MC LAW OO3

1st GSTU Law Intra-department Moot

Court Competition

THE HONORABLE HIGH COURT DIVISION OF

THE SUPREME COURT OF BANGLO

The Global Transport Solutions Ltd (GTS)

(APPLICANT)
-Versus-
The People's Republic of BANGLO
( RESPONDENT)

MEMORIAL ON BEHALF OF THE APPLICANT

i
 TABLE OF CONTENTS

TABLE OF CONTENTS………………………………………………………….....………ii

LIST OF ABBREVIATION………………...……………………………………………….v

INDEX OF AUTHORITIES ………………………………………………….…….….......vi

STATEMENT OF JURISDICTION…………………………………………..….…….......x

QUESTIONS PRESENTED………………………………………………….……….….....xi

STATEMENT OF FACTS……………………………………………………………...…...x

SUMMARY OF PLEADINGS………………………………………………………..........xii

WRITTEN PLEADINGS……………………………………..………………...................... 1

I. The court has jurisdiction over the dispute and the appeal is maintainable before the
court………………………………………………………………….………………………..1

A. The ADR clause does not out jurisdiction of the court completely……………..…….. 1
[Link] ADR clause does not eliminate the right to approach a court where ADR is by
passed……………………………………………………………………………….…………1
2. A complementary mechanism not an exclusive one…………………….……….……..1
3. Arbitration Agreement Does Not Automatically Bar Court Jurisdiction…………..…..2

B. The Respondent failed to initiate or engage in ADR…………………………………..2

[Link] having no alternative but to seek judicial remedy………………………………….2
[Link] on inconsistent behavior (Estoppel)……………………….…………………..2

C. Maintainability of appeal under constitutional and Procedural Law……….……….3

1. Under Constitutional Law ………………………………………………………………3
2. Under Procedural Law……………….………………………………………………….4

D. Contractual Clauses can not override statutory right to access court……..………..5

E. Doctrine of waiver or acquaintance and Doctrine of Repudiation of Contract….....6

ii
II. GTS’s dismissal of two members from the Board of Directors without prior.…… 7

V approval from the contracting authority, doesn’t render the contract unenforceable
or voidable. The contract remains valid……………………………………………..…….7

A. The removal was both imperative and legally warranted by The Companies Act,
1994………………………………………………………………………………………….7

[Link] two directors were declared bankrupt by Judicial Order……………………….….7

2. Disqualification of Directors under the applicable Laws……………………………...7

B. The violation of Section 22(3) of The PPP Act, 2015, Is Procedural, Not
Substantive…………………………………………………………………………….…..8

[Link] removal of the two members of the BOD is not a material fact in this case…......8

[Link] position is contractual rather than statutory………………………………8

C. No Demonstrable Harm or Disruption caused to Project Performance……………..9

D. This non-disclosure being an immaterial breach……………………………………10

III. GTS can use the frustration clause (Clause 52) to deem the relevant elements of the
contract unenforceable, given the disruption created by the pandemic………………...11

A. GTS can invoke the Frustration Clause (clause 52) due to the COVID-19 pandemic, which
constitutes a supervening event beyond the control of the parties………………………..…11

1. Doctrine of Frustration is a well-established principle under the Contract Act,

1872:………………………………………………………………………………………...11

2. The amended Clause 52 specifically lists “pandemics, governmental actions, and civil
unrest” as valid reasons for frustration. …………………………………………………....12

3. Governmental actions can frustrate a contract……………………………………………12

B. The actions of the Authority suggest an implied acceptance of the amended clause. …..12

C. The amended Clause 52 was used following the proper procedure, and it is binding……12

IV. GTS is not obligated to pay $500 million USD compensation to the authority…….13

[Link] is not liable under Clause 137 because the clause was lawfully amended and
accepted. …………………………………………………………………………………….13

iii
B. GTS is not liable under the original Clause 137.4 because the delay was not its fault….14

C. Taking USD 500 million as compensation would be unfair enrichment……………….. 14

PRAYER FOR RELIEF………..…………………………….……...................................15

iv
 LIST OF ABBREVIATION

ADR Alternative Dispute Resolution

AIR All India Report

AoA Articles of Association
BEEP Banglo Elevated Express Way Project
BIAC Bangladesh International Arbitration Center
BOD Board of Directors
CPC The Code of Civil Procedure
DLR Dhaka Law Review
Edn Edition
GTS Global Transport Solutions Ltd
HCD High Court Division
ICC International Chamber of Commerce
LOI Letter of Intention
NLR National Law Review
PPP Public Private Partnership
SAF Statement of the Agreed Fact

SC Supreme Court
UDHR Universal Declaration of Human Rights
UNCITRAL United Nations Commission on International Trade Law
UNIDROIT International Institute for the Unification of Private Law
UN United Nations
USD United States Dollar
Vol Volume
Vs Versus

v
 INDEX OF AUTHORITIES

STATUTES:

1. The Constitution of the People’s Republic of Bangladesh

2. The Bangladesh Public Private Partnership Act, 2015

3. The Contract Act, 1872

4. The Arbitration Act, 2001

5. The Code of Civil Procedure, 1908

6. The Companies Act, 1994

7. The Partnership Act, 1932

TREATIES, CONVERSATIONS AND RESOLUTIONS:

1. The United Nations Commission on International Trade Law, (UNCITRAL)

2. The International Institute for the Unification of Private Law (UNIDROIT)

3. The International Chamber of Commerce, (ICC)

4. United Nations Convention on Contracts for the International Sale of Goods (Vienna, 1980)
(CISG)

5. The Vienna Convention on the Law of Treaties (VCLT)

6. OECD Guidelines on Corporate Governance of State-Owned Enterprises (2015)

7. UNESCAP PPP Policy Guidelines (2019)

8. Universal Declaration of Human Rights (UDHR)

CASES (DOMESTIC & FOREIGN):

