Representative image
Representative image

UK’s Cairn Energy Plc has sued India's flagship carrier Air India to enforce a $1.2 billion arbitration award that it won in a tax dispute against India, according to a US District Court filing reviewed by Reuters.

On May 14, Cairn had filed a lawsuit in the US District Court for the Southern District of New York seeking declaration of Air India as the ''alter ego of Indian government'' by virtue of control and as a state-owned company it "legally indistinct from the state itself", three sources with direct knowledge of the development, PTI said.

Cairn Energy had recently said it is taking all necessary actions to access the $1.7 billion it was awarded by an international arbitration tribunal after overturning a retroactive tax demand slapped by the Indian government.

Sources said the May 14 lawsuit seeks to make Air India liable for discharge of the arbitration award against the Indian government.

What the case is about

The Scottish firm invested in the oil and gas sector in India in 1994 and a decade later it made a huge oil discovery in Rajasthan. In 2006 it listed its Indian assets on the BSE.

Five years after that the government passed retroactive tax law and billed Cairn Rs 10,247 crore plus interest and penalty for the reorganisation tied to the flotation.

The state then expropriated and liquidated Cairn’s remaining shares in the Indian entity, seized dividends and withheld tax refunds to recover a part of the demand.

Cairn challenged the move before an arbitration tribunal in The Hague, which in December awarded it $1.2 billion (over Rs 8,800 crore) plus costs and interest, which totals $1.725 billion (Rs 12,600 crore) as of December 2020.

“In December last year the tribunal established to rule on our claim against the Government of India found in Cairn’s favour and awarded us damages of $1.2 billion plus interest and costs,” Cairn Energy CEO said at company annual shareholders meeting.

This ruling, he said, is binding and enforceable under international treaty law.

“Whilst India has sought to challenge the basis of the award through set-aside proceedings in the Dutch courts, we remain confident of our position and continue constructive engagement with the Government of India whilst at the same time taking all necessary actions to protect our rights to the award and access the value of it as early as possible,” he added.

While he did not elaborate, Cairn had previously threatened to seize overseas assets of state-controlled Indian firms to recover the money due to it.

Finance Minister Nirmala Sitharaman had last month reiterated that international arbitration ruling on India’s sovereign right to taxation sets the wrong precedent, but had said that the government is looking at how best it can sort out the issue.

The government, which participated in an international arbitration brought by the Scottish firm against being taxed retrospectively, has appealed against The Hague-based tribunal’s ruling asking the government to return the value of shares expropriated and liquidated, tax refunds withheld and dividend seized to recover a wrongly levied retroactive tax demand.

The Indian government argues that tax levied by a sovereign power should not be subject to private arbitration. Cairn had previously said the award is binding and it can enforce it by seizing overseas Indian assets.

Cairn has been engaged with the finance ministry to get the government to pay the award. Its officials held three face-to-face meetings with the then Revenue Secretary Ajay Bhushan Pandey in February and at least one video call with his successor Tarun Bajaj.

Cairn Energy's offer to Indian govt

The company had in the meetings offered to forego $500 million out of the $1.7 billion award and invest that amount in any oil and gas or renewable energy project identified by the Indian government after rejecting a government offer to get paid just one-fourth of the award, PTI said.

It wants the principal of $1.2 billion due to it is paid and the interest and cost can be re-invested in India.

The Indian government, which appointed one of the three arbitrators on The Hague panel and fully participated in the arbitration proceedings since 2015, wanted Cairn to settle the issue through its now-closed tax dispute resolution scheme Vivad se Vishwas.

Vivad se Vishwas scheme, which closed on March 31, provided for dropping of tax case if 50 percent of the demand was paid, which the company rejected, sources in the know of the development said.

Even if it were to have agreed to the scheme, the Indian government had to refund about Rs 2,500 crore to the British firm, they said, adding the value of shares seized and sold, dividend confiscated and tax refund withheld totalled to over Rs 7,600 crore, which was more than 50 percent of the Rs 10,247 crore principal tax demand raised.

Cairn hires asset-tracing firms

Cairn, which is of the opinion that the unanimous ruling of the tribunal was enforceable against Indian-owned assets in more than 160 countries that have signed and ratified the 1958 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards, has hired asset-tracing firms to investigate the overseas assets that could be seized to recover the amount due.

Cairn has taken steps to have the arbitration award recognised in nine major jurisdictions such as the US, UK, France, the Netherlands, Singapore and Canada’s Quebec province, where Indian sovereign assets have been identified.

(With agency inputs)

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