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114 A IN THE HONORABLE SUPREME COURT OF RELMAR AT GANTEN CASES CONSOLIDATED UNDER ARTICLE 142 OF THE CONSTITUTION OF RELMAR READ IN CONJUNCTION WITH RULE 6, ORDER XLVII OF THE SUPREME COURT RULES, 1966. IN THE MATTERS OF: TRANSFER PETITION FROM APPEAL NO. 648 OF 2012 (Under Article 139A of the Constitution of Relmar, 1950 read with Order XXXVIA, Rule 8, Supreme Court Rules, 1966) Gherardelli Enterprises (Represented By its Director)....................................... (Appellant) Versus Republic of Relmar (Represented by The Under Secretary, Ministry Of Commerce) ..................................................................................................................................... (Respondent) Clubbed With TRANSFER PETITION FROM CRIMINAL APPEAL NO. 657 OF 2012 (Under Article 139A of the Constitution of Relmar, 1950 read with Order XXXVIA, Rule 8, Supreme Court Rules, 1966) Mr. U. Prime & Mr. S. Tobler...................................................................................... (Appellants)
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Memorial

Oct 30, 2014

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Page 1: Memorial

114 A

IN THE HONORABLE SUPREME COURT OF RELMAR

AT GANTEN

CASES CONSOLIDATED UNDER ARTICLE 142 OF THE CONSTITUTION OF RELMAR READ IN

CONJUNCTION WITH RULE 6, ORDER XLVII OF THE SUPREME COURT RULES, 1966.

IN THE MATTERS OF:

TRANSFER PETITION FROM APPEAL NO . 648 OF 2012

(Under Article 139A of the Constitution of Relmar, 1950 read with Order XXXVIA, Rule 8,

Supreme Court Rules, 1966)

Gherardelli Enterprises (Represented By its Director)....................................... (Appellant)

Versus

Republic of Relmar (Represented by The Under Secretary, Ministry Of Commerce)

..................................................................................................................................... (Respondent)

Clubbed With

TRANSFER PETITION FROM CRIMINAL APPEAL NO . 657 OF 2012

(Under Article 139A of the Constitution of Relmar, 1950 read with Order XXXVIA, Rule 8,

Supreme Court Rules, 1966)

Mr. U. Prime & Mr. S. Tobler...................................................................................... (Appellants)

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Versus

Republic of Relmar (Represented by The Under Secretary, Ministry Of External

Affairs)........................................................................................................................ (Respondent)

AND

Writ Petition No. 607 of 2012

(Under Article 32 of the Constitution of Relmar, 1950 Read With Order XXXV, Rule 7,

Supreme Court Rules, 1966)

SAI (Represented by its President)................................................................................ (Petitioner)

Versus

Republic of Relmar (Represented by Under Secretary, Ministry Of Home

Affairs)........................................................................................................................ (Respondent)

-Memorial on Behalf of the Appellants/Petitioner –

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TABLE OF CONTENTS

1. Index of Authorities…………………………..……………..………………..…………iv

2. Statement of Facts ………………….………………………..……………..…………viii

3. Statement of Jurisdiction …………………….………………………..…….…………x

4. Issues for Consideration……………………………………………….….…..………..xi

5. Summary of Arguments………………………………………………………………..xii

6. Arguments Advanced……………………………………………………………….…..1

7. Prayer for Relief…………………………………………………………………….…..13

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INDEX OF AUTHORITIES

Cases

Acharya Avadhuta v. Commissioner of Police, AIR 1983SC 1125 (11). ..................................... 12

Barcelona Traction case, ICJ Reports 1970 ................................................................................... 8

Bharat Aluminium Co. Ltd.v Kaiser Aluminium Technical Services, Inc., AIR 2005 Chh 21 ....... 2

Bhatia International v Bulk Trading S.A., AIR 2002 SC 1432...................................................... 2

Bipinchandra Shantilal Bhatt v. Madhuriben , AIR 1963 Guj 250 .............................................. 10

Bramachari Sideshwar Sai v. State of W.B, AIR1995 SC 2089 (55). .......................................... 12

C. Srl v L.S. SA, 16 ASA Bull. 653 ............................................................................................... 1

Chromalloy v. Arab Republic of Egypt, 939 F.Supp. 907............................................................... 2

Chromalloy v. Arab Republic of Egypt, 939 F.Supp. at 914 ........................................................... 3

Colgate Palmolive Ltd. v M.R.T.P. Commission, AIR 2003 SC 317 ............................................. 8

Commr. HRE V Lakshmindra Tiratha, AIR 1954 SC 282 ........................................................... 12

Corocraft Ltd. v. Pan American Airways Inc. [1969] 1 All E. R. 80.............................................. 5

DDA v Joint Action Committee, (2008) 2 SCC 545........................................................................ 9

District Registrar v Canara Bank, (2005) 1 SCC 496 .................................................................. 11

