Authors: Harshad Pathak and Ranjeev Khatana are lawyers at P&A Law Offices
The dispute between the Vodafone group and the Government of India witnessed yet another development; this time in the form of an investment treaty award issued against the Republic of India (“India”).
The long-running dispute relates to the taxation implications of the indirect acquisition of Hutchison Essar Limited, a company incorporated in India, by Vodafone International Holdings B.V. (“Vodafone”), a Dutch company. While the Indian revenue authorities believed that under Indian law, Vodafone was liable to pay a certain amount of capital gains tax in relation to this transaction, Vodafone disagreed. This disagreement led to a flurry of litigation in Indian courts. The High Court of Bombay initially decided in favour of the Indian revenue authorities, only to see its judgment overturned by a three-judge bench of the Supreme Court of India on 20 January 2012. However, the Supreme Court’s judgment was only a false dawn for Vodafone. In March 2012, the Indian Parliament introduced, what it claims to be, certain clarificatory amendments to the provisions of the Income Tax Act, 1961 with a retrospective effect; thereby, altering the foundation of the Supreme Court of India’s 2012 judgment. With this amendment, the Indian revenue authorities continued to insist that Vodafone was liable to pay capital gains tax under Indian law.
It was at this juncture that Vodafone commenced investment treaty arbitration against India (“Vodafone arbitration”), under the India-Netherlands BIT (“BIT”). From the operative part of the tribunal’s award, one can infer the nature of Vodafone’s claim. Vodafone claimed that the retrospective amendments made to nullify the Supreme Court’s judgment dated 20 January 2012 were in breach of the fair and equitable treatment (“FET”) guarantee in Article 4(1) of the BIT. However, in addition to advancing its claims, Vodafone also had to surmount a jurisdiction hurdle in the form of a taxation carve-out in Article 4(4) of the BIT, which was intended to limit the jurisdiction of an investment treaty tribunal over matters of taxation.
On 25 September 2020, the investment treaty tribunal issued its award (the “Vodafone award”). The operative part of the award reveals that the tribunal first confirmed that it had jurisdiction to consider Vodafone’s claims for breach of the BIT, and then proceeded to allow Vodafone’s FET claim. With respect to the latter, the tribunal specifically noted that India’s imposition on Vodafone of an asserted liability to tax, notwithstanding the Supreme Court of India’s judgment, breached Article 4(1) of the BIT. On this basis, the tribunal directed India to cease this conduct and did not consider it necessary to determine Vodafone’s other claims.
As on date, the reasons for the tribunal’s conclusions are not in the public domain. Yet, ample ink has been spilled to “analyse” the Vodafone award. While some refer to the award as a “serious loss of face for India” and label India’s conduct as a case of “state overreach”, others suggest that India may have reasonable grounds to challenge the award. However, both conclusions appear premature. In the absence of the reasoning adopted by the tribunal, it is futile to berate either the tribunal’s award or India’s conduct. The authors certainly do not intend to embark on a similarly speculative adventure. Instead, they prefer to reflect on a hitherto un-appreciated facet of India’s tryst with investment treaty arbitration, and the significance of the Vodafone award in such context.
The Vodafone arbitration is not the only treaty arbitration proceeding in which India had to justify its taxation policies and measures. At least three other investment treaty arbitration proceedings against India, namely – (I) Cairn Energy PLC and Cairn UK Holdings Limited v. India (“Cairn”); (ii) Vedanta Resources PLC v. India (“Vedanta”); and (iii) Nissan Motor Co., Limited v. India (“Nissan”) – involved claims relating to what India perceives as taxation measures. In each of these arbitration proceedings, India raised a preliminary objection to the jurisdiction of the tribunal, similar to the issue that was likely involved in the Vodafone arbitration. While the underlying dispute in Nissan was amicably resolved before the tribunal therein could issue a definitive decision, in both Cairn and Vedanta, the tribunals are yet to issue their decisions.
Nevertheless, the above instances, as well as the Vodafone arbitration, indicate India’s consistent policy stance. The Government of India is clear that taxation is a matter of India’s sovereignty, and thus, ought to be outside the jurisdiction of an investment treaty tribunal.
Viewed from this perspective, the Vodafone award’s significance does not lie in the tribunal’s finding that India had breached its FET obligation. This is a matter regarding the merits of Vodafone’s claim, which will arise only if the tribunal’s jurisdiction is established. Rather, the Vodafone award is, first and foremost, significant for being the first instance where a tribunal appears to have rejected India’s preliminary objection relating to taxation measures.
