature of the pre-arbitral deposit is a “security deposit” and
would be refundable sum. In case of “ICOMM Tele Limited v. Punjab State Water
Supply and Sewerage Board and Another”9 and “Lombardi Engineering Limited
vs.

4
S.K Jain v. State of Haryana and Anr., (2009) 4 SCC 357
5
G.P. Singh, ‘Principles of Statutory Interpretation, 409, (11th edition, 2008)
6
Philip Morris Brand Sàrl (Switzerland), Philip Morris Products S.A. (Switzerland) and Abal Hermanos S.A.
(Uruguay) v. Oriental Republic of Uruguay, ICSID Case No. ARB/10/7
7
Burlington Resources Inc. v. Republic of Ecuador, ICSID Case No. ARB/08/5
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8
Demerara Distilleries Private Ltd & Anr. v. Demerara Distilleries Ltd., (2014) SCC OnLine SC 953
9
ICOMM Tele Limited v. Punjab State Water Supply and Sewerage Board and Another, (2019) 4 SCC 401

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Uttarakhand Jal Vidyut Nigam Limited”10 the court held the pre-arbitral clause
invalid because of the fact that the clauses does not provide a fair “security deposit”
or a fair refundable procedure. But in the present case, if the award is in favour of
the Claimant, than the security deposit would be refunded to the Claimant.
Otherwise the security deposit would be set-off.
V. It is submitted that if the parties have agreed upon a pre-condition. These contractual
pre-conditions are a mandatory requirement11 which has to be followed before the
constitution of a tribunal.12 Any other outcome for the case, which violated the rights
of the Respondent would be a sheer breach of not only the arbitral clause, but the
party autonomy will also get affected. The request made in this case by the Claimant
is pre- mature. Failure on behalf of the Claimant to make such deposit, shall result as
a jurisdictional issues and the tribunal shall not assume its jurisdiction until the pre-
condition is fulfilled.13
VI. It is submitted that a strict interpretation of the arbitration clause in necessary and
should not be taken lightly. Tribunals in cases have held that the pre-arbitration
proceedings are “Strictly binding upon the parties and govern their conduct before
resorting to arbitration”14.
VII. It is submitted that the language of the present clause does not suggest any waive off
of the pre-arbitral deposit and thus the parties does not have any valid ground as to
not stand with the mandatory pre-condition. The facts suggests that the income and
expenditure15 of the Claimant does not show any money crunch on the party as well.
This would not result in any material damage to the parties as the money would be
refunded or set-offed, as the case may be, after passing of the arbitral award. Hence,
the tribunal cannot assume its jurisdiction to proceed without the 7.5% pre-arbitral
deposit by the Claimant.

The 7.5% pre-arbitral deposit clause is valid in nature and does not violate of public
policy of India.

10
Lombardi Engineering Limited vs. Uttarakhand Jal Vidyut Nigam Limited, MANU/SC/1210/2023
11
White v. Kampner, 229 Conn. 465, 641 A. 2d 1381 (1994)
12
International Research Corp PLC v Lufthansa Systems Asia Pacific Pte Ltd and another [2013] SGCA 55
13
ICC Case No 12739, Award, cited in Michael Bühler and Thomas H Webster, Handbook of ICC Arbitration
(Sweet & Maxwell 2008) 67.
14
ICC Case No 6276 (n 4). See also ICC Case No 9812, Final Award (2009) 20(2) ICC Ct Bull 69, 73.
15
CASE RECORD, Procedural order 2

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VIII. It is humbly submitted before the Hon’ble tribunal that the 7.5% pre-arbitral deposit
clause is fair and valid nature. The fact that the parties have agreed on the terms of
the contract and the language of the clause does grant any unlimited scope to the
parties. The language of the clause is a fair adjustment to tackle from frivolous
claims. In the present case the 7.5% pre-arbitral deposited is in the form of fixed
deposit as security deposit, which would be refunded or set-offed, depending of the
outcome of the case. Again, In case of “ICOMM Tele Limited v. Punjab State
16
Water Supply and Sewerage Board and Another” and “Lombardi Engineering
Limited vs. Uttarakhand Jal Vidyut Nigam Limited” 17 the impugned clause did not
provide a full refund of the security deposit, but a part of it. Thus, making the
security deposit is violation of the public policy of India. But in the present case the
scope is limited and the parties would be refunded or set-offed their security deposit,
once the award is passed by the tribunal.
IX. It is submitted that the contractual intent of the parties was to avoid any frivolous
claims at first place. In the present, the claim of 50 million by the Claimant is
frivolous amount and on frivolous merits. Thus, to avoid such scenarios, clause
45(2)18 in the Data Supply Agreement was added. The parties had a commercial
rationale behind the agreement and thus in a commercial transaction it is essential
for the parties to agree to all the terms and clauses, to negotiate and then agree on
one.19 Both the parties under the experts have agreed upon the clauses of the
agreement and thus the Claimant can’t ask to initiate the proceeding without making
the security deposit of 7.5%. The 7.5% pre-arbitral is a mandatory pre-condition
which has to be fulfilled.20
X. It is submitted that in case of a dispute resolution clause, when the parties have
mutually agreed to the term. Barring or restricting their freedom to agree upon a
clause for the motive to agree on single terms does not suggest any inconsistency
with the intention of the negotiating parties. Thus, enforcement of such agreement
shall be done in public interest,21 so as to avoid any future disputes. One reason
being that the negotiating or the commercial parties have freely undertaken the
obligation and

16
(Supra) note 9
17
(Supra) note 10
18
(Supra) note 1
19
Afcons Infrastructure Ltd. v. Cherian Varkey Construction Co. (P) Ltd, 2010 (8) SCC 24
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20
M/s Tirupati Steels v. M/s Shubh Industrial Component & Anr Civil Appeal No. 2941 of 2022
21
Walford v. Miles (1992) 2 AC 128.