Ex parte Muir, 254 U. S. 522 .......................................................................................................... 6

Ex parte Peru, 318 U.S. 578 ........................................................................................................... 6

Gopalan v State of Madras, AIR 1950 SC 27 ............................................................................. 10

Goutam Kundu v. State of West Bengal, (1993) 3 SCC 418 ......................................................... 10

In Re: The Delhi Laws Act, 1912, [1951 ] 2 SCR 747 .................................................................... 8

Jagadishwaranand v. Police Commissioner, Calcutta, AIR1984 SC 51 (57). ............................. 12

Judgment of 20th October, 1993, Radenska v Kajo, XXVIa Y.B. Comm Arb 919 ........................ 3

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Judgment of 6th December 1988, Societe Nationale v Ford, Bacon & davis Inc, XV Y.B. Comm

Arb. 370 ...................................................................................................................................... 3

Judgment of 9th October, 1984, Pabalk v Norsolor, SA XI Y.B. Comm. Arb. 484 ....................... 3

Judgment of June 7th 1995, XXII Y.B. Comm Arb. 727(Italian Corte di Cassazione) .................. 4

Kesavananda Bharati v State of Kerela, AIR 1973 SC 1461 ....................................................... 10

Kharak Singh v State of U.P., AIR 1963 SC 1295 ....................................................................... 10

Laminoirs-Trefileries-Cableries de Lens, S.A. v. Southwire Co., 484 F.Supp. 1063 (N.D. Ga.

1980) ........................................................................................................................................... 1

London Underground Ltd v City link Telecom Ltd, [2007] EWHC 1749(TCC) ............................ 1

M/V Saiga (No 2) (Admissibility and Merits), 120 ILR ................................................................ 5

Makhan Singh v State of Punjab, AIR 1964 SC 381 .................................................................... 10

Maneka Gandhi v Union of India, AIR 1978 SC 597................................................................... 11

Maneka v. Union of India, AIR 1978 SC 597............................................................................... 10

Massimilano Latorre v. Union of India, W.P.(C).No.4542 of 2012 (P) ......................................... 6

N.T.P.C v The Singer Company, AIR 1993 SC 998 ....................................................................... 2

Naraindas v State of M.P., AIR 1974 SC 1232 ............................................................................ 11

P.B. Samant v Union of India, AIR 1994 Bom 323 ........................................................................ 9

P.U.C.L. v. Union of India, (2003) 4 SCC 399 ............................................................................... 5

Parsons Co. v. Societe Generale de L'Industrie du Papier, 508 F.2d 969 (2d Cir. 1974) ............. 4

Patnaik v State of A.P., AIR 1974 SC 2092.................................................................................. 10

Ram Jawaya Kapur v. State of Punjab, [1955] 2 SCR 225 ............................................................ 9

Raymund Gencianeo v State of Kerala, 2004 Crl.L.J. 2296 ........................................................... 7

Rohit Shekhar v. Narayan Dutt Tiwari, 2012(2) RCR (Criminal)889 .......................................... 11

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S.S. Lotus (Fr. v. Turk.), 1927 P.C.I.J., Series A, No. 10 (Sept. 7), ............................................... 8

Satwant Singh Sawhney v. Assistant Passport Officer, [1967] 3 SCR 525 ................................... 9

State of A.P. v Lavu Nath, (1971) 1 SCC 607 ................................................................................. 9

State of Uttar Pradesh v V.A. Maharaj, AIR 1963 SC 946 ............................................................ 8

Thakur Bharat Singh v Madhya Pradesh, AIR 1967 SC 1170 ....................................................... 9

Waterside Ocean Navigation Co. v. International Navigation Ltd., 737 F.2d 150 (2d Cir. 1984) 4

Westminster City Council v Government of Iran, [1986] 1 WLR 979 ........................................... 6

Statutes & International Conventions

1. Constitution of Relmar, 1950

2. Convention for The Suppression Of Unlawful Acts Of Violence Against The Safety Of

Maritime Navigation

3. Suppression of Unlawful Acts against Safety of Maritime Navigation and Fixed

Platforms on Continental Shelf Act, 2002

4. Territorial Waters, Continental Shelf, Exclusive Economic Zone and Other Maritime

Zones Act, 1976

5. United Nations Convention on the Law of the Sea

Other Authorities

1. UN Doc A/CONF. 62/WP. 8/Rev I/Part II( 1976).............................................................. 2

Books

1. Antonio Cassese, International Criminal Law, (Oxford University Press, 2003) .............. 4

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2. D.D. Basu, Commentry on the Constitution of India ( Vol 3, Lexis Nexis, 2008) ........... 11

