JusMundi PDF NTT Docomo V Tata Sons Lcia Case No 152896 Final Award

LCIA (LONDON COURT OF INTERNATIONAL ARBITRATION)
LCIA Case No. 152896
NTT DOCOMO INC. V

V.. T
TA
ATA SONS LIMITED
FINAL A
AW
WARD
22 June 2016
Tribunal:
David St. John Sutton (Appointed by the claimant)
Leonard Hoffmann (Appointed by the respondent)
Christopher J. Style (President)
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Table of Contents
Final Award ..................................................................................................................................................................................................... 0

A. INTRODUCTION ...................................................................................................................................................................................... 1
B. PROCEDURAL HISTORY OF THE ARBITRATION ............................................................................................................................ 3
C. FACTUAL BACKGROUND ...................................................................................................................................................................... 7
(1) The Share Subscription Agreement ............................................................................................................................................... 7
(2) Exercise of the Sale Option............................................................................................................................................................. 11
(3) Performance by Tata........................................................................................................................................................................ 12
(4) The application to the RBI for special permission ................................................................................................................... 14
D. THE MERITS .......................................................................................................................................................................................... 17
(1) The claims of the Parties................................................................................................................................................................. 17
(2) The issues for decision .................................................................................................................................................................... 20
(3) Applicable law ................................................................................................................................................................................... 22
(4) Burden of Proof ................................................................................................................................................................................. 22
(5) The scheme of the SHA.................................................................................................................................................................... 23
Introduction ............................................................................................................................................................................................ 23
Docomo’s case ......................................................................................................................................................................................... 23
Tata’s case ................................................................................................................................................................................................ 24
Discussion ................................................................................................................................................................................................ 25
(i) The admissible evidence ............................................................................................................................................................... 25
(ii) The knowledge of the Parties at the time of contracting .................................................................................................... 27
(iii) The construction of Clause 5.7.2 ............................................................................................................................................... 28
(iv) Severance ........................................................................................................................................................................................ 33
(6) Indian exchange control laws ....................................................................................................................................................... 33
Introduction ............................................................................................................................................................................................ 34
Docomo’s case ......................................................................................................................................................................................... 38
Tata’s case ................................................................................................................................................................................................ 39
Discussion ................................................................................................................................................................................................ 41
(7) The claim for breach of Clause 5.7.2............................................................................................................................................ 41
Introduction ............................................................................................................................................................................................ 41
Docomo’s case ......................................................................................................................................................................................... 41
Tata’s case ................................................................................................................................................................................................ 42
Discussion ................................................................................................................................................................................................ 43
(8) The claim for breach of Clause 2.2.2............................................................................................................................................ 44
Docomo’s case ......................................................................................................................................................................................... 44
Tata’s case ................................................................................................................................................................................................ 45
Discussion ................................................................................................................................................................................................ 46
(9) The claim for breach of Clause 10.1.1(b) and (d)...................................................................................................................... 46
Docomo’s case ......................................................................................................................................................................................... 46
Tata’s case ................................................................................................................................................................................................ 46
Discussion ................................................................................................................................................................................................ 47
(10) The restitution claim ..................................................................................................................................................................... 47
Docomo’s case ......................................................................................................................................................................................... 47
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Table of Contents
Tata’s case ................................................................................................................................................................................................ 48

Discussion ................................................................................................................................................................................................ 48
(11) Tata’s counterclaim ........................................................................................................................................................................ 49
(12) Relief .................................................................................................................................................................................................. 49
Introduction ............................................................................................................................................................................................ 49
Docomo’s case ......................................................................................................................................................................................... 50
Tata’s case ................................................................................................................................................................................................ 50
Discussion ................................................................................................................................................................................................ 51
(13) Interest .............................................................................................................................................................................................. 51
Introduction ............................................................................................................................................................................................ 51
Docomo’s submissions.......................................................................................................................................................................... 52
Tata’s submissions ................................................................................................................................................................................. 53
Discussion ................................................................................................................................................................................................ 53
(14) Costs ................................................................................................................................................................................................... 55
Introduction ............................................................................................................................................................................................ 55
Discussion ................................................................................................................................................................................................ 55
E. AWARD .................................................................................................................................................................................................... 59
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Final A
Award
ward
A. INTR
INTRODUCTION
ODUCTION
1. The Claimant ("Docomo") is a company incorporated under the laws of Japan and has its registered
office at 11-1, Nagata-cho 2-chome, Chiyoda-ku, Tokyo 100-6150, Japan. Docomo, which began
operations in 1992, is Japan's largest mobile telecommunications provider. It serves over 60 million
customers, primarily in Japan, but also in countries throughout Asia, Europe and the United States.
Docomo is listed on the Tokyo and New York stock exchanges. Docomo's majority shareholder is
Nippon Telegraph and Telephone Corporation ("NTT").
2. The Claimant is represented in this arbitration by:

John L. Gardiner
Lea Haber Kuck
Gregory A. Litt
SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP
4 Times Square
New York, NY 10036
United States of America
David Kavanagh
Genevieve Poirier
SKADDEN, ARPS, SLATE, MEAGHER & FLOM (UK) LLP
40 Bank Street
Canary Wharf
London E14 5DS
United Kingdom
Sanjeev Kapoor
KHAITAN & CO
Ashoka Estate, 12th Floor
24 Barakhamba Road
New Delhi 110 001
India
3. The Claimant is also represented by Mr Ciccu Mukhopadhaya, Senior Counsel.
4. The Respondent ("Tata") is a company incorporated under the laws of India and has its registered
office at Bombay House, 24, Homi Mody Street, Fort, Mumbai 400 001, India. Tata was incorporated
in November 1917. About 66% of Tata's equity shares are held by the Tata Philanthropic Trusts. Tata
has more than 200 affiliates and subsidiaries (the "Tata Group"), which are all separate legal entities
and in which Tata has a varying level of ownership and influence. They operate in a variety of
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sectors including communications, materials, hospitality, insurance, energy, consumer products
and chemicals. The Tata Group has operations in more than 100 countries across six continents,
exporting products and services to over 150 countries.
5. The Respondent is represented in this arbitration by:

Nigel Rawding QC
Elizabeth Snodgrass
Charles Loudon
Monica Hlavkova
FRESHFIELDS BRUCKHAUS DERINGER LLP
65 Fleet Street
London EC4Y 1HS
United Kingdom
Zia Mody
Rajendra Barot
Essaji Vahanvati
Ratnadeep Roychowdhury
AZB & PARTNERS
Express Tower, 23rd Floor
Nariman Point
Mumbai 400 0121
India
6. The Respondent is also represented by Mr Harish Salve, Senior Advocate, and Mr Darius Khambata,
Senior Advocate.
7. Docomo and Tata are referred to below as a "Party" or, together, as the "Parties."
8. Tata Teleservices Limited ("TTSL") is an unlisted company incorporated under the laws of India in
1996, with the objective of spearheading the Tata Group's presence in India's telecommunications
sector.
9. This dispute arises under a Shareholders Agreement dated 25 March 2009 between Tata (as
"Promoter"), Docomo (as "Strategic Partner") and TTSL (the "Company") (the "SHA") 1. The SHA is
governed by the laws of India. It sets out the terms on which Docomo acquired 26% of TTSL’s equity
capital for a Subscription Price of Rs. 116.09 per share, amounting to a total investment of Rs.
127,355,808,008.78 (approximately US$ 2.5 billion).
10. Clause 5.7 of the SHA ("Sale Option of the Strategic Partner") 2 gave Docomo the right in certain
circumstances to require Tata to acquire, or find a buyer for, Docomo’s shares in TTSL on terms that
Docomo received the higher of their Fair Value or 50% of the Subscription Price, that is Rs. 58,045
per share. Docomo describes Clause 5.7 as a "safety net", which provided "stop-loss protection." By
Sale Notice dated 7 July 2014 Docomo purported to exercise its Sale Option. Docomo’s case in this
1
Bundle C2-35. Footnote references are to the agreed bundles produced by the Parties for use at the Evidentiary Hearing between 3 and 6
May 2016.
2
The "Sale Option".

arbitration is that Tata has acted in breach of its obligations under Clause 5.7. Docomo claims
damages amounting to US$ 1,172,137,717, together with other relief.
11. Tata denies liability for breach of contract. Its case is that performance under Clause 5.7 was
permissible only with the special permission of the Reserve Bank of India (the "RBI"). This involves
a close examination of the Indian exchange control regulations made under the Foreign Exchange
Management Act 1999 ("FEMA") 3. Tata counterclaims declarations that it was unable to perform the
Sale Option at the Sale Price and that its obligations under the Sale Option stand discharged.
B. PR
PROCEDURAL
OCEDURAL HIS
HISTTOR
ORY
Y OF THE ARBITRA
ARBITRATION
TION
12. Clause 12.1.2 of the SHA 4 provides as follows:
"(a) Any dispute, controversy, claim or disagreement of any kind whatsoever between or among
the Parties in connection with or arising out of this Agreement or the breach, termination or
invalidity thereof (hereinafter referred to as a "Dispute") shall be referred to the Chairman of the
Promoter or such other senior officer / director designated by the Chairman of the Promoter and
the Chief Executive Officer of the Strategic Partner or such other senior officer designated by the
Chief Executive Officer of the Strategic Partner. The Chairman and Chief Executive Officer shall
deliberate in good faith and attempt a resolution of the Dispute within a period of thirty (30) days
from the date on which the Dispute is referred to them. If the Chairman and Chief Executive Officer
fail to resolve the Dispute within the said thirty (30) day period, the Dispute shall be referred to and
finally resolved by arbitration irrespective of the amount in Dispute or whether such Dispute would
otherwise be considered justiciable or ripe for resolution by any court.
(b) Arbitration shall be conducted as per the Rides of the London Court of International Arbitration
("LCIA Rules"), which are deemed to be incorporated by reference into this Clause 12.1.2.
(c) The number of arbitrators shall be three, one (1) of whom shall be nominated by the Strategic
Partner, one (1) by the Company and the Promoter and the third one of whom shall be appointed by
the two (2) arbitrators appointed by the Strategic Partner, the Company and the Promoter ("Arbitral
Tribunal Chairman") and the said three (3) arbitrators shall hereinafter collectively be referred
to as the "Arbitral Tribunal". The Company and the Promoter shall attempt to agree upon their
respective appointment and if the Company and the Promoter fail to jointly nominate an arbitrator
within thirty (30) days of service of the request for arbitration, an arbitrator shall be appointed on
their behalf by the London Court of International Arbitration. In such circumstances, any existing
nomination of the arbitrator chosen by the Strategic Partner shall be unaffected. If the two party-
appointed arbitrators or one Strategic Partner nominated and one London Court of International
Arbitration-appointed arbitrator cannot agree on the Arbitral Tribunal Chairman within thirty (30)
days of the confirmation of the second appointed arbitrator, such Arbitral Tribunal Chairman shall
be appointed by the London Court of International Arbitration.
(d) The Parties shall continue to perform their respective obligations under this Agreement to
3
Bundle D1-2. The relevant provisions of FEMA and the rules, regulations, notifications and circulars issued thereunder are referred to below
as the "FEMA Regulations".
4
Bundle C2-35 at page 967.

the extent possible notwithstanding commencement of any proceedings in accordance with this
Clause 12.1.2. Such proceedings shall be conducted so as to cause the minimum inconvenience to
the performance by the Parties of such obligations. The parties and the Arbitral Tribunal shall
endeavour to conduct the arbitration as expeditiously as possible.
(e) The seat, or legal place of arbitration, shall be London, England and any award shall always be
treated as made at the seat of the arbitration. The language to be used in the arbitral proceedings
shall be English.
(f) If the Arbitral Tribunal fails to unanimously agree on any issue, the Arbitral Tribunal shall decide
that issue by a simple majority vote (including the Arbitral Tribunal Chairman). By agreeing to
arbitration under LCIA Rules read in conjunction with this Clause 12.1.2, the Parties undertake to
abide by and carry out any award promptly. The decision of the Arbitral Tribunal shall be final and
binding, shall be carried into effect and may be enforced by an order of any competent court at the
instance of any Party.
(g) At any time following the constitution of the Arbitral Tribunal, any party to this Agreement or the
Share Subscription Agreement may apply to have another dispute arising out of or connected to this
Agreement or the Share Subscription Agreement, determined in the pending arbitral proceedings
and the Arbitral Tribunal shall have the power (to be exercised in its absolute discretion taking into
account the need for efficient and cost effective proceedings) to join or consolidate such dispute
to the pending arbitral proceedings. Such a power includes the right to join another party to the
proceedings in accordance with Article 22.1(h) of the LCIA Rules and by agreeing to this Clause 12.1,
the parties agree not to object to the exercise of such power by the Arbitral Tribunal."
13. The Parties are to be taken to have agreed that this arbitration shall be conducted in accordance
with the LCIA Rules in effect at the commencement of this arbitration, namely the rules effective 1
October 2014 (the "LCIA Rules").
14. Docomo began this arbitration by sending to the Registrar of the LCIA Court in accordance with
Article 1.1 of the LCIA Rules a Request for Arbitration dated 3 January 2015 5. Docomo nominated as
arbitrator Mr David Sutton of 20 Essex Street, London WC2R 3AL, England.
15. Tata sent the LCIA its Response and Counterclaim in accordance with Article 2.1 of the LCIA Rules
on 28 January 2015 6. Tata nominated as arbitrator Lord Hoffmann of Brick Court Chambers, 7-8
Essex Street, London WC2R 3LD, England.
16. Thereafter the Parties agreed to extend the time provided for in clause 12.1.2 (c) of the SHA within
which the two party appointed arbitrators were to agree on the Arbitral Tribunal Chairman to 31
March 2015. By email to the LCIA dated 18 March 2015 Mr Sutton and Lord Hoffmann nominated as
Arbitral Tribunal Chairman Mr Christopher Style QC of One Essex Court, Temple, London EC4Y 9AR,
England.
17. By letter dated 23 March 2015 the LCIA notified the Parties that, pursuant to Article 5 of the LCIA
5
Bundle A-1.
6
Bundle A-2.

Rules, the LCIA Court had appointed Mr Sutton, Lord Hoffmann and Mr Style to be the Tribunal in
this arbitration, with Mr Style presiding.
18. On 26 March 2015 the Tribunal acknowledged receipt. It directed that in accordance with Article
13.1 of the LCIA Rules all communications should take place directly with the Tribunal, with a copy
to the Registrar. It further directed that in accordance with Article 14.1 of the LCIA Rules the Parties
should confer with a view to agreeing the terms of a procedural order, including a procedural
timetable.
19. On 31 March 2015 the Tribunal fixed a case management conference to take place on 30 April 2015.
The Parties were thereafter able to reach a broad measure of agreement as to the procedural
timetable.
20. A hearing duly took place on 30 April 2015. On 6 May 2015 the Tribunal sent the Parties Procedural
Order No. 1.
21. In accordance with Procedural Order No. 1, the Parties made submissions as follows:
(1) On 9 July 2015 Docomo submitted its Memorial on the Merits 7.
(2) On 30 October 2015 Tata submitted its Counter-Memorial on Claimant’s Claim and Memorial on
Respondent’s Counterclaim 8.
(3) On 22 January 2016 Docomo submitted its Reply Memorial on its Claim and Counter-Memorial
on Respondent’s Counterclaim 9.
(4) On 24 March 2016 Tata submitted its Rejoinder on Claimant’s Claim and Reply on Respondent’s
Counterclaim 10.
All these Memorials were accompanied by the Factual Exhibits, Legal Authorities, Witness
Statements and Expert Reports on which that Party relied.
22. Docomo produced the following Witness Statements:

Kazuto Tsubouchi ("Mr Tsubouchi") dated 30 June 2015 11. Mr Tsubouchi has held various senior
management positions in the NTT group since 1976. He was a member of the boards of directors of
Docomo between 2006 and 2014 and of TTSL from 2009 to 2015.
Hajime Kii ("Mr Kii") dated 7 July 2015 12. Mr Kii has held various senior management positions in
the NTT group since 1983. Between 2010 and 2014 he was Managing Director of Docomo’s Global
Business Division. He has been a member of the board of directors of TTSL since 2012.
23. Tata produced the following Witness Statements:
7
Bundle A-3.
8
Bundle A-4.
9
Bundle A-5.
10
Bundle A-6.
11
"Tsubouchi W/S", Bundle B-1.
12
"Kii W/S", Bundle B-2.

Farokh N. Subedar ("Mr Subedar") dated 28 October 2015 13 and 23 March 2016 14. Mr Subedar is
Chief Operating Officer, Chief Financial Officer and Company Secretary of Tata.
Srinath Narasimhan ("Mr Srinath") dated 22 March 2016 15. Mr Srinath has held various senior
positions in the Tata group since 1986. He became a director of TTSL on 17 January 2003 and its
Managing Director on 1 February 2011.
24. Tata produced the following Expert Report:

Dilip Patwardhan ("Mr Patwardhan") dated 29 October 2015 16. Mr Patwardhan is the Chief
Executive of the Foreign Exchange Dealers’ Association of India.
25. In accordance with Procedural Order No. 1, on 4 December 2015 the Parties submitted requests for
the production of documents. A case management conference took place before Mr Style on 9
December 2015. The Tribunal gave directions for production by Procedural Order No.2 dated 10
December 2015.
26. On 24 February 2016 Tata made a further application for document production. Docomo made
submissions in response on 2 March 2016. The Tribunal gave directions in Procedural Order No.3
dated 7 March 2016.
27. A further case management conference took place on 4 April 2016. Directions were given in
preparation for the Evidentiary Hearing in Procedural Order No.4 dated 5 April 2016.
28. In accordance with Procedural Order No.l, on 20 April 2016 the Parties submitted Pre-Hearing
Written Submissions (below, "Pre-Hearing Submissions").
29. On 1 May 2016 the Parties produced to the Tribunal an Agreed Summary of the Facts, which has
been incorporated into this Award.
30. An Evidentiary Hearing took place in London between 3 and 6 May 2016. Both sides made oral
opening submissions on 3 May 2016. The following witnesses gave oral evidence on 4 and 5 May
2016:
Docomo: Mr Tsubouchi, Mr Kii
Tata: Mr Subedar, Mr Srinath 17
The Parties made oral closing speeches on 6 May 2016.
31. The Parties made written submissions in support of their claims to costs on 10 June 2016.
13
"Subedar W/S One", Bundle B-3.
14
"Subedar W/S Two", Bundle B-6.
15
"Srinath W/S", Bundle B-5.
16
"Patwardhan W/S", Bundle B-4.
17
Docomo elected not to cross-examine Mr Patwardhan.

