The Larger Issues Underlying the Claim of Cairn Energy on Air India

Air India

Amid the sweeping pandemic and the health emergency across the country, some may have missed the headline that Cairn Energy, a leading UK-based oil and gas exploration corporation, had filed a suit in New York to claim the international assets of Air India, the State-owned airline of India. The basis of Cairn’s demand is that it claims that the Indian government owes it a large sum as a result of a tax dispute. Though some of the immediate issues of the case and the rights and wrongs by the parties concerned are being discussed, especially by the business media, there are larger issues involved here regarding the relationship between big capital, especially big international capital, and the State; as also the very nature of big capital and the flagship institution through which it works, the corporation. Below we comment briefly on these questions.

Cairn Energy – India Tax Dispute
First, some bare details of the dispute between the Indian government and Cairn Energy.[2] In simple terms, the dispute is as follows: Cairn transferred its Indian assets from one subsidiary to another, and in this process, reaped a huge capital gain (i.e., an increase in the value of the asset, realised when the asset is sold). But no taxes were paid on this capital gain, as would normally have to be paid in India. Cairn’s defence was that the transaction was carried out abroad, even though the assets were Indian.

In 2006-07, the corporation restructured and consolidated its India holdings and operations in a new publicly listed entity in India, Cairn India Limited (CIL). Cairn UK Holdings Limited (CUHL), a British subsidiary of Cairn Energy that was floated at the same time, held 69 per cent of CIL. Till then Cairn UK had multiple oil and gas assets in India that it held through some 27 subsidiaries, all of which were incorporated outside India in different jurisdictions around the world. Even before 2006, multiple rounds of share transfers across different countries took place among these subsidiaries. The assets underlying these transfers were of Cairn’s asset holdings in India.[3] In 2006, the subsidiaries holding Cairn Energy’s Indian assets were first transferred to CUHL, and then passed on to a wholly-owned subsidiary incorporated in Jersey (a tax haven in the English Channel), Cairn India Holdings Limited (CIHL); finally, CIHL was acquired by Cairn India Limited from Cairn UK in multiple stages through a complex set of transactions. Later in 2011, Cairn Energy sold the majority of its India business, Cairn India, to the London-based mining corporation Vedanta Resources, which was then merged with its Indian subsidiary Vedanta Ltd. in 2017.

Since India’s income tax authorities were investigating the tax issues involved in 2006-07 transactions within the Cairn conglomerate, they barred it from selling about 10 per cent of its shares, citing pending taxation issues; in addition, payment of dividend by Cairn India to Cairn Energy was frozen. The basic contention of the Indian tax authorities was that, in transferring the CIHL shares to CIL, CUHL made a short-term capital gain of approximately $3.6 billion. The tax authorities finally made a formal claim in 2014. The tax demand was for close to $4.4 billion, which included interest that had accrued on a principal of $1.6 billion. Following this, the authorities also managed to sell some of the frozen CUHL assets and realise cash out of the sale.

Ever since the tax authorities began interrogating the corporation, Cairn’s contention was that the 2006-07 asset transfers were part of the ‘internal restructuring’ of the group across its multiple corporate entities, and did not involve any capital gains. Thus not only did Cairn pay no capital gains tax in India, it did not pay any such tax in any other jurisdiction, either, for these transactions and the underlying obvious net gains.

Immediately after the formal government tax claim, Cairn Energy initiated international arbitration proceedings under the India-UK Bilateral Investment Treaty[4] (BIT) in the Permanent Court of Arbitration at The Hague, Netherlands, against the claims of the Indian Government. CUHL pleaded before the Tribunal that the effects of the tax assessment should be nullified, and Cairn should receive compensation from India for the loss of value resulting from the attachment of CUHL’s shares in CIL and withholding of the tax refund, which together, according to them, amounted to approximately $1.3 billion.

In December 2020 the three-member tribunal upheld the contention of Cairn and ruled that it was not a ‘tax avoidance’ matter but an investment issue wherein the Cairn investment in India was not provided ‘Fair and Equal Treatment’ as per the UK-India BIT. The tribunal ordered India to pay about $1.4 billion to the company (this included the costs for Cairn of the case as well).