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secondly to fulfil the objective of the clause. Thus, the said clause shall act as a
condition precedent before the arbitration proceedings is initiated.22
XI. It is submitted that once the parties have entered into an agreement, they cannot back
off from it, as it would circumventing the principle of “party autonomy”. Redfern
and Hunter in their book “Law and Practice of International Commercial
Arbitration” explain that, “Party autonomy is the guiding principle in determining
the procedure to be followed in an international commercial arbitration. It is a
principle that has been endorsed not only in national laws, but by international
arbitral institutions and organizations. The legislative history of the Model Law
23
shows that the principle was adopted without opposition...”. Thus, the Claimant
shall abide by the relevant obligations, imposed on both the parties before the
dispute, by the means of arbitration agreement.
XII. It is submitted that present submission is made as to avoid current as well as future
conflicts between parties, in public interest. Any mandatory requirement which was
made with the intent of a compulsory clause shall not be treated directory or invalid.
This would vitiate the principle of “party autonomy” between the parties. Thus, the
pre-arbitral deposit clause in valid in nature and does not violate public policy of
India.

1.2 The tribunal should order security for costs pursuant to its powers under Rule
27(j) of the SIAC Rules, 2016.

XIII. It is humbly submitted before the Hon’ble tribunal, should order security for costs
pursuant to its powers under Rule 27(j)24 of the SIAC Rules, 2016 to deter any other
frivolous or baseless claims in future by either of the parties. The security of cost
would secure the rights of the parties to recover its costs which may emerge out from
any other claim or the proceedings itself.25
XIV. It is submitted that the Rule 27(j)26 of the SIAC Rules, 2016, grants the tribunal the
power to order security in any manner, to maintain the integrity between the parties.
The claimant has made certain frivolous claims and is claiming to have money
crunch

22
Emirate Trading Agency LLC v Prime Mineral Exports [2014] EWHC
23
Redfern and Hunter, with Blackaby and Partasides, Law and Practice of International Commercial Arbitration,
(4th Edition, 2004)
24
(Supra) note 3
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25
Han Mino, Security for Costs, Jus Mundi (Mar. 10, 2023)
26
(Supra) note 3

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as well. So, as to protect the interest of the parties, the award for security of costs is
necessary and the tribunal can consider this request.27
XV. It is submitted that the Claimant is a capital intensive start-up and is initiating its
business with borrowings. The Clamant is working ambitious on the project, and has
burned a lot of money. This could further raise difficulty, as the financial hardship
would lead the Claimant to a way where possibly there could be non-compliance
with the final award.28
XVI. Hence, based on the reasons stated, authorities states, and the issues faced by the
Respondent, it is respectfully urged that the Hon'ble Tribunal shall not assume
jurisdiction over the present dispute, until the pre-condition of pre-arbitral deposit is
fulfilled by the Claimant. Further the tribunal should order security for costs
pursuant to its powers under Rule 27(j)29 of the SIAC Rules, 2016 to reserve the
rights of the parties, so that the equity and interest of the parties remains at a balance
ground.

2. BranStark does not qualify as an expert report.

I. It is humbly submitted before this Hon’ble Tribunal that the report generated by
BranStark does qualify as an expert report. Firstly, the Report generated does not
qualify as an expert report under the rules of procedure agreed in Data Supply
Agreement. Secondly, if the Tribunal qualifies report generated by BranStark as an
expert report Respondent right to procedural fairness would be violated.

2.1 Report generated by BranStark does not qualify as an expert report under the
rules agreed by the parties.
II. Report generated by BranStark does not qualify as an expert report under the rules
agreed by the parties. Firstly, the Tribunal does not have absolute discretion in
determining the qualification of BranStark as an expert report and has to follow
internationally accepted principles when exercising its discretion. Secondly, the
report generated by the BranStark report does not qualify as an expert report as per
international set standards on the rules of evidence.

27
Autoweld Systems Ltd v. Kito Enterprises LLC, (2010) EWCA Civ 1469.
28
Mr. Justice Clarke,Mr. Justice John MacMenamin,Mr. Justice O'Donnell [2021] IESC 15
29
(Supra) note 3
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2.1.1 The Tribunal does not have absolute discretion in determining under the
procedural rules.
I. It is hereby submitted before this Hon’ble Arbitral Tribunal that it cannot qualify
BranStark as an expert report under the Singapore International Arbitration Centre
SIAC 6th Edition Rules, 2016 (SIAC Rules, 2016) or under the Arbitration and
Conciliation Act, 1996 (the Act). There are no specific rules of evidence that the
parties have expressly agreed to be governed by in their arbitration clause of the
Data Supply Agreement.30 In the instant case, the Claimant and the Respondent only
have expressly agreed to the following, “Any dispute, controversy or claim arising
out of or relating to this contract, or the breach, termination or invalidity thereof
shall be settled by arbitration in accordance with the SIAC Arbitration Rules,
2016”31 and in the subsequent clause the parties agreed that seat of arbitration would
be India.32 Therefore, the arbitration clause only two things emerge, (a) the seat of
arbitration is India; and (b) disputes would be settled in accordance with the SIAC
Rules, 2016.
II. The parties have only agreed to refer to the SIAC Rules, 2016 with the seat in India
to resolve disputes. SIAC Rules do not provide any exhaustive rules of evidence for
parties to refer to. Moreover, in the instant case, the parties have not agreed to any
other rules apart from the above-mentioned ones let alone rules of evidence to
resolve disputes arising out of the agreement. The parties can refer to the expert
report in the arbitral proceedings by virtue of Rule 25(1) of the SIAC Rules, 2016.33
However, this is the extent to which SIAC Rules refer to party-appointed experts.
III. Therefore, in the instant case, the Tribunal has to deal with evidence that is not
covered in the rules of procedure and evidence covered by the party in their
agreement. It is true that the Tribunal has been conferred with wide discretion in
deciding the relevance, materiality, and admission of the evidence.34 This discretion
to the Tribunal has been conferred to the Arbitrable Tribunal by virtue of Section
19(3) of the Act.35 This discretion has also been recognised in Rule 19(2) of the
SIAC Rules, 2016.36

