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The Year in Review

International Legal Developments Year in Review: 2021

South Asia/Oceania & India - International Legal Developments Year in Review: 2021

Namrata P. Rastogi, Aseem Chawla, Soniya Dodeja, Sanjay Notani, Naghm Ghet, Amit Gupta, Vidhi Goel, Hari Sankar Mahapatra, Katherine Maddox Davis, and Alisa Rukbankerd


  • This article surveys significant legal developments in South Asia and Oceania during the calendar year 2021.
  • It includes an update on Asian clean energy and climate change.
  • As well as the roll back by the Indian Government on the retrospective amendment known as the “Vodafone Tax" and an analysis on recent trends in Indian trade and customs practice.
  • Finally, it also include a survey on arbitration law in India and Australia and Australia maintaining its permanent seat on the ICJ and an update on Thailand.
South Asia/Oceania & India  - International Legal Developments Year in Review: 2021
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This article surveys significant legal developments in South Asia and Oceania during the calendar year 2021.

I. Asian Clean Energy and Climate Change Update

A. International Initiatives

Several clean energy and climate change announcements were made at the United Nations Framework Convention on Climate Change’s (UNFCCC) 26th Conference of Parties (COP 26) in Glasgow in 2021. At least twenty-three countries, including Indonesia, Vietnam, South Korea, and Singapore from the Asian region, signed on to the new “Global Coal to Clean Power Transition Statement,” making commitments to phase out coal. Additionally, the Climate Investment Funds launched the $2.5 billion Accelerating Coal Transition (ACT) investment program that advances a just transition from coal power to clean energy in South Africa, India, Indonesia, and the Philippines. More than 130 countries committed to stop and reverse deforestation and land degradation by 2030, including several Asian countries. Additionally, the Global Methane Pledge to cut methane emissions by thirty percent compared to 2020 levels by 2030 was also announced at COP26 and included more than one hundred countries, including several from the Asian region.

Below are country-specific updates:

1. India

At the “High Level Segment for Heads of State and Government” during COP26 in Glasgow, United Kingdom, India laid out a five-point plan to address climate change. Referred to as the “panchamrita,” or the “five ambrosia,” the plan set targets as follows: (1) to achieve a target of net zero greenhouse gas emissions by 2070; (2) to increase non-fossil energy capacity to 500 gigawatts (GW) by 2030; (3) to fulfill fifty percent of energy requirements from renewable sources by 2030; (4) to reduce carbon intensity of economy by forty-five percent by 2030, which is an increase from the previously established target of thirty-three to thirty-five percent; and (5) to reduce total projected carbon emissions by one billion tonnes.

In August 2021, India announced its launch of a National Hydrogen Energy Mission to scale up green hydrogen towards the clean energy transition and make India a global hub for green hydrogen production and export. Indian Railways announced its target to become a net zero emitter by 2030.

2. South Korea

South Korea “cemented” into law in September 2021 its target of becoming carbon neutral by 2050, with the South Korean parliament approving a bill that will help in achieving this target. The National Assembly passed a “climate crisis response” act, which mandates over a thirty-five percent cut in greenhouse gas emissions by 2030 compared with 2018 levels. In addition, at COP 26, South Korea announced its target of reducing emissions by at least 40 percent below 2018 levels by 2030.

3. Australia

In October 2021, Australia established a target to achieve net zero carbon emissions by 2050 while preserving Australian jobs and generating new opportunities for industries and regional Australia. It also released its Long-Term Emissions Reduction Plan that is technology driven and establishes Australia as a leader in low emissions technologies while preserving existing industries. The plan is based on the following five principles: technology, not taxes; expand choices, not mandates; drive down the cost of a range of new technologies; keep energy prices down with affordable and reliable power; and be accountable for progress.

In November 2021, Australia also announced its intent to establish a new $1 billion technology fund, the Low Emissions Technology Commercialization Fund, which will drive investment in Australian companies to develop new low emissions technology.