32. On 14 June 2016 the Tribunal declared the record closed.
C. F
FA
ACTU
CTUAL
AL B
BAACK
CKGR
GROUND
OUND
33. There is set out below an account of the main factual allegations appearing in the submissions made
in this case. The individuals referred to below are identified in the Dramatis Personae, which is
agreed between the Parties and forms Annex A. A Chronology, which is also agreed between the
Parties, forms Annex B.
(1) The Share Subscription A

Agreement
greement
34. In 2007 TTSL initiated a search for a strategic investor. Docomo was chosen as a strategic partner.
In October 2007, representatives of Tata and Docomo met in Tokyo to discuss the Indian telecorn
sector and Tata's network deployment plans. Tata and Docomo re-engaged regarding Docomo's
investment in TTSL in the period March-May 2008. On 16 July 2008, Docomo submitted a formal
proposal to take a stake in TTSL. Between July and November 2008, the parties negotiated the terms
of Docomo's investment. Docomo agreed to purchase 26% of the equity capital of TTSL for Rs.
127,355,808,008.78 (approximately US$ 2.5 billion.)
35. By a Share Subscription Agreement dated 12 November 2008 18 Tata and TTSL agreed to issue and
allot 20% of the post-issue equity capital of TTSL to Docomo. Docomo also purchased a further 6%
of the equity capital of TTSL from other shareholders in TTSL. By a Secondary Share Purchase
Agreement dated 5 December 2008 19 Tata and Docomo agreed that Tata would assume a backstop
obligation to ensure that Docomo acquired the full 6%. In due course these shareholders entered
into their own Secondary Share Sale Agreements dated as of 25 March 2009.
36. Arrangements between the shareholders of TTSL are set out in the SHA dated 25 March 2OO9 20. The
principal provisions of the SHA which arise for consideration in this arbitration are as follows 21:
"2.2 Compliance with the A Agreement,

greement, the License A
Agreements
greements and Ar
Aranda’
anda’ss and T
TCL
CL’’s rights under
the Articles of Association
2.2.2 The Parties have agreed that the provisions of this Agreement shall be subject to the provisions
of the License Agreements, and in the event of any inconsistency between the provisions of this
Agreement and the License Agreements, the provisions of the License Agreements shall prevail.
Further, no Party shall take any action or have any right that would violate applicable Law 22 or
18
Bundle C2-26.
19
Bundle C2-27.
20
Bundle C2-35.
21
As stated above, Tata is referred to in the SHA as the "Promoter", Docomo as the "Strategic Panner" and TTSL as the "Company".
22
The term "Law" is broadly defined in Clause 1.1 of the SHA at page 917 of Bundle C2-35. It includes "any statute, notification, by-law,
rules and regulations, guideline, policy, direction, directive, ordinance, order or instruction having the force of law, enacted or issued by any
Governmental Authority."

cause a loss of any License Agreement. Each provision of this Agreement shall be interpreted so
as not to cause such violation of Law or loss of any License Agreement, and in the event of such
violation or potential loss the Parties shall use good faith efforts to agree on an alternative structure
that will afford the Parties the substantial benefits intended by such provision. 23
...
5.7 Sale Option of the Str

Strategic
ategic Partner
5.7.1 The Parties hereby agree that...if by March 31 2014, the Company shall have failed to achieve
all of the Second Key Performance Indicators (each of the foregoing a "Sale Trigger"), the Company
shall inform the Strategic Partner within sixty (60) days thereof in writing (the "Trigger Notice");
PROVIDED, THAT: a Trigger Notice shall be deemed to have been delivered to the Strategic Partner
if the Company does not deliver evidence of its compliance with the Second Key Performance
Indicators no later than May 30, 2014.
5.7.2 Upon receipt of the Trigger Notice, the Strategic Partner shall have a right (but not an
obligation), to exercise its option to issue a notice ("Sale Notice") within thirty (30) Business Days
from the date of receipt of the Trigger Notice from the Company; PROVIDED, THAT: if any of the
Shares held by the Strategic Partner Group (i) cannot be transferred due to any lock-in requirements
or (ii) are otherwise unable to be transferred due to restrictions imposed by Law, the Strategic
Partner shall have the right to issue a Sale Notice within thirty (30) Business Days from the date
the lock-in expires or the restrictions are lifted; PROVIDED, FURTHER, THAT: if the Promoter is
permitted to acquire the Shares despite any lock-in requirements, the Strategic Partner shall have
the right to deliver a Sale Notice to the Promoter during such thirty (30) Business Day period and the
Promoter shall be obligated to acquire the Sale Shares and assume the applicable lock-in obligation.
Upon receipt of the Sale Notice, the Promoter shall commit to find a buyer or buyers to acquire from
the Strategic Partner within a period of ninety (90) Business Days from the date of receipt of the
Sale Notice by it (the "Sale Period"), all but not less than all of the Eligible Shares, less the number of
Shares sold by any of the Strategic Partner Group at any time prior to delivery or deemed delivery
of the Sale Notice to the extent that it would reduce the number of Eligible Shares at the time of such
sale (the "Sale Shares") at a price per share equal to the higher of (A) the Fair Value 24 determined on
March 31, 2014 or (B) 50% of the Subscription Price (collectively, the "Sale Price") 25. The sale of the
Sale Shares shall be closed during the Sale Period. If the Promoter is unable to find a willing buyer
or buyers to purchase the Sale Shares at the Sale Price or if the sale of the Sale Shares is not closed
during the Sale Period, the Promoter shall acquire, or shall procure the acquisition of, the Sale
Shares at any price not later than the end of the Sale Period; PROVIDED, THAT: the Promoter shall
have the obligation to indemnify and reimburse the Strategic Partner for the difference between
the Sale Price and the price at which the Sale Shares are actually sold, which payment shall be made
at the time of closing of the Sale Sales 26; PROVIDED, THAT: this Clause 5.7.2 shall only be valid and
effective so long as the Strategic Partner Group holds not less than the number of Shares required
to enable the Strategic Partner to nominate at least one (I) Director to the Board 27.
23
24
The term "Fair Value" is defined in Clause 1.1 of the SHA at page 916 of Bundle C2-35. In summary, it means the price of the shares as
computed in accordance with the provisions of applicable Law and the detailed principles of valuation set forth in Schedule 5.
25
Docomo calls the preceding sentence the "first part" of the Sale Option. It is the "first stage" of Tata’s waterfall.
26
This should of course be "Sale Shares".

5.7.3 The payment of consideration for the Sale Shares (including the Promoter’s indemnification
and reimbursement obligation) shall be made in Indian Rupees and remitted to the Strategic
Partner in U.S. dollars, converted at the then prevailing exchange rate. 28
...
10 REPRESENT
REPRESENTA
A TIONS, W
WARRANTIES
ARRANTIES AND CO
COVENANTS
VENANTS
10.1 Promoter and Compan

Companyy
10.1.1 The Promoter and the Company represent and warrant to and covenant with the Strategic
Partner that:
(a) It has been duly incorporated or created and is validly subsisting and in good standing under the
Laws of the jurisdiction indicated in the preamble to this Agreement;
(b) It has necessary power to execute, deliver and perform its obligations under this Agreement and
all necessary corporate, shareholder and other actions has been taken to authorise such execution,
delivery and performance;
(c) This Agreement has been duly authorised, executed and delivered by it and constitutes a valid
and binding obligation enforceable against it in accordance with its terms subject, however, to
limitations with respect to enforcement imposed by Law; and
(d) To the best of its knowledge, the execution and delivery of this Agreement by the Promoter and
the Company, nor the performance by the Promoter and the Company of its obligations hereunder
nor compliance by the Promoter and the Company with the provisions hereof will violate,
contravene or breach or create a default under any agreement, instrument, charter or by-law
provision, statute, regulation, judgment, ordinance, decree, writ, injunction or Law applicable to the
Promoter and the Company. 29
...
11 LIQUIDITY E
EVENT
VENT
11.4 If any Party reasonably determines that one or more of the rights granted to such Party under
this Agreement may become unenforceable or may not be permitted under applicable Law or
listing rule for a listed company, the Parties shall discuss in good faith entering into additional
or alternative agreements (including amendment to the Articles of Association or the articles of
association of the surviving entity) that provide for effectively the same material rights granted to
the Parties hereunder; PROVIDED, THAT: the other rights granted to the Parties hereunder shall
remain in full force and effect pursuant Clause 12.10. 30
...
27
Docomo calls the preceding sentence the "second part". It is the "second stage" of Tata’s waterfall.
28
29
30

12.3 Further Assur
Assurances
ances
12.3.1 The Parties shall, with reasonable diligence, do all such things and provide all such
reasonable assurances as may be required to consummate the transactions contemplated by this
Agreement, and subject to applicable Law each Party shall provide such further documents or
instruments required by any other Party as may be reasonably necessary or desirable to effect the
purpose of this Agreement and carry out its provisions; PROVIDED, THAT: such co-operation shall
not extend to joining in or commencing litigation or arbitration proceedings. 31
...
12.10 Sever
Severability
ability
If any provision of this Agreement is determined to be invalid or unenforceable in whole or in part,

such invalidity or unenforceability shall attach only to such provision or part of such provision and
the remaining part of such provision and all other provisions of this Agreement shall continue to be
in full force and effect. 32"
37. The SHA gave Docomo a significant level of involvement in the management of the business of TTSL.
It had the right to nominate directors 33. It was represented on committees of the board 34. It had an
effective right of veto over fundamental issues 35. It had the right to nominate, appoint and remove
TTSL’s Chief Strategy Officer and Chief Wireless Officer 36. There was to be wide-ranging co-
operation between TTSL and Docomo 37.
38. Pursuant to a Promoter Deed of Adherence (the "Deed of Adherence"), also dated 25 March 2009,
between Tata Industries Limited ("TIL"), Tata, TTSL and Docomo 38, TIL agreed to be bound by tire
SHA as if it was an original party thereto.
39. Pursuant to an Inter-se Agreement (the "Inter-se Agreement"), also dated 25 March 2009, between
Tata and TTSL on the one hand and Tata Communications Limited ("TCL"), The Tata Power Company
Limited ("Tata Power"), TIL and Tata Steel Limited ("Tata Steel"), who had sold shares in TTSL to
Docomo pursuant to Secondary Share Sale Agreements, (together, the "Selling Shareholders") on the
other 39, the Selling Shareholders agreed to indemnify Tata and TTSL in respect of certain obligations
under the SHA. In particular, they agreed to be bound by Clause 5.7 and to acquire a proportion of
the Sale Shares and indemnify Tata in respect of a proportion of any losses if Docomo exercised the
Sale Option.
40. In March 2011 Docomo acquired a further 151,930,636 shares in TTSL pursuant to a rights issue,
31
32
33
Clause 4.1.2 of the SHA, Bundle C2-35 at page 930.
34
Clause 4.4 of the SH A, Bundle C2-35 at page 932.
35
Clause 4.5 and Schedule 6 of the SHA, Bundle C2-35 at pages 935 and 987.
36
Clause 4.8 of the SHA, Bundle C2-35 at page 937.
37
Clause 6 of the SHA, Bundle C2-35 at page 955.
38
Bundle C2-36.
39
Bundle C2-37.

investing another approximately Rs. 8 billion (approximately US$ 177 million). It was specifically
agreed that these shares would be covered by the Sale Option in Clause 5.7 of the SHA.
41. The following diagram illustrates the Parties' relative shareholdings in TTSL following
consummation of the SHA. The Parties' shareholdings as of March 2015 are indicated in brackets.
(2) Exercise of the Sale Option
42. Unfortunately the business of TTSL did not prosper as the Parties had intended. The SHA required
TTSL to meet a set of performance objectives known as the First Key Performance Indicators
provided for in Schedule 7 of the SHA (the "First KPIs") by 31 March 2012, and to meet another set
of objectives known as the Second Key Performance Indicators provided for in Schedule 8 (the
"Second KPIs") by 31 March 2014. TTSL failed to meet the First KPIs by 31 March 2012. By then the
Parties expected that TTSL would also not achieve the Second KPIs.
43. In exchanges between Docomo and Tata it became apparent that Docomo was considering the
exercise of the Sale Option provided for by Clause 5.7 of the SHA. On 23 April 2013 the board of TTSL
approved an annual operating plan for the year ending 32 March 2014. On 7 May Mr Kii, Senior Vice
President of Docomo, wrote to Tata 40 saying that Docomo recognised that this operating plan was
not designed to achieve the Second KPIs. He stated that, for the avoidance of doubt, this did not
imply any intention to waive the right to exercise the Sale Option. At a meeting with Tata on 21 May
2013 "Docomo expressed NTT Holdco’s reaction that in principle Docomo will have no choice but to
exercise their put option." 41
44. Around this time both Tata and Docomo set out to establish the extent to which Indian exchange
control laws gave rise to restrictions on the exercise of the Sale Option. Docomo produced to Tata a
note entitled "Legal Position with Exercise of Sale Option" dated 4 July 2013 42. This expressed a
concern that Docomo could not sell the Sale Shares to Tata at a price higher than fair value without
RBI approval; Tata should therefore find a buyer who was non-resident, since the restrictions in
question did not apply to a sale to such a buyer. This note was produced to Tata at a meeting on 24
July 2013. Docomo’s note 43 records Mr Srinath, Managing Director of TTSL, telling Mr Kii that there
had been a change in the law, as a result of which a put right was required to be exercised at fair
value. A transaction at another price required permission from the RBI. The note also records Mr
Srinath saying "Let’s let the legal people on both sides confirm and discuss."
45. Discussions between Tata and Docomo continued for many months. Docomo was clear that it
intended to exercise the Sale Option and pressed Tata to come up with proposals for the discharge
of its obligation under Clause 5.7. Tata insisted that it was obliged to perform in accordance with
Indian law. According to Docomo’s note 44, at a telephone conference on 15 January 2014 Mr Vasani,
Tata’s Group General Counsel, said that Tata was advised that changes to regulations under FEMA
40
Bundle C3-49.
41
Bundle C3-50.
42
Bundle C3-53.
43
Bundle C3-54 (in translation).
44
Bundle C3-66.

introduced in 2010 and 2013 rendered Clause 5.7 illegal and void. He suggested that the respective
legal advisers should discuss the matter and see what alternatives they could come up with.
46. Docomo was focused at this time on performance of Clause 5.7 outside India, on the theory that
Indian exchange control regulations would not apply. However, at a meeting on 7 February 2014,
Mr Mistry, Chairman of Tata, is recorded by Docomo’s note as telling Mr Tsubouchi and Mr Kii that
almost all the Tata group companies outside India were joint ventures or listed companies and that
Tata could not control them to effect a transaction at the put price.
47. A meeting took place on 5 March 2014, at which Docomo produced a number of proposals designed
to permit performance of Clause 5.7. 45
48. The Second KPIs related to the year ending on 31 March 2014. In the days thereafter Docomo sought
confirmation that they had not been met 46. Mr Kato, the President and CEO of Docomo,
corresponded with Mr Mistry informing him that the board of Docomo intended to decide whether
to exercise the Sale Option at its meeting on 25 April 2014 47. The subsequent exchanges 48 did not
however result in any accommodation and on 25 April 2014 Docomo informed Tata that the board
had decided to exercise the Sale Option and had made an announcement to that effect 49
49. TTSL did not deliver evidence to Docomo by 30 May 2014 of its compliance with the Second KPIs. It
is common ground that pursuant to Clause 5.7.1 a Trigger Notice was therefore deemed to be
delivered not later than that date.
50. As of 31 March 2014, the valuation date set by Clause 5.7.2, 50% of the Rs. 116.09 per share
Subscription Price - Rs. 58,045 per share - was greater than Fair Value (as defined in the SHA). On 7
July 2014 Docomo delivered to Tata and TTSL a Sale Notice in accordance with Clause 5.7 of the
SHA 50. This provided as follows:
"Pursuant to Section 5.7.2 of the Shareholders Agreement, we hereby exercise our option to issue
this Sale Notice. Your obligation to find a buyer or buyers to acquire from us the Sale Shares during
the Sale Period shall commence upon your receipt of this Sale Notice. The Sale Period shall end on
December 3, 2014, which is the ninetieth (90th) Business Day from the date hereof."
(3) Performance b
byyT
Tata
ata
51. Tata responded by engaging Standard Chartered Bank ("SCB") to identify prospective purchasers of
the Sale Shares by letter dated 28 July 2014 51. SCB were to provide services including to "assist [Tata]
to identify appropriate prospective purchasers of the [Sale Shares] at the Sale Price" and "carry out
45
Bundle C3-73.
46
Bundle C3-76.
47
Bundle C3-80.
48
Bundle C3-82.
49
Bundle C3-85.
50
Bundle C4-94.
51
Bundle C4-96.

such other activities in connection with the Transaction as may be mutually agreed between [SCB]
and [Tata] from time to time" 52.
52. On 8 August 2014 Mr Subedar of Tata wrote to Mr Kii of Docomo 53 informing him of the
appointment of SCB to conduct a global search for a buyer for the Sale Shares at the price of Rs.
58,045 per share. Mr Subdedar said that the initial feedback from SCB suggested that it was unlikely
that they would be able to find a buyer at that price. Mr Subedar stated that the payment that could
be made by Tata in performance of its obligations under Clause 5.7 of the SHA could not exceed the
amount provided for in the New Pricing Regulations 54, which he described as the "NPR Fair Value".
He went on as follows:
"we propose to perform our obligations under Clause 5.7 in the following manner:
1. TSL is proceeding to appoint a valuer, to determine the NPR Fair Value in relation to the Sale
Shares. We invite you to provide any details or inputs that you may wish to provide to such valuer
to aid in the valuation process.
2. If Docomo is satisfied with the NPR Fair Value computed by such valuer then Docomo will transfer
all Sale Shares to TSL, with full title and free and clear of all encumbrances, in consideration of
payment of the NPR Fair Value within a period of 15 days from the date of receipt of the valuation
report from such valuer.
3. If, within a period of 15 days from the date of receipt of the valuation report from such valuer,
Docomo does not indicate its willingness to transfer the Sale Shares to TSL at the NPR Fair Value so
determined, TSL will apply to the RBI for special permission to pay a value of Rs. 58,045 per Sale
Share as computed in accordance with Clause 5.7 of the SHA. TSL will invite Docomo to join it in
making the necessary application to the RBI.
If Docomo finds this course of action which we are proceeding with and/or the outcome
unacceptable, the alternative would be to resort to arbitral proceedings to resolve the matter."
53. Docomo did not reply to this letter on an open basis 55. On 10 September 2014 Mr Subedar of Tata
wrote to Mr Kii of Docomo again 56, saying that Tata had appointed Price Waterhouse & Co. LLP
("PwC") to determine the NPR Fair Value in relation to the Sale Shares.
54. SCB sent Tata a progress report on 17 October 2014 57. They listed the potential buyers they had
approached and reported a negative response. They thought that the likelihood of finding a buyer
at Rs. 58,045 was low.
55. On 24 October 2014 Mr Subedar wrote to Mr Kii again 58. He referred to the feedback from SCB and
52
Tata’s case is that performance under Clause 5.7.2 would need to be in accordance with exchange contro regulations. As a result Tata limited
its search for purchasers of the Sale Shares at the Sale Price to non residents: Tata’s Pre-Hearing Submissions at para 36, fn 78.
53
Bundle C4-98.
54
Bundle D2-27. These are discussed in detail below in the context of Indian exchange control laws.
55
Docomo replied on a without prejudice basis by letter dated 22 August 2014.
56
Bundle C4-100.
57
Bundle C3-105.
58
Bundle C4-106.

said that Tata was not in a position to find a buyer for the Sale Shares at Rs. 58,045 per share. He
enclosed a report from PwC, which computed the NPR Fair Value at Rs. 23.34 per share. Mr Subedar
went on:
"We are committed to perform our obligations under clause 5. 7 of the Shareholders Agreement
dated 25 March 2009, as amended ("SHA") to the fullest extent permitted by law and we solicit
your cooperation in this endeavour. Accordingly, we would request NTT Docomo to indicate its
willingness to transfer the Sale Shares to Tata Sons Ltd. ("TSL"), with full title and free and clear of
all encumbrances, at the price of Rs. 23.34 per share being the NPR Fair Value determined by PwC. If
we do not receive a communication from your end indicating your willingness to transfer the Sale
Shares on the above terms within 15 days from the date of this letter, TSL will apply to Reserve Bank
of India for special permission to pay a value of Rs. 58,045 per Sale Share to NTT Docomo Inc., in
consideration of purchase of the Sale Shares by TSL."
56. Mr Kii replied to Mr Subedar on 7 November 2014 59. He complained that Mr Subedar’s letter was
little more than the next step in a calculated effort by Tata to deny Docomo its contractual rights. Mr
Subedar did not indicate that Tata had made any attempt to locate a third party buyer at any price
other than the Sale Price. Mr Kii rejected any suggestion that an application to the RBI was necessary
for Tata to fulfil its obligations under the SHA. He concluded by rejecting once again "Tata’s
suggestion that the parties proceed other than as contemplated by the SHA."
(4) The application to the RBI for special permission
57. On 10 November 2014 Mr Subedar applied to the RBI for special permission to make payment 60. He
summarised the background to the SHA in his letter to the Chief General Manager, the terms of
Clause 5.7, the steps taken to perform, including the valuation by PwC at Rs. 23.34 per share, and he
attached a number of supporting documents. It will be necessary to return to consider Docomo’s
criticism of the terms of the application. At this stage it is sufficient to set out the permission sought:
" We request you to kindly grant your approval for:
a. permitting Tata Sons to purchase 124,89,74,378 (One Hundred and Twenty Four Crores Eighty
Nine Lakhs Seventy Four Thousand Three Hundred Seventy Eight) Equity Shares in the Company
held by Docomo, and
b. pay Docomo a sum determined by taking the value of the Sale Shares at Rs. 58,045 (being 50% of
the Subscription Price)."
58. Mr Subedar sent Mr Kii a copy of the application to the RBI on 14 November 2014 61.
59. Mr Subedar’s evidence was that he and Mr Vasani of Tata met Mr Mohanty, the Chief General
59
Bundle C4-108.
60
Bundle C4-109.
61
Bundle C4-110.