1. N. Radhakrishnan v. Maestro Engineers & Ors, MANU/SC/1758/2009.

2. Dheeresh Kumar Dwivedi, Arbitrability of Fraud in India, 3 RGNUL FIN. & MERCANTILE
L. REV. 1 (2015).
3. Md. Jahangir Alam v. Bangladesh, 72 DLR (AD) 2020

4. DHL Project & Chartering Ltd v. Gemini Ocean Shipping Co Ltd, [2022] EWHC 181 (Comm)

vi
5. SBP & Co. v. Patel Engineering Ltd, (2005) 8 SCC 618 (India)

6. Dr. Mohiuddin Farooque v. Bangladesh, 55. DLR (2003) 69, The Supreme Court of
Bangladesh, Writ Petition No. 92/1996

7. Mitul Properties Ltd v. M.N.H. Bulu, (Khizir Ahmed Choudhury, J). 257. 18 SCOB [2023]
HCD 257. HIGH COURT DIVISION.

8. Booz Allen & Hamilton Inc. v. SBI Home Finance Ltd. (2011) 5 SCC 532 (India)

9. Atlas Export Industries v. Kotak & Co. (1999) 7 SCC 61 (India – persuasive)

10. SBP & Co. v. Patel Engineering Ltd. (2005) 8 SCC 618 (India)

11. Syed Ameenul Huq and Ors v. M. H. Arif and Ors (1988)

12. Southern Foundries (1926) Ltd v Shirlaw, [1940] AC 701

13. Alenco v. Warrington, No. 125,721, 2024 WL 4576143, *6–7 (Kan. Ct. App. Oct. 25, 2024)

14. International Chamber of Commerce (ICC) Case No. 6379 (1990)

15. NAFID vs Alimenta S.A. (1989) AIR 818

16. Brogden v Metropolitan Railway Co (1877) 2 AC 666

17. Marvin v. Marvin (1976) SC 577

18. Mokbul Hossain Khondkar vs. Jaheda Khatun (1995)47 DLR 430

BOOKS, JOURNALS & ARTICLES:

1. Law of Contract, Dr Muhammad Ekramul Haque, 3rd Edn. 2016

2. Textbook on Law of Contract, Shahana Sultana Shammi, Afrin Laila, 2nd Edn, Sufi Publication

3. ADR in Bangladesh, Issues and Challenges – MD. Abdul Halim; Beacon Publications

4. Introduction To Law of Partnership; Sixth Edn. Avatar Singh – Eastern Book Company

5. National Law Review, July 13,2025, Volume XV, Number 194

6. Fundamentals of Company Law with Law of Partnership, AI Khan

7. [Link]
director

8. [Link]

vii
9. National Law Review, July 13,2025, Volume XV, Number 194

10. [Link]
6/06/2024&bench_id=8385

11. [Link]
m-khairul-haque-cj/

12. [Link]

13. [Link]
_Partnership_in_Bangladesh_A_Critical_Review

14. Legal Framework of Public Private Partnership in Bangladesh: A Critical Review January
2019, DOI:10.6084/[Link].14575200.v1

15. BIAC- Bangladesh International Arbitration Center;

16. [Link]

17. Arbitration Process In Bangladesh, Counsels Law partners

18. [Link]
arbitration-an-analysis

19. Commercial Arbitration in Bangladesh; OGR Legal

20. [Link]

21. Procedures of Removing Unwanted Directors and shareholders from Company, Counsels
Law Partners

22. Dhaka University Journals, Appointment and removal of Company directors in Bangladesh

23. Judgement advanced, Chancery Law Chronicles,

24. Doctrine of Estoppel by waiver or Acquiescence , Aswal

Associates,[Link]
[Link]

25. What are the constitutional jurisdictions of High Court Division of the Supreme Court?
Explain & illustrate. [Link]
high-court-division-supreme-court-explain-illustrate/

26. Law & Our Rights/ The Daily Star; The Revisional Jurisdiction of The High Court.

viii
OTHER SOURCES:

1. [Link]

2. [Link]
3. [Link]
4. [Link]
5. [Link]
6. [Link]
7. [Link]
8. [Link]

ix
 STATEMENT OF JURISDICTION

The applicant, Global Transport Solution Ltd. (GTS), humbly submits this memorandum
before the Honorable High Court Division of The Supreme Court of Banglo. The
HCD possesses appellate jurisdiction to hear and determine the present appeal under the
applicable constitutional provisions and procedural laws of Banglo. The petition invokes the
Court’s appellate jurisdiction under Article 101, Article 102 of the Constitution and Section
106 of the Code of Civil Procedure. The appeal is maintainable, as it raises substantial
questions of law and challenges the summary dismissal of the case by the lower court. The
issues presented involve significant legal implications that warrant consideration by this
Honorable Court.

x
 QUESTIONS PRESENTED

The Global Transport Solutions Ltd (GTS) respectfully requests the Court to adjudge :

I.

Given the ADR clause in the contract, does the court have jurisdiction over the dispute,

and is the appeal maintainable?

II.

Does GTS's dismissal of two members from the Board of Directors without prior

approval from the contracting authority, which violates Section 22(3) of the Public

Private Partnership Act 2015, render the contract unenforceable or voidable?

III.

Can GTS use the frustration clause (Clause 52) to deem the relevant elements of the

contract unenforceable, given the disruptions created by the pandemic?

IV.

Is GTS obligated to pay the $500 million USD compensation to the authority

xi
 STATEMENT OF THE FACT

1. The Backgrounds of Banglo and GTS Ltd.

Banglo, a rapidly developing South Pasian country, has prioritized infrastructure development
through Public-Private Partnerships (PPP), particularly in Maka, its capital, plagued by severe
traffic congestion. Global Transport Solutions Ltd. (GTS), an experienced
multinational company with a strong track record in megaprojects and past
expertise, participated as a partner for infrastructural project in Banglo’s PPP initiative.

