Mumbai, March 18: The shareholders agreement among Enron Mauritius Company, Capital India Power Mauritius I, Energy Enterprises (Mauritius) Company and Dabhol Power Company (DPC) has made it mandatory for each shareholder to comply with provisions of the Foreign Corrupt Practices Act (FCPA) to deal with improper or illegal payment, gifts or gratuities. Simultaneously, the agreement, which has been treated as the "most confidential" one by the DPC, has incorporated a provision whereby the arbitration over dispute or claim other than over a price per share would take place in New York city or such other place as the disputing parties may agree. The decisions of the arbitrators would be treated as final and binding on all disputing parties and it would not be subject to appeal. The shareholders agreement along with other such documents which have been kept as secret, is likely to be reviewed by the Madhav Godbole energy review committee.The committee, which has been delegated powers to negotiate with the DPC for cut in the tariff, would begin its deliberations from Monday and submit its interim report by the end of this month. According to this agreement, each shareholder would have to comply with all applicable laws, rules or regulations of India, the United States or any other jurisdiction that are or may be applicable to the company's business and its activities.
"In any event, each shareholder agrees not to and the company agrees not to pay, promise to pay, or authorise the payment of any money or anything of value, directly or indirectly to any person (whether a government official or private individual) for the purpose of illegally or improperly inducing any official or political party or official thereof to obtain or retain business or to take any other action favourable to the company, the project or any shareholder or affiliate of a shareholder," the agreement said.
Futhermore, each shareholder agrees that it and its affiliates would, and the company agrees that it would, not take any action or fail to take any action, which act or failure to act would subject to any other shareholder or any of its affiliates to liability under the laws of its country of domicile with improper payments. Each shareholder agrees that it or its affiliates would and the company agrees that it would, obtain the agreement of each consultant or contractor or if applicable, its affiliates employ in conducting activities, for or on behalf of the project, to comply with the FCPA and if the employment exceeds $100,000, would obtain written agreement to that effect. As far as provisions related to the arbitration is concerned, the agreement said that the arbitration would be conducted under the rules of the International Chambers of Commerce not inconsistent with the provisions of this agreement or such other rules as the disputing parties may agree. The arbitrators would endeavour to render theirdecision on or behalf the 30th day following the last session of the hearing. "Any action arising out of this agreement or any of the organisational documents or the rights and duties of the shareholders of the company arising out of this agreement or any of the organisational documents may be brought, if at all, only in the United States district court for the southern district of New York and not in any other court or tribunal," the agreement said. The agreement prohibits the shareholder or its affiliates from engaging in any other similar or related activities in India or anywhere else as the objectives of the company are "development, construction, financing and operation of the Dabhol project."
Copyright © 2001 Indian Express Newspapers (Bombay) Ltd.