4. New Zealand

In October 2021, on the eve of COP26, New Zealand announced that it “will significantly increase its contribution to the global effort to tackle climate change by reducing net greenhouse emissions by 50 percent” from 2005 levels by 2030. As per the announcement, this effort “equates to a 41 [percent] reduction on 2005 levels using what is known as an ‘emissions budget’ approach.” This has been conveyed in the form of an updated Nationally Determined Contribution (NDC) to the UNFCCC.

5. Singapore

In early 2021, Singapore announced the Singapore Green Plan 2030, which advances the country’s agenda on sustainable development by setting concrete targets over the next ten years and strengthens Singapore’s commitments under the United Nation’s (UN) 2030 Sustainable Development Agenda and Paris Agreement. The Plan has five key pillars:

a) City in Nature: to create a green, liveable, and sustainable home for Singaporeans;

b) Sustainable Living: to reduce carbon emissions, keep the environment clean, and save resources and energy as a way of life in Singapore;

c) Energy Reset: to use cleaner energy and increase energy efficiency to lower its carbon footprint;

d) Green Economy: to seek green growth opportunities to create new jobs, transform industries, and harness sustainability as a competitive advantage; and

e) Resilient Future: to build up Singapore’s climate resilience and enhance food security.

6. Japan

In April 2021, Japan increased it emissions reduction pledge to forty-six percent by 2030 from 2013 levels, an increase from the previous target of twenty-six percent. Japan adopted its new energy plan in October 2021 that helps lay the foundation for meeting its pledge for carbon neutrality by 2050. The plan sets an ambitious target of thirty-six to thirty-eight percent of power supplies in 2030 from renewable energy which is “double 2019’s level and well above its previous 2030 target for 22–24 percent.”

II. Roll Back by the Indian Government on the Retrospective Amendment Known as the “Vodafone Tax”

In the backdrop of the Modi government’s renewed, avowed objective of fortifying India’s role as the preferred destination among the emerging economies and of augmenting the flow of inbound capital, in 2021, the Indian government amended the Scheme of Income Tax Act, 1961 (the Act) to do away with the retrospective amendment popularly known as the “Vodafone Tax.” In 2012, the tax department raised a demand of Rs. 11, 218 crores. This demand was quashed by the Supreme Court in 2012 but was brought back through an amendment to Finance Act, 2012. Pursuant to this amendment, Vodafone challenged the tax demand in an international arbitration, which ruled in favor of Vodafone and directed India to reimburse Vodafone. Following this decision, the Indian Tax Administration, on August 28, 2021, requested public comment on a draft notification which constitutes “ways [and] means” by which the government has provided measures to grant relief to the taxpayers, at the same absolving itself of the refund or reimbursement liabilities imposed by international arbitration, and provides entitled applicants with the process by which they can avail the benefit of the roll back and its consequences, including the refund of taxes previously paid.

The draft notification highlighted insertion of Rule 11UE to the Income Tax Rules, 1962, which, inter alia, specifies the form and manner of submitting a requisite undertaking by the declarant, as well as the interested party, and, in return, the government promises to refund taxes collected and withdraw all litigation and arbitration.

Recently, Cairn Energy (now renamed as Capricorn Energy) has withdrawn all litigation with regard to the Retrospective tax case, which has enabled the Indian Government to nullify the previous tax demands created and initiate the process of refunding the tax collected in this regard to the company.

In view of this, “Vodafone Group has filed an application with the government to settle its [Rs. 20,000 Crores (USD $2.65 billion)] retrospective tax dispute.” “After the application is processed, the company will be issued” a form “setting the stage for the refund of tax already paid.” This application comes after Cairn Energy Plc. submitted its undertaking for the settlement of its long and complicated retrospective tax dispute. In addition to its application to the Indian government, Cairn Energy has registered its arbitration award in many jurisdictions, including the United States, the United Kingdom, Canada, Singapore, Mauritius, France, and the Netherlands and filed cases in multiple jurisdictions to enforce the award.

