ISSUE 1: WHETHER THE HIGH COURT OF TAMIL NADU SHALL HAVE THE

JURISDICTION TO HEAR THE MATTER, GIVEN THE FACT THAT GLOBEX

INDIA HAS ALTERNATIVE REMEDIES AT THE NATIONAL GREEN TRIBUNAL
AND UNDER ARBITRATION?
It is humbly submitted before this Hon’ble High Court that the power of a High Court to
entertain a petition under Article 226 is an original power 1 and it can pass appropriate orders
while exercising this jurisdiction.2 Thus, [1.1] availability of an alternative remedy is not a
bar when there has been a violation of fundamental rights and principles of natural justice
thereby making [1.2] the present writ petition filed by Globex India Pvt. Ltd. [Hereinafter
referred to as “the Petitioner”] is maintainable.

[1.1] Availability of alternative remedy is not a bar

A writ is a quick remedy against injustice, a device for the protection of the rights of citizens
against any encroachment by the governmental authority.3 It is a settled position of law that
the remedy provided under Article 226 of the Constitution of India is a discretionary
remedy.4 Although the High Courts do apply the rule of “exhaustion of statutory remedy”
before issuing a writ under Art. 226, the rule is not rigid but somewhat flexible and it is
primarily a matter of discretion of the writ Court.5 The Supreme Court has characterized the
rule of exhaustion of remedies as “a rule of policy, convenience and discretion rather than a
rule of law”.6 Question as to when the discretionary jurisdiction is to be exercised or refused
has to be determined having regard to the facts and circumstances of each case. 7

Three contingent situations have been stated by the Hon’ble Apex court where the alternative
remedy does not operate as a bar:8

a. Where the writ petition seeks enforcement of any fundamental right

b. Where there is a violation of principles of natural justice
c. Where the order or proceedings are wholly without jurisdiction

1
State of Orissa v. Gokulananda Jena, AIR 2003 SC 2686 (India).
2
M.P. Jain, Indian Constitutional Law, Pg. 425,( 12th ed. 1970)(India)
3
A.V. Dicey, An Introduction to the Study of the Law of the Constitution, Pg. (10th ed. 2012).
4
ThansinghNathmal v. Superintendent of Taxes, AIR 1964 SC 1419(India)
5
A.V. Venkateswaran, Collector of Customs, Bombay v. RamchandSobhraj Wadhwani, AIR 1961 SC
1506(India)
6
State of Uttar Pradesh v. Mohd. Nooh, AIR 1958 SC 86(India)
7
Sanjana M. Wig. v. Hindustan Petroleum Corpn. Ltd., AIR 2005 SC 3454(India).
8
Whirlpool Corporation v. Registrar of Trade Marks, Mumbai, AIR 1999 SC 22(India).
It is contended before the Hon'ble Court that in the present matter, there has been a [1.1.A]
violation of a fundamental right of the petitioner as well as [1.1.B] violation of principles of
natural justice thereby making the case amenable to High Court’s jurisdiction under Art. 226.

[1.1.A] There has been a violation of the Fundamental Right under Article 19(g) of the
Constitution of India.
The existence of a right is the foundation of a petition under Art. 226.9 The right alleged may
be a fundamental right10 or an ordinary legal right.11 The State is duty bound to protect the Commented [D1]: Useless

Fundamental Rights of the citizens guaranteed under Part III of the Constitution of India. Commented [D2]: Add source

Enforcement of these rights is one of the constitutional duties and functions of the State
which they need to fulfil. Moreover, the apex court has ruled that existence of an alternate Commented [D3]: Same

remedy is no bar to the exercise of writ jurisdiction where there is a violation of fundamental
rights,12 as is the case in the present petition.

Article 19 (1) (g) of Constitution of India13 provides Right to practice any profession or to
carry on any occupation, trade or business to all citizens subject to Art.19 (6) which
enumerates the nature of restriction that can be imposed by the state upon the above right of
the citizens.14A company is said to be resident in India if in any previous years, the control
and management of it's affairs is situated in India or it's affairs are operated in the territory of
India.15 Also, Article 5(c) of the Constitution of India says that after the commencement of
the constitution of India, every such person who has been ordinarily resident in the territory
of India for not less than 5 years, shall be considered as the citizen of India.16 In the present
matter before hand, The company which is the petitioner was established in India on April
2005 with its registered office in Benagaluru,17 Therefore, the company is an ordinary
resident in the territory of India for more than 5 yrs and hence shall be considered as the
citizen of India.

9
State of Orissa v. Ram Chandra Dev, AIR 1964 SC 685(India).
10
Bokaro v. State of Bihar, AIR 1963 SC 516 (India).
11
Calcutta Gas Co. v. State of West Bengal., AIR 1962 SC 1044 (India).
12
Himmat Lal vs. State of U.P., AIR 1954 SC 403(India).
13
INDIA CONST. Art. 19, Sub-clause g, Cl. 1.
14
INDIA CONST. Art. 19.
15
Indian Income Tax Act, Section 6(3)(ii), No. 42 of 1961, Acts of Parliament,1995, India.
16
INDIA CONST. Art. 5, Sub Cl. (c)
17
Moot Proposition
In order to fall under ‘reasonable restriction’ of Article 19(6), it is compulsory for the
provision to satisfy the twin tests of ‘reasonableness’ and ‘public interest’ as laid down in the
article.18 Commented [D4]: Please provide an insight of these tests
(crux and crisp)

Reasonable restriction implies that the limitation imposed for the enjoyment of a right should
not be arbitrary or of an excessive nature beyond what is required in the interest of the
public.19 In the present matter, the fact that Globex India was researching on a plant with anti-
cancerous properties leading to an invention of a compound with anti-tumour properties is of
extreme public importance.20 Cancer and tumors being such prevalent diseases in the society
at present, denying them the right to access to the raw material of the compound and also
denying them an exclusive right over their invention is extremely arbitrary.

Therefore, the fundamental right of the petitioner under Article 19(1)g has been violated
through acts of the IBA.

[ 1.1.B] There has been violation of the principles of Natural justice

Natural justice is a concept of common law and represents higher procedural principles
developed by the courts, which every judicial, quasi-judicial and administrative agency must
follow while taking any decision adversely affecting the rights of a private individual.21 Commented [D5]: Use short sentences.

Natural justice implies fairness, equity and equality.22 The principle of audi alteram partem is
the basic concept of principle of natural justice23 and it implies that a person must be given
opportunity to defend himself. 24 The purpose of principles of natural justice is to prevent
miscarriage of justice and therefore it becomes imperative to apply it in all fields, including
administrative enquiries or functions.25

In the present matter before hand, when the local communities of the Shola Tribe agitated
against the patent sought by Globex India, seeing prima facie merit in their demands, IBA
withdrew the prior approval and revoked the ABS Agreement.26 The merits of the case were
not considered and Globex India was not given a chance to be heard, which is in clear Commented [D6]: It is reflecting as if they were provided
with a chance but the matter was adjudicated outrightly
violation of the principle of audi alteram partem. The adherence against them and hence the merits are not considered BUT
this is not the case wit you guys.... Change the framing of the
18
sentence
AkadasiPadhan v. State of Orissa, AIR 1963 SC 1047(India).
19
ChintamanRao v. State of Madhya Pradesh, AIR 1951 SC 118(India).
20
Moot Proposition, pg. 5.
21
Shivraj Huchhanavar, Introduction to Natural Justice, University Grants Commission of India , Post-
Graduation e-Path ShalaProgramme, Volume II,2015
22
J.L. Mackie, Ethics: Inventing Right and Wrong, ch.1, 1977
23
R. F. V. Heuston, Essays in Constitutional Law , Volume 10, 1961
24
DarshanlalNagpal v. Govt. (NCT of Delhi) (2012) 2 SCC 327(India).
25
A.K. Kraipak v. Union of India, 1962 2 SCC 262(India).
26
Moot Proposition, pg. 6.
to principles of Natural Justice, as recognized by all civilized States is of Supreme
importance when a quasi-judicial body embarks on determining disputes between the parties,
or any administrative action involving civil consequences is in issue.27

Writs referred to in article 226 are intended to enable the High Court to issue them in grave
cases where the subordinate bodies or officers act without jurisdiction, or in excess of it, or in
violation of principles of natural justice.28 Therefore, the petitioners has the right to move a
writ petition before the Hon'ble HC of Tamil Nadu.