2. Initiation of Proposal and Acceptance

In response to the government’s PPP call for the Banglo Elevated Expressway Project (BEEP)
on March 7, 2016, GTS submitted a proposal of $1 billion USD, the most competitive bid. The
Roads and Highway Authority issued Official Letter No. 1 with a draft contract on December
29, 2016, inviting GTS to proceed.

3. Recommended Amendments by GTS to the Draft Contract

During internal vetting process, GTS raised objections to Clauses 47, 52, 71, and 137,
requesting necessary amendments. A meeting on March 1, 2017 led to mutual agreement on
amendments to Clauses 47 and 71. However, Clauses 52 (Frustration clause) and 137
(Compensation clause) remained disputed. GTS later modified and submitted these clauses
with justifiable additions, particularly including “pandemics” under frustration clause.

4. The Implied Consent of the Authority and Signing of the Contract

On June 20, 2017, Official Letter No. 2 was issued, instructing GTS to formally accept the
revised contract by June 29, 2017. GTS responded on June 22, requesting further discussion,
and signaled it would assume acceptance if no reply came regarding the amendment
of clauses 52 and 137. The authority gave no objection, and GTS submitted the signed contract
(with handwritten amendments to Clauses 52 & 137) on June 29, received and acknowledged
by the authority on July 3, followed by the disbursement of $1 million USD on August 1, 2017,
indicating implied acceptance and formation of contract.

5. The Outbreak of COVID-19 Pandemic and Frustration of Contract

Though work began in August 2017, the COVID-19 pandemic caused a six-month halt and
year-long standstill, significantly disrupting global and local operations. GTS cited these events
under the amended Clause 52, invoking the doctrine of frustration. Despite disruptions, the
authority only granted a six-month extension ordering them to complete the project by

xii
December 5,2022, ignoring GTS’s justified request for two years, considering the COVID-19
Pandemic and the associated disruption to the worldwide supply chain.

6. The General Election and Subsequent Legal Consequences

As elections approached in December 2022, political urgency escalated. After GTS missed the
extended December 5 deadline due to the circumstances, they sought a new deadline (June 30,
2023) due to ongoing global supply chain issues. However, following a political fallout and
election loss, the new government retaliated with a $500 million USD compensation claim,
relying on the unamended draft Clause 137, ignoring the valid amended version mutually acted
upon. GTS claimed to invoke frustration as a result of the COVID-19 pandemic as per
amended clause 52 and responded to the oddity, citing the amended clause 137.

7. Before the HCD

On 5th January 2023, a legal notice was sent by the authority to GTS, giving them 15 days to
paythe stated compensation. After GTS’s responses and attempt to settle through legal
channels, their suit was summarily dismissed by the lower court. GTS appealed to the High
Court Division (HCD),having appellate jurisdiction under the constitutional law, raising key
legal issues including: jurisdiction under ADR, review and negotiation in good
faith, Arbitration in case of unresolved claims mentioned in clause 145 of the Contract, validity
of Board changes, frustration of contract, and enforceability of compensation clause based on
the mutually acted-upon amended clause, by both parties .

xiii
 SUMMARY OF PLEADINGS

Pleading I

The Applicant respectfully submits that the present dispute falls within the jurisdiction of the
Hon’ble High Court Division and that the appeal is maintainable notwithstanding the presence
of ADR clauses in the contract. While Clauses 52.5 and 137.6 require ADR before judicial
intervention, they do not oust the court’s jurisdiction entirely. ADR is a complementary
mechanism under both domestic law and international practice, and where one party fails to
initiate or engage in good faith, the other may seek judicial remedy. In this case, the
Respondent’s inaction, coupled with conduct amounting to waiver and estoppel, left the
Applicant with no alternative but to approach the court. Constitutional and procedural
provisions, particularly Article 101 of the Constitution of Banglo (pari materia to Article 102
of the Constitution of Bangladesh) and Sections 106 CPC, 20(1) of the Civil Courts Act 1887,
safeguard the right to access court and cannot be overridden by contract.

Furthermore, the statutory framework, including Section 28 of the Contract Act, 1872 and
Section 9 of the Code of Civil Procedure, upholds court jurisdiction over civil matters unless
expressly barred by law, which is not the case here. The Respondent’s unilateral actions,
including issuing a legal notice and demanding payment without attempting ADR, constitute
repudiation of the ADR clause and waiver of its benefit. Judicial precedents such as N.
Radhakrishnan v. Maestro Engineers, Md. Jahangir Alam v. Bangladesh, and SBP & Co. v.
Patel Engineering Ltd. Confirm that courts may assume jurisdiction when ADR is inoperative,
waived, or bypassed. Therefore, the appeal is maintainable, and the Hon’ble High Court
Division is empowered to adjudicate the matter on merits.

Pleading II

The Applicant submits that GTS’s removal of two board members without prior approval from
the contracting authority neither renders the PPP contract void nor voidable. The removal was
both imperative and legally justified under Sections 94 and 108 of the Companies Act, 1994,
as the directors were declared bankrupt by judicial order, thereby becoming statutorily
disqualified. The directorial position being contractual in nature, as recognized in Syed
Ameenul Huq v. M.H. Arif, the removal was in accordance with company law and the Articles
of Association. While Section 22(3) of the PPP Act, 2015 requires prior approval for significant
structural changes, non-compliance in this instance is procedural rather than substantive, and
the statute provides no basis for automatic contract termination on this ground.

xiv
Furthermore, the alleged breach caused no demonstrable harm or disruption to project
performance. Under the Contract Act, 1872, only breaches going to the root of the contract can
justify rescission, and board-level administrative changes do not meet this threshold. The
project proceeded without interruption, and precedent, including Southern Foundries v.
Shirlaw, supports that director removal, even if procedurally flawed, does not void contractual
obligations. Both domestic and international authorities, including ICC arbitral practice,
recognize that internal governance changes are immaterial breaches unless they make
performance impossible. Therefore, the contract remains valid and enforceable.