3. Gary B. Born, International Commercial Arbitration,( Wolters Kluver, Vol 2, 2010).. 5, 8

4. Malcom N. Shaw, International Law (Cambridge University Press, 6th Edn, 2008) ......... 1

5. O.P. Sharma, India and the UNCLOS, 1982, Oxford University Press .............................. 2

6. Short & Than, Civil Liberties: Legal Principles of Individual Freedom ......................... 10

Articles

1. A. Van Den Berg, The New York Arbitration Convention 1958, 216 (1981) ..................... 6

2. Albert Jan van den Berg, The New York Convention of 1958: An Overview ..................... 5

3. Albert van den Berg (Ed), Improving the Efficiency of Arbitration Agreements and

Awards, ICCA Congress Series, 1999 ................................................................................ 7

4. G. Petrochilos, Procedural Law in International Arbitration, 175 (2004) ......................... 5

5. Lastenouse, Why setting aside and Arbitral Award is not Enough To Remove It, 16(2)

J.Int’l Arb 25, 1999 ............................................................................................................. 8

6. Paul Arnell, The case for nationality-based jurisdiction, 50 ICLQ, 200 ........................... 4

7. Paulsson, May or Must under the New York Convention: An Exercise in syntax and

linguistics, 14 Arb Int’l 227 (1998) .................................................................................... 7

8. Poudret, Quelle solution pour en finir avec l’affaire Hilmarton, 1998 Rev arb. 7 ............. 7

9. Tullio Scovazzi, The Evolution Of International Law Of The Sea: New Issues, New

Challenges, 286 RCADI 2000 .......................................................................................... 4

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STATEMENT OF FACTS

I

Relamr a developing country, shares its borders with Manzas a theocratic nation. Due to a surge

in foreign investment, Relmar recorded a double digit growth, considering which the government

decided to introduce welfare schemes for the citizens. To ensure that the benefit of these schemes

reached 1.4 billion nationals of Relmar it was decided to give a unique permanent identity to the

citizens as a basis of authentication of identity. Pursuant to this the government through an

executive order set up the Permanent Identification Authority of Relmar(PIAR).

II

Though a bill to convert PIAR into a statutory corporate body was pending, with intent to start

the scheme PIAR entered into a contract with Ghirardelli Enterprises to establish equipment. It

was decided to settle disputes by arbitration according to the ICC rules where the contract will be

governed by Relmar laws and the law of arbitration would be the law of Manzas

III

Meanwhile, an oil tanker registered in Zimave shot and killed four fishermen on board

Relmarian fishing vessel in the Exclusive Economic Zone (EEZ) of Relmar created by the

Territorial Waters, Continental Shelf, Exclusive Economic Zone and Other Maritime Zones Act,

1976 (Territorial Waters Act). Government of Piccoland initiated proceedings against the

mariners responsible for the shooting and the District Judge ruled that the Courts of Relmar had

the jurisdiction to try the matter. Against this order, the mariners filed an appeal by way of

Criminal Appeal No. 657 of 2012 at the High Court of Piccoland.

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III

Meanwhile, the members of the Namek community petitioned the Government to erase the PIN

of the fishermen along with the biometric data as it was against their customary practices. The

Government refused the petition following which, SAI, an NGO, filed a PIL before the Supreme

Court by way of Writ Petition No. 607 of 2012 challenging the constitutional validity of the PIN

scheme and the authority of PIAR. The government suspended collection of biometric data and

withheld contractual payments to Ghirardelli Enterprises.

IV

Subsequently, arbitration proceedings took place and the tribunal issued an award dated July 14,

2012 in favour of Ghirardelli Enterprise. Aggrieved, the Relmarian Government made

approached the District Court of Santa Carla to set aside the award on the ground of procedural

irregularity. The court set aside the award on the ground that the tribunal admitted evidence

without a religious oath. The decision was upheld by the High Court.

V

Gherardelli Enterprises approached the District Court of Ganten and sought to enforce the award

the application was allowed but reversed on appeal. Gherardelli Enterprises appealed the ruling

to a Division Bench under Appeal No. 648 of 2012. Taking note of the judicial turmoil in

Relmar, the Honorable Court transferred Criminal Appeal No. 657 of 2012 from the High Court

of Piccoland and Appeal No. 648 of 2012 from the High Court of Ganten and clubbed them with

Writ Petition No. 607 of 2012.

Hence the present matters are before this Hon’ble Court.

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STATEMENT OF JURISDICTION

It is most humbly and respectfully submitted by the counsel for the Appellants/Petitioner that the

Honorable Supreme Court of Relmar has the jurisdiction to hear and adjudicate

• Transfer Petition (No 648 of 2012) under Article 139A of The Constitution of Relmar

read With Order XXXVIA Rule 8 of The Supreme Court Rules, 1966

• Transfer Petition (No 657 of 2012) under Article 139A of The Constitution of Relmar

read With Order XXXVIA Rule 8 of The Supreme Court Rules,1966

• Writ Petition (No 607 of 2012) under Article 32 of The Constitution of Relmar read With

Order XXXV Rule 7 of The Supreme Court Rules, 1966

All of which is submitted humbly and respectfully.

