Srikar – as you know, I am delighted
that our paths have re-crossed after so long. Needless to say, I am also
grateful for this opportunity to exchange ideas with you and others on your
blog.
My first blog post will not deal with international trade law but with the other major branch of international economic law – international investment law. The topic I will consider is the remedy granted by the Tribunal in White Industries v The Republic of India.
My first blog post will not deal with international trade law but with the other major branch of international economic law – international investment law. The topic I will consider is the remedy granted by the Tribunal in White Industries v The Republic of India.
Background
As is well-known, White Industries was the
first award rendered in a proceeding brought against India under a bilateral
investment treaty (or “BIT”). The treaty invoked by the Investor was the
1999 Australia-India BIT.
The Investor was successful.
India was found to be in breach of the BIT because of delays that the Investor
encountered in the Indian courts. Various
Indian court proceedings had been initiated regarding the enforcement of an international arbitral award (“the
ICC Award”) against the Investor's Indian counterparty - Coal India. Coal India is a
PSU and it was resisting enforcement of the ICC Award in the Indian courts.
The Tribunal found a breach of an “effective means clause” which imposed a
duty on India to “provide effective means
of asserting claims and enforcing rights with respect to investments”.
The Tribunal interpreted that clause as providing that an “undue delay” in resolving
an investor’s claim by local courts would amount to a breach. In doing so it followed the
interpretation of a similar clause in the Chevron-Texaco v Ecuador case (the “TexPet” case in
short).
On the facts, the Tribunal made a
finding that a nine-year delay in resolving set aside proceedings initiated
before the Calcutta High Court amounted to a breach. Five years of that nine-year delay were
attributable to a pending appeal before the Indian Supreme Court and the
Tribunal ruled that that delay also amounted to a separate breach.
The finding on liability has been the
subject of scholarly commentary and criticism: see, among others, Sumeet
Kachwaha’s article in Arbitration
International (2013, Vol 29, p. 275) and Jessica Wirth’s broader note on
the effective means standard in the Columbia
Journal of Transnational Law (2014, Vol 52, p.325).
My focus in this post is not on
liability but on the Tribunal’s next step: how it remedied the breach that it
identified.
The
remedy granted in White Industries
The Investor was awarded monetary
compensation of AUS$ 4,085,180 (plus post-award interest at 8% per annum).
That sum represents the amounts that were payable under the ICC Award.
In broad terms, the Tribunal decided
that the appropriate remedy for delay was to predict the result that the Indian
courts would reach in the ongoing local proceedings and give the Investor the
benefit of that result immediately, i.e., without any further delay. In
doing so the arbitral tribunal effectively sat as an Indian court.
In keeping with this approach, it
assessed four objections to the enforcement of the ICC Award that had been
raised by Coal India (one hopes that additional objections were not ignored by
the Tribunal).
It decided that none of them had merit and concluded that the ICC Award
would have been held to be enforceable by an Indian court.
It then ordered the Government of India
to pay the Investor the amount owed to it under the ICC Award as this would
place the Investor in the position that it would have occupied if the Indian
court proceedings had: (1) concluded without delay and (2) reached the
substantive result that the Tribunal predicted they would reach.
It is significant that this payment had
to be made by the Government of India and not Coal India (which is a legally
distinct entity whose conduct the Tribunal found could not be attributed to the Government of India: see Award, para.
8.1.21).
The
path not taken
The Tribunal’s approach calls for three
comments and one suggestion.
First, it is not obvious that the
delays encountered in the Indian courts caused any financial loss to the Investor. The Investor was granted post-award
interest by the ICC tribunal at the rate of 8% – the entire point of such an
award is to compensate an award-creditor for delays in paying the award.
As long as the interest rate was set appropriately and as long as
the Indian courts would give effect to the award of post-award interest (and
there were no suggestions to the contrary by the Investor) that should have
been adequate to compensate for any undue delay on account of proceedings
before the Calcutta High Court and/or the Supreme Court. So, arguably, there
was no genuine loss to compensate here.
Second, the claim for compensation (and
the Tribunal’s award) is built on a prediction about the outcome of future
Indian court proceedings. That prediction is inherently uncertain.