Both Cairn and Vodafone’s investment protection litigations pertained to explicit tax carve-outs intending to create exclusions for taxation matters. With the adoption of the 2016 Model Bilateral Investment Treaty (BIT), India’s approach moved from being “overly investor-friendly” to protectionist.

Article 4(4) of the India-Netherlands BIT creates an explicit tax carve-out, which appears to cover claims involving other treaty obligations, such as the Fair and Equitable Treatment (FET) obligations and obligations relating to expropriation. Article 4(3) of the India-UK BIT is limited in its scope and provides jurisdiction for international arbitral tribunals only for claims that allege breach of a state’s obligation regarding the National Treatment and Most Favored Nation clause.

Despite the existence of Article 4(4) of the BIT, the arbitral tribunal was successful in affirming its jurisdiction in the Vodafone matter.

III. Recent Trends in Indian Trade & Customs Practice—An Analysis

A. Introduction

The COVID-19 pandemic led to significant changes in the conduct of international trade, with disruptions in supply chains, changes in production and consumption patterns, and an increased focus on self-sufficiency, across the globe, including India. As the COVID-19 pandemic recedes and trade begins to increase, the Indian government has recently taken several steps to update its trade procedures and is slowly resuming business as usual. This submission highlights the key developments in Indian trade practice over the past year, as India makes efforts to adjust to the post-pandemic world.

B. Trade Remedial Measures

1. Trends in Trade Remedial Actions

India remains “a prolific user of trade remedial actions, having initiated fifteen new original anti-dumping investigations in 2021, along with twenty sunset and mid-term review investigations.” The largest number of investigations concerned the chemicals sector, including soda ash and mono-ethylene glycol, followed by metals and other diversified sectors.


Sectoral Distribution: Anti-dumping Initiations

Sectoral Distribution: Anti-dumping Initiations

Source: Anti-Dumping Investigations in India, Directorate Gen. of Trade Remedies, (last visited May 10, 2022).

Sectoral Distribution: Anti-dumping Initiations

As can be seen from the graph below, anti-dumping investigations saw an exponential rise in 2020, which declined in the more recent period of 2021.


Anti-dumping Investigations

Anti-dumping Investigations

Sources: Trade and Tariff Data, Word Trade Org. (Jan.–Sept. 2021),; see also Anti-Dumping Investigations in India, Directorate Gen. of Trade Remedies, (last visited May 10, 2022).

Anti-dumping Investigations

Similarly, anti-subsidy investigations saw a rise until 2020, which declined in the more recent period, up to September 2021. The largest number of investigations targeted the metals sector, including hot rolled and cold rolled flat iron and steel products, copper tubes and pipes, and aluminum primary foundry alloy ingots, followed by chemicals, glass, and other products.


Anti-subsidy Investigations

Anti-subsidy Investigations

Sources: Trade and Tariff Data, Word Trade Org. (Jan.–Sept. 2021),; see also Anti-Dumping Investigations in India, Directorate Gen. of Trade Remedies, (last visited May 10, 2022).

Anti-subsidy Investigations

In 2021, the Directorate General of Trade Remedies (DGTR) also concluded the first-ever investigation conducted under India’s Safeguard Measures (Quantitative Restrictions) Rules 2012 on imports of Isopropyl Alcohol (IPA). The DGTR recommended that import quotas (subject to progressive relaxation) be issued on a country-wise basis for two years. The final decision to give effect to this recommendation has not been taken until now by the Directorate General of Foreign Trade.

2. Trends in Trade Remedial Enforcement

While trade remedial investigations continue to progress at a steady place, “[t]he Ministry of Finance [(MoF)] has . . . discretion” over whether to levy duties recommended by the DGTR.

Recently, there have been multiple instances where the MoF has chosen not to levy the duties recommended by the DGTR. Though no explicit reasoning was provided by the MoF, it was seemingly on account of public interest concerns. The appellate tribunal, CESTAT, in a recent order, has directed the MoF to issue a reasoned order, in case the recommendations of the DGTR for imposition of duties are not accepted. The Ministry of Finance has filed a writ petition before the High Court of Delhi, and the Court has issued notice, so it is pending a hearing on July 13, 2022.