Pleading III

GTS can use the frustration clause to deem the relevant elements of the contract enforceable,
given the disruption created by the pandemic. Under Section 56 of the Contract Act, 1872, a
contract becomes void if performance is impossible due to a supervening event beyond the
control of the promisor.

The COVID-19 pandemic was unforeseen, causing extreme disruption, lockdowns, breakdown
of supply chains, and manning shortages, making it impossible to perform. In Mokbul Hossain
Khondkar v. Jaheda Khatun, the court insisted on strict impossibility for frustration; here, that
is met. COVID-19 emergency rules and lockdowns by Banglo's government rendered it
impossible for GTS to perform. In line with NAFED v. Alimenta S.A., government restrictions
may make a contract frustrated.

GTS's contract (dated 2017) was before the pandemic, with no prior contemplation of such an
event. Amended Clause 52 also particularly mentions "pandemics" and "governmental actions"
as good reasons for frustration and the Authority received and signed for the amended contract
(July 3, 2017) and released $1million USD. Conduct equating to acceptance (Brogden v.
Metropolitan Railway; Marvin v. Marvin). Therefore, the amendment held following proper
procedure. The mended clause allows invoking frustration by GTS.

Article 79 CISG (1980) – no responsibility where non-performance is due to an unforeseeable,

unexpected event. UNIDROIT Principles – hardship gives room for renegotiation; if
unresolved, termination or modification is feasible.

Therefore, GTS correctly invoke frustration clause (Clause 52) due to an unforeseen pandemic
and subsequent government measures which is also supported by domestic and international
law principles.

xv
Pleading IV

GTS is not obligated to pay the $ 5million USD compensation to the authority under Clause
137 as it was legally amended to remove liability in cases of frustration under Clause 52, which
include government actions and pandemics. The amended agreement of 29 June 2017 was
submitted to the Authority with clear notice and intention. The Authority, when it received the
signed agreement, raised no objections, paid $1 million USD and proceeded with the work,
thus, acceptance by conduct as recognized in Brogden v Metropolitan Railway Co.

Even under the original Clause 137.4, GTS is not in default because delay and non-performance
were not caused by its own fault but by the unforeseen COVID-19 pandemic and related
government lockdowns. Both were outside GTS’ control and occurred after the contract
signing in 2017. Under the doctrine of frustration, further performance is discharged and
liability removed. Which is to say that Clause 137.4 could not be used to claim damages
subsequent to frustration invoked by operation of law.

The Authority Is entitled to no such actual losses of USD 500 million in damages and cannot
claim liquidated damages under Clause 137.4. Compensation must be just and proportionate
and not punitive. GTS did so in good faith, attempted to perform, and was prevented by
unforeseen, beyond control situations. To make such a prohibitive financial penalty in the
presence of a global crisis contradict principles of fairness and proportionality

xvi
 WRITTEN PLEADINGS

I. The court has jurisdiction over the dispute and the appeal is maintainable
before the court

The applicant submits five key points on this issue regarding the jurisdiction and
maintainability. Firstly , ADR Clause Does Not Oust Jurisdiction of the Court Completely.
Secondly, Respondent failed to initiate or engage in ADR before starting court proceedings,
Thirdly, The maintainability of appeal under constitutional and Procedural Law, Fourthly,
Contractual Clauses can not override statutory right to access court, Finally , Doctrine of
waiver or acquaintance and Doctrine of Repudiation of Contract applies.

A. The ADR clause does not oust jurisdiction of the court completely

[Link] ADR clause does not eliminate the right to approach a court where ADR is
bypassed While the contract between the applicant GTS Ltd. and The People’s Republic of
Banglo includes ADR clauses in Clause 52.5 and 137.6, they do not oust the court’s
jurisdiction entirely. The presence of an ADR clause delays judicial intervention but does not
eliminate the right to approach a court in case ADR fails or is bypassed. In the case
concerning N. Radhakrishnan v. Maestro Engineers & Ors1, Courts would be justified in
refusing to refer a matter for arbitration if it involves complex legal issues and calls for
“detailed oral and documentary evidence.”2

2. A complementary mechanism not an exclusive one

The Code of Civil Procedure,1908 states that After filing of written statement, if all the
contesting parties are in attendance in the court in person or by their respective pleaders, the
court shall, by adjourning the hearing, mediate in order to settle the dispute or refer the
dispute to a mediator.3 This encourages ADR but does not bar court’s jurisdiction. It promotes
ADR as a complementary mechanism, not an exclusive one.

Parties may choose arbitration, but court jurisdiction remains intact unless all parties agree.4

1
N. Radhakrishnan v Maestro Engineers MANU/SC/1758/2009.
2
Dheeresh Kumar Dwivedi, Arbitrability of Fraud in India, 3 RGNUL FIN. & MERCANTILE L. REV. 1
(2015).
3
Section, 89A, The Code of Civil Procedure,1908
4
Section 89B, The Code of Civil Procedure,1908

1
In the case concerning, Md. Jahangir Alam v. Bangladesh5, The Honorable SC stated that
“Alternative Dispute Resolution mechanisms such as mediation or arbitration, however
desirable and effective, cannot exclude the jurisdiction of the constitutional courts.”6

[Link] Agreement Does Not Automatically Bar Court Jurisdiction

UNICTRAL Model Law on International Commercial Arbitration, confirms– Even when

arbitration is agreed upon, courts can hear disputes unless the matter is referable to arbitration
and the arbitration process is ongoing.7

B. The Respondent failed to initiate or engage in ADR

GTS attempted negotiation and even invoked frustration under Clause 52. But the authority
never responded to the letter dated June 22, 2017, nor initiated any ADR process.8 Rather,
they impliedly consented on the amendments made by the GTS Ltd, to clauses 52 and 137 by
confirming over phone call that they have received the signed contract9

[Link] having no alternative but to seek judicial remedy

According to Clauses 52.5 and 137.6, disputes must go through ADR before court
intervention.10 However, since ADR was not initiated or agreed upon by both parties, GTS
had no alternative but to seek judicial remedy.