The Tribunal could have held that claims for damages that rest on predictions about the outcome of litigation will be treated as speculative
and disallowed. This is the position that the European Court of Human Rights (ECHR) has adopted in cases brought under Article 6 of the European Convention of
Human Rights (which also regulates the length of proceedings). The ECHR
has consistently held that it cannot speculate on the outcome of legal
proceedings for the purposes of awarding compensation. See Incal v Turkey, para. 82; Wettstein v Switzerland, para. 53; Bayrak v Germany, para. 38. In
sharp contrast, the Tribunal in White
Industries showed no hesitation at all in speculating about the outcome of
Indian court proceedings. However, it did indicate that the parties had
consented to its approach (see Award, para. 14.2.2) and one can also see
considerable force in the position that a tribunal must resolve questions about
how a court would rule just as it must resolve questions about what an
investor’s future market share will be. Arguably,
these are all hypotheses about future events which a tribunal must assess in
order to calculate damages. Nevertheless, the failing of the Tribunal in White Industries is that it did not
justify the standard that it applied while making predictions about the outcome
of the Indian court proceedings. India argued that the Investor needed to
show that Coal India’s opposition to enforcement and its set aside application
had “no prospects of success” (Award,
para. 14.2.1), i.e., that the Investor needed to show that a positive legal
outcome was virtually certain. But the Tribunal did not deal with that
contention or explain its approach in any detail. Indeed, the indications are
that it placed the burden on India to show that the Investor would not succeed in the domestic proceedings
(which it sought to justify by reference to the New York Convention (which was
not part of the applicable law) and Indian law (without specific explanation)).
Third, in usurping the role of the
Indian courts, the Tribunal also arguably compromised the due process rights of
a third party – Coal India. It effectively decided on the validity of
Coal India’s objections to enforcement without the participation of Coal
India. Of course, one may respond that Coal India did not lose anything –
to the contrary it gained because the Government of India was forced to pay the
ICC Award that it would have been required to pay. That only raises
further questions (which have no answer in the Award) such as whether the
Investor could maintain its claim under the ICC Award against Coal India
(leading to a situation of potential double recovery), whether the Government
of India could recover the amount that it paid to the Investor from Coal India
and, if not, whether an outcome where the Indian taxpayers pay foreign investors
but cannot claim restitution from the party bearing the true liability is an
altogether fair one. These concerns may seem theoretical because Coal
India is a PSU (however, it is not a wholly-owned PSU) but they will have much
greater resonance in cases where the opponent of a foreign investor in the
Indian courts is a private party.
Finally, my (tentative) suggestion is
that if the Tribunal was determined to grant relief (notwithstanding the
existence of an order for post-award interest) it should have considered a
novel remedy: ordering India to resolve the proceedings within a short period
(say 6 months) with a qualification that if India failed to comply within that period the
Tribunal would go on to make predictions about the outcome of pending
proceedings and award damages. This remedy recognises the reality
that the Indian courts were progressing with their consideration of the
Investor’s claims (the Supreme Court actually issued its judgement on the narrow question of jurisdiction less than a year later) and gives India a final opportunity to
rectify the concrete problem faced by the Investor. It is less intrusive (in that it potentially avoids a
situation where the Tribunal substitutes itself for an Indian court) and limits the risk that one or the other
of the litigants in the Indian courts may be unjustly enriched. While
investor-state tribunals have been historically reluctant to grant conduct-based
remedies and conditional remedies there is no fundamental bar in public
international law to their grant – indeed a broadly analogous remedy is given
as a matter of course by WTO panels.
Before closing it is worth considering
the potential implications of the White
Industries ruling.
The effective means clause which was
considered in White Industries can be
imported into any Indian BIT (as they
are all likely to have MFN clauses). And that clause would apply to any proceeding in an Indian court which
involves claims/rights “with respect to”
foreign investments protected under a BIT (not just proceedings between a
foreign investor and the Government of India). So proceedings between two
private entities, for instance between a foreign investor and a local Indian
joint venture partner, could also be regulated by the effective means
clause. As a result, delays in a broad range of judicial proceedings do
have the potential to trigger the liability of the Government of India.
For this reason, the approach to
remedies followed in White Industries (and
prior to that in TexPet) may well be
of consequence in the future.
