As talks collapse, BPDB now set to face Adani in int'l arbitration
Adviser Fouzul says they are fully prepared to pursue legal action to safeguard national interest
Highlights:
- Adani Power moves for arbitration against BPDB over pricing dispute.
- Conflict stems from 2017 PPA for Godda coal power supply.
- BPDB alleges inflated tariffs, surcharges, and missed tax benefits.
- Adani appointed mediator; BPDB yet to name its own.
- Government forming legal team, awaiting review committee's final report.
- Arbitration could escalate to SIAC tribunal with binding global verdict.
Bangladesh is preparing to face an international arbitration as India's Adani Power Limited moves against the Bangladesh Power Development Board (BPDB) over disputes surrounding the power purchase agreement (PPA) and coal pricing formula, after several rounds of failed talks.
The disagreement centres on the 25-year PPA signed in 2017 for electricity from Adani's 1600MW Godda coal-powered plant in India's Jharkhand state. BPDB says the tariff, linked to imported coal prices, is significantly higher, late-payment surcharges are excessive, and tax exemptions granted in India were not passed on to Bangladesh.
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According to Power Division sources, Adani Power has already nominated a mediator and asked BPDB to nominate its own, a step before approaching the Singapore International Arbitration Centre (SIAC) to form a dispute board to settle the case.
Once both sides appoint mediators, SIAC will facilitate the dispute board to resolve differences between Adani and BPDB under international arbitration rules. If the mediator-level talks, which are non-binding, fail, then full-blown legal battle will start.
Sources said the two parties sat in CEO-level where Adani side showed no flexibility to address the concerns BPDB is raising. At the meeting, Adani bluntly said that it will not renegotiate PPA.
"We sat with Adani Power several times over the past few months but made no progress in addressing our concerns," BPDB Chairman Md Rezaul Karim told The Business Standard.
"The appointment of a mediator by Adani indicates that they are opening a legal battle instead of resolving the issues on the table," he added.
Power, Energy and Mineral Resources Adviser Fouzul Kabir Khan told TBS that they are fully prepared to pursue legal action to safeguard the national interest.
"We are communicating with the sector-related renowned lawyers," the adviser added.
The arbitration threat comes months after BPDB in June cleared $437 million of Adani's dues, based on assurances that Adani would consider renegotiating the PPA and coal pricing once payments were settled.
Adani claims the total due is $900 million, which BPDB says is much higher than it should be.
The last meeting between the two parties was held on 23 June. The meeting, held virtually, was led by Adani Power CEO Shersingh B Khyalia and BPDB Company Affairs Secretary ANM Obaidullah, along with other officials from both sides.
To learn whether Adani will resolve the disputes through discussion or legal process, TBS called Adani country head in Bangladesh Yousuf Shahariar thrice over phone and also sent a text message, but received no reply till yesterday.
We sat with Adani Power several times over the past few months but made no progress in addressing our concerns.
Next action after review report
The government earlier formed a review committee under the Power Division, to examine the PPA's fairness and whether the terms can be renegotiated legally or over discussion.
According to Power Division sources, the review committee has also advised the initiation of legal preparations for BPDB, and liaison with international legal counsel is currently underway.
However, officials said BPDB is awaiting the review committee's full report before deciding next action.
"We are discussing with higher authorities about the next step. We are waiting for the final review report," BPDB chairman said, adding that BPDB has yet to nominate its mediator.
SIAC arbitration process
The dispute between Adani and BPDB will now follow the SIAC process.
According to the international arbitration both sides must appoint a neutral mediator from a third country. If that mediation fails, the matter will escalate to a full arbitration process, starting with a Notice of Arbitration.
An impartial Arbitral Tribunal will then examine evidence and conduct hearings – a process that could take months or years. The final arbitral verdict will be globally binding and enforceable under the New York Convention, effective since 1959.
Ahsanul Karim, senior advocate of the Supreme Court, said Bangladesh's past experience with international arbitration has been disappointing, with the country losing most cases attributed to the poor choices in appointing arbitrators.
"We often engage individuals based on nepotism rather than merit. Many are not judicious enough to defend the country's interests effectively," Karim said.
He stressed that the government must act prudently when selecting arbitrators by carefully examining candidates' past portfolios, especially their track records in winning cases.
He suggested Bangladesh should explore out-of-court settlements, before entering lengthy legal battles.
Background of the dispute
Bangladesh signed the PPA through direct negotiation under a cross-border power cooperation framework, bypassing open competitive bidding.
The Godda plant began commercial operations in April 2023, supplying around 750MW to Bangladesh. Since then, disputes have arisen over tariffs, coal sourcing, late-payment surcharges, and tax exemptions benefits.
Under the PPA, Adani's tariff is linked to imported coal prices benchmarked to Indonesia and Australia, including long-distance freight charges.
BPDB officials and independent experts say this makes Godda power significantly costlier than electricity from domestic plants such as Payra or Rampal because of average price to two indices
Internal estimates seen by TBS put Godda's average cost at Tk14.87 per unit, compared with Tk11.83 at Payra. The Power Division called the gap economically untenable and in urgent need of revision.
The PPA also imposes a 2% monthly surcharge on late payments, equivalent to nearly 27% annually, which BPDB considers excessive and inconsistent with international norms.
Adani's plant was later declared a Special Economic Zone by India, granting it substantial tax and duty exemptions. BPDB and experts argue these benefits should have been passed on to Bangladesh.
However, Adani presented a document from the Indian government claiming that tax exemptions were cancelled after the plant failed to begin commercial operations by 2021.
Following the fall of the Awami League in August last year, the Indian government changed its policy keeping the option open for Adani to sell power locally, despite the plant being built exclusively to export electricity to Bangladesh.