Following this, Cairn Energy moved courts in five countries – the US, UK, Netherlands, France, and Canada – to recognise its claim as per the arbitration award. Reportedly, Cairn Energy has identified $70 billion of Indian assets overseas for potential seizure to collect its dues from the government. The assets identified range from Air India’s planes to Shipping Corporation vessels, from properties owned by State-owned banks to oil and gas cargoes of public sector undertakings. The lawsuit in New York argues that a public sector corporation like Air India is “legally indistinct from the State itself.” It further adds that, “The nominal distinction between India and Air India is illusory and serves only to aid India in improperly shielding its assets from creditors like (Cairn) (emphasis added).”[5] In other words, the suit asks the courts to ignore the distinction between the corporation and its shareholders.

In order to get to the larger issues involved in the Cairn dispute, we very briefly take up two much debated corporate cases in India involving multinational corporations, Vodafone and Union Carbide.

Vodafone Tax Case[6]
The Vodafone Group, a British multinational, is one of the largest telecommunications company in the world. In 2007 it bought a major Indian telecom company, but carried out the entire transaction offshore, thus avoiding paying tax in India.

Vodafone International Holdings BV (VIH)[7] acquired the entire share capital of CGP Investments (Holdings) Ltd.[8] in 2007 from Hutchison Telecommunications International Ltd. (HTIL) for about $11 billion. CGP, through various intermediate companies/contractual arrangements, controlled 67 per cent of Hutchison Essar Limited (HEL), an Indian company. The acquisition resulted in Vodafone acquiring control over Hutch-Essar, a joint venture between the Hutchison group and the Essar group, which had obtained telecom licences to provide cellular telephony in different circles in India in November 1994. Because the sale was supposed to have been made overseas, no taxes were paid in India.

The income tax authorities in India contended that the primary aim of this transaction was to acquire controlling interest in Hutchison Essar Limited, a company located in India. They, therefore, sought to tax capital gains arising from the sale of the share capital of CGP on the basis that CGP, while not a tax resident in India (by all accounts it was merely a shell company with no other purpose than holding the Indian asset overseas in a tax haven), held the underlying Indian asset.

The dispute concerns a ‘withholding tax’. Just as banks deduct a portion of the interest earnings of their depositors and pay it directly to the Government, in certain purchases, the purchaser is to deduct a withholding tax and pay it directly to the Government by the purchaser on behalf of the seller.

According to the tax authorities, the profit made by Hutchison Hong Kong when it sold its shares of Hutch-Essar to Vodafone was generated in India, and therefore, Vodafone, the buyer of the shares, had an obligation to withhold a portion of its payment to Hutchison Hong Kong, and pay the tax in India before making the payment to Hutchison. The tax demand was $2.5 billion. Vodafone contested the claim of the tax authorities, stating that neither Vodafone nor Hutch was liable to pay the tax, as both the companies were located outside India and the deal happened beyond the Indian borders.

The case went up to the Supreme Court in 2012, and the highest court agreed with Vodafone. The Supreme Court treated the transaction as a sale of shares, similar to trading on the share market, not a transfer of assets. The judgment took recourse to the legal distinction between a company and its shareholders, and thus the court did not make a distinction between a shareholding that constitutes a controlling interest, and that which is a pure financial investment. By this argument, even if the sale were between two Indian companies, it would not have constituted a transfer of capital assets. The Supreme Court judgment makes it a point to emphasise that even a subsidiary has an identity that is distinct from its parent holding company. It refuses to take a ‘dissecting approach’, and accepts the formal corporate structure of Hutchison ‘holistically’ at its face value.

Whereas the corporate form denotes that the transfer took place between two offshore firms, with no relation to India and hence no tax liability to the Indian State, in fact, if we pierce the corporate veil, we see that the transfer was of Indian assets between two entities liable to be taxed in India. However, the Supreme Court consciously refused to look at the substance of the transaction and confined itself to its form.