30
Clause 45, Data Supply Agreement.
31
Ibid, Clause 45.1, Data Supply Agreement.
32
Clause 45.2, Data Supple Agreement.
33
Rules 25(1) of the Singapore International Arbitration Centre SIAC 6th Edition Rules, 2016.
34
William Park, Two Faces of Progress: Fairness and Flexibility in Arbitral Procedure, 23 Arb. Int’l 499, 500-
01 (2007)
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35
Section 19(3), Arbitration and Conciliation Act 1996
36
Rule 19(2), Singapore International Arbitration Centre SIAC 6th Edition Rules, 2016

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IV. The objective reading of Rule 19(2) of SIAC Rules, 2016, and Section 19(3) of the
Act would make it clear that the Tribunal has not been conferred with absolute
discretion.37 The arbitral tribunal filling gaps in institutional rules relating to the
procedure and evidence is quite common. 38 Arbitrators have the discretion to define
the arbitral procedure if the parties cannot agree on it. 39 This discretion has been
conferred to the Arbitral Tribunal in every mature institutional rule. 40 This flexibility
in procedural rules is one of the fundamental features of the international arbitration
process.41
V. Therefore, the issue in the instant case is the extent to which the Tribunal is allowed
to exercise its discretion. It is residual discretion and in no circumstances can be
construed as absolute discretion.42 The Tribunal has to be guided by internationally
set principles of evidence when exercising its discretion.43 Therefore, the Tribunal
has to follow certain internationally accepted guidelines when dealing admissibility
of evidence.44

2.1.2. The report generated by the BranStark report does not qualify as an expert
report as set international rules on evidence.
VI. It is humbly submitted that the report generated by the BranStark report does not
qualify as an expert report as set by international rules on evidence. Firstly, the
Tribunal can refer to IBA Rules on Evidence and other international set guidelines to
determine the qualification of BranStark as an expert report. Secondly, as per the
IBA Rules on Evidence and other international rules on evidence, BranStark does
not qualify as an expert report.
2.1.2.1. Tribunal can refer to IBA Rules on Evidence.
VII. It is hereby submitted that the report generated by BranStark does not qualify as an
expert report under the IBA Rules. It is a matter of controversy whether IBA Rules
will be applicable in the instant case. It is indisputable that there was no express

37
Nathan O’ Malley, Rules of Evidence In International Evidence, An Annotated Guide (2nd Edn. 2019).
38
Gary B. Born, International Commercial Arbitration (3rd Edn. 2022).
39
Supra Note 6.
40
Supra Note 9.
41
Luca G Radicati di Brozolo, What rules must international commercial arbitrators apply to decide according
to the law?, Arbitration International, Volume 39, Issue 2, June 2023, Pages 298–309.
42
Nigel Blackaby, Constantine Partasides, et al., Redfern and Hunter on International Arbitration. See also, Gary
B Born, International Commercial Arbitration, 2481 (3rd ed., Kluwer Law International, 2021).
43
Supra Note 9.
44
Emmanuel Gaillard. “The Emerging System of International Arbitration: Defining ‘System.’” Proceedings of
the Annual Meeting (American Society of International Law), vol. 106, 2012, pp. 287–92.

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agreement between the parties to refer to IBA Rules or any other rules. 45 The parties
have expressly agreed to refer to the SIAC Rules, 2016 with the seat in India to
resolve disputes. However, apart from these broad procedural rules giving the
Tribunal the discretion to make rules, neither the SIAC Rules, 2016 nor the Act
provides or detailed for procedural rules or even the principles that the Tribunal has
to consider when determining the admissibility, materiality, and relevance of
evidence.
VIII. It is humbly submitted that in the absence of express rules on evidence agreed by the
parties, the Tribunal in discretion conferred by virtue of Rule 19(2) of SIAC Rules,
2016 can apply IBA Rules on Evidence or alternatively apply them as they set the
international standard on taking evidence in international arbitration proceedings.
IX. IBA Rules on Evidence have acquired authoritative value in international practise. 46
The Rules, in their most basic form, represent the international principles of fairness
and equality as applied to evidence procedure, and carry persuasive value in the eyes
of Tribunals and Enforcement courts.47 Several international tribunals have referred
48
to IBA Rules on evidentiary procedural issues on multiple occasions. National
courts in the United States, England, Singapore, and Canada, among other
jurisdictions, have looked to the IBA Rules when deciding whether an arbitrator's
49
conduct constituted departures from international evidence procedure.
Therefore, the IBA Rules are important and have high authoritative value even when
they are not expressly agreed by the parties in their agreement.50

2.1.2.2. BranStark does not qualify as an expert report as per IBA Rules.
X. It is humbly submitted that the report generated by BranStark does not qualify as an
expert report as per IBA Rules. It has not met the criteria set for an expert report by
international standards.
XI. Firstly, the expert report can only be submitted by a person or an organisation. The
Definition clause of the IBA Rules on Evidence defines an expert report as “a
written statement by a Tribunal Appointed Expert or a Party-Appointed
Expert”.51 Party

45
Supra Note 1. See also Response 45, Procedural Order 2.
46
Supra Note 9.
47
Peter Ashford, The IBA Rules on the Taking of Evidence in International Arbitration a Guide (Cup 2020).
48
CME Czech Repub. BV v. Czechia, Final Award of 14 March 2003, 15 WTAM 83, 100 (2003). See Also,
Noble Ventures Inc v Romania, ICSID Case No. ARB/01/11, Final Award, p. 31 (12 October 2005).
49
Supra Note 18, Pg 9.
50
LCIA, No. UN 5699, Procedural Order No. 1.
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51
Definition, Expert Report, International Bar Association Rules on Taking Evidence in International
Arbitration, 2020 (IBA Rules).