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ISSUES FOR CONSIDERATION

I. WHETHER THE ARBITRAL AWARD, SET ASIDE IN THE COUNTR Y

WHERE IT WAS PASSED, BE ENFORCED BY THE COURTS OF RELMAR?

II. WHETHER THE JURISDICTION OF THE RELMAR COURTS EXTEN DS TO

THE MARINES ON BOARD A ZIMAVEAN VESSEL?

III. WHETHER THE PIN SCHEME IS CONSTITUTIONALLY VALID AN D

WHETHER THE PIAR HAS THE LEGAL BACKING TO ENFORCE I T.

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SUMMARY OF ARGUMENTS

ISSUE I

1. If the Procedure or proceedings of annulment are flawed, even in the arbitral seat, then

the courts where enforcement is seeked can enforce such award which has been set aside.

Procedural Irregularities in taking of evidence is not a ground of annulment Hence, as the

Manzas courts erred in setting aside the award on procedural irregularity and due to this

error the Relmar courts can enforce the award.

2. Section 48 of the Arbitration and Conciliation Act of India corresponds to Article V of

the New York Convention therefore providing for discretion. In many jurisdictions where

the Convention is adopted, the judges have exercised this discretion to enforce an award

which has been set aside in its country of origin.

3. Also, New York Convention enforces a mandatory obligation to recognize and enforce

arbitral awards. Hence, the award should be made enforceable for the betterment of the

entire arbitral process in the world

ISSUE II

1. The UNCLOS and the drafters of the Territorial waters Act only intended to extend

economic sovereignty and not absolute sovereignty to the EEZ’s and hence, Article 7(7)

should also be construed to mean that the Central Government only has the power to

protect and manage resources and not extend criminal jurisdiction in the EEZ. Even

under the SUA Act, the State Government has no authority to prosecute the Marines.

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2. Also, without an enactment the courts have no jurisdiction over the foreign vessel outside

the territorial waters and even if they did, under the active nationality principle, vessels

on the high seas are subject to no authority except that of the State whose flag they fly,

which is Zimave in the present case. Hence, it is established that Relmar courts do not

have jurisdiction to try the mariners.

ISSUE III

1. The State or its executive officers cannot interfere with the rights of others unless they

can point to some specific rule of law which authorizes their acts The expression law

under Article 21 means law made by the legislature in accordance with its ordinary

legislative procedure. Hence, in the present case there is no legislation that warrants such

an order, and therefore it does not fall under the ambit of law

2. Also, the scheme infringes right to privacy as there is no due process and the PIN is

arbitrary, oppressive or fanciful.

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ARGUMENTS ADVANCED

I. THE ARBITRAL AWARD, EVEN THOUGH SET ASIDE IN MANZAS , CAN BE

ENFORCED BY THE COURTS OF RELMAR.

1. Awards, wrongly set aside in the country of origin, can be enforced:

Arbitrators are free, but not obliged to adopt procedural rules used in national legal

systems1. The fact that one’s states local policies or rules may be offended by an award

is no reason for another state to refuse its recognition.2

2. It has been held by many authorities that if the grounds3, procedure or proceedings of

annulment are flawed, even in the arbitral seat, then the courts where enforcement is

seeked can enforce such award which has been set aside.4 In the case of Laminoirs-

Trefileries-Cableries de Lens, S.A. v. Southwire Co.5, the award was recognized even

when the tribunal refused to admit any evidence. Procedural Irregularities in taking of

evidence is not a ground of annulment6 and therefore given the tribunals broad authority

over admission of evidence it is difficult to set aside award on this ground.7 Even the ICC

Rules, which in the case at hand govern the proceedings, do no talk about such oaths.

1 G. Petrochilos, Procedural Law in International Arbitration, 175 (2004) 2 Gary B. Born, International Commercial Arbitration,( Wolters Kluver, Vol 2, 2010), Pg 2694 3 Albert Jan van den Berg, The New York Convention of 1958: An Overview, available at http://www.arbitration-icca.org/media/0/12125884227980/new_york_convention_of_1958_overview.pdf 4 Gary B. Born, International Commercial Arbitration,( Wolters Kluver, Vol 2, 2010), Pg 2692 5 Laminoirs-Trefileries-Cableries de Lens, S.A. v. Southwire Co., 484 F.Supp. 1063 (N.D. Ga. 1980) 6C. Srl v L.S. SA, 16 ASA Bull. 653. See also, Gary B. Born, International Commercial Arbitration,( Wolters Kluver, Vol 2, 2010), Pg 2585 7 London Underground Ltd v City link Telecom Ltd, [2007] EWHC 1749(TCC)

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Hence, it can be safely assumed that the Manzas courts erred in setting aside the award

on procedural irregularity and due to this error the Relmar courts can enforce the award.