The same year, through a Finance Act, the Indian government tried to reverse the effect of the Supreme Court decision by clarifying that the Indian tax authorities have a right to tax in cases where, though apparently the transaction is between corporate entities outside India, the underlying assets are in fact located in India. This addresses precisely the issue at stake in the two cases that we have discussed briefly here, Vodafone and Cairn. But the mainstream press treated this so-called ‘retrospective taxation’[9] act as an outrage. It was termed as ‘tax terror’ and absolutely inimical to (foreign) ‘investor sentiment’, so on and so forth.

Vodafone moved the same arbitration court as Cairn, the only difference being that they sought the remedy under the Dutch-India BIT, as it was a Dutch subsidiary of Vodafone that was involved. The result was the same: the ruling went in favour of the corporation in September 2020. In fact, in the Cairn case, both the Vodafone Supreme Court ruling as well as the Vodafone arbitration ruling are quoted in detail in support of the final award.

Union Carbide and the Bhopal Gas Disaster
On the night of 2nd-3rd December 1984 there was a lethal gas leak at a pesticide plant in Bhopal, which was owned by Union Carbide Corporation (UCC). At the time UCC was one of the largest corporations in the world, 37th on the Fortune 500 list, with annual revenues of $9 billion. The accident led to the death of close to 4,000 persons almost immediately (unofficial figures put the toll at 16,000), and around 600,000 more persons were affected. Over the last three and a half decades there has been a long and involved debate regarding the cause of the accident, how the survivors and the families of the dead ought to be compensated and who should be held liable for the accident. But for the present discussion we will restrict ourselves to the extraordinary tale of how nearly 50 metric tons of lethal chemicals stored in the plant at the time of the accident and abrupt shut down of operations have not been cleared to date.

The intervening 36 long years have seen multiple studies and reports by national and international bodies. All of them confirm the substantial and severe contamination of drinking water and soil with heavy metals and persistent organic contaminants due to the remaining toxic chemicals in the plant premises. The consequences have been devastating for the local populace: breast milk has been contaminated with carcinogenic toxics, children have been born with severe deformities, and people of all ages have suffered from life-debilitating ailments such as respiratory and nervous disorders, mental retardation, and cancer. Many of these individuals and families are survivors and victims of the gas leak in 1984, but even those who moved to the area after the accident report the birth of children with serious deformities.[10]

In spite of the unequivocal evidence of the devastating consequences for the locals of the toxic remains of the plant, attempts to hold accountable those who were running the plant and benefited from its operation, and make them clear the site of the pollutants, have completely failed. As we will see below, the process has been a veritable theatre of the absurd. There has been a never-ending series of court cases against UCC and UCIL (Union Carbide India Limited, the subsidiary of UCC that ran the Indian plant) from the local to the highest courts in India and in the US (where UCC was based), but with no resolution. Given that corporations can be bought and sold like any other asset, over the years both the operating unit UCIL and the owning corporation UCC have metamorphosed into radically different entities. Here is a quick overview of this three-part metamorphosis:

  1. In 1994, UCC sold its entire stake in UCIL to McLeod Russell (India) Ltd., part of the Williamson Magor group, that was (and is) one of the largest tea growing companies in the world. UCIL was renamed as Eveready Industries India Ltd (EIIL), probably because one of the major businesses of UCIL was dry cell manufacturing under the brand name Eveready.
  2. In 2001, Dow Chemical Company acquired UCC, making it the second largest chemical company in the world.
  3. And in 2017 Dow merged with another chemical giant DuPont, making Dow-DuPont a $130 billion behemoth.

With this three-part act, both the operating entity UCIL and the holding entity UCC in India and US respectively ceased to ‘exist’, and the pollutants lying in the plant premises in Bhopal cannot be traced back directly to any of the new entities. All the ‘new’ entities claim that they were not running the plant in 1984, and hence have nothing to do with the liabilities of Union Carbide for the disaster, either towards the victims or for clearing the lethal chemicals. Eveready claims that it was the US corporation UCC that held the majority stake in UCIL, provided the technology and was “in control of the pesticide plant at Bhopal”, hence UCC alone should be held accountable.[11] Dow argues that it is UCIL, now Eveready, that should be accountable for Bhopal; and yet, for good measure, it also maintains a safe distance from UCC, stating that, “despite the merger of Dow and DuPont, UCC remains a separate subsidiary company with its own assets and liabilities.”[12] The above Dow webpage directs a reader to the UCC website where a dedicated page on Bhopal clarifies that “UCC did not own or operate the site. If the court responsible for directing clean-up efforts ultimately applies the ‘polluter pays’ principle to a corporation, it would seem that legal responsibility would fall to UCIL (now called EIIL), which leased the land, operated the site and was a separate, publicly traded Indian company when the Bhopal tragedy occurred (emphasis added).”[13]

