Before THE HONOURABLE HIGH COURT OF DELHI, NEW DELHI,

APPLICATION NO. _____/2013

Athletica Ganges.... Petitioner v. Government of India ............................................ Respondent

With

CONTEMPT PETITION NO. _____/2013

Athletica Ganges.....Petitioner v. Government of India................................................... Respondent

TABLE OF CONTENTS
Table of Contents......................................................................................................................II Index of Abbreviations.............................................................................................................III Index of Authorities.................................................................................................................IV Statement of Jurisdiction........................................................................................................VII Statement of Facts.................................................................................................................VIII Questions Presented................................................................................................................XII 1. Whether there was a Breach of Contract by the Petitioner?...........................................XII 2. Whether the Arbitral Award is Liable to be Set Aside? ................................................XII 3. Whether the respondent is guilty of civil contempt of court?........................................XII 4. Whether the Respondent has Committed the Offense of Perjury? ...............................XII Summary of Pleadings..........................................................................................................XIII Pleadings................................................................................................................................XV 4. Whether the Respondent has Committed the Offense of Perjury. ...........................XXVII Prayer ..............................................................................................................................XXVIII

INDEX OF ABBREVIATIONS
A.P. A.C. AIR Anr. Bom. Cri.L.J. K.B. Mad. n. Ors. P.C.A. SC SCC Sd/Supp. U.P. U.S. U.T. v. : : : : : : : : : : : : : : : : : : : : : : : Section Sections Paragraph Paragraphs Andhra Pradesh Appellate Cases All India Reporter Another Bombay Criminal Law Journal Kings Bench Madras Note Others Prevention of Corruption Act Supreme Court Supreme Court Cases Signed Supplementary Uttar Pradesh United States Union Territory Versus

INDEX OF AUTHORITIES
STATUTES Indian Penal Code, 1860..........................................................................................................14 The Arbitration and Conciliation Act, 1996..............................................................................6 The Contempt of Court Act, 1971............................................................................................13 The General Clauses Act, 1897................................................................................................14 The Indian Evidence Act, 1872..................................................................................................9 The Prevention of Money Laundering Act, 2002......................................................................3 CASES A.N.Gouda v. State of Karnataka, (1998) Cr LJ 4756.............................................................14 Ashish Kumar Kundu v. A.K. Tandon, 1994 (4) SLR 319.......................................................13 Babu Ram Gupta v. Sudhir Bhasin, AIR 1979 SC 1582..........................................................13 Bank of Baroda v. Sadruddin Hasan Daya, (2004) 1 SCC 360...............................................13 BSNL v. BPL Mobile Cellular Ltd, (2008)13 SCC 597.............................................................1 Butler Machine Tool v. Ex-Cell-O Corporation, [1979] 1 WLR 401 Court of Appeal.............1 Coco v. A.N. Clark Ltd, [1969] RPC 41.....................................................................................5 Commonwealth v. John Fairfax & Sons Ltd, (1980) 147 CLR 39.............................................5 Edpuganti Bapanaiah v. Sri K.S. Raju And Two Ors, 2007 AP High Court, Contempt Case No.915 of 2002.....................................................................................................................14 House of spring gardens point blank, [1983] FSR 213.............................................................5 Iqbal Ahmed Saeed v. State of MP, C. A. No. 604/1995...........................................................3 Jagdish v. Premlata Devi, AIR 1990 Raj 87............................................................................11 Kuldip Singh v. State of Punjab, (1984) 1 Crimes 1033 (P&H)..............................................12 Laliteshwar Prasad Sahai v. Bateshwar Prasad, AIR 1966 SC 580.........................................9

-Index of Authorities-

-Petitioner-

LIC of India v. Raja Vasireddy Komalavalli Kamba & Ors, (1984) 2 SCC 719.......................1 Lord Ashburton v. Pape, [1913] 2 Ch 469.................................................................................5 M.S. Narayanagouda v. Girijamma, AIR 1977 Kant. 58..........................................................7 Murray And Co v. Ashok K.R. Newatia, (2002) 2 SCC 367....................................................13 N., J., Y., W., v. FINA, CAS 98/208...........................................................................................6 Narendra Singh and Another v. State of MP, (2004) 10 SCC 699............................................4 ONGC v. Saw Pipes, (2003) 5 SCC 705....................................................................................6 Pearse v. Pearse, 1846, 16 LJ Ch 153.....................................................................................10 Prabhu v. State of Rajasthan, (1984) 1 Crimes 1020 (Raj) (DB)............................................12 R. v. Collins, (1987) 1 SCR 265(Can SC)................................................................................10 R. v. Stillman, (1997) 1 SCR 607 (Can SC).............................................................................10 Radha Kishan v. Navratan Mal, AIR 1990 Raj 127................................................................11 Raj Kishore v. State of Uttar Pradesh, 1988 AII Cr Cas 11....................................................11 Rajinder Kumar Kindra v. Delhi Administration, (1984) 4 SCC 635.......................................8 Rakapali Raja Rama Gopala Rao v. Naragani Govinda Sehararao, (1989) 4 SCC 255........13 Sachindra Nath Panja v. N.L. Basak, Principal Secretary, Goverment of West Bengal, 2004 (4) CHN 602.........................................................................................................................14 Saltaman Engineering v. Campbell Engineering, (1948) 65 RPC 203 (CA)............................5 Sharad Budhichand Sharda v. State of Maharashtra, AIR 1984 SC 1622................................9 Siman Lakra v. Sudhis Prasad, 1993 (1) PLJR 493.................................................................13 State of Kerala v. M.M. Mathew, AIR 1978 SC 1571.............................................................12 State of Rajasthan v. Mohan Singh, 1995 Supp (2) SCC 153..................................................13 State of UP v. Sukhbasi, AIR 1985 SC 1224...........................................................................12 The Government of NCT of Delhi vs. Shri Khem Chand and Another, AIR 2003 Delhi 314..12

