Full Name : ABHISHEK KUMAR

Section : C
Name of the Centre : CAMPUS LAW CENTRE

TASK I:
1. What Negotiation Techniques /Strategies would you use to achieve the
above. Write about any four of your preferred strategies giving reasons
for the same.
ANSWER:
SALAMI
First strategy to tackle this situation would be the ‘SALAMI’ technique. It’s a strategy which
is not very aggressive and includes a very intricate step by step approach that isn’t in your face
from the starting. As the relationship between the parties have been strained earlier and any
demand/proposal that is very aggressive would not work and may spell the end of the
negotiations. Because of the previous cordial and benefitting relationship between the parties
any logical proposal will be listened to will be taken into consideration.
For e.g.: The proposal here by Mr. FRANK could be that first that both the counterclaims of
the parties are dropped or, SHANGHAI ENGINE COMPONENTS PVT. LTD. Gives some
compensation to SHAKTI AUTOMOTIVE LIMITED for the damages they have suffered.
The chairman of SHAKTI tenders an unconditional apology for his untoward remarks, and in some
time, they rethink their deal and start some talks to maybe come to an agreement for a future deal.
APPARENT WITHDRAWAL:
Mr. FRANK could use this technique as mildly aggressive approach to make the other party Mr.
YASHVEER to think that they are here to negotiate and not to be pushed around. On one hand they
have a claim by SHAKTI of 60 crores and on the other they have their own claim for defamation
of 50 crores and both of them pursue these claims it would be bad for business as well as reputation.
For eg: Mr. FRANK could offer a deal that if they are tendered an unconditional apology they will
give SHAKTI 10 crores for the damages cost to them but SHAKTI AUTOMOTIVE cancels its
deal with NEUTRON and restarts business with SHANGHAI on previous terms and after giving
this decent deal he could walk away and this is his final offer and if this is not acceptable his only
option is to sue them .
GOOD GUY/BAD GUY
The use of this strategy is a little risky, if the opposite party gets a hint it will be embarrassing as
well detrimental but nevertheless if it works it could be a masterstroke.
Mr. FRANK could be the bad guy here angered by the comments of Mr. YASHVEER about his
company and how their products were substandard and his lawyer could be the good guy taking a
less aggressive approach, who looks eager for a solution rather than collision.
Their approach could be that Mr. FRANK’s stand is that he will take the other party to court and
he wants nothing less, he is angered by their comments and he will sue them for defamation and
breach of contract and there is no way he will settle. But his lawyer would offer them a decent
enough deal to not sue them and cordiality is maintained between the parties.
FEINTING
This approach could be beneficial if it works, in pretence of maximum the party could get more or
less what they desire. Mr. frank could put an aggressive offer on the table straightaway which is
bound to be refused then negotiate down to a suitable win/win situation benefitting both the parties.
The starting aggressive proposal will do the work of testing the other party’s standing, their resolve
to negotiate or not and depending on that Mr. frank could suitably tone down his offer to the closest
outcome he desired.
2. As FRANK of SHANGHAI ENGINE COMPONENTS INDIA PVT. LTD, give a
clear insight into your BATNA, WATNA and BOTTOMLINE, along with
reasons for the same.
ANSWER:
BATNA: BATNA is an acronym that stands for Best Alternative To a Negotiated Agreement. It is
defined as the most advantageous alternative that a negotiating party can take if negotiations fail.
Possible BATNA would be:
•
If SHANGHAI sue SHAKTI for breach of contract as SHAKTI got into a contract
with NEUTRON and additionally for defamation for their derogatory comments and
the court leans in their favour and decides both the suits in favour of them, they get
100 crores as damages. SHANGHAI’s reputation is uplifted again.
• SHANGHAI has sued SHAKTI for breach of contract and defamation and the court
leans in their favour in one of the cases they get 50 crores as damages.
• SHANGHAI sue SHAKTI court decides both their claims have no strength but there
are no costs imposed on them. It isn’t a win but not a loss either.
WATNA: WATNA stands for the Worst Alternative to a Negotiated Agreement. In the preparation
phase of your negotiation, you need to consider what is the worst that will happen if you do not sell in
a particular negotiation

