CL-2022-000304 - [2025] EWHC 1553 (Comm)

The Government of Andhra Pradesh issued an Order numbered 44 and dated 6 April 2016 (“GOM 44”). This stated that “the Government [of Andhra Pradesh] hereby cancel” GOM 222 and GOM 289 “in which the approval to the draft [BSA] was give”. GOM 44 added:

“The Vice Chairman and Managing Director, M/s APMDC Ltd., and the Director of Mines & Geology, AP, Hyderabad shall take necessary action accordingly in the matter, immediately, under intimation to the Government.”

Article 100A of APMDC Ltd’s Articles provides:

“Notwithstanding anything contained in any of these Articles, the [Government of Andhra Pradesh] may, from time to time, issue such directives as they consider necessary in regard to the conduct of the business of the Corporation of Directors thereof and in like manner may vary and annul any such directive. The Directors shall give immediate effect to directives so issued.”

ANRAK Aluminium Ltd issued a writ in the High Court at Hyderabad on 11 April 2016. The Tribunal summarised the claim as for “a declaration that GOM 44 was unlawful and void and ordering APMDC [Ltd] to start mining and supply it [ANRAK Aluminium Ltd] with bauxite.” The Tribunal added:

“On 27 April 2016 the High Court made an interim order declaring that the purported cancellation of authorisation to enter into the BSA could not [a]ffect its validity because it had been duly authorised at the time it was made. These proceedings were not pursued.”

On 28 April 2016 the Government of Andhra Pradesh wrote to APMDC Ltd drawing attention to GOM 44 and saying:

“I therefore request you to take necessary action accordingly duly following the procedure and the conditions laid down in the Agreement entered into by your office with [ANRAK Aluminium Ltd] immediately, under intimation to the Government”.

On 15 June 2016 the High Court at Hyderabad (Challa Kodanda Ram J) held in an interlocutory judgment that, prima facie, GOMs 222 and 289 had already given “necessary approvals [by the Government of Andhra Pradesh] as required for entering into a contract” and that “pursuant to the said GOs that steps which are required to be taken by [ANRAK Aluminium Ltd] as well as [APMDC Ltd] have already been taken”. The Court expressed the view that “there is nothing in this [GOM 44] further to be done.” And that “prima facie the cancellation of the said GOs cannot have any bearing in the contracts entered into by [APMDC Ltd] and [ANRAK Aluminium Ltd].”

By letter dated 20 June 2016 APMDC Ltd wrote to ANRAK Aluminium Ltd calling on ANRAK Aluminium Ltd to show cause as to why APMDC Ltd should not terminate the BSA. ANRAK Aluminium Ltd gave a substantive reply by letter dated 9 July 2016.

By letter dated 21 November 2016 APMDC Ltd again wrote to ANRAK Aluminium Ltd. APMDC Ltd referred to a number of documents including the MOU and GOM 44. It listed what it said were “the key deviations which are not in the best interest of the originally intended Government-to-Government alliance”. It concluded:

“In view of the deviations reiterated in the beginning of the letter and the subsequent elaboration on the lack of satisfactory reply from [ANRAK Aluminium Ltd] as explained above, we hereby bring to your notice that there persists sufficient deviations which is impacting the compliance of the course of action undertaken over the period of time regarding [the BSA]. Therefore, we hereby through this letter cancel [the BSA] between APMDC [Ltd] and [ANRAK Aluminium Ltd].”

Mr Toby Landau KC, leading for RAKIA, with Mr Lucas Bastin KC and Mr Matthieu Gregoire,contends that this can only be explained as carrying out an order by the Government.

The letters just described have been referred to as the “Show Cause and Termination Letters”. RAKIA issued a Notice of Arbitration against the Republic of India on 8 December 2016.

The Tribunal recorded:

“On 5 January 2017 ANRAK [Aluminium Ltd] issued a writ in the High Court at Hyderabad and applied for a declaration that the cancellation of the BSA was a repudiatory breach (and unconstitutional) and an interlocutory mandatory order requiring APMDC [Ltd] to supply it with bauxite. This action has not been pursued. …”

The Tribunal observed:

“There is no evidence that GOM 97 was revoked but no bauxite mining has taken place. As a result ANRAK [Aluminium Ltd]’s refinery has been unemployed.”

India points to evidence that the refinery (not the smelter, which was not built) is operating using alternative sources of bauxite.

The Tribunal’s award also addresses matters of community opinion, politics, and protest across the twenty years from 1997 to 2017. I shall not repeat that in this judgment, but I have read all that the Tribunal has said in these respects.