-Index of Authorities-

-Petitioner-

The Security Printing and Minting Corporation of India v. Gandhi Industrial Corporation, (2007) 13 SCC 236.................................................................................................................8 Thomas Marshall v. Guinle, [ 1979] 1 Ch 237..........................................................................5 Three Rivers District Council & Ors v. Governor & Company of the Bank of England, [2003] EWCA Civ 474....................................................................................................................10 Union Bank of India v. Official Liquidator, (1994) 1 SCC 575.................................................2 United States v. Conte, (N.D. Cal. 2004)...................................................................................8 USADA v. G, CAS 2004/O/649..................................................................................................8 USADA v. M. and IAAF, CAS 2004/O/645...............................................................................8 V. Sambandan v. The Punjab National Bank, W.P. No. 19557 of 2009 & M.P. No. 1 of 2009 ................................................................................................................................................2 Vodafone International Holdings B V vs. Union of India, (2012) 6 SCC 613...........................4 BOOKS James A.R. Nafziger, Circumstantial Evidence of Doping: BALCO and Beyond, 16 Marq. Sports L. Rev. 45 (2005)........................................................................................................7 OP Malhotra And Indu Malhotra, The Law and Practice of Arbitration and Conciliation, Lexis Nexis Butterwoerths Wadhwa, Gurgaon (2006),.........................................................7 Sir JF Stefen,Digest of Evidence, Vol 1, Third Edn, 1940,Published by Little, Brown & Co, Boston Arts...........................................................................................................................11

RULES The Anti-Doping Rules, The National Anti Doping Agency, India,.........................................7 The World Anti-Doping Code, 2009 .......................................................................................7

VI

STATEMENT OF JURISDICTION

The Petitioner humbly submits this memorandum for two petitions filed before this Honourable Court clubbed together by the Honourable Court. The first application invokes its territorial ordinary original civil jurisdiction under section 34(1) of the Arbitration And Conciliation Act, 1996 read with section 5(1) and section 5(2) of The Delhi High Court Act, 1966. The second Contempt Petition invokes original jurisdiction under section 11 of The Contempt of Court Act, 1971. It sets forth the facts and the laws on which the claims are based.

STATEMENT OF FACTS I.
Pan Atheletica Inc. is a company incorporated in the United States of America with the purpose of providing a spectrum of services in the Sports Industry. In 1988, a subsidiary was set up in Peru (Atheltica Machu) to cater to the growing Latin American clientele. Pan Athletica set up a research wing to investigate the local flora and fauna in the nearby Amazon forests in Brazil. The company then set-up a research station near the Indo-Nepal border after incorporating a subsidiary in Nepal (Athletic Everest) in 1989. Till now Pan Athletica did not have a food and nutrition department. In 1991, the company signed a local football team in Brazil, Desvalidos which, did very well. Eventually 66% percent of the team members went on to become a part of the national football team. Beginning in 1992 Athletica Machu signed them for a decade. Between 1992 and 2002, Brazil won the World cup twice and reached the final once. By now the company had a fully functional food department. II. Pan Athleticas success in Brazil helped it make an entry in a large number of developing economies. However, the means and methods employed by them were kept completely secret and the players were made to sign a 99 year non disclosure agreement. In 2000, Mr. Sumanto Hajela, the Indian Minister for Sports and International Affairs, approached Mr. Laurie (one of the promoters of Pan Athletica) to help out with the Indian Hockey Team. In order to comply with the Governments condition of doing business only with an Indian Company, Pan Athletica incorporated a wholly owned subsidiary in the Cayman Islands (Athletica Atlantica), and Athletica Ganges served as a wholly owned subsidiary of Athletica Atlantica. Following negotiations between Pan Athletica and the

-Statement of Facts-

-Petitioner-

Indian Government (hereinafter, Government), wherein all the governments concerns were taken care of, the parties entered into a contract on an as is where is basis through Athletica Ganges (hereinafter, Company), in 2003. The Contract contained an Arbitration Clause. During the negotiations, the Company made it clear that as per this contract, the government would not be allowed to compel the Company to reveal its means and methods. Along with this contract, members of the Indian Hockey Team were made to sign an agreement containing a non-disclosure clause. The Indian Hockey Team fared well between 2002 and 2012. III. In 2003, the Brazilian Government did not re-sign with Athletica Machu because of rumours that Athletica Machu was involved in illegal activities. An enquiry was launched to look into these rumours and the enquiry lasted over five years. In February 2012, during the celebration party after an Olympics qualifying match, a drunken member of the Indian Hockey contingent attributed the success to the magic biscuits the company gave. This caused uproar in the French, British and Indian media, leading to much embarrassment for the Government and the Indian Hockey Federation. A high level enquiry was launched by the Government, while The Indian Hockey Federation engaged the services of a private detective company. The Indian Government also invoked the Arbitration clause and served a notice on the company. IV. Athetica Ganges filed a petition for interim relief, to stop the Government from breaking the contract. The Delhi High Court admitted the petition and during the course of proceedings, the Addl. Solicitor General who appeared before the Court gave an undertaking that pending proper resolution of the issue it would not break the contract. The Arbitration began.