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Appointed Expert has been defined as, “a person or organisation appointed by a

Party in order to report on specific issues determined by the Party.” 52 BranStark is
neither a person nor an organisation. It is pertinent to mention here that an expert
report by artificial intelligence has not been contemplated in any of the institutional
or international procedural rules.53
XII. Secondly, artificial intelligence cannot meet the criteria set forth in the IBA Rules on
Evidence. The expert report by BranStark is not in the proper form as contemplated
by Article 5(2) of the IBA Rules on Evidence54 which set requirements for
submission of the expert report, first, it is not signed, second, it has explained how it
has reached the conclusion it has reached, and third, most importantly as it is not
signed by anyone such person or organisation there is no possibility for cross-
examination of this report for Respondent.
XIII. The expert report should be signed by a person or persons so as to indicate whether
the report is attributable as a whole to a single expert or, if not, which specific parts
of the report can be attributed to each co-expert. 55 This requirement is meant to help
parties decide which experts they want to examine 56 during the evidentiary hearing
required by Article 8(1) of IBA Rules on Evidence.57
XIV. Furthermore, as per Article 5(2)(e) of IBA Rules on Evidence, an expert report has
to explain "the methods, evidence, and information used in arriving at the
conclusions".58 This information is essential so that the opposite party can effectively
analyse the expert report. Article 5(2)(g) of IBA Rules on Evidence requires the
expert to be willing to accept responsibility for the contents of his or her report.59
Similar

52
Definition Clause, Party Appointed Expert, International Bar Association Rules on Taking Evidence in
International Arbitration, 2020 (IBA Rules).
53
Martin Magel, Chapter 17, Artificial Intelligence in Arbitration: Evidentiary Issue And Prospects, The Guide
To Evidence In International Arbitration, Global Arbitration Review (Seventh Edition).
54
Article 5(2), International Bar Association Rules on Taking Evidence in International Arbitration, 2020 (IBA
Rules).
55
Article 5(2)(i), International Bar Association Rules on Taking Evidence in International Arbitration, 2020 (IBA
Rules).
56
Supra Note 18.
57
Article 8(2), International Bar Association Rules on Taking Evidence in International Arbitration, 2020 (IBA
Rules).
58
Article 5(2)(e), International Bar Association Rules on Taking Evidence in International Arbitration, 2020
(IBA Rules).
59
Article 5(2)(g), International Bar Association Rules on Taking Evidence in International Arbitration, 2020 (IBA
Rules).
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requirements for submission of expert reports are required under other rules of
procedures such as CIArb60, LCIA61, and ICC.62
XV. It is not possible for an artificial intelligence system to fulfill the requirements of the
expert report under the IBA Rules of Evidence. Therefore, the report generated by
BranStark cannot be qualified as an expert report.

2.2 Respondent's right to procedural fairness would be violated if BranStark is

qualified as an expert.
XVI. It is submitted that if the Tribunal qualifies the report generated by BranStark as an
expert report the right of procedural fairness of the Respondent would be violated.
Firstly, the report generated by BranStark is not reliable as it cannot be cross-
examined by the Respondent. Secondly, the report generated by BranStark is
violative of internationally set standards for experts as provided in IBA Rules for
Evidence and an award that relies on it would not be enforceable.
2.2.1 The report generated by BranStark is not reliable.
XVII. It is submitted before this Tribunal that the report generated by BranStark cannot be
considered reliable. Firstly, there is no way to cross-check how has BranStark
reached the conclusion that it has reached. Secondly, no one can be held liable as the
report has not been signed by anyone. Thirdly, there is no possibility of cross-
examining any person as no person has taken responsibility for the report. Lastly,
there is the possibility that it has been trained as biased data.
XVIII. The Delhi High Court in a judgment involving artificial intelligence noted that
“accuracy and reliability of AI-generated data are still in the grey area.”63 Oral
cross- examination is absolutely necessary in the instant case as BranStark's report
would serve as evidence in the case. There is no way to check its reliability apart
from cross- examination.64

60
Article 4, The Chartered Institute of Arbitrators Protocol for the Use of Party-Appointed Expert Witnesses in
International Arbitration.
61
2018 LCIA Note on Experts in International Arbitration.
62
Article 25(2) of the ICC Arbitration Rules 2021.
63
Christian Louboutin Sas & Anr. v. M/S The Shoe Boutique – Shutiq, CS(COMM) 583/2023 and I.A.
15884/2023-15889/2023.
64
Fabian von Schlabrendorff and Audley Sheppard, ‘Conflict of Legal Privileges in International Arbitration:
An Attempt to Find a Holistic Solution’ in Gerald Aksen, Karl-Heinz Böckstiegel, et al. (eds), Global
Reflections on International Law, Commerce and Dispute Resolution, Liber Amicorum in Honour of Robert
Bringer, 744 (ICC Publishing, 2005).

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XIX. If the cross-examination is denied and the expert report is admitted by the Tribunal,
it would violate procedural public policy65 and any such award would not be
enforceable by virtue of Section 48(2)(b) of the Act.66 Therefore, it is submitted that
BranStark is not reliable.

2.2.2. Admission of this report as an expert report would be violative of

internationally set standards of evidence procedure.
XX. It is submitted before this Tribunal that denying the admission of the report would
not violate the Claimant's right to be heard. It is true that each party before the
Arbitral proceeding has been treated equally and gets their case heard. However, if
the report generated by BranStark is qualified as an expert report by the Tribunal it
would be contrary to the international set standards for taking evidence.
XXI. The right to be heard is capsulated in Section 18 of the Act which provides that each
party should be treated equally before the Tribunal.67 However, this right is not
absolute and can be denied when proper procedure is not followed. 68 The right to be
heard under Section 18 of the Act cannot be extended to the extent that it protects
the party from its own failure and wrong strategic choices.69
XXII. In the instant case, the Claimant has relied on a report generated by an artificial
intelligence system whose reliability is severely in question. It is not known how this
technology has analysed the data provided by the Respondent. There is no way to
review its results as it is not known how it has reached its conclusion. Moreover, the
report was not submitted in a proper form as required by Article 5(2) of the IBA
Rules on Evidence.70 Furthermore, as it was not signed by any person there is no
possibility of cross-examination.71
XXIII. If the report generated by BranStark is admitted as an expert report by the Tribunal,
then the Respondent's right to procedural fairness would be violated 72 as the

65
Article V(1)(b), New York Convention, 1958. See Also Section 48(1)(b) of the Arbitration and Conciliation
Act, 1996.
66
Vijay Karia. v. Prysmian Cavi E Sistemi SRL 2020 SCC OnLine SC 177.
67
Section 18, Arbitration and Conciliation Act, 1996.
68
Berger & Jensen, Due Process Paranoia and the Procedural Judgment Rule: A Safe Harbour for Procedural
Management Decisions by International Arbitrators, 32 Arb. Int’l 415, 419 (2016).
69
Supra Note 36. See Also Supra Note 9.
70
Supra Note 25.
71
Supra Note 28.
72
Albert Jan van den Berg, The New York Arbitration Convention of 1958. Towards a Uniform Judicial
Interpretation, 1981, Kluwer.