[1.2] The writ petition is maintainable in the High Court of Tamil Nadu
While exercising its power under Article 226, the High Court has the power to review the
manner in which the decision is made29 and ensure that the authority arrives at the decision
according to law30 and in accordance with the principles of natural justice wherever
applicable. As already proved, the decisions passed by the IBA were in gross violation of the Commented [D7]: Not your job to decide whether you
proved it or not. As already established
petitioner’s fundamental rights along with principals of natural justice.

Moreover, a constitutional remedy by way of writ petition is always available to an aggrieved

party and an arbitration clause in an agreement between the parties cannot ipso facto render a
writ petition as not maintainable.31 It has been held that the constitutional powers vested in
the High Court or Supreme Court cannot be fettered by an alternative remedy available to the
parties.32 Despite provisions of an arbitration clause in an agreement, the High Courts are
competent to entertain writ petitions33 and it must also be noted that the rule of exclusion of
writ jurisdiction by availability of an alternative remedy is a rule of discretion and not of
compulsion.34 Access to justice by way of a public law remedy cannot be denied if question
arises out of public law functions on part of respondent. 35 Therefore, the presence of an Commented [D8]: Unnecessary

27
Canara Bank v. Sri Debasis Das, AIR 2003 SC 2041(India).
28
T.C Basappa v. T. Nagappa, AIR 1954 SC 440(India).
29
H.B. Gandhi, Excise and Taxation Officer cum Assessing Authority, Karnal v. M/s Gopi Nath, 1992 Supp (2)
SCC 312(India).
30
Indian Oil Corpn. Ltd. v. Ashok umar Arora, (1997) 3 SCC 72(India).
31
Ram Barai Singh v. State of Bihar, 2015 13 SCC 592(India).
32
Union of India v. Tantia Construction Pvt. Ltd., 2015 5 SCC 697(India).
33
Id.
34
HarbanslalSahnia v. Indian Oil Corporation Limited (2003) 2 SCC 107; Whirlpool Corporation v. Registrar of
Trade Marks (1998) 8 SCC 1(India).
35
Sanjana M. Wig v. Hindustan Petroleum Corpn. Ltd., 2005 8 SCC 242(India).
arbitration clause in the ABS agreement cannot ouster the jurisdiction of the High Court,
regardless of available alternate remedies, if injustice has been caused.36

Furthermore, the alternate remedy available to the petitioner by way of appeal to the NGT, is
one of choice, and not compulsion as the statute clearly states that the aggrieved person ‘may’
file an appeal with the NGT. It has been held that where the statute provides for remedies or Commented [D9]: Flawed argument, already established
above, no precedent
appeal to a tribunal, resort must be had to that particular statutory remedy and not the
discretionary remedy under article 226 of the Constitution37 unless the other said remedies
are ill suited, to meet the demand of an extraordinary situation38 as proceedings under article
226 are not a substitute to a statutory appeal.39 It is contended that the said statutory remedy
is ill suited for the petitioner as they have suffered deprivation of their fundamental rights and
their right to be heard. Commented [D10]: No proper justification for claiming it
as ill suited remedy

Therefore, it is humbly submitted before this Hon’ble High Court that the remedy of writ
petition is conferred by the Constitution itself and such remedies cannot be made subservient
to other remedies provided by different statutes40, thereby making the present petition
maintainable on account of gross violation of fundamental rights and principles of natural
justice.

ISSUE 2: WHETHER THE WITHDRAWAL OF CONSENT FOR ACCESS BY THE

IBA IS AN ADMINISTRATIVE OR A JUDICIAL FUNCTION WHEREON THE
PRINCIPLES OF NATURAL JUSTICE ARE REQUIRED TO BE FOLLOWED
BEFORE PASSING OF THE ORDER OR WHETHER THE IMPUGNED ORDERES
ARE A BREACH OF CONTRACT
Access and Benefit Sharing is based on prior informed consent being granted by a provider of
genetic resources to a user of such resources, and on negotiations between both parties to
develop mutually agreed terms, in order to ensure the fair and equitable sharing of benefits
arising from the use of the resources.41 In the present matter, Globex India had obtained the

36
National Sample Survey Organization and Another v. Champa Properties Limited and Another (2009) 14
SCC 451(India) ;Hindustan Petroleum Corporation Limited and Ors. v. Super Highway Services and Another
(2010) 3 SCC 321(India).
37
Seth Chand Ratan v. Pandit Durga Prasad, AIR 2003 SC 2736(India).
38
Express Newspapers Pvt. Ltd. v. Union of India, AIR 1986 SC 872(India).
39
Transmission Corpn. Of AP v. Ch. Prabhakar AIR 2004 SC 3368(India).
40
National Sample Survey Organization and Another v. Champa Properties Limited and Another (2009) 14
SCC 451(India).
41
https://www.wipo.int/edocs/pubdocs/en/wipo_pub_1052.pdf GEORGINA IS IT A SOURCE??
access to MappiaFoetida by following due procedure as mandated by law.42 However, the
Access and Benefit Sharing Agreement which was for a period of three years,43 was revoked
within 1.5 years. The petitioner contends that [2.1] this revocation amounts to an
administrative function and [2.2] the petitioner should’ve been heard and given a reasonable
amount of time before the revocation.

[2.1] The withdrawal of access is an administrative function

An institution which owes its existence to a statute which is also the fountainhead of its
powers is by law a statutory body.44 The dividing line between an administrative power and a
quasi-judicial power is quite thin and is being gradually obliterated. For determining whether
a power is administrative or quasi-judicial, the nature of the power conferred, the person or
persons on whom it is conferred the frame-work of the law conferring that power, the
consequence ensuing from the exercise of that power and the manner in which the power is
expected to be exercised have to be taken into consideration.45

Although an administrative act cannot be precisely defined, it includes within its purview the
adoption of a policy, the making and issue of a specific directions, and the application of a
general rule to a particular case in accordance with the requirements of policy of expediency
or administrative practice.46 The court has laid down that if there is lis between the parties,
and the opinion is to be formed on objective satisfaction, the action is quasi-judicial,
otherwise administrative. 47

The Indian Biodiversity Authority, a statutory body,48 primarily performs functions of

regulating activities and issuing guidelines for access to biological resources,49 granting
approval for activities referred to in the Act50 or any Intellectual Property Rights51 and advise
the Central Government or take decision in its behalf for conservation of biological
resources.52 These functions of the IBA such as laying down the procedures and guidelines to
govern the activities such as access and benefit sharing and Intellectual Property Rights, is

42
Moot Proposition, pg 5.
43
Moot Proposition, pg 5.
44
Executive Committee of Vaish Degree College v. Lakshmi Narain, AIR 1976 SC 888(India).
45
A.K. Kraipak v. Union of India, 1962 2 SCC 262(India).
46
De Smith, Judicial Review of Administrative Actions , p. 71, (1980)
47
State of AP. V. S.M.K. Parasurama Gurukul (1973)2 SCC 232; AIR 1973 SC 2237(India).
48
Biological Diversity Act, Section 8, No. 18 of 2003, Acts of Parliament, 2002, India.
49
Biological Diversity Act,Cl. 1, Section 8, No. 18 of 2003, Acts of Parliament, 2002, India.
50
Biological Diversity Act, Cl. 2,Section 8, No. 18 of 2003, Acts of Parliament, 2002, India.
51
Biological Diversity Act,Cl. 2, Section 9, No. 18 of 2003, Acts of Parliament, 2002, India.
52
Biological Diversity Act,Cl. 3, Section 8, No. 18 of 2003, Acts of Parliament, 2002, India.
also in accordance with the Article 8 (j) of the CBD. Therefore, functions of the IBA,
including the withdrawal of access, qualify as an administrative function as there is no
dispute resolution involved.