Vodafone, Union Carbide and the Idea of a Corporate Veil
To untrained eyes like ours it may be self-evident that Vodafone UK (or its Dutch subsidiary) as well as Cairn UK should be taxable for the capital gains, and even more importantly, the parent UCC in the US should be liable for the deadly accident in the Bhopal plant. Yet the legal position, in line with the stand of the Supreme Court of India and the arbitration tribunal in The Hague, is that, though the profits of the subsidiaries belong to the parent holding corporations, the parents are separate legal entities and not answerable for the acts of omission and commission of their subsidiaries. As Supreme Court averred in the Vodafone case, and the arbitration court agreed, the existing corporate structure should only be ‘looked at’ and not ‘looked through’ and dissected.

Prima facie, the Supreme Court judgement may appear to go against common sense, but it is in sync with the long tradition in Anglo-Saxon law of the ‘doctrine of corporate veil’. The idea emanates from the concept of ‘limited liability’ of shareholders, which is restricted to the extent of shares that they hold in a corporation. And the corporation itself, which has a separate legal persona under the corporate law, is liable for the acts of omission and commission.[14] The idea was that such limited liability would encourage investments in joint stock companies and risk taking by large number of investors, since their liability is limited to only the extent of their respective stakes in a specific corporate entity.

There has been much debate on limited liability since it was included in the statutes in the middle of the 19th century, first in England and later in other industrialising countries. To begin with the idea was to limit the liability of small individual shareholders so that their savings could be pooled into corporate investments. Towards the end of the 19th century, holding companies – where one corporate entity holds shares in another, as in all the three cases above – were made legal. With this, limited liability got automatically extended to holding companies too. Of course, if one looks at it from the original idea of protecting individual small shareholders, extending limited liability to holding companies borders on the absurd, but we will not take that up for discussion in this short comment.

Historically the courts worldwide have been extremely reluctant to pierce the corporate veil and look behind it for the actual agents, whether they be human shareholders or a holding company. Perhaps this view can be traced back to the historic UK company law case of 1897, Salomon v A Salomon & Co Ltd, which has become a sort of gold standard in company law. In the Salomon vs. Salomon Ltd. case, the House of Lords upheld the ‘entity view’, whereby creditors of an insolvent company could not sue the company’s shareholders to pay up outstanding debts. Mr Aron Salomon, who made leather shoes, formed a limited company. The newly formed company purchased Salomon’s existing business, apparently at a price in excess of its value. Mr Salomon also received 20,001 shares of the company’s 20,007 shares as payment from Salomon Incorporated for his old business, and his wife and five sons were given one share each worth £1 (a minimum seven members were required to incorporate a company). Soon after, the business failed and the company defaulted on debt payments; the creditors claimed that Salomon should be personally held responsible for the debt, since he was the sole agency behind the company for all practical purposes. But the court refused to pierce the corporate veil and held that Salomon the company was the only one liable for it. As Lord Macnaghten observed in the case[15]:

The company is at law a different person altogether from the subscribers to the memorandum; and, though it may be that after incorporation the business is precisely the same as it was before, and the same persons are managers, and the same hands receive the profits, the company is not in law the agent of the subscribers or trustee for them (emphasis added).

