India pleads for stay in Cairn arbitration matter

India pleads for stay in Cairn arbitration

 

 

An international arbitration panel at The Permanent Court of Arbitration at The Hague in the Netherlands, has rejected India’s income tax department’s plea to stay the proceedings invoked by British oil explorer Cairn Energy Plc against a Rs10,247 crore retrospective tax notice.

Livemint reports that the Indian Government sought the stay on the basis that it has been spending significant resources on the same matter in two arbitration proceedings at different fora, and that the other proceeding which had been initiated by Vedanta was at an advanced stage.

The Statement of Claim filed by Cairn in 2016 stated that the seizure of $1-billion worth of Cairn India shares under the retrospective amendment was in breach of the UK-India Investment Treaty obligations.

The controversy regarding the retrospective Amendment made to the Income Tax Act through Finance Act 2012 relating to the Cairn Case, are, inter alia:

Widely worded amendments to Section 9 that capital gains generated from share transaction between two non-resident entities resulting in indirect transfer of assets lying in India, would be taxable with effect from 1962 (the year of enactment of the Indian Income Tax Act). The effect of the amendment was that many transactions, which would otherwise not be considered as taxable,  capital gains were exposed to this retrospective change. This, now acts as a powerful deterrent for International Companies decisions on potential investment in India due to the unpredictability of Government actions in the future

A brief summary of the Cairn and Vedanta cases against the Indian Government in relation to the retrospective tax amendment:

In 2006, UK-based Cairn UK Holdings (Cairn Energy) sold its shares in Cairn India Holdings (a Jersey based company), which owned 9 subsidiaries in India, to a new company Cairn India (formerly subsidiary of Cairn UK Holdings). Cairn UK sold the majority stake in Cairn India to London-listed Vedanta Resources in 2011 and retained 9.8 per cent shareholding in the company.

In January 2014, the Income Tax (I-T) department carried out a survey at Cairn India and issued a 10,247-crores tax notice to Cairn UK Holdings (former parent company) under the retrospective amendment of 2012 on the grounds that capital gains tax was to be paid for the 2006 transaction involving indirect transfer of assets situated in India.

Further, in April 2014, the I-T department made a tax demand of Rs. 20, 495 crores from Cairn India.

In April 2015, Cairn India filed proceedings in the Delhi High Court against the tax demand I-T Department, and Vedanta Resources sought resolution of the dispute under the UK-India bilateral investment protection treaty through Arbitration and the seat of the arbitration panel was set in Singapore.

Subsequently, Cairn UK Holdings challenged the Final Assessment Order of the I-T Department, at the Delhi-bench of Income Tax Appellate Authority (ITAT), contesting this demand on the grounds that the retrospective amendment was bad in law and the 2006 sale of shares was an internal re-organisation of its India operations and did not get any capital gains out of the transaction.

Simultaneously in 2015, Cairn UK Holdings filed a Notice of Dispute under the UK-India Investment Treaty and the arbitration commenced in January 2016. Cairn UK has sought $1.05 billion in compensation for the loss of value its 9.8 per cent shareholding in its former subsidiary Cairn India following Income Tax Department raising the tax demand in January 2014 and that the expropriation of company’s property without proper compensation, denial of equitable treatment in respect of its investments and its right of free transfer of funds.

In 2016, the Finance Ministry had offered a direct tax dispute resolution scheme offering to waive interest and penalty if the principal tax amounts involved in disputes were paid,  Cairn India declined.

In March 2017, ITAT confirmed the tax demand including the payment of interest amount, against Cairn India (validating the amendment) and at the same time, both the former and current parent companies are fighting the dispute at different arbitration panels seeking protection of their respective positions.

