PPPs: Public Law Matters, Doesn’t It?

[The following post is contributed by Santanu Sabhapandit, who is pursuing his doctoral studies at Monash University, Melbourne, Australia]
The need for better infrastructure in India cannot be overemphasised. Availability of necessary funds, innovative skills and efficient implementation of projects are some of the key requirements if any of the targets for creating infrastructure facilities are to be achieved. The government’s emphasis on ensuring private sector participation is hence understandable. And Public Private Partnerships (PPPs) are being considered as one of the preferred modes of private sector participation in infrastructure.
Although, the advent of PPPs in India is not well documented, PPPs for provision of infrastructure facilities was first mentioned in the budgetary speech of finance minister in 2002, under various measures undertaken for supplementing public finance in the infrastructure sector. Since then the concept has steadily gained prominence. PPPs in India may be safely assumed as an extension of the overall policy focus since the 1991 reforms, on garnering economic efficiency through private sector participation. The conceptual underpinnings of PPPs lie in economic theories that stress the relative superiority of the private sector over public sector in efficiency. However, unlike privatization modes such as divestments or contracting out, PPPs have continued government involvement in implementation of projects. This is not only apparent from the very nomenclature that it is a ‘partnership’, but is perhaps also warranted by the fact that the infrastructure sector deals with facilities that are in the nature of public goods. The government involvement is not only in a supervisory capacity, but also through provision of public sector resources such as land, and in some cases direct or indirect finance. Where infrastructure facilities involve user charges, there is, arguably, further involvement of the public sector and citizens. Despite the articulate economic arguments that favour private sector participation, and contingencies that call for easing up of the regulatory framework to encourage private sector participation, public sector concerns, and in turn public law concerns, are not avoidable and perhaps should not be overshadowed by economics alone.    
The Kelkar Committee Report of November 2015 (hereinafter referred to as the “Committee” and “Report”) has emphasised that the government must move the PPP model to the next level of maturity and sophistication. While the primary focus of the Report is on the removal of various obstacles faced by private participants of PPP projects, there are recommendations that pertain to regulatory sphere. Some of them are:
1) Requirement for change in attitude and mind-set of all authorities dealing with PPPs, including public agencies partnering with the private sector, government departments supervising PPPs, and auditing and legislative institutions. The Committee emphasises the need to focus on the relationship rather than the transaction, and on building in an approach of “give and take” between private and public sector partners;
2) In view of the concerns raised by all stakeholders (government and private sector alike) on demand for developer books of account being subject to government audit, access under right to information and Article 12 of the Constitution, the Committee has recommended that the government should notify comprehensive guidelines on the applicability and scope of such activities. The Committee goes a step further to recommend that the process, to be laid down by the government, would enable review only of government internal systems, and not that of special purpose vehicles (SPVs). SPVs would need to follow best practices in corporate governance systems including provisions of the Companies Act, 2013.
The Committee is of the view that conventional audit by authority of private partner’s books per standard procurement process risks delivery of poor quality of service and public assets. It is not known if these views are based on concerns expressed by a limited group of stakeholders alone. However, from a regulatory perspective, the Committee’s recommendation for a “give and take” approach between private and public sector partners seem to suffer from a paradox. While the Committee seems content with SPVs complying with provisions of the Companies Act, 2013 (which they are ordinarily bound to comply), it is not apparent if the possibility of preserving some of the underlying public law principles that warrant provisions like public audit, right to information or judicial review in democratic societies, were considered before insisting on their waiver. While the time period since its introduction, as well as the number of projects implemented, may be valid sources of confidence in dealing with PPPs, it is important to note that the judiciary is yet to give its verdict (in some of the pending matters) on the legal status of PPPs. Also, unlike some of the developed countries, India does not have a long history of dealing with legal issues involved with contracting out public services or PPPs. Waiving judicial review, right to information or public audit may appear to provide ease of operation for the private sector. However, such a waiver may have major long term implications for public law principles. It may be prudent to have further policy deliberations before letting immediate economic concerns prevent a nuanced evaluation of public law principles in the context of PPPs.
– Santanu Sabhapandit

