By Sarthak Malhotra
The Government of India is inviting foreign and domestic law firms for the purpose of representing it in disputes under the BITs and other investment protection agreements. For this purpose, the firms are requested to submit a technical and financial proposal before 5:00 PM, February 19, 2016.
According to the Request for Proposal Document, the scope of work for such law firms would include advising the Government on legal issues arising out of the arbitration proceedings and prepare strategies in whatever capacity chosen by the Government.
A noteworthy minimum eligibility criterion is that the law firm or the individuals comprising the team must have a minimum experience of ten years in legal and arbitration practice. The firms must also demonstrate that they are free from any conflict of interest. A conflict of interest would exist if:
[T]he law firm concerned has either advised represented in the past 12 months of the start of the engagement or is currently advising/representing ANY of the following:
- any person, whether natural or juridical. Indian or foreign, other than the GOI, in a dispute under any of the Bilateral Multilateral Investment Treaties/Free Trade Agreements/ Comprehensive Economic Cooperation Agreements/ Comprehensive Economic Protection Agreements (BITs/FTAs/CECAs/CEPAs) entered into by the GOI;
- any person, whether natural or juridical. Indian or foreign, other than the GOI. in a subject matter or issue related to a dispute under any of the BITs/FTAs/CECA/CEPAs entered into by the GOI;
- any person, whether natural or juridical. Indian or foreign, other than the GOI. Which is currently involved in a dispute under any of the BITs/FTAs/CECAs/CEPAs entered into by the GOI. in any other matter, whether independently or on a permanent basis, irrespective of whether the matter is related to the BIT dispute or not. and irrespective of the fact whether the engagement was direct or indirect.
Provided that a conflict of interest would exist, if the law firm concerned or any individual lawyer associated with the law firm has either advised represented at any point in time the party, which has brought the claim under the BITs/FTAs/CECAs/CEPAs or its promoters or group companies for a matter or policy issue directly under dispute or subject matter of the dispute.
It is no secret that India is facing a string of treaty claims by foreign investors. Recently, Cairn Energy filed a claim under the UK-India BIT after the Indian tax authorities demanded $1.6 billion in taxes. This tax demand is related to a retrospective amendment to the Income Tax Act which is also subject of the arbitration between Vodafone and Government of India.
This has been followed by another claim by two entities based out of UAE- Strategic Infrasol Foodstuff LLC and a Thakur Family Trust-Ace Hospitality Management DMCC JV. These entities are members of a consortium based in UAE and are alleging cooperation in fraudulent activities carried out by Shapoorji Pallonji Group (SP Group) in certain real estate projects in India. The notice alleges that the Government through its various organs aided the “fraudulent efforts of the SP Group by believing, relying on and acting on the forged documents provided by the SP Group, ignoring the investments made by the claimants”.
The Request for Proposal Document can be accessed here:
International Law Square 
India has CECA with Singapore. Lets say Indian lawfirm named ‘A’ was representing an Indian company ‘B’ against Singapore in an investment arbitration regarding expropriation of B’s investment in Singapore.
Now if Singaporean company named ‘Z’ initiates investment arbitration against India regarding expropriation or any other unfair treatment of Z’s investment in India, would lawfirm A be eligible to represent India?
From my understanding of what is mentioned above, lawfirm A would be considered to have a conflict of interest because it is representing an ‘entity other than GOI’ in a ‘dispute under CECA entered into by GOI’.
Am I correct?
What are your thoughts regarding this provision? According to me, it seems manifestly unfair! Why in the world should you disqualify a lawfirm which has represented an Indian company in a dispute arising under the same BIT/CECA? Infact, this lawfirm is likely to be the most familiar with the particular BIT/CECA and have the most experience in handling matters related to it!
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