Cairn sets eyes on piercing Air India; begins process to seize Indian overseas assets to recover tax award

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Updated: May 15, 2021 7:11 PM

The company through the US lawsuit is seeking to establish that the state-owned firm is India's alter ego under Bancec regulations, that is, to pierce the veil between the Indian government and them.

Moreover, the IT department was found to be aware of the transactions at least by 2010, given it assessed the stake sale of Cairn UK Holdings in Cairn India to Petronas.Moreover, the IT department was found to be aware of the transactions at least by 2010, given it assessed the stake sale of Cairn UK Holdings in Cairn India to Petronas.

UK’s Cairn Energy Plc has brought a lawsuit in a US court that potentially can lead to seizing of Air India’s overseas assets such as airplanes to recover USD 1.72 billion from the Indian government which an international arbitration tribunal had awarded after overturning levy of retrospective taxes.

Cairn on May 14 filed a lawsuit in the US District Court for the Southern District of New York seeking declaration of Air India as the ‘alter ego of Indian government’ by virtue of control and as a state-owned company it “legally indistinct from the state itself,” according to a copy of petition reviewed by PTI.

The lawsuit seeks to establish the “Air India is the alter ego of India and that it should be held jointly and severally responsible for India’s debts, including from any judgment resulting from recognition of the Award.”

Once a court recognises Air India as the alter ego of Indian government, Cairn can seek attachment or seizure of its assets in the US such as airplanes, immovable assets and bank accounts to recover the amount it was awarded by the arbitration tribunal.

PTI had on March 28, 2021, reported that Cairn will bring lawsuits to pierce the corporate veil to establish that certain state-owned entities are India’s alter ego under Bancec for enforcing the arbitration award.

The Bancec guidelines deal with determining when a judgment against a foreign state is enforceable against its agencies.

The May 14 lawsuit seeks to make Air India liable for discharge of the arbitration award against the Indian government. It said, “Air India is not a typical state-owned airline. By operation of its internal law and the Articles of Association under which Air India was created, India has full functional, administrative, and economic control over Air India and controls its operations through its Ministry of Civil Aviation.”

“From the time of its nationalisation to the present day, India has always treated Air India as an integral part of the state itself, not a separate company with independent personality,” it said.

While Cairn said it is “taking necessary legal steps to protect shareholders’ interest in the absence of a resolution to the arbitral award”, sources said India will take all necessary steps to defend against any such “illegal enforcement action.”

India, they said, will contest the move on grounds that the government has challenged the arbitration award in the appropriate court in The Hague and it is confident that the award will be set aside.

Sources said the government has also engaged a counsel team which is ready to defend against any enforcement action.

While they maintained that neither the government nor any PSU has received any such notice, people aware of the Cairn lawsuit said the case has been brought only on Friday and notices in due course will come to the concerned authorities.

The sources said as and when any such notice is received, the Government/concerned organization shall take all necessary steps to defend against “any such illegal enforcement action”.

Cairn had first moved courts in the US, the UK, Canada, France, Singapore, the Netherlands and three other countries to register the December 2020 arbitration tribunal ruling that overturned the Indian government’s Rs 10,247 crore demand in back taxes and ordered New Delhi to return the value of shares it had sold, dividends seized and tax refunds withheld to recover the tax demand.

Subsequent to the courts in the US and other places giving recognition to the arbitration award, the firm has now begin bringing lawsuits to pierce the corporate veil between the Indian government and its owned companies such as in oil and gas, shipping, airline and banking sectors, to seize their overseas assets to recover the money awarded.

The lawsuit is similar to the one brought by Crystallex International Corp to attach property of Petroleos de Venezuela, S.A (PDVSA), the state-owned oil company of Venezuela, in Delaware couple of years back after the Latin American country failed to pay the firm USD 1.2 billion that an arbitration tribunal had ordered to pay in lieu of the 2011 seizing gold deposits held and developed by the firm.

Indian assets across several jurisdictions have been identified that Cairn will be seeking to seize to enforce the award.

