Webinar: Investing in India – An update on the landscape and challenges for inbound investment

Monday 7 September 2015, 12.30 – 1.30pm BST

With the Modi Government well into its second year, we review the economic, political and legal environment for foreign direct investment (FDI) into India. With some still calling for ‘big bang’ reforms to transform the investment landscape, others are hailing perceived incremental changes of policy and practice by a government apparatus still trying to shape itself to majority rule after decades of coalition and compromise.

Meanwhile, the larger Indian economy has continued to grow at more than 7% a year, making India the fastest-growing big economy in the world.

In this webinar, we are joined by Dr Gareth Price, Senior Research Fellow in the Asia Programme at the independent policy institute Chatham House based in London. Dr Price will consider the progress of economic reform in India and what it means for ongoing and future FDI.

He will be joined by Alan Montgomery, Head of Mergers & Acquisitions in the India Practice at Herbert Smith Freehills who will reflect on his ‘on the ground’ experiences of handling investment into India. Also speaking will be Nicholas Peacock, Head of the India International Arbitration Practice at Herbert Smith Freehills who will provide an update on enforcement and rule of law issues for inbound investors, including the challenges of negotiating the Indian court system, international arbitration, and the use of investment treaty protection.

The session will be moderated by Chris Parsons, the Chairman of Herbert Smith Freehills’ India Practice.

The webinar is part of our series of “Soundbite” webinars, which are designed to update clients and contacts on the latest developments without having to leave their desks. The webinars can be accessed “live”, with a facility to send in questions by e-mail, or can be downloaded as podcasts after the event. If you would like to register for a webinar, or to obtain a link to the archived version, please contact Prudence Heidemans. The webinars, both live and archived, also qualify for one CPD point.

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Recent Developments in India-related international arbitration

Herbert Smith Freehills has issued the latest edition of its Indian international arbitration e-bulletin.  

In this issue, we review a number of recent arbitration-related decisions of the Indian courts, in particular a Supreme Court ruling on applicability of BALCO to an agreement varied after 6 September 2012 and a decision by the Delhi High Court issuing anti-arbitration injuction against London arbitration. We also provide an update on prospective changes to India’s investment arbitration and domestic dispute resolution landscapes.

For further information, please contact Nicholas Peacock, Head of India Arbitration Practice, Alastair Henderson, Managing Partner-SE Asia, Donny Surtani, Senior Associate, or your usual Herbert Smith Freehills contact.

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Fifth edition of our Legal Guide on Dispute Resolution and Governing Law Clauses in India-related Commercial Contracts

Herbert Smith Freehills has published a new edition of its well-regarded guide on dispute resolution and governing law clauses in India-related commercial contracts. The Guide is intended to assist in-house counsel who handle India-related commercial contracts on behalf of non-Indian companies and who need to have a practical understanding of the nuances of drafting dispute resolution and governing law clauses in the Indian context.

To access an extract of the guide please click here. If you would like to request a copy please email asia.publications@hsf.com.

For further information, please contact Nicholas Peacock, Head of India Arbitration Practice, Alastair Henderson, Managing Partner-SE Asia, Donny Surtani, Senior Associate, or your usual Herbert Smith Freehills contact.

Nicholas Peacock
Nicholas Peacock
Partner
+44 20 7466 2803
Alastair Henderson
Alastair Henderson
Partner
+65 6 868 8000
Donny Surtani
Donny Surtani
Senior Associate
+44 20 7466 2216

Head of India Arbitration Practice, Nick Peacock, comments on India’s draft Model BIT 2015 for CNBC TV18’s “The Firm”

As reported in our recent blog post here, India has recently released a draft  “Model Text for the Indian Bilateral Investment Treaty” (“Model BIT“).  Head of the India Arbitration Practice, Nick Peacock was invited to comment on the Model BIT for CNBC TV18’s The Firm, India’s only television programme covering corporate law, M&A, financial regulation, tax and audit matters.

In the interview, Nick discusses a number of the provisions in the Model BIT, including the potentially broad scope of the exclusions which could impact the protection offered to investors, the removal of the “Most-Favoured Nation” provision found in India’s 2003 Model BIT and in many hundreds of bilateral investment treaties entered into across the globe, and the more limited national treatment provisions.  Nick also comments on the implications of the Model BIT for Indian investors seeking protection for their investments outside India.

The programme can be accessed here.

To discuss the implications of the Model BIT or investment protection more generally, please contact Nick Peacock, Partner, or your usual Herbert Smith Freehills contact.

Nicholas Peacock
Nicholas Peacock
Partner
+44 20 7466 2803

Supreme Court of India Clarifies the Scope of Public Policy grounds for Challenging a Domestic Arbitration Award under Section 34 of the Arbitration and Conciliation Act

In a decision handed down recently, the Supreme Court of India found that the Delhi High Court had overstepped its powers and wrongly set aside a domestic arbitration award. In the process, the Supreme Court has clarified the scope of the “public policy ground” to set aside awards under Section 34(b)(ii) of the Arbitration and Conciliation Act (Act).