Manager of the RBI, and other RBI officials on a number of occasions to make representations
in support of the application 62. Meetings took place on 11 and 19 November 2014 and 2 and 11
December 2014.
60. On 20 November 2014 Mr Subedar wrote to Mr Mohanty thanking him for the courtesies extended
on the previous day 63. He added the following:
"The most recent communication from Docomo to us dated November 7, 2014, which inter alia
calls upon us to indemnify Docomo and failing which to fulfil our obligation through a non-Indian
affiliate, was discussed with you, a copy of which was left with you to be attached to our above
referred application. We would appreciate if the feasibility or otherwise of such an option viz.
fulfilling our obligations of acquiring the shares at Rs. 58,045 per share OR through a non-Indian
subsidiary/affiliate are also covered in your reply."
Mr Subedar copied his letter to Mr Kii 64.
61. Mr Kii replied on 26 November 2014 65:
"We disagree with the contents of your November Letter [that dated 14 November 2014 66] for
the reasons stated in our Letters. The purported application to the Reserve Bank of India ("RBI")
enclosed with your November Letter does not convey the correct facts and, in our view, is self-
serving and not required by law. In all events, as we have explained repeatedly in our Letters, and
you have not disputed, approval by the RBI is not necessary for Tata to fulfill its obligations under
the SHA. As we have previously requested, please advise us how Tata plans to comply with the SHA
in the time remaining in the Sale Period."
62. By letter dated 21 November 2014 SCB had informed Tata that it had approached 17 potential buyers
to solicit expressions of interest at Rs. 58,045 per share, 10 had responded in the negative and they
had been unable to get a response from the remaining 7; they believed that there was no merit in
continuing the search for buyers at that price 67.
63. The Sale Period under Clause 5.7 expired on 3 December 2014. On that day Mr Subedar wrote to Mr
Mistry and Mr Kato invoking the dispute resolution mechanism in Clause 12.1.2 of the SHA 68. He
referred the dispute to the Chairman of Tata and the Chief Executive Officer of Docomo. Mr Kii
replied on 5 December 2014. He confirmed that Docomo agreed that a Dispute existed and that it
would proceed under the dispute resolution process in the SHA. He designated Mr Tsubouchi to
engage in good faith deliberations with Tata 69.
62
Bundle B-3 at paras 52, 53, 57, 58.
63
Bundle C4-112.
64
Bundle C5-114.
65
Bundle C5-115.
66
Bundle C4-110.
67
Bundle C5-113.
68
Bundle C5-117.
69
Bundle C5-121.

64. The Parties’ representatives met in person on 18 December 2014 and held discussions by telephone
on 26 December 2014. The Parties were unable to resolve the matter within 30 days, which is the
time period provided by Clause 12.1.2(a) of the SHA. Accordingly, pursuant to Clause 12.1.2(a),
Docomo commenced this arbitration on 3 January 2015.
65. On 4 December 2014 Mr Kii wrote to the RBI 70, stating as follows:
"In light of the ongoing dispute between DOCOMO and Tata Sons with respect to Tata Sons’
obligations under the Shareholders Agreement, the parties have yesterday invoked the dispute
resolution process provided for in the Shareholders Agreement. All disputes that remain unresolved
between the parties after a thirty day negotiation period are therefore to be decided by binding
arbitration in terms of the Shareholders Agreement, i.e., by an arbitral tribunal seated at London
constituted under the Rules of Arbitration of the London Court of International Arbitration."
Mr Subedar wrote to the RBI in response on 14 January 2015 71. He said that the initiation of
arbitration proceedings did not inhibit consideration of Tata’s application and he asked the RBI to
take a decision at its earliest convenience.
66. The Tribunal has been supplied with a number of documents obtained from the RBI. These make it
clear that the RBI was of the view that a purchase by Tata at Rs. 58,045 per share was not permitted
under the applicable regulations without special permission of the RBI. A note prepared by Mr Ekka,
Manager, of 3 December 2014 expresses the view that "the proposed purchase is not in compliance
with the extant pricing guidelines under FEMA" 72.
67. Opinions differed within the RBI as to whether special permission should be granted 73. Mr Mohanty
and his superior Mr Kanungo, Principal Chief General Manager, recommended that Tata be
required to comply with the extant regulations; however their superior Mr Padmanabhan, an
Executive Director, took a different view. He considered that the mischief covered by the regulations
was the case where an investor obtained all his money back and an assured return on top; it was
fair to honour a commitment which did no more that protect the downside loss 74 Mr Khan, the
Deputy Governor, agreed with Mr Padmanabhan. Eventually the decision was taken to seek
guidance from the Ministry of Finance at the Department of Economic Affairs.
68. Mr Subedar’s evidence was that at his meeting with Mr Mohanty on 11 December 2014 Mr Mohanty
told him that the RBI had decided to refer Tata’s application to the Ministry of Finance 75. On 22
December 2014 Mr Ekka of the RBI wrote to Mr Garg, Joint Secretary to the Government of India at
the Department of Economic Affairs, seeking the Government’s view on the matter 76. After
observing that the proposed structure was not in line with the extant provisions, the writer
expressed the following view:
70
Bundle C5-119.
71
Bundle C5-126.
72
Bundle C5-118.
73
Bundle C5-123.
74
At page 2132.
75
Bundle B-3 at para 58.
76
Bundle C5-121.

"the larger issue here is of a fair commitment in the contracts in relation to an investment and
a downside protection of an investment, rather than an assured return. Besides our strategic
relationship with Japan in recent limes in relation to FDI flows is also a matter to be kept in view. In
view of this, we are inclined to accept the proposal and in future, in all such cases, similar principal
shall be applied."
69. Mr Subedar described his meeting with Dr Garg on 6 January 2015 at which he explained Tata’s
case 77. However the Ministry did not accept the RBI’s recommendation. On 6 February 2015 Dr Garg
wrote to Mr Padmanabhan saying that the proposal needed to be examined by RBI as per its extant
regulations 78. "An individual proposal cannot be considered in exception of such regulations."
70. On 20 February 2015 Mr Ekka of the RBI wrote to Tata as follows 79:
"[Y]ou are advised that in terms of Regulation 9 of Foreign Exchange Management Transfer or Issue
of Security by a Person resident outside India) Regulations, 2000, as amended from time to time,
a person resident outside India may transfer the shares or debentures held in an Indian company
at a price not exceeding that arrived at as per any internationally accepted pricing methodology
for valuation of shares on arm’s length basis, duly certified by a Chartered Accountant or a SEBI
registered Merchant Banker. The guiding principle being that the non-resident investor is not
guaranteed any assured exit price at the time of making such investment/agreements and shall exit
at the price prevailing at the time of exit.
3. Accordingly your request to purchase shares of Tata Teleservices Limited from NTT Docomo Inc.
at any pre-determined price cannot be acceded to. You may ensure that the transaction complies
with the provisions cited above."
Mr Subedar forwarded a copy of this to Mr Kii on 23 February 2015 80. He repeated that Tata
remained willing to purchase the Sale Shares at the price of Rs. 23.34 per share.
71. A further exchange of correspondence followed in which the Parties restated their respective
positions 81.
D. THE MERITS
(1) The claims of the Parties
72. As stated above, Docomo began this arbitration on 3 January 2015.
77
Bundle B-3 at paras 62 and 63.
78
Bundle C5-130.
79
Bundle C5-132.
80
Bundle C5-133.
81
Bundle C5-134 and 135.

73. In summary, Docomo’s case is as follows:
(1) Tata acted in breach of Clause 5.7 (a) in failing to procure a buyer or buyers to purchase the Sale
Shares at the Sale Price by 3 December 2014; and (b) in failing by that date to find a buyer or buyers
who would purchase the Sale Shares at any price and indemnifying Docomo for the difference
between that price and the Sale Price.
(2) Docomo denies that India’s foreign exchange laws impeded Tata’s ability to discharge its
obligations under Clause 5.7. Specifically, it is common ground that the FEMA Regulations permitted
non-resident buyers to purchase the Sale Shares at the Sale Price. If, on the other hand, Tata’s
arguments on Indian law were correct, Tata would be in breach of its representations and
warranties in Clause 10.1.1(b) and (d) of the SHA.
(3) Even if Clause 5.7 fell outside a general permission, it remains enforceable. As a matter of Indian
law commercial contracts must be enforced even where performance may subject the parties to
penalties under foreign exchange laws.
(4) Tata sought special permission from the RBI itself to buy the Sale Shares at the Sale Price. It did
not seek permission for it to find a buyer at any price and indemnify Docomo for the difference
between that price and the Sale Price. The RBI’s letter of 20 February 2015 does not therefore
prevent performance under Clause 5.7. Nor does it prevent Tata from paying damages pursuant to
an arbitral award.
(5) Even if Tata believed that it was not permitted to perform under Clause 5.7, it was obliged by
Clauses 2.2.2 and/or 12.3.1 of the SHA to use good faith efforts to agree to an alternative structure. It
could, for example, have arranged for one of its foreign affiliates to purchase the Sale Shares. Tata
did not do so.
(6) Even if Indian law prevents payment to Docomo of the Sale Price, Indian law recognises the
entitlement of Docomo to restitution under sections 65, 70 and 72 of the Contract Act.
74. Docomo’s Reply Memorial 82 seeks an Award as follows::
"(a) Requiring Tata to pay damages to Docomo in the amount of US $1,172,137,717 (plus interest
and costs as provided in sub-paragraphs (c) and (d) respectively) for Tata's breach of the SHA or,
alternatively, an amount no less than that amount by way of restitution, such amounts to be paid no
later than 30 days from the date of the award;
(b) Awarding Docomo compounded pre-award and post-award interest on all such amounts;
(c) Awarding Docomo the costs and expenses of this arbitration, including attorneys and expert fees
and arbitration costs;
(d) Granting Docomo such further or other relief as the Tribunal deems just and proper. "
75. In summary, Tata’s case is as follows:

(1) The obligations of Tata under Clause 5.7 are qualified by the following words in the second
82
Bundle A-5 at page 379.

sentence of Clause 2.2.2: "no Party shall take any action or have any right that would violate
applicable Law". The effect of the FEMA Regulations is that Tata was prohibited from purchasing
the Sale Shares at more than their fair market value, save with special permission from the RBI.
Special permission was refused. This prevented Tata from paying Docomo the Sale Price. It also
prevented Tata from indemnifying Docomo for the difference between the amount paid by any
buyer or buyers and the Sale Price. It was unable to perform through a foreign affiliate; this would
constitute an impermissible circumvention of the law.
(2) In these circumstances Tata complied with its obligations under Clause 5.7 so far as was
permissible under the law of India. It engaged SCB to search for a buyer or buyers at the Sale Price,
but no such buyer could be found.
(3) Thereafter Tata complied with its obligation under Clauses 2.2.2 and 12.3.1 to agree upon an
alternative structure that would afford Docomo the substantial benefits intended by Clause 5.7. It
offered to purchase the Sale Shares for their fair market value and commissioned a valuation of
the Sale Shares by PwC. Upon Docomo failing to accept this offer, Tata applied to the RBI for special
permission to pay the Sale Price.
(4) The RBI having refused special permission, Tata cannot lawfully perform Clause 5.7 as drafted
and Tata is therefore excused from any further performance on the grounds of unlawfulness or
impossibility of performance.
(5) Tata denies acting in breach of the representations and warranties in Clause 10.1.1(b) and
(d). Those representations and warranties were necessarily subject to legal requirements and
obligations, including any necessary approvals imposed by Indian law.
(6) Docomo is not therefore entitled to damages. The question of restitution does not arise because
the Parties have followed the contractual mechanism to the extent permitted by Indian law.
(7) Tata counterclaims for declaratory relief, in order to understand the legal position surrounding
Tata’s ability to perform its obligations.
76. Tata’s Rejoinder 83 requests the Tribunal to:
"(a) ORDER the dismissal of Docomo’s claims;
(b) AWARD AND DECLARE that Tata has fully discharged its obligations pursuant to Clauses 5.7,
2.2.2 and 12.3.1 of the SHA and is excused from further performance in the manner demanded by
Docomo;
(c) AWARD AND DECLARE that, as a matter of applicable Indian law, Tata is not now required: (i)
to purchase or procure the purchase of the Sale Shares under the SHA at a price exceeding the NPR
Fair Value of the Sale Shares on the date of purchase; or (ii) to make any payment, either directly or
indirectly in respect of the Sale Shares, in excess of the NPR Fair Value on the date of purchase, in
connection with the performance of obligations under the SHA;
(d) ORDER that Docomo pay Tata’s costs and expenses incurred in connection with this arbitration,
83
Bundle A-6 at page 463.

including (without limitation) Tata’s legal fees and its share of the costs and expenses of the Tribunal
and the LCIA; and
(e) ORDER such other and further relief as the Tribunal may consider appropriate."
(2) The issues for decision
77. The Tribunal invited the Parties to attempt to agree a list of issues, but they were not able to do so.
78. Docomo submitted its list, which is as follows:
Issue
1. What were Tata's obligations under Clause 5.7.2?
2. Did Tata perform its obligations under Clause 5.7.2?
Was Tata excused from performing its obligations under Clause 5.7.2 on the grounds that
3.
such performance was illegal under Indian law?
In particular,
(a) Were methods of performance available to Tata to which there was no legal impediment?
(b) Was RBI permission required:
(i) for a sale of the Sale Shares at the Sale Price to a third party?
(ii) in order to allow Tata to make payment by way of indemnity?
(iii) for a sale of the Sale Shares to a foreign affiliate(s) of Tata?
Even if RBI permission was required for Tata to purchase the Sale Shares at the Sale Price
(c) or to indemnify Docomo up to the Sale Price following a sale to a third party at any price,
is Tata liable for its failure to perform?
Issue
In particular,
(i) did Tata bear the risk of not obtaining any necessary regulatory permission?
if the alternative methods of performance could not legally be performed, did Tata have
(ii) an absolute obligation to find a buyer or buyers for the Sale Shares at the Sale Price by 3
December 2014?

(d) Can Tata rely upon the defence of illegality under Clause 2.2.2?
In particular, was Tata reasonably diligent:
if it did not seek permission from the RBI in sufficient time to enable such permission (if
(i)
required) to be granted by 3 December 2014? and/or
if it failed to seek a buyer or buyers for the Sale Shares at any price other than the Sale
(ii)
Price prior to 3 December 2014? and/or
if it limited its application to the RBI so as only to encompass a purchase of the Sale Shares
(iii) by Tata at the Sale Price and it did not apply for permission (if required) to pay an
indemnity and/or have its foreign affiliate(s) acquire the Sale Shares? and/or
if it did not attempt to use good faith efforts to agree on an alternative structure to afford
(iv)
Docomo the substantial benefits intended by Clause 5.7.2?
Were the representations given by Tata in Clauses 10.1.1(b) and/or (d) correct? If not, what
4.
are the consequences?
5. To what damages or other form of relief including restitution is Docomo entitled?
6. To what interest is Docomo entitled?
7. What is the correct order as to costs?
79. Tata however submitted that the dispute turned on the answers to the following questions:
"(i) Whether special permission from the RBI was required to perform the Sale Option at a price in
excess of the NPR Fair Value without violating Indian law?
(ii) Whether Tata had an "absolute" obligation to perform the Sale Option under Clause 5.7.2 of the
SHA?
(iiii) Whether Tata and Docomo were obliged to make reasonable endeavours to obtain such special
permission of the RBI, and if so, whether Tata made reasonable endeavours to obtain the RBI's
special permission?
(iv) What is the consequence in law, and under the contract, of the refusal of the RBI to grant special
permission?
(v) Whether Tata's non-acquisition of the Sale Shares at the Sale Price paid directly or indirectly
constituted a breach of the SHA by Tata?
(vi) Whether, if payment of any amount in excess of the FEMA Pricing Guidelines is prohibited, such
excess amount can be indirectly made good by way of an award of damages or restitution?
(vii) Whether in any event Docomo is entitled to restitution of 50% of its investment?" 84

80. The Tribunal will consider all these issues below under the following headings:
(1) The scheme of the SHA
(2) Indian exchange control laws
(3) The claim for breach of Clause 5.7
(4) The claim for breach of Clause 2.2.2
(5) The claim for breach of Clause 10.1.1 (b) and (d)
(6) The restitution claim
(7) Tata’s counterclaim
(8) Relief
(9) Interest
(10) Costs
81. The Parties have advanced a number of arguments in their Memorials and submissions in this
arbitration. They have also referred to extensive evidence and authorities in support. In the
interests of clarity and brevity, this Award does not refer to all of these arguments, all this evidence
and all of these authorities. However they have all been taken into account in the course of
preparing this Award.
(3) Applicable law
82. Clause 12.1.1 of the SHA 85 provides as follows:
"Governing Law
This Agreement shall in all respects be governed by and interpreted by, and construed in
accordance with the laws of India, without giving effect to conflict of laws principles."
(4) Burden of Proof
83. At the Evidentiary Hearing the Parties agreed that the Tribunal should proceed on the basis that the
burden of proving a particular fact is on the Party which relies on that fact in support of its case 86.
84
Tata’s Pre-Hearing Submissions at para 8.
85
86
Emails from counsel to the Parties to the Tribunal dated 5 May 2016.

