Author: Dimple Sahi Bath

Publishers: Asia Law & Practice Publishing

Distributed by: Bharat Book Bureau (7579131/7578668)

Pages: 1001 (Vol-I & II)

Price: US$195

Dimple Sahi Bath's "India Power Projects -- Regulations, Policy and Finance" can be reviewed in one sentence -- it is exhaustive and would be of particular interest to those not familiar with India. Besides detailed information on the sector, the book also provides a summary of the major provisions of the Companies Act relating to private companies, a list of industries where there is automatic approval, an application format for the approval of the Foreign Investment & Technology Transfer Agreement (both Form FC(RBI) and FC(SIA)), Form-1A (application for available name for the company), applications required under Fera and even the witholding tax rates (royalty and fees for technical services) as per the treaties that India has signedwith 46 countries. As on date, India has signed Double Tax Avoidance Agreements with 55 countries but it is not possible to cover all. For reference, statutory and non-statutory clearances including from whom and under what section of the Electricity Supply Act and other relevant Acts, various agencies related to power sector,approval process for generation projects (thermal and hydel) through MoU and LoI route as well as for captive and co-gen projects. The chapter on energy sources provides the fuel-wise information and approval process for oil and gas projects involving private participation. The information on coal is provided in terms of bock, coalfield, grade and whether field is allocated or offered, blocks identified for captive mining, existing and proposed coal washeries and externally aided projects in sector. Relevant information is also provided on other fuels. Issues relating to environmental and land considerations, have also been dealt with in detail. The Environment (Protection) Act, 1986,the Public Liability Insurance Act, 1991 and amendments to Factories Act -- results of Bhopal gas tragedy -- are covered and includes SC judgement in JK Industries Ltd v. The chief inspector of factories, which stated that only directors will be deemed to be "occupiers" and will be liable for all offences for which "occupiers" are liable. The salient features of Public Liability Insurance Act, 1991, which makes it obligatory for any owner handling hazardous substance to take insurance for persons affected by accidents which result due to the handling of material are also provided. A section is devoted to semantics. In India, for instance, "commercial operation date or the commencement of commercial operations" means the date of synchronizing the turbine whereas internationally it is understood as the date of passing the performance test.

Two issues are of vital interest to foreign investors in India -- arbitration and dispute relief and enforceability of contracts and specific relief in relation tocontracts particularly involving government. Even if arbitration is held outside India, the procedural law is deemed to be Indian law. The difficulty is reflected in the judgement of Supreme Court delivered in 1992 in NTPC v Singer Corporation stating that parties to an arbitration could choose the procedural law governing the conduct of arbitration. This problem has resulted in foreign players having opted for Indian law to govern the main agreement or contract and foreign law to govern arbitration clause or entering into separate arbitration agreement governed by law other than India law. However, the Arbitration and Conciliation Act, 1996 (the Act) is expected to solve a lot of problems faced under the earlier arbitration laws. The new law has been interpreted to suggest that where the venue of any arbitration proceedings is not India, irrespective of the governing law of such proceedings, the award will still be considered a foreign award and enforceable as such. But it is better to wait till a fewprecedents are set. It has several case studies including Paiton power plan -- a classic on how to minimise construction and fuel supply risk and the CEPA in Orissa. Policy features of Exim Banks of various countries are also covered.

The policies in India are announced/amended on a daily basis and as is done by publishers of law books, updates (even a notification) will have to be provided on a regular basis. Investment upto Rs 1,500 crore in power generation and T&D, automatic approval for 100 per cent foreign investment will not require FIPB clearance but only RBI clearance. The book lists power sector under the automatic approval route for stake upto 74 per cent.