“Cairn is taking the necessary legal steps to protect shareholders’ interest in the absence of a resolution of the arbitral award,” a company spokesperson said commenting on the issue. “Cairn remains open to continuing constructive dialogue with the Government of India to arrive at a satisfactory outcome to this long-running issue.”

The Scottish firm invested in the oil and gas sector in India in 1994 and a decade later it made a huge oil discovery in Rajasthan. In 2006 it listed its Indian assets on the BSE. Five years after that the government passed a retroactive tax law and billed Cairn Rs 10,247 crore plus interest and penalty for the reorganisation tied to the flotation.

The state then expropriated and liquidated Cairn’s remaining shares in the Indian entity, seized dividends and withheld tax refunds to recover a part of the demand.

Cairn challenged the move before an arbitration tribunal in The Hague, which in December awarded it USD 1.2 billion (over Rs 8,800 crore) plus costs and interest, which totals USD 1.725 million (Rs 12,600 crore) as of December 2020.

The company, which previously said the ruling was binding and enforceable under international treaty law, has been since then courting Indian government officials to get the money paid.

Its officials have held three face to face meetings with the then Revenue Secretary Ajay Bhushan Pandey in February and at least one video call with his successor Tarun Bajaj.

Finance Minister Nirmala Sitharaman had last month reiterated that international arbitration ruling on India’s sovereign right to taxation sets wrong precedent, but had said that the government is looking at how best it can sort out the issue.

The government, which participated in an international arbitration brought by the Scottish firm against being taxed retrospectively, has appealed against The Hague based tribunal’s ruling.
The Indian government argues that tax levied by a sovereign power should not be subject to private arbitration.

PTI had previously reported that the company had in the meetings offered to forego USD 500 million out of the USD 1.7 billion award and invest that amount in any oil and gas or renewable energy project identified by the Indian government after rejecting a government offer to get paid just one-fourth of the award.

It wants the principal of USD 1.2 billion due to be paid and the interest and cost can be re-invested in India.

The Indian government, which appointed one of the three arbitrators on The Hague panel and fully participated in the arbitration proceedings since 2015, wanted Cairn to settle the issue through its now-closed tax dispute resolution scheme, Vivad se Vishwas.

Vivad se Vishwas scheme, which closed on March 31, provided for dropping of tax case if 50 per cent of the demand was paid, which the company rejected, sources in the know of the development said.

Even if it were to have agreed to the scheme, the Indian government had to refund about Rs 2,500 crore to the British firm, they said adding the value of shares seized and sold, dividend confiscated and tax refund withheld totalled to over Rs 7,600 crore which was more than 50 per cent of the Rs 10,247 crore principal tax demand raised.

Cairn, which is of the opinion that the unanimous ruling of the tribunal was enforceable against Indian-owned assets in more than 160 countries that have signed and ratified the 1958 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards, has hired asset-tracing firms to investigate the overseas assets that could be seized to recover the amount due.

Sources said the assets that can be attached could range from airplanes to ships, to oil and gas cargoes and bank accounts of state-owned entities.

Cairn had previously said the money ultimately belongs to its shareholders — which include large investors such as BlackRock, Fidelity and Franklin Templeton, and the ramifications of India not honouring the award will “run across the international investment community more widely”.

Sources said the Indian government appeal in the Dutch court does not bar Cairn from taking action in other jurisdictions to recover the full amount of the arbitral award.

The company through the US lawsuit is seeking to establish that the state-owned firm is India’s alter ego under Bancec regulations, that is, to pierce the veil between the Indian government and them.

‘Piercing the corporate veil’ is a means of imposing liability on an underlying cause of action against a third-party which would not otherwise be liable.

In the lawsuit, Cairn said it has been unable to collect the Award from India.

“Despite Plaintiffs’ multiple requests for payment and the fact that India was obligated to satisfy the Award immediately, having agreed in the UK-India Bilateral Investment Treaty that it will ‘abide by and comply with the terms of [the arbitral tribunal’s] award’, India has failed to pay anything or to comply with the Tribunal’s order to withdraw the tax demand.”

The lawsuit potentially complicates Air India’s privatisation plans. The government is seeking to sell the loss making, indebted national flag carrier but the new legal challenge may deter suitors, industry sources said.

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