[2.1.A] The IBA acted in violation of principles of natural justice.

Natural Justice is a great humanizing principle which intends to invest law with fairness and
secure justice,53 the horizon of which is constantly expanding. The old distinction between an
Administrative Act and Judicial Act does not survive any longer and every Administrative
order which involves civil consequences must follow the rules of Natural Justice.54

The objectives of judicial function and an administrative function are the same, namely, to do
justice and deciding the question fairly and justly. Even an administrative function involves a
judicial approach by conforming to principles of natural justice.55

Principles of natural justice have been defined to mean “fair play in action”,56 which
constitute the basic elements of a fair hearing.57As a part of the rule of Natural Justice, the
right of audi alteram partem is a valuable right which mandates that no one should be
condemned unheard.58 It indicates that a person against whom an order to his prejudice has
been passed should be given an opportunity of submitting his explanation.59 It is contended
that in the instant matter, the withdrawal of access to mappiafoetidaby the IBA was done on
the account of growing agitation by the people living in and around the Shola Forest. 60 The
IBA also found prima facie merits in the opposition of the local communities against the
patent by Globex India.61

Procedural fairness is an essential requirement in an administrative action and ‘fairness’ or

‘fair procedure’ ought to be observed. 62Globex India was not given a chance of hearing
before the revocation of the ABS Agreement as is mandated by the principles of natural
justice, thereby causing a procedural defect in the said revocation.

53
Maneka Gandhi v. Union of India, AIR 1978 SC 597(India).
54
Mr. Justice T.S. Sivagnanam, Principles of Natural Justice, Pg 356,(2009) .
55
Assistant Collector of Customs v. Charan Das Malhotra, 1971 SCC 697(India).
56
Supra n. 51
57
Union of India v. Tulsiram Patel, (1985) 3 SCC 398(India).
58
K. C. Jain, Some Significant Facets of Principles of Natural Justice, 1 GJLDP 31, (2009)
59
Supra n. 51
60
Moot Proposition, pg. 6.
61
Moot Proposition, pg 6.
62
National Institute of Mental Health and Neuro Sciences v. Dr. K. Kalyana Raman, 1992 Supp 2 SCC
481(India).
It is also an established principle in law that when the statutory rules are silent with regard to
the applicability of any facet of principles of natural justice, their applicability shall not be
prohibited unless exclusively ousted by the statute.63 Since the Biological Diversity Act 2002
or the Biodiversity rules do not explicitly exclude adherence to the principles of natural
justice, IBA was bound to act in accordance of principle of natural justice by allowing a
hearing to Globex India.

A corollary has also been deduced from the rule of audi alteram partem that “quia liquid
statueritparteinaudita altera, aequum licet dixerit, baud aequumfecerit”64. that is, “he who
decides anything without having heard the other side, though he may decide rightly, by no
means has acted justly”65 or in other words, “justice should not only be done but should
manifestly be seen to be done”. Therefore, the courts also have the power to not only quash
an order which is in violation of principles of natural justice but also to declare it as null and
void.

Therefore, it is contended that even though the withdrawal of access amounts to an

administrative function, the IBA was bound to follow the principles of natural justice which it
failed to do so.

[2.2] The revocation was also a breach of the contract of Access and Benefit Sharing
It is contended that the Access and Benefit Sharing Agreement, entered into on July 4, 2016 66
was for a period of three years.67 Additionally, the agreement provided for extension of the
period of access and the agreement itself.68 The IBA grants prior approval for the purposes
of research, commercial utilization or bio survey and bio utilization.69 It is contended that the
petitioner’s purpose for obtaining the access was to conduct research and development
through various methods in biotechnology including genetic manipulation and possible

63
Union of India v. Ram Lakhan Sharma, 2018 7 SCC 670(India).

65
Ballentine’s Law Dictionary,12th ed., 1916. GEORGINA HOW TO CITE AN DICTIONARY?
66
Moot Proposition, pg. 5.
67
Id.
68
Moot Proposition, Annexure 3, pg. 19.
69
Section 3(1), Biological Diversity Act, 2002.
commercial utilization.70 the end use of a biological resource as a drug has been defined as
commercial utilization,71 which is what the petitioner’s intended to do.

It is contended that the [2.2.A] IBA made a material breach of the contract by revoking it
prior to the term of completion.

[2.2.A] IBA committed a material breach of the contract by revoking it prior to the
term of completion.
A material breach refers to the non-compliance with a fundamental clause of the agreement.
Clause 7.472 of the ABS Agreement empowers the IBA to withdraw the approval and revoke
the agreement in accordance with Rule 15 of the Biological Diversity Rules, 2004.73 On
account of growing agitation by the local communities and seeing prima facie merits in their
demands, the IBA revoked the agreement on grounds of “overriding public interest or for
protection of environment and conservation of biological diversity”.74 It is contended that the
IBA was not justified in doing so as [2.2.A.1] The said grounds were inapplicable in the
present case and [2.2.A.2] Arguendo, the IBA had powers of revocation, they were bound to
give a notice for the revocation to the petitioner

[2.2.A.1] The said grounds were inapplicable in the present case

The expression 'public interest' is a generic term for the interests of the community viewed in
aggregate, or the interests of a group within a community of individuals.75 It is the welfare of
the public as compared to the welfare of a private individual or company.76The expression
interest of the general public embraces public security, public order and public morality. 77
The IBA revoked the ABS on the grounds of public interest however, it is contended that the
action was taken finding prima facie merit in the claims of tribes of the Shola Forest.78
Contrary to the grounds of revocation, the path breaking inventions made by Globex India,
were more in furtherance of public interest instead of against it. Cancer and tumours are more
important public health issues prevalent in the society which need to be resolved. By

70
Moot Proposition, Annexure 2, pg. 16.
71
Clause f, Section 2, Biological Diversity Act, 2002.
72
Moot Proposition, Annexure 3, pg. 23.
73
Id.
74
Moot Proposition, Annexure 7, pg. 35.

76
Black’s Law dictionary, 2 nd ed.,1910.
77
Emperor Vs. Jeshingbhai Ishwarlal Dhobi, AIR 1950 Bom 363( India)
78
Moot Proposition, pg 6.
exploiting the medicinal properties of the plant, Globex India can facilitate the widespread
use of the medicines, thereby furthering public interest.

Additionally, the concepts of In situ79 and Ex situ80 conservation have been enumerated in the
CBD, and the Biological Diversity Act, 200281 to the sustainable use of the plant and prevent
it from going extinct. These conservation methods ensure a longer period of usage of plant
varieties, since interference with the composition of the subject-matter ensures enhanced
characteristics in the plant enabling it to withstand the threat of genetic vulnerability.82

[2.2.A.2] Arguendo, the IBA had powers of revocation, they were bound to give a notice
for the revocation to the petitioner
The common law principle of revocation of a contract requires a notice to be given to the
other party within a reasonable time and with legitimate reasons. The Biological Diversity
Rules which elucidate the clauses83 to be contained in an ABS agreement, also mention
‘notice to terminate the agreement’.84 It is contended that by unilaterally revoking the ABS
agreement, the IBA breached clause 7.2 of the agreement which requires it to intimate the
petitioner within 90 days of making a decision of terminating the agreement.

