Don’t force Cairn to stop cess case, SG advises govt Gireesh

Don’t force Cairn to stop cess case, SG advises govt
Gireesh Chandra Prasad
Posted: Friday, May 27, 2011 at 0320 hrs IST: Solicitor general of India Gopal Subramanium has told the government that it cannot force Cairn India to withdraw the arbitration on a tax dispute by making it a precondition for approving its proposed majority stake sale to London-based Vedanta Resources.
The SGI has said Cairn cannot be denied its right to legal remedy in disputes with the government. The petroleum ministry has left it to a ministerial panel, which is meeting on Friday under finance minister Pranab Mukherjee’s chairmanship, to decide whether Cairn should be forced to drop its arbitration proceedings against the government by making it a precondition for approving the company's proposed $9.6-billion stake sale to Vedanta Resources.
Cairn has disputed the excise department's demand to pay cess under the Oil Industry Development Act — R2,500 a metric tonne now — but has been paying it under protest and has resorted to arbitration in UK. Cairn believes that it need not pay the cess as it is not specifically mentioned in its production sharing contract with the government. The country's second law officer was specifically asked about the tenability of a directive to Cairn to drop its arbitration proceedings on the cess issue.
“The issue which arises is whether government can prevent the exercise of rights which are preserved under an agreement. The answer is obviously in the negative,” the SGI told the government in a recent communication. The SGI’s views suggest that forcing Cairn to drop the arbitration proceedings would amount to imposing a restraint on the company’s rights to legal remedy. “The rights of a party under an agreement are not to be restrained,” the SGI has said.
Subramanium believes that any fresh understanding arrived between the state and the company could, however, prevail upon the earlier contract. The SGI has also suggested that negotiations for such understanding must be based on fairness, equity and respect for contractual terms. The government can certainly impose conditions that preserve public interest, but they have to spring from fairness, vigilance and public interest, the SGI told the government.
The petroleum ministry has also left it to the ministerial panel to decide whether the royalty that Cairn’s partner ONGC pays on their joint venture’s Rajasthan crude output be made a recoverable cost. Cairn disapproves of such conditions that could impact its valuation. Cairn India CEO and MD Rahul Dhir on Wednesday said quoting the production sharing contract that ONGC, as the licensee, should bear the 20% royalty on crude output. Dhir also stated that royalty is not a contract cost eligible for cost recovery.
“A country’s access to foreign capital and technology would depend on whether it provides a fair treatment to all enterprises. Conditions imposed on the entry or exit of foreign investors can be justified only if they are meant to protect genuine public interest. As a democratic nation, we have to provide a level playing field to all companies without bias to public or private sector entities,” said Kalpana Jain, senior director, Deloitte Touche Tohmatsu India.
Gireesh Chandra Prasad
Posted: Friday, May 27, 2011 at 0320 hrs IST: Solicitor general of India Gopal Subramanium has told the government that it cannot force Cairn India to withdraw the arbitration on a tax dispute by making it a precondition for approving its proposed majority stake sale to London-based Vedanta Resources.
The SGI has said Cairn cannot be denied its right to legal remedy in disputes with the government. The petroleum ministry has left it to a ministerial panel, which is meeting on Friday under finance minister Pranab Mukherjee’s chairmanship, to decide whether Cairn should be forced to drop its arbitration proceedings against the government by making it a precondition for approving the company's proposed $9.6-billion stake sale to Vedanta Resources.
Cairn has disputed the excise department's demand to pay cess under the Oil Industry Development Act — R2,500 a metric tonne now — but has been paying it under protest and has resorted to arbitration in UK. Cairn believes that it need not pay the cess as it is not specifically mentioned in its production sharing contract with the government. The country's second law officer was specifically asked about the tenability of a directive to Cairn to drop its arbitration proceedings on the cess issue.
“The issue which arises is whether government can prevent the exercise of rights which are preserved under an agreement. The answer is obviously in the negative,” the SGI told the government in a recent communication. The SGI’s views suggest that forcing Cairn to drop the arbitration proceedings would amount to imposing a restraint on the company’s rights to legal remedy. “The rights of a party under an agreement are not to be restrained,” the SGI has said.
Subramanium believes that any fresh understanding arrived between the state and the company could, however, prevail upon the earlier contract. The SGI has also suggested that negotiations for such understanding must be based on fairness, equity and respect for contractual terms. The government can certainly impose conditions that preserve public interest, but they have to spring from fairness, vigilance and public interest, the SGI told the government.
The petroleum ministry has also left it to the ministerial panel to decide whether the royalty that Cairn’s partner ONGC pays on their joint venture’s Rajasthan crude output be made a recoverable cost. Cairn disapproves of such conditions that could impact its valuation. Cairn India CEO and MD Rahul Dhir on Wednesday said quoting the production sharing contract that ONGC, as the licensee, should bear the 20% royalty on crude output. Dhir also stated that royalty is not a contract cost eligible for cost recovery.
“A country’s access to foreign capital and technology would depend on whether it provides a fair treatment to all enterprises. Conditions imposed on the entry or exit of foreign investors can be justified only if they are meant to protect genuine public interest. As a democratic nation, we have to provide a level playing field to all companies without bias to public or private sector entities,” said Kalpana Jain, senior director, Deloitte Touche Tohmatsu India.