In the case concerning DHL Project & Chartering Ltd v. Gemini Ocean Shipping Co Ltd11–
Courts held that when ADR is contractually required but not followed due to inaction of one
party, the other party can proceed to court.

Another case regarding initiation of Arbitration, namely SBP & Co. v. Patel Engineering
Ltd.12 Stated “A party’s conduct can waive or frustrate ADR provisions; courts can assume
jurisdiction where ADR has not been pursued in good faith.”

[Link] on inconsistent behavior (Estoppel)

5
72 DLR (AD) 2020
6
Supreme Court of Bangladesh, writ petition no. 6026.
7
Article 8, UNICTRAL Model Law on International Commercial Arbitration
8
Para 6, of the SAF
9
Para 7 of the SAF
10
Annexure 1,(Original draft contract of 29 December 2016) of the SAF
11
[2022] EWHC 181 (Comm)
12
(2005) 8 SCC 618 (India)

2
Article 1.8 – Inconsistent Behaviour (Estoppel), of International Institute for the Unification
of Private Law (UNIDROIT) Principles of International Commercial Contracts (2016),13

"A party cannot act inconsistently with an understanding it has induced in the other party,
who has reasonably relied on that understanding.”

• Accepting the contract with changed ADR clauses

• Releasing funds and inaugurating the project Shows implied waiver or estoppel from
relying strictly on ADR, enabling court jurisdiction.14

C. Maintainability of appeal under constitutional and Procedural Law

The HCD possesses appellate jurisdiction to hear and determine the present appeal under the
applicable constitutional provisions and procedural laws of Banglo. The appeal before the
High Court Division is maintainable under:

[Link] Law

Article 101 of the Constitution of Banglo (pari materia to Article 102 of the Constitution of
Bangladesh) – empowers HCD to hear matters of legal error or procedural injustice.

According to Article 101 of the constitution, The High Court Division shall have such
original, appellate and other jurisdictions and powers as are conferred on it by this
Constitution or any other law.15

As reference to the Article 102 of the constitution, Even where an ADR clause exists, the
constitutional writ jurisdiction of the High Court Division cannot be ousted. If ADR is
ineffective, unavailable, or inoperative, the High Court Division may intervene to ensure
justice and enforce legal rights. As per the Article,

“102 (2) , the High Court Division may, if satisfied that no other equally efficacious remedy
is

Provided by law-

(a) On the application of any person aggrieved, made an order-

13
International Institute for the Unification of Private Law (UNIDROIT) Principles of International Commercial
Contracts (2016)
14
Para 7 of the SAF
15
Article 101, of the Constitution of the People’s Republic of Bangladesh

3
 (i) Directing any person performing any function with the affairs of the Republic or
of a

Local authority to refrain from doing that which he is not permitted by law to do or to do

(ii) Declaring that any act done or proceeding taken by a person performing functions
in

Connection with the affairs of the Republic or of a local authority has been done or

Taken without lawful authority and is of on legal effect; or

(b) On the application of any person make an order-

(i) Directing that a person in custody be brought before it so that it may satisfy itself
that

He is not being held in custody without lawful authority or in an unlawful manner; or

ii. Requiring a person holding or purporting to hold a public office to show under
what authority he claims to hold that office.”16

Since the lower court dismissed the suit summarily, without examining the dispute on merit
or the validity of amended clauses, the HCD has constitutional jurisdiction to intervene.

[Link] Procedural Law:

Section 106 of the Code of Civil Procedure – allows appeal from dismissal orders passed by
subordinate courts. Since the lower court dismissed the suit summarily, without examining
the dispute on merit or the validity of amended clauses, the HCD has constitutional
jurisdiction to intervene.

• As stated in Section 106, of The CPC, 1908

An appeal from any order shall be made to the same court where an appeal from the decree in
that suit would lie, or, if passed by a non-HCD appellate court, to the High Court
Division.17In the case concerning Dr. Mohiuddin Farooque v. Bangladesh;18

16
Article 102, of the Constitution of the People’s Republic of Bangladesh
17
Section 106, The Code of Civil procedure,1908
18
55. DLR (2003) 69

4
The Appellate Division took a progressive stance on locus standi, widening the availability of
writ jurisdiction under Article 102— empowering not just directly affected individuals, but
also organizations and public-interest actors to petition the High Court Division.19

This reinforces the principle that constitutional jurisdiction cannot be constrained by

contractual or procedural another case concerning , Mitul Properties Ltd v. M.N.H. Bulu20

The High Court Division, exercising its revisional jurisdiction under Section 115(1) of the
Code of Civil Procedure, emphasized that it has “wide power to do justice” and may issue
consequential orders where a lower court's ruling resulted in a failure of justice.

• Under Section 20(1) of the Civil Courts Act 1887, unless otherwise provided by law,
an appeal from a decree or order of a District Judge or Additional District Judge lies
to the High Court Division.21

This establishes that the present appeal is maintainable before the Hon’ble High Court
Division as per the procedural mandate.