3. Arbitration and Reconciliation Act, 1996 can be applied:

In the case of N.T.P.C v The Singer Company8 arbitration took place in London under the

ICC Rules, it was held the Indian Courts have jurisdiction for the purpose of recognition

and enforcement of award. Also, in the case of Bharat Aluminium Co. Ltd.v Kaiser

Aluminium Technical Services, Inc.9 it was held that even though it was held that Section

34 of the act cannot be invoked in cases of foreign awards where the parties have

expressly chosen the law governing arbitration, but the award can still be enforced. In the

case of Bhatia International v Bulk Trading S.A10., the parties had expressly chosen ICC

Rules to govern their arbitration proceedings, the court in Paragraph 28 held that foreign

awards are enforceable in India and can be executed relying on Sections 49 and 58 of the

Indian Act.

4. Enforcement of the award is not against Arbitration and Conciliation Act, 1996:

Article V of the New York Convention provides that the recognition and enforcement of

an award may be refused if it has been set aside under the lex arbitri.11 Article V created

a permissive standard leaving non-enforcement of an annulled award within the

8 N.T.P.C v The Singer Company, AIR 1993 SC 998 9 Bharat Aluminium Co. Ltd.v Kaiser Aluminium Technical Services, Inc., AIR 2005 Chh 21 10 Bhatia International v Bulk Trading S.A., AIR 2002 SC 1432, 11 Chromalloy v. Arab Republic of Egypt, 939 F.Supp. 907

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discretion of the judge, and is not a mandatory provision12 it neither forbids nor denies

enforcement.

5. Section 48 of the Arbitration and Conciliation Act of India corresponds to Article V of

the New York Convention therefore providing for discretion13. Similarly, in many

jurisdictions where the Convention is adopted, the judges have exercised this discretion

to enforce an award which has been set aside in its country of origin. The French Courts,

even though France has adopted the convention, have long held that that an award

annulled in the arbitral seat may be recognized in France14. In the case of Pabalk v

Norsolor15 an award, annulled in the seat (Austria) was recognized by the Cour de

cassation.

6. Even Belgium16, Austria17 and other European countries have exercised the discretion in

favour of enforcing the award even though they had adopted the New York Convention.

Even US court, in the case of Chromalloy v Arab Republic of Egypt18 held that, the fact

the Article V(1) of the Convention uses the word ‘may’, a state is not mandatorily

required to refuse enforcement of an arbitral award even if the provision’s exceptions

apply. This is particularly true when the award has been annulled on grounds such as

12 Albert van den Berg (Ed), Improving the Efficiency of Arbitration Agreements and Awards, ICCA Congress Series, 1999 13 Paulsson, May or Must under the New York Convention: An Exercise in syntax and linguistics, 14 Arb Int’l 227 (1998) 14 Poudret, Quelle solution pour en finir avec l’affaire Hilmarton, 1998 Rev arb. 7 15 Judgment of 9th October, 1984, Pabalk v Norsolor, SA XI Y.B. Comm. Arb. 484 16 Judgment of 6th December 1988, Societe Nationale v Ford, Bacon & davis Inc, XV Y.B. Comm Arb. 370 17 Judgment of 20th October, 1993, Radenska v Kajo, XXVIa Y.B. Comm Arb 919 18 Chromalloy v. Arab Republic of Egypt, 939 F.Supp. at 914

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local public policy, non arbitrablity etc19. The Chinese and the Spanish version of the

convention also provide for the exercise of such discretion.20

7. Also, New York Convention enforces a mandatory obligation to recognize and enforce

arbitral awards.21 Such non recognition will have an entirely unacceptable result as it will

bind all contracting states to such annulment irrespective of procedure or integrity of

annulment procedure. Hence, the award should be made enforceable for the betterment of

the entire arbitral process in the world22.

8. Enforcement of award is not against Public Policy of Relmar

Public policy defense should be narrowly construed and applied with great caution23 and

only with respect to the country where the award is sought to be enforced24. In the case of

Waterside Ocean Navigation Co. v. International Navigation Ltd.25, it was categorically

held that inconsistent sworn testimony by witnesses does not violate public policy.

Hence, as there is no law in Relmar which provides for religious oath the award cannot

be denied enforcement

19 Gary B. Born, International Commercial Arbitration,( Wolters Kluver, Vol 2, 2010), Pg 2675 20 Gary B. Born, International Commercial Arbitration,( Wolters Kluver, Vol 2, 2010), Pg 2723 21 Judgment of June 7th 1995, XXII Y.B. Comm Arb. 727(Italian Corte di Cassazione) 22 Lastenouse, Why setting aside and Arbitral Award is not Enough To Remove It, 16(2) J.Int’l Arb 25, 1999 23 Parsons Co. v. Societe Generale de L'Industrie du Papier, 508 F.2d 969 (2d Cir. 1974) 24 A. Van Den Berg, The New York Arbitration Convention 1958, 216 (1981) 25 Waterside Ocean Navigation Co. v. International Navigation Ltd., 737 F.2d 150 (2d Cir. 1984)

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II. THE JURISDICTION OF THE RELMAR COURTS DOES NOT EXTE ND TO

THE MARINES ON BOARD A ZIMAVEAN VESSEL.

