Arising out of SLP (Civil) No.7172 of 2020) GOVERNMENT of INDIA …APPELLANTS Versus 1
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REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 3185 OF 2020 (Arising out of SLP (Civil) No.7172 of 2020) GOVERNMENT OF INDIA …APPELLANTS Versus 1. VEDANTA LIMITED (Formerly Cairn India Ltd.) 2. RAVVA OIL (SINGAPORE) PTE. LTD. 3. VIDEOCON INDUSTRIES LIMITED … RESPONDENTS J U D G M E N T INDEX I Background Facts 2 II Relevant Terms of the Production Sharing Contract 3 III Genesis of Dispute 8 IV Challenge to the Award before the Seat Courts at Kuala Lumpur 13 V Submissions on behalf of the Appellants 15 VI Submissions on behalf of the Respondents 22 VII Discussion and Analysis 28 Part A Limitation for filing an enforcement/ execution petition of a foreign 28 award under Section 47 of the 1996 Act Part B Scheme of the 1996 Act for enforcement of New York Convention 37 awards Part C Whether the Malaysian Courts were justified in applying the 44 Malaysian law of public policy while deciding the challenge to the foreign award? Part D Whether the foreign award is in conflict with the Public Policy of 54 India? 1 INDU MALHOTRA, J. Leave granted. The present Civil Appeal has been filed by the Government of India to challenge the Judgment and Order dated 19 February 2020 passed by the Delhi High Court, wherein the application under Section 48 of the Arbitration and Conciliation Act, 1996 being I.A. No. 3558 of 2015 filed by the Government of India has been dismissed; the Application filed under Section 47 read with 49 being O.M.P. (EFA) (Comm) 15 of 2016 for the enforcement of the foreign award by the Respondents, and the I.A. No. 20149 of 2014 for condonation of delay in filing the execution petition by the Respondents were allowed. I. Background Facts In 1993, the Government of India was desirous of exploring and developing the petroleum resources in the Ravva Gas and Oil Fields (lying 10 to 15 kms offshore in the Bay of Bengal), for which a global competitive tender was floated to invite bids. Pursuant thereto, Videocon International Ltd. and Command Petroleum Holdings NV, the predecessors of the Respondents submitted their bid to develop the Ravva Field along with other bidders. The contract for this petroleum development was to be given on a production sharing basis through a Production Sharing Contract. On 28.10.1994, the Production Sharing Contract (the “PSC”) was executed between the Government of India and the following parties to commercially explore and develop the Ravva Oil and Gas Field: (a) Command Petroleum (India) Pvt. Ltd, an Australian Company established under the laws of the State of New South Wales, which has since been renamed as Cairn Energy India Pty. Ltd; (b) Ravva Oil (Singapore) Pty. Ltd, a company established under the laws of Singapore; (c) Videocon Industries Limited, a company established under the laws of India; and (d) Oil and Natural Gas Corporation Ltd (ONGC). 2 The PSC was for a period of 25 years, and the development and exploration of the Ravva Field was to be conducted in terms of the ‘Ravva Development Plan’. As per Articles 11.1 and 11.2 of the PSC, Addendums 1 and 2 to the Rvva Development Plan were annexed to the PSC as Appendix F. The Respondents were required to carry out Petroleum Operations in the Ravva Field as per the said Plan. The Ravva Development Plan inter alia contemplated the drilling of 19 oil and 2 gas wells in the Ravva Field. II. Relevant Terms of the Production Sharing Contract The dispute between the Parties emanates from Article 15 of the PSC which inter alia provides for the recoverability of Base Development Costs (“BDC”) incurred by the Respondents-Claimants for the development of the Ravva Field. The relevant clauses of the PSC are extracted hereinbelow : (i) Article 11.2 of the PSC reads as : “11.2 Ravva Development Plan Appendix F to this contract shall constitute the approved development plan for the Existing Discoveries (hereinafter to as “the Ravva Development Plan”). The Ravva Development Plan shall be deemed to have been approved by the Managing Committee.” (ii) The Proposed Development Plan for the Ravva Field (including Addendums 1 and 2), which was accepted by the Parties as the approved Ravva Development Plan, states as follows : Ravva Field Development Drilling Estimated Average Well Cost (in US dollars) TOTAL COST OF AVERAGE WELL $ 2,430,000 Attachment 10 Ravva Field Development Capital Costs ITEM COST US $ million Development of R10 and R17 Blocks Oil and Associated Gas Reserves Drill and Complete 19 Wells SPM and Tanker Loading Line 201.1 Four Platforms Production/Injection Pipelines to/from Shore 3 Infield Flowlines Onshore Oil Process Facilities Onshore Oil Storage Gas Treatment and Compression Water Injection Gas Lift Pipeline and Compression Project