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Respondent will not have the opportunity to cross-examine the evidence.73 Any
award that relies on such an “expert report” would not be enforceable in India as
BranStark is not reliable.74
XXIV. Therefore, the Tribunal can deny qualifying the report generated by BranStark as an
expert report as firstly, the right to be heard is not absolute and has some restrictions
and those restrictions are present in the instant case, secondly, the report generated
by BranStark is violative of internationally set standards for experts as provided in
IBA Rules for Evidence, and lastly, if admitted as expert report Respondent right to
procedural fairness would be violated and any award passed would not be
enforceable in India.

3. Data Supply Agreement is not governed by CISG.

I. Claimant is a private limited company having its registered office at Baba Ka
Chauraha, Bhopal and has been registered under the company laws of India. On the
other hand, Respondent is a limited liability company incorporated and based in
Delaware, governed by the laws of USA. Additionally, it is pertinent to note that
both India and USA are signatories to the Convention on the International Sale of
Goods75.
II. The Parties in the instant case at hand agreed that proceedings shall be governed by
the Singapore International Arbitration Centre (SIAC Rules). According to Rule 3176
of the SIAC Rules, “the Tribunal shall apply the law or rules of law designated by
the parties as applicable to the substance of the dispute. Failing such designation by
the parties, the Tribunal shall apply the law or rules of law which it determines to be
appropriate.”
III. Generally, it has been noted that the seat of arbitral proceedings has the closest
connection with the arbitration agreement.77 The arbitration seat will be in India78, as
agreed upon by the parties. Additionally, they have agreed to apply Indian law as the

73
Supra Note 35.
74
Supra Note 34. See also, Section 48(2)(b), the Arbitration and Conciliation Act, 1996.
75
CASE RECORD, Procedural Order 1
76
Rule 31 of Singapore International Arbitration Centre Rules 2016
77
Gary B. Born, International Commercial Arbitration (3rd Edn. 2022); Fouchard Gaillard Goldman on
International Commercial Arbitration (1999); Kröll et al. p. 107; Steel Corp. Of Philippines v Int. Steel, ICC
Case No. 12706/TE/MW/AVH; Sulamerica Cia Nacional De Seguros S.A. V. Enesa Engenharia S.A. [2012]
Ewca Civ 638.
78
CASE RECORD, Exhibit C-5.
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substantive law79. Thus, Indian law will govern the procedural concerns, including
the Tribunal's power, with provisions based on the UNCITRAL Model Law on
International Commercial Arbitration ("the Model Law") and SIAC Rules.
IV. It is hereby submitted that (3.1) the parties to the DSA did not consent to be
governed by the CISG, (3.2) parties are governed by the Indian law and ‘data’ is not
treated as ‘goods’ under the same, and (3.3) lastly, the predominant part of the DSA
is in nature of a ‘service agreement’ rather than a ‘contract for sale’ and thus it is not
under the scope of CISG as defined under Article 3 (2) of CISG.

3.1 The Parties did not consent to be governed by CISG

V. It is humbly submitted that in order to determine the applicability of the Convention
on the International Sale of Goods on the Data Supply Agreement between the
Claimant and Respondent, it is essential to establish the applicable substantive law
and nature of the data under the Data Supply Agreement. The aforementioned
factors will influence if is 'data' is considered a 'good' under the DSA and
consequently is it subject to CISG. On June 5, 2022, the Claimant signed a Data
Supply Agreement with the Respondent. The parties choose Indian law as the
governing law for this Agreement. The choice of laws means that any disputes about
the form and characteristics of data will be resolved under Indian law.
VI. The Arbitration and Conciliation Act 1996 is the law applicable to the arbitration
agreement between the Claimant and Respondent and therefore it is applicable to the
present dispute. Section 2880 of the Arbitration Act outlines the rules applicable to
the substance or subject matter of the arbitration between parties.
“28. Rules applicable to substance of dispute.—
(1) Where the place of arbitration is situate in India,— (b) in international
commercial arbitration,—
(i) the arbitral tribunal shall decide the dispute in accordance with the rules of
law designated by the parties as applicable to the substance of the dispute;
(ii) any designation by the parties of the law or legal system of a given country
shall be construed, unless otherwise expressed, as directly referring to the
substantive law of that country and not to its conflict of laws rules;

79
Ibid.
80
Section 28 of the Arbitration and Conciliation Act 1996

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(iii) failing any designation of the law under clause (a) by the parties, the
arbitral tribunal shall apply the rules of law it considers to be appropriate
given all the circumstances surrounding the dispute.
(3) While deciding and making an award, the arbitral tribunal shall, in all cases,
take into account the terms of the contract and trade usages applicable to the
transaction.” Pursuant to Section 28 (1) (b) (i), the arbitral tribunal is empowered to
decide on the applicability of the rules to the subject matter of the dispute as
designated or provided by the parties.
VII. Moreover, according to Rule 31.181 of SIAC Rules, the tribunal shall apply the law
given by the parties in their arbitration agreement. In case, the parties have failed to
provide for such designation, the Tribunal shall apply the law or rules of law which
it determines to be appropriate.
VIII. Moreover, in the Firstlink82 case, the court ruled that in case of absence of express
choice of law, the subject matter of the arbitration agreement between the parties
should be governed by the laws of the arbitration seat.
IX. Therefore, the arbitral tribunal has the power to decide the applicable laws in case
the parties have failed to provide for the same. In the instant case at hand, the parties
have provided that the agreement will be governed by Indian law83, however, they
have not expressly provided that the Data Supply Agreement would be covered by
CISG. Thus, it is hereby submitted that CISG is not mandatorily applicable on the
DSA and hon’ble tribunal is at the liberty to decide the applicability of laws on the
agreement between the claimant and respondent.