In the above context, even without the benefit of analysing the tribunal’s reasoning, it is clear that the Vodafone award raises a legitimate question – whether India’s policy stance of excluding taxation matters from investment treaty jurisdiction is appropriately reflected in India’s investment treaties? The Vodafone award is a critical step in answering this question.
Article 4(4) of the BIT states that:
“The provisions of paragraphs 1 and 2 in respect of the grant of national treatment and most favoured nation treatment shall also not apply in respect of any international agreement or arrangement relating wholly or mainly to taxation or any domestic legislation or arrangements consequent to such legislation relating wholly or mainly to taxation.”
However, the tribunal in the Vodafone arbitration clearly did not consider this provision as a limitation on its jurisdiction to consider Vodafone’s FET claim, even in a scenario where Vodafone’s claim implicated the amendments made to the Income Tax Act, 1961. While the reasons behind this conclusion are unclear, the mere fact that the tribunal was able to arrive at this decision, and went on to consider Vodafone’s claims, suggests that this provision does not convey India’s policy stance with sufficient vigour.
This inference attains additional strength when Article 4(4) of the BIT is compared with the taxation carve-out treaty provisions relevant in Cairn, Vedanta, and Nissan.
On the one hand, Article 4(4) of the BIT represents a minor improvement on the carve-out in Article 4(3) of the India-UK BIT, which is the treaty invoked in both Cairn and Vedanta. Article 4(3) of the India-UK BIT is limited in its scope. It appears to exclude from the jurisdiction of a tribunal only those taxation-related claims that allege a breach of the state’s obligations regarding national and most-favoured-nation treatment. Unlike the case in the Vodafone arbitration, Article 4(3) of the India-UK BIT does not make any reference to claims involving other treaty obligations, such as the FET obligation in Article 3(2) or obligations in Article 5 relating to Expropriation.
One the other hand, the limitations of Article 4(4) of the BIT stand out in comparison to the taxation carve-out in the more recent India-Japan CEPA. Article 10(1) of the India-Japan CEPA, which was the basis of India’s objection in Nissan, provides that “the provisions of this Agreement shall not apply to any taxation measures.” Unlike Article 4(4) of the BIT or Article 4(3) of the India-UK BIT, Article 10(1) does not attempt to exclude any specific type of treaty claims. Instead, the provision renders the entire treaty inapplicable in respect of any taxation measure. This conclusion is consistent with the fact that Article 10(1) is included in the CEPA as a General Provision in Chapter 1, and not in the specific Chapter 8 titled “Investment”.
The above comparison is both necessary and telling. It enables one to appreciate the significance of the Vodafone award and derive two important conclusions regarding India’s treaty practice, without speculating the reasoning behind the tribunal’s findings.
Firstly, if India were to maintain its policy stance of excluding taxation measures from investment treaty jurisdiction, then it may need to incorporate broader treaty provisions that mirror its objectives. Article 4(4) of the BIT and Article 4(3) of the India-UK BIT are largely inadequate in this regard. However, the more recently negotiated provisions in Article 10(1) of the India-Japan CEPA, as well as the provision in Article 2.4 of the Model Indian BIT 2016, provide better guidance while negotiating future treaties.
Secondly, the fact that the Vodafone arbitration tribunal was able to affirm its jurisdiction despite the existence of Article 4(4) of BIT is concerning. To a cynic, it suggests that in case of any ambiguity in the wording of a taxation carve-out in the invoked treaty, investment treaty tribunals are more likely to endorse an interpretation that allows them to affirm jurisdiction. Thus, notwithstanding the degree of exclusion in an investment treaty, it is likely India will continue to find itself in investment treaty proceedings involving taxation measures. As such, Indian agencies must continue to sensitise themselves about India’s treaty obligations to ensure that another decision like the Vodafone award can be avoided.
ABOUT THE AUTHORS
The authors are lawyers at P&A Law Offices, New Delhi, and represent the Republic of India in investment treaty arbitration proceedings. The contents of this post reflect only the personal views of the authors, and not of P&A Law Offices or any other organisation that they may be affiliated with.
The authors may be contacted at harshad.pathak@mids.ch and ranjeevkhatana@gmail.com.
