Two companies, one from Mozambique and the other from India, have filed petitions in the Delhi High Court to contest a partial ruling by an International Chamber of Commerce (ICC) arbitral tribunal. These firms, Black Gold Resources Private Limitada (BGR) and Trident Chemphar Limited (TCL), argue that the presiding arbitrator failed to disclose significant prior appointments and past criminal proceedings, raising questions of conflict of interest.
The tribunal, which was led by Professor Sundra Rajoo, issued a 2:1 decision incorporating TCL into an arbitration process with Minas De Benga Limitada (MDB), despite TCL not being a signatory to the original contract surrounding a Mozambican coal mining agreement. The decision was supported by former Supreme Court Justice L Nageswara Rao, while arbitrator DK Singh dissented.
After the tribunal’s divided verdict on May 5, BGR and TCL sought intervention from the Delhi High Court. Justice Sachin Datta, who is handling the case, issued notices to MDB and scheduled a hearing for October.
Senior Advocate Abhimanyu Mahajan, representing TCL, criticized the ICC for what he termed an institutional failure. Meanwhile, Senior Advocate Amit Sibal, acting for BGR, highlighted the alleged bias of the presiding arbitrator. Sibal argued that their references to Mozambican law were dismissed summarily by the tribunal.
On behalf of MDB, Senior Advocate Rajshekhar Rao noted that while the ICC had rejected challenges against the presiding arbitrator’s appointment, a formal communication was still pending. In light of the allegations, Justice L Nageswara Rao has recused himself, which Rao argued renders any interim orders unnecessary as the tribunal cannot currently function.
The legal submissions against Professor Rajoo focus on his previous role as a party-nominated arbitrator for Tata Projects in another ICC arbitration involving NMDC, a connection reportedly linked to MBL’s ownership. Rajoo, when confronted by BGR in May, initially claimed no further disclosures were necessary. However, he later acknowledged that the previous appointment should have been disclosed, attributing the oversight to error. Additionally, the petitions reference past criminal proceedings in Malaysia against Rajoo, which were eventually dismissed.
The petitions also criticize the ICC Secretariat for not identifying potential conflicts of interest, despite having relevant information in their system. Comparisons are drawn with the MSA Global case, where the Delhi High Court intervened due to non-disclosure issues, ultimately refusing to enforce the resultant award.
In the current case, Senior Advocate Amit Sibal is joined by advocates Saurav Agarwal, Saurabh Seth, Mayank Jain, Shantanu Agarwal, Madhur Jain, Raghav Thareja, Ananya Garg, and Aparna Tiwari in representing Black Gold Resources. Trident Chemphar Limited’s legal team includes Senior Advocate Abhimanyu Mahajan, alongside advocates Sukrit Seth, Niyati Kohli, Pratham Vir Agrawal, Anubha Goyal, and Mayank Joshi. Senior Advocate Rajshekhar Rao represents Minas De Benga Limitada.