D. Contractual Clauses can not override statutory right to access court

While parties to a contract may agree to alternative dispute resolution (ADR) mechanisms
such as arbitration or mediation, such contractual clauses cannot lawfully oust or restrict the
jurisdiction of courts conferred by statute. The right to access justice through courts is a
statutory and, in many cases, constitutional guarantee. Any agreement attempting to wholly
exclude court jurisdiction is void to the extent it conflicts with statutory provisions.

Section 28, Contract Act, 1872 – Any agreement that restricts absolutely a party’s right to
enforce their rights through ordinary legal proceedings in the courts is void, except as
permitted by law (e.g., lawful arbitration agreements)22

Section 9, Code of Civil Procedure, 1908 – Courts shall have jurisdiction to try all suits of a
civil nature unless expressly or impliedly barred.23

19
The Supreme Court of Bangladesh, Writ Petition No. 92/1996
20
Mitul Properties Ltd Vs. M.N.H. Bulu. (Khizir Ahmed Choudhury, J). 257. 18 SCOB [2023] HCD 257. HIGH
COURT DIVISION.
21
Section 20, of the Civil Courts Act 1887
22
Section 28, The Contract Act, 1872
23
Jurisdiction of Civil Courts, section 9, The Code of Civil Procedure 1908

5
Arbitration Act, 2001 (Bangladesh), Section 7 & 10 – While recognizing arbitration
agreements, the law still preserves limited court intervention (e.g., appointment of arbitrators,
interim relief, setting aside awards).24

A case concerning “Booz Allen & Hamilton Inc. v. SBI Home Finance Ltd.”25Held that
certain rights, especially statutory or constitutional, cannot be taken away by arbitration
clauses.

Atlas Export Industries v. Kotak & Co.26 – While arbitration clauses are enforceable, they
cannot override mandatory statutory provisions or eliminate court oversight.

E. Doctrine of waiver or acquaintance and Doctrine of Repudiation of

Contract

The Authority’s action of sending a legal notice and demanding payment within 15 days
constitutes a repudiation of the contract’s ADR clause. By taking a unilateral, hostile, and
non-negotiating stance, the authority effectively ended Any possibility of amicable resolution
as contemplated by the clause. A party cannot benefit From a contractual term it has
breached. Therefore, the ADR clause is no longer a valid bar To litigation.27

A waiver Is the act of voluntarily surrendering. Relinquishing, or abandoning a right or claim.

It is an intentional and informed decision made by an individual. The doctrine of waiver is
the power of a person to willingly (by one’s own choice), give up or forgo some rights or
certain privileges that are available to them.

Their failure to trigger ADR, despite the opportunity and statutory obligations under PPP Act
2015, shows waiver of the right to insist on ADR first.28

SBP & Co. v. Patel Engineering Ltd.,29– Arbitration clause may be waived by conduct, and
court can assume jurisdiction if one party fails to follow the agreed procedure.

24
The Arbitration Act,2001
25
(2011) 5 SCC 532 (India)
26
(1999) 7 SCC 61 (India – persuasive)
27
Para 11, & 12, of The SAF
28
Para 12, of the SAF
29
(2005) 8 SCC 618 (India)

6
II. GTS’s dismissal of two members from the Board of Directors without prior approval
from the contracting authority, doesn’t render the contract unenforceable or voidable.
The contract remains valid.

The applicant submits three key points on this issue. Firstly, The removal of the two board
members was both imperative and legally warranted by The Companies Act, 1994. Secondly,
The violation of Section 22 (3) of The Public Private Partnership Act 2015 was procedural
not substantive. Finally, No Demonstrable Harm or Disruption caused to Project
Performance.

A. The removal was both imperative and legally warranted by The Companies Act,
1994

[Link] two directors were declared bankrupt by Judicial Order

GTS removed two members from it’s Board of Directors on March 13, 2022, as a result of
court declaring them as bankrupt. Both of the members experienced significant financial
losses during the COVID-19 pandemic and we’re unable to repay their bank loans.30

They were declared bankrupt by judicial order-thus legally disqualified. Under the
Companies Act 1994, bankruptcy automatically vacates directorship.

As section 108(1)(c) of The Companies Act, 1994 states about the ‘vacation of office of
director’— The office of a director shall be vacant, if-he is adjudged an insolvent;31 or He
fails to pay calls made on him in respect of shares held by him within Six months from the
date of such calls being made;32

2. Disqualification of Directors under the applicable Laws

In Section 94, of The Companies Act, 1994, discusses about the disqualification of Directors.
A person shall not be capable of being appointed director of a company, if he is an
undiscovered insolvent.33

And also includes that A company may in its articles provide additional grounds for
disqualification of a Director.34 Thus, the removal of the two board members wasn’t unlawful

30
Para 9 of the SAF
31
Section 108(1) (c ), of The Companies Act ,1994
32
Section 108(1)(d) of The Companies Act, 1994
33
Section 94(1)(b) of The Companies Act, 1994
34
Section 24(2) of The Companies Act, 1994

7
at all, as The Companies have their authority on the terms and conditions of the appointment
and disqualification of the Director Board It may additionally include grounds for
disqualification and removal of directors.

B. The violation of Section 22(3) of The PPP Act, 2015, Is Procedural, Not
Substantive

[Link] removal of the two members of the BOD is not a material fact in this case Section
22(3) of the PPP Act 2015 mandates prior approval for significant changes in the project
company’s structure;35 however, failure to secure approval does not automatically void the
underlying PPP contract. No express provision in the Act indicates the contract becomes void
due to such omission. This is at best a regulatory non-compliance, not a fundamental
contractual breach.

The Companies Act provides mechanisms for the removal of directors36. Section 106
empowers companies to remove directors either

• by passing a resolution or
• by court order.