• SHAKTI sue SHANGHAI for breach of trust and claim 50 crores as liquidated damages
and 10 crores as notional damages for loss of business for a compromised deal with
NEUTRON in haste as SHANGHAI were not renewing the contract which had been signed
by SHAKTI. The court rules in favour SHAKTI and SHANGHAI have to pay 60 crores of
damages as well as losing a business partner and their reputation too takes a hit.
• SHANGHAI losing the case will to some extent insinuate that their products are in fact
substandard.
BOTTOMLINE: This pertains to the most likely possibility/ outcome.
• With respect to the trial, the most likely outcome would be years of uncertain litigation
and the subsequent costs, with an average possibility of getting compensation while
simultaneously straining business relationship with SHAKTI.
• The best proposition for SHANGHAI would be to enter into a mutually favourable
agreement (which if grants compensation to us, would be appreciated, but not an
essential condition). This would be beneficial for us because it would be beneficial for
us as it will help in the preservation of an important business relationship , by virtue of
which we can again enter into a distributorship contract after 1 year (or whenever the
contract with NEUTRON ends). But an important condition would be that SHAKTI
 AUTOMATIVE LTD. Also withdraws its counterclaims and either issue a public
apology or takes back its statements.
TASK II: You are an established Mediator known for your knack for mediating
Commercial disputes between parties. Mr FRANK and Mr YASHVIR have appointed
you to mediate their dispute. Assuming yourself as the Mediator for the parties, answer
the following points.
1. FRANK is way too aggressive and talkative from the beginning itself. He has too
much to say. How would you open the mediation session? Write a detailed
Opening statement, highlighting ground rules etc that will help set the tone of the
process.
ANSWER:

It's good to see the two of you here. I'm Aditya verma. I will be serving as your Mediator. You may
call me by my first name; how would you like us to address you?
The purpose of our meeting is to help you work out an understanding acceptable to both of you to
resolve the situation that has been developing for you. First, i would like to explain how i will proceed,
so you know what is happening next. I will begin by asking each of you to explain to me as Mediator
exactly how you view things. I will do my best to understand exactly how it looks from your shoes.
After that, i will identify and agree on what the basic issues of disagreement are. Then i will work
together with you in examining exactly what you want of each other and what some possible solutions
might be. My goal is to help you find a solution that both of you feel comfortable with.
I would like you to understand what our role is here. Our goal is to help You figure out Your
own solution to Your problems. You are the ones who will be living with your solution from
here on, so i want you to be the ones who decide what the solution will be. I won't be telling
you what to do or trying to judge who is right or wrong. I are much more interested in helping
you to think about solutions for the future than in trying to judge what happened in the past.
Mainly i am interested in helping to talk about a solution that both of you can live with. I want
to assure you that anything that you may say during our session is confidential. I will be taking
notes from time to time so that i can remember things, but when i finish, i will destroy our
notes.
I will keep all that I hear in this mediation confidential and will not share any of it with anyone. I also
request you keep what is discussed confidential as well.
This is a voluntary process. If this process is not meeting your needs, you may leave at anytime. If
you’ve been ordered here, you’re required to negotiate in good faith.

Last of all, i would like to discuss ground rules a bit.

I ask each of you to agree not to interrupt when the other person is speaking. I have placed paper and
pencil here on the table so that you can keep notes about any responses to make. I also would like for
you to agree to avoid the use of any abusive language, name calling, etc. These rules are especially
important in the next part of our discussion here.

2. Give at least 3 questions each that you would like to ask FRANK and YASHVIR
in the private session in order to uncover more facts and identify their positions
and
underlying interests.
ANSWER:
QUESTIONS FOR FRANK:
QUESTION 1: How would you describe your business relationship with SHAKTI ltd., did
you face any problems dealing with them professionally or personally in the past and could
you have done more to come to a consensus about the new agreement with SHAKTI ltd.?
QUESTION 2: Would you say you were hurt by the statements of Mr. Yashvir about calling
the products of your company substandard despite of years of dealings with them and are you
thinking of suing them for compensation?
QUESTION 3: What are your realistic expectations through this process and will you be
willing to compromise if SHAKTI Ltd. are ready to engage in business again?

QUESTIONS FOR YASHVIR:

QUESTION 1: How do you feel about the situation with SHANGHAI ltd., which has gone a
downward spiral since you could not come to consensus about the business agreement?
QUESTION 2: What do you think about your new agreement with NEUTRON with regard to
SHANGHAI, how you settled for a less profitable agreement, and what do you think about
your statements calling SHANGHAI’s products substandard, were they warranted or could
have been avoided?
QUESTION 3: What are realistic expectations through this process, would you be willing to
forego your claims for a solution and improvement of relations with a past profitable business
relationship?

3. Give at least 2 crucial points that you would keep in mind at each stage of the
mediation process—during Joint Session, Caucus/Private Session and Closure. Give
reasons why you consider those as important.
ANSWER:
JOINT SESSION:
• The most important point to keep in mind would be establishing neutrality. There
should not be even an indication of apparent bias. Even the hint of slightest favour of
one side could be destructive of this exercise.
• Managing the pent-up anger and annoyance between the parties when they are face to
face will be very conducive to reach the desired results otherwise if outbursts or
blaming is allowed that will solve nothing.

CAUCUS/PRIVATE SESSION:
• The parties should be allowed to vent their frustrations, their anger but the mediator
should be mindful of not taking any sides in caucus, even a slight hint taking side/
showing sympathy would be detrimental to the exercise.
 • The mediator should remind the parties that any information, facts shared in the
caucus would be confidential and any information they require to be shared would be
discussed otherwise he would keep the discussion in the caucus to himself.

