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新德里高等法院驳回了RBI对执行仲裁裁决的干预(印度案例)

更新时间:2017-09-26 13:21:30   张振安 临时仲裁ADA 编辑:lianluobu  点击次数:269次

2017年4月,新德里高等法院对著名的Tata Sons Ltd. (以下简称“Tata”) 与NTT Docomo Inc. (以下简称“Docomo”)纠纷案作出裁定。最后上诉期限已于2017年7月底截止,法院在裁定书中对印度储备银行(以下简称“RBI”)和印度中央银行提出的有关裁决执行(涉及印度资金以损害赔偿金的形式外流到非居民实体)的异议予以回应,预计这份裁定书将对印度投资造成重大影响。

仲裁程序

Docomo,Tata及Tata Teleservices Ltd.(以下简称“TTSL”)共同签订了一份股东协议。根据协议,若TTSL未能达成某些绩效指标,Tata将有义务为Docomo所持股权寻找买家。这种情况下的销售价格为(1)截至2014年3月31日,股权的公允价值;或(b)Docomo原先购买股权价格的50%,以高者为准。随后TTSL没有达成绩效指标,因Tata未能为Docomo找到买家,当事人发生纠纷。依照股东协议的条款,Docomo向伦敦国际仲裁院(LCIA)提起仲裁,LCIA的终局裁决支持了Docomo的请求。

印度的执行程序

Docomo向印度法院申请承认并执行仲裁裁决。尽管Tata反对裁决的执行,其仍然将裁决金额存入法院。在此阶段,RBI申请介入本案,其主要论点是,股东协议中有关股权价值处理的条款违反了外汇管理的相关规定,因此Tata向Docomo汇款之前应该得到RBI的允许。RBI还主张,承认该裁决是对仲裁庭裁定估值(未得到RBI许可的情况下)效力的确认,这违背了印度的公共政策。

法院在分析裁决性质时认为:

(1)裁定Docomo支付的是违反合同条款的损害赔偿金而非股权价格;

(2)Docomo须将其股份返还给Tata的事实是仲裁裁决的附带结果;

(3)没有任何规定要求在向非居民实体支付损害赔偿金之前必须得到RBI的许可,

因此,RBI的反对意见没有得到支持。

有趣的是,当事人在执行程序中达成了和解,Tata同意撤回执行异议。当事人同意,一旦法院批准和解,存放在法院的款项将被转至Docomo的账户,与此同时,Docomo须将其持有的TTSL股权转让给Tata。

另外,RBI还对和解提出异议并认为仲裁裁决无视《外汇管理法》的规定,确认和解协议的效力将违反印度的公共政策。但是法院驳回了该异议并认为,如果当事人想结束纠纷,“法院不能也不该对此种妥协横加阻拦”。

法院对RBI在该案的干预表示担忧并认为,在RBI不是当事人的情况下,无论是仲裁裁决已对《外汇管理法》的规定进行讨论的事实,还是RBI认为裁决的执行需要经过其同意的观点,都不能自动赋予RBI反对仲裁裁决执行的权利。法院援引《民事诉讼法》和《印度仲裁法》的规定得出结论认为,根据法律规定,第三方无权对争议当事人达成的妥协提出异议。因此,这项裁决将执行程序的参与人限制在当事人之间,防止因第三方反对可能导致的成本上升和不必要延误。

  

【英文版】

 

Delhi High Court rejects RBI’s intervention in arbitration proceedings

to which it is not a party

 In April 2017, the Delhi High Court made a decision in the much-publicised dispute between Tata Sons Ltd. (“Tata”) and NTT Docomo Inc. (“Docomo”). The period for an appeal to be made lapsed at the end of July 2017 and the judgment is expected to be a shot in arm for investment in India for it answers some of the objections raised by the Reserve Bank of India (“RBI”), India’s Central Bank,on the enforcement of an arbitral award involving the outflow of money from India to non-resident entities as damages.

The arbitration

Docomo,Tata and Tata Teleservices Ltd. (“TTSL”) entered into a shareholder agreement (the “SHA”). Pursuant to the SHA, Tata was under an obligation to find buyer/s for Docomo’s shares if TTSL failed to satisfy certain performance indicators.The sale price in that scenario was to be the higher of (a) the fair value of shares as of 31 March 2014, or (b) 50% of the price at which Docomo purchased its shares. When TTSL failed to meet its performance indicators, Tata could not find buyer/s for Docomo’s shares and a dispute arose between the parties. In accordance with the terms of the SHA, Docomo commenced LCIA arbitration proceedings against Tata in London. The final award was made in favour of Docomo.

Enforcement in India

Docomo applied for the recognition and enforcement of the award in the Indian Courts. While Tata objected to the enforcement of the award, it deposited the award amount with the Court. At that stage, the RBI applied to intervene in the matter. The RBI’s principal argument was that sections of the SHA, which dealt with the valuation of shares, were in violation of regulations relating to Foreign Exchange Management and its permission was therefore required beforeTata could transfer money to Docomo. The RBI’s position was that recognizing the award would give effect to the valuations determined by the tribunal in the absence of its permission and this would be against Indian public policy.

In analysing the nature of the award, the Court held that:

(i) what had been awarded to Docomo was damages for breach of contractual provisions and not a price for its shares;

(ii) the fact that Docomo has to return its shares to Tata is an incidental consequence of the award; and

(iii)since there are no requirements to seek permission from the RBI before making apayment to a non-resident entity of damages,

the RBI’s objections would not be upheld.  

Interestingly,during the course of the enforcement proceedings, the parties reached a settlement. Tata agreed to withdraw its objection to the enforcement. The parties agreed that once the Court approved the settlement, the amount deposited with the Court would be transferred to Docomo’s account and Docomo on its part would simultaneously transfer its shares in TTSL to Tata.

The RBI also objected to the settlement. Its argument was that since the award, on its view, ignores the Foreign Exchange Management provisions, giving effect to the settlement agreement would also be against the public policy of India. However,the Court overruled the objection and said that where parties want to end a dispute “the Court cannot and should not come in the way of taking on record such compromise”.

The Court also raised concerns about the RBI’s intervention in the matter. It held that neither the fact that the arbitral award discussed provisions of the Foreign Exchange Management Act, nor that the RBI considered that its permission was required to enforce the award, automatically conferred RBI withstanding to object to the enforcement of an arbitral award in a matter to whichit is not a party. Citing provisions from the Civil Procedure Code and the Indian Arbitration law, the Court concluded that under the law as it stands,there is no scope for a third party to object to a compromise reached between the parties to a dispute. This decision therefore restricts participation in enforcement proceedings to the parties to an award and prevents objections from third parties which could lead to cost escalation and unnecessary delays.

 By Ben Carroll