3.2 As per the Indian law, ‘Data’ is not covered under the definition of ‘Goods’
X. It is hereby submitted that Sale of Goods Act 1930 deals with the sale and purchase
of ‘goods’ in India. Section 2 (7)84 of the same provides the definition of ‘goods’. It
says that ‘goods’ include every kind of movable property except for actionable
claims and money. Furthermore, Section 2 (3) of the Act provides that the above
defined ‘goods’ are said to be in a ‘deliverable state’ when they are in state that the
buyer would be under the duty to take delivery of them as per the agreement. Thus,
as per

81
Rule 31 of Singapore International Arbitration Centre Rules 2016
82
FirstLink Investments Corp Ltd v GT Payment Pte Ltd and Others[2014] SGHCR 12
83
Supra note 4.
84
Section 2 (7) of the Sale of Goods Act 1930
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the understanding of SOGA, ‘data’ has to fit the definition of ‘goods’ and should be
in a deliverable state in order to fall under the ambit of ‘goods’.
XI. Under the Information Technology Act 2000, ‘data’ has been defined under Section
2 (o)85. It provides that data is a formal representation of information, knowledge,
facts, concepts or instructions that can be processed in a computer system or
network. It can be in any form, including computer printouts, magnetic or optical
storage media, punched cards, punched tapes, or stored internally in the computer's
memory.
XII. It is submitted that as per the yet to be notified Digital Personal Data Protection Act
2023, definition of data is given under the Section 2 86 of the same. It says that the
term ‘data’ refers to information, facts, concepts, opinions, or instructions that may
be communicated, interpreted, or processed by humans or automated means.
XIII. Subsequently, in the case of St Albans City and District Council v. International
Computers Ltd87, it was held that a hardware device has no use of its own unless it is
supplemented with a software, thus they go hand in hand. However, this was based
on the reasoning that if a software program had to be sold, it had to be uploaded on a
hardware device. Thus, the software program as an intangible item was not held to
be a good, but the conjoint nature of software program along with the hard drive was
interpreted to be ‘good’. It is hereby submitted that this case highlights that the
software must be connected to a hardware in order to qualify as a ‘good’.
XIV. Similarly, in the case of Tata Consultancy Services v. State of A.P., the Apex court
of India discussed whether ‘canned softwares’ can be treated as ‘goods’ in India for
the purposes of taxation. Court discussed the US court judgment in the case of
88
Advent Systems Ltd v. Unisys Corpn. which held “That a computer program may
be copyrightable as intellectual property does not alter the fact that once in the form
of a floppy disc or other medium, the program is tangible, movable and available in
the market place”. In TCS89 case, the Court ruled that a computer program is
considered goods when copies are made and marketed. Intellectual property on
media is also considered goods. The Court found no difference between selling a
computer program on a floppy or CD and selling music on a CD / cassette. The
purchaser pays for the software, not the disk or CD, so the software and media
cannot be split up. It is

85
Section 2 (o) of the Information Technology Act 2000
86
Section 2 (h) of the Digital Personal Data Protection Act 2023
87
St Albans City and District Council v. International Computers Ltd, [1995] FSR 686
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88
Advent Systems Ltd v. Unisys Corpn., 925 F 2d 670 (3d Cir1991)
89
Supra note 13

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emphasized that CD and software could not be separated and copies are made of the
CD, which is the ‘tangible form’ in which software is stored.
XV. In BSNL v. Union of India90, SC established the dominant nature test. They stated
that in cases where the nature of the transaction makes it difficult to determine
whether it is a ‘contract for sale' or a ‘contract of service’, the deciding test is
whether the parties intended or had separate rights arising from the sale of goods. If
no such intention existed, there would be no sale, even if the contract might be
broken down. The criteria for determining whether a contract falls into one category
or another is to examine what is ‘the substance of the contract’. As per this test, the
dominant characteristic of an item is to be ascertained in order to decide whether it is
a good or a service. And in the instant case at hand, the requisite data being supplied
under the DSA by the respondent was aimed to help the Claimant in assessing
optimum date and time for the expedition along with risk and impacts related to the
same91. Thus, its dominant nature is that of a contract of service as opposed to a good
being supplied from one party to another.
XVI. It is hereby submitted that as per the understanding of the above-mentioned case
laws, software in a tangible form (contained in a CD or hardware drive) has been
given the status of a ‘good’. However, data as an amalgamation of information
would not amount to be considered as a 'good', especially in light of the definition of
data as provided under the IT Act and DPDPA. 'Goods' as defined under the SOGA
has a limited ambit and requires good to be in form of a movable property and
should be in a deliverable state. Thus, the data being supplied under the DSA does
not qualify as a ‘good’ under the Indian law owing to the limited definition under
Indian statutes and the requirement of goods being in tangible form provided by the
judicial interpretation with respect to software cases.

3.3 DSA is a ‘supply agreement’ and not a ‘contract for sale’

XVII. Firstly, it is hereby submitted that the nature and characteristics of ‘data’ under the
Data Supply Agreement highlights that it is a ‘service’ being provided from one
party to another and not a ‘good’ being sold under the agreement92. Moreover,
even if is