The Supreme Court was critical of the Delhi High Court re-opening an arbitrator’s award on merits by reviewing evidence considered by the arbitrator and even considering evidence above and beyond that which the arbitrator had the opportunity to consider. The Supreme Court advocated giving due weight and recognition to a determination by an arbitration – especially on issues of fact. The court recognized that an award could only be set aside on grounds of public policy in very limited circumstances, such as where an award was arbitrary, capricious or such that it would shock the conscience of the court.

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Delhi High Court issues anti-arbitration injunction against London arbitration

In a striking decision which bucks the trend of pro-arbitration decisions from the Indian judiciary in recent years, a single judge of the Delhi High Court has restrained McDonald’s from invoking an LCIA arbitration clause in its joint venture agreement with its local partner. The court’s order was issued on the basis that the arbitration agreement was inoperative or incapable of being performed, and on the basis that in an arbitration involving predominantly Indian parties and Indian law, London was a forum non conveniens and therefore the arbitration proceedings were “vexatious” and “oppressive“.

The decision may be subject to appeal, but in the meantime will raise concerns for any parties facing opposition in India to attempts to invoke offshore arbitration in Indian law agreements.

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Recent Developments in India-related international arbitration

Herbert Smith Freehills has issued the latest edition of its Indian international arbitration e-bulletin. This issue considers a number of interesting decisions of the Indian courts, in particular a Delhi High Court judgment which clarifies issues of currency conversion and interest claims when enforcing foreign awards in India, as well as a Bombay High Court ruling that non-signatories to an arbitration agreement were nonetheless bound by it.

We also highlight a decision of the English High Court relating to the enforcement of an LCIA London arbitral award against an Indian party, followed by a round-up of recent Indian arbitration-related news.

UNCLOS Annex VII Tribunal decides Bangladesh-India maritime boundary dispute

On 7 July 2014, an Arbitral Tribunal constituted under Annex VII of the United Nations Convention on the Law of the Sea 1982 (the Convention) issued its award in the Bay of Bengal Maritime Boundary Arbitration between the People’s Republic of Bangladesh and the Republic of India, granting approximately 106,613km2 to Bangladesh and 300,220 km2 to India, out of a total relevant area of 406,833km2. The Award provides much needed clarity on the maritime entitlements of both Bangladesh and India.

Like the 2012 decision of the International Tribunal for the Law of the Sea (ITLOS) in the Bangladesh/Myanmar case, a consequence of the delimitation was the creation of a small “grey area” creating potential overlapping entitlements of Bangladesh, India and Myanmar (which was not a party to the arbitration).

While in deciding larger uncertainties over the entitlements of Bangladesh and India the Tribunal created new (albeit smaller) uncertainties over competing sovereign rights in the grey area, the Tribunal’s encouragement of the parties to cooperate in the exercise of their sovereign rights is to be welcomed. There are a number of precedents where states have shared rights in maritime areas to achieve a favourable solution for all parties.

The Award also provides an excellent precedent for the peaceful settlement of maritime boundary disputes and shows how States can de-politicise sovereignty issues and cooperate to achieve political and commercial certainty.

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Upcoming Webinar: India Insights: the challenge of India-related dispute resolution and the post-election Investment landscape

Monday 7 July 2014 9.30am BST

It has been a time of change for the investment climate in India – driven in large part by recent and very significant changes in the political climate in India, changing attitude of the Indian courts and an increasing willingness of foreign investors to take on the Indian state.

In this webinar, our speakers will draw from their knowledge and experience to discuss their views of some of the opportunities and challenges for investors into India, and in particular the role played by Indian law, the Indian courts and the Indian arbitration system. As always, the stability and efficiency of the Indian legal regime will be critical to converting optimism and interest into investment and economic growth. Our speakers will review the current legal climate in India, recent decisions impacting on the use of courts and arbitration both in India and outside India, and best practice for parties looking to maximise protection for their inbound investment. They will also consider the recent spate of investment treaty arbitrations launched against India and what this may mean for the resolution of current and future disputes with the Indian state.

Speakers:

  • Chris Parsons, Chairman, India Practice
  • Nicholas Peacock, Partner, Head of India International Arbitration Practice
  • Kritika Venugopal, Associate
  • Vikas Mahendra, Associate

If you would like to register for this event please contact Prudence Heidemans.

A webinar is an online seminar delivered to your desktop.  On the day of the webinar you will be sent a link to login to the live event.

The webinar is recorded so you can listen again. If you are unable to listen to the live event register anyway and you will be able to listen to the recorded version when convenient.

The webinar is interactive and we welcome questions from our audience. Email your comments to the speakers on the day using the appropriate tab on the player.

Indian Supreme Court upholds ability of arbitrators to decide issues of fraud

In another pro-arbitration decision emanating from the Supreme Court of India in the case of World Sport Group (Mauritius) Ltd v MSM Satellite (Singapore) Pte Ltd,¹ the court referred to arbitration a dispute involving allegations of fraud. In doing so, the court read restrictively its previous decision in N Radhakrishnan v Maestro Engineering² – where it had held that issues of fraud fell more properly to be determined by courts. The court held that the interpretation given in Radhakrishnan applied only to domestic arbitration. The recent decision further reduces the risk of interference by courts in foreign-seated arbitrations.

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