Retrospective Taxation Regime and India-UK BIT: A Glance through the Cairn Case

Gunjan Bahety and Tanmay Joshi*

Introduction

An investor Treaty is an agreement between two or more states to protect investments made by eligible investors. Through Bilateral Investment Treaties (BITs), governments guarantee to safeguard investors’ rights such as the right to be free from expropriation without just compensation, assurance that the government will abide by its contractual commitments and fair and equitable treatment. It provides a procedure for initiating Investor-State Arbitration to seek redress against the host nation if the investor believes that his substantive rights have been infringed. The Investor-State disputes setup has shown exponential growth in the last decade.

Many host countries, which consider this mode of dispute resolution to be pro-investors have raised concerns over the taint of sovereignty attributed to international institutions that bypass the host state’s regulatory powers. In recent times, India has witnessed major setbacks due to obligations under various BITs.. In the Cairn case, India’s stance on the BIT program garnered a lot of criticism as it was held to have infringed the India-UK BIT, 1994. For these reasons, India is keen on achieving a balance between the state’s regulatory powers and the protection of foreign investment.[1]

This article aims to analyze the complications of investor-state dispute resolution vis-a-vis the Cairn case[2] and suggest alternative ways.

Factual Matrix of Cairn Case

In 2006, Cairn UK Holdings Limited (CUHL) transferred some shares of its own subsidiaries (Cairn India Holdings Limited (CIHL)) to Cairn India Limited (CIL), which was associated with the oil and gas industry. In 2015, the Income Tax Department (ITD) issued notice for reassessment under sections 147 and 148 of the Income Tax Act, 1961, to CUHL because during the transaction in 2006, certain taxable income had escaped from assessment. CUHL initiated arbitration against the Indian Government under the India-UK BIT on the grounds that the ITD had violated the guarantees of protection against expropriation and fair and equal treatment. Soon thereafter, a “draft assessment order” was passed to assess a principal tax outstanding on the transaction and impose interest and penalties. CUHL appealed to the Income Tax Appellant Tribunal (ITAT) against the order. Although the order was upheld, the demand for interest, rejected. During the proceedings, CUHL’s shares were seized by ITD, the exercise of the ownership rights over shares was disallowed and some part of the shares was sold. The Tribunal held that India didn’t comply with the obligations under the BIT and directed it to compensate the CUHL for the shares sold.

Relief in Retrospective Taxation Regime and Counter-productivity of Investor-State Arbitration in Energy-Related Disputes

The Supreme Court in the Vodafone case[3]discharged Vodafone from paying any demand by way of capital gain tax and directed a refund of INR 25 billion deposited vide an interim order. Thereafter, through Finance Act, 2012, Section 9(1)(i) of the IT Act, 1961 was amended in which it was clarified that the word “through” would include inter alia- “by means of”, “in accordance” or “by reason of”. It was also clarified that,

“an asset or a capital asset being any share or interest in a company or entity registered or incorporated outside India shall be deemed to be and shall always be deemed to have been situated in India, if the share or interest derives, directly or indirectly, its value substantially from the assets located in India”.[4]

This amendment was applied retrospectively in the Cairn case. The action of the Indian Government was based on this very contention. However, Cairn contended that there was no tax on indirect transfer before the amendment. They also argued that the Amendment of 2012 constituted infringements of the BIT.

The 2012 Amendment was not only criticized for its retroactive application but also its ambiguities. The ill-reputed retrospective implementation of taxation legislation has advanced three investment treaty arbitrations, out of which two have been decided against India.

To draw a balance between the twin pillars of protecting foreign investment and the state’s regulatory powers, the Government reviewed its 2003 model on BIT. As a result, in 2015, a novel draft Model Indian BIT was released which stressed on the state’s regulatory powers. The new Model BIT in India is the outcome of extensive public engagement and review by the Law Commission of India. It resolves a number of semantic and conceptual issues that arose from the 2003 version’s interpretation.

Perplexity lies between the state’s sovereignty over taxation and its commitments under international treaties. It is difficult to determine the precedence of these commitments. However, in matters related to tax disputes, particularly in complicated international energy-related transactions, national laws like taxation, corporate, and others become of quintessence relevance. A thin line may be drawn and the boundaries of international law may be derived if conceived, but it is not going to be a cakewalk. Subjective interpretation of a BIT conflict in determining the sovereignty and international commitments is a hindrance in achieving consensus among the foreign investors and the host states.

Investment Arbitration Tribunal is undoubtedly a productive way to resolve matters, but sometimes it takes a step ahead because generally, the arbitrators do not come from the local community. As a result, it might take efforts from the international arbitrators to understand local issues, laws, customs, economy, culture to arrive at better solutions which are customized to their needs. Generalization of the Unilateral Arbitration Clause in investment arbitration can make people suspicious about the arbitral award. Complexity occurs where an arbitral award is challenged by foreign investors outside the jurisdiction of India.

