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The Union government has received a fresh opinion
Thursday, May 05, 2011 at 0155 hrs IST
New Delhi: The Union government has received a fresh opinion from solicitor general Gopal Subramaniam that it could clear UK-based Vedanta Resources’ acquisition of Cairn India without forcing Cairn to accommodate ONGC’s demands on royalty burden sharing in their Rajasthan joint venture. The finance ministry too has taken the view that the production sharing contract (PSC) with Cairn Energy ought to be followed in letter and spirit, without being distracted by the interests of a PSU.
ONGC, which holds 30% interest in Barmer oilfield operated by Cairn India, now pays the entire 20% royalty on all of the 1,25,000 barrels a day crude oil output. The state-run company wants this royalty paid to the state government to be recovered as a cost item, which will reduce the joint venture’s profits accordingly. Cairn does not agree to cost recovery of royalty as it would depress the $8.5-$9.6 billion valuation for 51-60% of the stake that Vedanta has agreed to pay.
The fresh opinion from the solicitor general and the finance ministry view are expected to influence the ministerial group led by finance minister Pranab Mukherjee considering the deal for clearance.
The panel is examining whether to clear the deal subject to Cairn conceding to ONGC’s demand for cost recovery of royalty or give an unconditional approval to the deal and leave commercial disputes to courts. The solicitor general had earlier opined that Cairn should agree to cost recovery before getting clearance for the deal. The finance ministry has advised the petroleum ministry that the latter should not be seen as using its regulatory role in settling pending disputes between the consortium members (Cairn India and ONGC) in favour of the state-run enterprise. Emphasising that share transfer and disputes over PSC are two distinct issues, the finance ministry has said that the way out from a bad contract is not through government orders to one of the parties. The ministry said the sanctity of a valid commercial contract between the parties has to be upheld. In the meantime, the Vedanta group has already acquired more than 18% stake in the company through its subsidiary Sesa Goa — 10.4% from Malaysia’s Petroliam Nasional Bhd and another 8.1% through an open offer. Cairn Energy has also taken shareholder permission to extend the deadline for concluding the deal from April 15 to May 20. Government sources said leaving the royalty issue to arbitration could depress the valuation of Cairn India as it leaves it uncertain whether Cairn India will have to eventually agree to cost recovery of royalty. Vedanta might not like to pay the whole agreed price if this uncertainty persists at the time of concluding the deal, they said. Email questionnaires to both the companies remained unanswered even after 24 hours, but sources close to the companies said that Cairn India’s valuation will not be affected if ONGC goes to arbitration “as per the production sharing contract.” “Unless the government unfairly imposes conditions favouring ONGC, the valuation of the company (Cairn India) will not get affected,” said a person privy to the structuring of the deal. The source said that statutory levies like royalty are not cost-recoverable. Besides, the PSC is clear that in case of a dispute, its main provisions that fix the royalty liability on ONGC, will apply, and not the appendix which indicate that the contractor can recover costs. ONGC, the licensee for the block, claims to be a part of the ‘contractor’, along with the field’s operator Cairn India