(5) The scheme of the SHA
Introduction
84. Docomo makes two submissions as to the approach of Indian law to questions of construction:
(1) There is a strong policy to uphold contracts and the burden is on Tata to establish any legal
impediment to its performance 87.
(2) Contracts are to be interpreted according to their terms, read in light of the contract’s objectives
and purposes and the surrounding circumstances to give effect to the objective intention of the
parties 88.
85. Tata did not contest these submissions and the Tribunal proceeds on that basis.
86. There is a dispute between the Parties concerning the admissibility of certain evidence which is
relied upon by Tata on the question of the proper construction of the SHA. Tata contends that, at the
time of entering into the SHA, Docomo was aware of the regulation pursuant to FEMA and exchange
controls thereunder of transactions by non-residents in shares of Indian companies 89. In support of
this contention it relies on certain pre-contractual documents 90, including drafts of the SHA, and
acknowledgements by Docomo in post-contractual presentations 91.
87. Docomo contends that parol evidence is inadmissible 92, citing sections 91 and 92 of the Evidence Act
1872 93 and various Indian and English authorities. Tata on the other hand contends that this
evidence is admissible as part of the surrounding circumstances and matrix of facts 94.
Docomo’
Docomo’ss case
88. Docomo’s case on the proper construction of the SHA 95 may be summarised as follows:
87
Claimant’s Memorial at paras 72-74, Bundle A-3 at page 148.
88
Claimant’s Memorial at para 75, Bundle A-3 at page 149.
89
Respondent’s Counter-Memorial at para 57, Bundle A-4 at page 216; Rejoinder at para 25, Bundle A-5 at page 392.
90
Respondent’s Counter-Memorial at paras 58-60, Bundle A-4 at page 216; Rejoinder at paras 25-28, Bundle A-6 at page 392.
91
Respondent’s Counter-Memorial at paras 61-66, Bundle A-4 at page 218; Rejoinder at paras 29-36, Bundle A-6 at page 394.
92
Claimant’s Reply at para 34, Bundle A-5 at page 316; Pre-Hearing Submissions, paras 19-22.
93
Bundle D1 -8 at page 225.
94
Respondent’s Rejoinder at paras 37-40, Bundle A-6 at page 396; Pre-Hearing Submissions at para 78.
95
In this and the following summaries of the cases of the Parties on the issues identified above, the footnotes refer to a selection of the
passages in the written submissions of the Parties which deal with the issue in question. Many of these issues were also the subject of oral
submissions at the Evidentiary Hearing. References to the transcript are included where appropriate. See the Claimant’s Memorial at paras
76-82, Bundle A-3 at page 150; Reply Memorial at paras 22-54, Bundle A-5 at page 312; Pre-Hearing Submissions at paras 6-31.

(1) It is common ground that Clause 5.7.2 was intended to provide Docomo with the safety net of a
stop loss protection, which meant that it could not lose more than half of its original investment.
(2) As it is put in Docomo’s Pre-Hearing Submissions 96:
"Under Clause 5.7.2, Tata had an unconditional obligation to ensure the purchase of the Sale Shares
at the Sale Price within the Sale Period. The onus (and risk) of achieving the promised result was on
Tata: come what may, Docomo would receive the Sale Price in cash within the Sale Period, even if
that meant that Tata would pay an amount up to the Sale Price by way of an indemnity."
(3) That obligation was valid and enforceable. It was not contingent on obtaining permission
from the RBI. It is common ground that Tata could legally perform its obligations under Clause
5.7.2 without RBI permission, through a sale to a non-resident buyer. The obligation to indemnify
Docomo if Tata fails to find a buyer at the Sale Price is valid and enforceable, just as if it were a
liability for damages for breach of Clause 5.7.2 under section 73 of the Indian Contract Act 97.
(4) Docomo rejects Tata’s description of Clause 5.7.2 as a "waterfall." Rather, it contains a single
obligation with alternate methods of performance. The alternate method allowing a sale at any
price is subject to the condition that Tata is able to indemnify and reimburse the difference between
that price and the Sale Price. If it cannot for any reason, including a refusal of the required
regulatory permission, then that method of performance is not available. Whatever method of
performance is pursued, Clause 5.7.2 contemplates a unitary, fixed period for performance.
(5) If Clause 5.7.2 had been subject to regulatory approval, it would have said as much. Other
obligations in the SHA, such as Clause 10.1.1(b), make this explicit.
(6) Clause 2.2.2 does not alter the absolute nature of Tata’s obligation under Clause 5.7.2. It is
intended to protect the parties’ bargain, not to limit it. The parties are required by the third
sentence to agree alternative structures that afford the parties the benefits intended, even if literal
compliance is prohibited.
(7) The language in the second sentence of Clause 2.2.2 relied upon by Tata ("no Party shall take any
action or have any right that would violate applicable Law") requires only that, to the extent that a
provision can be construed in a manner that is both lawful and gives effect to the benefit intended,
that is the construction which should prevail. Other provisions are to similar effect- Clauses 11.4
and 12.3.1. But Tata did not approach its obligations with the intention of finding a way to perform.
Rather, from the time it became apparent that Clause 5.7.2 was likely to be triggered, Tata began
constructing roadblock after roadblock to performance, the antithesis of what the parties had
provided for.
(8) Alternatively, if Tata was not able to arrange a sale at any price and indemnify Docomo under the
second part of Clause 5.7.2, Clause 12.10 would take effect so as to sever that part of the provision.
The first part of Clause 5.7.2, requiring Tata to arrange for Docomo to be paid the Sale Price for the
Sale Shares within 90 Business Days, would still be valid and enforceable.
96
At para 7.
97
Bundle Dl-1 at page 33.

Tata’
ata’ss case
89. Tata’s case 98 is in summary as follows:
(1) Clause 5.7.2 provides for a two stage "waterfall". First, Tata could find a buyer for the Sale Shares
at the Sale Price; or second, if it was unable to find such a buyer, it could either acquire or procure
the acquisition of the Sale Shares at any price and indemnify Docomo for the difference between
the Sale Price and the price at which the Sale Shares were actually sold. An inability to perform the
first stage leads to the second stage and not to a claim for breach of contract. Subject to the other
terms of the SHA, either stage was designed to lead to the same outcome: Docomo was assured a
minimum exit price.
(2) The top-up payment pursuant to the second stage was an integral part of the consideration for
the Sale Shares. This is clear from Clause 5.7.3.
(3) Clause 5.7.2 does not give rise to an absolute obligation. The effect of the penultimate sentence
of Clause 2.2.2 is that, if performance of Clause 5.7.2 would violate Indian law, Tata was not
contractually obliged to render that performance and no question of breach of contract arises.
Docomo’s rights under Clause 5.7.2 would be extinguished to the extent that such rights would
violate Indian law.
(4) Clause 12.3.1 serves two purposes. First, it establishes what either party is required to do in order
to consummate the transactions contained in the SHA. There is a standard of reasonable diligence.
Second, it makes clear that the consummation of such transactions is subject to applicable law.
(5) Accordingly, if under the FEMA Regulations performance required the special permission of the
RBI, Clause 5.7.2 was subject to a condition that such permission was granted. Docomo had no right
to performance that would violate Indian law. Clause 2.2.2 expressly allocated to Docomo the risk
that any required regulatory permission would not be obtained.
(6) The final sentence of Clause 2.2.2 required the parties to use good faith efforts to agree an
alternative structure. Clause 11.4 is to similar effect. In accordance with Clause 12.3.1 the standard
is reasonable diligence.
(7) Clause 12.10 provides for the severability of those parts of Clause 5.7.2 which are discharged by
reason of law. The parties were then relegated to the other rights which remained in force. One
approach would be not to sever the entire second stage of the waterfall, but only the part that
cannot be performed without RBI permission, that is the top-up payment.
Discussion
98
See the Respondent’s Counter-Memorial at paras 41-66 and 164-180, Bundle A-4 at page 210; Rejoinder at paras 41-74, Bundle A-6 at page
398; Pre-Hearing Submissions at paras 57-100.

(i) The admissible evidence
90. Both sides agreed that the question what evidence is or is not admissible in construing the SHA is a
matter for the applicable law, that is Indian law" 99. However they differed as to the effect of the
relevant authorities.
91. Docomo relied on section 91 of the Evidence Act 100, which provides that "no evidence shall be given
in proof of the terms of [a] contract...except the document itself’ and section 92, which excludes
"evidence of any oral agreement or statement...for the purpose of contradicting, varying, adding to,
or subtracting from" the terms of the contract. In Satya Developers Pvt Ltd v Pearey Lal Bhawan
Association 101 the Supreme Court has recently adopted the decision of the English House of Lords in
Investors Compensation Scheme Ltd v West Bromwich Building Society 102, where it was said that
"The law excludes from the admissible background the previous negotiations of the parties and
their declarations of subjective intent."
92. Tata relied on the regulatory framework and the exchanges between the Parties about that
framework as part of the surrounding circumstances and matrix of facts by reference to which the
conditions of the SHA, and in particular Clause 2.2.2, must be read. It cites authorities which permit
reference to the surrounding circumstances and context 103. In Tarapore and Company v Cochin
Shipyard Ltd 104 the Supreme Court admitted in evidence the negotiations and discussions which led
to the formation of the contract.
93. At the hearing of this arbitration debate centred on the English authorities. It appeared to be
common ground that the Indian courts have adopted the approach dictated by West Bromwich and
Chartbrook Ltd v Persimmon Homes Ltd 105. Docomo maintained that both drafts of the SHA and
evidence of subsequent conduct were inadmissible in construing the SHA 106. Tata contended that
these documents were admissible as evidence of the fact that Docomo was aware at the time of
entering into the SHA that there was a problem with Indian exchange control laws 107.
94. The Tribunal finds that it is settled law that drafts of written contracts and evidence of the
subsequent conduct of the parties are inadmissible for purposes of construction. It therefore does
not admit in evidence for this purpose the documents relied upon by Tata 108.
95. The Tribunal finds further that it is also settled law that such documents are admissible to establish
that a fact which may be relevant as background known to the parties 109. The documents in question
99
Transcript, Day One at page 149.
100
101
(2015) SCC Online Del 12756 at para 29, Bundle E7-156.
102
[1998] 1 WLR 896.
103
Respondent’s Rejoinder at para 38, Bundle A-6 at page 396; Pre-Hearing Submissions at para 78 fn 160.
104
(1984) 2 SCC 680, Bundle E13-288.
105
[2009] UKHL 38, Bundle El 3-289.
106
107
108
See in particular Bundle Cl-18, 23 and Bundle C3-53, 65.
109
Chartbrook at para 42.

are admissible for this purpose. In particular, it is relevant in construing the SHA to establish
whether the Parties were at the time of contracting aware that exchange control regulations might
affect the ability of the Parties to perform.
(ii) The knowledge of the Parties at the time of contr

contracting
acting
96. There is an issue between the Parties as to their state of knowledge in this respect. Tata’s case is set
out in its Counter-Memorial 110:
"There can be no doubt that at the time of entering into the SHA Docomo was aware of the
overriding FEMA / RBI regulation of transactions by non-residents in shares of Indian companies
and foreign exchange transactions. Such knowledge would in any event be attributed to Docomo,
a sophisticated international investor that no doubt undertook independent legal due diligence on
this major transaction. But here there is also direct evidence that when it entered into the SHA
Docomo was aware that the exercise of the Sale Option could be subject to approval from the RBI -
an important fact that Docomo fails to acknowledge in its Memorial."
97. Docomo responded in its Reply 111:
"In all events, the evidence does not establish that Docomo knew, upon entering into the SHA, that
RBI permission would be required for Tata to perform its obligations, let alone that the parties
understood Clause 5.7.2 as conditional, sub silencio, on RBI approval."
98. This was the subject of argument at the hearing, at which a degree of consensus emerged. Tata
contended that Docomo’s case was more than merely inaccurate 112. However in the course of the
hearing Docomo accepted that it was aware at the time that India had exchange control laws in
force, although Docomo was not familiar with their specifics and believed that this did not prevent
Tata from performing its obligations 113.
99. So much is apparent from the evidence.

(1) In the course of negotiating the SHA, Tata wrote to Docomo on 29 October 2008, confirming that
Call and Put options proposed by Docomo were acceptable, adding that these "would always be
subject to the applicable Indian laws, Regulations and consents as prevailing" 114.
(2) Docomo applied to the Foreign Investment Board at the Ministry of Finance for approval of the
transaction, as it was required to do under Indian law. The approval letter dated 4 March 2009 states
that "Issue/valuation/transfer of shares shall be as per SEBI/RBI guidelines" 115.
110
Respondent’s Counter-Memorial at para 57, Bundle A-4 at page 216.
111
Claimant's Reply at para 35, Bundle A-5 at page 317.
112
Transcript, Day One at pages 143, 157.
113
Transcript, Day Four at pages 30, 150.
114
Bundle Cl-21.
115
Bundle Cl-31.

(3) Docomo’s note of a TTSL Governance Committee meeting on 24 July 2013 records Mr Kobayashi
stating that "Lawyers on both sides were aware from the time the SHA was prepared that the FDI
Pricing Guideline required a sale from a resident to a non-resident be conducted at fair value.
However there is no problem in the case of a transaction among non-residents because those
regulations do not apply" 116.
(4) In 2014 Docomo took the position in its dealings with Tata that the scheme of the Sale Option
provided for in Clause 5.7.2 "was discussed exhaustively by both parties...to comply with related
regulation including FDI Pricing Guideline (RBI) when they were drafting [the SHA]...In order to
avoid the situation that the transaction be nullified by RBI claiming Sale Price is higher than fair
value, the scheme was designed to obligate Promoter to find the buyer so that the Sale Shares shall
be acquired at Sale Price. (For example: find a non-resident buyer whose transaction shall not be
regulated by Pricing Guideline)" 117.
(iii) The construction of Clause 5.7.2
100. The Tribunal is required to interpret the SHA "in light of the contract’s objectives and purposes". In
the event there proved to be little between the Parties as to the objectives and purposes of Clause
5.7.2. Docomo contends that its object was to ensure that Docomo could dispose of its shares if TTSL
failed to perform and Docomo’s losses would never be greater than half of its initial investment 118.
Tata accepts that the clause was intended to assure Docomo a minimum exit price or a guaranteed
exit price 119. The Tribunal considers it fair to characterise this as stop loss protection 120.
101. Tata does not accept that the only purpose of Clause 5.7.2 was to provide stop loss protection. Tata
argues that TTSL might have failed to achieve the Second KPIs, but still be performing strongly. In
that event the Sale Price might have resulted in Docomo exiting at a profit, since the Fair Value
might have been in excess of the Subscription Price 121. The Tribunal is not in a position to judge
whether that could have been the case, but it does not matter for present purposes. Stop loss was, at
least, one purpose of the provision.
102. In argument it was put as follows on Tata’s behalf, assuming a purchase of the Sale Shares by Tata:
"This is very clearly a price payment mechanism, a provision to say, "I will make it good to you in
any case. At whatever value I purchase the shares, you will get your 50% back, because I will either
give it to you directly by way of the share price or indirectly by way of a reimbursement for the
difference". " 122
116
Bundle C3-54 at page 1343 (in translation).
117
118
Claimant’s Reply at para 24, Bundle A-5 at page 313.
119
Respondent’s Counter-Memorial at para 43, Bundle A-4 at page 211; Transcript, Day One at page 126; Transcript, Day Four at page 166.
120
The Tribunal accepts that this expression is used in different contexts, as Tata submits at Transcript, Day Four at page 109.
121
Transcript, Day One at page 127, Day Four at page 165.
122