The Implemented Measures

It is justifiable to think that this mode of dispute resolution can be maligned due to investor bias. Often, leading arbitration cases are an outcome of ‘regulatory chill’, i.e., the state’s reluctance to enact regulatory or public policy reforms as a result of arbitration. BIT provisions constraint the right of a state to regulate. However, through the Model BIT, India has mitigated these concerns.

BIT Model addresses the risk of ‘regulatory chill’ through Article 2.4, which explicitly excludes the disputes arising out of tax-related issues. Under Article 11, the investors need to abide by all the relevant local laws, administrative guidelines and policies. To combat the potential investor bias, it has incorporated changes by abolishing several substantive provisions. It has not eliminated the accountability of a state. Article 3 talks about substantive obligations (in line with customary international law) to be fulfilled by a state. Article 15 talks about the multi-tier dispute resolution procedure wherein an investor has to exhaust all the local remedies, after which a claim is submitted and the parties have to settle the dispute within six months. However, it is silent on the inclusion of the “Most Favored Nation” clause. Moreover, neither has it talked about “Fair and Equitable Treatment”, nor about “Full Protection and Security”.

India is one of the prominent stakeholders in this fast-growing world. It has refrained from signing the International Centre for Settlement of Investment Disputes (ICSID) Convention because it is leaned towards developed countries and India does not have a right to action even if the convention violates its public policy.

Nonetheless, ICSID is the foremost institution that provides for the annulment of an investment arbitral award under Article 52(1). India needs to reconsider joining the ICSID as it has signaled a lack of trust in investor-state arbitration due to the rulings in White Industries v. India[5](the first investment award against India), Vodafone, and Cairn cases.

Active public participation should be encouraged because the possibility of accepting a decision increases with participation. The inclusion of non-disputing parties will enhance the fairness of the decision. Due to the inordinate delay caused by Indian courts, it has taken years for the proper implementation of an arbitral award. It is possible in the Cairn case that India appeals against the arbitral tribunal’s decision. Eminent scholars have suggested ‘Mediation’ as an alternative because it builds the best chances to reconcile the relationship.

In Mediation, the parties are in the driving seat whereas in Arbitration, the Arbitrator exercises control over the outcome of the matter. Sometimes, the Adjudicators fail to consider that the relationship between two parties has to be built in such a manner, that their cultures and traditions are taken care of. In 2016, the Government of India formed a committee under the chairmanship of Justice BN Sri Krishna to expedite the Government’s commitment to make India an international arbitration hub. The Committee recommended moving away from Investment-State to state-state arbitration.The Committee strongly suggested mandatory negotiations, conciliations and ombudspersons, which minimize investor-state disputes and shape the consensual solutions among the parties. The Committee also put specific emphasis on Mediation due to its cost-effective nature. However, these alternatives are far-reached due to the unenforceability of mediation settlements. Although parties can convert mediation settlement into arbitration awards, there is no such record of an arbitral award enforced by a state.[6]

The New Developments

Cairn has threatened the Indian Government that noncompliance with the arbitration award would lead to seizure of its foreign assets. In a letter addressed to the Indian High Commission in London, Cairn reminded that the award is enforceable against India owned assets as it is party to the New York Convention on Recognition and Enforcement of Foreign Arbitral Awards. In the line with this convention, Cairn has registered its case against India in the courts of the US, the UK, France, Singapore, the Netherlands and Quebec. These actions may “make it easier to seize assets and enforce the arbitration award”.[7] Cairn has also filed a suit in the US District Court to make Air India liable by contending that it is a company owned by the Indian Government and the nominal difference between India and Air India is illusory.  

The official statement of the government said that it is open to resolve this case amicably. The government has also welcomed the meeting between Cairn’s CEO and former finance secretary to try to find a solution. However, dispute is far from resolution as Cairn has initiated a case to seize Indian assets rather than waiting for an alternative.  

On the other hand, Cairn has proposed investing the entire award money in India if the government agrees to enforce the award. The government, on the contrary, is unlikely to accept the proposal, arguing that it would imply accepting the verdict, which it has appealed.

Conclusion

The interface between India’s sovereign rights and limitations by international obligations has raised the state’s skepticism of this mechanism. Cairn case is a bitter awakening of restrictions placed by international commitments on state’s sovereign rights to regulate tax affairs. Nevertheless, it is recommended that India should keep up with investor-state arbitration. Foreign incoming investments can play a significant role in enhancing India’s economy. India has shown an exceptional interest in luring investors by amending BIT landscapes. It is acceptable that Investor-State Arbitration is suffering from a legitimacy crisis, but with the implementation of some sweeping changes, the regime can be improved.


*The authors are fourth-year students at Maharashtra National Law University, Nagpur.

[1] Cairn Energy PLC and Cairn UK Holdings Limited v. The Republic of India (Cairn) PCA Case No. 2016-17

[2] Id.

[3] Vodafone International Holdings B.V. v. UOI Civil Appeal No. 733/2012.

[4] Section 4(a), The Finance Act, 2012.

[5] Supra note 10.

[6] Vodafone Case Civil Appeal No. 733/2012.

[7] Article 1, New York Convention on Recognition and Enforcement of Foreign Arbitral Awards.

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