3. Amendments to Existing Trade Remedial Law and Practice

Additionally, India has also recently introduced important amendments to align its trade remedial practices with leading WTO signatories.

The MoF, on October 27, 2021, notified of new provisions on anti-absorption in both anti-dumping and anti-subsidy rules. Similarly, taking a cue from the European Union’s Article 14 Anti-Dumping Regulation, India introduced provisions for the suspension of anti-dumping and anti-subsidy measures by introducing relevant amendments allowing suspension of duties for “one year at a time.” Pursuant to this amendment, the MoF suspended definitive anti-subsidy measures in one case and definitive anti-dumping measures in three cases.

Lastly, new questionnaire formats have also been issued pursuant to stakeholder consultations to simplify filling out the questionnaire formats and application proformas in trade remedial investigations and to reduce the burden of procedural compliance placed on the cooperating parties.

C. Non-Tariff Barriers

In addition to trade remedial measures, the Government of India has, in the past year, increased its use of non-tariff measures to regulate supply of goods in its domestic market, which is believed to be creating non-tariff barriers to promote import substitution. The government has imposed mandatory Bureau of Indian Standards (BIS) certification for a range of new products across sectors, including steel, chemicals, and petrochemicals. “This is imposed” through “Quality Control Orders” specifying the product and relevant “Indian Standard against which certification is to be obtained . . . .” Presently, 446 products have been notified for mandatory certification, with new products being announced routinely. Ordinarily, all producers are granted a period of six months to obtain such certification.

The process of obtaining BIS certification requires a physical inspection of the manufacturing premises. But due to the COVID-19 pandemic and associated travel restrictions, factory audits for international manufacturers were suspended for most of the year. As a result, the Government of India has been issuing periodic extensions to existing quality control orders to enable manufacturers to obtain certifications. It is important to note, however, that with certain strategic products, extensions were not granted to prevent imports (for example, toys). Furthermore, with the easing of travel restrictions, the conduct of inspections is expected to resume shortly for certain countries and, depending on ease of restrictions, the pending applications would be undertaken.


IV. Survey on Arbitration Law in India and Australia—2021

A. India

1. Emergency Arbitration

The issue of emergency arbitration (EA) was hotly contested in Indian courts in 2021. On October 25, 2020, a Singapore International Arbitration Centre (SIAC) arbitral tribunal had granted interim relief in an EA in favor of Amazon. Amazon filed an application before the Delhi High Court (DHC) to enforce the order. In March 2021, the DHC held that an emergency arbitrator is an arbitrator “for all intents and purposes” under Indian law, and the respondents in the case were directed not to take any further action in violation of the order.

On appeal, the Supreme Court of India (SC) held that the EA order was enforceable because parties had consciously selected SIAC Rules, under which an emergency arbitrator has all the powers of an arbitral tribunal. The SC described the EA order as an important step in decongesting civil courts and affording expeditious interim relief to the parties. But, even after a year, until the end of 2021, proceedings to enforce the EA order were still pending, in view of a stay order from SC.

2. Power to Decide Seat

In PASL Wind Solutions v. GE Power Conversion India, the SC held that two Indian parties can agree to arbitrate at a foreign seat. At the same time, they can seek interim relief under Indian law.

3. Non-Payment of Stamp Duty

A three-judge bench of the SC opined that non-payment of stamp duty on a contract does not invalidate an agreement regarding arbitration. This issue has now been referred to a larger bench because earlier decisions have held to the contrary.

4. Period of Limitation to Invoke Arbitration

The SC held that an application before a court for appointment of an arbitrator should be filed within three years from the date the right to apply accrues. But, where the claims are ex facie time-barred, the court may refuse to make a reference to arbitration.

5. Allegations of Fraud

In M/s. N.N. Global Mercantile vs. M/s. Indo Unique Flame Ltd., the SC held that the position that allegations of fraud are not arbitrable is an archaic view. Allegations of fraud regarding invocation of a bank guarantee can be arbitrated.