103. Against that background the Tribunal turns to consider the rival contentions of the Parties as to the
scheme of the SHA, that is, the proper interpretation of the relevant provisions. It is convenient to
start with Clause 12.3.1 123. Tata contends that all the obligations in the SHA were qualified by this
provision. There were no absolute obligations. All the parties had to do was act with reasonable
diligence to perform 124. The Tribunal rejects this contention. The clause is a conventional further
assurances provision. It covers the situation where after execution of the contract it turns out that,
in order to consummate a transaction, the parties need to do more than is provided for in the
contract. The clause does no more than require the parties to act with reasonable diligence to do
whatever is required to fill the gap. It serves a similar purpose to the third sentence of Clause 2.2.2
and Clause 11.4.
104. Turning to the second sentence of Clause 2.2.2 125, the Parties agreed that the "applicable Law" in
question is the "Law" which applies to the SHA as a whole 126. That is, everything encompassed by
the broad definition in Clause 1.1 127. Clause 2.2.2 is, of course, primarily concerned with the License
Agreements, but the Parties agreed that the "Law" in question was not only the "Law" applicable to
the License Agreements. One reason for this was that the License Agreements require TTSL to
comply with the law generally.
105. Tata’s preferred analysis is that the effect of the second sentence is that no party has any right or is
subject to any obligation that would violate any Law 128. So if, for example, performance of a
provision of the SHA would violate any Law, the effect of the second sentence is that that provision
is to be treated as conferring no rights and imposing no obligations. The Tribunal considers that to
be an extreme submission. It considers that it is necessary to analyse the effect of any illegality on a
provision by provision basis, having regard to the illegality concerned, rather than necessarily
striking out the entire provision.
106. Docomo contends that the second sentence has the effect that the SHA must so far as possible be
construed in a way which is both lawful and gives effect to the purpose of the provision in
question 129. The Tribunal accepts that contention.
107. Both sides agree that the effect of the third sentence of Clause 2.2.2 is that, if performance of a
provision would cause a violation of Law, they are required to use good faith efforts to agree an
alternative structure. It serves a similar purpose to Clauses 11.4 and 12.3.1.
108. The central provision is, of course, Clause 5.7.2 130. Against the background set out above, the
Tribunal has no doubt that the object of the clause was to guarantee Docomo an exit at a minimum
of 50% of the Subscription Price. This was not seriously challenged by Tata 131. The clause could have
been structured as a simple put option; indeed this is how it is described in some of the
123
124
Transcript, Day Four at page 186.
125
126
127
128
Respondent’s Counter-Memorial at para 180, Rejoinder at para 65, Bundle A-4 at page 258, A-6 at page 405.
129
Claimant’s Pre-Hearing Submission at para 25.
130
131

contemporary documents 132. The Tribunal considers that it was drafted in the way that it was
because the Parties knew that exchange control regulations and other considerations 133 might
prevent performance under a simple put.
109. The real difference between the Parties is as to the consequence of exchange control regulations
interfering with Tata’s performance of its obligations. Is Tata then excused from performance? Tata
says that Clause 2.2.2 allocates to Docomo the risk that regulatory approval which is required to
make performance lawful is not obtained, by relieving Tata of the obligation to perform 134 Docomo
on the other hand argues that, on the contrary, the Parties had agreed that, one way or another,
Docomo had to receive the Sale Price within 90 days, so the risk falls squarely on Tata 135. This
difference requires an analysis of the nature of the obligations imposed by Clause 5.7.2.
110. At first impression Tata’s argument is a difficult one. As will be discussed below, it was common
ground between the Parties that there were methods of performance which were the subject of
general permission under FEMA, which meant that there was no need for further regulatory
approval. How then can exchange control regulations be said to excuse performance?
111. Tata contends that the answer is as follows. If the contract provides for the consequences of non-
performance, that prevails; here, it says, the contract does make express provision 136. Tata’s
"waterfall" analogy essentially proceeds as follows 137. Clause 5.7.2 contemplates a number of stages
which operate sequentially. First Tata is required to use reasonable diligence to find a buyer at the
Sale Price 138. If it fails, stage two comes into operation. Either Tata buys "at any price" or it procures
a third party to buy "at any price" and in either case it indemnifies and reimburses Docomo for the
difference between the Sale Price and the price at which the Sale Shares are actually sold. If it fails,
for example because performance is prohibited by exchange control regulations, stage three
involves the third sentence of Clause 2.2.2. The Parties have to use good faith efforts to agree on an
alternative structure which will afford Docomo the substantial benefits intended by Clause 5.7.2,
that is, receipt of the Sale Price 139.
112. Tata relies upon the fact that Clause 5.7.2 recognises that Tata may be unable to perform stage one
(it cannot find a buyer at the Sale Price) and provides for the consequence (progress to stage two).
That shows that the obligation in stage one is not absolute; Tata is not in breach of contract because
it fails in stage one 140. Likewise there is no breach if Tata fails to perform in stage two. The clause
provides the consequence; you move to stage three under Clause 2.2.2 and use good faith efforts to
agree on an alternative structure which will afford the Parties the substantial benefits intended by
Clause 5.7.2. If no alternative structure is agreed, Tata is discharged by law.
132
Bundle Cl-20, 21.
133
Tata’s Pre-Hearing Submissions at para 66 and fn 147 and 148.
134
Respondent’s Rejoinder at para 67, Bundle A-6 at page 406; Pre-Hearing Submission at para 70.
135
Claimant’s Reply at para 28, Bundle A5 at page 314.
136
137
Respondent’s Counter-Memorial at para 43; Bundle A-4 at page 211.
138
This paragraph sets out Tata’s primary case. In the course of the Evidentiary Hearing, Tata also developed a slightly different analysis of
the first stage of the waterfall, attaching importance to the words "commit to find". In summary, this is said to show that Tata was to try and
find a willing buyer at the Sale Price. If it succeeded, it would commit. If it was unable to find one, and therefore did not commit, it proceeded
to the second stage. See Transcript, Day One at page 129, Day Four at page 146.
139
Transcript, Day Four at pages 151-152.
140

113. Tata contends that in stage two it has a discretion as to whether to buy itself at "any price" or to
procure a third party to buy 141. As appears above, Tata opted to buy itself, subject to obtaining
special permission from the RBI. Mr Subedar explained in evidence that he believed Tata had an
option as to how to perform in stage two and his reasons for wanting Tata to buy the Sale Shares
rather than a third party 142.
114. Tata’s submission is that, because Clause 5.7.2 contemplates three stages of sequential performance,
once the Parties progress to stage two, they cannot go back to stage one. Further, the progress from
stage one to stage two is mandatory; stage two provides that if Tata is unable to find a buyer at the
Sale Price it "shall" acquire or procure 143.
115. Docomo on the other hand contends that the obligation on Tata to ensure that Docomo receives the
Sale Price is absolute or unconditional 144. It provides a single obligation, with alternative methods
of performance. Docomo does not accept the waterfall analogy. It contends that there is no
sequential progress through stages. Rather, the obligation in the first part of the clause (find a buyer
at the Sale Price) remains in place; Tata can perform in accordance with the second part (buyer at
any price plus indemnity) if it can perform as a matter of fact and law. That is the effect of the
proviso 145; Tata can only escape one method of performance if the different method of performance
is actually available to it 146.
116. Both sides cited numerous authorities on analogous facts in support of their rival contentions, but
the Tribunal found them to be of limited assistance. The Tribunal considers that in this case the
matter turns on the proper construction of the SHA in accordance with the principles set out above.
117. Docomo relies on cases which, it suggests, establish that Tata bore the risk of not obtaining any
necessary regulatory permission 147. It says that a term is not to be implied making Tata’s obligations
under the Sale Option subject to the grant of special permission by the RBI 148. Docomo relies on
Naihati Jute Mills Ltd v Khyaliram Jagganath 149, where an obligation to obtain an import licence was
held to be absolute.
118. Tata disputes the relevance of Naihati Jute Mills 150. There performance was lawfill. Settlement at
the market price prevailing was permitted without the need for an import licence. It was therefore
possible to construe the obligation as absolute. However this case is different, Tata says. It contends
that, whether performance is by way of a willing buyer paying the Sale Price, or by a buyer at any
price, with Tata making payment under the indemnity, special permission of the RBI was required.
The Parties knew at the time of contracting that performance would take place in accordance with
the FEMA Regulations. They did not provide that Tata’s obligation was absolute; rather, they
141
Respondent’s Counter-Memorial at para 181 fn223, Bundle A-4 at page 258; Pre-Hearing Submissions at para 43 fn 102.
142
Transcript, Day Three at pages 65-67.
143
Transcript, Day Four at pages 152, 174.
144
Pre-Hearing Submission at paras 7, 13, 17.
145
Docomo submits that under Indian law the function of a proviso is to except something out of the main provision which would otherwise
be part of that provision: Pre-Hearing Submissions at para 61.
146
147
Docomo’s Pre-Hearing Submissions at paras 54-56.
148
Partabmull Rameshwar v K C Sethia (1944) Ltd [1951] 2 Lloyd’s LR 89, Bundle E6-138.
149
(1968) 1 SCR 821, Bundle E6-125.
150
Tata’s Pre-Hearing Submissions at Paras 96-100, Transcript, Day Four at pages 188-192.

included Clause 12.3.1, which provided that the limit of the obligation on Tata was to exercise
reasonable diligence.
119. The difficulty with Tata’s analysis of Naihati Jute Mills is that performance under Clause 5.7.2 does
not necessarily require special permission of the RBI. Tata’s argument assumes payment of the Sale
Price by Tata or some other Indian resident; but at the time of contracting the Parties must also have
contemplated the possibility of a non-resident paying the Sale Price.
120. Docomo also cites authorities which deal with the proper construction of contracts which imposed
obligations which could be performed in a number of different ways 151. A shipper might, for
example, be bound to ship a cargo of either wheat, barley or flour. Docomo contends that these
establish the principle that there is an over-arching obligation to ship a cargo of grain. The shipper
could not opt for barley and then invoke a force majeure clause if there was no barley available; it
had then to ship either wheat or flour. So, it is suggested, Clause 5.7.2 contains an over-arching
obligation to ensure that Docomo receives the Sale Price. It would require very clear wording,
Docomo argues, before Tata could rely on an inability to perform by one of the alternative methods
as discharging its over-arching obligation; there is no such wording here. However both Docomo 152
and Tata 153 accepted that in every case the question turns on the language of the contract in
question.
121. It is to the language of Clause 5.7.2 that the Tribunal therefore turns. In general, the Tribunal accepts
Docomo’s analysis of Clause 5.7.2. The Tribunal finds that the primary obligation of Tata is that
provided for in the first part of the clause, namely a commitment to find a buyer or buyers of the
Sale Shares on terms that Docomo receives the Sale Price 154. The obligation is not qualified in any
respect 155. It is in this sense an absolute obligation. The Tribunal’s reasoning is as follows.
(1) The clause is expressed in mandatory language: in the first part Tata "shall commit to find a
buyer or buyers"; and in the second part Tata "shall acquire, or shall procure", "shall have the
obligation to indemnify" and "payment shall be made". The words in the first part "commit to find a
buyer", rather than simply "find a buyer", add emphasis 156.
(2) The Parties provided for alternative methods of performance because they knew there might be
restrictions on performance: Tata might not find a buyer at the Sale Price because a 26% holding in
an unlisted company is illiquid; licensing restrictions might prevent Tata from increasing its holding
in TTSL 157; or there might be a requirement for special permission from the RBI. The Tribunal
considers that the Parties must have intended that Tata could only avail itself of those alternatives
if it could perform in fact and in law.
(3) The Parties agree that at least one purpose of the clause was to provide stop loss protection. It
151
Brightman and Company v Bunge y Bom Limitada Sociedad [1924] 2 KB 619, Cape of Good Hope Motor Ship Co v Ministry of Agriculture,
Fisheries and Food [1963] AC 691, Bundle E13-278, 279.
152
Transcript, Day Four at pages 14-25.
153
154
The "Sale Price" is defined as a sum of money. It is not necessarily the price paid by the buyer, because part two of the clause recognises
that part of the Sale Price may be paid by Tata by way of the indemnity.
155
For example by reference to the market value of shares in TTSL, or the legal ability of Tata to acquire the Sale Shares.
156
The Tribunal has rejected Tata’s argument that the effect of Clause 12.3.1 was that there was only an obligation of reasonable diligence.
157
Both were noted by Tata as possibilities: Tata’s Pre-Hearing Submissions at para 66, fn 147, 148.

follows that performance might be required at a time when the market value of the Sale Shares was
below the Sale Price, so that a buyer might not be willing to pay the Sale Price; but the clause did not
expressly relieve Tata from liability in that event. Instead it provided Tata with alternative methods
of performance. The Tribunal rejects Tata’s "waterfall" analogy. This would have the effect that, if
the value of the Sale Shares has fallen, so that Docomo chooses to exercise its option to dispose of the
Sale Shares in return for the Sale Price, the first part of the clause ceases to operate just when it is
needed. The Tribunal considers that it is unlikely that the Parties intended such a result in a clause
which had this purpose. Although the second part of the clause begins by providing that Tata "shall"
acquire or procure, the Tribunal considers that this is merely an alternative method by which Tata
can perform its primary obligation under the first part.
(4) The Tribunal therefore finds that Tata committed to perform the first part of Clause 5.7.2. In the
absence of any contrary provision, it bore the risk that at the time of performance it was unable to
find a willing buyer at the Sale Price because the market value of the Sale Shares had fallen. In that
event Tata might have been able to avoid a breach of its primary obligation by availing itself of one
of the alternative methods of performance provided for in the second part of the clause; but if it
was not able to do so, it remained in breach and is liable to pay Docomo damages 158.
(5) The background to the SHA establishes that both Parties also recognised that the FEMA
Regulations might affect the ability of Tata to perform one way or another. The Parties could
have provided in terms that Tata would be obliged to perform only if it obtained any necessary
regulatory approval ("Subject to RBI consent" 159), as they did elsewhere in the SHA, but they chose
not to 160. Tire Tribunal considers it unlikely that the Parties intended the obligation in the first part
of Clause 5.7.2 to be discharged because an Indian buyer could not lawfully pay the Sale Price. The
Tribunal sees no basis for implying such a provision 161.
(6) The Tribunal does not consider that Clause 2.2.2 was intended to have the effect that Tata was
only obliged to perform if it obtained any necessary regulatory approvals because, as noted above,
it is primarily concerned to safeguard the License Agreements; but it is not necessary to decide the
point in the light of the findings set out above. Docomo had an unqualified right to a method of
performance that admittedly did not violate applicable Law.
(iv) Sever
Severance
ance
122. It is convenient to deal with the effect of Clause 12.10 162 in the context of the claim for breach of
Clause 5.7.2.
158
It seems that Tata appreciated that the Sale Option might give rise to a substantial liability. It had the right to share this liability with other
members of the Tata Group pursuant to the Inter-se Agreement in Bundle C2-37.
159
Docomo’s Pre-Hearing Submissions at para 58.
160
Docomo’s Pre-Hearing Submissions at paras 54-60.
161
Neither side argued for such an implied term. Docomo says such a term would be inconsistent with the object of Clause 5.7.2 and other
provisions of the SHA: Pre-Hearing Submissions at para 60. Tata on the other hand contends that an obligation of reasonable diligence is to be
implied: Pre-Hearing Submissions at paras 94-100. It also relies on Clauses 2.2.2 and 12.3.1.
162

(6) Indian exchange control laws
Introduction
123. The Parties made detailed submissions on the exchange control laws in place at the time of both the
execution of the SHA, 25 March 2009, and the issue by Docomo of the Sale Notice, 7 July 2014.
124. The governing statute is the Foreign Exchange Management Act 1999 ("FEMA") 163. It will be
necessary to distinguish between capital account transactions and current account transactions.
These are defined in section 2 of FEMA as follows:
"(e) "capital account transaction" means a transaction which alters the assets or liabilities, including
contingent liabilities, outside India of persons resident in India or assets or liabilities in India of
persons resident outside India, and includes transactions referred to in sub-section (3) of section 6.
(j) "current account transaction" means a transaction other than a capital account transaction and
without prejudice to the generality of the foregoing such transaction includes-
(i) payments due in connection with foreign trade, other current business, services, and short-term
banking and credit facilities in the ordinary course of business,
(ii)..."
125. The principal provisions of FEMA are as follows:

Dealing in foreign exchange, etc.
3. Save as otherwise provided in this Act, rules or regulations made thereunder, or with the general
or special permission of the Reserve Bank, no person shall-
(a) deal in or transfer any foreign exchange or foreign security to any person not being an
authorized person;
(b) make any payment to or for the credit of any person resident outside India in any manner...
Holding of foreign exchange, etc.
4. Save as otherwise provided in this Act, no person resident in India shall acquire, hold, own,
possess or transfer any foreign exchange, foreign security or any immovable property situated
outside India.
Current account tr
transactions
ansactions
163
Bundle Dl-2.

5. Any person may sell or draw foreign exchange to or from an authorised person if such sale or
drawal is a current account transaction:
Provided that the Central Government may, in public interest and in consultation with the Reserve
Bank, impose such reasonable restrictions for current account transactions as may be prescribed.
Capital account tr
transactions
ansactions
6. (1) Subject to the provisions of sub-section (2), any person may sell or draw foreign exchange to
or from an authorized person for a capital account transaction.
(2) The Reserve Bank may, in consultation with the Central Government, specify-
(a) any class of capital transactions which are permissible;
(b)....
(3) Without prejudice to the generality of the provisions of sub-section (2), the Reserve Bank may, by
regulations, prohibit, restrict or regulate the following-
(a)...
(b) transfer or issue of any security by a person resident outside India;
(j) giving of a guarantee or surety in respect of any debt, obligation or other liability incurred-
(i) by a person resident in India and owed to a person resident outside India...
Penalties
13.(1) If any person contravenes any provision of this Act, or contravenes any rule, regulation,
notification, direction or order issued in exercise of the powers under this Act, or contravenes
any condition subject to which an authorisation is issued by the Reserve Bank, he shall, upon
adjudication, be liable to a penalty up to thrice the sum involved in such contravention where such
amount is quantifiable, or up to two lakh rupees where the amount is not quantifiable, and where
such contravention is a continuing one, further penalty which may extend to five thousand rupees
for every day after the first day during which the contravention continues."
126. The regulatory regime in place when the SHA was executed was as follows.
127. In accordance with section 6 of FEMA, the RBI has made regulations which designate classes of
capital account transactions which are permissible. The Foreign Exchange Management
(Permissible Capital Account Transactions) Regulations 2000 164 ("FEMA 6") provide as follows:
"3. Permissible Capital A

Account
ccount Tr
Transaction
ansaction
(1) Capital account transactions of a person may be classified under the following heads, namely:-
164
Bundle D1-20.

(A) transactions, specified in Schedule I, of a person resident in India;
(B) transactions, specified in Schedule II, of a person resident outside India.
(2) Subject to the provisions of the Act or the rules or regulations or direction or orders made or
issued thereunder, any person may sell or draw foreign exchange to or from an authorised person
for a capital account transaction specified in the Schedules; Provided that the transaction is within
the limit, if any, specified in the regulations relevant to the transaction.
Prohibition.
4. Save as otherwise provided in the Act, rules or regulations made thereunder,
(a) no person shall undertake or sell or draw foreign exchange to or from an authorized person for
any capital account transaction,
(b)...
Schedule II
Classes of capital account tr

transactions
ansactions of persons resident outside India
(a) Investment in India by a person resident outside India, that is to say,
(i) issue of security by a body corporate or an entity in India and investment therein by a person
resident outside India; and
(ii) investment by way of contribution by a person resident outside India to the capital of a firm or
proprietorship concern or an association of persons in India."
128. Also in accordance with section 6 of FEMA, the RBI has made regulations which apply to the transfer
of securities. The Foreign Exchange Management (Transfer or Issue of Security by a Person Resident
Outside India) Regulations 2000 165 ("FEMA 20") provide as follows:
"Restriction on issue or tr
transfer
ansfer of Security b
byy a person resident outside India.
3. Save as otherwise provided in the Act, or rules or regulations made thereunder, no person outside
India shall issue or transfer any security:
Provided...
Provided further that the Reserve Bank may, on an application made to it and for sufficient reasons,
permit a person resident outside India to issue or transfer any security, subject to such conditions
as may be considered necessary.
Tr
Transfer
ansfer of shares...of an Indian compan
companyyb
byy a person resident outside India
9.(1)...
165
Bundle Dl-17.

(2) (i) A person resident outside India, not being a non-resident Indian or an overseas corporate
body, may transfer by way of sale or gift the shares... held by him or it to any person resident outside
India.
Permission of Reserve Bank in certain cases for tr

transfer
ansfer of security
10. B. TRANSFER BY WAY OF SALE NOT COVERED BY REGULA TION 9 BY A PERSON RESIDENT
OUTSIDE INDIA
(2) a person resident outside India, may transfer shares... of an Indian Company, without the
prior permission of the Reserve Bank, by way of sale, to a person resident in India subject to the
adherence to pricing guidelines, documentation and reporting requirements for such transfers as
may be specified by Reserve Bank from time to time."
129. The pricing guidelines referred to in Regulation 10B(2), which applied to transfers by non-residents
to residents were contained in RBI Circular No. 16 dated 4 October 2004 RBI/2004-05/207 166 (the
"October 2004 Guidelines"), which provided as follows:
"3.1 At present, the following categories of transfer of shares/ convertible debentures by way of sale
under private arrangement also require prior permission of Reserve Bank.
- transfer by a person resident in India to person resident outside India
- transfer by a person resident outside India to a person resident in India
3.2 As a measure of further simplification of procedures, it has been decided to grant general
permission and do away with the requirement of prior approval of Reserve Bank for transfer of
shares and convertible debentures in respect of the aforesaid categories, under Para 3.1, subject to
compliance of the terms and conditions and reporting requirements as furnished in the Annex... "
130. The pricing guidelines applicable to Regulation 10B(2) have varied over time, providing different
methods of calculating the fair market value of the shares in question. Those contained in the Annex
to the October 2004 Guidelines provided that sales of unlisted or thinly traded shares should be for
a consideration linked to earnings per share, prevailing market price or independent valuations.
131. By the time Docomo issued the Sale Notice, new rules and regulations were in place.
132. Circular No.49 dated 4 May 2010 167 (the "2010 Circular") amended the pricing guidelines in the
October 2004 Guidelines. The consideration was now to be "not less than the fair value to be
determined by a SEBI registered Category I Merchant Banker or a Chartered Accountant as per the
discounted free cash flow method."
133. In December 2013 the RBI introduced the Foreign Exchange Management (Transfer or Issue of
Security by a Person Resident outside India) (Seventeenth Amendment) Regulations 2013 168 (the
166
Bundle D2-30.
167
Bundle D2-32.

