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Enron Mail |
jim --
good reading. -----Original Message----- From: Jim Mccartney <jw1000mac@yahoo.com<@ENRON [mailto:IMCEANOTES-Jim+20Mccartney+20+3Cjw1000mac+40yahoo+2Ecom+3E+40ENRON@ENRON.com] Sent: Thursday, May 31, 2001 1:48 PM To: Walls Jr., Rob Subject: Fwd: Dabhol Power Project - MERC Proceeding Note:rob, see attached from cw. jim __________________________________________________ Do You Yahoo!? Get personalized email addresses from Yahoo! Mail - only $35 a year! http://personal.mail.yahoo.com/ X-Apparently-To: jw1000mac@yahoo.com via web13003.mail.yahoo.com; 31 May 2001 07:14:01 -0700 (PDT) X-Track: -10 Received: from chkpmr01.linklaters.com (202.130.189.227) by mta590.mail.yahoo.com with SMTP; 31 May 2001 07:14:00 -0700 (PDT) Received: from mailhost(10.152.2.5) by chkpmr01 via smap (V2.1+anti-relay+anti-spam) id xma001919; Thu, 31 May 01 15:23:41 +0100 Received: from chkpeg01.asia.linklaters.com (unverified) by chkpvs01.asia.linklaters.com (Content Technologies SMTPRS 4.1.5) with ESMTP id <T0a96005de053dd4e7d99@chkpvs01.asia.linklaters.com<; Thu, 31 May 2001 22:13:14 +0800 Received: by chkpeg01.asia.linklaters.com with Internet Mail Service (5.5.2653.19) id <LAMG1TA0<; Thu, 31 May 2001 22:13:15 +0800 Message-ID: <BF972BD17684D311B1E60000D11AF98E02DAF660@chkpex01.asia.linklaters.com< From: "Walker, Christopher" <christopher.walker@linklaters.com< To: "'Jim Mccartney'" <jw1000mac@yahoo.com<, "Walker, Christopher" <christopher.walker@linklaters.com< Cc: bruce.lundstrom@enron.com Subject: Dabhol Power Project - MERC Proceeding Date: Thu, 31 May 2001 22:16:09 +0800 MIME-Version: 1.0 X-Mailer: Internet Mail Service (5.5.2653.19) Content-Type: text/plain; charset="iso-8859-1" Content-Length: 5304 Jim, In answer to your points:- (1) The method of challenge (to the main Petition before MERC) is by Writ Petition under Articles 226 and 227 of the Constitution of India. This is the procedural means by which the High Court controls and supervises the activities of lower Courts and administrative tribunals. It is,strictly,a public law proceeding rather than a private law proceeding. Again,strictly,we cannot use a Writ Petition as a means of asserting a right to have these proceedings stayed under section 45 of the Arbitration and Conciliation Act 1996. That is a private law application. We could only get that inot the High Court by first making that application to the MERC,having it refused and then proceeding by way of statutory appeal. Clearly,a stay application presumes that the MERC has jurisdiction. (2) The way to tackle the injunction is to apply to have it discharged or modified. If (perhaps when) MERC says no,there is a statutory right of appeal to the High Court. (3) The Writ Petition is an all or nothing excercise. Realistically,if DPC succeeds in the Writ Petition,the MERC is dead and so (ultimately) will be the MSEB. I think that I can fairly safely predict that in front of any half-decent tribunal in London,the recission claim is going to go nowhere. If,however,DPC does not succeed on jurisdiction,I cannot see a stay application succeeding in front of the MERC. If the Court says that the MERC has jurisdiction,you can bet your bottom dollar on the fact that it will be excercised. No doubt DPC could file a statutory appeal to the High Court (against a refusal to grant a stay),but that will take a very long time to get heard in these circumstances. (4) The prcedural stroke which requires to be played right in the High Court is getting the Court to deal with this Writ Petition urgently. Should that occur,we should get home sooner rather than later (working on Indian time,that is). If,contrary to my expectation,the Court sits on the matter,then we are in difficulties. It is going to be hard to appeal when the decision is that there is no decision. (5) I do not think that DPC can prudently disregard the MERC's order. Aside from the invocation of contempt procedures against DPC,the MSEB would simply apply to the High Court for an injunction directly. Also,will our Lenders really allow DPC to serve a Termination Notice in these circumstances (given that the Phase I dollar Lenders require to get to the GOI Guarantee)? I personally doubt it. As a practical matter I believe that we have to comply with the MERC's orders unless and until the High Court says that MERC has no jurisdiction. The more practical approach is this. Having filed our Writ Petition,nothing prevents us from applying to MERC to vary its current order. If it refuses,we file a stautory appeal against its order and apply to the Chief Justice to have both matters conjoined. That is what we ought to be doing. (6) I do not know enough about our PRI coverage (certainly the OPIC cover) to say with certainty. However,the Lloyd's Policy has the better coverage (subject to whatever right the underwriters may have to avoid for non-disclosure on placing). That policy requires that DPC obtains an arbitral award. I think that we should be doing all that we can to preserve the position viz-a-viz that policy. This seems to dictate that we comply with the MERC's orders,at least for the time being. One remedy for contempt by a corporate body is the appointment of a receiver. The implications of that for obtaining any arbitral award are obvious. -----Original Message----- From: Jim Mccartney [mailto:jw1000mac@yahoo.com] Sent: 31 May 2001 06:46 To: christopher.walker@linklaters.com Cc: bruce.lundstrom@enron.com Subject: dpc chris, is there any established procedure under indian procedural or substantive law on how we challenge the merc injunction? if we lose before the bombay high court, e.g. they decline to consider the matter or just sit on it, what then? appeal to the s.ct., mandamus? since we would have to rely on the indian courts to enforce an arbitration award (as i recall) what good would it do to disregard the merc's order (and the court's) and proceed with the arbitration-- a high risk venture--could it help us with our political risk coverage or other extra-india protections? we would appreciate your thoughts. best regards, jim __________________________________________________ Do You Yahoo!? Get personalized email addresses from Yahoo! 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