Amicus Curiae appointed in long-running Vodafone saga

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Delhi High Court has appointed Sumeet Kachwaha, the managing partner of Kachwaha & Associates, as an amicus curiae (impartial adviser) to assist in the dispute between the government and Vodafone Group.

In the matter pending before a single judge of Delhi High Court, the government had on 22 August been granted an order restraining Vodafone from initiating arbitration proceedings under the India-UK Bilateral Investment Protection Agreement. Vodafone had earlier initiated arbitral proceedings on the same issue against the government under the India-Netherlands Bilateral Investment Protection Agreement and the court held that it “amounts to abuse of process of law”.

Senior advocate Harish Salve, who was representing Vodafone, told the high court on 28 October that the matter of abuse of process of law should be “heard at the threshold of the UK treaty arbitration proceedings”. Delhi High Court clarified that both the government and Vodafone are “are free to participate in the proceedings for appointment of a presiding arbitrator” of the UK tribunal. The case has been adjourned to 17 November.

Vodafone had moved its long-running dispute with the government to arbitration under the bilateral investment promotion and protection agreements. The company has been disputing a US$2.5 billion tax demand notice issued after a 2012 retrospective amendment of the Indian tax code allowed tax authorities to re-fix liability on it. The Supreme Court in January 2012 had ruled against the tax authorities who had been pursuing Vodafone for capital gains tax due on its US$11 billion acquisition of Hutchison Essar in 2007.