Therefore, it is humbly submitted before this Hon’ble High Court that the IBA committed
breach of the contract by violating clauses 7.2 and 7.3 of the ABS agreement.

ISSUE 3: WHETHER THE IMPUGNED ORDER DATED DECEMBER 21, 2017 IN

THE REJECTION OF APPLICATION UNDER FORM III IS JUSTIFIED AND CAN
THIS REJECTION EXTINGUISH THE INTEREST OF GLOBEX INDIA IN
SEEKING A PATENT PROTECTION FOR THE INVENTION
The petitioner contends that the application for patent must be approved as [1.1]The grounds
for rejection of the patent application are arbitrary and bad in law thereby [1.2]extinguishing
the right of the petitioners to obtain a patent for their novel invention.

79
The Convention on Biological Diversity, Article 8, 1993-12-29,(1760 UNTS 79)
80
The Convention on Biological Diversity, Article 9, 1993-12-29,(1760 UNTS 79)
81
Biological Diversity Act, Section 36, No. 18 of 2003, Acts of Parliament, 2002, India.
82
Sudipta Puryakastha,Science, Tecchnology and law: Contemporary issues in Biotechnology, Protection of
Plant Varieties and Farmers’ Rights in India,1999-08-4 at Pg. 26.
83
Biological Diversity Rules, Sub-rule 6, Rule 14, GSR 261 (E),(MoEF, India).
84
Biological Diversity Rules, Cl. xvii, Sub-rule 6, Rule 14, GSR 261 (E),(MoEF, India).
[1.1] The grounds for rejection of the patent application by the IBA is arbitrary and
bad in law
The Biological Diversity Act85 provides for mandatory former approval of the IBA before
applying for any IPR. It further provides that if the application is for patent, IBA’s approval
can be obtained after acceptance of the patent but before sealing of it. Clause 3.13 of the
Access and Benefit Sharing Agreement86 states that if the research and activities concerning
MappiaFoetida lead to an invention, compliance with Section 6 of the Biological Diversity
Act is obligatory.

In compliance to this, Globex India approached the IBA on October 18, 2017 under Form III
of the Biological Diversity Rules.87

Rule 18 of the Biological Diversity Rules88 lays down the procedure for seeking prior
approval before applying for intellectual property protection. After due evaluation of the facts
presented and the additional information collected, the application is decided on merits. 89
Once the Authority is satisfied that all the necessary requirements have been fulfilled, it may
grant the patent in a written form duly signed by an authorized officer and the applicant. In
case the authority rejects the application, it can do so, after recording the reasons and granting
the applicant an opportunity to be heard.90Globex India’s application was rejected on
December 20, 2017, on the day it was given a hearing to bring forth its grievances. 91 The
grounds on which the application was rejected are:

a. MappiaFoetida, through which the invention is made is a rare and endangered species.
b. The medicinal properties are further identified to be a part of the Traditional
Knowledge of the local dwellers in the Shola Region.

Conservation efforts in relation to plant genetic resources are usually covered by the concept
of Germplasm Conservation, which refers to the source of the genetic potential of living
organisms.92

85
Biological Diversity Act,Cl. 1, Section 6, No. 18 of 2003, Acts of Parliament, 2002, India.
86
Moot Proposition, Annexure 3, Pg. 21.
87
Biological Diversity Rules, Sub-rule 1, Rule 18, GSR 261 (E),(MoEF, India).
88
Id.
89
Biological Diversity Rules, Sub-rule 3, Rule 18, GSR 261 (E),(MoEF, India).
90
Biological Diversity Rules, Sub-rule 6, Rule 18, GSR 261 (E),(MoEF, India).
91
Moot Proposition, pg. 6.
92
Garrison Wilkes, Strategies for Sustaining Crop Germplasm Preservation, Enhancement, and Use,
Vol.iv,(1992)
It is contended that there exists a duty on the Central Government for conservation and
promotion of biological diversity in the form of in situ and ex situ conservation93 which is
also manifested in the Convention on Biological Diversity.94Ex situ conservation, literally
meaning ‘off-site conservation’,95 is defined as conservation of components outside their
natural habitat.96

The petitioner contends that granting of the patent will not lead to deterioration of the
availability of MappiaFoetida as Globex India will ensure private cultivation of the plant by
way of micropropagation or in vitro fertilisation.

Secondly, to be eligible for a lawfully obtained patent, the NUN test is put into
consideration.97 It requires that the patent has the concept of novelty (new requirement),
utility (industrial application) and non-obviousness (inventive step).98

a. Novelty

Novelty in respect of eligibility to patent is relative to existing knowledge.99 It includes prior

specifications, patents, printed and published material related to the invention. An invention
is not novel if it was anticipated in the light of prior art.100

In the present case, the knowledge which the people of the Shola Community had, was only
of the medicinal properties of MappiaFoetida101 and not of the novel compound
Camptothecin for which the patent application was primarily presented. Foetida is only the
raw material which is transformed to a finished product with various chemical process.102

The apex court has also observed that once there is a change of the substance from the forest
produce, either by human labour or otherwise, character and properties of the forest produce
ceases.103

93
Biological Diversity Act, Clause 1, Section 36, No. 18 of 2003, Acts of Parliament, 2002, India.
94
The Convention on Biological Diversity, Article 9, 1993-12-29,(1760 UNTS 79)
95
Centre for Environmental Law v. Union of India, 2013 8 SCC 234.
96
Biological Diversity Act,Sub Clause(a), Clause 1, Section 36, No. 18 of 2003, Acts of Parliament, 2002,
India.
97
Biswanath Prasad RadheyShyam v. Hindustan Metal Industries (1979) 2 S.C.C. 511(India).
98
Id.
99
P. Narayanan, Patent Law,(4 ed. 2010).
100
Id.
101
Moot Proposition, pg. 6.
102
Conservator of Forests v. Dabur Pharma Ltd., 2011 SCC OnLine Cal 2714(India). GEORGI IS IT
CORRECT??
103
Suresh Lohiya v. State of Maharashtra, (1996) 10 SCC 397(India).
Therefore, it is evident that the product undergoes a chemical change and according to
science, when there is a chemical change, the ingredients used in the process lose its
character and transformed into a different component altogether. This is the well-known
difference between physical change and chemical change. Physical change can be brought
about easily and at the same time, the original material can also be brought back easily, but it
is not possible in the case of chemical change.

Hence, Camptothecin does not retain any original properties of the plant, thereby making it a
novel compound which cannot be synthesized by the local communities of the Shola Tribes
due to their lack of biotechnology and various other resources.

b. Utility

Utility or usefulness of a patent needs to be large scale and capable of industrial application.
Industrial application has been construed to mean economic significance.104 In the present
matter, the compound Camtothecin had anti-tumour properties which can be used to treat the
diseases prevalent in the society. Globex India’s intention to commercially105 exploit the
invention which can be a boon to cancer patients indicates that they can contribute
significantly to the medical industry.

c. Non-obviousness

Non- obviousness pertains to such an inventive step106 in an already existing knowledge set
that it becomes unanticipated by a person having ordinary skill in the art107 to which it
relates.108 The research methodology employed by Globex India included development
through methods in biotechnology including genetic manipulation,109 thereby making the
compound Camptothecin not obvious to the communities.

The two features necessary to the validity of a patent are novelty and utility, but the real test
is the novelty of the invention. Novelty is essential, for otherwise there would be no benefit

104
Council for Scientific and Industrial Research v. Hindustan Lever Limited., 2015 SCC Online IPAB
107(India).
105
Moot Proposition, Annexure 5, pg. 32.
106
Sub-clause (ja), Clause 1, Section 2, Pat ents Act, No. 39 of 1970, Acts of Parliament, 1970, India.
107
Id.
108
Bilcare Limites v. Amartara Private Limited, MIPR 2007 (2) 42 (India).
109
Moot Proposition, Annexure 2, pg. 16.
given to the public and consequently no consideration moving from the patentee.110Therefore,
the grounds on which the patent application was rejected were arbitrary and bad in law.