Management etc. Development of R1,7,9 Non-Associated Gas Reserves Drill and Complete 2 Wells 16.9 One Monopod Tower Production Pipeline to Shore Onshore Gas Treatment Plan TOTAL 218.0 Note: This would be the project, as further defined in the Development Plan, which would be the subject of the cost variation condition. The cost stated includes Import Duty but does not include expenditures related to exploration and appraisal or field abandonment. The difference between the US $218 million total and the estimated US $ 236 million total project capital cost quoted in Section 1 of the accompanying letter is the US $ 18 million abandonment cost.” (emphasis supplied) (iii) Article 15.5 of the PSC provides for the procedure of recovery of Development Costs incurred by the Respondents in the exploration, discovery and production of oil and gas from the Ravva Oil and Gas Field. Article 15.5 is extracted hereinbelow: “Article 15 RECOVERY OF COSTS FOR OIL AND GAS 15.1 15.2 15.3 15.4 15.5 Recovery of Development Costs and 5% Cost Cap (a) Development Costs incurred by the Contractor in the Contract Area shall be aggregated, and the Contractor shall be entitled to recover out of Cost Petroleum the aggregate of such Development Costs at the rate of one hundred percent (100%) per annum. (b) Notwithstanding the provisions of Article 15.5 (a) and subject to the remaining provisions of this Article 15.5, the Contractor shall not, for the purposes only of determining the volume of Petroleum to which Contractor 4 shall be entitled under Article 15.1 as Cost Petroleum, claim as Contract Costs Contractor's Development Costs incurred after the Effective Date in connection with Development operations under the Ravva Development Plan which exceed Contractor's Base Development Costs (as hereinafter defined) by more than five percent (5%). (c) For the purpose of this Article 15.5 "Contractor's Base Development Costs” means costs incurred after the Effective Date relating to the construction and/or establishment of such facilities as are necessary to produce, process, store and transport Petroleum from within the Existing Discoveries, in order to enable Crude Oil production of 35,000 BOPD in accordance with the Ravva Development Plan plus such costs as are allowed pursuant to Section 3.3 of the Accounting Procedure. Such costs shall include, but not be limited to costs incurred in relation to the following facilities and matters in connection therewith, such as: (i) Offshore tanker loading facilities for tankers up to 120,000 DWT; (ii) Wellhead platforms capable of supporting up to total of 24 development wells; (iii) Follow lines necessary to transport well fluids ashore for processing; (iv) Process facilities onshore for processing up to 40,000 Barrels of fluid per day; (v) Storage facilities with a nominal capacity of 500,000 Barrels; (vi) Facilities to allow injection of water into the reservoirs for the purposes of reservoir pressure maintenance; (vii) Construction of an onshore supply base to support production operations; (viii) Environmental studies; (ix) Geophysical, geological and petroleum engineering studies; (x) The drilling of nineteen (19) Development Wells and two (2) Gas Production Wells; (xi) Facilities for developing, transporting and processing NANG; (xii) Project insurance; and (xiii) Project Management. The Parties agree that for the purposes of this Article 15.5 the Contractor's Base Development Costs shall be the sum of US $188.98 million (as indicated in the August 1993 Addendum to the Ravva Development Plan.) …. 5 (i) Having regard, inter alia, to the matters referred to in Article 15.5(d), the Parties agree as follows: (i) Costs relating to Site Restoration and exploration and appraisal drilling shall not be subject to the limit on Contractor’s Development Costs as provided in Article 15.5(b); (ii) the costs of developing the reserves and/or potential reserves and/or Satellite Fields referred to in Article 15.5(d) (i) shall not be subject to the limit on Contractor's Development Costs as provided in Article 15.5(b) notwithstanding that the development of such reserves and/or potential reserves and/or Satellite Fields may include shared flow lines, injection lines, gas-lift lines and other facilities with those constructed as part of the Ravva Development Plan; (iii) In the event that the Contractor's Base Development Costs are exceeded by more than five per cent (5%) as a result of: (aa) delays in carrying out the Development Operations referred to in Article 15.5(d) (iii) due to delay in obtaining necessary approval; (bb) material changes to the Ravva Development Plan necessitated by Contractor's review of data provided to the Companies by the Government and/or ONGC after the Effective Date pursuant to Article 8.1) (iv), where the Companies are able to establish