A Mozambican and an Indian company have approached the Delhi High Court challenging a partial award passed by an International Chamber of Commerce (ICC) arbitral tribunal.

They have alleged that the presiding arbitrator failed to disclose material appointments and past criminal proceedings against him. 

The petitions, filed by Black Gold Resources Private Limitada (BGR) and Trident Chemphar Limited (TCL), have challenged the tribunal’s 2:1 decision to include TCL to the arbitration between BGR and Minas De Benga Limitada (MDB) despite being a non-signatory to the contract.

The dispute arose from a Mozambican coal mining contract.

The Tribunal was presided over by Professor Sundra Rajoo. Former Supreme Court Justice L Nageswara Rao and one DK Singh were co-arbitrators.

On May 5 this year, the tribunal delivered a split verdict. While Professor Rajoo and Justice Rao held that TCL, BGR’s Indian shareholder, could be brought into the arbitration, Singh dissented.

BGR and TCL then approached the High Court.

Justice Sachin Datta heard the challenge today and issued notices to MDB and said that the matter will be heard in October.  

Senior Advocate Abhimanyu Mahajan, representing TCL, argued that the case reflected an institutional failure by the ICC. 

Senior Advocate Amit Sibal appeared for BGR and highlighted the alleged bias on part of the president. He said that their submission was rejected by the arbitral tribunal without engagement. 

“We cited Mozambican law and in one word the tribunal rejected it,” Sibal stated. 

Meanwhile, Senior Advocate Rajshekhar Rao appeared for MDB. He argued that the ICC has rejected the petitioners’ challenge to the appointment of the presiding arbitrator though a formal communication is yet to be issued. 

Rao added that in view of the allegations made against the President, Justice L Nageswar Rao has also recused. 

He opposed passing of any interim order in the case. 

After hearing the lawyers, Justice Datta said that since Justice Rao has recused from the proceedings, the tribunal is effectively not functioning. Therefore, no interim orders are required at this stage, the Court said. 

The two petitions have raise allegations concerning Professor Sundra Rajoo’s disclosures. According to the pleas, Rajoo had previously served as Tata Projects’ party-nominated arbitrator in another ICC arbitration involving NMDC as a respondent. The petitioners contend that both entities are connected to MBL’s ownership chain.

It has been stated that when BGR sought clarification on his disclosures in May, Rajoo said he had nothing further to disclose. After the earlier appointment came to light through outside counsel in June, Rajoo allegedly acknowledged that it “ought in principle to have been disclosed”, attributing the omission to oversight.

The petitioners also alleged non-disclosure of criminal proceedings Rajoo had faced in Malaysia concerning allegations of criminal breach of trust. Those proceedings were subsequently quashed, and Rajoo has said that he refunded book royalties to the Asian International Arbitration Centre during the proceedings.

The challenges further accuse the ICC Secretariat of failing to identify the potential conflict despite having circulated NMDC’s name for conflict checks. They allege that relevant records concerning Rajoo’s earlier appointment were within the ICC’s own system.

Notably, the petitions draw parallels with the MSA Global litigation in which the Delhi High Court intervened over an arbitrator’s non-disclosure and later refused enforcement of the resulting award.

Senior Advocate ⁠Amit Sibal along with advocates ⁠Saurav Agarwal, ⁠Saurabh Seth,⁠ ⁠⁠Mayank Jain, ⁠Shantanu Agarwal,⁠⁠Madhur Jain, ⁠⁠Raghav Thareja, ⁠⁠Ananya Garg and ⁠⁠Aparna Tiwari appeared for Black Gold Resources.

Trident Chemphar Limited was represented by Senior Advocate Abhimanyu Mahajan as well as advocates Sukrit Seth, ⁠Niyati Kohli, Pratham Vir Agrawal, ⁠⁠Anubha Goyal and ⁠⁠Mayank Joshi.