Both companies allege that the retrospective tax legislation passed was a violation of protections accorded under the Bilateral Investment Treaty, and constituted a serious impingement of the protections therein. It is claimed that the ramifications of these decisions will have a great impact on not only Indian Arbitration but also in India’s trade relations with the UK as well as other countries

Read the article on http://www.livemint.com/Industry/jid8tU5o1PpqgkhJgqy4mI/Cairn-arbitration-International-panel-rejects-Indias-deman.html

Read more on the 2012 amendment at http://www.indianeconomy.net/splclassroom/149/what-is-the-controversy-related-to-retrospective-taxation-in-india/

Read the case progress on http://www.thehindubusinessline.com/companies/tax-row-vedanta-names-james-spigelman-to-represent-its-case/article8988413.ece

Find the Finance Bill 2012 here and the relevant amendment at Page 9 http://164.100.24.219/BillsTexts/LSBillTexts/asintroduced/Finance%20Bill,%20Eng..pdf

The Aadhar Card: New Companies Act Filing requirements and Data Security issues in India.

Aadhaar to become compulsory for regulatory filings under the Companies Act    

 

In a significant development to Indian Company Law compliance, the Corporate Affairs Ministry has asked

individual stakeholders, including DIN (Director Identification Number) holders/ Directors/ Key Managerial Personnel to obtain Aadhaar at the earliest for integration of their details with MCA21, the portal through which filings required under the Companies Act are submitted to the Ministry.  The New Indian Express reported that this would help determine the authenticity of individuals and the 8-9 lakh registered companies which did not file annual returns.

Recently, the Government of India, introduced an amendment to the Income Tax Act, making it mandatory for individuals to quote Aadhaar / Enrolment ID of Aadhaar application form, for filing of return of income and for making an application for allotment of Permanent Account Number with effect from 1 July 2017.

Does it affect Non-Resident Indian (NRI) and Foreign Directors? 

According  Aadhaar Act 2016, only a resident individual is entitled to obtain Aadhaar and therefore Non-Resident Indians (NRI) are not required to obtain Aadhaar cards as they are not eligible under Section 3(1) of the Act. The Gulf News reported that CEO of Unique Identification Authority of India (UIDAI), Dr. Pandey had clarified that the relevant government departments are responsible for providing exemption to the NRIs on Aadhaar requirement.

 

 

Indian citizens’ data and digital security

With 1.2 billion Aadhaar card holders, Aadhaar has become one of the largest biometric identification projects in the world. However, concerns have been raised over violation of privacy, identity theft and the possibility of intrusive Government surveillance of residents.

Expansion of services and schemes linked with Aadhaar, raises the possibility of misuse of the Aadhaar information and, at the same time, law limits the scope of the victim to file a complaint and an investigation is possible only on Unique Identification Authority of India (UIDAI) order. The Aadhaar Scheme has 582 banks, brokerages and government departments listed as registered users with access to the data of Aadhaar and no privacy laws protect Indians against the publication of such confidential data.The Economic Times reported, that a government department in April 2017, uploaded the details of a welfare scheme disbursement on the internet, in compliance with transparency norms set by the Right to Information Act, 2005 and citizen’s privacy concerns took a backseat. With increased digitization, citizens are exposed to a greater risk of data theft and it goes beyond the issue of Aadhaar.

A study published by Bengaluru-based Centre for Internet and Society (CIS) on May 1 found that data of over 130 million Aadhaar card holders has been leaked from four government portals. Unaccountability due to lack of Indian laws which provide a stringent data privacy and data protection laws to maintain confidentiality, security and  integrity of data as well as strict laws to punish offenders are glaring loopholes in the existing system.   Following Demonetization, the digital footprint has increased and private sector has increased its spending on security and data protection measures, which has not been the case for government agencies. 

Recently, the Times of India reported that the UIDAI CEO had said, “To say that Aadhaar has been breached, privacy is endangered is incorrect, misleading and even irresponsible,” while arguing that the display of Aadhaar-linked information on websites of government agencies had not led to leakage of biometric information.

According to a 2012 report by the Standing Committee on Finance on this issue, the Government of United Kingdom had repealed its Identity Cards Act, 2006 in 2010, which was very similar to Aadhaar, citing a range of reasons, including high cost, unsafe, untested and unreliable technology, and the changing relationship between the state and the citizen, etc. However in India, there are no signs of any move against Aadhaar these critical issues remain unaddressed. 