December 2013 Regulations"), which amended Regulation 9(1) of FEMA 20 so as to restrict assured
price put options.
134. On 23 May 2014 the RBI issued Notification No. FEMA 306/2014-RB 169 (the "New Pricing
Regulations"). This further amended Regulation 9(1) of FEMA 20 170 to provide as follows:
"Tr
"Transfer
ansfer of shares...of an Indian compan
companyyb
byy a person resident outside India
9.(1) Subject to the provisions of sub-regulation (2), a person resident outside India holding the
shares... of an Indian company in accordance with these Regulations, may transfer the shares...so
held by him, in compliance with the conditions specified in the relevant Schedule of these
regulations.
Further...a person resident outside India holding the shares...of an Indian company containing an
optionality clause in accordance with these Regulations and exercising the option/right, may exit
without any assured return, subject to the following conditions:
(i)...
(ii) In case of equity shares... of unlisted company, at a price not exceeding that arrived at as per any
internationally accepted pricing methodology for valuation of shares on arm’s length basis, duly
certified by a Chartered Accountant or a SEBI registered Merchant Banker. The guiding principle
would be that the non-resident investor is not guaranteed any assured exit price at the time of
making such investment/agreements and shall exit at the price prevailing at the time of exit..." 171
Docomo’
Docomo’ss case
135. Docomo’s case 172 on the effect of exchange control laws may be summarised as follows:
(1) Accepting that certain methods of performance under Clause 5.7.2 could require RBI approval,
Tata also had available other methods of performance which did not. Tata was obliged to pursue
these methods. It failed to do so and is liable in damages as a result.
(2) It is common ground that a sale of the Sale Shares at the Sale Price to a non-resident buyer fell
within the general permission in Regulation 9(2)(i) of FEMA 20 173.
(3) It is also common ground that any sale at the fair market value would have fallen within the
general permission in Regulation 10B(2) of FEMA 20 174. Tata’s obligation to indemnify Docomo
168
Bundle D2-26.
169
Bundle D2-27.
170
Bundle Dl-17.
171
The price referred to in (ii) is referred to in this Award as the "NPR Fair Value".
172
See the Claimant’s Memorial at paras 83-132, Bundle A-3 at page 154; Reply Memorial, paras 126-163, Bundle A-5 at page 349, Pre-Hearing
Submissions, paras 33-53.
173
174

for the difference between the Sale Price and the price actually paid for the Sale Shares fell
within a general class of permitted transactions for two reasons: first, the indemnity constituted
compensation for Tata’s failure to find a buyer at the Sale Price and as such was a current account
transaction; second, alternatively it was a capital account transaction within the terms of Schedule
II(a) of FEMA 6 ("Investment in India by a person resident outside India") 175.
(4) Tata’s case does not give sufficient weight to the fact that FEMA was a liberalising measure,
relaxing the earlier more controlled and restricted environment. Further, the restrictions on
optionality clauses introduced into Regulation 9(1) of FEMA 20 by the December 2013 Regulations 176
and the New Pricing Regulations 177 have no application to Clause 5.7.2. The December 2013
Regulations did not have retrospective effect. In any event they were intended to be permissive
rather than restrictive and are directed only at debt masquerading as equity. TTSL’s shares do not
contain an optionality clause; the Sale Option is contained in the SHA. Nor does Clause 5.7.2 amount
to an "option" at all; and it does not grant Docomo an "assured return".
(5) Tata’s foreign affiliates were as a matter of law free to purchase the Sale Shares. This would not
amount to an unlawful circumvention of the FEMA Regulations. Tata excuses itself on the ground
that its overseas affiliates had insufficient assets, but this is unsupported by evidence. In any event,
if Tata lacked the necessary assets in the place in which it was required to perform, then it was in
breach.
(6) Docomo’s primary case is that Tata did not require regulatory approval in order to perform its
obligations under Clause 5.7.2; but, even if it did, as a matter of law a party obligated to obtain
regulatory approval bears the risk of failing to obtain it and remains liable for non-performance.
Contractual obligations do not become unenforceable if any permission required under FEMA is not
obtained.
Tata’
ata’ss case
136. Tata’s case 178 may be summarised as follows:
(1) Tata accepts that current account transactions are permissible as long as they are not prohibited.
However the transactions contemplated by Clause 5.7.2, both the sale and the indemnity, are capital
account transactions. They are prohibited unless covered by a general or special permission: see
section 6(1) and (2) of FEMA 179 and Regulations 3(2) and 4 of FEMA 6 180. Docomo is wrong to invert
the regulatory framework by arguing that what is not prohibited is permitted; in fact it is the other
way round.
175
176
Bundle D2-26.
177
Bundle D2-27.
178
See Respondent’s Counter-Memorial at paras 22-40, 111-163, 181-200 and 215-223, Bundle A-4 at page 234; Rejoinder at paras 75-153, Bundle
A-6 at page 409; Pre-Hearing Submissions at paras 10-32, 101-126.
179
Bundle D1-2 at page 69.
180

(2) Regulation 3 of FEMA 20 181 makes it clear that transfers of shares by non-residents require
specific permission. When the parties entered into the SHA the position was straightforward.
Regulation 9(2)(i) of FEMA 20 182 gave general permission for a sale by a non-resident to another
non-resident. In addition, Regulation 10B(2) of FEMA 20 183 gave general permission for transfers at
a fair market value.
(3) By the time Docomo exercised the Sale Option in July 2014 there was a further general
permission. Regulation 9(1) of FEMA 20 184 gave general permission for the exercise of a put option,
provided that it did not guarantee the non-resident an assured exit price and that the price did
not exceed the NPV Fair Value. Docomo is wrong to challenge the application of this regulation.
Clause 5.7.2 did amount to a relevant option and the term Docomo relies upon, "assured return"
in Regulation 9(1), is not concerned only with an assured profit; Regulation 9(1) also refers to an
"assured exit price". The December 2013 Regulations 185 do apply to the exercise of the Sale Option;
the January 2014 Circular 186 states that all existing contracts will have to comply. But in any event
there is no retrospective effect, since the obligations in question only arose upon exercise of the Sale
Option.
(4) It follows that performance under Clause 5.7.2 required special permission. Tata gave the RBI a
proper account of the different methods of performance provided for. In light of the RBI’s refusal
of special permission, Tata is excused from performance. It is not therefore liable for breach of
contract. The exchange control regime provided for under FEMA is a matter of fundamental public
policy. A contractual obligation which violates exchange controls is therefore unenforceable.
(5) Tata offered to purchase the Sale Shares at the NPR Fair Value, as found by PwC. But it was not
permitted to make the top-up payment. That would be a capital account transaction for a number
of reasons. It was part of the consideration for the Sale Shares, as Clause 5.7.3 makes clear 187.
Alternatively it fell within the definition in section 2(e) of FEMA because it alters the assets of
Docomo in India 188; and because it involves a payment by Tata of dollars outside India 189. Tata also
relies on the unchallenged evidence of Mr Patwardhan 190 that an authorised dealer would have
insisted on having special permission from the RBI before it made a payment on Tata’s behalf.
The decision of the RBI amounts to a refusal of special permission to make payment under the
indemnity.
(6) As a matter of law, any device or arrangement designed to circumvent a prohibition under the
FEMA Regulations is unlawful and contrary to public policy. Tata could not therefore arrange for its
non-resident affiliates to purchase the Sale Shares at the Sale Price. That would only be possible if
Tata put them in funds in some way; that would constitute an unlawful circumvention.
181
182
183
184
185
Bundle D2-26.
186
187
188
Transcript, Day One at page 207, Day Four at pages 161, 170.
189
190
Bundle B-4 at para 10.

Discussion
137. In light of the preceding findings of the Tribunal on the proper construction of the SHA, it is not
necessary for the Tribunal to decide on the contested issues arising out of the FEMA Regulations.
138. It was common ground between the Parties that performance of Tata’s obligations under the first
part of Clause 5.7.2 was the subject of a general permission in two respects 191. First, a non-resident
purchaser was always able to buy the Sale Shares at the Sale Price, in accordance with Regulation
9(2)(i) of FEMA 20 192. Second, a purchaser resident in India, including Tata, was always able to buy
the Sale Shares at their fair market value, determined in accordance with the pricing guidelines in
force from time to time, in accordance with Regulation 10B(2) of FEMA 20 193.
139. The impediment to performance was therefore factual rather than legal 194. The only reason these
two methods of performance were not available to Tata after delivery of the Trigger Notice in 2014
was that the market value of the Sale Shares had fallen, so that no non-resident buyer was willing
to pay the Sale Price; and the fair market value was a fraction of the Sale Price.
140. The question whether a contractual obligation remains enforceable if it is subject to a requirement
for special permission under the FEMA Regulations does not therefore arise. Nor is it necessary for
the Tribunal to decide either whether special permission was required in order for Tata to make
payment under the indemnity in the second part of Clause 5.7.2, or the effect in law of the RBI’s
refusal of special permission.
Introduction
141. The foregoing sections of this Award anticipate many of the detailed submissions which the Parties
rely upon on the question whether or not Tata acted in breach of Clause 5.7.2.
Docomo’
Docomo’ss case
142. In summary, Docomo contends as follows 195:
191
Respondent’s Counter-Memorial at paras 40,167,183, 188, Bundle A-4 at pages 210, 261, Pre-hearing Submissions at para 39.
192
193
194
Tata relies on the principle that no absolute obligation can be imposed which would imply that the parties had undertaken to carry out an
arrangement which is contrary to the law: Tata’s Pre-Hearing Submissions at para 99. This principle has no application.
195
See Claimant's Memorial, paras 60 and 76-82, Bundle A-3 at page 150; Reply Memorial at paras 22-54, Bundle A-5 at page 312; Pre-Hearing
Submissions at paras 32-79.

(1) It is common ground that Docomo validly exercised its Sale Option. TTSL failed to achieve the
Second KPIs by 31 March 2014 and TTSL did not deliver evidence that they had been achieved by
31 May 2014. Docomo’s Sale Notice dated 7 July 2014 therefore triggered Tata’s commitment under
Clause 5.7.2 to find a buyer for the Sale Shares at the Sale Price.
(2) Tata was under an absolute obligation to perform. Docomo did not in fact receive the Sale Price
by 3 December 2014. It follows that Tata was in breach of contract. Any applicable exchange control
restrictions did not excuse non-performance.
(3) Alternatively, Tata failed to perform in ways which were admittedly free of any restriction under
the FEMA Regulations. Tata’s foreign affiliates, as non-residents, were free to pay the Sale Price
under Regulation 9(2)(i) of FEMA 20 196.
(4) Tata acted in breach of its obligations under what Tata describes as the second stage of the
waterfall. Tata did not attempt to find a buyer "at any price". SCB’s instructions were limited to
buyers at the Sale Price. Further, if special permission was required, Tata failed in its obligation to
seek RBI approval. Tata’s application dated 10 November 2014 197 was drafted in terms which were
self-serving. The approval was limited to a purchase of the Sale Shares by Tata. The letter ignores
a purchase by a third party "at any price" 198. Tata deliberately chose to apply for permission for a
method of performance which the RBI was unlikely to sanction 199.
(5) Tata’s obligation to indemnify Docomo for the difference between the Sale Price and the price at
which the Sale Shares were actually sold was not affected in any way by the FEMA Regulations. If,
however, this obligation was invalid or unenforceable, Clause 12.10 operated to sever the whole of
the second part 200; Tata accepts that the first part imposes an absolute obligation.
Tata’
ata’ss case
143. In summary, Tata’s case 201 is as follows:
(1) Clause 5.7.2 did not give rise to an absolute obligation. Clause 12.3.1 required Tata to exercise
reasonable diligence to perform. Tata did so, at the first stage by instructing SCB.
(2) When SCB reported back that no buyer could be found, Tata had an option as to the method of
performance in stage two. It could either acquire the Sale Shares itself "at any price"; or it could
procure the acquisition by a third party buyer. It opted for the former method. The obligations in
Clause 5.7.2 were pursuant to Clause 2.2.2 conditioned by what was lawful. The FEMA Regulations
prevented Tata from paying more than the NPR Fair Value. Tata commissioned PwC to report on
196
197
Bundle C4-109.
198
199
Bundles C3-71, C4-107. Transcript, Day One at pages 49-51.
200
201
See Respondent’s Counter-Memorial at paras 164-200, Bundle A-4 at page 253; Rejoinder at paras 41 -64. Bundle A-6 at page 398; Pre-
Hearing Submissions at paras 33-100.

the NPR Fair Value and offered to pay that amount. That would have amounted to performance
required by the second stage of Clause 5.7.2 to the fullest extent permitted by law.
(3) Tata’s obligation under the proviso in Clause 5.7.2 to indemnify Docomo for the difference
between the Sale Price and the price at which the Sale Shares were actually sold is invalid and
unenforceable. In the circumstances the effect of Clause 12.10 is that the proviso should be severed.
Hence purchase of the Sale Shares at the NPR Fair Value amounts to performance of the second
stage.
(4) Tata rejects Docomo’s criticisms of its application to the RBI for special permission. Tata tried
its best and argued its case quite well 202. Tata relies on Docomo’s failure to take up its invitation
to join in the application 203. Once Tata’s application was rejected by the RBI, performance of Tata’s
obligations was unlawful and/or impossible. Tata invokes section 56 of the Indian Contract Act 204.
(5) Tata was not able to procure the purchase of the Sale Shares by its overseas affiliates. This would
have amounted to an unlawful circumvention of the FEMA Regulations.
Discussion
144. The Tribunal has rejected Tata’s case on the construction of Clause 5.7.2. It has found that:
(1) Clause 12.3.1 did not qualify the obligations of Tata under Clause 5.7.2.
(2) The first part of that clause imposed on Tata an unqualified obligation to find a buyer of the Sale
Shares on terms that Docomo received the Sale Price by 3 December 2014.
(3) Tata has admittedly failed to perform that obligation.
(4) Tata cannot rely on its purported performance under the second part of Clause 5.7.2. The
alternatives provided for in the second part were only available to Tata if it was able to perform in
fact and law.
(5) The FEMA Regulations do not excuse non-performance. It is common ground that there were
methods of performance of the obligation in question which were covered by general permissions
under FEMA 20.
145. The Tribunal rejects Tata’s argument that its obligations under Clause 5.7.2 became void pursuant
to section 56 of the Indian Contract Act 205. The RBI’s refusal of special permission did not render
202
Transcript, Day One at pages 173, 214. Mr Subedar explained in cross-examination that he was under instructions from Mr Tata to make
every effort to obtain special permission. He told the RBI that Tata wanted to honour its agreement. He made a "tremendous effort". Transcript,
Day Three at pages 18, 62, 69. Tata’s submission was that they almost "made it". Transcript, Day Four at page 114.
203
Bundle C4-98.
204
Section 56 provides in relevant part as follows: "Agreement to do impossible act.- An agreement to do an act impossible in itself is void.
Contract to do act afterwards becoming impossible or unlawful.- A contract to do an act which, after the contract is made, becomes impossible,
or, by reason of some event which the promisor could not prevent, unlawful, becomes void when the act becomes impossible or unlawful."
205
Respondent’s Counter-Memorial at paras 226-234, Bundle A-4 at page 274.

performance impossible. There were other methods of performance which were unaffected by the
refusal. Tata might or might not have been in a position to perform in ways which were the subject
of a general permission in practice, but that is a different matter.
146. It follows that Tata is liable for breach of contract.
147. In view of the conclusions which the Tribunal has reached concerning the proper construction of
Clause 5.7.2, it is unnecessary to decide on the different contentions of the Parties as to the effect of
Clause 12.10 206. As the Tribunal explains in the preceding section of this Award, there is no question
of invalidity or unenforceability attaching to the obligations of Tata under the first part of Clause
5.7.2.
148. The Tribunal has accepted Docomo’s case that the alternative methods of performance in the second
part of Clause 5.7.2 are only available to Tata if it is able to perform as a matter of fact and law.
Assuming, in Tata’s favour, that the consequence of the RBI’s refusal of special permission in its
letter of 20 February 2015 was to render invalid or unenforceable performance under the second
part of Clause 5.7.2, the effect was that that alternative was not available to Tata. The effect was not
to extinguish Docomo’s rights under Clause 5.7.2; the first part remained valid and enforceable.
Clause 12.10 therefore has no application.
Docomo’
Docomo’ss case
149. Docomo advances an alternative claim to damages for breach of contract, based on the third
sentence of Clause 2.2.2 207. Docomo contends that, if performance of Clause 5.7.2 would involve a
violation of Law, Tata failed in its obligation to use good faith efforts to agree on an alternative
structure that would afford the Parties the substantial benefits intended by Clause 5.7.2. The claim
proceeds as follows.
(1) Tata’s offers by letters dated 24 October 2014 and 23 February 20 1 5 208 to purchase the Sale
Shares at their fair market value did not afford Docomo the substantial benefits intended.
(2) Tata refused to implement valid alternative structures. Tata could have arranged for one of its
foreign affiliates to purchase the Sale Shares with funds located outside India. It is common ground
between the Parties that Tata had numerous affiliates outside India with substantial assets. The
revenue of the Tata Group was US$ 103.27 billion in fiscal year 2014, with 67% of this revenue, US$
69 billion, coming from businesses outside India. Tata's majority and directly- or indirectly-owned
non-Indian subsidiaries reported approximately US$ 5.9 billion in assets (and US$ 2.25 billion in net
assets) for the 2014-2015 fiscal year 209.
206
207
See Claimant’s Memorial at paras 145-153, Bundle A-3 at page 179; Pre-Hearing Submissions at paras 77-79.
208
Bundles C4-106, C5-133.