9. The notification dated 27.8.1981 cannot extend applicability of Relmar law to the EEZ

It is a settled law in Relmar that unless municipal law provides by incorporating

international convention or law, no international law principles can be enforced.26 But,

when such a convention is incorporated as an act, then the provisions of the act must be

construed so as to be in conformity with international law.27 In the matter at hand the

Territorial Waters Act, 1976 has been enacted to give effect to the UNCLOS and

therefore should be interpreted keeping in mind the intent of the convention.

10. Article 73 of the Convention extends the jurisdiction and sovereignty of the coastal states

to only conserve and manage the resources. The International Tribunal for the law of the

sea held in M/V Saiga (No 2) (Admissibility and Merits)28 that the coastal state has

jurisdiction to apply laws in respect of installation, structures and artificial islands but is

not competent to apply its law in respect of other parts of the Economic Zone, thus

limiting the applicability the jurisdiction to entities listed in Paragraph 1 of the

convention.29

11. It was never intended by the drafters of the Territorial Waters Act to give the Relmar the

right to establish de facto sovereignty over the EEZ or assume jurisdiction.30 Even the

Ministry of Law of Relmar expressed that there was no intention to give any rights or

26 P.U.C.L. v. Union of India, (2003) 4 SCC 399 27 Corocraft Ltd. v. Pan American Airways Inc. [1969] 1 All E. R. 80; See also, ADM Jabalpur v Shiv Kant Shukla, (1976) 2 SCC 521 28 M/V Saiga (No 2) (Admissibility and Merits), 120 ILR, pp 143, 190 29 Malcom N. Shaw, International Law (Cambridge University Press, 6th Edn, 2008), Pg 795 30 Stephen Rose, Naval Activity in the EEZ: Troubled Waters Ahead, ODIL, Vol.21, Pg 126

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jurisdiction beyond what is envisaged in the UNCLOS or even assume any right.31

Therefore, as the drafters and the UNCLOS only intended to extend economic

sovereignty and not absolute sovereignty to the EEZ’s and hence, Article 7(7) should also

be construed to mean that the Central Government only has the power to protect and

manage resources and not extend criminal jurisdiction in the EEZ.

12. Also, Article 89 and 92 of the UNCLOS which is applicable to the EEZ by virtue of

Article 58 clearly establishes that no State may validly purport its sovereignty and ships

shall be subject to its exclusive jurisdiction of the Flag State. Further, the notification also

provides for inserting Section 188A to CrPC and that there is no any such enactment

made by the Parliament of Relmar and Section 188 A has not been brought into CrPC.

Therefore, it can be reasonably assumed that the above notification has not come into

effect at all. Hence, the RPC or the CrPC cannot be extended to the EEZ

13. Relmer Courts have no jurisdiction on Foreign Vessels

ARGUENDO, even if it is assumed that the law of Relmar extends to the EEZ they

cannot be applied to a foreign vessel. Foreign States and nationals enjoy a degree of

immunity from the jurisdiction of the courts of the other state.32 Municipal law as well as

International law recognizes sovereign immunity33 In the case of Ex parte Peru34 the U.S.

Court held that vessels owned by a foreign government were immune from suit in the

United States. Similarly, in Ex parte Muir35, it was held that if a vessel, arrested in

31 O.P. Sharma, India and the UNCLOS, 1982, Oxford University Press, Pg 149; see also UN Doc A/CONF. 62/WP. 8/Rev I/Part II( 1976) 32 Westminster City Council v Government of Iran, [1986] 1 WLR 979 33 Massimilano Latorre v. Union of India, W.P.(C).No.4542 of 2012 (P) 34 Ex parte Peru, 318 U.S. 578 35 Ex parte Muir, 254 U. S. 522

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admiralty, is owned and possessed by a foreign country it is beyond the jurisdiction of the

court as it is immune.

14. In the present matter only if the Parliament legislates on foreign ships or foreigners

beyond the territorial limits of its jurisdiction, the courts are bound to give effect to such

enactment. As there is no such enactment36 and even the sovereignty of Relmar extends

to the territorial waters only which are at a distance of twelve nautical miles from the

nearest point of the appropriate baseline37 the courts have no jurisdiction over the foreign

vessel outside the territorial waters 38.