 

Lex Meridian provides comprehensive advice and support to Businesses Indian, Foreign Nationals on company formation and all company and commercial law related matters in India and the United Kingdom.

Contact us info@lexmeridian.com  

Non-Resident Indians Alert! June 30 – The Deadline for conversion of the PIO card to OCI card

The Consulate General of India, Toronto and New York has issued a reminder to Non-Resident Indians (NRI) who are  Indo-Canadian and Indian American card holders to convert their PIO (Person of Indian Origin) cards to OCI (Overseas Citizens of India) cards before June 30 2017. The announcements were made in furtherance of the Indian Government’s step for the complete merger of PIO and OCI cards. 

NRI Advocates Delhi and London

The Notification of Indian Government’s Ministry of Home affairs dated 09-January-2015

http://www.hicomind.org.nz/hcinz/assets/ApplicationForms/Gazette-Notification-dated-9-jan-2015.pdf

The merging of the two was to remove the confusion between the PIO and OCI status, which broadly confer similar benefits and to simplify Indian immigration norms by making it easier for overseas Indians to apply for Indian citizenship.

However, the merger allows additional benefits to merged OCI card holders;-

  • PIO card holders previously eligible for 15 years visa, now means that OCI card holders enjoying life long visa free entry to India..
  • Exemption from police reporting.
  • Earlier PIO cards were not allowed to the nationals of Pakistan, Bangladesh, Sri Lanka, Bhutan, Iran, Nepal and China, now after merging, it is available to the nationals of above countries except Pakistan and Bangladesh.
  • To enable for registration as Overseas Citizen of India (OCI) by a minor, whose parents or either parents are Indian Citizens.
  • To enable for registration as OCI by a child or a grand-child or a great grand-child of person who has been citizen of India or undivided India at any time.
  • To enable for registration as OCI by such spouse of a citizen of India or spouse of an OCI registered under section 7A and whose marriage has been registered and subsisted for a continuous period of not less than two years immediately preceding the presentation of the application under this section with prior security checks by Competent Authority.[1]

    THE OVERSEAS CITIZEN OF INDIA CARD

  • It is not mandatory for the PIO card holders to convert their cards to OCI. But the Ministry of
  • External Affairs website advises conversion to avoid any complications during travel to India

Such steps are welcome making it easier for those eligible for OCI status to travel, education, work and trade in India as well as other benefits.

 

See the Press Release – Extension of date of Merger of PIO and OCI Cards dated December 30, 2016

http://www.mea.gov.in/press-releases.htm?dtl/27935/Extension_of_date_of_Merger_of_PIO_and_OCI_Cards

Reference and more information read:

Canada: Consulate General of India sets June 30 deadline for conversion of PIO to OCI

http://www.indiablooms.com/ibns_new/world-details/USN/11095/canada-consulate-general-of-india-sets-june-30-deadline-for-conversion-of-pio-to-oci.html

Last Date for Converting PIO Cards to OCI Cards Nearing: Deadline June 30

http://www.indiawest.com/news/global_indian/last-date-for-converting-pio-cards-to-oci-cards-nearing/article_e63ac1c4-26c6-11e7-9193-13ca6283f412.html

UK Immigration post-Brexit: Overseas Students and the numbers Game

Can the UK Tory rebels push the UK government for better deal on International students? 

The UK Government’s aim to reduce net migration, post-Brexit, to below 100,000 a year will inevitably affect foreign students. Students from India have been particularly hard hit by the successive restrictions to further and High education in the UK. Restricting the number of foreign students would make it easier to achieve the target.