Cairn’s Claims on Air India and the Accountability of Large International Capital
Let us now go back to our original Cairn case and contrast the claims of Cairn with respect to the Indian State and Air India, with what the corporations claimed in the other two cases above. Along with the concept of a ‘corporate veil’, another concept in corporate law is what is called ‘entity shielding’. To uphold the idea of a corporation as an independent legal entity, the concept of entity shielding is exactly obverse to that of corporate veil. While the idea of corporate veil protects a shareholder from the corporate liability beyond her shareholding in the corporation, entity shielding protects a corporation from the creditors of a shareholder and the former cannot lay any claims on the corporation for their dues from a shareholder. For example, if I own a Reliance share (or for that matter, have a significant holding in Reliance) and simultaneously owe someone else a debt, the creditor tomorrow cannot go to Reliance and seek the payment that I owe to him just because I am a shareholder of Reliance. Just as the corporate veil shields a shareholder from the liabilities of a corporation, entity shielding protects a corporation from the liabilities of its shareholders. But Cairn is clearly violating the idea of entity shielding when it is claiming that, for the dues it claims from the Indian government, it can claim the assets of Air India, a wholly owned PSU of the Indian government, or for that matter the assets of PSU banks and Shipping Corporation of India.

The most interesting part is that, while the courts are insistent on upholding the corporate veil concept (as we saw in all the three cases above), it is very likely that they will refuse to shield the public sector entities in this case; rather, they will go with Cairn if the case carries on in the court. This is not mere speculation, as there are a lot of global precedents in international courts ruling in favour of seizing national assets in international territory. In just the last few years, assets such as aircrafts, navy ships, bank accounts, gold deposits, real estate, owned by the governments and/or the PSUs of Third World countries such as Argentina, Congo, Pakistan and Venezuela have faced seizure.[16] Thus in the case of purported liabilities of such States and/or their PSUs, neither courts nor experts are willing to make such fine distinctions between one corporate or legal entity and another in fixing the liability, as they make for the above three corporate cases.[17] Instead the whole extended complex of these States, including the assets of their PSUs, are treated as a single unit in order to seize their assets and recover what the international courts have fixed as liabilities of Third World governments.

Though the implications of this case are obvious for the present policy framework of the establishment, they need reiteration lest they get lost in the micro details. In particular, three points cannot be overemphasised:

  1. While the whole establishment is focussed on attracting as much foreign investment as possible, and considers such investment the answer for every problem, the above three cases make it amply clear that the entire system of national and international law and treaties, in which the Indian State is also complicit, prevent any real accountability of international big capital towards India. Concepts such as the corporate veil, complex corporate structures that span the whole globe including tax havens, and unequal treaties like BITs signed by India are all parts of a legal framework that enforces the impunity of international capital and corporate entities against the interests of Third World peoples. As we have seen in the instances above, principles of international law which serve the interests of multinational corporations are enforced not only by international courts but also by India’s highest judiciary.
  2. Even more importantly, what the Cairn case brings out very sharply is the fact that, if anything, it is corporations that can work their way through the international system and checkmate any attempt to make them comply with such Third World regulatory measures as go against their interests.
  3. Given that attracting foreign capital is a primary concern of the Indian State, what happens when some of its agencies/officials take measures aimed at holding international big capital accountable? In such circumstances, the end result is that the unequal international rules of this game, and the actions/inaction of other wings of the same Indian State, combine to ensure that international capital finally prevails.

Thus what the three cases bring out is where the Indian State stands in relation to international capital. This needs to be placed in the context of the present policy framework of the establishment. Broadly speaking they have three prescriptions:

  1. Wherever there is a problem, attracting big corporate capital will somehow solve it, and most of the time it is foreign big capital in combination with the so-called Indian big capital.[18]
  2. Provide on a silver platter whatever rules of the game capital demands, whether by changing labour laws or farm laws in the name of ‘ease of doing business’ and attracting foreign investments.
  3. And finally, the best possible answer for all the remaining ills is to sell off PSU and State assets to big capital. Note that the greatest concern in the media regarding Cairn’s claims on Air India is whether this will jeopardise the Government’s long-standing determination to sell off Air India completely. The implication of selling off the nation’s flag carrier to private interests; the employment of close to 10,000 persons currently working for Air India; or even the larger issue of a corporation seizing the assets of Indian State in international territory and its long term implications – these concerns do not make even a footnote in most of these reports.

Lakhs of farmers have been protesting against the new farm laws for more than the last six months on the highways leading to the capital of the nation, which they believe will lead to corporatisation of agriculture to the detriment of most of the present participants. This means almost the whole of this vast nation and its people are going to be affected, either as producers, distributors or consumers. Once again through the lens of Cairn as well as Vodafone and Union Carbide cases, one can only say that the farmers are right. There is an urgent need to challenge the present policy framework that spells danger to the vast humanity in this country, as this pandemic amply brings out.

