A team from Gujarat National Law University (GNLU) has triumphed in the South Asia regional round of the Foreign Direct Investment International Arbitration Moot competition.
The regional finals took place in Delhi on 27 August and were judged by Supreme Court justice Sanjay Kishan Kaul, Delhi High Court justice Ravindra Bhat and Singapore-based senior counsel and regional head of dispute resolution at Rajah & Tann, Francis Xavier.
A total of 14 teams from across India took part in the three-day competition. A team from National Law University, Jodhpur (NLUJ), placed second. Two teams from National Law School of India University, Bangalore and Amity Law School, Delhi, also qualified for the finals, which take place in Boston between 2-5 November.
Sumeet Kachwaha, the managing partner of Kachwaha & Partners who organized the arbitration moot said it was a “keenly contested final” between GNLU and NLUJ, which the former “won by a whisker”.
The moot case concerned court delays in the enforcement of an arbitration award as a basis for a claim. The case also addressed overriding an investor’s patent rights on the ground of necessity, in terms of affordable healthcare for citizens.
The case raised issues on merits and jurisdiction. The issue on merits was whether a state could override an investor’s patent rights on the grounds of necessity. The debate centred specifically on the compulsory licensing exception in the Agreement on Trade-Related Aspects of Intellectual Property Rights, and whether the bar on exports would extend to the export of patented drugs to neighbouring countries on humanitarian aid considerations.
The jurisdictional issue addressed two points. The first was whether an investor whose home state did not have a bilateral investment treaty (BIT) with the host state, could overcome this by routing its investment through a shell company in country “X”, which had a BIT in place.
The second aspect of the jurisdictional issue was whether court delays in enforcing an arbitral award could form the basis for a BIT arbitration. “This issue involves a long, but as yet unresolved debate on whether an award can qualify as an investment – either by itself, or as a crystallization or transformation of the underlying investment,” said Kachwaha. “This issue is of special interest to India due to judicial delays and the questionable White Industries Australia-India BIT award of 2011, which held India liable for damages for judicial delays of over nine years in enforcing an award.”
Each team participated in four rounds – twice arguing for the claimant and twice for the respondent. Kachwaha explained that this was a challenging logistic exercise since they tried to ensure that the same judge did not judge a team twice or have any conflict of interest in terms having attended a competing college’s alumni. As a result, 84 judges were brought in at various levels of the competition. “It’s quite a task to identify that many competent and willing persons with [arbitration] being relatively a new field,” he told India Business Law Journal.
Two different teams from Dr Ram Manohar Lohiya National Law University picked up prizes for the best claimant’s brief and the best respondent’s brief. Awards for the best advocate went to GNLU’s Sanchit Suri in the preliminary rounds and Garima Kedia in the final round.
“I feel this is a very useful event as it helps skill-building in international investment disputes – a significant but somewhat ignored area in India,” said Kachwaha.