It is reported that 134,000 foreigner students arrived in Britain on Student Visas  in the 12 months to last September, during which net migration totalled 273,000.[1

However, Theresa May, the UK Prime Minister, is facing a revolt from within her party who are adamant on exclusion of foreign students in the immigration figures. The reasons for the resistance to immigration restriction especially targeting foreign students, are given as follows:

  1. The Government’s proposed Policy is based on inaccurate student migration data.
  2. Plans to differentiate the visa regime for universities according to their “quality”  on the basis that that the “best” students should be accepted and its impact on reputable Universities that do not make this grade. 
  3. The reduction in overseas applications which will inevitably affect the education sector and the wider UK economy, as Higher education is one of UK’s most successful exports.
  4. Its affect on the UK’s international relations and trade (where the restrictions will have a disproportionate impact on certain countries such as India). 
  5. The Impact on the UK economy from Foreign students spending which increases revenue
  6. House of Lords Report on the “Higher Education and Research Bill Amendment: International students and the Lord Hannay amendment proposed to the Higher Education and Research Bill proposes to exclude students from the ‘economic migrants’ category (http://www.universitiesuk.ac.uk/policy-and-analysis/reports/Documents/2017/uuk-briefing-lord-hannay-amendment-international-march-2017.pdf)

The amendment has received cross party support.and is due to return to the House of commons by the third week of April.

The UK’s stance on “going global” post Brexit will be reflected in Government’s final decision on the policy of student visa restrictions. The politics behind international relations between UK and India and ambitions for increased trade will be in the backdrop of the paradox between India’s support of its students internationally. Further the challenges of India’s skilled working population working in the face of ever increasing UK immigration restrictions. Both the countries need to be on the same page. How can India and UK bilateral trade increase if the UK restricts the free movement of people in a globalised world, post-Brexit? 

Getting the right advice and assistance on UK immigration post-Brexit is vital. Lex Meridian offers a specialist UK immigration barrister led service in Delhi. If you need advice and assistance on a new application or a Visa refusal contact us today on Delhi  +91 11 41601800 ,  UK +44208123999  or Email us: info@lexmeridian.com

 

Reference:

Tory rebels push government for better deal on overseas students-

https://www.timeshighereducation.com/news/tory-rebels-push-government-better-deal-overseas-students

May rebuffs pressure to exclude students from migration target-

https://www.ft.com/content/9a808ae4-28ff-11e7-9ec8-168383da43b7

Opinionated articles- http://news.sky.com/story/sky-views-brexit-and-the-student-migration-paradox-10840378

http://www.thehindu.com/todays-paper/tp-international/Peers-propose-%E2%80%98student-friendly%E2%80%99-move/article17042663.ece

[1] Andrew Grice, Theresa May faces rebellion from her own MPs over foreign student numbers, The Independent, April 15, 2017 (http://www.independent.co.uk/news/uk/politics/theresa-may-tory-rebellion-foreign-student-numbers-drop-the-target-a7684101.html)

Weekly Indian Law & Legal Sector Updates 29th April 2017

Our weekly round up on Indian legal developments and the law.

 

Poor English results in SC setting aside Himachal HC order

Indian lawyers updates

The Tribune reported that an order of Himachal Pradesh High Court was set aside by the Indian Supreme Court as it was incomprehensible. The order of the High Court was remanded back to it for re-drafting. The message to Indian lawyers and the judiciary: keep it simple. 

Read the full article on The Tribune

http://www.tribuneindia.com/news/nation/poor-english-forces-sc-to-set-aside-himachal-hc-order/393851.html

 

 

The right to privacy & Aadhar Card issue needs to be settled by court: Attorney-General

Livemint reported that India’s Attorney General’s (A-G) comments on the legal issues of Aadhaar card. The A-G addressed the importance of Aadhaar in  social welfare schemes, the right to privacy, the criticism of Aadhaar and collection of biometrics and  the role of the Unique Identification Authority of India.

Read more about the interview   on Livemint  http://www.livemint.com/Politics/k8iqZg5Yxa6q1cfYKLSgmK/The-larger-question-on-privacy-needs-to-be-settled-by-court.html

 

 

Indian Goods & Service Tax reform “an act of courage”: IMF chief

India Today reports that the IMF Chief Christine Lagarde appreciated the Indian Government’s GST reform aimed at the creation of a uniform market by substituting the local levies with a federal tax regime. The political will of the present government in bringing the Indian bankruptcy law and demonetization was also acknowledged.