6. Enforcement of Foreign Arbitral Award Against Foreign State

The DHC stated that a foreign state cannot claim sovereign immunity against the enforcement of an arbitral award from a commercial transaction. The immunity is available only when it is acting in its sovereign capacity.

7. Enforcement of Foreign Award Against Non-Signatory

In Gemini Bay Transcription vs. Integrated Sales Service, it was held that Indian law does not allow a non-party to an agreement to allege that it is not bound by a foreign award. The award gave reasons to apply the alter ego doctrine, and the SC refused to re-appreciate the facts.

8. Power of the Court to Modify an Award

In Project Director, National Highways No. 45 E and 220, National Highways Authority of India v. M. Hakeem, the SC held that a supervisory court does not have the power to modify an award. It can, at best, set aside the award, but the SC refused to interfere with the lower court’s order, even though the award had been modified by the lower court. The SC was of the view that the arbitration award was perverse, and the lower court had rightly interfered with it. Further, great injustice would have been caused to the claimant if the awards, which were made seven to ten years ago, were set aside and sent back to a government-appointed arbitrator for de novo adjudication.

9. Extension of Time Period Due to Pandemic

In view of declining cases of COVID-19, on March 8, 2021, the SC directed that no time relaxation would be given for completing pleadings and passing an arbitration award with effect from March 14, 2021. But the order was recalled on April 27, 2021.

Later, on September 23, 2021, the SC directed that the entire period from March 15, 2020, until October 2, 2021, shall be excluded for calculating the time for completing pleadings and passing the award.

B. Australia

1. Broadly Defined Arbitration Clause

The Supreme Court of Queensland interpreted a broadly drafted arbitration clause by observing that even a claim which arose by operation of law, outside the contract, shall be regarded as arising out of or closely connected with the contract.

2. Enforcement of Foreign Arbitral Award

In Neptune Wellness Solutions v. Azpa Pharmaceuticals, the Federal Court held that a Canadian award was recognizable and enforceable under Australian law, even if the award debtor did not participate in the enforcement proceedings after being served validly.

3. Mandatory Domestic Law in Foreign-Seated Arbitration

The Federal Court was asked to determine the applicability of mandatory domestic law, where the license agreement was governed by Californian laws and disputes were to be decided by a single arbitrator in California. The Court held that claims under the Australian Consumer Law could be heard and determined in the Californian arbitration.

4. New Rules for Australian Centre for International Commercial Arbitration (ACICA)

A new set of rules for the ACICA came into force in 2021. These rules permit tribunals to hold conferences and hearings virtually or in a combined/hybrid form. The ACICA has also moved to default electronic filing by requiring both the Notice of Arbitration and Answer to be filed by email or through its dedicated online portal.

V. Australia Maintaining Its Permanent Seat on the ICJ After the Passing of James Crawford in May and the Election of Hilary Charlesworth

In 2021, South Asia and Oceania maintained its second International Court of Justice (ICJ) seat. Australian jurist James Crawford passed unexpectedly in May 2021 and, in November 2021, was replaced by Australian jurist Hilary Charlesworth, who made history as the fifth woman on the World Court bench. On November 5, 2021, Hilary Charlesworth was elected by secret ballot. With two nations abstaining, Charlesworth received 119 ballots to Greek Linos-Alexander Sicilians’ seventy-one votes. She will complete Judge Crawford’s term, scheduled to end February 5, 2024.

ICJ vacancies occurring outside the regular, triennial election cycle are filled through causal elections. There is a general expectation—though no formal rule—that a judge who dies or resigns is replaced by someone of the same nationality, or at least from the same region. Traditionally, the ICJ bench reflects relatively consistent representation of seats by region: two for the African Group, two for the Latin American and Caribbean Group, three for the Asia-Pacific Group, two for the Eastern European Group, and five for the Western European and Other Group.

