India Asks US Court To Reject Cairn Energy’s 1.2 Billion Dollar Suit

NEW DELHI: The Indian government has asked a federal court in Washington to dismiss Britain’s Cairn Energy suit seeking enforcement of a $1.2 billion arbitral award, saying it had sovereign immunity under US law.

Cairn had in May asked a US federal court to force Air India to pay a $1.26 billion arbitration award the firm had won in December.

The government on August 13 filed a ‘Motion to Dismiss’ petition in the US District Court for the District of Colombia, saying it lacked subject matter jurisdiction in the dispute between Cairn and the Indian tax authority, according to a filing seen by PTI.

This comes a week after the government enacted legislation to scrap a tax rule that gave the tax department power to go 50 years back and slap capital gains levies wherever ownership had changed hands overseas, but business assets were in India. That rule had been used to levy a cumulative of Rs 1.10 lakh crore of tax on 17 entities, including Rs 10,247 crore on Cairn.

Officials said rules for withdrawal of such tax demands are in the process of being framed.

“One of the requirements for the dropping of the retrospective tax demands is that the parties concerned have to give an undertaking for withdrawal all cases against the government/tax department. So, while all this is in process, the government is obligated to respond in any legal matter where there is a time bar for doing so,” an official explained.

Cairn had challenged the tax demand before an international arbitration tribunal, which in December last year overturned the same and ordered the government to refund the money collected. The government initially refused to return USD 1.2 billion, forcing Cairn to take action to recover that money through a seizure of Indian assets overseas.

In May, it took flag carrier Air India Ltd to a US court and last month got a French court order to seize real estate belonging to the Indian government in Paris.

It had contended before the US court that Air India is controlled by the Indian government so much that they are “alter egos” and the airline company should be liable for the arbitration award. In response, the government filed a dismissal motion last week, citing protections afforded by the US Foreign Sovereign Immunities Act of 1976.

India in the filing said the court “lacks subject-matter jurisdiction under the Foreign Sovereign Immunities Act (FSIA) because India never waived its sovereign immunity and, likewise, never offered - let alone agreed - to arbitrate the present dispute with Petitioners”. “India also never “clearly and unmistakably” excluded judicial review or delegated exclusive competence to decide these questions to an arbitral tribunal,” the filing said.