Full Article on India Today http://indiatoday.intoday.in/story/gst-reform-an-act-of-courage-imf-chief/1/934226.html

 

 

Corporate Affairs Ministry amends Indian Companies Act and adds new rules

Indian Corporate and Company law sees a major shift with the newly notified Section 234 of The Companies Act 2013. This widens the scope and ambit of mergers between Indian and Foreign companies. The Business World reported the change in law and its implications on the Indian Companies and the Corporate sector.

Find the Notification on http://www.mca.gov.in/Ministry/pdf/section234Notification_14042017.pdf  and the Amendment to the rules on http://www.mca.gov.in/Ministry/pdf/CompaniesCompromises_14042017.pdf

Read about the impact on Business World http://businessworld.in/article/Corporate-Affairs-Ministry-Tweaks-Companies-Act-Adds-New-Rules/21-04-2017-116794/

and in  The Economic Times
http://economictimes.indiatimes.com/news/company/corporate-trends/india-eases-rules-to-allow-merger-of-indian-companies-with-foreign-firms/articleshow/58249903.cms

 

 

WhatsApp Privacy Policy: Govt states to SC its Working on a Data Protection policy. 

Bloomberg Quint reported that the Attorney General of India (A-G) requested the Supreme Court to postpone the hearing of the Whatsapp privacy policy matter as the Telecom Regulatory Authority of India (TRAI) is of formulating a comprehensive data protection framework, which will be finalised in a few months and could potentially affect the case.

Read a brief history of the matter on Bloomberg Quint https://www.bloombergquint.com/technology/2017/04/18/whatsapp-privacy-policy-government-tells-supreme-court-its-working-on-data-protection

 

 

Trump order a future challenge for Indian immigration in the IT Sector 

The latest executive order of the US Government concerning immigration and the H-1B visa to further the ‘Hire American’ Policy and its impact on Indian IT firms’ hiring scheme in future. The Times of India report focuses on the immediate effect of the order and the profitability of the industry.

Full article on The Times of India http://timesofindia.indiatimes.com/business/india-business/trump-order-a-future-challenge-for-indian-it/articleshow/58273100.cms

 

 

Indian Arbitration: CJI advocates ” zero govt. role”  in arbitration process

The Hindu reported Justice J.S. Khehar, the Chief Justice of India (CJI), who delivered a speech at the inaugural ceremony of the Engaging Asia Arbitration Summit. The CJI spoke on the increasing potential of India in International Commercial Arbitration in the continent and the promotion of Alternative Dispute Resolution (ADR) methods by the government and the judiciary.

Find the full article on The Hindu on this link:  http://www.thehindu.com/news/national/india-becoming-hub-of-international-arbitration-cji/article18189439.ece

 

 

India and the European Union continue talks and trade 

The Hindu reported the visit of Federica Mogherini, High Representative of the European Union to India. It reported that this will boost ties between India and EU which were impacted by the on going Italian Marines issue.  It also reported a possible relaunch of ‘Joint working groups’ in the sector of Science & Technology and Defence.

To read more, : http://www.thehindu.com/news/national/india-eu-likely-to-resume-talks/article18161848.ece

 

 

Mondelez India bribery case may see top guns face off in the US

The Economic Times reported that a team from the US Department of Justice may visit Mondelez India to investigate the 7-year-old bribery and corruption case against Mondelez Inc under the USForeign Corrupt Practices Act regime, against each other, since one of them left the department and has been hired by Mondelez to fight the case.
Read the details of the case on The Economic Times http://economictimes.indiatimes.com/news/company/corporate-trends/probe-into-seven-year-old-mondelez-india-bribery-case-likely-to-conclude-by-month-end/articleshow/58287616.cms

 

 

Eight women’s panels seek stringent law on sham marriages by NRI’s

WebIndia123 reported that Women Commissions from 8 States of the country got together and insisted on a stricter law on the issue of sham marriages by Non Resident Indian bridegrooms at a national seminar organised jointly by the Punjab State Commission for Women and the National Commission for Women.

