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

The Tribunal summarised the dispute in this way:

“RAKIA, an investor in the aluminium enterprise, alleges that the failure to supply ANRAK [Aluminium Ltd] with bauxite in general, and GOM 44, together with the cancellation of the BSA in particular, were governmental acts, attributable as a matter of international law to India, which constituted breaches of a number of the provisions of the BIT. It claims damages in the sum of US$273m. India denies that there were any such breaches and says that in any event the Tribunal lacks jurisdiction because the provisions of the BIT for arbitration at the instance of the investor do not apply to this case.”

Although the matter was discussed, the Tribunal decided not to hear jurisdiction first and separately from merits. The result was that the Tribunal received what it described as “… considerable evidence on the question of whether acts attributable to India had been in breach of the BIT, whether such acts as caused the loss of which [RAKIA] complains and what the extent of that loss was”. As the Tribunal put it, in view of its conclusions on jurisdiction it did not discuss these topics. The Tribunal’s conclusion was (alone) that the dispute did not fall within its substantive jurisdiction.

In a paragraph headed “conclusion on jurisdiction” in its Final Award dated 11 May 2022 the Tribunal stated:

“We now apply our conclusions about the meaning of the BIT to the question of whether it confers upon us jurisdiction to hear the claim. [RAKIA] says this is conferred by Article 10. We have decided that upon its true construction Article 10 applies only when the dispute arises out of Measures taken by governments of India or Andhra Pradesh and that those measures must have been applied directly to the Claimant’s investment. We have assumed that APMDC [Ltd]’s repudiation of the BSA can be treated as an act of [Government of Andhra Pradesh], that it caused loss to [ANRAK Aluminium Ltd] and thereby diminished the value of RAKIA’s shares in [ANRAK Aluminium Ltd]. But the acts in question, although having an indirect effect on RAKIA investment, were directly applied only to APMDC [Ltd] and [ANRAK Aluminium Ltd]. If follows that we do not have jurisdiction and the claim must be dismissed.”

In carrying out his professional task as an advocate to the highest standards, Mr Landau KC did not spare criticism of the Award.

As part of Mr Landau KC’s criticism of the Award, he suggested the Tribunal’s reasoning was difficult to follow. In my view the essential reasoning of the Tribunal was as follows:

I add that the Tribunal concluded that the MOU expired on 30 October 2008 (Award paras 115-128). The Tribunal assumed in favour of RAKIA that the termination of the BSA was an act attributable to the Government of Andhra Pradesh (Award paras 110 and 137).