Cairn identifies India assets for takeover
UK’S Cairn Energy has identified $70 billion of Indian assets overseas for potential seizure to collect $1.72 billion due from the government—a move if successful will put India in league with Pakistan and Venezuela which faced similar enforcement action over failure to pay arbitration awards.
The assets identified range from Air India’s planes to vessels belonging to the Shipping Corp. of India, and properties owned by state-owned banks to oil and gas cargoes of PSUS, three people familiar with the matter said.
These assets are across several jurisdictions, they said without giving further details.
Cairn plans to move courts in the US to Singapore for seizure of the assets in absence of Indian government’s refusal to honour an international arbitration award. “The Indian government naturally will challenge such seizure but to save the assets it may have to pawn money equivalent to the value of assets in some financial security such as bank guarantee. The court will return such a guarantee to India if it does not find merit in Cairn’s case. But the surety will be passed on to Cairn if the court finds that India had failed to honour its obligation,” a source said.
Now it has started moving courts to get a declaration that state-owned entities are alter egos of India and they should be held liable for discharge of the arbitration award in absence of the government making payments. Cairn on May 14 filed a lawsuit in a New York court to get Air India recognised as 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 the 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.
The move is similar to a court in the British Virgin Islands ordering in December last year that hotels in New York and Paris owned by Pakistan International Airlines would be used to settle a claim against Pakistan’s government by a Canadian-chilean copper company.
Crystallex International Corp had brought a similar lawsuit to attach property of Petroleos de Venezuela, SA (PDVSA), the state-owned oil company of Venezuela, in Delaware couple of years back after the Latin American country failed to pay the firm $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.
While the finance ministry has so far not commented on the Cairn move, sources said India will take all necessary steps to defend against any such “illegal enforcement action”.