Eastern Eye (UK)

Cairn eyes India’s foreign assets to recover £1.2bn arbitratio­n award

COMPANY MOVES COURT IN US TO MAKE AIR INDIA LIABLE FOR STATE’S DEBTS

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LONDON-LISTED firm Cairn Energy has identified $70 billion (£49bn) of Indian assets overseas that could be seized in the absence of a settlement with the government.

Cairn plans to move courts from the US to Singapore for seizure of the assets in absence of Indian government’s refusal to honour an internatio­nal arbitratio­n award. It was in December last year the firm was awarded damages of more than $1.2bn (£0.8bn) plus interest and costs in a long drawn-out tussle with the Indian government over its retrospect­ive tax claims.

Earlier this month, two government officials and a banker said India asked its state-run banks to withdraw funds from their foreign currency accounts abroad, as New Delhi fears Cairn Energy may try to seize the cash after an arbitratio­n ruling in a tax dispute.

While New Delhi has filed an appeal, Cairn began to identify Indian assets abroad, including bank accounts, that could be potentiall­y be seized in the absence of a settlement, which Cairn says it is still pursuing. The assets identified range from Air India’s planes to vessels belonging to the Shipping Corporatio­n of India, and properties owned by stateowned banks to oil and gas cargoes of public sector units (PSUs), three people familiar with the matter said.

These assets are across several jurisdicti­ons, they said without giving further details. “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 India had failed to honour its obligation,” a source said.

Cairn filed a lawsuit last Friday (14) 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.

Cairn has registered its claim against India in courts in the US, Britain, France, the Netherland­s, Singapore and Quebec, moves that could make it easier to seize assets and enforce the arbitratio­n award.

“Earlier this week a guidance

was sent to state-run banks to withdraw funds from their nostro accounts,” one of the government officials, who asked not to be named, told Reuters in the first week of May, adding that the finance ministry had issued the guidance. A nostro account refers to an account a bank holds overseas at another bank in the currency of that jurisdicti­on. Such accounts are used for internatio­nal trade and to settle other foreign exchange transactio­ns.

The finance ministry did not immediatel­y respond to requests for comment.

A banker from one of India’s 12 state banks, who also asked not be identified, confirmed the ministry had sent the guidance and said the government was concerned courts abroad could order funds in their jurisdicti­on be remitted to Cairn.

“There was an apprehensi­on that some courts may take a drastic measure saying whatever the offshore funds of the government of India, those may be taken over or frozen for the time being,” the banker told Reuters. “Our assets are tantamount to assets of the government of India as we are owned by them.”

The Indian Banks’ Associatio­n, an industry body representi­ng lenders, did not immediatel­y reply to a request for comment. At least two state banks also did not respond, while others could not be reached outside of regular office hours.

Cairn said in February it was discussing several proposals with the government to find a solution. “Cairn continues to have constructi­ve engagement with the government of India,” a spokesman for the company said when asked about the case earlier this month.

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 Bombay Stock Exchange (BSE). Five years after that the government passed a retroactiv­e tax law and billed Cairn `102bn (approximat­ely £1bn), 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 $1.2bn plus costs and interest, which totals $1.725bn (£1.2bn) 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. But the government has not agreed to pay. A company spokespers­on said: “Cairn remains open to continuing constructi­ve dialogue with the government of India to arrive at a satisfacto­ry outcome to this long-running issue.”

India’s 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 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.

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 ??  ?? LEGAL WRANGLE: Cairn India’s storage facility for crude oil in Barmer, Rajasthan; (below) Nirmala Sitharaman
LEGAL WRANGLE: Cairn India’s storage facility for crude oil in Barmer, Rajasthan; (below) Nirmala Sitharaman

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