The nomination of Sicilians as Judge Crawford’s replacement was notable, given his home state is outside the geographic bloc Judge Crawford represented. This practice divides the shared experience of the five states holding permanent seats on the United Nations Security Council, known as the P5, from the experience of all other states, including South Asia and Oceania. When an ICJ vacancy is created by the death or resignation of a P5 judge, the election is rarely contested, and, contest aside, the elected judge is always of the same nationality as the outgoing judge. When a vacancy arises through the death or resignation of a non-P5 judge, the replacement election is generally contested.

This development is significant for South Asia and Oceania’s voice on the World Court bench—maintaining two seats. Greece and the Western European group lost a seat to the Asia-Pacific Group in 2017, when Indian Judge Dalveer Bhandari was elected to a seat historically reserved for a member of the Western Europe and Other Groups bloc. That election left the United Kingdom without an ICJ judge for the first time.

Given the ICJ bench’s roster has been 3.7 percent female over time, Judge Charlesworth’s appointment is significant for Oceania representation and gender representation alike.

VI. Thailand

A. Amendment of the Criminal Act

On February 7, 2021, the Act on the Amendment of the Criminal Code (No. 28) B.E. 2564 (2021) came into effect. Under the amended code, abortion within the first twelve weeks of pregnancy is now legal under Section 301, and women seeking abortion and medical practitioners performing an abortion are exempted from the corresponding liabilities under Section 305. The new law also permits abortions beyond the first trimester but no later than the first twenty weeks of pregnancy, if the woman seeking an abortion has consulted with medical practitioners and other professionals in accordance with the rules to be prescribed by the Ministry of Public Health.

This amendment followed the Constitutional Court’s landmark decision in 2020 that the criminalization of abortion under the former Section 301 was unconstitutional. Specifically, the Court found that Section 301 violated the principles of equality and liberty enshrined in Sections 27 and 28 of Thailand’s Constitution. Prior to the ruling, abortion was a criminal offense in Thailand except in certain circumstances, such as medical necessities concerning the woman’s physical health or pregnancy resulting from sexual crimes. Absent such conditions and regardless of the pregnancy period, women seeking abortion faced imprisonment of up to three years or fines up to 60,000 baht, or both. Persons, including medical practitioners, who perform an abortion with the woman’s consent were also subject to liabilities of imprisonment and/or fines.

Under the new Section 301, abortion beyond the first trimester is permissible only in exceptional circumstances, and penalties for late-term abortion have now been reduced to imprisonment of up to six months and fines of up to 10,000 baht, or both.

B. Extension of the Effective Date of the Personal Data Protection Act

On May 8, 2021, the Government Gazette published the Royal Decree on the Organizations and Businesses of which Personal Data Controllers are Exempted from the Applicability of the Personal Data Protection Act, prescribing an additional postponement of the effective date of the operative provisions under the Personal Data Protection Act (PDPA) for another year. The Royal Decree cites the complexity of the law, the advanced technology required, and the critical impact of the COVID-19 pandemic on the country, which impairs the abilities of entities subject to the PDPA from effective implementation of the statute, among the rationale for the second postponement.

Being the first consolidated data protection statute in Thailand, the PDPA is highly influenced by the European Union’s General Data Protection Act. It stipulates several mandatory obligations upon public and private entities classified as “data controllers” and “data processors.” Under the statute, data controllers and data processors are required to, among other things, inform and obtain consent from the data subject for collection, usage, disclosure, and/or transfer of personal data, report a personal data breach to the authority without delay, and “maintain records of personal data processing activities.” The PDPA has an extraterritorial effect, and non-compliance entails risks of civil, criminal, and administrative liabilities.

With the postponement in effect, entities under the PDPA mandates can now enjoy an additional grace period until May 31, 2022, to build on their capacity to implement the act.

The committee editors were Kavita Mohan, Amy Tolbert Harris, and Aseem Chawla. Section I was authored by Namrata P. Rastogi. Section II was authored by Aseem Chawla. Section III was authored by Sanjay Notani and Naghm Ghei. Section IV was authored by Amit Gupta, Vidhi Goel, and Hari Sankar. Section V was authored by Katherine Maddox Davis. Section VI was authored by Alisa Rukbankerd.