The Vodafone Group on Monday told the Delhi High Court that it was agreeable to consolidation of the two international arbitrations it has initiated against India in connection with a tax demand of Rs 110 billion under a retrospective law of 2012.
Vodafone has initiated arbitration proceedings under the India-United Kingdom and India-Netherlands Bilateral Investment Protection Agreement (BIPA) in connection with the tax demand raised against the company in relation to its $11 billion deal acquiring the stake of Hutchison Telecom.
The telecom major's lawyer, senior counsel Harish Salve, told Justice Manmohan that it will tell the second tribunal, under the India-UK BIPA, to consolidate the two proceedings if India consents to it.
Salve said this would be the company's defence against India's argument that the two proceedings under the different BIPAs was an abuse of the process of law.
The senior lawyer also said that since the Supreme Court had allowed appointment of a presiding arbitrator in the second arbitration under India-UK BIPA, nothing survives in the central government's suit opposing the proceedings.
The apex court had on December 14 last year said that the chairman or presiding arbitrator can be appointed so that the tribunal is set up but it should not commence hearing till the Delhi High Court decides the pending matter by January 10.
"Domestic courts have no role to play in public international law," he said and added that since the second arbitral tribunal has also been formed, the high court need not hear the matter any more.
He also argued that the government should go after Hutchison since it primarily earned money from the transaction.
The arguments remained inconclusive today and will continue tomorrow.
The Centre had earlier argued that disputes encompassing tax demands raised by a host state were beyond the scope of arbitration provided under the BIPA as taxation is a sovereign function and can only be agitated before a constitutional court of the host state.
It had also argued that laws passed by Parliament cannot be adjudicated by an arbitral tribunal and do not fall within the ambit of BIPA or any other international treaty.
As Vodafone had not deducted the tax at source, the government had raised the demand of Rs 11,000 crore which was subsequently quashed by the Supreme Court on January 20, 2012.
Thereafter, the government made a retrospective amendment to the IT Act which re-fastened the liability on Vodafone.
Aggrieved by the imposition of tax by the retrospective amendment, Vodafone International Holdings BV (VIHBV), Vodafone Group's Dutch subsidiary, had invoked the arbitration clause under India-Netherlands BIPA through a notice of dispute of April 17, 2012 and notice of arbitration of April 17, 2014.
Challenging the second arbitration, the government had said the two claims were based on the same cause of action and seek identical reliefs but from two different tribunals constituted under two different investment treaties against the same host state.