Find the full article on Webindia123 http://news.webindia123.com/news/Articles/India/20170420/3096774.html

 

 

Outsourcing Woes: Indian IT firms facing more US lawsuits with changing business environment

There is a worrying trend in  lawsuits against Indian IT firms over alleged breaches of contract and delayed service delivery in the outsourcing and IT sectors.  This report by the Business Standard analyses the effect of changing dynamics on business leading to the increase in lawsuits against Indian Companies and Corporates in this sector.

Read the full article on Business Standard http://www.business-standard.com/article/companies/indian-it-firms-face-more-lawsuits-with-changing-business-environment-117042100453_1.html

The ‘Skype kids’: the effect of stringent UK immigration laws on Spouses

dreamstime_xl_20570591-300x138For British Indians, Pakistanis and Bangladeshis  families are the closest relationships to their country of origin. It is therefore not surprising that second generation British Asian often marry and start their families with partners from these countries.

However, the increasingly stringent UK spouse visa requirements that the unless the household income of a British national is over £18,600 and £22,400 respectively, has led to arbitrary separation on married couples and their families.
Research by the Joint Council for the Welfare of Immigrants (JCWI) which was reported in the Guardian highlights how strict regulations are tearing families apart, and causing distress among children who are forced to skype their parents from overseas . The report cites the detrimental effect on children hindering their development. Tendencies are also being noted where the children are socially withdrawn, disobedient and are also having a hard time adjusting to school without their mothers.

Under the Rules, the incoming partner’s future cannot count towards meeting the threshold . Furthermore, wider family support cannot be taken into account.. The Government’s main failing is there inability to acknowledge the structure of Indian families. Spousal support for wives comes not only from the income that their husbands generate, but also from what the in laws provide additionally.

In those circumstances, the JCWI argues that a provision should be made allowing foreign spouses to settle in the UK. The present rules do not bode well for protecting a British national’s right to a private and family life under Article 8. For now, mothers can depend on technology to bridge the gap but the policy to exclude spouses seems untenable and extremely unfair.

What does the JCWI recommend?

In the Report, the JCWI highlights three pertinent recommendations:

(i) Firstly, they are insistent on calculating a partner’s earnings when taking into account the means for them to support their wives.

(ii) The JCWI also suggest third parties support to be taken into consideration. As mentioned earlier, this is reasonable since it takes into account the families’ financial standing to support their children, and ought to be brought into effect.

(iii) Reducing the threshold for income from savings to count without being liquidated.

Lex Meridian’s view

As a law firm which specializes in UK immigration from India, we have already seen how difficult it is for the spouses of UK citizens to conduct their normal family life because of arbitrary distances imposed by increasingly stricter and tighter regulation.
In our experience, the overwhelming majority of applicants of spouses from India are genuine families who are seeking to establish themselves in the UK and contribute to the UK economy.
The JCWI is commended for its report and its findings should be carefully considered by the UK Government and policy makers.

Source: www.theguardian.com%2Fsociety%2F2015%2Fsep%2F09%2Fimmigration-income-threshold-creates-thousands-of-skype-kids-says-report&usg=AFQjCNGPvlUwfUur772zsQzF6TGX9YBUkw&sig2=vQ1B2_hKkTFoqynsiu1OfQ&bvm=bv.102537793,d.c2E

Survey on anti-bribery and corruption by deloitte

According to a survey by Deloitte Forensic around 55 per cent of the people said that they were not sure if their organisation had specific policies on anti-bribery and what it said, 61 per cent said their companies did not discuss such issues that are related to bribery and corruption. Also 65 per cent said they did not receive emails from their senior management pertaining to this issue. Continue reading

UK visa are mostly approved despite stricter regulations.

In an attempt to reduce concerns among students and business persons regarding the strict UK visa regime, officials from the United Kingdom Home Office say the reason for the decrease in the student immigration from India to the UK has nothing to do with the strict visa rules of the country. Continue reading