15. SUA Act also bars jurisdiction of Relmar Courts:

Section 3(8) of the Suppression of Unlawful Acts against Safety of Maritime Navigation

and Fixed Platforms on Continental Shelf Act, 2002 bars the court to take cognizance of

an offence punishable under the act which is committed outside India save certain

situations which in the present case cannot be established. Neither the fishing vessel was

not flying the Relmar flag nor was the alleged offender a Relmer citizen, therefore

barring jurisdiction under the SUA Act, 2002 also.

16. Principle of Active Nationality:

The connection between the State and its nationals is one of the oldest legal links39. By

virtue of this principle, states have jurisdiction over criminal offences committed by their

nationals abroad. This is so, whether or not those offences are criminal under the law of

36 World Tanker Carrier Corporation v SNP Shipping Services Pvt. Ltd, AIR 1998 SC 2330 37 Section 3 of the Territorial Waters Act, 1976 38 Raymund Gencianeo v State of Kerala, 2004 Crl.L.J. 2296

39 Paul Arnell, The case for nationality-based jurisdiction, 50 ICLQ, 2001, pp. 955-962

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the territorial state.40 In the Barcelona Traction case41, jurisdiction was affirmed on the

basis of external links i.e. place of incorporation of a company rather than its place of

business. This genuine link requirement principle at times is the fact of registration itself

that creates a permanent legal relationship between the ship, its members and the State42,

on the basis of which the flag State undertakes obligation to effectively exercise

jurisdiction or control.43 In the present matter as the vessel is registered in Zimave, and

in international law vessels on the high seas are subject to no authority except that of the

State whose flag they fly44 the vessel and the mariners are not subject to Relmer

Jurisdiction as the active nationality principle applies.

17. Prior sanction of the Central Government has to be taken:

Under Section 12 of SUA Act, the State Government has no authority to prosecute the

Marines without obtaining the previous sanction of the Central Government. It is well

settled that the words of a statute are to be read in their natural and ordinary sense45 and

nothing should be implied while reading it46. Therefore, it can be asserted that the Central

government though has the authority to extend the application of any law47, in the present

case such application is restricted by the Act itself and therefore the proceedings initiated

by the District Court without prior sanction is itself bad in law.

40 Antonio Cassese, International Criminal Law, (Oxford University Press, 2003), P 281 41 Barcelona Traction case, ICJ Reports 1970, pp. 3-53, 42 Tullio Scovazzi, The Evolution Of International Law Of The Sea: New Issues, New Challenges, 286 RCADI 2000 43 Article 92 of the UNCLOS 44 S.S. Lotus (Fr. v. Turk.), 1927 P.C.I.J., Series A, No. 10 (Sept. 7), ¶64 45 Colgate Palmolive Ltd. v M.R.T.P. Commission, AIR 2003 SC 317 46 State of Uttar Pradesh v V.A. Maharaj, AIR 1963 SC 946 47 In Re: The Delhi Laws Act, 1912, [1951 ] 2 SCR 747.

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III. THE PIN SCHEME IS CONSTITUTIONALLY VALID AND THE PI AR HAS

THE LEGAL BACKING TO ENFORCE IT.

18. The central government has acted outside its executive powers:

Though it is well settled that the executive powers are coextensive with that of the

legislature48, it was held in the case of Thakur Bharat Singh v Madhya Pradesh,49 that the

State in exercise of executive authority cannot infringe rights of citizens merely because

the legislature has power to legislate in regard to the subject on which the executive order

is passed. The State or its executive officers cannot interfere with the rights of others

unless they can point to some specific rule of law which authorizes their acts50 which in

the present case has not been enacted.

19. Also, when it comes to the sphere of concurrent list the states have the executive

authority, unless ousted by legislation.51 In the case of Ram Jawaya Kapur v. State of

Punjab,52Article 73(1) lays down that with regard to the matters in the Concurrent List

the executive authority shall be left open to the states. Social and Economic planning is

under Entry 20 of the concurrent list and includes socio-economic welfare schemes under

Article 38.53 Hence, the executive authority vests with the state government.

48 State of A.P. v Lavu Nath, (1971) 1 SCC 607 49 Thakur Bharat Singh v Madhya Pradesh, AIR 1967 SC 1170 50 Satwant Singh Sawhney v. Assistant Passport Officer, [1967] 3 SCR 525 51 P.B. Samant v Union of India, AIR 1994 Bom 323 52 Ram Jawaya Kapur v. State of Punjab, [1955] 2 SCR 225 53 DDA v Joint Action Committee, (2008) 2 SCC 545

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20. PIN Scheme infringes Right to Privacy:

It is well established that Right to privacy includes a life free from encroachments on

private life.54 Compelling a person to undergo a medical examination by even by an order

of the Court would be violative of right to 'personal liberty' guaranteed under Article 21.

