Cairn Energy Plc v Republic of India - United States District Court for the District of Columbia Case No 1-21-cv-00396 - Petition to Confirm Arbitration Award - 12 February 2021
PETITION TO CONFIRM FOREIGN ARBITRATION AWARD
Pursuant to the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the "New York Convention"), as codified by the Federal Arbitration Act ("FAA"), 9 U.S.C. §§ 201-208, Petitioners Cairn Energy PLC ("Cairn Energy") and Cairn UK Holdings Limited ("CUHL," and together with Cairn Energy "Petitioners"), hereby move for the confirmation of the December 21, 2020 arbitral award (the "Award") entered in favor of Petitioners and against the Republic of India (the "Respondent" or "India") in a proceeding pursuant to The Arbitration Rules Of The United Nations Commission On International Trade Law, 1976 (the "UNCITRAL Arbitration Rules") and under the Agreement between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the Republic of India for the Promotion and Protection of Investments (the "UK-India BIT" or the "BIT"). The Award against India should be recognized and a money judgment should be entered in Petitioners' favor against India in the amount of the Award and for such other relief as the Court deems just and proper.
1. This is an action under the New York Convention to confirm an arbitral award arising from an investment dispute regarding a retroactive tax assessment by India. The underlying dispute arose from Respondent's series of unlawful and harassing fiscal measures targeting Petitioners in this case--two U.K.-based entities who invested and conducted commercial oil and natural gas exploration and production activities in India for over two decades, contributing over $3 billion to the Indian economy. Respondent retroactively applied an amendment to the Indian taxation laws regarding capital gains (the "2012 Amendment") to revive tax reviews and initiate sham investigations into an eight-year old transaction that restructured Petitioners' corporate organization to consolidate its Indian assets and list the company holding those assets on the Bombay Stock Exchange. Almost overnight, Respondent's purported investigations into years- old and previously fully disclosed transactions led to the assessment of taxes amounting to over $4 billion. Respondent enforced these unlawful tax demands, boldly and unilaterally seizing Petitioners' shares in their publicly traded Indian subsidiary and withholding hundreds of millions of dollars in tax returns due to Petitioners.
2. Petitioners commenced an arbitration (the "Arbitration") to reverse the unjustified fiscal measures on several grounds, including that Respondent failed to treat their investment fairly and equitably, thus breaching the UK-India BIT. The Tribunal agreed, finding that Respondent's retroactive application of the 2012 Amendment failed to adequately balance Petitioners' protected interest of "legal certainty/stability/predictability" with Respondent's power to regulate, as such application lacked any specific justification and thus deprived Petitioners of their ability to plan their activities in consideration of the legal consequences of their conduct. The Tribunal thus ordered Respondent to unwind the measures taken against Petitioners, including compensating them for the monetary loss suffered as a result of Respondent's enforcement of its unlawful tax demand against Petitioners' various assets in India.
3. Petitioners now seek to confirm this final and binding Award under the New York Convention and commence enforcement proceedings to recover the losses caused by Respondent's unfair and inequitable treatment of their investments.