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2 A few salient facts of the case for the purposes of assessing the merits of the jurisdiction issue may be noted as follows :

2.1. The Petitioner, M3NERGY SDN.BHD., is a company incorporated under the laws of Malaysia, having technical expertise in management of offshore exploration and production of oil & gas ('M3NERGY'). Respondent No.1, Hindustan Petroleum Corporation Ltd., is an Indian company incorporated under the provisions of the Companies Act, 1956 engaged in the business of oil refining and marketing ('HPCL'). Respondent No.2, Prize Petroleum Company Ltd., is a joint venture in which HPCL has 50% stake, incorporated under the Companies Act, 1956 ('Prize').
2.2 On 27 December 2004, Oil and Natural Gas Commission ('ONGC') invited tenders for development of offshore marginal field cluster-7 known as "OMFC-7" ('Project').


2.3     M3NERGY, along with HPCL and Prize, entered into a Memorandum





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of Understanding on 29 June 2005 ('MOU') for submitting a bid for the project as a consortium. The MOU defined respective roles and responsibilities of the parties in case the project were to be awarded to the consortium. The MOU stipulated initial participating interest of Prize, HPCL and M3NERGY in the proportion of 10:60:30 and execution of contract jointly by Prize and M3NERGY. The MOU envisaged management of the contract through Integrated Project Management Team ('IPMT'), and defined the respective roles of the parties in IPMT.
"That since these documents are integral part of the JEA, the MC members agreed that these documents will automatically get adopted upon signing of the JEA by the MC members."

On 16 August 2007, Prize addressed an email to MC members with a request to change 71% vote at MC level which was part of the initialled JEA. By their reply dated 17 August 2007, M3NERGY objected to this change reiterating the underlying reason for adopting 71% vote at MC level and asserting that there was a strong basis for adopting this voting principle. By their letter dated 12 December 2007, M3NERGY wrote to ONGC about the deliberations in MC meeting, indicating that JEA to be finalised would reflect the roles of consortium partners in the project on the lines of the MOU. On 17 January 2008, M3NERGY addressed a letter to HPCL that the agreement laid out in the MOU between the consortium members was paramount and fundamental to finalisation and acceptance sat 10/21 arbp 548-2014.doc of the JEA; the terms of MOU could alone form the foundation of the partnership and the basis for M3NERGY's participation in the service contract. M3NERGY, in the premises, requested HPCL to respect the agreed terms of the MOU and explicitly restate the same in the JEA. M3NERGY signed-off by stating that after receipt of confirmation of partners' agreement on the position expressed by it, it would initial and sign a copy of the finalised JEA. By their letter dated 4 February 2008, M3NERGY reiterated its commitment to development of Cluster-7 and sent to HPCL four originals of JEA initialled and signed by it for the latter's approval and submission to ONGC. Apropos of this letter of 4 February 2008, HPCL by its letter dated 3 April 2008, wrote to M3NERGY as follows:

"This article was sought to be modified by HPCL to bring it in line with the provisions of the Indian Arbitration & Conciliation Act, 1996 and after deliberation, this was accepted by the partners".

As regards finalization of roles & responsibility matrix, the minutes record a consensus that Prize and HPCL would propose a revised matrix with justification for the proposed changes and the members agreed to take this up on priority. The discussion on this item ends with a request on the part of the Chairman to M3NERGY to send their response by April 23, 2008 so that after initialing it, a complete JEA could be submitted to ONGC by April 30, 2008. The minutes, on this item, end by recording that "M3NERGY agreed to do so". The correspondence between the parties ends with the letters exchanged between the parties in the last week of May 2008 where HPCL proposed to M3NERGY that either the JEA initialled at the meetings between 16 and 18 April 2007, or an amended draft of the February 2008 JEA incorporating the Petitioner as a joint executing contractor but reducing the voting percentage at the managing committee's meeting to sat 12/21 arbp 548-2014.doc 60% of the participating interest, should be executed, whilst M3NERGY stuck to its stand that the JEA would have to adhere to the framework of the MOU. That was the position when ONGC addressed its notice of default to the consortium members stating inter alia that they had failed to submit signed JEA by 31 May 2008 as agreed during the meeting of 21 May 2008. This was followed by a second notice of default issued by ONGC on 11 June 2006. After some correspondence between the parties and ONGC inter alia concerning of extension of the time-line and the managing committee meeting held on 1 August 2008, the representative of M3NERGY agreed that M3NERGY would sign the initialled JEA subject to discussions with its management. On 13 August 2008, M3NERGY notified the other consortium members that in the light of insistence of HPCL on Prize being the sole executing contractor, and the decisions of MC having to be made by 60% of participating interest, linking of the issue of voting percentage to that of joint executing contractor and uncertainties in oil and gas exploration, M3NERGY would submit the JEA to its board of directors for approval in the meeting to be convened in the following week. A further meeting was held between the parties on 26 August 2008 but final JEA to be executed between them could not be agreed upon. It was in the backdrop of these events that ONGC issued its termination notice of 4 September 2008, terminating the service contract with the consortium members. Such is the picture emerging from the documentary evidence concerning the jurisdictional facts placed before the arbitral tribunal.