The case of the day is Barapind v. Government of the Republic of India (9th Cir. 2016). Kulvir Singh Barapind, an Indian national, was a member of a Sikh nationalist party that supported the secession of Punjab from India. He applied for asylum in the United States in 1993, claiming that “Indian security forces” had arrested and tortured him because of his political activity. In 1994, while the asylum request was pending, the Indian government sought extradition pursuant to the extradition treaty between the two countries. The charge was murder. The District Court certified his extraditabilty, but he sought relief under the UN Convention Against Torture. The US received assurances from India, via an exchange of diplomatic notes, that Barapind would not be tortured, and he was then extradited. But at his trial in India in 2008, Barapind was acquitted. He resumed his political activities and, he alleges, he was arrested and tortured in 2012.
In 2013, Barapind sued the Indian government in the Eastern District of California, asserting claims under the Convention and the Trafficking Victims Protection Act. The defense was, of course, foreign sovereign immunity, but Barapind claimed India had waived its immunity in the exchange of diplomatic notes that had led to his extradition. The court dismissed for lack of jurisdiction, and Barapind appealed. Continue reading Case of the Day: Barapind v. India→
The case of the day is Hardy Exploration & Production (India), Inc. v. Government of India (D.D.C. 2016). Hardy was a participant, initially with other private firms and later on its own, then in the end with an Indian state-owned company, GAIL (India) Ltd., in a contract with the government of India for the development and production of hydrocarbons in an area off India’s southeastern coast. After Hardy and GAIL found hydrocarbons in 2006, a dispute arose as to whether the find was natural gas (as the government thought) or oil (as Hardy and GAIL thought). If the find was oil, then Hardy, for reasons unimportant here, would have forfeited its interest under the contract. Hardy demanded arbitration in Kuala Lumpur, as per the parties’ arbitration agreement. The tribunal found that Hardy’s position was correct, ordered a restoration of the status quo ante, and awarded damages of 5 billion rupees (about $74 million). India sought to vacate the award in the Indian courts (not the Malaysian courts), but its petition was dismissed. Hardy filed a petition to enforce the award in India, and then sought confirmation in Washington. India’s defense was that service of process (by FedEx) was defective under the FSIA. Hardy countered that the contract contained a special arrangement for service of process, and that service was therefore proper under 28 U.S.C. § 1608(a)(1). Continue reading Case of the Day: Hardy Exploration v. Government of India→