[1.2] Rejection of the patent application will extinguish the right of the petitioners to
obtain a patent for their novel invention.
Under the Patents Act 1970111 and also the TRIPS Agreement112, a valid patent is any
invention that is novel or new. Newness is fulfilled when the patented matter has not been
publicly known113 prior to the grant of the patent. Camptothecin passes the test of novelty as
its usage has not existed as prior art. Prior art is any documented knowledge available to the
public domain114, provided it is embodied in a physical, tangible form.115 The Shola
Community has only alleged that the composition developed by Globex India is based on
their traditional knowledge. The compound in its final form capable of being an end product
is not embodied in physical form. Therefore, it does not qualify as prior art, thereby
establishing novelty and entitling the petitioners for a right to patent.

Moreover, Camptothecin or even MappiaFoetida is not the Intellectual Property of Shola

Tribe. The definition of Intellectual Property as given by WIPO is an idea that is tangible, 116
which becomes valuable in tangible form as a product.117 The ‘tangibility’ of the product
gives it the effect of and protection as intellectual property.118 Clearly, mere cultural practice
of using medicinal properties of MappiaFoetida119 does not make it an intellectual property,
until it is embodied or documented in physical forms. As is, Traditional Knowledge has not
been given the status of intellectual property by eminent jurists120 and in State practice,121 and
therefore the Shola Tribes have no property rights over the usage of MappiaFoetida.

110
LallubhaiChakubhai Jariwala v ChimanlalChunilal and Co,, AIR 1936 Bom 99( India)
111
Section 2(j), Patents Act, No. 39 of 1970, Acts of Parliament, 1970, India.
112
Trade Related Aspects of Intellectual Property Rights (TRIPs) Agreement, Art. 27(1),1-01-1995(1869 UNTS
299 33 I.L.M. 1197)
113
J. Thomas McCarthy, Melville B. Nimmer ,The Right of Publicity: A Tribute, 34 U.C.L.A. L. Rev. 1703,
1711 (1987).
114
Suzanne Scotchmer, Standing on the Shoulders of Giants: Cumulative Research and the Patent Law, 5 J.
ECON. PERSP. 29-41(1991).
115
David Vaver, Intellectual Property Law: Copyright Patents Trade-Marks, 2d ed.,(2-1-2011 at p. 321).
116
Theberge v. Galeried’Art du Petit Champlain, (2002)4 SCC 34(India).
117
Intellectual Property: A Power Tool for Economic Growth, W.I.P.O. PUBLICATION NO 888) p. 10-11.
118
James Boyle, The Second Enclosure Movement and the Construction of the Public Domain, 66 Law &
Contemp. Probs. 33, 69 (Winter/Spring 2003); James Boyle, Foreword: The Opposite of Property?, 66 Law &
Contemp. Probs. 1 (Winter/Spring 2003)
119
Moot Proposition, pg. 6.
120
James Boyle, A Manifesto on WIPO and the Future of Intellectual Property, 2004 DUKE L. & TECH. Rev.
0009,11.
Section 3(d) of the Patents Act122 excludes known substances from being patented unless
there is an enhancement of a known efficacy. As formulated by the apex court, a test of
efficacy ideally depends on the function, utility, or purpose of the product under
consideration. Therefore, for a medicine claiming to cure a disease, “therapeutic efficacy”
can be the only test applied.123
The counsel for the petitioner124 argued that a new product in chemicals and especially
pharmaceuticals may not necessarily mean something altogether new or completely
unfamiliar or strange or not existing before. It may mean something ‘different from a recent
previous’ product or a product regarded ‘regarded as better than what went before’ or a
product which is ‘in addition to another or others of the same kind’. Thus, in the case of
pharmaceuticals, if the product for which patent protection is claimed is a new form of a
known substance with known efficacy, then the subject product must pass in addition to the
test of invention provided in Sections 2(1)(j) and (ja), the test of enhanced efficacy as
provided in Section 3(d) read with its explanation.

In the present matter, before beginning research into MappiaFoetida, the only knowledge
Globex India had was that the plant possessed multiple pharmacological properties which
were used in traditional medicine.125 The tribes of the Shola forest also claimed that they used
the plant for curing chronic ailments. However, Globex India invented a compound with
specifically anti-tumour properties from the original plant. This amounts to enhanced
efficacy, thereby making Globex India entitled to a patent. Additionally, it is contended that
the communities of the Shola Tribe are also not entitled to joint ownership of the Intellectual
Property Rights in accordance with the Biological Diversity Act,126 as, while granting access
under section 19127 to the petitioner company, the IBA identified themselves as the benefit
claimers,128 and not the local communities.

Therefore, it is humbly submitted before this Hon’ble High Court that the object of Patent
Law is to encourage scientific research, new technology and industrial progress and its
fundamental principle is that a patent is granted only for an invention which must be new and

121
WIPO Doc. WIPO/GRTKF/IC/2/6: Progress Report on the Status of Traditional Knowledge as Prior Art, ¶ 3
REPORT??
122
Clause d, Section 3, Patents Act, No. 39 of 1970, Acts of Parliament, 1970, India.
123
Novartis AG v. Union of India, 2012 6 SCC 1(India).
124
Id.
125
Moot proposition, Annexure 2, pg. 15.
126
Biological Diversity Act, Section 21,Sub cl. a. Cl. 2, No. 18 of 2003, Acts of Parliament, 2002, India.
127
Biological Diversity Act, Section 19, No. 18 of 2003, Acts of Parliament, 2002, India.
128
Moot proposition, Annexure 3, pg. 28.
useful, that is, have novelty and utility.129 As already proved, Globex India has satisfied all
the tests and therefore possess the right to receive a patent for their novel invention.
Incentives like patent are important for industrial advancement and research and should not
be held back on unjustified grounds.

4. Does the impugned order dated December 21, 2017 for the unilateral revocation of the
agreement amount to violation of India`s obligation under the IGBIT with Germany.
It is humbly submitted before this honourable High court that the unilateral revocation of the
agreement does amount to violation of India`s obligations under the IGBIT with Germany.
Principles of treaty obligation are internationally established as pacta sunt sevanda.130 Every
treaty in force131 is binding upon the parties to it 132and constitutes an
internationalobligations.133Treaty obligations must be performed by the parties in good
faith.134 Moreover The essence of the Bilateral Investment Treaty135 lies in cooperation
between the State parties.

It is contended that India has violated its international obligations by breaching the Bilateral
Investment Treaty (“BIT”) by revoking the access and benefit sharing agreement. Breach of
the treaty is imputed as [4.1] India has caused huge commercial loss to Globex India, due to
which [4.2] India has violated its obligations contained in the treaty. Wherefore [4.3] India
has violated its international obligations.

[4.1] India has caused huge commercial loss to Globex India.

