Cairn Energy v India: A lesson in BIT rights and enforcement

By Steve Nichol and Tanya Chadha

Cairn Energy’s dispute with the Indian Government has made headlines across the globe.  The case serves as a useful reminder to foreign investors of the benefits of using bilateral investment treaties to obtain relief in circumstances where they have been unfairly treated by governments in foreign jurisdictions.

The Dispute

The origins of this dispute lie in a separate, but similar case between Vodafone and the Indian Government, arising out of Vodafone’s purchase of a majority share of a company, Hutchison Whampoa, in 2007. Hutchison owned substantial assets in India, and the Indian Government contended that Vodafone owed capital gains and withholding tax, based on India’s 1961 Income Tax Act. Vodafone disputed the Government’s interpretation of the Act. Continue reading “Cairn Energy v India: A lesson in BIT rights and enforcement”

The reluctant party – failure to participate in final arbitration hearing because of inability to find QC

By Vijay Bange

Adjudicators and Arbitrators are occasionally faced with a situation where one of the parties refuses to engage in the process. In such circumstances tribunals are left in a difficult position to ensure fairness and have regard to due process, whilst also giving careful consideration as to whether it is just and appropriate to continue the process. Ultimately, however, the reluctance of one party to engage should not deprive the other of their legal and contractual rights.

A peculiar position came before Mr. Justice Andrew Baker, in Shell Energy Europe Limited and Meta Energia SpA [2020] EWHC 1799. This case concerned the Defendant’s application to set aside a previous order made by Teare J, made under s. 66 of the Arbitration Act 1996, granting the Claimant leave to enforce an award of arbitration dated 4 December 2019. The award in favour of the Claimant was for EUR 19,712,077.20. The seat of the arbitration was London, and it was under the LCIA Rules. The Defendant participated with the arbitration fully until the final stages; however, on 19 September 2019, with a two-day final  hearing set for 25-26 September 2019, the Defendant dismissed its solicitors and counsel, on the basis (according to the CEO) that it was not satisfied with the way the legal team had pursued or presented the defence. The next day, the Defendant retained new solicitors, and the arbitrators granted an adjournment of the final hearing to 8-9 October 2019. Continue reading “The reluctant party – failure to participate in final arbitration hearing because of inability to find QC”

Expert witnesses owe a fiduciary duty of loyalty to clients

By Vijay Bange

A Company v XYZ [2020] EWHC 809 (TCC)

Overview

  • The expert witness owed a fiduciary duty of loyalty, arising out of an engagement to provide expert witness services, advice and support in connection with an arbitration.
  • The court allowed the continuation of an existing interim injunction refraining the defendant consultancy expert practice from providing expert services to another party in the arbitration.

Continue reading “Expert witnesses owe a fiduciary duty of loyalty to clients”