Guest Post: Public Policy of India and the Arbitral Award: Fighting the Unending Battle

(The following guest post is contributed by Amrit Mahal, a fourth-year student at the National University of Juridical Sciences, Kolkata)

The Indian Arbitration and Conciliation Act, 1996 (hereinafter, “Act”) was enacted with a view to bring the Indian arbitration regime in line with international practice. Providing for a limited judicial review of arbitral awards, Section 34(2)(b) and Section 48(2)(b) of the Act permit a court to set aside an arbitral award which is found to be in conflict with the “public policy of India.” The Act however, shirks from defining a clear ambit of public policy, leaving its interpretation to the judiciary. This loophole in the statute has proved to be a recurring worry. The judiciary has adopted an expansive approach to its interpretation, and opened a floodgate of litigation seeking to set aside binding arbitral awards that are in alleged conflict with Indian public policy. Twenty years later, the Arbitration and Conciliation (Amendment) Act, 2015 has put a cap on the width of this expression based on the recommendations of the Law Commission. While the move is a welcome step, the cap seems to be a minimal restriction, still leaving interpretation in the hands of the judiciary.

Navigating the meaning of “public policy”
The Supreme Court first interpreted the expression “public policy” in Renusagar Power Co. v General Electric Co. (hereinafter, “Renusagar”), noting that the enforcement of a foreign award could be refused on the ground of public policy onlyif such enforcement was contrary to a) the fundamental policy of Indian law, b) the interests of India, or c) justice and morality. The most notable case on “public policy” however is Oil & Natural Gas Corporation Ltd v Saw Pipes Limited. The Supreme Court expanded the definition further, observing that in addition to the three grounds listed in Renusagar, the court would also check whether the award has a “patent illegality,” i.e. an illegality that went to the root of the matter. Such a situation could arise where the award was contrary to the substantive laws of India or where the tribunal did not record proper reasons for its decision. The decision had the effect of permitting Indian courts to examine the “root of the matter” and set aside an award where it was unsatisfied with the evaluation or reasoning undertaken by the arbitral tribunal. This created a stepping stone for losing parties to have their case reviewed again on challenge. In this manner, the approach compromised the “final and binding” nature of an award, and rendered arbitration an ineffective system of alternative dispute resolution.

In the absence of a clear meaning of “public policy of India” and a permitted review on merits, a regressive trend had been set for arbitration in India. Not only does such a regime make arbitration an unreliable system, but excessive judicial intervention also erodes the faith of Indian and foreign businesses to commit to business in India. In a regime where arbitration is likely to end in long drawn legal battles that cost time and money, large business commitments are dis-incentivized. Further, an unreliable and unfriendly arbitration regime also impacts India’s ability to become a hub for commercial arbitration, contrasted with the growing legal services market in other Asian hubs like Singapore and Hong Kong.

The Recommendations of the Law Commission
In August 2014, the Law Commission submitted its 246th Report to the Central government recommending several amendments to the Act. The Commission tightened the interpretation of “public policy” under both Section 34 and Section 48, recommending that the award would be in conflict with public policy only if it was induced by fraud or corruption or was opposed to the “fundamental policy of Indian law” or “most basic notions of morality or justice.” It removed “interests of India” as well as “patent illegality” from the definition, both of which permitted judicial overreach.

The Law Commission also observed that under the statute, grounds for setting aside an award and conditions for refusal of enforcement are in pari materia and as such, both domestic and foreign awards are treated the same way. However, the legitimacy of judicial intervention in a purely domestic award is far greater than in cases where the court is examining a foreign award. The Commission thus recommended that Section 34 (2A) be inserted to permit setting aside purely domestic awards on the ground of “patent illegality appearing on the face of the award.” At the same time, to avoid excessive intervention, a proviso was recommended stating that the award would not be rendered defective merely “due to erroneous application of law or by re-appreciation of evidence”. Thus, not only did the Commission prescribe an exhaustive definition of public policy, but also expressly prohibited a plain review on merits.