Special notice must be given to all directors, including the one proposed for removal.37

The occurrence of a directorial vacancy is contingent upon the stipulations delineated in

section 108 of the Companies Act, complemented by Regulation 78 of Schedule I. Premature
termination of a director’s tenure finds legitimacy in section 106 of the Act, necessitating the
enactment of an extraordinary resolution. Such removal procedures are intricately entwined
with legal complexities, fostering uncertainties within a company’s operational framework.38

[Link] position is contractual rather than statutory

Conventionally, it is construed that section 106(1) exclusively pertains to elected directors

and their dismissal, distinct from contractual appointees. Harmonized with section 91(2),
shareholders of a public company wield authority to oust up to one-third of the total

35
Section 22(3) of The Public Private Partnership Act, 2015
36
Section 106 of The Companies Act,1994
37
Commentaries of Barrister Shayikh Mahdi, The Supreme Court of Bangladesh
38
Section 108 of the Companies Act, complemented by Regulation 78 of Schedule I.

8
directorial cohort. The Articles of Association (AoA) of a company may delineate grounds for
such dismissals, with the possibility of introducing new criteria.39

In the case of Syed Ameenul Huq and Ors v. M. H. Arif and Ors (1988), the High Court
Division of the Supreme Court of Bangladesh underscored that the directorial position is
contractual rather than statutory, thus subject to the terms of the contract. Consequently,
removal through AoA modification emerges as a plausible recourse within companies.40

C. No Demonstrable Harm or Disruption caused to Project Performance

The unsanctioned removal of two board members did not materially impair the project's
performance, so it does not justify rescinding the contract.

Under the Contract Act 1872, only breaches that go to the root of the contract or materially
impair performance justify rescission. Irregular board-level changes do not meet this
threshold.

Legal doctrine (e.g., as articulated in UCC or common law contexts) distinguishes between
minor breaches and those that “go to the root of the contract.” 41Only a material breach—one
that defeats the contract's essential purpose—supports rescission. Administrative changes like
board removals are deemed immaterial and reversible.

The contract’s performance continued uninterrupted, as evidenced by disbursement of initial

funding and ongoing project work, as per the statement of agreed fact

§ Authoritative Precedent (UK Company Law):

In Southern Foundries (1926) Ltd v Shirlaw, 42the House of Lords held that removing a
managing director in breach of contract entitled him to damages but did not void the
company’s contract with him or render the entire arrangement void. This distinction between
breach and voidability underscores that such actions, though wrongful, do not automatically
invalidate broader contractual performance.43

39
Ibid.R.9
40
Syed Ameenul Huq and Ors v. M. H. Arif and Ors (1988)
41
[Link]
42
[1940] AC 701
43
[Link]

9
This approach strengthens the argument by combining local statute with a recognized
precedent, showing that director removals—even if procedurally incorrect—are not
inherently dispositive of contract enforceability.

D. This non-disclosure being an immaterial breach

All breaches are not created equal. A minor, technical breach may be deemed “immaterial.”
Other breaches – so-called “material” breaches — deprive the non-breaching party of
something important or essential to the purpose of the contract. Whether a breach is material
or immaterial is normally a question for the finder of fact44

The case, Alenco v. Warrington, No. 125,721, 2024 WL 4576143,45 at, involved a contract to
install new siding on a home. After the siding was installed, the homeowner discovered that
the siding installed was different than the siding it had selected. The selected siding was
branded “Cedar Ridge” and had an insulation “R-value” of 4. The siding used was “Crane
Board 6” with an R-value of only 2.2. The contractor offered to add more insulation at no
additional cost or discount its work to reflect lost energy savings. The homeowner rejected
those solutions and refused to pay.

In the ensuing litigation, the homeowner contended that the contractor had materially
breached the contract thereby excusing its obligation to pay. The jury, and the Kansas Court
of Appeals, disagreed.46

An immaterial breach of contract, also known as a minor breach or partial breach, occurs
when a party fails to fulfill a minor aspect of the agreement, but the breach does not
substantially affect the overall purpose or value of the contract for the other party. As, the
removal of the directors for lawful reasons (e.g. insolvency), doesn’t void the contract as it is
an immaterial fact.

• International Precedents:

44
National Law Review, July 13,2025, Volume XV, Number 194
45
*6–7 (Kan. Ct. App. Oct. 25, 2024)
46
[Link]
National Law Review, July 13,2025, Volume XV, Number 194

10
Under UNCITRAL Model Law on International Commercial Arbitration (Art. 34), a change
in corporate governance is not a ground for setting aside an award or avoiding a contract
unless it constitutes incapacity to perform.47

International Chamber of Commerce (ICC) Case No. 6379 (1990) – The tribunal held that
internal corporate changes, including board member removals, are “internal management
matters” and do not affect the validity of existing contracts unless performance becomes
impossible.48

Issue 3: Can GTS use the frustration clause (Clause 52) to deem the relevant elements of
the contract unenforceable, given the disruption created by the pandemic?

3.1 GTS can invoke the Frustration Clause (clause 52) due to the COVID-19 pandemic,
which constitutes a supervening event beyond the control of the parties.

3.1.1 Doctrine of Frustration is a well-established principle under the Contract Act, 1872:

“A contract becomes void when an act becomes impossible or unlawful by reason of

some event which the promisor could not prevent.” 49

To attract the doctrine of frustration of contract the performance of the contract must
become absolutely impossible due to the happening of some unforeseen event. 50

The COVID-19 pandemic was an unexpected and unforeseeable situation that made it
nearly impossible to perform due to lockdowns, disrupted supply chains, and a lack of
available labor. This clearly fits the definition of “impossibility or impracticability” as
outlined in the frustration doctrine.

