The India vs Pakistan case: Who will win?
A long-awaited arbitration hearing set up by the ICC to resolve a dispute between India and Pakistan has concluded. The hearing was held in Dubai from October 1 to October 3, 2018. A three-member panel comprising of distinguished legal minds- Michael Beloff, Jan Paulsson, and Dr. Annabelle Bennette- heard arguments from the lawyers of both sides.
BCCI and PCB agreed back in 2014 that over a period of eight years - from 2015 to 2023- the two teams would play six series. The agreement was in the form of a letter characterized by the BCCI as an Expression of Statement (EOI) and by PCB as a Memorandum of Understanding (MoU). The agreement stemmed from a 2014 understanding between the two Boards that India would play Pakistan for six series in return for Pakistan's support for the BCCI's preferred revenue sharing model proposal tabled before the ICC.
The panel of arbitrators is charged by the ICC, specifically, to assess the legal basis for PCB's claim that the the agreement it signed with the BCCI is a legally binding document and that India's failure to live up to the terms of that understanding merits compensating Pakistan to the tune of US$ 70 million.
On the other hand, the crux of India's defense centers around its assertion that the document it signed with the PCB was merely an Expression of Interest (EOI), and not a binding agreement, whose validity was contingent on government approval. Furthermore, they point out that since the Indian government categorically declined the BCCI's request for India to play against Pakistan on a bilateral basis, the EOI became null and void.
According to former PCB chairman Najam Sethi, the letter signed by India and Pakistan simply stipulates that Pakistan will be rewarded with six bilateral series for its support of India's revenue sharing proposal. He emphasizes that there is no government approval clause in it. If that's the case, then, Pakistan's claim that they have a contract with India is a valid one.
The strength of India's defense lies in its contention that agreements between private entities of different countries are implicitly subject to government approval. In other words, the will of the government supersedes any understanding between private entities across international borders and that there is plenty of precedence for that in international commerce. In fact, Mr. Salman Khurshid, India's former External Affairs minister, has publicly declared that he provided expert testimony before the panel to validate BCCI's claim that the Indian government blocked it from proceeding with the agreed series against Pakistan and that, as a general matter, it is routine for governments to intervene in matters that conflict with the country's national interests.
As a matter of law, the burden is on the PCB to prove that the BCCI's actions led to the financial losses that it claims it suffered and to further demonstrate that the BCCI had the necessary motivation to renege on its commitment.The BCCI, on the other hand, has to simply show that their government stepped in to prevent them from playing Pakistan and that they had every intention to play them otherwise.
The expert testimony of Mr. Khurshid will help India's defense of "no government approval." Further, it's an established fact that India would incur substantial financial losses, as well, as a result of not playing Pakistan. So, there is plenty of motivation for them to play Pakistan and none to renege.
Finally, on the basis of these facts and evidence, it is likely that the panel will rule that the agreement was legal and binding but that the Indian government's diktat superseded the validity of the contract and for that the BCCI cannot be held financially or otherwise liable.