The investments made by Globex India are protected under the IGBIT between Germany and
India, the revocation of the ABS Agreement unilaterally, had caused huge commercial loss to
Globex India as they had made significant investment in the research and development of the
new compound136, and constitutes a breach of the agreement, thereby violating India`s
obligations under the IGBIT. India by revoking the access and benefit sharing agreement has

129
Bishwanath Prasad Radhey Shyam v. Hindustan Metal Industries, 1979 2 SCC 511(India).
130
Vienna Convention on Law of Treaties, Jan 27, 1980, 1155 U.N.T.S. 331
131
Nicaragua v. United States of America, Merits, I.C.J. Reports (1986).
132
Fitzmaurice G., The Law and Procedure of the International Court of Justice 1951 , 4 ,Treaty Interpretation
and Other Treaty Points, (1957),
133
Articles of State Responsibility for Internationally Wrongful Acts, art. 55.3 (2001).
134
Virally M., Review Essay: Good Faith in Public International Law, Cambridge University Press, The
American Journal of Int’l Law, Vol. 77, No. 1 (Jan., 1983); United Nations Session International Law
Commission, Yearbook of the International Law Commission 1998: Summary Records, Vol. 1, 50th Session
(Apr.20 – Jun. 12 1998 & Jul. 27-Aug. 14 1998), U.N. Doc., 2000. IS THIS VIENNA CONVENTION
PREAMBLE PRITHA??
135
Vienna Convention on the Law of Treaties,Article 18, 25, 27-01-1980, (U.N.T.S. 331).
136
Moot Proposition.
caused significant harm to Globex India. Such harm constitutes a composite breach 137of the
BTC Treaty as [4.1.1] the revocation was also arbitrary and [4.1.2] The harvesting is
necessary to promote public health.
[4.1.1]The revocation of Access and Benefit sharing agreement was arbitrary.
Sovereign control is underpinned by the requirements of prior informed consent (PIC) and
mutually agreed terms (MAT).138 There is an obligation on users to share benefits139 and on
providers to avoid restricting access.140The Nagoya protocol also Provides for fair and non-
arbitrary rules and procedures on accessing genetic resources. 141The revocation of the access
and benefit sharing agreement was arbitrary and bad in law. Article 7 of the Access and
Benefit sharing agreement142 is on the termination and revocation of the agreement. Clause
7.1 which deals with termination of the agreement on completion of the period, stands ousted
as the agreement did not complete its span. Clause 7.4 permits the IBA to revoke the
agreement in case of occurrence of any conditions mentioned in Rule 15 of the Biodiversity
Rules of 2004 143or if any other clauses in the rules are breached. According to Clause 7, 144
the grounds for revocation are on the reasonable belief that the person to whom the approval
was granted has violated the provisions of the Biodiversity Act or the condition on which the
approval was granted was breached. The above clauses stand unmerited as Globex India
complied with all the articles of the access and benefit sharing agreement. Moreover [4.1.2]
The harvesting is necessary to promote public health.

[4.1.2] The harvesting is necessary to promote public health.

Additionally, another ground for revoking the Access and Benefit sharing agreement was on
grounds of overriding public interest or for protection of environment and conservation of
biological diversity.145Further, measures taken to ensure public health can generally limit
Covenant rights, if aimed at preventing a disease.146Cancer is a major public health issue and
one of the most common causes of morbidity and mortality worldwide.147Cancer is the

137
Roberto Ago, Fifth Report on State Responsibility Vol. II, 1-01-1988 at p. 23(1988)
138
The Convention on Biological Diversity, Article 15.4,Article 15.5, 1993-12-29,(1760 UNTS 79).
139
The Convention on Biological Diversity, Article 15.7, 1993-12-29,(1760 UNTS 79)
140
The Convention on Biological Diversity, Article 15.2, 1993-12-29,(1760 UNTS 79)
141
Nagoya Protocol, article 6, 12-09-2014,(UNTS NO)
142
Annexure III
143
Biological Diversity Rules, Rule 15, GSR 261 (E),(MoEF, India).
144
Annexure III
145
Annexure VIII
146
UNHRC, ‘The Siracusa Principles on the Limitation and Derogation Provisions in the ICCPR’ (1984)
E/CN.4/1985/4 ¶25 [“Siracusa Principles”]. PRITHA U HAVE NOT CHANGED THIS
147
https://www.ncbi.nlm.nih.gov/pmc/articles/PMC1994799/
 second leading cause of death globally, and is responsible for an estimated 9.6 million deaths
in 2018. Through the adaption of the TRIPS Agreement, it became generally accepted that
pharmaceutical products cannot be regarded as an ordinary good. Drugs play a significant
social role as far as they are an integral part of the realization of a fundamental right, the right
to health. The UDHR recognized medical care to be an important part of achieving a
“standard living adequate for the health”148 for oneself.

Researchers have investigated different geographical locations across India to find out high
CPT yield through clonal propagation and vegetative reproduction without leading to further
endangering of the plant.149Moreover it is also contended by the petitioners that to meet the
demand for CPT in pharmaceutical industry and also to conserve N. nimmoniana population,
several harvesting strategies are being employed. 150One of the approaches is to develop a
strategy for large scale propagation of the plant without affecting natural resources151.
Moreover,[4.1.1.A]the harvesting is for scientific purposes [4.1.1B] in accordance with
sustainable development.
[4.1.1.A]Moreover alternatively, the harvesting is for scientific purposes.
The term ‘scientific purposes’ has not been defined by the CMS.152Globex India can claim a
narrow interpretation of this term, relying on the Whaling153judgement. However, in Whaling,
the International Convention for the Regulation of Whaling prescribed specific exemptions
‘for the purposes of scientific research.’154 On the contrary, the CMS grants an exemption for
‘scientific purposes’.155 States allow the use of animals and plants for scientific purposes, if
in pursuance of the production of biological products, 156 such as medicines.157Further, the
WHO encourages research and development in traditional medicine.158 The WHO Beijing

148
UDHR , Art.25 ,10 December 1948 ,http://www.un.org/en/udhrbook/pdf/udhr_booklet_en_web.pdf
149
https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3686192
150
https://ijlssr.com/currentissue/Production_of_Camptothecin_from_Nothapodytes_nimmoniana_An_Overview
.pdf .

152
Convention for Conservation of Migratory Species, Art. 11, 23-06-1979,(1651 UNTS 333)
153
Australia v. Japan, ,2014 I.C.J. Rep. 226 (ICJ)
154
Id.
155
Convention for Conservation of Migratory Species, Art. 3,Clause iii, Sub Clause 5, 23 -06-1979, (1651 UNTS
333)
156
157
WHO Expert Committee on Biological Standardization’ WHO Technical Report Series 963 , 2013 , 60th
Edition
158
WHO, ‘Global Strategy on Public Health, Innovation and Intellectual Property’ [2008] [37] ¶26 (1.3) <
http://www.wpro.who.int/health_research/policy_documents/global_strategy_may2008.pdf >.
 Declaration states expressly that traditional knowledge relating to medicinal use should be
further scientifically developed for public benefit.159

States may allow for cultivation of species if ‘extraordinary circumstances so require’. 160
‘Extraordinary circumstances’ has not been defined in the CMS161 or by its Conference of
Parties.162 This exemption has been availed in ‘national interest163 and may be relied upon if
the State has no satisfactory alternative.164 Cancer is almost spreading like an ‘epidemic ‘and
lack of access to effective medication is considered a global problem.165

[4.1.1.B] The harvesting is in accordance with sustainable development.

Sustainable development is not a customary principle166 but as a concept under general
international law.167 It expresses the need to reconcile economic development with protection
of the environment.168 Ensuring health and well-being of its people is essential to the
sustainable development of a State.169 Agenda 21, the global plan of action resulting from the
United Nations Conference on Environment and Development (UNCED) of 1992, stressed
the critical function of investment for sustainable and environmentally friendly economic
growth of developing countries.170

159
WHO, ‘Beijing Declaration’ (2008) <
https://www.who.int/medicines/areas/traditional/congress/beijing_declaration/en/ > PRITHA THIS HAS
NOT BEEN CHANGED

160
Convention for Conservation of Migratory Species, Art. 3,Sub Clause 5, 23-06-1979, ( 1651 UNTS 333)
161
Convention for Conservation of Migratory Species, Art. 2, 23-06-1979, ( 1651 UNTS 333)
162
CMS, ‘Draft Best Practice Guidelines to Aid the Implementation of CMS Resolution 11.22 on the Live
Capture of Cetaceans from the Wild for Commercial Purposes’, 4. NOT CHANGED
163
CMS (National Legislation Inventories), Implementation of Articles III.4 and III.5- Australia, <
https://www.cms.int/sites/default/files/document/Australia_cms_nlpi.pdf >. NOT CHANGED
164
Arie Trouwborst, ‘Aussie Jaws and International Laws: The Australian Shark Cull and the Convention on
Migratory Species’ 2 Cornell International Law Journal Online, 44.
165
World Health Organization, ‘The selection and use of essential medicines’ , WHO Technical Report series;
no. 1006, 378,(2017)
166
V. Lowe, ‘Sustainable Development and Unsustainable Arguments’ in A. Boyle and D. Freestone,
International Law and Sustainable Development: Past Achievements and Future Challenges (Oxford Uni. Press,
1999) 36.