-Statement of Facts-

-Petitioner-

In the meantime the Brazillian enquiry was published, and relying on that a local Brazillian Court held Atheletica Machu to be guilty of environmental violations and paying several bribes. The United States commenced investigations under the Foreign Corrupt Practices Act, 1977. Bowing to increasing global pressure, the Indian Government rescinded the contract and terminated all of the Companys contractual obligations. V. In the ongoing Arbitration proceedings, the Arbitrator took note of the above facts. Moreover, the Indian Government submitted parts of the Brazilian judgement, the intimation of the U.S. investigations, the WADA guidelines and quotes all aspects of Indian law. These were considered by the Arbitrator. The Government was also able to present the report of the private investigators, which relied on several emails which was privileged communication and excerpts of the Brazilian judgement. In addition, the Government produced the affidavits of the player, Sushant Singh Lakkarbagha. Amongst the evidence submitted for arbitration, there were a large number of e-mails which dealt with very sensitive information about the formula of the food and nutrition products administered to the athletes, information of bank A/cs, and certain communication which were supposed to be lawyer-client privileged information. All these e-mails were forwarded by an e-mail id aceventura@panatheletica.us. In the arbitration proceeding, the company went on record that there was no person in the employ of the company by the name of Ace Ventura and that no existing member of the company ever intended to forward these emails. In the affidavit submitted by the athlete, Sushant Singh Lakkarbagha, he spoke at length about the procedure of the training and the diet.

-Statement of Facts-

-Petitioner-

The Company continued to raise many objections to the procedure of the conduct of the Arbitration proceedings and the rules to evidence attached, but each objection was rejected. The Company also filed a Civil Contempt Petition against the Government. VI. At the end of the arbitration, the award held that the company was indeed engaged in doping and that it had both illegal and unethical means to administer the team. The enforcement of the contract would lead to much distress and was clearly against law and public policy and it further went on to award unliquidated damages to the tune of $1 billion dollars to the Government. Aggrieved by this award, the Company approached the Delhi High Court in the instant petition. The company submitted that the entire arbitration was a farce as information obtained by the RTI indicated that the decision to break the contract was already taken by the minister even before the interim relief application. By an order of the Court, the contempt petition has been clubbed, and the Court has issued notice but at the same time has kept the question open as to whether this factual matrix presents a scenario of perjury, contempt or neither of the above.

QUESTIONS PRESENTED

1. WHETHER THERE WAS A BREACH OF CONTRACT BY THE PETITIONER?

2. WHETHER THE ARBITRAL AWARD IS LIABLE TO BE SET ASIDE? 3. WHETHER THE RESPONDENT IS GUILTY OF CIVIL CONTEMPT OF COURT? 4. WHETHER THE RESPONDENT HAS COMMITTED THE OFFENSE OF PERJURY?

SUMMARY OF PLEADINGS
THERE WAS NO BREACH OF THE CONTRACT BY THE PETITIONER: The Petitioner submits that there was no breach of contract on the part of Athletica Ganges (hereinafter, The Company), and in the absence of any dispute, there was no ground for the Government to invoke Arbitration. This submission is fourfold. Firstly, the common law principle of last-shot rule in interpreting contractual negotiations is applicable (a); Secondly, since the contract was entered into on an as is where is basis, it placed an obligation on the Respondents to satisfy themselves beforehand (b); Thirdly, the burden of proof required to prove crimes of financial impropriety has not been met (c); and Fourthly, if at all there has been a breach of contract, it has been on the Respondents part for having violated the Companys Trade Secret Rights(d). THE ARBITRAL AWARD IS LIABLE TO BE SET ASIDE: The Petitioner humbly submits that the Arbitral Award is liable to be set aside under the grounds laid down in the A&C Act. This assertion is twofold: Firstly, the conclusion arrived at by the arbitrator is perverse and patently illegal (a); and Secondly, the Procedure followed by the arbitrator was not in accordance with the arbitration agreement (b). THE RESPONDENT IS GUILTY OF CIVIL CONTEMPT The Respondent is guilty of Contempt of Court because it has wilfully breached an undertaking submitted to the court. The undertaking in the present case is of binding nature. Respondent by rescinding the contract before proper resolution through arbitration proceedings has made them guilty of civil contempt of court.

-Summary of Pleadings-

-Petitioner-

THE RESPONDENT HAS COMMITTED THE OFFENSE OF PERJURY The Respondent has given an undertaking stating that they will not rescind the contract where as the decision to rescind the contract had already been taken by the respondent. Whoever in any declaration made by him to any court of justice, makes any statement which is false, and which he believes to be either false or does not believe to be true, touching any point material to the object for which the declaration is made shall be punishable in a grave manner as if he gave false evidence. Therefore the Respondent has committed the offense of perjury.

-Summary of Pleadings-

-Petitioner-

PLEADINGS
1. THERE WAS NO BREACH OF THE CONTRACT BY THE PETITIONER: The Petitioner submits that there was no breach of contract on the part of Athletica Ganges (hereinafter, The Company), and therefore there was no ground for the Government to invoke Arbitration. This submission is fourfold. Firstly, the common law principle of lastshot rule in interpreting contractual negotiations is applicable (a); Secondly, a contract entered into on an as is where is basis, places an obligation on the Government to satisfy itself beforehand (b); Thirdly, the burden of proof required to prove crimes of financial impropriety has not been met (c); and Fourthly, if at all there has been a breach of contract, it has been on the Respondents part (d). 1.1. The Last-Shot Rule would apply in interpreting Contractual Negotiations:

In Butler Machine Tool v. Ex-Cell-O Corporation1, it was held that Where there is a battle of the forms whereby each party submits their own terms, the last-shot rule applies whereby a contract is concluded on the terms submitted by the party who is the last to communicate those terms before performance of the contract commences. This common law doctrine has been subscribed to by India in the Apex Courts decrees in LIC of India v. Raja Vasireddy2 and BSNL v. BPL Mobile Cellular Ltd,3 in interpreting Section 7(1) of the Indian Contract Act, wherein it was held that if one were to alter or modify the terms of the contract, it was required to be done either by express agreement or by necessary implication which would negate the application of the doctrine of acceptance sub silentio.
1 2 3

Butler Machine Tool v. Ex-Cell-O Corporation, [1979] 1 WLR 401 Court of Appeal. LIC of India v. Raja Vasireddy Komalavalli Kamba & Ors, (1984) 2 SCC 719, at 18. BSNL v. BPL Mobile Cellular Ltd, (2008)13 SCC 597, at 30.

-Summary of Pleadings-

-Petitioner-

In the instant case, during the negotiation of the contract, the parties disagreed on the Governments concern regarding what it referred to as the episodes in Brazil. The Government, in its letter dated 26-11-2001 stated that it required the Company to make all necessary disclosures in this regard.4 In response to this concern, the Company responded stating that the Company would require the Government to point out the facts with regard to the Brazilian rumours. Moreover, the Petitioner raised an objection to the necessary disclosure obligations that the Government sought to impose, and instead added the term that the contract would be entered into by the Government on an as is where is basis.5 This negotiation would be construed as a counter offer as per the above case law. If the Government was to modify these terms, it would have had to do so either by express agreement or necessary implication that would negate the application of the doctrine of acceptance sub silentio. Since no such modification was forthcoming from the Government, the last-shot rule would be applicable, and hence, the counter-offer submitted by the Company should be construed as the enforceable terms of the contract. 1.2. The obligation to satisfy itself lay on the Government as the Contract was entered into on an as is where is basis: While interpreting a contract entered into on an as is where is basis, Indian Courts have held that It is for the intending purchaser to satisfy himself in all respects as to the title, encumbrances and so forth of the immovable property that he proposes to purchase.6 As has already been submitted in sub-contention 1.1., the contract in the instant case was entered into by the parties in a manner similar to a contract for immoveable property entered into on an as is where is basis. Therefore, it is asserted by the Petitioner that on application
4 5 6

Factsheet, Annexure 1. Factsheet, Annexure 2. Union Bank of India v. Official Liquidator, (1994) 1 SCC 575, at 15; V. Sambandan v. The Punjab National

Bank, W.P. No. 19557 of 2009 & M.P. No. 1 of 2009, at 10.

-Summary of Pleadings-

-Petitioner-

of the above law governing obligations arising out of an as is where is contract, the Government should have, using its own devices, satisfied itself regarding any concerns it had with regard to the Brazilian rumours. Thus, the Company submits that it has entered into the contract with clean hands, without any kind of misrepresentation as to the material facts; and has therefore not been in breach of the agreement entered into with the Government. 1.3. The Company is not liable for any crimes of financial impropriety:

It is the submission of the Petitioner that if the Government were to argue that the Company had been in breach of the contract due to the possibility of crimes of financial impropriety, it would be an unfounded claim. It is submitted by the petitioner that the only plausible allegation that could be made by the Government in this regard is one of money laundering, which cannot be entertained as the evidence submitted by the Government does not in any way satisfy the burden necessary to prove such a tall claim. In order for money laundering to be proved, the Prevention of Money Laundering Act7 requires the offender to have directly or indirectly attempted to indulge in or knowingly assist in any process or activity connected with the proceeds of crime and projecting it as untainted property. In Iqbal Ahmed Saeed v. State of MP8, a case relating to offences under the Prevention of Corruption Act, the well established principle of criminal jurisprudence that Suspicion howsoever strong may be, cannot take place of proof and when slightest suspicion is there, benefit should be given to accused, was applicable. It is therefore submitted by the petitioner that this principle is applicable even in cases involving economic crimes such as money laundering. Moreover, the Supreme Court has held that in a case based on circumstantial evidence, however strong the pieces of evidence may be, it is well known that all links in the chain must be proved.9 Finally, in the landmark judgement given in
7

The Prevention of Money Laundering Act, 2002, 3. Iqbal Ahmed Saeed v. State of MP, C. A. No. 604/1995, at 18 and 19. Narendra Singh and Another v. State of MP, (2004) 10 SCC 699, at 32.

8
9

-Summary of Pleadings-

-Petitioner-

Vodafone International Holdings BV v. Union of India10, the Supreme Court noted that many of the offshore companies use the facilities of Offshore Financial Centers situate in Mauritius, Cayman Islands etc. Many of these offshore holdings and arrangements are undertaken for sound commercial and legitimate tax planning reasons, without any intent to conceal income or assets from the home country tax jurisdiction and India has always encouraged such arrangements, unless it is fraudulent or fictitious. Based on the above law, it is humbly submitted by the Petitioner that the mere existence of a holding company in the Cayman Islands coupled with the fact that Athletica Machu was held liable for offences in Brazil does not automatically draw the inference that the Petitioner was involved in money laundering. In the instant case, there is no proof as to the link between profits gained from offences committed by Athletica Machu, and the transactions entered into between Athletica Ganges and the Indian Government. In the absence of this link being proved, the Petitioner asserts that the government has not satisfied the heavy burden of proof. 1.4. The Government has violated its contractual obligations relating to Petitioners Trade Secret: Information, including a formula, pattern, compilation, program device, method, technique or process can constitute trade secrete if it qualifies three other criteria. 11 If this information is generally not known or readily accessible to persons within circles that normally deal with the kind of information in question. Secondly, the information has commercial value. Thirdly, it has been subject to responsible steps under the circumstances by the person lawfully in control of the information, to keep it secret. If the respondent is proved to have used this information directly or indirectly obtained from the petitioner, without his consent express or

10 11

Vodafone International Holdings B V vs. Union of India, (2012) 6 SCC 613 at 142. Indian Innovation Bill, 2(3); Coco v. A.N. Clark Ltd, [1969] RPC 41; Thomas Marshall v. Guinle, [ 1979] 1 Ch 237; House of spring gardens point blank, [1983] FSR 213.

-Summary of Pleadings-

-Petitioner-

implied, he would be guilty of infringement of the plaintiffs right. 12 The principle of infringement of right is applicable in cases where the information was obtained improperly as breach of confidence.13 In the instant case, the emails that were produced as evidence constitute trade secrets. They contained information of training, food and nutrition. The same had commercial value as it contained the mantra of successes of the team. The company has taken all the reasonable steps to keep it a secret like non-disclosure agreement with players. The government has breached the confidence of the company by obtaining those emails through illegal means and hence breached the contract. Therefore, the Petitioner submits that in the absence of a breach of the contract by the Petitioner, no dispute regarding the contract can be said to have arisen. Hence, the Arbitrator, in rendering his award on the matter has acted beyond the scope of his authority under Section 28(3) of the Arbitration and Conciliation Act, 1996 (hereinafter, The A&C Act). 2. THE ARBITRAL AWARD IS LIABLE TO BE SET ASIDE: The Petitioner humbly submits that the Arbitral Award is liable to be set aside under the grounds laid down in the A&C Act. This assertion is twofold: Firstly, the conclusion arrived at by the arbitrator is perverse and patently illegal (a); and Secondly, the Procedure followed by the arbitrator was not in accordance with the arbitration agreement (b). 2.1. The Award by the Arbitrator is perverse and patently illegal: It is averred by the Petitioner that the Award is liable to be set aside under Section 34(2)(b) of the A&C Act14 as it is in conflict with public policy of India. For this, the Petitioner relies on

12 13

Saltaman Engineering v. Campbell Engineering, (1948) 65 RPC 203 (CA). Commonwealth v. John Fairfax & Sons Ltd, (1980) 147 CLR 39 at 50; Opinion of Eady LJ in Lord Ashburton v. Pape, [1913] 2 Ch 469 at 475. The Arbitration and Conciliation Act, 1996, 34(2)(b).

14

-Summary of Pleadings-

-Petitioner-

the landmark judgement by the Supreme Court in ONGC v. Saw Pipes15 (hereinafter, The Saw Pipes Case) wherein it was held that an arbitral award is liable to be set aside in case it suffers from a patent illegality. This submission shall be dealt with in a two-pronged manner: Firstly, the standard of proof to be complied with in a case concerning an Anti-Doping rule violation is the steep standard of Comfortable Satisfaction. Secondly, the award has been made in conscious violation of the pleadings and the evidence, and is therefore perverse. 2.1.1. The Burden of Proof to be discharged is one of Comfortable Satisfaction: The Court of Arbitration in Sport, in its landmark decree in N., J., Y., W. v. FINA16, held that the standard of proof applicable in proving a Case of doping in sport is one that establishes a heavy burden of Comfortable Satisfaction of the hearing body. The case further explained that the burden of proof required to be discharged under this standard is more than a mere balance of probabilities and is more akin to that of beyond reasonable doubt. This standard of proof has also been adopted under the World Anti Doping Agencys Code (hereinafter, the WADA Code)17 in dealing with anti-doping rule violations. Moreover, the standard has also been adopted in India by the revised Anti-Doping Rules of the National Anti-Doping Agency18 (hereinafter, the NADA Rules), which have been adopted in conformance with the WADA Code. Therefore, it is considered a rule of custom in International Sports Law. 19 Finally, the Petitioner submits that given the Respondents themselves have submitted the WADA guidelines and relevant aspects of Indian law for perusal by the arbitrator 20; an inference may be drawn as to their acceptance of this high burden of proof.
15

ONGC v. Saw Pipes, (2003) 5 SCC 705, at 21. N., J., Y., W., v. FINA, CAS 98/208, at 13.

16
17 18 19

The World Anti-Doping Code, 2009, at Article 3.1. The Anti-Doping Rules, The National Anti Doping Agency, India, at Article 3.1. James A.R. Nafziger, Circumstantial Evidence of Doping: BALCO and Beyond, 16 Marq. Sports L. Rev. 45 Factsheet at 14.

(2005).
20

-Summary of Pleadings-

-Petitioner-

Based on the above law, the Petitioner asserts that in adjudicating as to whether the award is liable to be set aside on the grounds of it conflicting with the public policy of India, the Court must look at the arbitral award through the prism of whether the heavy burden of Comfortable Satisfaction has been discharged. 2.1.2. The Award is in violation of the pleadings and the evidence, and hence perverse: A well established ground for setting aside an arbitral award is perversity. 21 In MS Narayanagoudas Case, it was held that a decision made in conscious violation of the pleadings and the law is a perverse decision and it cannot be allowed to stand uncorrected.22 In addition to this the Supreme Court23 has held that where an arbitrator records findings based on no legal evidence, and the findings are either his ipse dixit or based on conjectures or surmises, the enquiry suffers from the added infirmity of non-application of mind and stands vitiated. The Petitioner further asserts that although recent developments in relation to evidence admissible under cases pertaining to anti-doping rule violations have allowed for the admissibility of Circumstantial evidence as opposed to merely dope test results, there is a very high burden of proof associated with the admissibility of such circumstantial evidence, as opposed to the presumption associated with dope test results.24 In the instant case, the Petitioner submits, that there is no direct evidence in the form of dope test results that links the Company with allegations of committing anti-doping rule violations as per Article 2 of the NADA Rules.25 The Petitioner also asserts that a distinction must be
21

OP Malhotra And Indu Malhotra, The Law and Practice of Arbitration and Conciliation, Lexis Nexis M.S. Narayanagouda v. Girijamma, AIR 1977 Kant. 58, at 11. Rajinder Kumar Kindra v. Delhi Administration, (1984) 4 SCC 635. Also See The Security Printing and USADA v. G, CAS 2004/O/649; USADA v. M. and IAAF, CAS 2004/O/645; Indictment, United States v. The Anti-Doping Rules, The National Anti Doping Agency, India, at Article 2.

Butterwoerths Wadhwa, Gurgaon (2006), at pg. 1193.

22 23

Minting Corporation of India v. Gandhi Industrial Corporation, (2007) 13 SCC 236, at 8.

24

Conte, (N.D. Cal. 2004).

25

-Summary of Pleadings-

-Petitioner-

drawn with respect to cases arising out of the BALCO Controversy, wherein the CAS and the US District Court of Northern California relied on admissions of guilt and uncontroverted witness testimony.26 These forms of evidence also find mention under the WADA Code.27 In the instant case, however, the arbitrator has relied on mere documentary evidence; which the Petitioner submits is not sufficient to discharge the heavy burden of proof required in using circumstantial evidence in such cases. It is submitted by the Petitioner that the Arbitrator should have followed the Evidence Act during the Arbitral Proceedings. This is because, since this was not an International Commercial Arbitration28, it would be governed by Part I of the Arbitration Act whose provisions lay down that in such a case, the substantive law would be Indian29. In addition, the Arbitration Agreement provides that the procedure of the arbitration shall be determined in the arbitration itself.30 Despite all this, in the Arbitration Agreement, the parties have expressly agreed to use Indian Law.31 This, the petitioner submits is indicative of the parties intent to use the Indian Law relating to Evidence. The Petitioner also avers that an appraisal of the evidence relied on by the Arbitrator shows that the award suffers from perversity as laid down in the aforementioned law. This is dealt with under the following heads of evidence that were administered in the arbitral proceedings: a) Validity of the emails produced by the government:

26 27 28 29 30 31

Supra, note 20. The World Anti-Doping Code, 2009, at Article 3.2. The Arbitration and Conciliation Act, 1996, 2(1)(f). The Arbitration and Conciliation Act, 1996, 28(1)(a). Factsheet, Annexure Three, Clause 184.7. Factsheet, Annexure Three, Clause 184.9.

-Summary of Pleadings-

-Petitioner-

In V. Satyavathi v. P Venkataratnam32, it was held that if the proof of the evidence is in the question viz. a viz. proving the genuineness of the content by producing the same, it would not be sufficient to prove the truth of the contents of the documents 33 unless the writer of the document is examined. It only constitutes hearsay evidence. Hearsay evidence is not admissible.34 In the given facts, there is no employee named as Ace Ventura. Hence there is no author to the emails. Therefore the emails should not be considered by the arbitrator. In Arguendo, when the documents are produced in order to seek legal advice by the client, then these documents are protected under legal advice privilege.35 The court should look at the facts of the case, weighing the harm to society caused by disclosure against the harm caused to the administration of justice in case of full information not available. 36 Late Knight Bruce ,LJ observed that protection of the client for the communication between him and his lawyer need to be preserved in order to ensure the soundness of the process of justice.37 Therefore evidence collected by violation of rights and freedoms of individual should not be admitted as it will bring the process of justice into disrepute in the eyes of reasonable man.38 In the given facts the company has claimed those emails to be lawyer client privilege information as it was created to seek legal advice and therefore should not have been taken into consideration by the arbitrator.

32 33 34

1988 (1) ALT 915; Nunna Venkateswara Rao vs Tota Venkateswara Rao & Ors, 2007 (4) ALD 744 The Indian Evidence Act, 1872, 65B (1). Sharad Budhichand Sharda v. State of Maharashtra, AIR 1984 SC 1622; Laliteshwar Prasad Sahai v. Three Rivers District Council & Ors v. Governor & Company of the Bank of England, [2003] EWCA Civ McCormick, Evidence, (1984) 186-187; Law Commission Report, Newzealand, Available at

Bateshwar Prasad, AIR 1966 SC 580.

35

474.
36

http://www.lawcom.govt.nz/sites/default/files/publications/1994/05/Publication_58_176_PP23.pdf Last Visited on January 6th , 2013.

37 38

Pearse v. Pearse, 1846, 16 LJ Ch 153. R. v. Collins, (1987) 1 SCR 265(Can SC); R. v. Stillman, (1997) 1 SCR 607 (Can SC).

-Summary of Pleadingsb) Validity of the Brazilian Judgement produced by the government:

-Petitioner-

Indian Evidence Act, 1872 deals with the admissibility of a copy of a foreign judgment, laying down certain requirements39. Firstly, it has to be certified by the legal keeper of the original judgement. Secondly, there should be a certificate under the seal of the Indian counsel certifying that the copy was certified by the legal keeper of the original. The judgement without certificate can only constitute secondary evidence for which when contents proved, it may be received.40 In the given facts, it can nowhere be inferred from the facts that the judgement produced is certified and hence should not be admissible. In Arguendo, a drug to show certain reactions in the body require certain method of administration and certain time period to react to show the required result. On the basis of facts, the reliance of arbitrator on the foreign judgement can be challenged. The foreign court has clearly stated that nature of the drug to be administered is in liquid form and the time period required for effect is 24 hrs. In India, the biscuit alleged to contain the drug is solid form and is administered just before the match. Therefore it cannot be presumed that the company has indulged in the same activity as in case of the Brazil subsidiary. c) Validity of the affidavit given by the player: Affidavits are not included in the definition of evidence in s.3 of IEA,1872.41 Affidavits filed by the parties without giving the opportunity to the opposition to cross examine the deponent cannot be treated as evidence under s 1 and 3 of IEA, 1872.42 In the instant case, the affidavit on which the arbitrator has relied cannot be admissible as the

39 40

The Indian Evidence Act, 1872, 78(6). Sir JF Stefen,Digest of Evidence, Vol 1, Third Edn, 1940,Published by Little, Brown & Co, Boston Arts at 67and 74. Raj Kishore v. State of Uttar Pradesh, 1988 AII Cr Cas 11; Jagdish v. Premlata Devi, AIR 1990 Raj 87. Radha Kishan v. Navratan Mal, AIR 1990 Raj 127.

41 42

-Summary of Pleadings-

-Petitioner-

player who has given the affidavit is very much alive and the right of cross examination by the opposition has been violated. In Arguendo, when the affidavit is being considered by the arbitrator, here is no mention of administration of performance enhancing drug to the players. The player has clearly stated that the quality of training and food and nutrition is much better. The only suspicious food item seem to be the sweet biscuit. Strong suspicions and grave doubts cannot take place of legal proof.43 The sweet biscuit can be compared to chocolate or an energy drink which also give a charge of rush.44 Based on all of the above mentioned law, the Petitioner humbly submits that the Arbitral Award is liable to be set aside on the ground that it conflicts with public policy of India45 due to patent illegality; and given the perversity of the award, the Court cannot allow it to stand uncorrected. 2.2. In Arguendo, the Procedure followed did not comply with the Arbitration Agreement: In Government of NCT of Delhi v. Shri Khem Chand46, this court has held that acts of misconduct by the arbitrator, such as unequal treatment of the parties covered by Section 18 of the A&C Act47 shall be a legitimate ground to set aside the award under Section 34(2)(a) (v). It is humbly submitted by the Petitioner that the Arbitration Agreement provided that the procedure for arbitration shall be decided during arbitration. However, the Petitioners objections with regard to the conduct of arbitration proceedings were disregarded by the
43

State of Kerala v. M.M. Mathew, AIR 1978 SC 1571; State of UP v. Sukhbasi, AIR 1985 SC 1224; Prabhu v.

State of Rajasthan, (1984) 1 Crimes 1020 (Raj) (DB); Kuldip Singh v. State of Punjab, (1984) 1 Crimes 1033 (P&H).
44 45 46 47

http://conference.youthsportsny.org/reference/goldberger.pdf : Last Visited on January, 6th 2013. The Arbitration and Conciliation Act, 1996, 34(2)(b). The Government of NCT of Delhi vs. Shri Khem Chand and Another, AIR 2003 Delhi 314, at 15. The Arbitration and Conciliation Act, 1996, 18.

-Summary of Pleadings-

-Petitioner-

arbitrator.48 Thus, the of procedure followed cannot be held to be in accordance with agreement of the parties49 This also indicates how the Petitioner was not afforded equal opportunity to be heard. Hence, it is the Petitioners humble submission that the award be set aside on the above grounds. 3. WHETHER THE RESPONDENT IS GUILTY OF CIVIL CONTEMPT. Civil contempt of court has been defined as wilful disobedience to any judgment, decree, direction, order, writ or other process of a court or wilful breach of an undertaking given to a court.50 In a case where undertaking is recorded in the manner agreed by the parties in a courts order, it gains a binding nature.51 Court has defined wilful as intentional, deliberate and conscious.52 It is also submitted that for contempt of court, advantage to the contemnor is not necessary.53 In the given factual matrix, the Additional Solicitor General gave an undertaking with regard to compliance of the contract till the dispute is resolved in arbitration. The said undertaking has been incorporated by the courts order.54 Therefore noncompliance with the order by terminating the contract constitutes contempt of court. The respondent should be held liable for civil contempt of court.

48 49 50 51

Factsheet, at 14. The Arbitration and Conciliation Act, 1996, 34(2)(a)(v). The Contempt of Court Act, 1971, 2 (b). Bank of Baroda v. Sadruddin Hasan Daya, (2004) 1 SCC 360; Babu Ram Gupta v. Sudhir Bhasin, AIR 1979 SC 1582. Rakapali Raja Rama Gopala Rao v. Naragani Govinda Sehararao, (1989) 4 SCC 255. Murray And Co v. Ashok K.R. Newatia, (2002) 2 SCC 367. Fact Sheet, Annexure 6.

52 53 54

-Summary of Pleadings-

-Petitioner-

Futher, the defence of subsequent changes cannot be taken by the respondent. 55 The court has distinguished cases of impossibility from cases of difficult.56 Therefore the court has to go into the facts of the case in order to decide upon the offence of contempt of court.57 In the instant case, there might have been global pressure to terminate the contract, but it cannot be construed that situations were created where the performance of contract would become impossible. Therefore it is humbly submitted to the court that the respondent should be held liable for contempt. 4. WHETHER THE RESPONDENT HAS COMMITTED THE OFFENSE OF PERJURY. Undertaking given to court is an affidavit.58. An "affidavit" includes affirmation and declaration in the case of persons by law allowed to affirm or declare instead of swearing. 59 Whoever in any declaration made by him to any court of justice, makes any statement which is false, and which he believes to be either false or does not believe to be true, touching any point material to the object for which the declaration is made shall be punishable in a grave manner as if he gave false evidence.60 In the given factual matrix, an undertaking was given by the counsel of the respondent. It declared that that the respondent will not terminate the contract till proper resolution would be sought by the arbitrator. Another fact noteworthy here is that the respondent had already decided to terminate the contract. This constitutes that the respondent gave false declaration as to not terminating the contract till the arbitration proceedings are completed. Hence they are liable for perjury. Further to be noted, that Counsel represents the client. In case of uncertainty, it is the duty of
55 56

Ashish Kumar Kundu v. A.K. Tandon, 1994 (4) SLR 319. State of Rajasthan v. Mohan Singh, 1995 Supp (2) SCC 153; See Also Siman Lakra v. Sudhis Prasad, 1993 (1) PLJR 493. Sachindra Nath Panja v. N.L. Basak, Principal Secretary, Goverment of West Bengal, 2004 (4) CHN 602. Edpuganti Bapanaiah v. Sri K.S. Raju And Two Ors, 2007 AP High Court, Contempt Case No.915 of 2002 The General Clauses Act, 1897, 3(3). Indian Penal Code, 1860, 199 Read With 200.

57 58 59 60

-Summary of Pleadings-

-Petitioner-

the client to inform his counsel and consequently if false statements are made in pleadings, the responsibility will devolve wholly and completely on the party. 61 With regard to the ambiguity to counsels knowledge, the law has clearly laid the duty on to the party. Therefore the respondent cannot wash away their hands by taking the defence that the Counsel did not knew about the decision and hence no perjury was committed.

PRAYER

In the light of arguments advanced and authorities cited, the Petitioner humbly submits that the Honble Court may be pleased to adjudge and declare that:

1. 2. 3.

The arbitral award be set aside. The Respondent be held guilty of civil contempt of court. The Respondent be held guilty of perjury.

Any other order as it deems fit in the interest of equity, justice and good conscience.

For This Act of Kindness, the Petitioner Shall Duty Bound Forever Pray.

Sd/(Counsel for the Petitioner)

61

A.N.Gouda v. State of Karnataka, (1998) Cr LJ 4756.

-Summary of Pleadings-

-Petitioner-