(3) Tata could have offered sufficient sweeteners to a third party resident outside India to induce
it to pay the Sale Price for the Sale Shares. Alternatively it could have held an auction and then
indemnified Docomo for the difference between the auction price and the Sale Price, using a non-
resident entity with assets outside India.
(4) On 5 March 2014 Docomo and Tata met and Docomo proposed a number of possible alternative
structures 210. However Tata did not explore these in good faith. It is clear from Tata’s internal
correspondence that Tata’s real goal was to persuade Docomo that Clause 5.7.2 could not be
performed 211.
(5) Tata failed to act in good faith by refusing to provide Docomo with information concerning its
application to the RBI. On 3 March 2015 Docomo wrote to Tata requesting details concerning its
interaction with the RBI and the Ministry of Finance 212; but Tata replied on 9 March 2015 rejecting
the request 213.
Tata’
ata’ss case
150. Tata contends that it discharged its obligations under the third sentence of Clause 2.2.2 214.
(1) It contends that the requirement to use good faith to agree an alternative structure is no more
than an agreement to agree and as such unenforceable.
(2) Nevertheless Tata did make good faith efforts to explore alternative structures. Tata relics on
the conference call on 15 January 2014, which is described above 215, and subsequent meetings
and correspondence on both a without prejudice and open basis 216. In particular Tata relies on
its invitation to Docomo by letter dated 8 August 2014 217 to join Tata in its application to the RBI
and Docomo’s refusal and incorrect assertion that the RBI’s permission was not necessary 218. Tata
contends that it offered to perform to the greatest extent permitted by law.
(3) Tata contends that Docomo failed to identify any valid and lawful alternative structure. As for
the proposal that one of Tata’s non-resident affiliates could have purchased the Sale Shares, Docomo
has not explained how Tata could have done this, given that the affiliates operate independently 219.
209
These details relating to the Tata Group derive from the Agreed Summary of the Facts produced by the Parties on 1 May 2016.
210
Bundle C3-73.
211
See Bundle C3-63 ("counter the rationale"), C3-71 ("eliminate options 1 by 1"). Docomo’s Pre-Hearing Submissions at page 22, in 75.
212
Bundle C5-134.
213
Bundle C5-135.
214
See Respondent’s Counter-Memorial at paras 201-225, Bundle A-4 at page 266; Rejoinder at paras 154-170, Bundle A-6 at page 439; Pre-
215
Bundle C3-66.
216
Mr Srinath was asked in cross-examination about the documents which Docomo relied upon as demonstrating Tata’s lack of good faith in
exploring alternative structures. His explanation was that he was doing no more than encouraging a dialogue. Transcript, Day Two at pages
97 to 106.
217
Bundle C4-98.
218
Bundle C4-108.

In any event this would have required special permission of the RBI. Tata raised this proposal with
the RBI by supplying the RBI with a copy of the letter from Docomo dated 7 November 2014 220. The
RBI’s refusal of special permission precluded this option. Purchase by a non-resident Indian affiliate
would therefore amount to circumvention in violation of Indian law. This was confirmed by the
RBI 221.
Discussion
151. In view of the Tribunal’s conclusion on Docomo’s primary claim, this alternative claim does not
arise for consideration.
(9) The claim for breach of Clause 10.1.1(b) and (d)
Docomo’
Docomo’ss case
152. Docomo advances a second alternative claim for damages 222. It contends that, if Tata failed to
perform its obligations under Clause 5.7.2 because performance would have been in violation of
law, Tata is in breach of the representations and warranties in Clause 10.1.1(b) 223 and (d) 224.
(1) Docomo contends that at the time of contracting it was, and remains, possible for Tata to
perform its obligations under Clause 5.7.2 without violating any Law. If, however, Tata is correct in
contending that it knew from the outset that the RBI’s permission would be required before it could
perform, then it follows that its representations were knowingly false.
(2) Docomo contends that its own actual or assumed knowledge of the regulatory position is no
answer.
Tata’
ata’ss case
153. Tata contends that this claim is misconceived 225.
219
Subedar W/S Two at paras 5-11, Bundle B-6 at page 43.
220
Subedar W/S One at para 55, Bundle B-3 at page 23.
221
Subedar W/S Two at para 13, Bundle B-6 at page 45.
222
See Claimant’s Request for Arbitration, para 48, Bundle A-l at page 15; Memorial, para 88, Bundle A-3 at page 156; Pre-Hearing Submissions
at paras 80-85.
223
Tata has the necessary power to perform its obligations. Bundle C2-35 at page 964.
224
The performance by Tata of its obligations will not violate any Law. Bundle C2-35 at page 964.
225
See Respondent's Response and Counterclaim at para 50, Bundle A-2 at page 117; Counter-Memorial at paras 268-278, Bundle A-4 at page

(1) The representations could only apply to the obligations current at the time of contracting. Tata
had no obligations under Clause 5.7.2 at that time.
(2) In any event, the representations related to the state of the law at the time of contracting. The
law has changed since.
(3) An erroneous statement of the law made innocently cannot give rise to a claim for
misrepresentation.
(4) Clause 2.2.2 makes Clause 5.7.2 subject to a condition of compliance with applicable Law.
Performance cannot therefore violate any Law.
(5) Docomo was aware, or should be taken to have been aware, that exchange control regulations
might affect performance of the Sale Option.
Discussion
154. In view of the Tribunal’s conclusion on Docomo’s primary claim, this alternative claim does not
arise for consideration either.
(10) The restitution claim
Docomo’
Docomo’ss case
155. Docomo’s third alternative claim is for restitution 226. Docomo contends that if Tata is correct and
Docomo cannot validly receive the Sale Price under Clause 5.7.2, then Docomo is entitled to be
restored the advantage Tata received by reason of Docomo’s investment in TTSL. Docomo invokes
the principles of unjust enrichment in sections 65, 70 and 72 of the Indian Contract Act 227.
(1) Docomo contends that Clause 5.7.2 was central to Docomo’s decision to invest US$ 2.5 billion in
TTSL. Docomo would not have invested without the protection that clause afforded. If Clause 5.7.2
is unenforceable, Tata will be unjustly enriched as a result.
(2) Docomo further contends that its investment was made at Tata’s behest and urging. Tata
received a substantial advantage as a result; it was relieved of its obligation to procure an infusion
293; Pre-Hearing Submissions at para 83.
226
See Claimant’s Memorial at paras 154-168, Bundle A-3 at page 183; Reply at paras 169-192, Bundle A-5 at page 363; Pre-Hearing Submissions
at paras 88-95.
227
Section 65 provides as follows: "Obligation of person who has received advantage under void agreement, or contract that becomes void-
When an agreement is discovered to be void, or when a contract becomes void, any person who has received any advantage under such
agreement or contract is bound to restore it, or to make compensation for it to the person from whom he received it." Bundle Dl-1 at page 30.

of equity. It would be unjust to retain that benefit. Tata must therefore restore to Docomo the value
it received.
(3) Docomo disputes Tata’s defence that restitution would be contrary to public policy.
Tata’
ata’ss case
156. Tata claims that Docomo’s claim for restitution should be rejected 228.
(1) Tata contends that section 65 has no application. Tata’s primary case is not that the Sale Option
or the alternative structure provision is void for illegality or unenforceable. Tata primarily relies on
the express terms of the SHA, namely Clause 2.2.2.
(2) Docomo’s claim for restitution is an attempt to circumvent the FEMA Regulations. It would fly in
the face of the RBI policy. The RBI has refused special permission to perform the Sale Option. The
restitution claim essentially seeks to obtain specific performance.
(3) If necessary, the obligations in relation to the Sale Shares can be severed. Docomo is not
entitled to restitution simply because one provision in the SHA is void. Tata denies that Clause 5.7.2
represents the entire basis on which Docomo invested in TTSL. There has been no failure of basis.
The actual basis for Docomo’s investment was the issue of shares in TTSL and the benefits that came
with them.
(4) Tata has not been unjustly enriched. The vast majority of the sum which Docomo paid went
to entities other than Tata. Docomo can only succeed if it can quantify the advantage that Tata
has received. It has not done so. Tata would benefit from Docomo’s investment only if TTSL was
profitable; it is not profitable and overall Tata has lost more money than Docomo. Tata provided
financial support to TTSL before and after Docomo invested. Between 2002 and Docomo’s
investment in 2009, Tata injected about Rs. 38.3 billion (approximately US$ 576 million) of equity
capital into TTSL, together with about Rs. 39 billion (approximately US$ 979 million) of non-equity
support. From 2009 to June 2015, Tata provided TTSL with unilateral support valued at about Rs.
221 billion (approximately US$ 3.3 billion) 229.
(5) Docomo continues to enjoy a number of benefits under the SHA, including management rights
over TTSL. It has also received advantages including marketing and brand recognition.
Discussion
157. In view of the Tribunal’s conclusion on Docomo’s primary claim, this alternative claim too does not
228
229
These figures derive from the Agreed Summary of the Facts produced by the Parties on 1 May 2016, although it appears that at least one of
the conversions of Rs. into USS is incorrect.

arise for consideration.
(11) T
Tata’
ata’ss counterclaim
158. As set out above, Tata seeks by way of counterclaim declaratory relief which, it contends, is
important for the deteimination of the dispute and for the effective operation of the SHA 230. The
declarations sought arc, in summary:
(1) That Tata has fully discharged its obligations under Clauses 5.7, 2.2.2 and 12.3.1 and is excused
from further performance.
(2) That Tata is not now required (i) to purchase, or procure the purchase of, the Sale Shares at a
price exceeding the NPR Fair Value; or (ii) to make any payment in respect of the Sale Shares in
excess of the NPR Fair Value 231.
159. Docomo asks the Tribunal to reject Tata’s Counterclaim 232. In response to the first declaration,
Docomo contends that Tata has not discharged its obligations. In response to the second, Docomo
states that it is not clear what purpose this will serve. It further contends that negative declarations
should be refused where they would serve no useful purpose; here an award either allowing or
dismissing Docomo’s claims will adequately resolve the dispute between the Parties.
160. It follows from the preceding sections of this Award that the Tribunal has arrived at conclusions
which are inconsistent with either of the declarations sought by Tata. Nor does the Tribunal
consider that there is any need for, or benefit in making, declarations which further clarify the
Tribunal’s conclusions. The Counterclaim therefore fails.
(12) Relief
Introduction
161. The Tribunal has found that Docomo’s claim for breach of Clause 5.7.2 succeeds. The question arises
as to the form of relief which is appropriate.
162. Docomo claims damages. This claim is considered under this heading. Docomo also claims interest
and costs; these claims are considered under separate headings below.
230
See Respondent’s Response and Counterclaim at paras 53-56, Bundle A-2 at page 118; Counter-Memorial at paras 279-281, Bundle A-4 at
page 297; Rejoinder at para 224, Bundle A-6 at page 463.
231
The declarations are those set out in the Counter-Memorial and the Rejoinder. The declarations in the Response and Counterclaim were
worded differently.
232
See Claimant’s Memorial at paras 178 and 179, Bundle A-3 at page 192; Reply at paras 202-207, Bundle A-5 at page 377.

163. As stated above, Docomo having succeeded on its primary claim, its alternative claims for breach of
Clauses 2.2.2 and 10.1.1(b) and (d) and restitution do not arise for consideration.
164. The Tribunal has found that Tata’s Counterclaim fails. It is accordingly dismissed.
Docomo’
Docomo’ss case
165. Docomo claims damages of US$ 1,172,137,717 233. Docomo relies on section 73 of the Indian Contract
Act 234. Indian law follows the general common law rule that "in giving damages for breach of
contract, the party complaining should, so far as it can be done by money, be placed in the same
position as he would have been in if the contract had been performed" 235. If Tata had performed,
Docomo would have received Rs. 72,496,717,771 converted into United States Dollars at the then-
prevailing exchange rate at the end of the Sale Period, that is 3 December 2014, of Rs. 61.85 to the
dollar, namely US$ 1,172,137,717 236.
166. Upon receipt of damages plus interest, Docomo undertakes to relinquish its shares in TTSL to Tata
or its designee, in order that it does not receive a windfall benefit 237.
Tata’
ata’ss case
167. Tata argues that Docomo is not entitled to damages 238. Tata is not in breach of contract, because it
has offered to perform to the fullest extent permitted by law. When the RBI refused special
permission, Clause 2.2.2 operated to discharge further performance. To award damages for breach
of Clause 5.7.2 would, it contends, allow Docomo by a roundabout route to enforce a contract which
is unenforceable and in violation of law. What cannot be done directly, cannot be done indirectly.
This would therefore circumvent the RBI’s refusal of special permission.
168. Tata does not dispute Docomo’s analysis of the general law governing the entitlement to damages.
Nor does it challenge Docomo’s computation of damages on that basis. However it contends that this
analysis would not apply to a claim under an indemnity 239. It also argues that Docomo has failed to
mitigate its loss, by refusing Tata’s repeated offers to buy the Sale Shares at the NPR Fair Value, being
the maximum price allowed under the applicable pricing guidelines.
233
Claimant’s Memorial at para 180(a), Bundle A-3 at page 193; Reply at paras 164-168, Bundle A-5 at page 362, Pre-Hearing Submissions at
paras 85-87.
234
Section 73 provides as follows: "Compensation for loss or damage caused by breach of contract- When a contract has been broken, the
party who suffers loss by such breach is entitled to receive, from the party who has broken the contract, compensation for any loss or damage
caused to him thereby, which naturally arose in the usual course of things from such breach, or which the parties knew, when they made the
contract, to be likely to result from the breach of it." Bundle Dl-1 at page 33.
235
Union of India v Sugauli Sugar Works (P) Ltd (1976) 3 SCC 32, 36, Bundle E8-186.
236
Docomo’s Reply at para 165 and fit 159, Bundle A-5 at page 362.
237
Docomo’s Reply at para 167, Bundle A-5 at page 362, Pre-Hearing Submissions at para 87. See discussion at Transcript, Day Four at pages
7-9.
238
See Respondent’s Counter-Memorial at paras 199-200, Bundle A-4 at page 265, Pre-Hearing Submissions at paras 127-129.
239
Respondent’s Counter-Memorial at para 176, fn 220, Bundle A-4 at page 257.

Discussion
169. The Tribunal’s conclusions on Tata’s arguments are as follows:

(1) The Tribunal rejects the argument that an award of damages for breach of Clause 5.7.2 would
amount to a circumvention of the relevant FEMA Regulations. The essence of the Tribunal’s analysis
of Clause 5.7.2 is that Tata was under an unqualified obligation to perform. Performance did not
necessarily require special permission from the RBI because certain methods of performance were
already covered by general permissions.
(2) The Tribunal also rejects the argument based on the use of the term "indemnity" in Clause 5.7.2.
The Tribunal has found that Docomo is entitled to damages for breach of the primary obligation in
Clause 5.7.2. The measure of damages applicable to a breach of contract is therefore appropriate.
The amount due under the indemnity is not relevant for present purposes.
(3) The Tribunal also rejects Tata’s argument that Docomo acted in breach of its duty to mitigate.
This argument is based on Tata’s offers to pay Docomo the NPR Fair Value in its letters of 8
August 2014, 24 October 2014 and 23 February 2015 240. Tata does not challenge Docomo’s citation of
authority for the proposition that a party is not discharged of its contractual obligations, even when
the other party refuses to accept its performance on the basis of a bona fide dispute concerning
the parties’ contractual rights 241. Tata claims to distinguish these authorities on the basis that in the
present case "it is obvious that there is not a bona fide dispute as Docomo insists that Tata perform
the Sale Option without the RBI’s permission" 242. The Tribunal is satisfied that Docomo was in good
faith. It has found that Docomo was fully entitled to insist on performance and it acted reasonably
in declining to accept the amount on offer 243.
170. The Tribunal therefore finds that, upon tendering the Sale Shares to Tata or its designee, Docomo is
entitled to damages in the amount claimed, namely US$ 1,172,137,717. Tata should pay Docomo the
amount due within 21 days.
171. Tata is liable for its failure to perform obligations which were the subject of general permissions
under FEMA 20. The FEMA Regulations do not therefore excuse Tata from liability. The Tribunal
expresses no view, however, on the question whether or not special permission of the RBI is
required before Tata can perform its obligation to pay Docomo damages in satisfaction of this
Award 244.
(13) Interest
240
Bundles C4-98, 106, C5-133.
241
Claimant’s Reply at para 168 fn 161, Bundle A-5 at page 363.
242
Respondent’s Pre-Hearing Submissions at para 129 fit 322.
243
Docomo’s letter of 7 November 2014 is at Bundle C4-108.
244
Tata submits that it may require several regulatory approvals to comply with any payment obligations under an award: Rejoinder at para
220, Bundle A-6 at page 461.

Introduction
172. The Parties agree that English law governs both the power to award interest and the rate of interest
to be awarded 245.
173. The Tribunal has power to award interest under section 49 Arbitration Act 1996 246. Section 49(3)
provides that the Tribunal may award simple or compound interest on the amount awarded by the
Tribunal "from such dates, at such rates and with such rests as it considers meets the justice of the
case." Under section 49(4) the Tribunal may also award simple or compound interest from the date
of the award until payment "at such rates and with such rests as it considers meets the justice of the
case." These provisions are subject to other agreement of the Parties. They are therefore subject to
the relevant provisions of the LCIA Rules.
174. Article 26.4 of the LCIA Rules provides as follows:
"Unless the parties have agreed otherwise, the Arbitral Tribunal may order that simple or
compound interest shall be paid by any party on any sum awarded at such rates as the Arbitral
Tribunal decides to be appropriate (without being bound by rates of interest practised by any state
court or other legal authority) in respect of any period which the Arbitral Tribunal decides to be
appropriate ending not later than the date upon which the award is complied with."
Docomo’
Docomo’ss submissions
175. Docomo seeks pre- and post-award interest on US$ 1,172,137,717 from 3 December 2014 at 9.5%
compounded with quarterly rests 247. Its principal contentions are as follows.
(1) As a matter of Indian law interest should be calculated "[t]o do complete justice, prevent wrongs,
remove incentives for wrongdoing or delay, and to implement in practical terms the concepts of
time value of money, restitution and unjust enrichment...or to simply levelise" 248. The Tribunal
should award interest at a rate which puts Docomo in at least as good a position as it would have
been without Tata’s breach and denies Tata any unjust enrichment gained by holding onto Docomo’s
funds. Accordingly, the most appropriate rate of interest is Tata’s borrowing rate, namely 9.5%.
(2) Alternatively, if the Tribunal decides to focus on Docomo, the proper rate should reflect
Docomo’s weighted average cost of capital ("WACC"), namely 5.28%, since that captures the expected
rate of return on Docomo’s capital and therefore its opportunity cost. Docomo did not in fact borrow
USD during the relevant period, but if the Tribunal favours a USD borrowing rate, the appropriate
rate would be 4.58%, being the average of 6-month LIBOR for the relevant period plus 4%.
245
Emails to the Tribunal from counsel to the Parties dated 5 May 2016.
246
247
See Claimant’s Memorial at paras 169-172, Bundle A-3 at page 189; Reply at paras 193-201, Bundle A-5 at page 373; Pre-Hearing Submission
at paras 96-99; written submission dated 11 May 2016 and subsequent emails.
248
Indian Council for Enviro-Legal Action v Union of India (2011) SCC 161, Bundle E4-84.