CLOSURE:
• As the parties will have an ongoing relationship, the mediator must ensure that they have had
a full opportunity to communicate openly and respectfully and that all opportunities to repair
and restore the relationship have been provided throughout the process. The closing can be
an opportune time to work through any final issues or concerns and rebuild trust between the
parties.
• At the conclusion, the mediator should commend the parties for their genuine and good faith
efforts at open communication. Further, the mediator should relate optimism that the
agreement is positive and provide encouragement for their future interactions, if their
relationship is to continue.

4. Give at least 2 settlement points that you foresee –that parties would keep in the
final MSA (Mediation Settlement Agreement)?
ANSWER:

• Mr. FRANK has undertaken that he will renegotiate the broken deal between SHANGHAI Ltd.
and SHAKTI Ltd. for which a considerable deal of energy and time was used and he undertakes
to pay Rs. 10 crores for the business loses of SHAKTI Ltd. because of the hasty contract with
NEUTRON Ltd. and he values the business relationship with SHAKTI Ltd. and hopes the
business with them continues proving beneficial for them. He also undertakes not to sue
SHAKTI Ltd. for defamation if a public apology is issued in regard to the tasteless statements
by Mr. YASHVIR of SHAKTI Ltd.
• Mr. YASHVIR has undertaken that he will issue a public apology on behalf of SHAKTI Ltd.
with regard to SHANGHAI Ltd. he acknowledges and accepts that the comments were in bad
faith, unnecessary as they had a fruitful business relationship with SHANGHAI Ltd. for a
number of years and their products were of standard. He will accept Rs. 10 crores as damages
and promises not to sue them for the breach of contract. He will also be willing to reopen
negotiations about a future deal with SHANGHAI Ltd. after their contact with NEUTRON Ltd.
has expired.

TASK-III [Total 10 Marks]

You are a very well-known advocate who has a vision for the certainty and clarity to the
arbitration clauses, depending upon the specifications and needs of parties. Both the parties
have approached you for the drafting of ad-hoc arbitration clause. You have agreed to supply
the draft of the arbitration clause to the parties on or before 19th April, 2021 by 12 noon.
Make a Draft Arbitration Clause (assuming that it would be finalised later) based on
the BACKGROUND FACTS, stated above in RED colour.
ANSWER:
ARBITRATION CLAUSE
1. In the event of any controversy or claim arising out of or relating to this contract, the parties hereto
shall consult and negotiate with each other and, recognize their mutual interests, attempt to reach a
solution satisfactory to both parties within a period of 60 days. If settlement is not reached within 60
days, any unresolved controversy, dispute or any claim arising out of or relating to this contact shall be
settled by arbitration in accordance with the UNICITRAL arbitration rules in effect on the date of this
contract.
Provided that, any dispute arising in context of ‘Defective Construction’ shall be kept out of purview
of arbitration as both the parties agrees to resolve such potential disputes through Expert Determination
mode of resolution.
2. The party initiating recourse to the arbitration (the claimant) shall give to the other party (the
respondent) a notice of arbitration, which notice shall include a description of the nature of
circumstances of the dispute giving rise to the claim(s) and a statement of relief sought including, so far
as possible, an indication of any amount(s) claimed.
3. Arbitrators, their appointment, qualification and duties.
I. The Arbitral Tribunal (“the tribunal”) shall compose of three arbitrators.
II. Within 14 days of commencement of arbitration (from the date when respondent receives ‘notice of
arbitration’ from the claimant), each party shall select one person to act as arbitrator and the two selected
shall select a third arbitrator within 10 days of their appointment.
III. If, the arbitrators appointed by the parties are unable or fail to agree upon the third arbitrator, the
third arbitrator shall be appointed by SIAC, at the request of the either party.
IV. The arbitrators shall not be of the nationality of either of the parties.
V. The arbitrators shall be practicing attorneys and must have at least 10 years of experience in
international commercial arbitration in the field of contractual relations.
4. The venue of the arbitration proceedings shall be Amsterdam, Netherlands as mutually decided and
fixed by the parties.
5. The Seat of arbitration shall be Singapore and the arbitration agreement shall be governed by the
laws of Singapore.
6. The ‘contract’ shall be governed and interpreted in accordance with the Substantive laws of India.
7. The arbitration proceedings shall be conducted in accordance with the UNCITRAL Model Law on
International Commercial Arbitration of 1985 to the extent applicable and not in conflict with the
laws of Singapore.
8. The Language to be used in the arbitral proceedings shall be English.
9. Cost and Expenses of arbitration proceedings:
I. Each party shall bear its own costs and expenses and an equal share of the arbitrators’ and
administrative fees of arbitration.
10. Award:
I. The final award shall be rendered within 6 months of the commencement of the arbitration
proceedings, unless such time limit is extended by the agreement of the parties or the arbitration
tribunal.