Rahul Varman teaches at IIT Kanpur (rahulv[at]

Originally published in RUPE India

[1]  Critical comments and helpful suggestions from Manali and RUPE editors on earlier drafts are gratefully acknowledged. Thanks are also due to Rohan for bringing the Cairn case in our conversation that triggered the writing of this piece.

[2] The information available about the dispute in public domain is really scanty and there is hardly any good analysis of the case. Moreover there is plenty of misinformation in the news reports. Perhaps the best source to get details is the final award (running into several hundred pages) by the Permanent Court of Arbitration, The Hague, dated 21 December 2020. The bare text is available here: Cairn Energy PLC and Cairn UK Holdings Limited v. The Republic of India, PCA Case No. 2016-07, accessed on 20/05/2021.

[3]  The ever-changing corporate structure through which Cairns Energy held its hydrocarbon assets in India and transacted them through this internal structure is very complex and difficult to make complete sense of with scanty information available in the public domain. What is being provided here are bare details that are relevant to bring out some key issues.

[4]  This is a BIT signed between governments of India and UK in 1994 with the express purpose of  ‘promotion and protection of investments’. The agreement tries primarily to protect foreign investments from any sort of ‘discriminatory’ laws and practice by the host nation, and has multiple clauses on how to resolve a dispute. That is why Cairn invoked this treaty and filed an arbitration case against India. To attract foreign investments India had signed a very large number of such treaties with multiple governments across the globe in the 1990s and 2000s. This itself is an important question: in a world where global leaders invoke multilateralism in their rhetoric and where already most of the governments are part of a multilateral system like WTO, why should such BITs be signed and regional trade formations become the order of the day? But this needs a separate analysis.

[5]  Pranav Mukul, For getting its $1.2-bn arbitration, Cairn sues Air India in US. Indian Express, May 16, 2021. accessed on 20/05/2021.

[6]  The details of the Vodafone case have been borrowed here from my earlier comment on the case that is available here:

[7]  Part of the Vodafone group, a company resident for tax purposes in the Netherlands.

[8]  A company incorporated in Hong Kong but resident for tax purposes in the Cayman Islands, a tax haven in the Caribbean Sea.

[9]  The Act added that the authorities could open up any relevant case since the beginning of the pertinent tax clauses in 1962, though only in a handful of cases the provision has been invoked so far, all of them relatively recent. Indian authorities have all along held that even in the original act without the 2012 amendments, they had the right to tax Vodafone and Cairn like transactions where the primary asset under contention is located in India.

[10]  Apoorva Mandavilli, The World’s Worst Industrial Disaster Is Still Unfolding, The Atlantic, July 10, 2018. accessed on 04/02/2021.

[11]  Eveready, Information on Bhopal. June 16, 2010 press release. accessed on 07/02/2021.

[12]  Dow, Bhopal. accessed 07/02/2021.

[13]   UCC, Remediation (Clean Up) of the Bhopal Plant Site, accessed on 07/02/2021.

[14]  A distinct, very important, question is how a corporate entity can be held liable for not only an economic offence, but criminal offences such as the Bhopal accident, but again this question will not be taken up here.

[15], Salomon v. Salomon & Co Ltd [1897] AC 22. per cent5B1897 per cent5D-ac-22/ accessed on 14/06/2018.

[16]  Press Trust of India, Planes to gas cargoes: Cairn identifies $70-bn Indian assets for seizing, Business Standard, May 16, 2021, accessed on 23/05/2021.

[17]  In no way are we endorsing the idea of corporate veil, in fact this is one idea that needs to be analysed threadbare. As we all understand that, unlike the legal idea of one independent legal corporate unit from another, in real life each of these corporate groups works like one single integrated unit for all practical purposes, but once again this discussion needs to be taken up elsewhere.

[18]  The distinction between foreign and Indian big capital is quite problematic; just as one instance, presently almost 27 per cent of Reliance Industries, the largest private corporation in India, is owned by foreign investors (see: accessed on 23/05/2021.)



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