90
BSNL v. Union of India, (2006) 3 SCC 1
91
CASE RECORD, Notice of Arbitration.
92
Professor Doctor Ingeborg Schwenzer, Service Contracts and the CISG, Journal of Law and Commerce (Vol.
38, 2019-2020).
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accepted that the DSA is an agreement for sale, as per the scope of CISG, it cannot
be covered under its ambit.
XVIII. Software contracts where one party committed to process data for another have been
held to be contracts for personal services, and not sales contracts 93. It is hereby
submitted that in the current case, Respondent was not only required to collect data
from public sources for the purpose of supplying to the Claimant but also required to
assess a suitable date and time for the expedition and perform a risk analysis to
mitigate risk, based on previous crashes and successful expeditions known to
mankind94. And the delivery of data by the Respondent to the Claimant is in addition
to the above-mentioned service.
XIX. It is obvious that Article 2 of the Code is intended to be broadly applicable.
However, given the Code’s continuous emphasis on ‘goods’, which is defined in
terms of a ‘contract for sale’, a contract that only calls for the rendering of services is
not subject to the Code's sales rules. As a result, the fact that the person providing a
service does so in combination with the delivery of goods, it does not imply that the
transaction falls under the Code95.
XX. In the case of Wells v. 10-X Mfg. Co. 96 regardless of whether fulfilment under the
terms of the contract would have resulted in the special manufacturing of the goods,
the contract was for the provision of services. The language used in the contract
plainly demonstrated the parties’ intention that Respondent's responsibility under the
contract was primarily to supply manpower and mechanical capabilities for the
manufacturing of the hunting shirt. The fact that the Respondent supplied only
thread throughout the manufacturing process is an important point to consider when
determining whether the contract is for services or goods. Finally, it was observed
that both the parties are seeking damages not for faulty goods, but for the
Respondent's deficient service performance.
XXI. Similarly, in the present fact scenario, even if the supply of the final excel sheet
containing the raw data amounts to a ‘good’, it was in addition to the analysis and
assessment of the data publicly available97, to be conducted by the Respondent
which

93
Computer Servicenters, Inc. v. Beacon Mfg. Co., 328 F. Supp. 653, 658 (D.S.C. 1970) aff'd, 443 F.2d 906 (4th
Cir. 1971).
94
Supra note 17.
95
Duesenberg L. King, Sales Bulk Transfers Under U.C.C., 1-23 (1966)
96
Wells v. 10-X Mfg. Co., 609 F.2d 248, 255 (6th Cir. 1979)
97
CASE RECORD, Procedural Order 2.
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is in the nature of a service. And the Notice of Arbitration has been filed by the
Claimant on the frivolous claim of the said service being deficit or poor in nature, as
per an AI report, which as argued above does not amount to expert evidence.
XXII. According to Art. 7(1)98 CISG, the CISG shall be construed consistently, taking into
account its worldwide scope. The goal is to make universal regulations the standard
99
for international commercial transactions . In order to ensure a consistent
understanding of the term ‘data’, international trade norms should be consulted.
XXIII. The ‘predominant thrust’ or ‘predominant factor’ test is commonly used by courts to
determine whether a hybrid contract is for the sale of goods under the UCC. 100
According to this test, particular transactions are held to be ‘for the sale of goods’ if
their predominant factor and purpose is the rendition of service, with goods being
incidentally involved101.
XXIV. Similarly, CISG contains an article to this effect. Article 3 (2) 102 provides that CISG
would not be applicable to the contracts in which the preponderant part of the part
supplying the goods in inclusive of supply of some service.
XXV. Thus, as per both the above-mentioned test of ‘predominant thrust’ and
‘preponderant part’, these tests determine whether an agreement is a ‘contract for
sale’ or ‘service agreement’ based on its prominent attribute. And, in this case, the
respondent's provision of the data being supplied under the DSA was intended to
assist the Claimant in determining the best date and time for the expedition, as well
as the associated environmental risk and effects along with ecological factors for
research purposes. As a result, its dominating character is that of a service contract
rather than one in which one party supplies another with a good.
XXVI. Therefore, owing to the lack of expressly subjecting the agreement to CISG, ‘data’
not being covered under the definition of ‘goods’ under the Indian law and Data
Supply Agreement being an ‘service agreement’ instead of a ‘contract for sale’, DSA
is not covered under the scope of CISG.

98
Article 7 (1) of United Nations Convention on Contracts for the International Sale of Goods.
99
Stefan Kro¨ll, Loukas Mistelis, Pilar Perales Viscasillas, UN Convention on Contracts for the International
Sale of Goods (CISG) (2nd Edn., 2018) Article 7, Para. 17
100
Ranger Constr. Co. v. Dixie Floor Co., Inc., 433 F. Supp. 442 (D.S.C. 1977)
101
Bonebrake v. Cox, 499 F.2d 951, 960 (8th Cir. 1974), Kline Iron Steel v. Gray Com. Cons., 715 F. Supp. 135,
139 (D.S.C. 1989).
102
Article 3 (2) of United Nations Convention on Contracts for the International Sale of Goods.

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4. Classification of Data as "Goods" under CISG:

I. It is humbly submitted to the Hon’ble Tribunal that, CISG does not apply to Data
Supply Agreement (DSA). It only applies to tangible moveable goods.

4.1 No fundamental breach to constitute non conformity under CISG.

II. It is humbly submitted that, Article 25 of the CISG defines the concept of
fundamental breach. It states that, “A breach of contract committed by one of the
parties is fundamental if it results in such detriment to the other party as substantially
to deprive him of what he is entitled to expect under the contract, unless the party in
breach did not foresee and a reasonable person of the same kind in the same
circumstances would not have foreseen such a result.”103 Breach of an explicitly
fundamental term will usually result in a fundamental breach. When the importance
of a term has not been made explicit, the fundamental nature of a term is subject to
interpretation of Article 25 CISG.104
III. In this instance, as per the knowledge of Respondents the data provided by them to
the Claimants for their expedition is correct and reliable, furthermore Prof. (Dr.)
Avid Attenborough (Exhibit R1) who is an expert with extensive experience in
105
Antarctic expeditions claims that the data is accurate and that the minor
inaccuracies identified in the data do not pose insurmountable challenges or threats
to safety.
IV. The applicable norm for the matter of non-conformity of goods is established under
Article 35 CISG. The contractual terms are the most important factor to consider. A
breach of contract occurs if the delivered items do not meet certain requirements in
terms of quantity, quality, or description.106 The ‘primary test’ for conformity, under
107
CISG article 35(1), looks to “the requirements of the contract” According to this
provision, goods must be fit for their ordinary purposes,108 fit for their particular

