PENDING INVESTMENT DISPUTES IN INDIA

                                                                                                     – Suman V.

Tenoch Holdings v. India[i], the case was filed by a foreign investor in the telecom sector under the India Russian Federation BIT (1994) and the India-Cyprus BIT (2002) for alleged violations of the Fair and Equitable treatment principle, Denial of Justice, and discrimination, among others. The investor claimed USD $400 million as damages[ii]. In Devas v. India[iii], the investor sought USD $1 billion in compensation for indirect expropriation and other alleged violations of standards contained in the India-Mauritius BIT. In KHML v. India, Khaitan Holding Mauritius Limited (“KHML”) claimed USD $1.4 billion for alleged violations of the India-Mauritius BIT because of actions taken by the Indian Supreme Court in cancelling a telecom license[iv]. In Deutsche Telekom v. India, a German-based telecom company initiated an UNCITRAL Arbitration claiming an undisclosed amount of compensation for violations of the 1995 India-Germany BIT[v]. In Vodafone v. India, the investor initiated the UNCITRAL Arbitration under the 1995 India-Netherlands BIT, objecting to the Indian government’s imposition of certain taxes[vi]. The Cairn v. India case, concerned a claim arising out of a tax assessment in the oil and gas industry[vii]. The claimant, Cairn, alleged violations of some principles of the 1994 India-UK BIT and claimed USD $1 billion as compensation[viii]. In Vedata v. India, the claimant sought USD $3 billion as compensation for a tax assessment pertaining to the company’s oil and gas operations that it denied it owed and alleged violations of certain provisions of the 1994 India-UK BIT[ix]. South Asia Entertainment Holdings Limited v. India is under the India-Mauritius BIT relates to allegations of unfair and biased criminal investigations by the government[x]. In, Astro All Asia Networks v. India, Arbitration under the India- Mauritius BIT and India- United Kingdom BIT relates to claims arising out of an allegedly unfair and biased criminal investigation by the government relating to the suspected bribery by the claimants of Indian government officials was discontinued[xi]. In Vodafone v. India (II), Vodafone group Plc has served its second notice on the Indian government to formally commence the second Arbitration in the high profile Rs. 22,000 crore matter[xii]. In Nissan v. India, Arbitration under the India-Japan BIT (2011) relates to claims arising out of non-payment of incentives by the Indian State government of Tamil Nadu, which had been allegedly promised to the claimant under the agreement for building of a car plant, signed with the State government in 2008[xiii]. In Carissa v. India, an Arbitration under the India- Mauritius BIT (1998), where the claimant alleges a breach of BIT that promised protection of investments by India. Arbitration in the International Court of Justice for Arbitration is pending[xiv]. In Kowepo v. India, under India – Korea, Republic of BIT (1996) and India – Korea, Republic of CEPA (2009). South Korean state owned power utility Kowepo has begun International Arbitration proceedings against India in Singapore for not honouring a fuel supply commitment to its Maharashtra power plant[xv]. It is unclear whether KOWEPO has initiated Arbitration under one or both treaties.  While the substantive investment protection standards in these treaties are different, both treaties provide for a cooling off period of at least six months from the date of the notice of dispute.
If the dispute was not resolved in this period, then KOWEPO is entitled to commence Arbitration proceedings against India[xvi].

 

* The scope of this article is limited only to Arbitration proceedings in which India has been a respondent to between 2003 and 2019.

[i] Tenoch Holdings Limited, Maxim Naumchenko, & Andrey Poluektov v. The Republic of India, PCA Case No. 2013–23 (2012), https://www.pcacases.com/web/view/6 (last visited Apr 22, 2020)

[ii] Naumchenko and others v. India | Investment Dispute Settlement Navigator | UNCTAD Investment Policy Hub Investmentpolicy.unctad.org, https://investmentpolicy.unctad.org/investment-dispute-settlement/cases/491/naumchenko-and-others-v-india (last visited Apr 22, 2020)

[iii] CC/Devas (Mauritius) Ltd., Devas Employees Mauritius Private Limited, and Telecom Devas Mauritius Limited v. Republic of India, PCA Case No. 2013-09 (2013), http://www.pcacases.com/web/view/46.

[iv] KHML v. India | Investment Dispute Settlement Navigator | UNCTAD Investment Policy Hub Investmentpolicy.unctad.org, https://investmentpolicy.unctad.org/investment-dispute-settlement/cases/553/khml-v-india (last visited Apr 22, 2020)

[v] Duetsche Telekom v. India | Investment Dispute Settlement Navigator | UNCTAD Investment Policy Hub Investmentpolicy.unctad.org, https://investmentpolicy.unctad.org/investment-dispute-settlement/cases/550/deutsche-telekom-v-india (last visited Apr 22, 2020)

[vi]Vodafone v. India | Investment Dispute Settlement Navigator | UNCTAD Investment Policy Hub Investmentpolicy.unctad.org,  https://investmentpolicy.unctad.org/investment-dispute-settlement/cases/581/vodafone-v-india-i- (last visited Apr 22, 2020)

[vii] Carin v. India | Investment Dispute Settlement Navigator | UNCTAD Investment Policy Hub Investmentpolicy.unctad.org,, http://investmentpolicyhub.unctad.org/ISDS/Details/691(last visited Apr 22, 2020)

[viii] Cairn Energy PLC and Cairn UK Holdings Limited v. The Republic of India, PCA Case No. 2016-7 (2016), https://www.italaw.com/cases/5709 (last visited Apr 22, 2020)

[ix] Vedata v. India | Investment Dispute Settlement Navigator | UNCTAD Investment Policy Hub Investmentpolicy.unctad.org, http://investmentpolicyhub.unctad.org/ISDS/Details/733 (last visited Apr 22, 2020)

[x] Astro and South Asia Entertainment Holdings Limited v. India | Investment Dispute Settlement Navigator | UNCTAD Investment Policy Hub Investmentpolicy.unctad.org, http://investmentpolicyhub.unctad.org/ISDS/Details/735 (last visited Apr 22, 2020)

[xi] Id.

[xii] Vodafone Group serves second notice on India to formally start 2nd Arbitration in tax case – ET Telecom ETTelecom.com, https://telecom.economictimes.indiatimes.com/news/vodafone-group-serves-second-notice-on-india-to-formally-start-2nd-Arbitration-in-tax-case/58697253 (last visited Apr 22, 2020)

[xiii] Nissan v. India | Investment Dispute Settlement Navigator | UNCTAD Investment Policy Hub Investmentpolicy.unctad.org,, https://investmentpolicy.unctad.org/investment-dispute-settlement/cases/828/nissan-v-india (last visited Apr 22, 2020)

[xiv] Mauritius: Mauritius drags India to International court over Andhra SEZ case | India News – Times of India The Times of India, https://timesofindia.indiatimes.com/india/mauritius-drags-india-to-International-court-over-andhra-sez-case/articleshow/63021815.cms (last visited Apr 22, 2020)

[xv] Korean company starts Arbitration against India The Economic Times, https://economictimes.indiatimes.com/industry/energy/power/korean-company-starts-Arbitration-against-india/articleshow/72449677.cms?utm_source=contentofinterest&utm_medium=text&utm_campaign=cppst (last visited Apr 22, 2020)

[xvi] Recent developments in India-related investment treaty Arbitration | Arbitration notes Herbert Smith Freehills, https://hsfnotes.com/Arbitration/2019/11/08/recent-developments-in-india-related-investment-treaty-Arbitration/ (last visited Apr 22, 2020)