Separation of patent illegality from the definition of public policy ensures that it is not applicable to any international arbitrations, be it for challenge to the award or for its enforcement. This was a much needed step to regulate judicial intervention and help build trust towards the Indian arbitration regime in the international community. In contrast, the expression “public policy” while formally defined, leaves interpretation of fundamental policy of Indian law and basic notions of justice and morality in the hands of the judiciary. Within a month of the recommendation, the ambiguity of the term “public policy” struck the Law Commission (and the arbitration regime) again.

In September, the Supreme Court in ONGC Ltd. v Western Geco International Ltd.(hereinafter, “Western Geco”) observed that the term “fundamental policy of Indian law” had not been expounded upon. Thus noting, the Court held that the expression would include first, adopting a ‘judicial approach,’ which involves giving a reasonable and non-arbitrary decision, second, adhering to the principles of natural justice, and third, rendering a decision that adheres to a high threshold of reasonableness (Wednesbury principle) i.e. the decision must not be “so perverse or irrational that no reasonable person would have arrived at the same.” To determine whether the decision was reasonable, the Court would necessarily involve itself in the facts of the matter and the evidence available (which was also undertaken in Western Geco). Thus, one again, the Court empowered itself to adjudicate upon whether the reasoning and conclusion of the tribunal is satisfactory.

Responding to this development, the Law Commission published a Supplementary to Report No. 246 in February 2015 detailing this development, and noted that the Western Geco had expanded the Court’s power to review an award on merits. Such a review was “contrary to the object of the Act and international practice.” The Report recommended that an explanation be added to Section 34(2)(b) stating that “fundamental policy of Indian law shall not entail a review on the merits of the dispute.” The Law Commission has thus, attempted a second time to shut the gates to routine challenges to arbitral awards by losing parties. In January 2016, all of these recommendations took form in the Arbitration and Conciliation (Amendment) Act, 2015.

The Battle Continues
Arbitration is sought-after as a private, faster and cheaper means of dispute settlement. However, excessive and unpredictable court intervention has rendered the Indian arbitration regime unreliable. With the amendments in place, the Act has expressly prohibited a review on merits under “fundamental policies of Indian law” or “patent illegality.” While this proves to be a welcome move, there still remains ambiguity in what these expressions entail. The three-pronged approach to the interpretation of fundamental policy of Indian law prescribed in Western Geco leaves little understanding of how judges will determine whether the tribunal applied a “judicial approach” or whether the award is reasonable, especially in light of the prohibition on a review on merits. The Act has ensured a minimal standard of protection by preventing such review, but the building blocks of conflict with public policy remain undefined. Further, another judicial bench may very well alter the approach in Western Geco and expand or narrow down the meaning of the “fundamental policies of Indian law.”

It may also be pertinent to consider how appropriate it is to draw principles of administrative law into arbitration and to what extent it may be permissible. The same question has been answered in the negative in Singapore in Sui Southern Gas Co Ltd v Habibullah Coastal Power Co (Pte) Ltd, where the Wednesbury principle was categorically rejected “as a matter of principle and authority” by the court as a ground for review of awards. The Court observed that there was no appropriate analogy to draw between administrative and arbitral decisions. The former is subject to judicial scrutiny on the Wednesbury principle because it is presumed that when the Parliament gives an administrative decision-maker some discretion, it will be exercised reasonably. In contrast, parties to an arbitration contractually agree to abide by the decision of the tribunal and consent to the finality of the award. Further, even if the award is so unreasonable as to be perverse, it will still be an examination of the error of law or fact. The Court however, cannot sit in appeal on a final and binding arbitral award. Thus, an import of administrative law principles into public policy, and in particular, the Wednesbury principle may be questionable.

The unpredictability of the Indian arbitration regime has been especially cumbersome for international businesses who fail to have any clarity and assurance of dispute settlement here. Excessive judicial intervention reduces trust in arbitration as a system of adjudication within India and abroad, and the legislature must take more responsibility in setting clear outlines to the expressions devised by the judiciary. Until then, the “public policy of India” remains to some extent, a threatening dark sea in Indian arbitration.