(2) Interest should be compounded quarterly, because only compound interest accounts for the time
value of money and commercial reality.
Tata’
ata’ss submissions
176. Tata contends that the Tribunal should award simple interest at 0,097% per annum in the case of a
JPY borrowing or 0.6411% per annum in the case of a USD borrowing 249. It submits as follows.
(1) Under English law an award of interest is compensatory. Hence the question is the rate at which
a party in the position of Docomo would have been able to borrow. The appropriate rate is 0,097%
per annum for JPY and 0.6411 % per annum for USD.
(2) Simple interest is appropriate for two reasons. First, as a matter of English law a claimant
can only recover compound interest if it proves its actual losses 250. Docomo has not demonstrated
any actual loss. Second, in not making payment of the Sale Price on 3 December 2014, Tata acted
pursuant to the clear directions of the RBI.
(3) The Tribunal should award interest only on the amount of the Sale Price which exceeded Rs.
23.34 per share. Tata offered to pay Docomo that amount. Docomo failed to mitigate its loss by
accepting Tata’s offer 251. It would be inappropriate to award interest on the full amount of the Sale
Price when Docomo continued to hold property worth Rs. 23.34; it was not deprived of value to that
extent.
(4) On 3 December 2014 Tata’s borrowing rate was 8,544% per annum for INR and 0.6411% per
annum for USD.
Discussion
177. In accordance with the agreement of the Parties, the Tribunal will apply English law to determine
the rate of interest which is payable.
178. It is common ground that interest is payable from 3 December 2014 252.
179. The Tribunal finds that interest is payable on the full amount of the Sale Price, that is US$
1,172,137,717. The Tribunal has already rejected Tata’s argument that Docomo acted in breach of its
duty to mitigate in refusing Tata’s offer to pay the NPR Fair Value as determined by PwC. The
Tribunal finds the fact that Docomo has continued to hold the Sale Shares since 3 December 2014
249
Hearing Submissions at para 154; written submission dated 5 May 2016 and subsequent emails.
250
Sempra Metals Ltd v Inland Revenue Commissioners [2008] 1 AC 561 at para 17, Bundle E7-159.
251
See Bundles C4-98, 106 and 108 and C5-133.
252
Docomo’s written submissions dated 11 May 2016 at para 16; Tata’s written submission dated 5 May 2016 at para 12.

irrelevant.
180. The Tribunal considers it appropriate to award compound interest with quarterly rests, for the
following reasons.
(1) The Sempra case concerned the recovery of interest losses by way of damages for breach of a
contract to pay a debt. The passage relied upon does not fetter the exercise of a tribunal’s discretion
under section 49 Arbitration Act 1996 to award simple or compound interest as it considers meets
the justice of the case.
(2) The Tribunal does not accept Tata’s submission that, in not making the payment of the Sale Price
on 3 December 2014 or thereafter, Tata acted pursuant to the clear directions of the RBI. Neither
the correspondence 253, nor the evidence of Mr Subedar 254 goes this far. The short answer to Tata’s
submission is that, as the Tribunal has found, on the true construction of Clause 5.7.2, Tata was able
as a matter of law to perform its obligations without the special permission of the RBI. Further, the
Tribunal has found that, with effect from 3 December 2014, Tata was liable to pay Docomo damages
for breach of contract. Tata has not sought permission from the RBI to pay Docomo damages 255. On
the contrary it has denied liability throughout the course of this arbitration.
(3) The objective is to compensate Docomo for being out of its money. In the circumstances the
Tribunal considers that compound interest is most appropriate and meets the justice of the case.
Simple interest does not reflect the actual value of money and the commercial reality.
(4) Tata has not objected to the principle of quarterly rests.
181. It remains to decide the rate of interest which Tata should pay. The Tribunal finds that the rate
should be linked to that at which a Japanese company having a credit rating similar to that of
Docomo would have borrowed USD 256. Docomo submits that it did not in fact borrow USD during
the relevant period but that an appropriate measure of a USD base rate is the US Prime Rate, which
averaged 3.33% during the relevant period. Tata replies that companies within the NTT group
comparable to Docomo had USD bonds outstanding during the relevant period with an average
yield of 1,379% on 3 December 2014 257. In response Docomo argues that specific instances of other
companies’ USD bonds do not provide an accurate measure of the interest Docomo would have to
pay if it were to borrow the funds withheld by Tata 258.
182. In the circumstances the Tribunal considers that Docomo should receive a rate which is
approximately 17 basis points in excess of the average of the US Prime Rate during the relevant
period. The Tribunal finds that the most appropriate rate, which meets the justice of the case, is
253
Tata’s application to the RBI dated 10 November 2014 at Bundle C4-109 was narrowly drawn. It requested approval for Tata to purchase
the Sale Shares at the Sale Price. Mr Subedar’s letter of 20 November 2014 at Bundle C4-112 added to that. He asked Mr Mohanty to cover in
the RBI’s reply to Tata’s application the feasibility or otherwise of Tata fulfilling its obligations through a non-Indian subsidiary/affiliate and
left with Mr Mohanty a copy of Docomo’s letter of 7 November 2014 (Bundle C4-108). But there were other methods of performance available
to Tata. The RBI’s response dated 20 February 2015 (Bundle C5-132) to Tata’s application was also narrowly drawn: "your request to purchase
shares of [TTSL] from [Docomo] at any pre-determined price cannot be acceded to".
254
Subedar W/S One at paras 21, 22, 51-67, Bundle B-3 at pages 15-25; Subedar W/S Two, paras 12-14, Bundle B-6 at page 45. Mr Mohanty’s
"immediate reaction" was that Tata could not perform through a non-Indian subsidiary/affiliate "as it would circumvent FEMA".
255
As stated above, the Tribunal expresses no view on whether special permission is required under the FEMA Regulations for this purpose.
256
USD because Docomo was entitled to have the Sale Price remitted to it in USD: Clause 5.7.3 SHA, Bundle C2-35 at page 953.
257
Email from counsel to the Tribunal dated 13 May 2016.
258
Email from counsel to the Tribunal dated 19 May 2016.

3.5% per annum.
183. Docomo is therefore entitled to interest at 3.5% per annum on US$ 1,172,137,717 from 3 December
2014 to the date of this Award, compounded with quarterly rests. The amount due by way of interest
to the date of this Award is therefore US$ 65,276,963.
184. Docomo is entitled to interest at the same rate, 3.5% per annum, on the amount outstanding under
this Award from 21 days after the date of this Award until the date of payment compounded with
quarterly rests 259.
(14) Costs
Introduction
185. As stated above, both Parties claim their costs in these proceedings 260. In accordance with
Procedural Order No.4, both Parties made written submissions in support of their claim on 10 June
2016.
186. Docomo claims costs and expenses with a GBP equivalent of approximately GBP 7,026,100. Tata
claims costs and expenses with a GBP equivalent of approximately GBP 5,738,400. Both sides seek
payment in the currencies in which their costs and expenses were incurred.
Discussion
187. Sections 61 and 63 Arbitration Act 1996 set out default provisions governing costs 261. The general
principle is that costs are to follow the event. Unless the tribunal decides otherwise, costs are to be
recoverable if they are reasonable in amount and reasonably incurred. However these provisions
are also subject to other agreement of the parties. They are therefore subject to the relevant
provisions of the LCIA Rules.
188. It is appropriate to distinguish between Arbitration Costs and Legal Costs, as these terms are defined
in Article 28 of the LCIA Rules, which provides so far as relevant as follows:
"28.1 The costs of the arbitration other than the legal or other expenses incurred by the parties
themselves (the "Arbitration Costs") shall be determined by the LCIA Court in accordance with the
259
As noted above, Tata submits that it may require several regulatory approvals to comply with any payment obligations under an award. It
should not therefore be penalised with post-award interest accruing in a period where regulatory approval is pending: see Rejoinder at para
220, Bundle A-6 at page 461. The Tribunal rejects this submission. The Tribunal considers it appropriate that, subject to a 21 day grace period,
Docomo should be compensated for being out of its money.
260
Claimant’s Reply, Bundle A-5 at page 379; Respondent’s Rejoinder, Bundle A-6 at page 463.
261

Schedule of Costs. The parties shall be jointly and severally liable to the LCIA and the Arbitral
tribunal for such Arbitration Costs.
28.2 The Arbitral Tribunal shall specify by an award the amount of the Arbitration Costs determined
by the LCIA Court (in the absence of a final settlement of the parties’ dispute regarding liability
for such costs). The Arbitral Tribunal shall decide the proportions in which the parties shall bear
such Arbitration Costs. If the Arbitral Tribunal has decided that all or any part of the Arbitration
Costs shall be borne by a party other than a party which has already covered such costs by way of a
payment to the LCIA under Article 24, the latter party shall have the right to recover the appropriate
amount of Arbitration Costs from the former party.
28.3 The Arbitral Tribunal shall also have the power to decide by an award that all or part of
the legal or other expenses incurred by a party (the "Legal Costs") be paid by another party. The
Arbitral Tribunal shall decide the amount of such Legal Costs on such reasonable basis as it thinks
appropriate. The Arbitral Tribunal shall not be required to apply the rates or procedures for
assessing such costs practised by any state court or other legal authority.
28.4 The Arbitral Tribunal shall make its decisions on both Arbitration Costs and Legal Costs on
the general principle that costs should reflect the parties' relative success and failure in the award
or arbitration or under different issues, except where it appears to the Arbitral Tribunal that in
the circumstances the application of such a general principle would be inappropriate under the
Arbitration Agreement or otherwise. The Arbitral Tribunal may also take into account the parties’
conduct in the arbitration, including any co-operation in facilitating the proceedings as to time and
cost and any non-co-operation resulting in undue delay and unnecessary expense. Any decision on
costs by the Arbitral Tribunal shall be made with reasons in the award containing such decision."
189. Docomo submits that in this arbitration costs should follow the event. Tata agrees "in principle";
costs should "ordinarily" follow the event 262. Tata further submits as follows:
"Tata requests that the Tribunal take into account in allocating costs the fact that, throughout these
proceedings, Tata has been acting on the basis of a clear instruction from the RBI that Tata cannot
lawfully make the payment Docomo demands. Tata considers that fact to be determinative of the
question of its contractual liability, but even if the Tribunal disagrees it should bear in mind that
Tata’s actions have not been in wilful disregard of its obligations, but in an effort to comply with
regulatory requirements. 263"
190. As stated above, the Tribunal does not accept Tata’s submission that it has throughout these
proceedings been acting on a clear instruction that Tata cannot lawfully make the payment that
Docomo demands. It was not the responsibility of the RBI to give Tata legal advice. In any event the
RBI answered a question which was narrowly drawn and did not encompass all possible methods
by which Tata could discharge its obligations to Docomo.
191. Docomo argues against an issue-based approach:
262
Claimant’s Memorial at paras 173-177, Bundle A-3 at page 190; Pre-Hearing Submissions at para 100; Cost Submissions at paras 10 and 11;
Respondent’s Counter-Memorial at para 285, Bundle A-4 at page 299; Pre-Hearing Submissions at para 155; Costs Submissions at para 2.
263
Rejoinder at para 222, Bundle A-6 at page 462. See also Pre-Hearing Submissions at para 155, Costs Submissions at para 2.

"This is not a matter in which it would be appropriate to make an issue-based costs order as there
are no discrete, divisible aspects of the case in respect of which it could be said that one or other
of the parties has 'won' or lost'; although both parties ran various legal arguments, the only issue
in dispute is whether the Sale Price can be recovered. Should the Tribunal find that Docomo has
prevailed in its claim (whether on the basis of its damages claim or claim for restitution) and award
the recovery of some or all of the amounts sought, the appropriate award is for Docomo to recover
its costs and expenses, in full, and for Tata to further meet the Arbitration costs of the Tribunal and
the LCIA." 264
192. The Tribunal is required to apply the general principle that costs should reflect the Parties’ relative
success and failure in the arbitration or under different issues 265. As is stated above, Docomo’s claim
in this arbitration has succeeded and Tata’s Counterclaim has failed. On this measure Docomo has
enjoyed complete success.
193. As is clear from the preceding sections of this Award, these proceedings were hard fought, with both
sides advancing numerous different factual and legal submissions, including alternative
submissions. The Tribunal does not accept Docomo’s assertion that there are no discrete or divisible
aspects of the case in respect of which it could be said that Docomo has won or lost. However the
Tribunal considers that it would not be appropriate on the facts of this case to adopt an issue by
issue approach. Docomo has won on its primary case. It would not be right to take account of
whether Docomo would have won or lost on those issues in respect of which it has not proved
necessary for the Tribunal to make any findings. Accordingly Docomo is entitled to an award of all
its recoverable costs.
194. For these reasons the Tribunal considers that the appropriate course is that Tata should pay all the
Arbitration Costs. Tata should also pay all of Docomo’s recoverable Legal Costs.
195. Docomo claims the following amounts by way of Arbitration Costs and Legal Costs 266.
Summary of Docomo's Costs and Expenses
AMOUNT
COST/EXPENSE
(CURRENCY)
A. ¥972,961,030.82
SKADDEN, ARPS, SLATE, MEAGHER & FLOM LEAD COUNSEL Legal Fees
and Disbursements
B. ¥42,407,483.00
CICCU MUKHOPADHAYA INDIAN SENIOR COUNSEL Legal Fees and

Disbursements
264
Docomo’s Costs Submissions at para 10.
265
See Article 28.4 of the LCIA Rules.
266
Docomo’s Cost Submissions at para 15.

C. ¥49,990,869.00
KHAITAN & CO INDIAN COUNSEL Legal Fees and Disbursements
$132,318.00 and
D. LCIA COSTS / ADVANCES TO THE TRIBUNAL
¥322,944.00
HEARING COSTS
E. STENOGRAPHER ¥893,167.00
F. ¥1,417,626.00
IDRC Venue charges, audio files of proceedings, audio amplification and

other technical equipment
¥1,067,993,119.82;
TOTAL
and
$132,318.00
196. The Arbitration Costs have been determined by the LCIA Court, pursuant to Article 28.1 of the LCIA
Rules, to be as follows:
Registration fee LCIA's administrative charges GBP 1,750.00 GBP 16,465.99 GBP
Tribunal’s fees 218,059.20
Total GBP 236,275.19
197. Of the Arbitration Costs stated in the previous paragraph, Docomo has lodged a registration fee and
deposits amounting to GBP 127,339.90, including interest accrued. Tata has lodged deposits
amounting to GBP 125,589.90, including interest accrued. Total funds lodged by the Parties amount,
therefore, to GBP 252,929.80 of which GBP 236,275.19 has been applied to the Arbitration Costs.
There remains, therefore, on the LCIA’s account, a balance of funds of GBP 16,654.61, which is to be
returned to the Parties by the LCIA in equal shares (GBP 8,327.31), unless otherwise agreed by the
Parties. Accordingly, Tata shall reimburse Docomo in the sum of GBP 119,012.59 which sum has
been funded by Docomo through the funds which it has lodged and the registration fee.
198. Docomo therefore claims a total of JPY 1,067,670,175 by way of Legal Costs 267. It remains to quantify
the amount which is recoverable.
199. The LCIA Rules allow the Tribunal to decide on such reasonable basis as it thinks appropriate. The
Tribunal considers that the appropriate starting point is that costs should be recoverable if they
were reasonably incurred. As provided in Article 28.4 of the LCIA Rules, the Tribunal will also take
267
The amount claimed less Arbitration Costs, rounded down.

into account the conduct of the Parties.
200. The Tribunal has carefully considered the costs in question. It takes account of the following among
other matters.
(1) This was an important and complex case, where counsel on both sides performed to the highest
standard. Both sides were represented by distinguished practitioners from a number of different
jurisdictions. The fact that both sides claim large amounts is therefore no surprise.
(2) Docomo claims some 22% more than Tata. There is no obvious reason for this. Docomo fielded
a large legal team, although no larger than that of Tata 268. However there are a number of possible
explanations. A claimant will often shoulder a greater burden in the conduct of an arbitration.
In addition, Docomo may have imposed greater demands on its legal team. It may be that the
allocation of work between New York, London and India made a difference. In sum, the Tribunal is
not inclined to penalise Docomo on this ground; given the nature of its claim, it was entitled to some
leeway in deploying its counsel of choice.
(3) Docomo claims for costs incurred after 3 December 2014, which is appropriate 269.
(4) There is no reason to make any adjustment on the basis of the conduct of the Parties.
201. In the circumstances the Tribunal finds that all the costs claimed were reasonably incurred.
Docomo is therefore entitled to an award of JPY 1,067,670,175.
E. A
AW
WARD
202. After consideration of all of the factual and legal submissions which have been presented to us and
for the reasons set out in full above, we the Tribunal hereby unanimously award, declare and
adjudge as follows:
(1) We order the Respondent to pay the Claimant within 21 days of the date of this Award US$
1,172,137,717 upon tender of the Sale Shares.
(2) We order the Respondent to pay the Claimant within 21 days US$ 65,276,963, being interest on
the said US$ 1,172,137,717 from 3 December 2014 to the date of this Award, calculated at 3.5% per
annum compounded with quarterly rests.
(3) We order the Respondent to pay the Claimant within 21 days GBP 119,012.59 by way of
Arbitration Costs and JPY 1,067,670,175 by way of Legal Costs.
(4) We order the Respondent to pay the Claimant interest at 3.5% per annum compounded with
quarterly rests on the amount outstanding under this Award from 21 days after the date of this
Award until payment.
(5) We dismiss all other claims and counterclaims.
268
Docomo was represented by 11 lawyers at the Evidentiary Hearing, Tata by 12.
269
Tata claimed costs from April 2014.

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LCIA (LONDON COURT OF INTERNATIONAL ARBITRATION)

LCIA Case No. 152896

NTT DOCOMO INC. V

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Final Award ..................................................................................................................................................................................................... 0

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Tata’s case ................................................................................................................................................................................................ 48

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2. The Claimant is represented in this arbitration by:

3. The Claimant is also represented by Mr Ciccu Mukhopadhaya, Senior Counsel.

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5. The Respondent is represented in this arbitration by:

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12. Clause 12.1.2 of the SHA 4 provides as follows:

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22. Docomo produced the following Witness Statements:

23. Tata produced the following Witness Statements:

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24. Tata produced the following Expert Report:

Tata: Mr Subedar, Mr Srinath 17

The Parties made oral closing speeches on 6 May 2016.

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(1) The Share Subscription A

"2.2 Compliance with the A Agreement,

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5.7 Sale Option of the Str

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10.1 Promoter and Compan

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If any provision of this Agreement is determined to be invalid or unenforceable in whole or in part,

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(2) Exercise of the Sale Option

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(4) The application to the RBI for special permission

" We request you to kindly grant your approval for:

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Mr Subedar copied his letter to Mr Kii 64.

61. Mr Kii replied on 26 November 2014 65:

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(1) The claims of the Parties

72. As stated above, Docomo began this arbitration on 3 January 2015.

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74. Docomo’s Reply Memorial 82 seeks an Award as follows::

75. In summary, Tata’s case is as follows:

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76. Tata’s Rejoinder 83 requests the Tribunal to:

"(a) ORDER the dismissal of Docomo’s claims;

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(2) The issues for decision

78. Docomo submitted its list, which is as follows:

1. What were Tata's obligations under Clause 5.7.2?

2. Did Tata perform its obligations under Clause 5.7.2?

(b) Was RBI permission required: