ST 08 Applicant

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TEAM CODE:

14TH SURANA AND SURANA INTERNATIONAL TECHNOLOGY LAW MOOT

COURT COMPETITION, 2015. BEFORE

THE HON’BLE INTERNATIONAL COURT OF JUSTICE

AT THE PEACE PALACE

THE HAGUE, NETHERLANDS

CASE BROUGHT BEFORE THIS AUGUST COURT THROUGH ARTICLE 40(1)

FOR ADJUDGEMENT OF VARIOUS ISSUES AS LAID DOWN IN THE

MEMORANDUM INVOKING PROVISIONS OF CONTENTIOUS JURISDICTION

OF THIS COURT AS LAID DOWN IN ARTICLE 36 OF THE ICJ STATUTE;

BETWEEN

THE FEDERAL REPUBLIC OF BAATI AND ITS NATIONAL CORPORATION

(‘BNC’ OWNED BY THE STATE)

[APPLICANT]

vs.

THE DEMOCRATIC REPUBLIC OF UNNAT AND ITS NATIONAL

CORPORATION

(‘UNC’ OWNED BY THE STATE)

[RESPONDENT]

MEMORIAL FILED ON BEHALF OF DEMOCRATIC REPUBLIC OF BAATI

ST_08_A


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14th Surana & Surana International Technology Moot Court and Judgment Writing

Competition, 2015

(i)

Written Submissions on behalf of the Applicants

TABLE OF CONTENTS

LIST OF ABBREVIATIONS ...................................................................................................iii

INDEX OF AUTHORITIES.....................................................................................................ivSTATEMENT OF JURISDICTION.......................................................................................viii

STATEMENT OF FACTS .......................................................................................................ix

ISSUES PRESENTED.............................................................................................................xii

SUMMARY OF ARGUMENTS ............................................................................................xiii

ARGUMENTS IN DETAIL ......................................................................................................1

ISSUE I : WHETHER THE DEMOCRATIC REPUBLIC OF UNNAT (THROUGHUNC) HAS VIOLATED THE BASIC PRINCIPLE AS CONTAINED WITHIN

ARTICLE 2 OF THE UN CHARTER AS A RESULT OF WHICH THE

GOVERNMENT OF BAATI COULD NOT ACQUIRE THE PATENT BEFORE THE

RESPECTIVE OFFICE? ........................................................................................................1

[1.1]. Unnat has failed in its obligations which has been conferred upon it by the SPA........... 1

[1.2]. The Democratic Republic of Unnat has violated the basic principle as contained within

Article 2 of the UN Charter as a result of deliberately withholding information .....................4

ISSUE II : WHETHER UNNAT HAS DELIBERATELY CONCEALED THE

INFORMATION TO HARM OF HUMAN LIFE, ENVIRONMENT AND

ECOSYSTEM AND HENCE VIOLATED THE INTERNATIONAL OBLIGATIONS

AND PRINCIPLES OF UDHGHR, IDHGD, AND UDBHR? ...........................................7

[2.1]. Unnat has breached the principles and obligations as contained within the UDHGHR .. 8

[2.2]. Unnat has breached the principles and obligations as contained within the UDBHR ..... 9

[2.3]. Unnat has breached the principles and obligations as contained within the IDHGD .... 10

ISSUE III : WHETHER UNNAT (THROUGH UNC) IS RESPONSIBLE FOR

FRUSTRATING ALL THE TERMS AND CONDITIONS ENTERED ON 1ST

JANUARY 2014 BETWEEN BAATI AND UNNAT? ......................................................11


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[3.1]. The non-compliance of the obligations undertaken and/or agreed among the parties led

to the performance to a state of utter physical and commercial impossibility.........................11

[3.2]. Failure to impart and/or secure proper and necessary knowledge regarding the adverse

effects frustrated the purpose underlying the agreement reached between the parties ............ 12

[3.3]. The frustrating events ensued owing to deliberate acts coupled with negligent conduct

on the part of Unnat .................................................................................................................14

ISSUE IV : WHETHER UNNAT SHALL REPAY ALL THE LOSSES OF MONEY

THAT BAATI INCURRED IN PLANNING, EX . ECUTION AND ARRANGEMENTS?

..................................................................................................................................................15

[4.1]. Unnat breached the responsibility owed to Baati and this breach of responsibility

entails reparations, to compensate Baati for all losses it incurred as a result of the wrongful

act .............................................................................................................................................16

[4.2]. Breach of agreement by Unnat will entail contractual damages as laid down under

various State laws, conventions and principles ........................................................................18

ISSUE V : WHETHER THE DEMOCRATIC REPUBLIC OF UNNAT (UNC) SHALL

PAY EXEMPLARY COMPENSATION FOR THE LOSS OF 105 LIVES? .................20

[5.1]. Frustration of the terms of the SPA by Unnat leading to the death of 105 citizens of

Baati would come under the ambit of consequential damages for a breach of contract ..........21

[5.2]. Negligence has occurred by Unnat hence attracting exemplary damages ..................... 22

PRAYER ..................................................................................................................................25


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LIST OF ABBREVIATIONS

1. & - And

2. A.C. - Law Reports Appeal Cases

3. AIR - All India Reporter

4. Anr. - Another

5. Art. - Article

6. Co. – Company

7.

Edn. - Edition

8. Exp. - Express

9. GATTS - General Agreement on Tariffs and Trade

10. Hon’ble - Honorable

11. I.C.H - International Conference on Harmonization of Technical Requirements for

Registration of Pharmaceuticals for Human use

12. IDHGD - International Declaration on Human Genetic Data

13.

QB - Queen’s Bench

14. S. - Section

15. SC - Supreme Court

16. TOT - Transfer of Technology

17. TRIPS - The Agreement on Trade-Related Aspects of Intellectual Property Rights

18. U.N. – United Nations

19. UDBHR - Universal Declaration on Bioethics and Human Rights

20.

UDHGHR - Universal Declaration on the Human Genome and Human Rights

21. UNCTAD - United Nations Conference on Trade and Development

22. UOI - Union of India

23. vs. - Versus

24. WIPO - World Intellectual Property Organization

25. WTO - World Trade Organization


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INDEX OF AUTHORITIES

Judicial Precedents

Case Name Page No.

Aetna Casualty & Sur. Co. vs. Day 487 So. 2d 830 21

Amoco International Finance Corp vs. Iran, (Iran-United StatesClaims Tribunal)15 Iran-U.S. C.T.R. (1987)

18

Anglia Television vs. Reed [1972] 1 Q.B. 60 19

Apotex Inc. vs. Global Drug Ltd. (1998) 83 C.P.R. (3d) 448 19

Application of the Convention on the Prevention and Punishment of

the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro) 1996 I.C.J. 595

17

Armed Activities on the Territory of Congo 2005 I.C.J. 168 18

Arrest Warrant Case (Democratic Republic of the Congo v. Belgium)

2000 I.C.J 3

17

Bank Line Ltd. vs. Arthur Capel Ltd. [1919] A.C. 435 14

Black Clawson International Ltd. vs. Papierwerke Waldhof-

Aschaffenburg AG [1981] 2 Lloyd’s Rep. 446 15

Boone vs. Eyre (1777) 1 Hy. Bl. 273n 14C. Czarnikow Ltd. vs. Centrala Handlu Zagrancicznego “Rolimpex”

[1979] A.C. 351

14

Caparo Industries Plc vs. Dickman [1990] 2 A.C. 605 23 Denmark Production Ltd. vs. Boscobel Productions Ltd. [1969] 1Q.B. 699

15

Donoghue vs. Stevenson [1932] A.C. 562 23 Duke of St. Albans vs. Shore (1789) 1 Hy.Bl. 27 14 Ellen vs. Topp (1851) 6 Ex. 424 14 Factory at Chorzow 1928 P.C.I.J. Reports, Series A, No. 17 16, 17, 18

Gabčíkovo-Nagyamaros Project (Hungary vs. Slovakia) 1997 I.C.J.7

17, 18

Hadley vs. Baxendale 9 Ex. 341, 156 Eng. Rep. 145 21, 22 Hong Kong Fir Shipping Co Ltd vs. Kawasaki Kisen Kaisha Ltd.

[1962] 2 QB 26 14

Hutchings vs. Slemons 141 Tex. 448 13 In Re Comptoir Commercial Anversois and Power Sons & Co. [1920]

1 K.B. 868.

13

In Re Palm Harbor Homes, Inc. 129 S.W.3d 636 13 Joseph Constantine SS Co. vs. Imperial Smelting Corp Ltd. [1942]

A.C.154

15


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Case Name Page no.

Kasikili/Sedudu Island (Botswana vs. Namibia) 1999 I.C.J. 1045 3

Krell vs. Henry [1903] 2 K.B. 740 13

Land and Maritime Boundary between Cameroon and Nigeria(Cameroon vs. Nigeria: Equatorial Guinea intervening) 2002 I.C.J.

303

6

Leeds Shipping Co. Ltd. vs. Soc Française Bunge [1958] 2 Lloyd’sRep. 124

14

Loayaza-Tamayo vs. Peru, Reparations and Costs Ct. H.R., (ser. C),No. 42 20

17

Mertens vs. Home Freeholds Co [1921] 2 K.B. 526 15

Mineral Park Land Co. vs. Howard 156 P. 458 (1916) 13

Novartis AG vs. Union Of India A.I.R. 2013 S.C. 1311 6

Nuclear Tests Cases (Australia vs. France; New Zealand v. France)

1974 I.C.J. 253 6

Ontrario Ltd. (c.o.b. M.G.W. & Associates) vs. Welsby & Assoc.

Taxation Inc. [2003] O.J. No. 591 (S.C.J)19

Overseas Tankship (U.K.) Ltd. vs. Morts Dock and Engineering Co.

Ltd. [1961] A.C. 388 23

Papamichalopoulos and others vs. Greece App. No. 14556/89, Eur.Ct. H.R. Series A No 330-B (1995)

18

Pilbrow vs. Peerless De Rougemont & Co. [1999] 3 All E.R. 355 14

Reparation for Injuries Suffered in the Service of the United Nations

1949 I.C.J. 174

18

Sapphire International Petroleums Ltd. of Toronto and National

Iranian Oil Company Arbitral Claim) (Canada vs. Iran) 35 I.L.R.182

20

CME vs. Czech Republic 9 I.C.S.I.D. Rep. 113, 238-9 (2001) 18

Sudbrook Trading Estate Ltd. vs. Eggleton [1983] 1 A.C. 444 14

The Lusitania Case 7 R.I.A.A. 32 17

The Stork Case [1955] 2 Q.B. 68 14

Velasquez Rodriguez vs. Honduras Inter-Am. Ct. H.R., (ser. C), No.7 (1989)

18

White vs. Unigard Mut. Ins. Co. 730 P.2d 1014 21

Essays, Articles and Journals

1.

Carmel Shalev, Human Cloning and Human Rights: A Commentary, 6 Health &

Human Rights 137 (2002) ...........................................................................................8


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2.

Christine Jolls, Contracts As Bilateral Commitments: A New Perspective on Contract

Modification, 26 J. of Legal Studies 21 (1997) ..........................................................12

3.

Curtis J. Mahoney, Treaties as Contracts: Textualism, Contract Theory, and the

Interpretation of Treaties, 116 Yale L.J. 824 (2007) ...................................................3

4. David M. Haug, The International Transfer of Technology: Lessons that East Europe

can learn from the failed Third-World experience, 5 Harv. J. of L. & Tech. 212

(1992) ............................................................................................................................1

5. Howard A. Kwon , Patent Protection and Technology Transfer in the Developing

World: The Thailand Experience, 28 George Washington J. of Int’l L. & Eco. 238

(1995) ............................................................................................................................1

6. Noelle Lenoir, Are attitudes of Bioethics entering a new era?, 23 J. of Med. Ethics

69 (1997) .......................................................................................................................8

7. Roberto Andorno, Global Bioethics at UNESCO: In Defence of the Universal

Declaration on Bioethics and Human Rights, 33 J. of Medical Ethics 151 .................9

8.

Seymour J. Rubin, International Code of Conduct on the Transfer of Technology, 73

American J. of Inter’l L. 519 (1979) ..........................................................................3

9. United Nations: Conference on an International Code of Conduct of the Transfer of

Technology, 19 Inter’l Legal Materials 789 (1980) ...................................................3

Books

1. AM Rabello, The UNIDROIT Principles of International Commercial Contracts

and Israeli Contract Law (Kluwer Law International 1999) .....................................4

2.

Anthony Aust, Modern Treaty Law and Practice (2nd ed. Cambridge Publishing Co.

2007) .............................................................................................................................3 3. Bernice Elger, Ethical Issues of Human Genetic Databases: A Challenge to Classic

Health Research Ethics (OUP 2010) ............................................................................9

4. Bruno Simma, The Charter of the United Nations (3rd ed. OUP) ............................4,6

5. Edwin Peel, The Law of Contract (13th ed. Sweet & Maxwell 2012) ........................14

6.

Enzo Cannizzaro, The Law of Treaties: Beyond the Vienna Convention (1st ed. OUP

2011) .............................................................................................................................3

7. Franz Cede & Lilly Sucharipa-Behrmann, The United Nations: Law and Practice

(Martinus Nijhoff Publishers 2001) ..............................................................................4


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8.

Mohammed Bedjaoui, International Law: Achievements and Prospects (1st ed.

Martinus Nijhoff Publishers 1991) ...............................................................................2

9.

Qerim Qerimi, Development in International Law: A Policy-Oriented Inquiry (1st ed.

Martinus Nijhoff Publishers 2012) ...............................................................................8

10. Stephen Tully, International Documents on Corporate Responsibility (Wolters

Kluwer Publisher 2011) ................................................................................................2

11.

Yong Zhou, History of International Law: Foundations and Principles of

International Law (1st ed. North Holland Publishers 2008) ........................................6

12. Yusuf Kaliskan, The Development of International Investment Law: Lessons from the

OECD MAI Negotiations and Their Application to a Possible Multilateral Agreement

on Investment (Dissertation Publishers 2008) ...............................................................3

International Instruments

1.

Declaration on Principles of International Law concerning Friendly Relations and Co-

operation among States, U.N. Doc. A/5217 at 121 (1970).

2. Guidelines for Good Medical Practice released by the ICH, U.N. Doc. A/45/49

(1990).

3. International Declaration on Human Genetic Data, U.N. Doc. A/45/49 (Vol. I) (2001).

4. Responsibility of States for Internationally Wrongful Acts, U.N. Doc. A/RES/61/177

(2006).

5. UN Charter TS 993.

6. UNCTAD’s International Code of Conduct for the Transfer of Technology, U.N. Doc.

A/43/49 (1988).

7.

Universal Declaration on Bioethics and Human Rights, U.N. Doc. A/45/49 (Vol. I)(2001).

8. Universal Declaration on the Human Genome and Human Rights, U.N. Doc.

A/RES/53/152 (1999).

9. Vienna Convention on Law of Treaty 1963, U.N. Doc. ST/SGB/1963/13.

10.

WHO Guidelines on TOT in Pharmaceutical manufacturing, U.N. Doc. A/37/45 (Vol.

I) (2001).


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STATEMENT OF JURISDICTION

The Applicants have the honour to humbly submit before the Hon’ble International Court ofJustice, the Memorandum for the Applicants adjudging the questions contained in the Special

Agreement (signed in The Hague on the first day of April in the year Two Thousand Fifteen)

between The Federal Republic of Baati and its National Corporation (‘BNC’ owned by the

State) [Applicant] and The Democratic Republic of Unnat and its National Corporation

(‘UNC’ owned by the State) [Respondent] Concerning the Differences between States in

Interpretation of Laws and Fulfillment of International Obligations Relating to the Protection

of Bioethics, Human Rights and Dignity from Conflicts that arose between Parties on Issuesof Science and Technology, Law and Economic Development and with Special References to

nanoscience and Other Issues, to the Court pursuant to Article 40(1) of the Statute of the

Court by invoking the provisions for contentious jurisdiction as laid down in Article 36 of the

Statute of the Court.

The present Memorandum sets forth the Facts, Contentions and arguments in the present

case.


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STATEMENT OF FACTS

[I]. FEDERAL R EPUBLIC OF BAATI AND ITS NEW POLICIES PERTAINING TOFDI

The Federal Republic of Baati is a developing country with a large population. Due attentionwas given for international collaborations from outside, and this public-private-partnership

model retained the Governmental control on major policy-matters. The Government invited

suggestions from all stakeholders for preparing a comprehensive legal-policy framework

whereby it can lead to eradication of diseases. Suggestions were received of which one core

activity to be carried on by the Government was towards identification and development of a

life-saving drug for the disease of liver cancer which afflicts the people. Baati did not have

the resources to combine both the factors of funds and knowledge and hence international

collaborations were called for. The Federal Republic of Baati is a founding member of the

UNO, WIPO and WTO. NGO (named New Age Life) did a survey and found many people of

Baati afflicted with liver cancer, which it said had very high fatality rates; conceding that

very little, including the cure for this disease, had been properly researched. Baati constituted

Special Committee of Experts that made a plan of action.

[II]. DEMOCRATIC R EPUBLIC OF UNNAT AND ITS CLOSENESS WITHBAATI

Unnat is an island with abundant biodiversity and a population of close to 40 million people.

The country has taken to all forms of bio-technology development especially in the field of

pharmacology in order to bring innovation in this field. Both the states have been using the

sea-routes for commerce. The relationship between the two states is notable. Unnat is a

member of United Nations Organistation. The trade and development of the Democratic

Republic of Unnat is largely based on products that are developed from the rich flora and

fauna. There was a desire on part of Baati to use Unnats superior knowledge pertaining to

biotechnology.

[III]. INKING OF THE SPECIAL PURPOSE AGREEMENT BETWEEN BAATI AND UNNAT IN

THE SEARCH FOR A CURE FOR LIVER CANCER U SING NETI LEAVES.

SPA was inked between two corporations of these countries (Baati National Corporation and

Unnat National Corporation) formed for the purpose of innovating, producing and

manufacturing a medicine using Neti leaves which grew on Unnat. There was folklore in

Unnat about Neti leaves in life-enhancing and disease-curing properties but no concrete


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research had been done in the area of cancer-cure. Professor Mruti claimed this plant to have

cancer-curing properties and that in his laboratory its effectivity of cure of liver cancer rises.

Team of experts was sent by Baati to Unnat to study these claims and it gave a positive report

highlighting usage of plants and herbs in modern medicines. However caution was alerted by

few notable social activists as they reported that proper clinical trials never had been done on

this aspect of herbs and plants. Therefore an SPA was linked which was a joint venture

between BNC and UNC wherein the sole purpose was to eradicate liver cancer.

[IV]. COMMENCEMENT OF THE RESEARCH PROCESS.

BNC and UNC started the business transactions. The Government of Baati identified one of

army headquarters the proposed nanomaterial shall be researched.

This report on the progress

of the Neti project was shared from time to time with the Government of Unnat who

reviewed. The Government of Unnat shared all the knowledge of nanoscience that are

available in their legal domain with the Government of Baati through a highly secured-

document named UNNATI. The Baati National Corporation appointed a Scientific

Committee that could understand and interpret the information. The highly secured document

UNNATI had all information regarding nanoscience as understood and recorded by the

Democratic Republic of Unnat through an expert committee of scientists who participated in

the international conferences representing the Government of Unnat. The document clearly

mentioned that the knowledge and information present contain all the processes and

procedures for making the nanomaterial. It included detailed study and step-by-step

processes. It was presumed by both the parties that the approaches, method and manner as

given in the document UNNATI will give the expected outcome.

[V]. PROBLEMS ENCOUNTERED IN MANUFACTURING.

All four steps of the formula were meticulously followed. The scientists could successfully

manufacture nanoparticles. The scientists who were working observed that many of their

team-members fell ill. It was reported to the Government of Baati and Unnat. This sudden

illness could not have happened except as a result of the laboratorial process. The

Government of Baati-appointed special task-force submitted that the scientists did indeed

perform all the four steps accurately. The results of the manufacturing process as expected

and mentioned in the UNNATI document were clearly observed under the nanomicroscope as

explained in the scientific document under Annexure IV. The scientists observed that upon

treatment of rats with nanoparticles, they died as a result of brain hemorrhage. The report


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based on the observations were noted in full details and submitted to the Government of

Baati, which it shared with the Government of Unnat.

[VI].DAMAGE TO ENVIRONMENT AND REJECTION OF PATENT CLAIM.

The scientist monitoring ear-marked area observed a drastic change in that place. Many small

and medium-size insects, grass in that area had died. The scientist noticed that the waste-bags

were torn and leaking. When done again, the same situation occurred again.

Meanwhile the

Government of Baati applied for the Patent before the Baati Patent Office for recognizing that

Neti nanoparticle is new process and invention eligible for patent. The Patent Office turned

down the recognition of patent for the nanoparticle of substance. The Government of Baati

subsequently appealed against the decision of the Patent Office in the High Court of Baati,

which upheld the decision of the Patent Office as correct and valid. The Baati National

Corporation through the Government appealed again the decision of the High Court in the

Supreme Court of Baati. The Supreme Court of Baati upheld HC decision.

[VII].ARISING OF DISPUTE BETWEEN BAATI AND UNNAT.

It was argued by Government of Baati that the Government of Unnat did not share the

knowledge of the adverse effects, presumed as a part of an obligation under the knowledge

transfer in the UNNATI document shared by the Government of Unnat. The Government of

Unnat claimed that they agreed to share only the knowledge which is there in the legal

domain. Government of Unnat, which expressed that theory of knowledge is best, expressed

only within the limitations and cannot be taken to express always its possible dangers. The

Government of Baati did not agree to the stand taken by this kind of fast-approach to research

in the absence of final and ultimate effects of the knowledge at all levels which is followed

through a process and phase-wise approach to research. A plan for Special and Required

Assistance was made to the Government of Baati which it refused as the plan required further

funding from the Government of Baati which they refused as the country had lots of

economic losses. Both the parties have decided to refer the matter to the International Court

of Justice by invoking the provisions contained in the SPA, which gave scope for this

settlement of disputes.


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ISSUES PRESENTED

[A]. Whether the Democratic Republic of Unnat (through Unnat National Corporation) has

violated the following obligations; The basic principle of Article. 2 of the United NationsCharter which reads as follows – ‘ All Members, in order to ensure to all of them the rights

and benefits resulting from membership, shall fulfill in good faith the obligations assumed by

them in accordance with the present Charter’. And that the violation of the basic principle of

Article. 2 of the United Nations Charter as a result of deliberate with holding of the

information on adverse of the nanoparticle which amounts to manifestation of mala -fide

intention; as a result of which Government of Baati could not acquire the patent before the

respective office?

[B]. Whether the Democratic Republic of Unnat (through Unnat National Corporation)

had willfully concealed the information of harm to human life, environment and ecosystem

which were well within knowledge of the Government of Unnat and thereby violated the

international obligations and principles of Universal Declaration on Human Genome and

Human Rights, International Declaration on Human Genetic Data and Universal Declaration

on Bioethics and Human Rights?

[C]. Whether The Democratic Republic of Unnat (through Unnat National Corporation) is

responsible for frustrating all the terms and conditions of the Special Purpose Agreement

entered on 1st January 2014 between the Federal Republic of Baati and the Democratic

Republic of Unnat?

[D]. Whether the Democratic Republic of Unnat (Unnat National Corporation) shall repay

all the losses of money that Government of Baati incurred in planning, execution and

arrangements together with interests and, considering the state of disturbance and interruption

to the growth and development of trade and commerce to the Federal Republic of Baati being

a developing country; that the cost-computation will be a subject matter of special agreement

later to be concluded subsequent to the order of the Court?

[E]. Whether the Democratic Republic of Unnat (Unnat National Corporation) shall also pay

exemplary compensation for the loss of lives of 85 men and 20 women due to liver cancer

and who delayed their treatment with the hope that they shall be cured by this new drug Neti

and consequently could not get the same?


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SUMMARY OF ARGUMENTS

Issue I : That Unnat has violated the basic principle as contained within Article 2 of the UN

Charter as a result of which the Govt. of Baati could not acquire the patent before the

respective office

It is humbly submitted before this Hon’ble Court that the Democratic Republic of Unnat

(through the UNC) has failed in its duties and obligations conferred by the legally-binding

SPA in regards to a successful TOT. Unnat owed a high level of responsibility to Baati in

providing the technical know-how including knowledge in regards to the adverse effects of

the procedures and by not providing the same, amounts to a manifestation of mala fideintention. by not providing the complete information in relation to the innovation and

manufacturing of the nanoparticle of Neti such as the adverse effects of the same, Unnat has

not only breached the principle of Good Faith contained within the UN Charter but has

violated the terms as contained within Article 1(f) of the SPA.

Issue II : That Unnat deliberately concealed information resulting in the violation of the

international obligations and principles of UDHGHR, IDHGD, UDBHR

It is contended before this Hon’ble Court that the wilful concealment of the adverse effects of

the nanoparticles would constitute as a breach of international obligations and principles

under Universal Declaration on Human Genome and Human Rights, Universal Declaration

on Bioethics and Human Rights In the present case, the scientists were vulnerable to adverse

effects of carrying the procedure as there was a conspicuous disregard for their welfare which

increased the harm suffered by these individuals, the same which is attributable to the mala

fide concealment of knowledge in regards to the adverse effects of carrying the process out.

Issue III : That UNC is responsible for frustrating all the terms and conditions of the SPA

entered on 1st January 2014 between Baati and the Unnat

It is humbly submitted that a party to a contract is likely to be discharged off the obligations

underlying and liabilities undertaken on occurrence of circumstance(s), after its formation,

which renders the same physically and/or commercially impossible to be fulfilled or


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transforms the obligations to be performed into a radically different obligation from that

undertaken at the moment of entry into the contract. It is contended that the Hon’ble Court

must and should consider that the obligation of transferring knowledge, available and

recognised, has not been complied with, as appears from the fact-circumstances itself.

Issue IV : That Unnat be obliged to repay all the loss of money Baati incurred in planning,

execution and arrangements

It is humbly submitted by the applicant that a bare perusal of the SPA will reveal that there

were certain considerations which each national corporation had to perform as part of the

twin-sharing formula of the Joint Venture. Despite the fact that Baati spent its resources and

technical know-how as per Article 1(c), the reciprocal part of the agreement by Unnat could

not be fulfilled by virtue of it frustrating the terms of the SPA. As a result, there exists a

situation wherein Baati has incurred certain costs and since, due to the breach by Unnat, the

objective of the agreement has also not come to fruition as highlighted in paragraph 1 of

Article 1, the state of Baati requests this honourable court to exercise its plenary powers

granted Article 36(2) read with Article 56 and to sanction reparation against Unnat, by way of

compensation to Baati for all the injuries that it has sustained due to the internationally

wrongful act and breach of State Responsibility owed by Unnat to Baati.

Issue V : That the Democratic Republic of Unnat (UNC) shall also pay exemplary

compensation for the loss of lives of 105 people.

The applicant humbly submits that when both the States of Unnat and Baati entered into an

SPA to produce the cancer medicine, they very well knew that the implications of the failure

of their venture would be just as great as the success from it. There was a duty of care owed

to the citizens of Baati by the State of Unnat as the SPA it entered into with Baati was for the

production of a medicine to eradicate liver cancer- a terminal disease which was afflicting

many people. It is common logic that any action any of the parties would take would have an

effect on millions of people affected by this disease, at the time of the agreement, as well as

in the future. The standard of duty of care in this situation was extremely high as many lives

were contingent on the complete transmission of knowledge, its proper application and then

successful production of a medicine without any adverse effects.


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(1)Written Submissions on behalf of the Applicant

ARGUMENTS IN DETAIL

Issue 1 : Whether The Democratic Republic of Unnat (through the UNC) has violated the

basic principle as contained within Article 2 of the UN Charter as a result of which the

government of Baati could not acquire the patent before the respective office?

1. It is humbly submitted before this Hon’ble Court that the Democratic Republic of Unnat

(through the UNC) has failed in its duties and obligations conferred by the legally-binding

SPA in regards to a successful TOT. [1.1] It is further contended that the Democratic

Republic of Unnat has violated the basic principle as contained within Article 2 of the UN

Charter as a result of deliberately withholding information which amounts to mala fideintention.[1.2]

[1.1] UNNAT HAS FAILED IN ITS OBLIGATIONS WHICH HAS BEEN CONFERRED

UPON IT BY THE SPA

2. It is submitted before this Hon’ble Court that there has not been a successful TOT on light

of no effective absorption or assimilation of technology in the host country. [1.1.1]

Furthermore, Unnat has failed in the completion of its duties as conferred upon it by the

international framework of TOT.[1.1.2] Lastly, it is submitted that Unnat has resorted to

unfair and dishonest practices which has manifested into the mala fide concealment of

technical know-how.[1.1.3]

[1.1.1] That there has not been a successful TOT on light of no effective absorption or

assimilation of technology in the host country

3. Transfer of Technology (hereafter referred to as ‘ToT’) is defined as "the transmission of

know-how to suit local conditions” and the same requires a functional component and hence,

in order for there to be a true transfer of technology, there must be an effective absorption of

the transferred technology by the recipient/host country.1 Meaningful technology transfer

requires not only that the recipient acquire technology, but also that the recipient accumulate

the knowledge necessary to master the technology.2 The knowledge transferred should be

seen as encompassing both the technical knowledge on which the end product is based and

1 David M. Haug, The International Transfer of Technology: Lessons that East Europe can learn from the failedThird-World experience, 5 Harv. J. of L. & Tech. 212 (1992).2 Howard A. Kwon, Patent Protection and Technology Transfer in the Developing World: The ThailandExperience, 28 George Washington J. of Int’l L. & Eco. 238 (1995).


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the knowledge to convert the relevant productive inputs into the finished item or service.3

Lastly, the WHO emphasized upon the functional aspect of the technology transferred, as

under Article 1.2 it concisely iterates that technology transfer embodies both the transfer of

documentation and the demonstrated ability of the receiving unit (RU) to effectively perform

the critical elements of the transferred technology, to the satisfaction of all parties and any

applicable regulatory bodies.4 Therefore, it can be conspicuously seen that the

implementation or the assimilation5 of the transferred technology is an essential requisite for

a successful TOT.

[1.1.2]. That Unnat has failed in the completion of its duties as conferred upon it by the

international framework of TOT

4. The World Health organization (WHO) further elaborated upon the responsibilities of the

SU (sending unit) by stating that they are to provide procedures which have been approved

and whose veracity has been tested, before the same can be transferred to the RU (receiving

unit).6 The SU additionally has the responsibility to disclose in a timely manner, the adverse

effects of a particular technology known to him in regards to the technology not meeting

particular health, safety and environmental requirements.7 The ILO has stressed upon the

safety and health aspects of the transfer of technology and calls for attention to be paid to

those susceptible by the SU.8 Lastly, the (OECD) has also stated that the element of safety is

paramount in cases of TOT and the same should only take place only upon a reasonable

assurance of the same.9

[1.1.3]. That Unnat has resorted to unfair and dishonest practices which has manifested into

the mala fide concealment of technical know-how.

5. An essential highlighted by the UNCTAD in the Code of Conduct on TOT was that when

negotiating and concluding a technology-transfer agreement, the parties should observe fair

3 Transfer of Technology, UNCTAD, http://unctad.org/en/docs/psiteiitd28.en.pdf (last visited Aug. 3, 2015).4 WHO Guidelines on TOT in Pharmaceutical manufacturing, WHO,http://apps.who.int/prequal/info_general/documents/TRS961/TRS961_Annex7.pdf (last visited Aug. 3, 2015).5 Mohammed Bedjaoui, International Law: Achievements and Prospects 691 (1st ed. Martinus NijhoffPublishers 1991).6 Basic Principles of GMP, WHO,http://www.who.int/medicines/areas/quality_safety/quality_assurance/TOT_Part1.pdf (last visited Aug. 3,2015).7 Stephen Tully, International Documents on Corporate Responsibility 585 (Wolters Kluwer Publisher 2011).8 Safety Health and Working Conditions in the TOT of developing countries, ILO,http://www.ilo.org/wcmsp5/groups/public/@ed_protect/@protrav/@safework/documents/normativeinstrument/wcms_107831.pdf (last visited Aug. 3, 2015).9 OECD Guiding Principles for Chemical Accident Prevention, Preparedness and Response, OECD,http://www.oecd.org/chemicalsafety/chemical-accidents/Guiding-principles-chemical-accident.pdf (last visitedAug. 3, 2015).


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and honest business practice and emphasizes that mutual benefits should accrue to both the

supplying party, as well as the recipient party.10 Article 5.1 of the same emphasizes that the

economic and social objectives of both the countries especially the technology acquiring

country be recognized and that the parties should observe fair and honest business practices.

The Code of Conduct additionally holds the supplying party liable in cases in which loss or

damage has been suffered to property or persons arising from the technology transferred,

provided that the same is used as specified in the agreement.11 Lastly, the Code of Conduct

may be regarded as writings under Article 38 of the ICJ Statute as many prominent

international legal scholars have participated in the negotiations on the Code of Conduct and

have submitted various legal papers in the negotiating process.12

[1.1.4]. The SPA should be viewed in light of the context, the object and purposes and the

circumstances of its conclusion.

6. It is submitted that the SPA should be viewed in light of the context, objects and purposes

of the same. Treaties should receive a fair and liberal interpretation, and to be kept with the

most scrupulous good faith.13 The Good Faith principle contained within Article 31(1) of the

VCLT prevents an excessively literal interpretation, instead requiring consideration of its

context and of other means interpretation.14 Additionally, according to Article 31 of the

VCLT, not only is the text of the treaty to be considered but also its context and the object

and the purpose of the treaty.15 Article 32 of the VCLT states that recourse may be taken to

supplementary means of interpretation such as the circumstances of the conclusion also. If an

interpretation is incompatible with the object and purpose, it may well be wrong. 16 One has to

look at the treaty as a whole, plus all other relevant materials, assessing their respective

weight and value.17

10 Seymour J. Rubin, International Code of Conduct on the Transfer of Technology , 73 American J. of Inter’l L.519 (1979).11 United Nations: Conference on an International Code of Conduct of the Transfer of Technology , 19 Inter’lLegal Materials 789 (1980).12 Yusuf Kaliskan, The Development of International Investment Law: Lessons from the OECD MAI

Negotiations and Their Application to a Possible Multilateral Agreement on Investment 148 (DissertationPublishers 2008).13 Curtis J. Mahoney, Treaties as Contracts: Textualism, Contract Theory, and the Interpretation of Treaties, 116Yale L.J. 824, 834 (2007).14 Enzo Cannizzaro, The Law of Treaties: Beyond the Vienna Convention 108 (1st ed. OUP 2011).15 Anthony Aust Modern Treaty Law and Practice 234 (2d ed. Cambridge Publishing Co. 2007).16 Kasikili/Sedudu Island (Botswana v. Namibia), 1999 I.C.J. 1045 (Dec. 13).17 AUST, supra note 15, at 550.


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7. Therefore, as a patent was required to be acquired for the fulfilment of the provisions of

the SPA and considering that the parties entered into the SPA for the sole purpose for the

innovation, production and manufacturing of life-saving drugs which could be achieved once

the patent was acquired, Unnat has acted mala fide by deliberately concealing information

which was to be supplied through UNNATI and has breached the provisions of the SPA.

[1.1.5]. Unnat has violated the principle of Pacta Sunt Servanda

8. The aforementioned principle is contained within Article 26 of the VCLT and embodies an

elementary and universally agreed principle fundamental to all legal systems and means that

agreements which are legally binding must be carried out.18 The principle may be interpreted

within the broader framework of the binding power of the agreement, without depending

upon special requirements.19 Therefore, the SPA amounts to a binding force between the

parties and requires that every contracting party must keep its promise and fulfil its

obligation.

9. [ARGUENDO]:- Even if the SPA does not amount to a treaty within the definition within

VCLT, it is submitted that a perusal of Article 3(b) states that international agreements with a

similar scope and objective are not excluded from the application of any of rules set forth to

which they’d have been subjected by virtue of it being governed by International Law.

[1.2]THE DEMOCRATIC REPUBLIC OF UNNAT HAS VIOLATED THE BASIC

PRINCIPLE CONTAINED WITHIN ARTICLE 2 OF THE UN CHARTER AS A

RESULT OF DELIBERATELY WITHOLDING INFORMATION

10. As the UN Charter is the constituent treaty of the UNO, all members are bound by its

articles.20 Both the Federal Republic of Baati and the Democratic Republic of Unnat have

acquired membership to the UN21 and hence both countries would be bound by the provisions

as contained within the UN Charter. The Principle of good faith is contained within Article

2(2) of the UN Charter and the UN Charter underlines the view that its members have to

fulfil their obligations deriving from the charter honestly and seriously.22 Not only has the

deliberate withholding of information led to a violation of the aforementioned principle but

18 Id .19 A.M. Rabello, The UNIDROIT Principles of International Commercial Contracts and Israeli ContractLaw 15 (Kluwer Law International 1999).20 Bruno Simma, The Charter of the United Nations 168 (3rd ed. OUP).21 Moot Proposition ¶ 5.22 Franz Cede & Lilly Sucharipa-Behrmann The United Nations: Law and Practice, 274 (Martinus NijhoffPublishers 2001).


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has also led to the violation of the provision as is contained with the SPA. Unnat has also

through the deliberate withholding of information led to the breach of the provisions of

Declaration on Principles of International Law concerning Friendly Relations and Co-

operation among States in accordance with the Charter of the United Nations which obliges

the States “to comply fully and in good faith with its international obligations and to live in

peace with other States” and the same highlights the principle that States shall fulfil in good

faith the obligations assumed by them in accordance with the UN Charter. This declaration

stresses upon the principle of good faith and makes it clear that the member states are bound

to meet their obligations not only in a legalistic fashion.23

[ 1.2.1 ]. That the responsibility lies upon Unnat to provide the requisite technical knowledge

11. In the case at hand, Baati, a developing country did not possess the requisite technical

know-how as well as the funds which was required for the production, innovation and

manufacturing of Neti medicine so as to eradicate the detrimental effects of liver cancer

which posed as a major concern for Baati.24 In order to procure the requisite technical

knowledge, Baati entered into an SPA with Unnat which also included a transfer of

knowledge provision.

Due to Baati being completely dependent on Unnat to obtain the know-how, there exists a

high level of responsibility on Unnat to provide the requisite knowledge not only in regards

to the production of the Neti medicine but also in regards to the adverse effects of the same.

Furthermore, remittance for the transfer of knowledge can also be seen in within Article 1(c)

and Article 1(d) of the SPA which provides that 70% of the funds which would be required

for the development of the medicine would be provided by Baati and additionally, 60% of the

profits would be furnished to Unnat. Lastly, all information pertaining to adverse effects of

carrying lab processes was also shared with Unnat in addition to the Notes on Understanding

in relation to UNNATI, which were only reviewed by Unnat. Unnat made no efforts to rectify

the processes so as to curtail the adverse effects of carrying the laboratorial processes out.

To conclude, Unnat owed a high level of responsibility to Baati in providing the technical

know-how including knowledge in regards to the adverse effects of the procedures and by not

providing the same, amounts to a manifestation of mala fide intention.

23 Supra note 11.24 Moot Proposition ¶ 3.


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[ 1.2.2 ]. That the deliberate withholding of information is tantamount to a breach of the

Principle of Good Faith contained within Article 2(2) of the UN Charter

12. The principle of Good Faith is not only contained within Article 2(2) of the UN Charter

but is also found within various provisions of the Declaration on Principles of International

Law concerning Friendly Relations and Co-operation among States in accordance with the

Charter of the United Nations and the relation of both these countries is often studied and

shown as an example in the same.25 Article 2(2) lays down the obligation for all members of

the UN to fulfil their obligations under international law ‘in accordance with the UN

Charter’.26 The principle of good faith requires the parties to a transaction to deal honestly

and fairly with each other, to represent their motives and purposes truthfully and to refrain

from taking unfair advantage that might result from a literal and unintentional interpretation

of the agreement between them.27

13. The ICJ has defined the principle of Good Faith in the Nuclear Tests Case28 as, “[o]ne of

the basic principles governing the creation and performance of legal obligations”.

Additionally, the ICJ in the case of Cameroon v. Nigeria: Equatorial Guinea intervening 29,

observed that the principle of good faith is a well-established principle of international law

and further noted that the principle is "one of the basic principles governing the creation and

performance of legal obligations”. Hence, the more intensive the co -operation and the more

comprehensive the objectives, the more it is necessary that its legal constitution should also

include obligations to co-operate in good faith within the context of the aims and procedures

agreed upon.30

14. Both the countries entered into the SPA for the sole purpose for the innovation,

production and manufacturing of life-saving drugs out of a plant named Neti.31 A step

towards the achievement of the same was acquiring patent rights in relation to the formulated

drug. As per Article 1(f) of the SPA between BNC and UNC32 the drug was to be first

patented as per the laws and regulations applicable to patenting the drug in the Govt. of Baati.

25 Moot Proposition ¶ 6.26 SIMMA, supra note 20, at 168.27 Yong Zhou, History of International Law: Foundations and Principles of International 107 (1st ed. NorthHolland Publishers 2008).28 Nuclear Tests Cases (Australia v. France; New Zealand v. France), 1974 I.C.J. 253 (Dec. 20).29 Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria: Equatorial Guineaintervening), 2002 I.C.J. 303 (June 11).30 SIMMA, supra note 20, at 95.31 Moot Proposition ¶ 8.32 Moot Proposition Page 14.


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15. However, the BPO turned down the recognition of the patent which was upheld by the

HC of Baati citing Section 3(D) of Indian Patents Act. Reference can be drawn to the case of

Novartis AG v UOI 33, in which the Supreme Court of India laid down the definition of

“efficacy” as the ability to produce a desired or intended result. Therefore, in the case of a

medicine that claims to cure a disease, the test of efficacy can only be “therapeutic efficacy”.

16. Additionally, Unnat had provided incomplete information which led to disastrous effects

in the production of Neti nanoparticles as the same did not exhibit any characteristics as

shown by the ordinary Neti leaves. Unnat was obliged to supply information in totality in

regards to the medicine however failed to do so. The resultant not only did not add to the

“therapeutic efficacy” of the drug but had severely adverse effects instead as out of the

documents supplied through UNNATI, in accordance with the SPA, none pertained to the

efficacy of the output and result as well as the adverse effects. Article 2.2 of the Guideline

for Good Medical Practice released by the ICH also lays down that before a trial is initiated,

foreseeable risks and inconveniences should be weighed against the anticipated benefit for

the individual trial subject and society and that the rights, and well-being of the trial subjects

are the most important considerations and should prevail over interests of science and society.

Lastly, Article 2.4 lays down that the available nonclinical and clinical information on an

investigational product should be adequate to support the proposed clinical trial.34

17. Therefore, by not providing the complete information in relation to the innovation and

manufacturing of the nanoparticle of Neti such as the adverse effects of the same, Unnat has

not only breached the principle of Good Faith contained within the UN Charter but has

violated Article 1(f) of the SPA. Furthermore, the circumstances under which the SPA was

formulated warrants for the comprehensive provision of complete information, however the

same was not provided amounting to huge losses suffered by Baati.

Issue II : Whether Unnat has deliberately concealed the information to harm to human life,

environment and ecosystem and hence violated the international obligations and principles of

UDHGHR, IDHGD, UDBHR?

18. It is contended before this Hon’ble Court that the wilful concealment of the adverse

effects of the nanoparticles would constitute as a breach of international obligations and

33 A.I.R. 2013 S.C. 1311. 34 Guideline for Good Clinical Practice, ICH,http://www.ich.org/fileadmin/Public_Web_Site/ICH_Products/Guidelines/Efficacy/E6/E6_R1_Guideline.pdf(last visited Aug. 3, 2015).


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principles under Universal Declaration on Human Genome and Human Rights [2.1],

Universal Declaration on Bioethics and Human Rights [2.2] and the International Declaration

on Human Genetic Data [2.3]

19. UNESCO defines Declarations as another means of defining norms, which are not subject

to ratification and like recommendations, set forth universal principles to which the

community of States wished to attribute the greatest possible authority and to afford the

broadest possible support.35 In UN practice, ‘a declaration’ is a formal and solemn instrument

suitable for rare occasions when principle of great and lasting importance are being

enunciated and is resorted to only cases where maximum compliance is expected.

20. In view of the greater solemnity and significance of a “declaration”, on behalf of the

organ adopting it, a strong expectation is present that Members of the international

community will abide by it. Consequently, in so far as the expectation is gradually justified

by State practice, a declaration may by custom become recognized as laying down Rules

binding upon States.36 Lastly, Judge Lauterpacht highlighted the significance of declarations

by stating that, “while not bound to accept the declaration the state is bound to give due

consideration in good faith. If it decides to disregard it, it has to explain the reasons for its

decision.”37

[2.1] UNNAT HAS BREACHED THE PRINCIPLES AND OBLIGATIONS AS

CONTAINED WITHIN THE UDHGHR

21. It is submitted before this Hon’ble Court that the Declaration contains a series of

principles and rights that are based on human rights standards enshrined in other international

instruments that are legally binding – such as the International Covenant on Civil and

Political Rights and since the Declaration was adopted by consensus by the General

Assembly and therefore represents a very strong commitment by States to its

implementation.38

22. The Universal Declaration on the Human Genome and Human Rights (UDHGHR)

recognizes that genetics research could have vast potential for improving the health of

35 General introduction to the standard-setting instruments of UNESCO, UNESCO,http://portal.unesco.org/en/ev.php-URL_ID=23772&URL_DO=DO_TOPIC&URL_SECTION=201.html (lastvisited Aug. 3, 2015).36 Qerim Qerimi, Development in International Law: A Policy-Oriented Inquiry 124 (1st ed. Martinus NijhoffPublishers 2012).37 1995 I.C.J. 119 (June 11).38 Declaration on Human Rights Defenders, OHCHR,http://www.ohchr.org/EN/Issues/SRHRDefenders/Pages/Declaration.aspx (last visited Aug. 3, 2015).


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humankind, but it also emphasizes on the need to fully respect human dignity, freedom and

human rights.39 The objective of the Declaration is to reaffirm and update the basic principles

of the human individual’s dignity, of freedom of scientific research and of solidarity between

individuals and states and to apply these principles in the context of modern biomedical

sciences.40

23. Article 8 lays down that every individual shall have the right, according to international

and national law, to reparation for any damage sustained as a result of an intervention

affecting his genome while Article 19(a)(iii) states that “in the framework of international

cooperation with developing countries, states should seek to encourage measures enabling

developing countries to benefit from achievements of scientific research so that their use in

favour of economic and social progress can be to the benefit of all”.

24. By providing incomplete and inadequate knowledge, a clear violation of Article 8 can be

seen as the scientists embarked upon the research without knowing the adversities of the

research can be seen as damage has been suffered by the scientists involved in the research of

the nanoparticle and many complained of headache, giddiness etc.41 due to them not

disclosing the adverse effects of carrying out these processes and no reparation whatsoever

has been provided by Unnat. In addition, a noticeable breach of the provisions contained

within Article 19(a)(iii) has also occurred as through the mala fide intentions of Unnat and in

light of Baati being a developing country42, the economic and social progress of Baati has

been drastically curtailed.


CONTAINED WITHIN THE UDBHR

25. The UDBHR presents 15 principles, including respect for human dignity, human rights

and fundamental freedoms, and the priority of individual interests and welfare over the

interests of science and society.43 The foremost principle established in the Universal

Declaration on Bioethics and Human Rights is that for the protection of human rights.44

39 Carmel Shalev, Human Cloning and Human Rights: A Commentary, 6 Health & Human Rights 137 (2002).40 Noelle Lenoir, Are attitudes of Bioethics entering a new era?, 23 J. of Med. Ethics 69 (1997). 41 Moot Proposition ¶ 14.42 Moot Proposition ¶ 1.43 Howard Wolinsky, Bioethics for the World, NCBI, http://www.ncbi.nlm.nih.gov/pmc/articles/PMC1456905/(last visited Aug. 3, 2015).44 Bernice Elger, Ethical Issues of Human Genetic Databases: A Challenge to Classic Health Research Ethics 57(OUP 2010).


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Direct contravention of Article 4, Article 8 and Article 17 which constitute a vital part of the

principles relating to bioethics45 of the same has occurred in the present case at hand.

[ 2.2.1 ]. That the Baatian Scientists were left vulnerable as they were ignorant of the adverse

effects of carrying out the laboratory procedures

26. Article 4 lays down the principle that the benefits arising out of the scientific knowledge,

medical practice etc. should be maximized in regards to patients, research participants and

other affected individuals, while any possible harm to such individuals should be minimized.

Article 8 states that human vulnerability should also be taken into account in the application

of the aforementioned processes. In the present case, the scientists were vulnerable to adverse

effects of carrying the procedure as there was a conspicuous disregard for their welfare which

increased the harm suffered by these individuals, the same which is attributable to the mala

fide concealment of knowledge in regards to the adverse effects of carrying the process out.

[ 2.2.2 ]. That severe damage has been caused to the environment, the biosphere and

biodiversity as a direct result of Unnat’s mala fide concealment

27. Article 17 of the UDBHR lays down the principle that due regard should be given the role

of human beings in the protection of the environment, the biosphere and biodiversity. Due to

the scientists being unaware of the dire effects of the laboratory procedure the by-products of

the same were kept for disposal in the nearby ground separately ear-marked for that

purpose.46 However, it was noticed by a scientist at a later stage that many small and

medium-size insects were lying dead on the ground, the grass in that area had also died, many

small plants and shrubs in the nearby location had started withering away and lastly some

leaves of big trees had become pale in colour. These types of destruction could have been

circumvented had knowledge in regards to the procedure been supplied in entirety and in the

absence of the same a direct violation of the principles embodied within Article 17 have been

violated.


CONTAINED WITHIN THE IDHGD

28. It is submitted that Unnat has wilfully concealed the information of harm to human life,

environment and ecosystem and in furtherance of the same has violated international

obligations and principles of the International Declaration on Human Genetic Data.

45 Roberto Andorno, Global Bioethics at UNESCO: In Defence of the Universal Declaration on Bioethics andHuman Rights, 33 J. of Medical Ethics 151.

46 Moot Proposition ¶ 14.


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29. Article 6(a) highlights the imperativeness that genetic data and proteomic data be

collected, processed used and stored on the basis of transparent and ethically acceptable

procedures. A clear violation of the same can be seen as the Baati scientists were unaware of

the adverse effects rising out of the production of Neti nanoparticles and the same would be

tantamount to mala fide intention on the part of Unnat. The process was not a transparent

procedure as knowledge in regards to the efficacy of the output and adverse effects were not

disclosed.47

Issue III: Whether Unnat (through UNC) is responsible for frustrating all the terms and

conditions of the SPA entered on 1st January 2014 between Baati and the Unnat?

30. It is humbly submitted that the Democratic Republic of Unnat is aptly contended to be

responsible for frustrating all the terms and conditions of the abovementioned Special

Purpose Agreement entered into between the contesting parties to the present suit in issue,

thereby disadvantaging your humble petitioner from the accruing benefits agreed therein

and/or maintaining the balance between the obligations arising out of it. [3.1] Appending

further, the ensuing circumstances further enables the petitioner herein to contest the said

issue on grounds as put forth and/or listed within the claims asserted herein. [3.2]

[3.1] THE NON-COMPLIANCE OF THE OBLIGATIONS UNDERTAKEN AND/OR

AGREED AMONG THE PARTIES LED THE PERFORMANCE TO A STATE OF UTTER

PHYSICAL AND COMMERCIAL IMPOSSIBILITY

31. A party to a contract is likely to be discharged off the obligations underlying and

liabilities undertaken on occurrence of circumstance(s), after its formation, which renders the

same physically and/or commercially impossible to be fulfilled or transforms the obligations

to be performed into a radically different obligation from that undertaken at the moment of

entry into the contract.48 The analysis, if taken plainly, implies a doubtless and complete

perusal of the circumstances considered necessary and involving with the performance of the

obligations as agreed within the contract initially.49 In other words, the adjustability of the

47 Moot Proposition ¶ 16. 48 Guenter Treitel, Frustration and Force Majeure 505 (Sweet & Maxwell 1994); Ewan McKendrick, ForceMajeure and Frustration of Contract 45 (2d ed. Informa Law 1995); McElroy and Williams, Impossibility ofPerformance in Contract 67 (Sweet & Maxwell 1945).49 Davis Contractors Ltd. v. Fareham U.D.C., [1956] A.C. 696; National Carriers Ltd. v. Panalpina (Northern)Ltd., [1981] A.C. 675; Pioneer shipping Ltd. v. B.T.P. Tioxide Ltd., [1982] A.C. 724. [Frustration occurs


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intervening change within the construction of the contract, without any material change in the

subject-matter stands as another consideration.50 This scope of argument, when extended

further, entails the necessity of reaching the impression, in the light of the nature of the

contract and the relevant surrounding circumstances of its entry into force51, of the scope of

the obligation derived through literally interpreting the promises at the outset. Thus, grows

the attached incumbency, upon the court’s consideration, of analysing the two circumstances,

pre and post frustration, and estimating the time, labour, money and materials in the backdrop

of the changing circumstances, thereby inducing the need for the comparison as to whether in

the light of the present circumstances, the performance of obligations, in a commercial sense,

underwent any adverse effect and that such effect was due to some radical or fundamental

change.52 It is submitted before the Ld. bench that a proper construction of the present issue

in hand in the light of the factual circumstances concerned, indisputably contemplates a basic

underlying objective in the form of an agreement for a joint collaboration with a sole purpose

to eradicate life-threatening disease of liver cancer through innovating, developing, producing

and manufacturing of a life-saving drug from the shrub of Neti53 , which having been the

ultimate consideration for the collaboration or significantly the core subject matter have been,

due to default and/or non-compliance or failure to act according to the required reasonable as

well as expected standard in providing the necessary information about the adverse effects

that could be encountered during the development or manufacturing of the drug, deteriorated

to the effect of frustration54, thereby making the performance of the other party redundant,

and thus exposing them to massive losses.

[3.2] FAILURE TO IMPART AND/OR SECURE PROPER AND NECESSARY

KNOWLEDGE REGARDING THE ADVERSE EFFECTS FRUSTRATED THE PURPOSE

UNDERLYING THE AGREEMENT REACHED BETWEEN THE PARTIES

32. An agreement resurfacing commercial association implies a certain classification of

obligations arising out of it and creates a distinct sense of mutuality55 among the parties

whenever the law recognises that a contractual obligation has become incapable of being performed because thecircumstances in which the performance is called for would render it a thing radically different from that whichwas undertaken by the contract. Non haec in foedera veni (it was not this that I promised to do) finds anunderlying relevance which signifies a change in the resultant if the obligation is pressed for performance]. 50 Davis Contractors Ltd. v. Fareham Urban District Council, [1956] A.C. 696.51 Id at 720-721.52 Tsakiroglou & Co. Ltd. v. Noblee Thorl GmbH, [1962] 688 A.C. 675.53 Article 1 of the Special Purpose Agreement; Moot Proposition, Page 14.54 Taylor v. Caldwell, (1863) 3 B. & S. 826.55 Trans Ocean Van Service v. The United States, 470 F.2d 604.


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connected through it. This aspect finds itself reflected upon the liability so divided and

commitments owed towards specified courses of conduct56, thereby underlining the sole

objective of upholding the purpose in mind at the time an agreement was reached57, which so

long maintained addresses parties welfare through convenient performances.58 However, such

commitments are infrequently relaxed on grounds that the purpose intended to have been

achieved stands frustrated on account of supervening circumstances rendering performances

burdensome on the part of either party,59 with the mitigating factors at extreme, thus making

the bargain detrimental to mutualism.60 The groundwork to this reasoning was employed in

Krell vs. Henry61, fondly remembered as the Coronation Case wherein, on a purposive

construction, the broader contractual objective was addressed and its frustration led to the

discharge of obligations arsing thereto. It is to the appraisal of this Hon’ble Court that the

scope, nature and content of the Special Purpose Agreement endorses its bilateral nature

which signifies promises flowing from both sides62, which brings us to the judgment that the

same requires mutuality of obligations.63

33. The analysis of the issue in hand demands, from this Hon’ble Court, an appreciation and

evaluation of the obligations clearly enumerated within the Special Purpose Agreement

which requires Unnat to transfer 70% of technical know-how of nanoscience, nanotechnology

and nanobiology available and recognized in their legal domain64 in the light of the facts that

Unnat shared all the knowledge of nanoscience that are available in their legal domain with

Baati65. It needs to be borne into mind that ‘recognition’ is an action or fact of perceiving that

something is the same thing as one previously known.66 The use or employment of the term,

specifically with the intent of denoting obligations concerned with the prerequisites of the

transfer of technology, expressly signifies, as part of its performance, that the required

56 Charles Fried, Contract as Promise 13 (Harvard University Press 1981).57 Christine Jolls, Contracts As Bilateral Commitments: A New Perspective on Contract Modification, 16 J. ofL. Studies 203 (1997). [Contracts are individual commitments, but nothing more; both parties’ commitments areonly as strong as their contracting partners’ desire to hold them to their original promises]. 58 Id at 204.59 Mineral Park Land Co. v. Howard, 172 Cal. 289 (1916); In the matter of Comptoir Commercial Anversoisand power Sons & Co., [1920] 1 K.B. 868.60 The interdependence of two parties on one another, whether in a biological, social or financial relationship,with an objective to secure benefits out of the alliance is mutualism.61 Krell v. Henry, [1903] 2 K.B. 740.62 Hutchings v. Slemons, 141 Tex. 448, 452. [A bilateral contract is one in which there are mutual promises

between two parties to the contract, each being both a promisor and a promisee].63 In re Palm Harbor Homes Inc., 129 S.W.3d 636. [Thus, valid consideration for a bilateral contract involvesmutuality of obligation].64 Article 1 (c) of the Special Purpose Agreement.65 Moot Proposition ¶ 10.66 The Oxford English Dictionary,ed. 2nd, Vol. XIII, Clarendon Press, Oxford, prepared by J.A. Simpson andE.S.C. Weiner, 1991.


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process must be duly substantiated and verified with the necessary amount of knowledge and

consciousness about the effectiveness, end-results and adverse effects, after necessary

acknowledgement and consideration, of the technology so made to be transferred.

34. Upon perusal of the abovementioned, it is contended that the Hon’ble Court must and

should consider that the obligation of transferring knowledge, available and recognised, has

not been complied with, as appears from the fact-circumstances itself.

[3.3] THE FRUSTRATING EVENTS ENSUED OWING TO DELIBERATE ACTS

COUPLED WITH NEGLIGENT CONDUVT ON THE PART OF UNNAT

35. Frustration, though in the ordinary course of usage is treated as discharge from

contractual obligations as a legal consequence due to certain supervening events that render

its performance illegal or impossible or provides for certain allied analogous circumstances,

does not exclude from its scope frustration “self -induced”67 owing to the conduct of the party

itself or of those for whom it is responsible.68 The test is to determine whether an event,

following naturally or due to default of either party, deprives the aggrieved party, who has

further undertakings still to perform, from the whole benefit agreed as consideration for the

performance of such undertakings.69 This brings into question the extent of default in conduct

due to non-performance or defect in the performance agreed, of the party against whom

frustration is being alleged. The latter circumstance in question has a somewhat relative

quotient of contractual breach70 where the performance in question appears moderately of the

same kind however differs in point of time, quantity or quality rendering the same defective

and prejudicial to the execution of obligations and the resulting rights accruing out of the

agreement already reached.71 This on equitable grounds also does not extend any protection

to the party in breach (however the other party may rely upon it as a ground of frustration)

67 Bank Line Ltd. v. Arthur Capel Ltd., [1919] 452 A.C. 435; Sudbrook Trading Estate Ltd. v. Eggleton, [1983]497 1 A.C. 444.68 C. Czarnikow Ltd. v. Centrala Handlu Zagrancicznego, [1979] A.C. 351 [Frustration is not self-inducedwhere the cause of the delay is the act of a third party for whom the defendant is not responsible nor merely

because one of the parties is an enterprise controlled by a State which has by some legislative or executive act prevented performance of the contract or made it illegal].69 Hongkong Fir Shipping Co. Ltd. v. Kawasaki Kisen Kaisha Ltd., [1962] 2 Q.B. 26 [This test is applicablewhether or not the event occurs as a result of the default of one of the parties to the contract, but theconsequences of the event are different in the two cases. Where the event occurs as a result of the default of one

party, the party in default cannot rely upon it as relieving himself of the performance of any further undertakingson his part, and the innocent party, although entitled to, need not treat the event as relieving him of the further

performance of his own undertakings].70 Edwin Peel, The Law of Contract 72 (13th Sweet & Maxwell 2012 London); Boone v. Eyre, (1777) 1 Hy. Bl.273; Duke of St. Albans v. Shore, (1789) 1 Hy.Bl. 270; Ellen v. Topp, (1851) 442¶6 Ex. 424.71 The Stork, [1955] 2 Q.B. 68; Leeds Shipping Co. Ltd. v. Soc Française Bunge, [1958] 145 ¶2 Lloyd’s Rep.124; Pilbrow v. Peerless De Rougemont & Co., [1999] 360¶3 All E.R. 355.


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that may arise out of the frustrating event72 or even in circumstances where the alleged act is

not in itself a breach of the contract73 but just another factor leading to frustration.

36. Even though the effect of negligence is not well recognised as a ground for frustration,

deliberate omission to exercise reasonable care and skill resulting into loss and consequential

damages forms an important part of the transaction. The observation in Joseph Constantine

SS Co. vs. Imperial Smelting Corp Ltd.74 holds great relevance here wherein the assessment

so made indicates that incapacity deliberately induced could not be protected under a claim of

frustration.

37. That it is submitted before the Ld. Bench that on the grounds stated above the perception

is not far-fetched there have been utter non-compliance of the obligations undertaken wilfully

with a view to aggravate the already persisting problem that afflicts the Baatian community

and with several other ulterior motives which any civilised state under the paradigm of

peaceful co-existence and co-operative will not resort to. Such defaults, when taken into

account in nature, scope and effect would seek out to the conclusion that the circumstances

justify “self -induced” frustration which destroys the underlying objective of the Special

Purpose Agreement.

Issue IV : Whether Unnat shall repay all the losses of money that Baati incurred in planning,

execution and arrangements?

38. It is humbly submitted by the applicant that a bare perusal of the SPA will reveal that

there were certain considerations which each national corporation had to perform as part of

the twin-sharing formula of the Joint Venture. Despite the fact that Baati spent its resources

and technical know-how as per Article 1(c), the reciprocal part of the agreement by Unnat

could not be fulfilled by virtue of it frustrating the terms of the SPA. As a result, there exists

a situation wherein Baati has incurred certain costs and since, due to the breach by Unnat,

the objective of the agreement has also not come to fruition as highlighted in paragraph 1 of

Article 1, the state of Baati requests this honourable court to exercise its plenary powers

granted Article 36(2) read with Article 56 and to sanction reparation against Unnat, by way of

compensation to Baati for all the injuries that it has sustained due to the internationally

72 Mertens v. Home Freeholds Co., [1921] 2 K.B. 526.73 Denmark Production Ltd. v. Boscobel Productions Ltd., [1969] 1 Q.B. 699; Black Clawson International Ltd.v. Papierwerke Waldhof-Aschaffenburg A.G., [1981] 457¶2 Lloyd’s Rep. 446.74 Joseph Constantine SS Co. v. Imperial Smelting Corp Ltd., [1942] A.C.154. [There was an inclinationtowards the view that reliance on frustration could be made so long as the incapacity to perform the obligations“was not deliberately induced in or der to get out of the arrangement”].


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wrongful act and breach of State Responsibility owed by Unnat to Baati. [4.1] The contract

laws of most countries, both civil and common law countries, lay down the proposition that

all losses attributable to the party that breached the contract must be paid to the other

contracting party such that the effect of the breach is nullified, the situation is restored to

what it was before the breach took place, and the other party is made whole again. Various

international conventions, principles and state laws, including the Baatian law are a testament

to this state practice which forms a part of Customary International Law as is under Article

38(1)(b) of the statute of the ICJ. [4.2]

[4.1] UNNAT BREACHED THE RESPONSIBILITY OWED TO BAATI AND THIS

BREACH OF STATE RESPONSIBILITY ENTAILS REPARATIONS, TO COMPENSATE

BAATI FOR ALL LOSSES IT INCURRED AS A RESULT OF THE WRONGFUL ACT

[ 4.1.1 ]. The Chorzow Factory Case and the Principle of Reparation laid therein

39. It is a principle of international law that the breach of an engagement involves an

obligation to make reparation in an adequate form. Reparation therefore is the indispensable

complement of a failure to apply a convention and there is no necessity for this to be stated in

the convention itself. The Permanent Court of International Justice in the Chorzow Factory

Case said in no unambiguous terms:

"The Court observes that it is a principle of international law, and even a general conception

of law, that any breach of an engagement involves an obligation to make reparation”75. The

ideal form of reparation, doubtless, is the restoration of the situation exactly as it was before

the injury. "The essential principle contained in the actual notion of an illegal act- a

principle which seems to be established by international practice and in particular by the

decisions of arbitral tribunals-is that reparation must, as far as possible, wipe out all the

consequences of the illegal act and reestablish the situation which would, in all probability,

have existed if that act had not been committed. Restitution in kind, or if this is not possible,

payment of a sum corresponding to the value which a restitution in kind would bear; the

award, if need be, of damages for loss sustained which would not be covered by restitution in

kind or payment in place of it-such are the principles which should serve to determine the

amount of compensation due for an act contrary to international law."76

40. The Dictionnaire Salmon has taken views consistent with these principles. It defines the

notion of reparation as leading to the restoration of the state of affairs prior to the occurrence

75 Factory at Chorzow (Merits), P.C.I.J. Order of the Court, (ser. A), No. 17 ¶ 4 (July 14, 1928).76 Supra note 47.


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of the loss by either putting things backs as they were or by compensating the loss suffered.

The reparation should in principle ‘erase’ insofar as possible-because irreversible situations

do occur-the wrongful act and restore the state of affairs that existed prior to it.77

[ 4.1.2 ]. The Draft Articles on Responsibility of States for Internationally Wrongful Acts and

its implications in the case at hand

41. In the Draft Articles on Responsibility of States for Internationally Wrongful Acts78,

Article 31 states the principle relating to the obligation to make reparation for the

consequences of an internationally wrongful act. After reading the provision, it ought to be

brought to the notice of the Hon’ble Court that the obligation to make full reparation is

affirmed; even if this affirmation of the obligation to make full reparation is relatively

succinct79. Article 31 reflects the rule of adequacy of reparation as laid down in the Chorzow

case wherein it is stated that “It is a principle of international law that the breach of an

engagement involves an obligation to make reparation in an adequate for m”. The court has in

Loayaza-Tamayo vs. Peru (Reparations and Costs) case, recognized that a state bears

respons

ST 08 Applicant

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