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ARTICLE · 24 FEBRUARY 2022

The White Industries Australia Ltd : India BIT Award – A Critical Assessment

Kachwaha & Partners
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On 28 September 1989, White entered into a contract with Coal India (a Government of India Public Sector Undertaking) for the supply of equipment and development of a coal mine in India.

IndiaLitigation, Mediation & Arbitration
Sumeet Kachwaha
Sumeet Kachwaha
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ABSTRACT:

In recent times, the White Industries - India Award1 (BIT Award) has created quite a stir. In short, it holds India liable for damages for judicial delays of over nine years in enforcing an ICC Award between White Industries Australia Ltd. (White) and an Indian Government company, Coal India. The delay in enforcement by the Indian courts was held to deprive the Australian investor of 'effective means of asserting claims and enforcing rights' - an obligation contained in the Kuwait-India BIT, which the Tribunal held the Australian investor could take advantage of, relying on the most favoured nation (MFN) clause in the bilateral investment treaty between Australia and India.

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