167
Belgium v. Netherlands ,2005, ICGJ 373, Para. 59 IS THIS A JOURNAL OR A CASE BECAUSE IT
SAYS PARA NO.
168
Hungary v slovakia ,1997, ICJ Rep 7.( COUNTRY)
169
UNGA , ‘Transforming our world: the 2030 Agenda for Sustainable Development’ , UN Doc. A/RES/70/1,
goal 3 , (2015)
170
Agenda 21: Programme of Action for Sustainable Development, Report of the UNCED, vol. U.N. GAOR,
46th Sess., Agenda Item 21, UN Doc A/Conf.151/6/Rev.1 31 I.L.M. 874 at para. 2.23,(1992) GEORGINA
CHECK THIS ONCE
Under the principle of equitably utilizing shared resources, the interests of the other State and
the environmental protection of the resource must be taken into account,171Globex India has
consistently cooperated with India by adhering with the IBA rules and regulations and taking
into consideration their objections.

[4.2] India has violated its obligations contained in the treaty.

The Vienna Convention on Law of Treaties (“VCLT”) is the primary source of interpretation
employed by majority tribunals. The VCLT occupies foremost position in this regard –
providing that “a treaty shall be interpreted in good faith, in accordance with the ordinary
meaning to be given to the terms of the treaty in their context and in light of its object and
purpose,” 172which has been held as the most important backcloth against which the meaning
of any particular treaty provision should be measured. 173

It has been found that the concept of legitimate expectation relates to a situation where a
Contracting Party´s conduct creates a reasonable and justifiable expectations ,such that a
failure to honour those could cause the investor (or investment) to suffer damages. 174The
IGBIT stands for the protection and promotion of investment in India and Germany. 175 The
basic premise is that the government will not put the investors and their investments to risks
which are either unreasonable or inappropriate. The‘ favourable conditions’ established by
BITs more significantly mean an effective normative framework with impartial courts and
the measures of transparency ,176 which they failed to do by not even giving a hearing to
Globex India before the revocation of the agreement .177

Moreover the only restrictions imposed on the IGBIT 178were also not adhered to as [4.2.1]
Security Interests Of India Were Not Violated and [4.2.2]MappiaFoetida Was Not Spreading
Diseases And Pests In Animals And Plants.

171
Argentina v. Uruguay ,[2006] ICJ Rep 113.
172
Vienna Convention on The Law of Treaties, Art. 31, Jan 27, 1980, 1151 U.N.T.S. 331
173
Malcolm N.Shaw ,International Law, Pg 33,(6th ed., 25 October, 2008) .

172 International Thunderbird Gaming v. The United Mexican State , IIC 136 (2006) (
COUNTRY)
175
Annexure I
176
Andrew Paul Newcombe, LluísParadell, Law and Practice of Investment Treaties: Standards of Treatment,
Pg. 220,( 4th ed., 2009)
177
Moot Proposition.
178
Article 12 , IGBIT .
[4.2.1] Security Interests Of India Were Not Violated.
Deviations from the treaty are only in situations of ‘essential security interest’ or in
‘circumstances of extreme emergency’. In other words, deviation from treaty obligations is
allowed only in situations of high threshold. 179
In this case it is evident that a growing agitation was not a circumstance of extreme
emergency for India and a ground for it to deviate from the treaty considering that the Indian
government had only found prima facie merits in the demand of the local community180 and
did not conduct a detailed investigation .

[4.2.2] MappiaFoetida Was Not Spreading Diseases And Pests In Animals And Plants.
There are contemporary processes that impact the spread of infectious animal and plant
diseases. 181The first is climate change , the second is globalization .None of these are
prevalent in the current factual situation, rather the plant was a novel resource for bioactive
products with anti-cancer and anti - tumour properties and it was working for the benefit of
the world community at large in battling cancer. 182

[4.3] India has violated its customary international laws

The Gabcikovo-Nagymaros183 and shrimp-turtle case show , a treaty may also have to be
interpreted and applied in the light of customary international law . 184Cancer is the second
leading cause of death worldwide. 185 The discovery of medicinally important herbs and their
mechanism of action would provide an alternative and effective treatment towards the cancer
prevention. 186Moreover [4.2.1] The relevant articles of the Vienna Convention are violated.

[4.2.1]The relevant articles of the Vienna Convention are violated.

The Vienna Convention mandates that a State is obliged to refrain from acts which would
defeat the object and purpose of a treaty when it has signed the treaty or has exchanged
instruments constituting the treaty ratification, and still fails in implementing it or not fulfil
the basic essentials of it .187 “ Pacta Sunt Servanda ” mandates that treaties in force is binding

179
Mary E Footer, Julia Schmidt, Nigel D , Security and International Law , Pg. 45,(1st ed. 2011)
180
Moot Proposition.
181
https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3130394/
182
Moot Proposition.
183
ICJ GL No 92
184
General Agreements on Tariff and Trades, Article III (4), 1994-04-15, (1867 U.N.T.S. 187)
185
https://www.who.int/news-room/fact-sheets/detail/cancer
186
https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4160808/ IS THIS AUTHENTIC
187
Vienna Convention on The Law of Treaties, Art. 18, 23-05-1969,(vol. 1155, p. 331 )
upon the parties to it and must be performed by them in good faith.188Moreover a party
cannot invoke its internal laws as a ground , for failure to perform the treaty .189
The Vienna Convention also states that a material breach of a bilateral treaty is a ground for
terminating the treaty or suspending its operation in whole or in part.190A material breach of
treaty is a major breach which seriously impairs the treaty as a whole and which defeats the
purpose of it.191
The main reason for the formulation of the IGBIT Treaty was for the promotion and
protection of investments by companies in each other`s state.192Globex Healthcare, a German
multinational marketing in India with the subsidiary called Globex India Private Limited is
only with the aim of fostering greater investments and developing their pharmaceutical
products. Hence, when the basic objective of their establishment is defeated, the object and
purpose of the treaty would stand redundant.
Therefore it is humbly submitted before this honourable High court that the revocation of the
ABS agreement did amount to violation of India`s obligation under the IGBIT .

5) Whether Globex India can claim damages for loss due to unilateral revocation of
contract and early withdrawal of Access?
It is humbly submitted before this honourable High court that Globex India can claim
damages for the revocation of the contract .An internationally wrongful act is committed by a
State when a conduct consisting of an action or omission is attributable to that State under
international law193; and that conduct constitutes a breach of an international obligation of
that State.194

The incident of revocation of the ABS agreement has caused irreparable harms to Globex
India due to their huge investments in the development of the novel compound 195.It is also
contended that [5.1] The revocation of the ABS agreement caused losses to GlobexIndia ,
hence [5.2] The Republic of India is liable to pay damages for losses to Globex India .