103
United Nations Convention on Contracts for the International Sale of Goods, Apr. 11, 1980, Art. 25, available
at 4htp://www.uncitral.org/pdf/english/texts/sales/cisg/CISG.pdf>,
104
Peter Schlechtriem & Ingeborg Schwenzer (eds.), Kommentar zum einheitlichen UN Kaufrecht 4th ed.
(Munich: Beck, 2004), Art. 25 para. 2.
105
Moot Problem Pg no.27
106
B. Piltz, Internationales Kaufrecht 2nd ed. (Munich: Beck, 2008), para. 5-28; Schwenzer, in
Schlechtriem/Schwenzer
107
Ingeborg Schwenzer, ‘Article 35’ in Ingeborg Schwenzer (ed), Schlechtriem & Schwenzer: Commentary on
the UN Convention on the International Sale of Goods (CISG) (Oxford University Press, 4th ed, 2016) 591, 594
[6].
108
Art 35(2)(b).
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109 110
purposes, possess the qualities held out via any sample or model, and be
111
packaged in their usual (or in an adequate) manner. The DSA meets all
requirements as stated by the Claimants during the initial negotiations. The
negligible inaccuracies affect minor or non-critical aspects of the data, and they did
not materially affect its overall functionality. Moreover the data meets prevailing
industry standards for accuracy.
V. The email on April 10, 2022 by Indra clearly stated that, if they take 30% off the fee
it will cost them 24/7 data integrity assurance. Clause 18.1.2 of the DSA mentions –
“The Data is and will be accurate as on the Delivery Date.” 112 The data supplied by
the respondents was reliable till the Claimants tried to hamper with it. The data was
sent to the Claimants on 27th December after which they decided their launch date,
which shows that the data was reliable on the day of its delivery.

4.2 Paap has not been able to establish their claim.

VI. It is humbly submitted that, the Respondents delt in good faith and exercised due
diligence in acquiring and processing the data, following industry best practices.
VII. According to the principle of onus probandi actori incumbit (the burden of proof lies
with the party who asserts) places the initial burden on the Claimant. This is because
Paap is the party making allegations. Mere A.I, report which requires human
intervention cannot be the basis of their allegations. Expertise often involves
domain- specific knowledge that extends beyond data analysis. Experts can weigh
conflicting evidence and make informed decisions. While AI can assist in data
processing, it cannot fully replace the nuanced expertise and judgment provided by
human experts in creating reliable and comprehensive expert reports. An expert
report should consider fairness, ethical implications, and potential biases. AI models
may inadvertently perpetuate existing biases. The report created by BranStark
violates the IBA Rules for Evidence, which provide internationally accepted criteria
for experts. The Clamiant has failed to establish both the non-conformity and its
causal link to any claimed damages or breach.

109
Art 35(2)(d).
110
Art 35(2)(c).
111
Art 35(2)(d).
112
Exhibit C5 Page 18

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4.3 Examination of the Goods not done in accordance with Article 38.
VIII. It is humbly submitted to this Arbitral Tribunal that, the examination of the Goods
not done in accordance with Article 38. The type of goods and all other pertinent
factors determine the examination technique required by CISG article 38(1). 113 It is
possible to inspect data while using it, regardless of whether it is functional in and
of itself. In the case of complicated goods, "complex technological analysis" is not
necessary: Article 38(1) of the CISG requires that the examination procedure be
"reasonable."114 Letting A.I., analyse the report is not reasonable as Expert reports
need to be Expert reports need to be transparent, explainable, and unbiased, which
A.I. is not. Relying solely on AI for expert reports in any setting premature.
IX. According to Article 38, the buyer is required to conduct a prompt and reasonable
inspection of the provided goods. Even if the seller supplied perfect items earlier, it
is still the buyer's responsibility to inspect the goods.115

4.3.1 Timely notice was not given to the Respondents

X. It is humbly submitted that, once examination has been done, the very same
communication technologies that underpin data supply trade facilitate the relatively
prompt notice which CISG article 39(1) requires.116 Which was not done by the
Claimant. They failed to check the data in a timely manner and sent notice of alleged
non conformity117 10 days before their expedition. Buyer forfeits the ability to rely
on the lack of conformance clause and, as a result, forfeits the remedies provided by
Article 45 of the CISG if they fail to inspect the products and notify the seller of any
nonconformity within a reasonable amount of time.118
XI. The client in Chicago Prime Packers, Inc. v. Northam Food Trading Co., (2003)119
sent notice 11 days after realising the items were non-conforming (fresh, blast-
frozen pork back ribs). According to the U.S. Court's ruling, the buyer neglected to
notify the seller in a timely manner and did not inspect the shipment of the goods
within the allotted time frame.

113
CM Bianca, ‘Article 38’ in CM Bianca and MJ Bonell (eds), Commentary on the International Sales Law
(Giuffrè, 1987) 295, 298 [2.3];
114
Enderlein and Maskow (n 130) 155 [1]; Bianca, ‘Article 38’ (n 210) 298 [2.3].
115
Aluminum Hydroxide Case, 1997
116
Enderlein and Maskow (n 130) 159–60 [3].
117
Schlechtriem & Schwenzer, 2005
118
Examination of Goods by Buyers Under International Sales Contracts (abacademies.org)
119
Chicago Prime Packers, Inc. v. Northam Food Trading Co., Cause No. 01 C 4447 (N.D. Ill. May. 28, 2003)

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XII. According to CISG article 67(1) provides that risk generally passes ‘when the goods
are handed over to the first carrier for transmission to the buyer in accordance with
the contract of sale”, the risk of the Respondents passed as soon as they had sent
over the data in compliance with the DSA to the Claimants.

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REQUEST FOR RELIEF

Based on the aforesaid, RESPONDENT respectfully requests the Hon’ble Tribunal to grant the
relief set out herein below:

1. That, the Hon'ble Tribunal does not have jurisdiction to proceed without a pre-arbitral
deposit and should require the Claimant to provide security for costs.

2. That, BranStark does not qualifies as an expert report.

3. That, Data Supply Agreement is not governed by CISG.

4. That, the data supplied by the Respondent is not defective and not non-conforming under
CISG.

On Behalf of Zeus LLC

Shazam Joshua

Counsel for RESPONDENT

2nd March 2024

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