3.1.2 GTS was seeking another meeting to discuss articles 52 and 53 and wrote a letter to the
authority on June 22,2017 which proves that GTS has no assumption, contemplation
and knowledge about the COVID-19.51 Therefore, it is clear that pandemic is sudden

47
UNCITRAL Model Law on International Commercial Arbitration, (Art.34)
48
(ICC) Case No. 6379 (1990)
49
Section 56, the Contract Act, 1872
50
Mokbul Hossain Khondkar vs. Jaheda Khatun (1995)47 DLR 430
51
Para 6 of the given fact

11
 and unexpected event as the pandemic out broke in 2020 and the contract was signed
in 2017.

3.1.3 The amended Clause 52 (which was proposed and signed by GTS on June 29, 2017)
specifically lists "pandemics, governmental actions, and civil unrest" as valid reasons
52
for frustration. GTS gave sufficient time and opportunity for any objection to the
authority. As a result, GTS invoked Clause 52 in good faith.

3.1.4 Governmental actions can frustrate a contract : In GTS’s case, COVID-19 lockdowns
and emergency rules by the Government of Banglo stopped GTS from meeting its
obligations. These restrictions were outside GTS’s control and count as a supervening
event, frustrating the contract under Clause 52. In a case, the Indian Supreme Court
decided that government restrictions that make performance legally impossible can
frustrate a contract. 53

3.2 The actions of the Authority suggest a silent acceptance of the amended clause.

3.2.1 After GTS submitted the signed contract with the updated Clause 52, the Authority
received it on July 3, 2017, acknowledged it with a phone call, and then proceeded to release
$1 million USD. These steps indicate an implied acceptance of the revised terms.

Under the Doctrine of Acceptance by Conduct, if one party knowingly accepts the benefits
of a contract, they are deemed to have accepted the terms unless objected.54

In the absence of an express contract, the court should inquire into the conduct of the parties to
determine whether that conduct demonstrates an implied contract.55

[Link] amended Clause 52 was used following the proper procedure, and it is binding.

52
Para 7 of the given fact
53
NAFID vs Alimenta S.A. (1989) AIR 818
54
Brogden v Metropolitan Railway Co (1877) 2 AC 666
55
Marvin v. Marvin (1976) SC 577

12
3.3.1 GTS gave written notice under Clause 52.2 and asked for a renegotiation. Their actions
followed Clause 52.2 to 52.5, meeting the contractual obligations before citing frustration.

3.3.2 The clause states that if frustration is claimed and negotiations fail, either party may end
the contract without being responsible for damages.

3.4 Frustration, as a common law and international principle, applies together with national
law.

3.4.1 The facts show that Banglo's national laws and international duties are similar. Therefore,
GTS can rely on international principles such as:

i. If a party cannot perform because of an unforeseen event beyond their control (like
56
a natural disaster, war, or pandemic), they are not liable.
ii. If an event makes performance excessively difficult, it is called hardship. In this
case, the party may ask for a renegotiation, and if no agreement is reached, the
57
court may terminate or modify the contract.

Issue 4: Is GTS obligated to pay $500 million USD compensation to the authority?

4.1 GTS is not liable under Clause 137 because the clause was lawfully amended and
accepted.

4.1.1 The amended Clause 137 was sent with clear notice and intention. On 29 June 2017, GTS
submitted a signed agreement that included the amended Clause 137. The amendment stated
that no party is liable for compensation if the contract is frustrated for the reasons in Clause 52,
including pandemics and government actions.

4.1.2 The Respondent accepted the amended clause through their actions. After receiving the
amended signed contract, the authority raised no objections as well as released $1 million USD
58
and started the project. Which shows that the authority accepted the amendment.

56
Article 79, CISG (1980)
57
UNIDROIT Principles
58
Para 7 of the given fact

13
In a case it was held that, “Acceptance can be shown through conduct when one party acts
according to the terms of a proposed agreement.” 59

4.2 GTS is not liable under the original Clause 137.4 because the delay was not its fault.

4.2.1 The original Clause 137 holds GTS responsible if it fails to complete the project due to
its own error. However, the delay in this case was due to the COVID-19 pandemic, an
unforeseen event beyond GTS’s control. GTS signed the contract in 2017, well before the
outbreak. This event and government actions made timely performance impossible and GTS
couldn’t completed the project by December, 5,2022.60 Therefore, GTS can claim frustration.

4.2.2 Frustration excuses performance and removes liability. Once a contract is frustrated,
neither party has to perform or pay compensation. Since GTS lawfully claimed frustration,
Clause 137.4 (even if amended) cannot apply. GTS claimed frustration not just by law but by
the contract.

4.3 Taking USD 500 million as compensation would be unfair enrichment.

4.3.1 The Respondent did not experience an actual financial loss of that amount. Compensation
should be fair and not punitive. There is no evidence showing actual losses worth USD 500
million suffered by the Government.

4.3.2 Demanding full compensation despite pandemic-related delays goes against the principle
of fairness. GTS acted in good faith and attempted to complete the project. Punishing GTS
with an excessive compensation demand would go against principles of fairness an

59
Brogden v Metropolitan Railway Co. (1877)
60
Para 10 of the given fact

14
 PRAYER FOR RELIEF

The Global Transport Solutions Ltd (GTS) respectfully requests the Court to declare :

I.

The court have jurisdiction over the dispute and the appeal is maintainable before the court

II.

GTS’s dismissal of two members from the Board of Directors without prior approval from
the contracting authority doesn’t render the contract unenforceable or voidable.

III.

GTS can use the frustration clause (Clause 52) to deem the relevant elements of the

contract unenforceable, given the disruptions created by the pandemic

IV.

GTS is not obligated to pay the $500 million USD compensation to the authority

Respectfully submitted,

Agents of the Global Transport Solutions Ltd

15