55 The Supreme Court in Goutam Kundu v. State of West Bengal,56 held that conduct of

scientific tests of the nature of giving blood samples for the purpose of DNA testing in a

routine manner is not permissible. The general masses public are more concerned about

invasion of privacy in form of misuse of personal information by bodies that hold their

records, unwarranted media publicity and invasions.57

21. Due process established by ‘law’ is not followed:

A. Executive Order is not law for the purpose of Article 21:

Law for the purpose of Article 21 means an enacted law.58 The expression law

under Article 21 means law made by the legislature in accordance with its

ordinary legislative procedure and does not include an order, bye-law, rule,

regulation, custom etc.59 Anything that deprives a person of his life or personal

liberty that is not passes by a competent legislature60, suffers from the vice of

excessive delegation or is merely an executive or departmental instruction61 which

has no statutory basis62 will not be law. If an executive action encroaches on any

54 Kharak Singh v State of U.P., AIR 1963 SC 1295 55 Bipinchandra Shantilal Bhatt v. Madhuriben , AIR 1963 Guj 250 56 Goutam Kundu v. State of West Bengal, (1993) 3 SCC 418 57 Short & Than, Civil Liberties: Legal Principles of Individual Freedom, Ch 7, pp360-361 58 Gopalan v State of Madras, AIR 1950 SC 27 59 Kesavananda Bharati v State of Kerela, AIR 1973 SC 1461- per Roy J. 60 Maneka v. Union of India, AIR 1978 SC 597 61 Patnaik v State of A.P., AIR 1974 SC 2092 ¶8 62 Makhan Singh v State of Punjab, AIR 1964 SC 381

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private rights, it would have to be supported by legislative authority, for under the

rule of law, executive action which operates to the prejudice of any person must

have the authority of law to support it.63 Hence, in the present case there is no

legislation that warrants such an order, and therefore it does not fall under the

ambit of law.

B. Due Process is not followed:

ARGUENDO, even if it is assumed that the order is law, the due process

requirement is not followed by the government. ‘Procedure’ as envisaged under

Article 21 means fair and reasonable. A fundamental requirement to infringe

personal liberty and even privacy64 is that there should be a prescribed procedure

and the procedure must withstand the tests of article 14 and 1965 and must not be

arbitrary, oppressive or fanciful.66 In the matter at hand there has been no

procedure laid down by the PIAR, the bill which gives it legal backing is pending

before the legislature and without and such legal status the government has

arbitrarily implemented a fanciful scheme for the entire nation. DNA Sampling

even for an individual is done only when there is eminent need and only by a

court order67 but in the present case it is being done by an executive order without

any statutory backing for the 1.4 Billion people. Hence, the PIN Scheme is not

implemented by due process.

63 Naraindas v State of M.P., AIR 1974 SC 1232 64 D.D. Basu, Commentry on the Constitution of India ( Vol 3, Lexis Nexis, 2008) Pg 3170 65 District Registrar v Canara Bank, (2005) 1 SCC 496 66 Maneka Gandhi v Union of India, AIR 1978 SC 597 67 Rohit Shekhar v. Narayan Dutt Tiwari, 2012(2) RCR (Criminal)889

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22. The Scheme also infringes Right to Freedom of Religion:

The Namek community can be considered a “Denomination68” for the purposes of Article

26 since it satisfies the test.69 Religion in this context is not confined religious belief but

includes the practices which are regarded by the community as a part of their religion,70

Right to manage their own affairs includes a complete autonomy to decide what rites and

observances are essential according to religion.71 In the present case it is their customary

practice that all earthly remains of a deceased member should be destroyed72 and as the

PIN Scheme creates permanent records of citizens it violates the rights of the Namek

Community also.

68 Bramachari Sideshwar Sai v. State of W.B, AIR1995 SC 2089 (55). 69 Acharya Avadhuta v. Commissioner of Police, AIR 1983SC 1125 (11). 70 Jagadishwaranand v. Police Commissioner, Calcutta, AIR1984 SC 51 (57). 71 Commr. HRE V Lakshmindra Tiratha, AIR 1954 SC 282 72 ¶11 of the Proposition

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PRAYER FOR RELIEF

Wherefore, in the light of the facts stated, issues raised, arguments advanced, and authorities

cited it is most humbly and respectfully prayed before this Hon’ble Supreme Court that:

(1) In Transfer Petition No 657 of 2012 it may be pleased to allow the Appeal with costs and

enforce the Arbitral Award dated 14th July 2012;

(2) In Transfer Petition No 657 of 2012 it may be pleased to allow the Appeal with costs,

vacate the order of the District Judge and rule that Relmar courts don’t have the

jurisdiction to try the Mariners;

(3) In Writ Petition No 607 of 2012 it may be pleased to allow the Petition with costs and

declaring the PIN Scheme invalid.

And pass any other order in the ends of complete justice.

All of which is most humbly and respectfully submitted.

Date: 9th August 2012 Counsel for Appellants/Petitioner

Place: Ganten, Relmar Counsel Code: 114 A