188
Vienna Convention on The Law of Treaties, Art. 26, 23-05-1969,(vol. 1155, p. 331 ).
189
Vienna Convention on The Law of Treaties, Art. 27, 23-05-1969,(vol. 1155, p. 331 )
190
Vienna Convention on The Law of Treaties, Art. 60, 23-05-1969,(vol. 1155, p. 331 )
191
https://treaties.un.org/doc/publication/unts/volume%201155/volume-1155-i-18232-english.pdf
192
Article 3, IGBIT( Indo German Bilateral Investment Treaty), Pg no.
193
Art. 2, I.L.C. Draft Articles on Responsibility of States for Internationally Wrongful Acts
194
The I.L.C.'s Draft Articles on State Responsibility: Toward Completion of a Second Reading, 94 A.J.I.L. 660
(2000)
195
Moot Proposition.
[5.1] The revocation of the ABS agreement caused losses to GlobexIndia .
Access to genetic resources should be on ‘mutually agreed terms’ and should incorporate the
principles of ‘prior informed consent’ of the resource provider. 196 The CBD also mandates
that every contracting party shall make efforts to develop and carry out scientific research
based on genetic resources.197GlobexIndia , had gained access to the biological resources to
conduct research and development through various methods in biotechnology including
genetic manipulation . It was known to have medicinal properties but the potential of the
same was unknown .198Hence, the main intention behind conducting this research was to
ascertain the potency of these medicinal properties , and if any new discovery is deciphered
in this process, the commercial exploitation of this was also implied , along with the
acquisition of IPR for the same .199

Based on their preliminary research , it was comprehended that the potential of

MappiaFoetida is capable of providing curative benefits . Moreover , their research also led to
the extraction of the novel compound ‘ camptothecin’ which had an anti-tumour property
and could be used to cure cancer in children .200 Therefore , it was evident that Globex India
had made significant investments in the development and commercial viability of
MappiaFoetida ,and the early withdrawal of its access did cause “ huge commercial loss” to
them as the primary reason for access to ‘mappiafoetida’ was commercial utilization 201 ,
withdrawal of which left them without the option of trading and making good their
investments spent on research . It is contended that Republic of India is responsible for
causing this harm and injury202 to the Federal Republic of Germany , due to its
internationally wrongful acts leading up to the withdrawal of access and revocation of the
agreement .

The grounds for the claimed damages are [5.1.A] Early withdrawal of the access and benefit
sharing agreement and [5.1.B] Unilateral revocation of the contract

[5.1.A] Early withdrawal of the Access and Benefit sharing agreement

Repudiatory breach is one of the underlining principles to terminate a contract validly. It
simply means a contravention of a stipulated situation which goes so much into the root of
196
The Convention on Biological Diversity, Article 15 , 1993-12-29,(1760 UNTS 79)
197
The Convention on Biological Diversity, Article 15, 1993-12-29,(1760 UNTS 79)
198
Moot Proposition.
199
Annexure 2
200
https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3815406/
201
Annexure 3
202
the contract that it makes further commercial performance of a contract impossible.203 It is
also admitted that noncompliance of the procedure may lead to damages being imposed for
wrongful termination of contract.204The IBA granted an approval for access to Globex India
on July 4, 2016 for a period of three years for the research and commercial exploitation of
MappiaFoetida205 , however , revoked it in less than 2 years which left the subsidiary with
huge losses and made their entire research futile. Though the local community had traditional
knowledge about the immunity boosting of mappiafoetida ,Globex India provided curative
benefits for the same . 206Hence , the contravention of the agreement lead to impossibility of
the further completion of the pharmaceutical project taken up by the subsidiary due to the
revocation of access to their principal plant .

[5.1.B] Unilateral revocation of the contract .

Termination of contract is generally subjected to the principles of natural justice and must be
done in fair and reasonable manner as the termination is also subjected to principles of
natural justice.207In this case India had proceeded with an unilateral revocation of the contract
without giving Globex India a prior hearing to present their defending arguments . Although
Globex India was given a hearing at the IBA office on December 21, 2017 to pray for the
granting of the Patent application , it is contended that the ABS agreement was concluded
based on the prima facie merit of the demands of the local community , a protest by the
dwellers living in and around the Shola forests . 208This was an evident breach of the
principle of natural justice , wherein - “audi alteram partem ” was denied to Globex India .

[5.2] The Republic of India is liable to pay damages for losses to GlobexIndia .
India had caused significant investment harm to Globex India by revoking the ABS
agreement . As a general rule of international law, an injured state or party has the requisite
locus to invoke responsibility of another state 209 and consequently claim from it a formal
redressal of any form.210 This includes the redressal of reparations, which extends to
compensation of a monetary character.211 Hence, it is undisputed in international law that

203
VIACOM 18 Media Pvt. Ltd. v.MSM Discovery Pvt. Ltd., 2011, 2 CompLJ 658 (Del)( India). CHECK
204
State of Madhya Pradesh v.M/s. Recondo Limited, 1972 AIR 1507(India).
205
Moot Proposition.
206
Moot Proposition.
207
Hindustan Petroleum Corp. Ltd. v.Super Highway Services, (2010) 3 SCC 321(India).
208
Moot Proposition.
209
ASR, art 42.
210
ASR, art 34.
211
Germany v Poland, 1927, PCIJ Ser. A No 9 Para 66. IS THIS A CASE OR WHAT, BECAUSE IT
MENTIONS PAGE NO.
Globex India can claim compensation corresponding to the damage which its nationals have
suffered, as a result of internationally wrongful acts committed by the IBA .212

India is required to compensate for losses to Globex India as per the [5.2.A] Section 73 of the
Indian Contract Act and [5.2.B] Relevant articles of the Indo- German Bilateral Treaty .-
SHOULD I CHANGE THE NUMBERING OF THE ISSSUES AND PUT B BEFORE
A?

[5.2.A] Section 73 of the Indian Contract Act

When it has been determined that a particular party is entitled to compensation, section 73 of
the Contract Act is applied.213 According to this section, as a result of a broken contract, the
party who suffers by such breach is entitled to receive, from the party who has broken the
contract, compensation for any loss or damage caused to him thereby, which naturally arose
in the usual course of things from such a breach, or which the parties knew, when they made
a contract, to be likely to result from such a breach. Such compensation, according to this
section, is not to be given for any remote and indirect loss or damage sustained by reason of
the breach.214Section 73 and various decided cases clearly provide that knowledge of
circumstances leading to loss of profits to the plaintiff imposes liability on the defendant.215
[5.2.B] Relevant articles of the Indo- German Bilateral Treaty.
The IGBIT mandates that whenever one contracting party, whose investments are in the
territory of the other contracting party suffers losses owing to armed conflict , national
emergency or civil disturbances , they’ll be accorded compensation , restitution or
indemnification or any other form of settlement for damages incurred due to their losses. 216

The ABS agreement was revoked on grounds of “ growing agitation ” and protests by
dwellers living in and around the Shola forest 217which could have turned out to be a civil
disturbance in India . There have been numerous instances in India when an agitation for a
trivial issue spurred into a violent communal disturbance resulting to disharmony throughout
the state .218In speculation of such a disturbance igniting disruptions throughout the country ,

213
B.V.R. Sarma, Research Paper,Adjudication of claim for damages under Sections 73, 74 and 75 of Indian
Contract Act, 1872 ,(2011).
214
Avatar Singh, Contract and Special Relief, Pg. No. 215, (12th Edition, 2017)
215
Hadley v. Baxendale,1854 EWHC J70 (COUNTRY)
216
Article 6, IGBIT ( Indo German Bilateral Investment Treaty)
217
Moot Proposition.
218
Romila Thapar v. UOI , (2018) 10 SCC 753( India).
the ABS agreement was coherently revoked and dismissed. Therefore it is humbly submitted
before this honourable High court that Globex India on all these grounds can claim damages
for losses suffered by them due to revocation of the access and benefit sharing agreement .