Analyzing Illegality Defense Trend In Investor-State Arbitration

Law360 (February 16, 2021, 4:42 PM EST) -- On Dec. 21, 2020, a Permanent Court of Arbitration tribunal comprised of Laurent Levy, Stanimir Alexandrov and Christopher Thomas rendered an award in Cairn Energy PLC and Cairn UK Holdings Ltd. v. Republic of India, awarding the British oil and gas company $1.2 billion in a tax dispute with India over the retroactive application of a capital gains tax.[1]

In defending against Cairn's claim, India invoked the alleged illegality of Cairn's investment as a defense to the tribunal's jurisdiction.

Although ultimately unsuccessful in the case of Cairn v. India, India's defense is in line with a rising trend in investor-state arbitration...

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