"I realise that some of my criticisms may be mistaken; but to refuse to criticize judgements for fear of being mistaken is to abandon criticism altogether... If any of my criticisms are found to be correct, the cause is served; and if any are found to be incorrect the very process of finding out my mistakes must lead to the discovery of the right reasons, or better reasons than I have been able to give, and the cause is served just as well." -Mr. HM Seervai, Preface to the 1st ed., Constitutional Law of India.

Thursday, September 22, 2011

Investment Arbitration against India under the Bilateral Investment Treaty between India and Australia

The Times of India has reported in today’s paper that a claim has been filed against India under the Bilateral Investment Treaty between India and Australia by White Industries Australia Limited. Dispute pertaining to White Industries’ entitlement for bonuses arose between White Industries and Coal India under a 1989 Agreement in regard to the supply of equipment and development of a coal mine in Piparwar, (now in) Jharkhand. The 1989 Agreement provided that the arbitration would be conducted as per the ICC Rules and it apparently excluded the applicability of the Arbitration Act, 1940. An arbitral tribunal was constituted and the award for Australian dollars 4,085,180, passed in 2002, was in favour of White Industries. The award was sought to be enforced in India and the matter is currently pending before the Supreme Court of India.

In the meanwhile, the Australian company has invoked arbitration against the Republic of India under the Agreement between the Government of Australia and the Government of the Republic of India on the Promotion and Protection of Investments dated 29 February 1999.

Article 12 of the said Treaty, inter alia, provides for reference of a dispute to an ad hoc tribunal in accordance with the UNCITRAL Arbitration Rules, 1976, with certain modifications. White Industries has reported claimed that the action of the Indian courts and of Coal India Limited had led White Industries to suffer loss and damages, which are claimed in the arbitration. The hearings in the matter began on September 19 and would reportedly continue up to September 23.

Vivek Tankha, Additional Solicitor General of India has been appointed to represent India in the arbitration proceedings.

From the news report, we guess that White Industries would primarily base its claim on the decision by the ICSID Tribunal in Saipem v. Bangladesh, where the ICSID Tribunal seems to have concluded that the action of the courts in Bangladesh had the effect of denying Saipem from reaping the “benefits” of the ICC award and it amounted to unlawful expropriation. See this recent post in the Kluwer Arbitration Blog on the said decision.

Check out the Times of India news report from here.

We’ll keep readers posted on the developments in the case. We’ll deal with the decision of the ICSID Tribunal in a future post.

Added After Posting: It appears from this site that White Industries applied to the Delhi High Court for enforcement of the ICC award in 2002. However, Coal India Limited applied to the Calcutta High Court to set aside the arbitral award.  

1 comment:

Anonymous said...

In July of this year, we broke a story about this BIT arbitration. Although, the link below is for subscribers-only, if any of your readers were to email us, we could probably send them a copy of our article.
Cheers
Investment Arbitration Reporter
http://www.iareporter.com/articles/20110707_2