Cairn v. India: The paradox of foreign courts implementing India’s unenforceable BIT awards

Cairn v. India: Paradox al instanţelor străine în exerciţiul acestora de a implementa sentinţe pronunţate în temeiul BIT, non-executorii în India

Akshita ROHATGI

ABSTRACT

In 2020, the Permanent Court of Arbitration (PCA) held India guilty of violating the UK- India Bilateral Investment Treaty (BIT) by imposing a retrospective tax on foreign investors. It awarded the petitioner, Cairn Energy, 1.2 billion dollars in damages. India refused to pay up and appealed the PCA’s verdict. The award’s enforcement in India is uncertain due to ambiguous national jurisprudence. Indian High Courts hold different views on whether BIT disputes are categorised as commercial disputes enforceable under the New York Convention. Moreover, the public policy exemption may cause the award to be set aside for violation of India’s sovereign rights to taxation.

The New York Convention leaves other arenas for enforcing foreign...